N. Orange Homeowners Assn., Inc. v. Suarez

[Cite as N. Orange Homeowners Assn., Inc. v. Suarez, 2019-Ohio-4416.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
NORTH ORANGE HOMEOWNERS : Hon. W. Scott Gwin, P.J.
ASSOCIATION, INC. : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee :
:
-vs- : Case No. 2019 CAE 02 0015
:
JOSEPH W. SUAREZ :
: OPINION
Defendant-Appellant

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Case No.18 CVH
06 0329

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 23, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBIN STROHM COURTNEY HANNA
Two Miranova Place 155 W. Main Street
Suite 380 Suite 200
Columbus, OH 43215 Columbus, OH 43215
[Cite as N. Orange Homeowners Assn., Inc. v. Suarez, 2019-Ohio-4416.]

Gwin, P.J.

{¶1} Appellant appeals the February 11, 2019 and April 18, 2019 judgment

entries of the Delaware County Court of Common Pleas granting appellee’s motion for

summary judgment, denying appellant’s motion to vacate, and granting appellee’s motion

for additional attorney fees.

Facts & Procedural History

{¶2} Appellant Joseph Suarez (“Suarez”) is the owner of the lot at 7840 Overland

Trail (“Lot”) in Delaware, Ohio. Appellee North Orange Homeowners’ Association, Inc.

(“Association”) is a not-for-profit corporation that governs the uses of the lots in the North

Orange Residential Subdivision (“Subdivision”). The lots in the Subdivision are subject

to restrictions set forth in the Declaration of Covenants, Easements, Restrictions, and

Assessment Liens for the North Orange Residential Subdivision.

{¶3} On June 26, 2018, appellee filed a complaint against appellant. Appellee

alleged that after it approved appellant’s request in 2017 to install a one-foot retaining

wall, appellant deviated substantially from the plans by: building retaining walls that

exceed one foot and extend to areas beyond those in his request; installing electrical

outlets and lines not referenced in the request; and otherwise exceeding the scope of the

approval. In its complaint, appellee sought a declaration that it is entitled to enforce the

terms of the deed restrictions prohibiting owners of lots in the Subdivision from

constructing exterior modifications on any lot in the Subdivision without the Board’s prior

written approval and a declaration that appellant violated the deed restrictions by

constructing the unapproved exterior modifications without the Board’s prior written

approval. Appellee also sought a permanent injunction ordering appellant to restore the
Delaware County, Case No. 2019 CAE 02 0015 3

Lot to conform to the approval, to remove all of the unapproved exterior modifications,

and to cease construction of any additional unapproved exterior modifications unless and

until appellant obtains the Board’s prior written approval. Finally, appellee sought

monetary damages for court costs and attorney’s fees expended for attempting to

address appellant’s violations of the deed restrictions.

{¶4} Appellant filed a pro se response to the complaint on July 12, 2018. In his

answer, appellant: admitted his application for a retaining wall of one foot was approved

by appellee; admitted the wall height did go over the approved plan of one foot due to the

grade in the yard; admitted he received a letter from appellee stating he went over the

one foot mark in his plan; admitted he e-mailed appellee telling them he had to raise the

height of the retaining walls in some locations to even out the flower beds; stated he

submitted a new application for a revised plan and asked appellee to come and walk the

yard to see what issue he was having; appellee never responded to his request; denied

he received a second letter from appellee; denied receiving a copy of the deed restrictions

at closing; denied he violated any deed restrictions; and stated appellee is discriminating

against him. Appellant attached to his answer photographs of what he states are

violations of the deed restrictions on multiple other homes in the Subdivision.

{¶5} Appellee filed a motion for summary judgment on October 1, 2018, arguing

the affidavits and attached documents demonstrate that no genuine issues of material

fact exist to rebut that appellant constructed exterior modifications on his Lot in violation

of the applicable deed restrictions and that the Association is entitled to judgment for its

attorney’s fees and costs incurred as a result of having to enforce its deed restrictions

against appellant. Attached to the motion for summary judgment is the affidavit of Sue
Delaware County, Case No. 2019 CAE 02 0015 4

Bower (“Bower”), President of the Board of Directors for the Association. Bower avers

the following: all of the lots in the Subdivision are governed by the Declaration of

