[Cite as Blount v. Smith, 2012-Ohio-595.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96991



                                     WILLIE BLOUNT
                                              PLAINTIFF-APPELLANT

                                               vs.


                            WILLIAM H. SMITH, ESQ.
                                              DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-738533

        BEFORE: Kilbane, J., Rocco, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                    February 16, 2012
APPELLANT

Willie Blount, Pro se
911 Aintree Park Drive #102
Mayfield Village, Ohio 44143

ATTORNEYS FOR APPELLEE

Julie L. Juergens
Shane A. Lawson
Monica A. Sansalone
Gallagher Sharp
6th Floor - Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115




MARY EILEEN KILBANE, J.:

          {¶1} Plaintiff-appellant, Willie Blount (“Blount”), appeals the trial court’s

judgment denying his “motion to set aside; vacate dismissal order with prejudice and

reinstate case per [Civ.R.] 60(B)(4), 60(B)(6).” Finding no merit to the appeal, we

affirm.

          {¶2} This appeal arises from a legal malpractice complaint Blount filed against

defendant-appellee, William Smith (Smith), in October 2010. In his complaint, Blount

alleges that Smith provided legal services for him in connection with his divorce. He

claims that Smith committed legal malpractice by failing to ensure that the final divorce
decree included language granting the domestic relations court continuing jurisdiction to

modify his spousal support payments and by not representing Blount’s best interest. In

February 2011, Smith moved for summary judgment, arguing that Blount filed his

complaint outside the applicable statute of limitations found in R.C. 2305.11. Blount

responded by filing a “motion for cross summary judgment.” On April 27, 2011, the trial

court stated that Blount’s motion “is, in substance, only a brief in opposition to [Smith’s]

motion for summary judgment. To the extent it can be considered a motion for summary

judgment, it is denied.” In that same order, the trial court granted Smith’s motion for

summary judgment.

       {¶3} Then on May 18, 2011, Blount filed a “motion to set aside; vacate dismissal

order with prejudice and reinstate case per [Civ.R.] 60(B)(4), 60(B)(6).” Blount argued

that: (1) pro se petitions cannot be dismissed without the opportunity for the pro se

litigant to correct the petition; (2) he received no instruction from the trial court; and (3)

Smith filed for summary judgment before discovery was complete. Smith opposed, and

the trial court denied Blount’s motion on June 3, 2011.

       {¶4} It is from this order that Blount appeals, raising the following five

assignments of error for review.

                            ASSIGNMENT OF ERROR ONE

       Trial court erred when it failed to do due diligence to make sure my rights
       guaranteed for the pro se litigant by the United States Constitution,
       Supreme Court cases and Judicial Notice requests were not violated.

                            ASSIGNMENT OF ERROR TWO
       Trial court erred when it granted summary judgment to defendant in
       violation of [Civ.R. 56(C), Civ.R 56(F)], and journal entry instructional
       rules.

                           ASSIGNMENT OF ERROR THREE

       Trial court erred by denying appellant due process of law as guaranteed by

       the First, Fifth, and Fourteenth Amendments of the United States

       Constitution and Article I, Section Eleven and Sixteen of the Ohio

       Constitution.



                           ASSIGNMENT OF ERROR FOUR

       Trial court erred when it failed to consider pro se standard of review
       granted [to] pro se litigants by the Supreme Court of the United States.

                            ASSIGNMENT OF ERROR FIVE

       Trial court erred by denying my [Civ.R. 60(B)(4) motion and Civ.R.
       60(B)(6) motion] for relief stating that Ohio does not recognize [Civ.R.
       60(B)(6)] motions when it does for extraordinary legal situations.

       {¶5} Within these assigned errors, Blount essentially argues that the trial court

violated his due process rights by: (1) failing to instruct Blount, as a pro se litigant, on

“how to repair pleadings which may have been deficient”; (2) failing to allow him to

present evidence to support his claims; (3) granting summary judgment when there had

been no discovery; and (4) granting summary judgment based on an error in the caption

of his opposition brief.
      {¶6} We note that the trial court is vested with discretion in determining whether

to grant a motion for relief from judgment under Civ.R. 60(B), and that court’s ruling will

not be disturbed on appeal absent a showing of abuse of discretion. Rose Chevrolet, Inc.

v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564, (1988). An abuse of discretion

“‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State

v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

      {¶7} Civ.R. 60(B) provides in pertinent part:

      On motion and upon such terms as are just, the court may relieve a party * *
      * from a final judgment, order or proceeding for the following reasons: (1)
      mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
      evidence which by due diligence could not have been discovered in time to
      move for a new trial under Rule 59(B); (3) fraud (whether heretofore
      denominated intrinsic or extrinsic), misrepresentation or other misconduct
      of an adverse party; (4) the judgment has been satisfied, released or
      discharged, or a prior judgment upon which it is based has been reversed or
      otherwise vacated, or it is no longer equitable that the judgment should have
      prospective application; or (5) any other reason justifying relief from
      judgment. The motion shall be made within a reasonable time, and for
      reasons (1), (2) and (3) not more than one year after the judgment, order or
      proceeding was entered or taken.

      {¶8} To prevail on a Civ.R. 60(B) motion, the movant must demonstrate that:

      (1) the party has a meritorious defense or claim to present if relief is
      granted; (2) the party is entitled to relief under one of the grounds stated in
      Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable
      time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not
      more than one year after judgment, order or proceeding was entered or
      taken. GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351
      N.E.2d 113 (1976), paragraph two of the syllabus.
       {¶9} A Civ.R. 60(B) motion for relief from judgment, however, may not be used

as a substitute for a timely appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio

St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. Thus, when a party

merely reiterates arguments that concern the merits of the case and that could have been

raised on appeal, relief under Civ.R. 60(B) is not available as a substitute for appeal.

Buoscio v. Kinkopf, 8th Dist. No. 76842 (Aug. 17, 2000); Wozniak v. Tonidandel, 121

Ohio App.3d 221, 228, 699 N.E.2d 555 (8th Dist. 1997).

       {¶10} In the instant case, Blount’s appeal and Civ.R. 60(B) motion he filed with

the trial court contest the trial court’s order dated April 27, 2011, which granted Smith’s

motion for summary judgment. Blount did not timely appeal that order, rather he filed a

Civ.R. 60(B) motion to vacate judgment. In that motion, Blount failed to allege or

demonstrate any circumstances arising under Civ.R. 60(B)(1)-(5) to support relief from

judgment. Thus, Blount’s motion was improperly filed as a substitute for an appeal and

the trial court correctly denied it. See Buoscio at 2 (where the plaintiff filed a complaint

against defendant for legal malpractice. The trial court awarded defendant summary

judgment and plaintiff then filed a motion for relief from judgment, arguing errors by the

trial court with respect to defendant’s motion for summary judgment. The trial court

denied plaintiff’s Civ.R. 60(B) motion and plaintiff appealed. We found that the trial

court correctly denied plaintiff’s Civ.R. 60(B) motion because plaintiff’s motion was

improperly filed as a substitute for an appeal.)

       {¶11} Accordingly, Blount’s assignments of error are overruled.
      {¶12} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
