[Cite as State ex rel. Ware v. Byrd, 2022-Ohio-1175.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO EX REL., 

KIMANI E. WARE, :

Relator, :

No. 110865

v. :

NAILAH K. BYRD, ET AL., :

Respondents. :

JOURNAL ENTRY AND OPINION

JUDGMENT: MOTION DENIED

DATED: April 1, 2022

Motion for Relief from Judgment

Motion No. 552581

Appearances:

Kimani E. Ware, pro se. 

ANITA LASTER MAYS, P.J.:

Relator, Kimani Ware, seeks relief from this court’s judgment in State 

ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 110865, 2021-Ohio-4432. He claims 

this court overlooked or ignored sections of his affidavit of prior civil actions when 

we denied his claim for relief in mandamus. We deny Ware’s motion for relief from 

judgment, find the motion frivolous, and impose sanctions as detailed below.
I. Background

On September 29, 2021, Ware filed a writ of mandamus seeking 

certain records from respondent, Nailah K. Byrd, Cuyahoga County Clerk of Courts. 

He filed an amended complaint on October 20, 2021. Along with the original 

complaint, Ware filed a two-page affidavit listing his numerous prior civil actions as 

required by R.C. 2969.25(A). On November 4, 2021, respondent filed a motion for 

summary judgment. On November 19, 2021, Ware filed his own motion for 

summary judgment and a brief in opposition to respondent’s motion. Respondent 

filed a brief in opposition to Ware’s motion on December 3, 2021. 

On December 13, 2021, this court denied Ware’s request for writ of 

mandamus, finding that his affidavit of prior civil actions failed to strictly comply 

with R.C. 2969.25(A). Byrd, 8th Dist. Cuyahoga No. 110865, 2021-Ohio-4432, at 

¶ 15. 

Finally, on February 15, 2022, Ware filed the instant motion for relief 

from judgment. Respondent did not file any opposition to the motion. 

II. Law and Analysis 

A Civ.R. 60(B) motion for relief from judgment may be appropriately 

filed in an original action before a court of appeals. State ex rel. Pajestka v. 

Faulhaber, 50 Ohio St.2d 41, 362 N.E.2d 263 (1977). “To prevail on a Civ.R. 60(B) 

motion for relief from judgment, a movant must demonstrate (1) a meritorious claim 

or defense in the event relief is granted, (2) entitlement to relief under one of the 

provisions of Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion.” State
ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 23, 2014-Ohio-2353, 14 

N.E.3d 1003, ¶ 18, citing Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 

(1994). Ware claims entitlement to relief under Civ.R. 60(B)(1) and (5): “mistake, 

inadvertence, surprise or excusable neglect,” or “any other reason justifying relief 

from judgment.” He claims that this court overlooked information included in an 

affidavit he filed with this complaint. 

We previously denied Ware’s request for a writ of mandamus because 

he failed to strictly comply with R.C. 2969.25(A) when he filed an affidavit of prior 

civil actions that did not list all the names of parties to each prior action. Byrd, 8th 

Dist. Cuyahoga No. 110865, 2021-Ohio-4432, ¶ 15. In our decision, we cited to an 

example of Ware’s failure to strictly comply. Id. at ¶ 12-13. Specifically, we pointed 

to Ware’s recitation of the following case information:

State ex rel. Ware v. Giavasis, original action in mandamus, supreme 

court of [O]hio, case no. 2020-0043, public records case, outcome: 

judgment in favor of Giavasis.

Id. at ¶ 12. We found that Ware failed to list all the names of the parties to this 

action because there were multiple respondents named in the complaint. Id. at 

¶ 13. Ware now claims that this information for this case was in the affidavit the 

whole time and this court overlooked it. He claims this was a mistake entitling him 

to relief from judgment. 

This is not a type of claim contemplated by Civ.R. 60(B)(1). Gold

Touch v. TJS Lab, 130 Ohio App.3d 106, 110, 719 N.E.2d 629 (8th Dist.1998). See 

also Hankinson v. Hankinson, 7th Dist. Mahoning No. 03 MA 7, 2004-Ohio-2480, 
¶ 20, citing Gold Touch at 110-111 (“a factual or legal mistake on the part of the trial 

court is not the type of mistake contemplated by Civ.R. 60(B)(1)”). “Rather, the rule 

is intended to address the mistake or inadvertence of parties or their agents.” 