Covenants, Easements, Restrictions, and Assessment Liens for the North Orange

Residential Subdivision, a true and accurate copy of which is attached as Exhibit A-1;

Suarez submitted a request to install a one foot retaining wall around certain flower beds

on his lot known as 7840 Overland Trail, Delaware, Ohio to the Board on April 19, 2017;

the Board approved the request on April 20, 2017, as the one foot retaining wall around

the limited portion of the Lot detailed in the request is in line with other retaining walls in

the Subdivision and consistent with the Subdivision’s look and feel; Suarez substantially

deviated from the approval by building walls much taller than one foot, building walls in

many areas beyond those detailed in the request and allowed in the approval, installing

exterior electrical outlets and wiring, beginning the installation of five water fountains, and

installing outdoor lighting on exterior walls and spot lights focusing on the house, trees,

fountains, and mailbox on the Lot; the unapproved modifications are well beyond anything

contained on any other lot in the Subdivision and do not match the Subdivision’s look and

feel; none of the other lots in the Subdivision have retaining walls as tall and extensive as

those on the Lot, nor do any of the other lots in the Subdivision have the substantial

outdoor lighting, outdoor electrical outlets and wiring, or five water fountains that Suarez

has installed or is in the process of installing on the Lot; the Board’s management

company at the time contacted Suarez and informed him the unapproved modifications

must be removed; Suarez has never removed the unapproved modifications; Suarez kept

building the unapproved modifications and, on July 20, 2017, he submitted revised plans

to the Board for its approval reflecting some of the unapproved modifications that were
Delaware County, Case No. 2019 CAE 02 0015 5

not included in his initial request; the Board never approved the second request; the Board

repeatedly requested Suarez remove the unapproved modifications, but he refused to do

so and continued adding other unapproved modifications; the Board received complaints

from owners in the Subdivision about the height of the retaining walls that Suarez was

building on the Lot, the substantial amount of lighting installed by Suarez, and other

unapproved modifications; attached as Exhibits A-2, A-3, A-4, A-5, A-6, and A-7 are

pictures of the Lot, true and accurate copies of how it appeared on April 27, 2018; the

Board authorized the filing of this action against Suarez after he continually refused to

remove the unapproved modifications, and, instead, continued constructing more of them;

the Board is not discriminating against Suarez by pursuing this enforcement action, and

never has discriminated against him; and the Board has not received an exterior

modification application from Suarez since the Association’s complaint was filed on June

26, 2018.

{¶6} Also attached to the motion for summary judgment is the affidavit of

Nataleigh Dillon (“Dillon”), an employee at the property management company hired by

the Association. Dillon avers as follows: Suarez made substantial exterior modifications

to the Lot, including building retaining walls taller than one foot around flower beds, trees,

and other areas of the Lot, installing exterior electrical outlets and other electrical wiring,

beginning of the installation of five water fountains, and installing outdoor lighting on walls

and spot lights focused on the house, trees, fountains, and mailbox; on June 27, 2018,

she took pictures of the Lot to detail the extent of the modifications and attached as

Exhibits B-1 and B-2 are two pictures of Suarez’s Lot taken on June 27, 2018; the Board

never approved most of the modifications; since CPS took over management of the
Delaware County, Case No. 2019 CAE 02 0015 6

Association on April 1, 2018, neither she nor anyone else at CPS received an exterior

modification application or any other request from Suarez for exterior modifications; as

part of her duties as the property manager, she performs routine inspections of all of the

lots in the Subdivision; none of the other lots in the Subdivision contain the extensive

retaining walls, outdoor electrical outlets and wiring, five water fountains, or substantial

outdoor lighting like Suarez has constructed on his lot; and the Association authorized the

filing of the complaint against Suarez to enforce the deed restrictions.

{¶7} Next, appellee attached to the motion for summary judgment the affidavit of

Nicholas Barnes (“Barnes”), lead counsel for appellee in this action. Barnes avers: he

received an e-mail attached as C-1 from Suarez on June 29, 2018 after the Association

filed its complaint in which Suarez stated he was “pretty pumped to take this on and drain

the HOA in attorney fees”; he contacted Suarez’s bankruptcy counsel who informed him

that he is not representing Suarez with regard to this matter and this matter involves a

post-petition debt that is not affected by the automatic stay; the total amount of attorney’s

fees and costs incurred by the Association in preparing for and prosecuting the case

through September 30, 2018 is $7,350, as evidenced by the true and accurate copies of

the itemized billing statements attached as Exhibits C-4, C-5, C-6, C-7, C-8, C-9, and C-

10; his hourly rate of $200.00 per hour is reasonable and customary for attorneys with ten

years of legal experiences in the Columbus metropolitan area; and the hourly rate of

$200.00 for Attorney Williams is reasonable and customary.

