[Cite as Kerger & Hartman, L.L.C. v. Ajami, 2017-Ohio-7352.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Kerger & Hartman, LLC, et al.                            Court of Appeals No. L-16-1135

        Plaintiffs                                       Trial Court No. CI0200908133

v.

Mohamad Ajami, et al.

        Appellee                                         DECISION AND JUDGMENT

[Habib “Herbert” Howard—Appellant]                       Decided: August 25, 2017

                                                *****

        Norman A. Abood, pro se appellee.

        Herbert Howard, pro se.

                                                *****

        SINGER, J.

        {¶ 1} This case is an appeal from three judgments of the Lucas County Court of

Common Pleas by appellant Habib “Herbert” Howard. Appellant appeals the trial

court’s: June 13, 2016 judgment denying appellant’s motion for relief from judgment;
June 20, 2016 order to seal and strike from the record the transcript of the audio

recording filed June 17, 2016; and June 21, 2016 judgment denying appellant’s second

motion for relief from judgment. For the reasons that follow, we affirm the trial court’s

judgments.

                                   Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

              I. The trial court erred, as a matter of law, in denying Appellant’s

       60(B) Motions[.]

              II. The trial court erred, as a matter of law, in refusing to grant

       Appellant hearings on his 60(B) Motions[.]

              III. The trial court erred, as a matter of law, in sealing the transcript

       and 60(B) Motion filed by Appellant[.]

                                            Facts

       {¶ 3} This case originates from an action filed on November 10, 2009, by the law

firm of Kerger & Hartman, LCC (“the law firm”) to collect attorney fees and expenses

owed to them pursuant to two fee agreements. The law firm named Mohamad Ajami

(“Mohamad”), Hanadi Harajli, Jamil Ajami, American Petroleum Retail, Inc. (“RKA”),

attorney Norman Abood and appellant as defendants.

       {¶ 4} The fees sought by the law firm were linked to Mohamad and Hassan

Harajli’s (“Hassan”) business and financial dealings with respect to gas station property

(“the property”) located in Toledo, Ohio. The two men had a falling out and a




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foreclosure complaint with respect to the property was filed against Mohamad in May of

2004.

        {¶ 5} Later in 2004, Mohamad traveled to the country of Lebanon, where he was

arrested, detained and tortured. It was discovered that Hassan had paid $50,000 to have

Mohamad unlawfully arrested and tortured. Ultimately, Mohamad was released, due to

efforts of the United States Embassy in Beirut. Upon returning to the United States,

Mohamad retained Abood to represent him. On October 20, 2004, Mohamad executed a

fee agreement with Abood for legal services. Abood then retained the law firm to serve

as co-counsel, and a second fee agreement was executed, in March of 2006, between

Mohamad and Abood.

        {¶ 6} Abood and the law firm were not paid for their legal services, thus the law

firm filed its action for fees and expenses. In its September 15, 2014 judgment, the trial

court determined the validity of Abood’s charging lien and the priority of the claims

against the proceeds from the sale of the property. RKA appealed.

        {¶ 7} On December 5, 2014, while RKA’s appeal was pending, appellant filed his

first motion for relief from judgment pursuant to Civ.R. 60(B) with the trial court

suggesting Abood engaged in fraud. Appellant maintained he had a conversation with

Mohamad in the presence of RKA’s attorney where Mohamad said Abood claimed he

was only owed $50,000, and Mohamad said he was not aware of the 45 percent fee

agreement upon which Abood was granted judgment. These statements conflicted with




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statements Mohamad subsequently made under oath. The trial court stayed appellant’s

motion pending disposition of the appeal.

       {¶ 8} On December 11, 2015, we affirmed the trial court’s judgment. Kerger &

Hartman, LLC v. Ajami, 2015-Ohio-5157, 54 N.E.3d 682 (6th Dist.). RKA filed two

motions for reconsideration which we denied. RKA also appealed to the Supreme Court

of Ohio, which declined to hear the case. Kerger & Hartman, L.L.C. v. Ajami, 145 Ohio

St.3d 1459, 2016-Ohio-2807, 49 N.E.3d 321. RKA filed a motion for reconsideration,

which the Supreme Court of Ohio denied. Kerger & Hartman, L.L.C. v. Ajami, 146 Ohio

St.3d 1474, 2016-Ohio-5108, 54 N.E.3d 1271.

