[Cite as Haley v. Nomad Preservation, 2013-Ohio-159.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STEPHEN T. HALEY C.A. No. 26492
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NOMAD PRESERVATION, INC., et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV 2010 11 7619
DECISION AND JOURNAL ENTRY
Dated: January 23, 2013
BELFANCE, Judge.
{¶1} Stephen Haley appeals the judgment of the Summit County Court of Common
Pleas. For the reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} The procedural history of this case is complex. Mr. Haley received a judgment
against Nomad Preservation, Inc. in an earlier action, the procedural history of which is partly
recounted in Haley v. Nomad Preservation, Inc., 9th Dist. No. 26220, 2012-Ohio-4385. See id.
at ¶ 2-5. Pertinent to this litigation is that the trial court in that case entered a $1.3 million
judgment in favor of Mr. Haley against Nomad. Id. at ¶ 2. The trial court also issued an order of
attachment against certain vehicles, in particular a 2005 Dodge Viper and a 2007 Hummer.
{¶3} Mr. Haley filed a complaint against multiple defendants, including Afife Makki
and Hussein Ayache. He alleged that Ms. Makki was a subsequent transferee of the 2005 Dodge
2
Viper, which had been the subject of a fraudulent transaction.1 Mr. Haley alleged that, pursuant
to R.C. Chapter 1336, he was entitled to receive a judgment against Ms. Makki equivalent to the
value of the 2005 Dodge Viper. Mr. Haley made a similar allegation against Mr. Ayache with
regard to the 2007 Hummer.
{¶4} Mr. Ayache answered the complaint, and Mr. Haley quickly moved for summary
judgment against him. Mr. Ayache moved in opposition to Mr. Haley’s motion for summary
judgment. A few weeks after filing his response to Mr. Haley’s motion for summary judgment,
Mr. Ayache filed a motion captioned “MOTION TO DISMISS DECLARATORY
JUDG[MENT] AGAINST HUSSIEN AYACHE, DEFENDANT[,]” attaching a journal entry
from the other Nomad litigation in which the trial court had determined that Mr. Ayache was an
innocent buyer under R.C. 1336.08(A) and, thus, was not liable to Mr. Haley.2 An hour after Mr.
Ayache filed his motion, the trial court, relying on the journal entry Mr. Ayache had just
submitted, simultaneously denied Mr. Haley’s motion and granted Mr. Ayache’s motion.
{¶5} Meanwhile, Ms. Makki filed a motion to dismiss Mr. Haley’s claims against her
for lack of personal jurisdiction. In the motion, Ms. Makki essentially asserted that she did not
have any contact with Ohio. The trial court granted Ms. Makki’s motion to dismiss, but Mr.
Haley moved to vacate the decision, arguing that her motion had been filed by an attorney who
was not authorized to practice law in Ohio. Determining that the attorney was not authorized to
file the motion, the trial court vacated the dismissal. Mr. Haley subsequently moved to strike
1
R.C. Chapter 1336 provides, in pertinent part, that a creditor may seek remedies against
transferees who receive an asset from a debtor for less than equivalent value, including the return
of the asset or a judgment against the transferee for the value of the asset. See R.C. 1336.04,
1336.07, and 1336.08.
2
“A transfer or an obligation is not fraudulent under division (A)(1) of section 1336.04 of
the Revised Code against a person who took in good faith and for a reasonably equivalent value
or against any subsequent transferee or oblige.” R.C. 1336.08(A).
3
Ms. Makki’s motion to dismiss and also moved for default judgment against her. The trial court
granted Mr. Haley’s motion to strike the motion to dismiss but denied his motion for default
judgment, instead announcing that it would rule on a motion for summary judgment Mr. Haley
had previously filed against Ms. Makki.