{¶8} The final affidavit attached to the motion for summary judgment is the

affidavit of Aaron Born (“Born”), a member of the Board of the Association. Born avers

as follows: the Board approved a request from Suarez to install a one foot retaining wall
Delaware County, Case No. 2019 CAE 02 0015 7

around certain flower beds on his Lot on April 20, 2017; Suarez substantially deviated

from the approval by building walls much taller than one foot, building walls in many areas

beyond those detailed in his request and allowed in the approval, installing exterior

electrical outlets and wiring, beginning the installation of five water fountains, and

installing outdoor lighting on exterior walls and spot lights focusing on the house, trees,

fountains, and mailbox; on September 4, 2018, he took the picture attached as Exhibit D-

1 that is a true and accurate representation of Suarez’s home; no other lot in the

Subdivision has anywhere near as many lights or is nearly as bright as Suarez’s Lot;

Suarez’s Lot’s exterior is not consistent with the Subdivision’s look and feel; Exhibits D-2

and D-3 are pictures of the unapproved modifications on Suarez’s Lot that he took on

May 24, 2018; Exhibit D-4 is a picture he took of Suarez’s Lot on August 24, 2018 showing

Suarez continued with the unapproved modifications after this case was filed; Exhibit D-

5 is a picture of Suarez’s Lot he took on May 30, 2018 showing a black wall on the lot,

which was not part of Suarez’s request or the approval; and the unapproved modifications

are well beyond anything contained on any other lot in the Subdivision and do not match

the Subdivision’s look and feel.

{¶9} The deed restrictions provide that no owner may construct any exterior

improvements on a lot in the Subdivision without submitting a request to the Association

and receiving its approval prior to construction. Article II, Section 1.

{¶10} On October 8, 2018, Appellant filed a pro se “Plaintiffs Motion for Summary

Judgment Response.” In the “Memorandum Support Response” portion of his response,

appellant states: he did not violate any deed restrictions because there are no rules on

retaining walls; the wall height did go over the approved plan of one foot due to grade in
Delaware County, Case No. 2019 CAE 02 0015 8

the yard; he submitted revised plans with no response from the Association; he installed

electrical outlets on his property, but did not install water fountains; he installed outdoor

lighting for security reasons; the Board is discriminating against him; and thirty-two

retaining walls in the Subdivision are the same height or higher than his. Appellant also

detailed what he believed to be lies in the affidavits submitted by the Association in its

motion for summary judgment. Appellant attached as exhibits to his response

photographs of other homes in the Subdivision.

{¶11} Appellee filed a reply in support of its motion for summary judgment, arguing

that none of the allegations contained in appellant’s response may be considered

because appellant did not provide any affidavits or proper Civil Rule 56 evidence in

response. Appellant filed a counterclaim, motion for dismissal, and second response to

motion for summary judgment on October 19, 2018. On October 22, 2018, appellee filed

a motion to strike the three pleadings appellant filed on October 19th.

{¶12} The trial court issued a judgment entry on January 25, 2019 granting

appellee’s motion to strike appellant’s counterclaim, motion to strike appellant’s second

response to the motion for summary judgment, and denying appellant’s motion for

dismissal. Appellant filed a pro se affidavit on February 5, 2019. Appellee filed a motion

to strike the affidavit. The trial court granted the motion to strike on February 11, 2019,

finding it was not permitted by the Rules of Civil Procedure and is not a proper affidavit

because it does not make averments based on personal knowledge.

{¶13} The trial court also issued a judgment entry granting appellee’s motion for

summary judgment on February 11, 2019. The trial court found that appellant attached

several exhibits in his response to the motion for summary judgment that are not self-
Delaware County, Case No. 2019 CAE 02 0015 9

authenticating and appellant did not submit an affidavit incorporating the exhibits; thus,

the trial court determined it could not consider the exhibits that were improperly attached

to appellant’s response.