       {¶ 9} On June 13, 2016, the trial court denied appellant’s first Civ.R. 60(B)

motion without a hearing, finding it was based on inadmissible hearsay and lacked any

operative facts. The trial court found evidence before it refuted the statements in the

Civ.R. 60(B) motion, thus Mohamad’s alleged statements had no effect on its decision.

       {¶ 10} Appellant filed a second motion for relief from judgment pursuant to

Civ.R. 60(B) on June 20, 2016, after appellant discovered a tape recording of phone

conversations he had with Abood and attorney John Potts, which appellant recorded in

August of 2007. Appellant contended the recording showed Abood fraudulently handled

appellant’s case and deceived the court. The trial court denied the second Civ.R. 60(B)

motion because the phone conversations were not newly discovered evidence, and sealed

the record of the motion and the transcript of the recording.




4.
                                   Legal Analysis

       {¶ 11} We will address appellant’s first two assignments of error together.

Appellant contends the trial court abused its discretion in denying his two Civ.R. 60(B)

motions and refusing to hold a hearing on the motions.

       {¶ 12} Abood counters appellant offered only unsupported, inadmissible

allegations and no operative facts in support of his Civ.R. 60(B) motions.

                                  Civ.R. 60(B) Motions

       {¶ 13} “We review trial court judgments granting or denying relief from judgment

under Civ.R. 60(B) on an abuse of discretion standard.” Natl. Collegiate Student Loan

Trust 2003-1 v. Beverly, 6th Dist. Huron Nos. H-13-010, H-13-011, 2014-Ohio-4346,

¶ 29. An abuse of discretion occurs when the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 14} Civ.R. 60(B) provides that a party may be relieved from a final judgment

for the five 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




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       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 the judgment.

       {¶ 15} The Supreme Court of Ohio has held in order to prevail on a motion for

relief from judgment under Civ.R. 60(B), the moving party must demonstrate: “(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.” GTE Automatic Electric, Inc. v. Arc

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113, (1976), paragraph two of the

syllabus.

       {¶ 16} To prove a meritorious defense, a movant must provide operative facts

which, if true, would constitute a meritorious defense; ultimate success on the merits

need not be established. K. Ronald Bailey & Assocs. v. Martin, 6th Dist. Erie No.

E-08-057, 2009-Ohio-2932, ¶ 15. It is not mandatory for a court to hold a hearing on a

Civ.R. 60(B) motion, as the court must only have a hearing when the motion “contain[s]

allegations of operative facts which could warrant relief under Civ.R. 60(B).” Aurora

Loan Servs., LLC v. Wilcox, 2d Dist. Miami No. 2009 CA 9, 2009-Ohio-4577, ¶ 15,

citing Boster v. C & M Servs., 93 Ohio App.3d 523, 526, 639 N.E.2d 136 (10th

Dist.1994). “Such operative facts should be supported by evidence in the form of

‘affidavits, depositions, written admissions, written stipulations, answers to

interrogatories, or other sworn testimony.’” Hussein v. Hafner & Shugarman Enter., Inc.,




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6th Dist. Wood No. WD-10-083, 2011-Ohio-4738, ¶ 22, quoting East Ohio Gas Co. v.

Walker, 59 Ohio App.2d 216, 221, 394 N.E.2d 348 (8th Dist.1978).

         {¶ 17} Hearsay is generally not admissible as evidence and is defined as “a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C).

         {¶ 18} Lastly, the doctrine of res judicata “‘prevents the successive filings of

Civ.R. 60(B) motions [for] relief from a valid, final judgment when based upon the same

facts and same grounds or based upon facts that could have been raised in the prior

motion.’” Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8,

quoting Beck-Durell Creative Dept., Inc. v. Imaging Power, Inc., 10th Dist. Franklin No.

02AP-281, 2002-Ohio-5908, ¶ 16.

         {¶ 19} In this case, with respect to appellant’s first Civ.R. 60(B) motion, the first

and third prongs of the GTE Automatic test are not at issue. Rather, the issue is whether

or not appellant established the second prong and is “entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5).”