{¶6} Ms. Makki never filed a response to Mr. Haley’s motion for summary judgment,
and the trial court awarded him summary judgment against her. Soon after the trial court’s
award of summary judgment, Ms. Makki moved to vacate the award, alleging that it was void for
a lack of personal jurisdiction over her. The trial court subsequently issued a journal entry in
which it sua sponte vacated its decision denying Mr. Haley’s motion for default judgment,
vacated its award of summary judgment, granted Mr. Haley’s motion for default judgment
against Ms. Makki, and denied Mr. Haley’s motion for summary judgment as moot. It also
scheduled a hearing to determine its jurisdiction over Ms. Makki.
{¶7} Following the hearing, the trial court determined that it did not have personal
jurisdiction over Ms. Makki and vacated all “previous judgments” against her. Mr. Haley
appealed, but this Court dismissed his appeal because the trial court had not entered judgment
against Ms. Makki.3 The trial court subsequently reaffirmed that it granted Ms. Makki’s motion
to vacate the judgments against her and dismissed the complaint.
{¶8} Mr. Haley again appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERR[ED] AS A MATTER OF LAW BY GRANTING
AFIFE MAKKI’S (“MAKKI”) MOTION TO VACATE DISMISSING
APPELLANT-PLAINTIFF STEPHEN T. HALEY’S (“HALEY”) COMPLAINT
3
All of the other claims against the defendants had already been resolved via dismissal or
default judgment.
4
THIRTEEN (13) MONTHS AFTER IT WAS FILED AND PROPERLY
SERVED UPON MAKKI WHEN THE DEFENSE OF PERSONAL
JURISDICTION WAS WAIVED PURSUANT TO CIV.R. 12(A)(B[])(H) AND
THERE WAS NO FINDING OF “EXCUSABLE NEGLECT” AS REQUIRED
BY CIV.R. 6(B)(2).
{¶9} In Mr. Haley’s first assignment of error, he argues that the trial court should not
have dismissed the complaint against Ms. Makki because it had personal jurisdiction over her.
We disagree.
{¶10} Whether a court has jurisdiction is a question of law that this Court reviews de
novo. State ex rel. DeWine v. 9150 Group, L.P., 9th Dist. No. 25939, 2012-Ohio-3339, ¶ 8.
“Once a defendant has challenged the trial court’s personal jurisdiction over him or her, the
plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence.” (Internal
quotations and citations omitted.) Id.
{¶11} We initially note that Mr. Haley does not suggest that the trial court erred when it
determined that it did not have personal jurisdiction over Ms. Makki under R.C. 2307.382,
Ohio’s long-arm statute, or Civ.R. 4.3. See U.S. Sprint Communications Co. Ltd. Partnership v.
Mr. K’s Foods, Inc., 68 Ohio St.3d 181, 183-184 (1994) (The first step in determining whether
an Ohio court has personal jurisdiction over a person who lives outside the state is determining
“whether the state’s ‘long-arm’ statute and applicable civil rule confer personal jurisdiction[.]”).
Instead, he argues that Ms. Makki waived personal jurisdiction by appearing in the action. While
Mr. Haley is correct that the issue of personal jurisdiction may be waived by a defendant
voluntarily appearing in the action and submitting to the trial court’s jurisdiction, Ms. Makki did
not do this. See Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-
3762, ¶ 13 (“The only way in which a party can voluntarily submit to a court’s jurisdiction * * *
5
is by failing to raise the defense * * * in a responsive pleading or by filing certain motions before
any pleading.”).
{¶12} Ms. Makki filed a motion to dismiss and a motion to vacate, challenging the trial
court’s jurisdiction in both motions. However, Ms. Makki’s motion to dismiss was stricken
because it was filed by an attorney who was not licensed to practice law in Ohio. Mr. Haley
appears to suggest that, because the motion to dismiss was stricken, Ms. Makki voluntarily
submitted to the trial court’s jurisdiction without challenging its jurisdiction. However, there is
no way to construe Ms. Makki’s attempt to file a motion to dismiss for lack of personal
jurisdiction as anything other than a challenge to the trial court’s jurisdiction. Thus, we cannot
conclude that Ms. Makki waived the issue of the trial court’s jurisdiction. See id. at ¶ 13.