{¶14} The trial court further found as follows: as an owner of a Lot in the

Subdivision, Suarez is subject to the Declaration of Covenants, Easements, Restrictions,

and Assessment Liens for North Orange Residential Subdivision and the Code of

Regulations of the Association; Article II, Section 1 of the deed restrictions provides that

no improvements or changes of any kind may be commenced or permitted to remain on

any lot unless such improvement or change has the prior written approval of the

developer; the rights of the developer were later transferred to the Association under

Article V, Section 6; it is undisputed that Suarez submitted a plan to the Association to

install a one-foot retaining wall around specific flower beds on the lot, the Association

approved this plan, and Suarez began construction of the exterior modifications; in his

answer, Suarez admits he deviated from the original plan and raised the height of the wall

in some areas to even out the flower beds and make the walls work; Suarez also deviated

from the plan by installing exterior electrical outlets and writing, beginning to install

fountains, and installing outdoor lighting on walls and spotlights; Suarez submitted revised

plans, but the Association did not approve them; Suarez continued construction; Suarez

admitted in his answer that he never received an approval for his revised plan; the

Subdivision is governed by R.C. Chapter 5312; because Suarez is a lot owner in the

Subdivision, he is subject to all of the covenants, conditions, and restrictions in the deed

restrictions; Suarez failed to comply with Article II, Section 1 of the deed restrictions that

requires a lot owner to obtain prior written approval from the Association before
Delaware County, Case No. 2019 CAE 02 0015 10

commencing any exterior improvements or changes; Suarez failed to comply with Article

III, Section 17 of the deed restrictions that requires prior written approval of the

Association to install exterior lighting; Suarez admittedly deviated from the approved plan

without prior written approval of the Association; Suarez admittedly refused to remove the

exterior modifications that have not been approved by the Association; there is no

genuine issue of material fact regarding Suarez’s violation of the deed restrictions; even

if Suarez presented through admissible evidence that other lots in the Subdivision had

retaining walls above one foot, it would not provide a defense to Suarez; and the

Association has the authority under R.C. 5312.13 and Article V, Section 1 of the deed

restrictions to enforce the restrictions against Suarez.

{¶15} The trial court held appellee is entitled to a declaratory judgment that: (1)

appellee is entitled to enforce the terms of the deed restrictions prohibiting owners of lots

in the subdivision from constructing exterior modifications on any lot in the subdivision

without the board’s prior written approval and (2) appellant has violated the deed

restrictions by constructing the unapproved exterior modifications without the board’s

prior written approval. The trial court also granted appellee a permanent injunction

ordering appellant to restore the lot to conform to the approval by the Board, remove all

of the unapproved exterior modifications, and cease construction of any additional

unapproved exterior modifications unless and until appellant obtains the Board’s prior

written approval for any additional exterior modifications. Finally, the trial court

determined that, pursuant to R.C. 5312.13, appellee is entitled to an award of court costs

and reasonable attorney fees, awarding appellee $7,350 for attorney fees and costs
Delaware County, Case No. 2019 CAE 02 0015 11

through September 30, 2018, and ordering further attorney fee documentation to be filed

for fees after September 30, 2018.

{¶16} Appellee filed a motion for additional attorney fees on February 14, 2019,

attaching the affidavit of Barnes requesting an additional $3,240 in attorney fees. Barnes

attached invoices to his affidavit.

{¶17} On February 22, 2019, appellant obtained counsel and his counsel filed a

notice of appearance.

{¶18} On March 11, 2019, appellant, through counsel, filed a motion to vacate the

judgment entry granting summary judgment. Appellant argued his motion should be

granted due to excusable neglect, because, as a pro se litigant, he failed to respond to

appellee’s motion for summary judgment by affidavit or otherwise with specific facts

showing that there are genuine issues of material fact for trial; thus, the trial court relied

solely on the version of the facts set forth by appellee. Appellant stated he attempted to

advocate for himself and did not demonstrate a complete disregard for the judicial system.

Appellant also argued his motion should be granted pursuant to Civil Rule 60(B)(3)

because the affidavits attached to appellee’s motion for summary judgment contained

untruths and misrepresentations regarding material facts. Finally, appellant contended

the judgment should be vacated pursuant to Civil Rule 60(B)(5) because it would be

inequitable not to vacate the judgment.