         {¶ 20} Appellant’s first motion was based on Civ.R. 60(B)(2), (3), and (5).

Appellant presented statements made by Mohamad on October 30, 2014, which were also

heard by RKA’s attorney, and which directly refute evidence already before the court.

Appellant asserted these statements were new evidence and showed Abood engaged in

fraud.




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       {¶ 21} In its June 13, 2016 judgment, the trial court noted the claims that

Mohamad made certain statements on October 30, 2014, were not brought to the attention

of the court while Mohamad was under oath on October 31, 2014. The court found the

only facts appellant offered in his motion were inadmissible hearsay statements. The

court further observed even if the statements were not hearsay and were taken as true, the

statements were not “newly discovered evidence” and would not affect its decision The

court concluded the Civ.R. 60(B) motion did not set forth operative facts, thus a hearing

on the motion was not required.

       {¶ 22} Upon review, we find the trial court did not err in not holding a hearing on

appellant’s first Civ.R. 60(B) motion, as the motion did not contain allegations of

operative facts which could warrant relief under Civ.R. 60(B). We further find the trial

court did not abuse its discretion in denying appellant’s first Civ.R. 60(B) motion since

appellant did not provide the trial court with operative facts which, if true, would

constitute a meritorious defense.

       {¶ 23} Appellant’s second Civ.R. 60(B) motion was premised on recorded

telephone conversations between himself, Abood and Potts.

       {¶ 24} In its June 21, 2016 judgment, the trial court found the telephone

conversations were not newly discovered evidence as the phone calls happened in August

of 2007. The court noted although appellant just recently discovered the recording, he

was aware of the phone calls and could have raised issues regarding the conversations

prior to the court’s September 16, 2014 decision or in his first Civ.R. 60(B) motion. The




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court further noted appellant’s claim that his previous attorney mishandled the case could

have been raised prior to the court’s September 16, 2014 decision or in his first Civ.R.

60(B) motion.

       {¶ 25} Upon review, we find the trial court did not abuse its discretion in denying

appellant’s second Civ.R. 60(B) motion since appellant could have raised the issues

related to the telephone conversations and his dissatisfaction with his previous attorney

prior to the trial court’s September 16, 2014 judgment or in his first Civ.R. 60(B) motion.

We further find since appellant’s second Civ.R. 60(B) motion was barred by the doctrine

of res judicata, no hearing on the motion was required. Thus, the trial court did not err in

not holding a hearing on appellant’s second Civ.R. 60(B) motion.

       {¶ 26} In light of the foregoing, appellant’s first and second assignments of error

are not well-taken.

                             Sealed Motion and Transcript

       {¶ 27} Appellant contends in his final assignment of error that the trial court

abused its discretion by arbitrarily sealing his second Civ.R. 60(B) motion and the

transcript of the recorded phone calls in violation of Ohio’s Public Records Act.

       {¶ 28} Abood counters appellant filed his successive motion for relief with the

transcript of the phone conversations to create a public record to embarrass or defame

Abood.

       {¶ 29} R.C. 149.43 states “all public records responsive to the request shall be

promptly prepared and made available for inspection to any person at all reasonable times




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during regular business hours.” R.C. 149.43 also states public records are any “records

kept by any public office,” subject to exceptions. The Supreme Court of Ohio held “any

record used by a court to render a decision is a record subject to R.C. 149.43.” State ex

rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶

27.

       {¶ 30} Here, the second Civ.R. 60(B) motion and transcript filed by appellant

were barred by res judicata. Thus, these documents were not used by the court to render

a decision. Moreover, the trial court found the transcript had no significance or relevance

and was sealed to prevent what should have been private phone calls from being a public

record. We find the trial court did not abuse its discretion in ordering the motion and

transcript sealed and stricken. Accordingly, appellant’s third assignment of error is not

well-taken.

                                       Conclusion

       {¶ 31} The judgments of the Court of Common Pleas of Lucas County are

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                      Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




10.
                                 Kerger & Hartman, LLC v. Ajami
                                 C.A. No. L-16-1135




Mark L. Pietrykowski, J.   _______________________________
                                       JUDGE
Arlene Singer, J.
                           _______________________________
Christine E. Mayle, J.                 JUDGE
CONCUR.
                           _______________________________
                                       JUDGE




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