{¶13} Accordingly, Mr. Haley’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERR[ED] AS A MATTER OF LAW BY DENYING
HALEY’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE
COMPLAINT AGAINST HUSSEIN AYACHE (“AYACHE”) BASED ON A
JUDGMENT ISSUED BY ANOTHER JUDGE NOT HAVING JURISDICTION
TO HEAR THE ISSUE OF THE FRAUDULENT TRANSFER OF PROPERTY
TO AYACHE.
{¶14} In Mr. Haley’s second assignment of error, he argues that the trial court erred in
denying his motion for summary judgment and granting Mr. Ayache’s motion to dismiss.
{¶15} We initially note that both parties were pro se. It is well-established that pro se
litigants should be granted reasonable leeway, and their motions and pleadings should be
construed liberally so as to decide the issues on the merits as opposed to technicalities. See, e.g.,
Pascual v. Pascual, 9th Dist. No. 12CA0036-M, 2012-Ohio-5819, ¶ 5. “However, a pro se
litigant is presumed to have knowledge of the law and correct legal procedures so that he remains
subject to the same rules and procedures to which represented litigants are bound. He is not
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given greater rights than represented parties, and must bear the consequences of his mistakes.”
(Internal quotations and citations omitted.) Id.
{¶16} As we recounted in our discussion of the procedural history of the case, Mr. Haley
moved for summary judgment against Mr. Ayache, and Mr. Ayache responded in opposition.
Mr. Ayache then filed his “MOTION TO DISMISS DECLARATORY JUDG[MENT]
AGAINST HUSSEIN AYACHE, DEFENDANT[]” and submitted a journal entry from the other
case. The trial court then ruled less than an hour later, denying Mr. Haley’s motion for summary
judgment and dismissing the claim against Mr. Ayache in reliance on the journal entry submitted
by Mr. Ayache.
{¶17} Regardless of how Mr. Ayache captioned his motion, it was not a proper motion
to dismiss because it sought to have the trial court consider materials beyond the complaint.4 See
Warren v. Estate of Durham, 9th Dist. No. 25624, 2011-Ohio-6416, ¶ 7 (“The trial court may not
* * * rely upon any materials or evidence outside the complaint in considering a motion to
dismiss.”) (Internal quotations and citations omitted.). “Where the trial court chooses to consider
evidence or materials outside the complaint, the court must convert the motion to dismiss into a
motion for summary judgment and give the parties notice and a reasonable opportunity to present
all materials made pertinent to such motion by Civ.R. 56.” (Internal quotations and citations
omitted.) Id. See also Civ.R. 12(B). Accordingly, the trial court erred by dismissing Mr.
Haley’s complaint against Mr. Ayache based on materials external to the complaint. Warren at ¶
7. Moreover, the trial court was required to give him a reasonable opportunity to respond to Mr.
Ayache’s motion. Id. See also State v. Dalchuck, 9th Dist. No. 21422, 2003-Ohio-4268, ¶ 5
4
It is unclear whether Mr. Ayache intended his motion as his own motion for summary
judgment or whether it was merely an attempt to supplement his opposition to Mr. Haley’s
motion for summary judgment.
7
(“Until the other party has a reasonable opportunity to file a written response, there is no
reasonable consideration by the court of the issues involved.”) (Internal quotations and citations
omitted.).
{¶18} Mr. Haley’s second assignment of error is sustained.
III.
{¶19} Mr. Haley’s first assignment of error is overruled, and his second assignment of
error is sustained. On remand, the trial court should allow Mr. Haley a reasonable opportunity to
respond to Mr. Ayache’s motion. The judgment of the Summit County Court of Common Pleas
is affirmed in part and reversed in part, and the matter is remanded for further proceedings
consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
8
Costs taxed equally to Stephen Haley and Hussein Ayache.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
BROGAN, J.
CONCUR.
(Brogan, J., retired, of the Second District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)
APPEARANCES:
STEPHEN T. HALEY, pro se, Appellant.
AFIFE MAKKI, pro se, Appellee.
HUSSEIN A. AYACHE, pro se, Appellee.
DAVID P. BERTSCH, Attorney at Law, for Appellees.