{¶19} Attached to his motion to vacate is Suarez’s affidavit. Suarez avers:

appellee has failed to uniformly, fairly, and impartially enforce the deed restrictions;

appellee failed to respond to the revised plans he submitted; by failing to respond,

appellee is wrongfully circumventing the deed restrictions; appellee is not acting in good
Delaware County, Case No. 2019 CAE 02 0015 12

faith by choosing to ignore Suarez; he has never been contacted by the property

management company; on three separate occasions, he has offered to have appellee

come to the property so he could explain how varying the retaining walls creates a uniform

look; appellee has attached affidavits to their motion for summary judgment that are not

truthful and misrepresent the modifications made on the property; the photos attached to

the affidavits were old photos taken before the retaining walls were lowered; he has not

installed any water fountains on the property; the outdoor lighting was installed for security

purposes and there are multiple homes in the community with the lighting he proposes;

the only spot lights on the property are like other houses in the community; he lowered

the retaining walls prior to appellee’s complaint being filed; as of this date, 90% of the

retaining walls conform to the plans approved by appellee; he has not constructed new

walls and has not continued to construct exterior modifications; appellee is not uniformly

enforcing the deed restrictions; there are thirty-two other retaining walls in the

development that are the same height or higher than his retaining walls; there are many

other properties in the community that are violating the deed restrictions and appellee is

choosing not to enforce these violations; appellee created this situation by refusing to

reject or approve his revised plans; and he has a meritorious defense.

{¶20} Appellee filed a motion to strike affidavit and memorandum in opposition to

appellant’s motion to vacate on March 22, 2019. Appellant filed a reply on March 29,

2019.

{¶21} On April 18, 2019, the trial court issued a judgment entry granting in part

and denying in part appellee’s motion to strike affidavit and denying appellant’s motion to

vacate. The trial court reviewed the affidavit of Suarez and found Suarez does not
Delaware County, Case No. 2019 CAE 02 0015 13

specifically state in the affidavit that the statements are based on his personal knowledge.

Further, that some of Suarez’s statements are legal conclusions and some statements

are those from which personal knowledge can be inferred; thus, the trial court struck

several paragraphs of Suarez’s affidavit. The trial court found Suarez’s motion to vacate

was timely, but found he failed to establish grounds for relief under Civil Rule 60(B).

Because appellant did not offer any excusable neglect other than his status as a pro se

litigant, the trial court found appellant failed to demonstrate excusable neglect. As to

appellant’s argument pursuant to Civil Rule 60(B)(3), the trial court stated appellant did

not establish appellee engaged in deceit or other unconscionable conduct to obtain a

judgment, but appellant did show that he disagrees with the testimony in the affidavits

and photographs referred to in the affidavits. Thus, the trial court found appellant did not

establish appellee engaged in the type of fraud that warrants relief under Civil Rule

60(B)(3).

{¶22} With regards to appellant’s argument as to Civil Rule 60(B)(5), the trial court

found enforcing the judgment against appellant is not unjust and would not cause a

miscarriage of justice. The trial court noted: appellant chose to represent himself for

eight months; appellant repeatedly failed to comply with the Rules of Civil Procedure and

with the court’s local rules; appellant only retained counsel after he received an

unfavorable outcome; and appellant’s decision to proceed pro se resulted in his failure to

provide the court with admissible evidence to rebut the motion for summary judgment.

{¶23} The trial court found it need not address whether appellant has a meritorious

defense to appellee’s claims. Lastly, the trial court found appellant is not entitled to a

hearing on the motion to vacate, because, even if it takes as true what is contained in
Delaware County, Case No. 2019 CAE 02 0015 14

appellant’s affidavit, appellant has failed to establish a ground for relief under Civil Rule

60(B).

{¶24} Also on April 18, 2019, the trial court issued a judgment entry granting

appellee’s motion for award of additional attorney fees incurred in the amount of $3,240

based upon the affidavit from Barnes and copies of the itemized billing statements.

{¶25} Appellant appeals the February 11, 2019 and April 18, 2019 judgment

entries of the Delaware County Court of Common Pleas and assigns the following as

error:

{¶26} “I. THE TRIAL COURT SHOULD HAVE DENIED PLAINTIFF-APPELLEE’S

MOTION FOR SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES OF

MATERIAL FACT THAT SHOULD HAVE PRECLUDED THE GRANTING OF SUMMARY

JUDGMENT.

{¶27} “II. THE TRIAL COURT ERRED BY DENYING DEFENDANT-

APPELLANT’S MOTION TO VACATE.

{¶28} “III. THE JUDGMENT ENTRY GRANTING PLAINTIFF-APPELLEE’S

MOTION FOR AWARD OF ADDITIONAL ATTORNEY FEES INCURRED RENDERED

HEREIN ON APRIL 18, 2019 SHOULD BE REVERSED WHEN THE COURT

REVERSES THE GRANTING OF SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-

APPELLEE.”

I.

{¶29} In his first assignment of error, appellant argues the trial court erred in

granting appellee’s motion for summary judgment because there are genuine issues of

material fact that preclude the granting of summary judgment.
Delaware County, Case No. 2019 CAE 02 0015 15

Summary Judgment Standard

{¶30} Civ.R. 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed mostly strongly in the

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶31} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable
Delaware County, Case No. 2019 CAE 02 0015 16

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

{¶32} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

The party moving for summary judgment bears the initial burden of informing the trial

court of the basis of the motion and identifying the portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the non-

moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once

the moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-

moving party may not rest upon the allegations and denials in the pleadings, but instead

must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

{¶33} Appellant contends that genuine issues of material fact exist in order to

preclude summary judgment, such as whether the exterior modifications, water fountains,

and outdoor lighting was in violation of the restrictions, whether appellee is selectively

enforcing the restrictions, whether the other homes in the community have similar

violations, and whether appellant has stopped the exterior modifications.

{¶34} Pursuant to Civil Rule 56(C), only certain evidence and stipulations, as set

forth in that section, may be considered by the court when deciding a motion for summary

judgment. Specifically, the court is only to consider the “pleadings, depositions, answers
Delaware County, Case No. 2019 CAE 02 0015 17

to interrogatories, written admissions, affidavits, transcripts of evidence and written

stipulations of fact.” Civ.R. 56(C). The trial court may consider a type of document not

expressly mentioned in Civil Rule 56(C) if such document is “accompanied by a personal

certification that [it is] genuine or [is] incorporated by reference in a property framed

affidavit pursuant to Civil Rule 56(E).” Deutsche Bank Nat’l Trust Co. v. Hansen, 5th Dist.

Fairfield No. 2010 CA 00001, 2011-Ohio-1223.

{¶35} Upon review, we find appellee met its initial burden of demonstrating the

absence of a genuine issue of fact by submitting sufficient and proper Civil Rule 56

evidence, consisting of the incorporation of the pleadings, admissions, affidavits of Bower,

Dillon, Barnes, and Born, and various exhibits attached to and incorporated in the

affidavits, to demonstrate the absence of a genuine issue of material fact.

{¶36} The burden then shifted to appellant to set forth specific facts, pursuant to

the confines of Civil Rule 56, demonstrating a genuine issue of material fact does exist.

However, appellant failed to set forth specific facts showing a genuine issue of material

fact exists by affidavit or other Civil Rule 56 evidence. Appellant could not rest on the

allegations or denials in the pleadings, but had to set forth specific facts by the means

listed in Civil Rule 56 showing that a triable issue of fact exists. Mitseff v. Wheeler, 38

Ohio St.3d 112, 526 N.E.2d 798 (1988). Appellant’s response contained a series of

unsupported allegations and the documents attached to his response were not self-

authenticating. Appellant’s unsubstantiated response thus failed to meet his burden and

did not raise any genuine issue of material fact to preclude summary judgment. Further,

the trial court relied not only on the facts as presented by appellee, but also on admissions

made by appellant.
Delaware County, Case No. 2019 CAE 02 0015 18

{¶37} Appellant also argues that the trial court and this Court should afford him

reasonable leeway because he responded to the motion for summary judgment pro se.

However, “it is well established that pro se litigants are presumed to have knowledge of

the law and legal procedures and that they are held to the same standard as litigants who

are represented by counsel.” State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-

Ohio-6448, 800 N.E.2d 25. They are not given greater rights than represented parties,

and must bear the consequences of their mistakes. Carskadon v. Avakian, 5th Dist.

Delaware No. 11 CAG 02 0018, 2011-Ohio-4423.

{¶38} Appellant’s first assignment of error is overruled.

II.

{¶39} In his second assignment of error, appellant contends the trial court erred

in denying his motion to vacate.

{¶40} To prevail on a motion brought under Civil Rule 60(B), a 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 Civil Rule

60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.” GTE

Automatic Electric, Inc. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). A

failure to establish any one of these three requirements will cause the motion to be

overruled. Argo Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 389, 474 N.E.2d 328

(1984). There is no dispute that the motion in this case was made within a reasonable

time.

{¶41} A motion for relief from judgment is addressed to the sound discretion of the

trial court and must not be disturbed by this Court absent an abuse of discretion. Griffey
Delaware County, Case No. 2019 CAE 02 0015 19

v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). The Supreme Court of Ohio has

defined the term of abuse of discretion as implying the court’s attitude is unreasonable

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

{¶42} Appellant argues the trial court abused its discretion in finding no excusable

neglect pursuant to Civil Rule 60(B)(1). To determine whether neglect is “excusable”

under Civil Rule 60(B)(1), a court must consider all the surrounding facts and

circumstances. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988).

Excusable neglect has been defined as some action “not in consequence of the party’s

own carelessness, inattention, or willful disregard of the process of the court, but in

consequence of some unexpected or unavoidable hindrance or accident.” Maggiore v.

Barensfeld, 5th Dist. Stark Nos 2011CA00180, 2011CA00230, 2012-Ohio-2909. Further,

“excusable neglect is not present if the party seeking relief could have prevented the

circumstances from occurring.” Id.

{¶43} Appellant contends he demonstrated excusable neglect because, as a pro

se litigant, he failed to respond to appellee’s motion for summary judgment by affidavit or

otherwise with specific facts showing that there are genuine issues of material fact for

trial; thus the trial court relied solely on the version of facts set forth by appellee. Appellant

argues he attempted to advocate for himself and did not demonstrate a complete

disregard for the judicial system.

{¶44} In this case, we find the trial court did not abuse its discretion in finding no

excusable neglect under these facts and circumstances. It is well established that pro se

litigants are held to the same standards as litigants represented by counsel and are
Delaware County, Case No. 2019 CAE 02 0015 20

presumed to have knowledge of the law and legal proceedings. State ex rel. Fuller v.

Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25.

{¶45} Ohio courts have held Civil Rule 60(B) is not intended to afford pro se

litigants relief from mistakes from the lack of legal counsel or from a pro se litigant’s

unfamiliarity with the legal system, confusion, or misunderstanding of the law. Sydnor v.

Qualls, 4th Dist. Scioto No. 15CA3701, 2016-Ohio-8410; Huntington Nat’l Bank v.

D’Egidio, 9th Dist. Lorain No. 05CA008647, 2005-Ohio-5497; Lebanon Auto Parts v.

Dracakis, 12th Dist. Warren No. CA99-09-110, 2000 WL 433240 (April 17, 2000); Gamble

Hartshorn LLC v. Lee, 10th Dist. Franklin No. 17AP-35, 2018-Ohio-980; Dayton Power

and Light v. Holdren, 4th Dist. Highland No. 07CA21, 2008-Ohio-5121. Additionally, this

Court has previously held that an appellant’s legal inexperience does not equate to

excusable neglect and the failure to seek legal advice after receiving a complaint is not

excusable neglect under Civil Rule 60(B)(1). Long v. Ferrell, 5th Dist. Stark No.

2017CA00066, 2018-Ohio-155; Shankle v. Egner, 5th Dist. Nos. 2011CA00121,

2011CA00143, 2012-Ohio-2027. As stated by the Ninth District,

Acting pro se * * * is neither excusable neglect nor any other reason

justifying relief from judgment. A party has a right to represent himself, but

if he does so, he is subject to the same rules and procedures as litigants

with counsel. If the fact that a party chose not to be represented by counsel

and was unsuccessful in pursuing his rights entitled that party to relief from

judgment, every judgment adverse to a pro se litigant could be vacated to

permit a second attempt, this time with counsel. Such a circumstance would

be unjust to the adverse party.
Delaware County, Case No. 2019 CAE 02 0015 21

Ragan v. Akron Police Dept., 9th Dist. Summit No. 16200, 1994 WL 18641 (Jan. 19,

1994). In this case, appellant chose to represent himself, as was his right. As such,

appellant is presumed to have knowledge of the law and legal procedures.

{¶46} Appellant also argues his motion should be granted pursuant to Civil Rule

60(B)(3) because the affidavits attached to appellee’s motion for summary judgment

contained untruths and misrepresentations regarding material facts.

{¶47} The fraud or misconduct contemplated by Civil Rule 60(B)(3) is fraud or

misconduct on the part of the adverse party in obtaining the judgment by preventing the

losing party from fully and fairly presenting his defense, not fraud or misconduct which in

itself would have amounted to a claim or defense in the case. Bank of Am., N.A. v.

Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.2d 1040. As noted by the trial court,

appellant’s assertions that appellee’s affidavits contain misrepresentations about when

photographs were taken and the state of the modifications at his home on certain dates

demonstrates appellant disagrees with appellee’s assertions in the affidavits. However,

a conflict in testimony generally does not fit the requirement of “deceit or other

unconscionable conduct committed by a party to obtain a judgment.” Sydnor v. Qualls,

4th Dist. Scioto No. 15CA3701, 2016-Ohio-8410. Additionally, nothing in the affidavits

submitted by appellee prevented appellant from fully and fairly presenting his defense to

the motion for summary judgment; rather, appellant failed to respond to appellee’s motion

for summary judgment by affidavit or otherwise with specific facts showing that there are

genuine issues of material fact for trial. We find the trial court did not abuse its discretion

in finding appellant did not establish that appellee engaged in the type of fraud that

warrants relief under Civil Rule 60(B)(3).
Delaware County, Case No. 2019 CAE 02 0015 22

{¶48} Appellant also based his motion on “any other reason justifying relief from

judgment” pursuant to Civil Rule 60(B)(5) and believes the judgment should be vacated

pursuant to Civil Rule 60(B)(5) because it would be inequitable not to vacate the

judgment.

{¶49} Civil Rule 60(B)(5) operates as a catch-all provision and “reflects the

inherent power of a court to relieve a person from the unjust operation of a judgment.”

Dutton v. Potroos, 5th Dist. Stark No. 2010CA00318, 2011-Ohio-3646. However, it is not

to be used as a substitute for any of the other more specific provision of Civil Rule 60(B).

Caruso-Ciersi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983). The grounds

for invoking Civil Rule 60(B)(5) should be substantial and only used in extraordinary and

unusual cases when the interests of justice warrant it.” Claycraft Motors, LLC v. Bulldog

Auto Sales, Inc., 5th Dist. Fairfield No. 13-CA-70, 2014-Ohio-2086. Since appellant’s

conduct does not constitute excusable neglect to merit relief from judgment under the

specific provisions of (B)(1) or (B)(3), it follows that appellant is not entitled to relief under

(B)(5). The trial court did not abuse its discretion in finding this was not an extraordinary

and unusual case where the interests of justice warrant the judgment being vacated

pursuant to Civil Rule 60(B)(5).

{¶50} Appellant lastly contends the trial court abused its discretion in not holding

an evidentiary hearing on his motion to vacate. However, as noted by the Ohio Supreme

Court, “Civil Rule 60(B) relief is improper if any one of the [GTE] requirements is not

satisfied.” State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 666 N.E.2d 1134 (1996).

Appellant has not met the second requirement set forth in GTE. Thus, because appellant

is unable to satisfy all three prongs of the GTE test, we find no abuse of discretion in the
Delaware County, Case No. 2019 CAE 02 0015 23

denial of appellant’s motion to vacate. Long v. Ferrell, 5th Dist. Stark No. 2017CA00066,

2018-Ohio-155.

{¶51} Appellant’s second assignment of error is overruled.

III.

{¶52} In his third assignment of error, appellant argues the judgment entry

granting appellee’s motion for award of additional attorney fees incurred should be

reversed when this Court reverses the granting of the summary judgment in favor of

appellee. Based upon our disposition of appellant’s first and second assignment of errors,

we overrule appellant’s third assignment of error.

{¶53} Based on the foregoing, appellant’s assignments of error are overruled.

{¶54} The February 11, 2019 and April 18, 2019 judgment entries of the Delaware

County Court of Common Pleas are affirmed.

By Gwin, P.J.,

Wise, John, J., and

Delaney, J., concur