Blatt v. Meridia Health Sys., 8th Dist. Cuyahoga No. 89074, 2008-Ohio-1818, ¶ 10. 

The rule does not apply to claimed mistakes made by a judge or court because the 

remedy is an appeal, rather than relief from judgment. Therefore, Ware has not 

established entitlement to relief under Civ.R. 60(B)(1). 

Ware also seeks relief from judgment under Civ.R. 60(B)(5) — any 

other reason justifying relief. His claimed error allegedly committed by the court 

does not fall within these parameters, but even if it did, Ware has not shown 

entitlement to relief for the following reasons. 

The affidavit included with the complaint consisted of two pages, the 

first page of which is reproduced in Image 1.
Image 1

The information lacking in the affidavit cited by this court for the case State ex rel. 

Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, is readily 

apparent. The information for this case is approximately two-thirds of the way 

down the page in Image 1. No additional names of any parties are included in the 

affidavit. 
The affidavit attached to his motion for relief from judgment differs 

from the affidavit attached to his complaint, the first page of which is also 

reproduced in Image 2. 

Image 2

The affidavit attached to the motion for relief from judgment now consists of three 

pages even though it specifically indicates at the bottom of each page that it 
consists of two pages. Further, the new first page includes information at the top 

in a space that was previously blank. The affidavit in Image 1 does not contain the 

information Ware claims the court overlooked in the affidavit attached to his 

motion for relief from judgment in Image 2. This information appears to have 

been added to the affidavit surreptitiously. The information is written in a 

different font, with different margins, and appears in what was mostly a blank 

space in the original affidavit. 

Ware has not shown that this court overlooked information that was 

contained within the affidavit of prior civil actions attached to his complaint even if 

this could constitute grounds for relief under Civ.R. 60(B). 

Further, giving Ware every benefit of the doubt and assuming the 

added information fixes the problem identified in our opinion, if the additional 

information included in Image 2 was considered by the court, the result would be 

the same. Ware added information this court cited as lacking from the affidavit for 

only one case when multiple cases listed in the affidavit of prior civil actions failed 

to include the names of all the parties to the prior actions as required by 

R.C. 2969.25(A)(3). When we determined that Ware’s affidavit did not strictly 

comply with R.C. 2969.25(A) and cited to the information listed for State ex rel. 

Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, we stated that this 

example “is representative of each case listed in the affidavit.” Byrd, 8th Dist. 

Cuyahoga No. 110865, 2021-Ohio-4432, at ¶ 13. Ware has not managed to add 

information to fix the same error related to other cases included in the affidavit. 
Again, for instance, the opinion in State ex rel. Ware v. Walsh, 9th 

Dist. Summit No. 30051, 2021-Ohio-4585, states that Ware’s complaint named two 

respondents, but Ware’s affidavits of prior actions filed in the instant case do not 

include the full names of either respondent — only the last name of one respondent. 

Similarly, the complaint filed in State ex rel. Ware v. Akron, 164 Ohio St.3d 557, 

2021-Ohio-624, 174 N.E.3d 724, named two respondents, but neither version of 

Ware’s affidavit provided the name of the second respondent. 

Neither version of the affidavit of prior civil actions strictly complies 

with R.C. 2969.25(A)(3). Therefore, there is no reason under Civ.R. 60(B)(1) or 

60(B)(5) to grant the relief from judgment.

This is also not the first time that a document Ware has submitted in 

a court proceeding has been found to be suspect. Recently, the Supreme Court of 

Ohio was faced with a court filing from Ware that caused the justices to doubt its 

veracity. State ex rel. Ware v. Crawford, Slip Opinion No. 2022-Ohio-295. One 

justice summarized the issue thusly:

Ware attests that he sent one version of the document; [respondent] 

attests that she received a different version. Ware attests that he 

mailed his version in the same envelope in which [respondent] attests 

that she received her version. So, unless the document transformed 

itself while in the hands of the postal service, someone isn’t telling the 

truth.

Id. at ¶ 67 (DeWine, J., dissenting). This sort of discrepancy has also occurred in 

at least one other case filed by Ware. State ex rel. Ware v. Andrews, 11th Dist. 

Lake No. 2020-L-043, 2021-Ohio-4257. See also State ex rel. Ware v. DeWine, 
10th Dist. Franklin No. 19AP-161, 2019-Ohio-5203, ¶ 7 (In this action, Ware 

averred that he did not receive responses to his public records requests on 

March 19, 2019. The court found, “we agree with the magistrate’s conclusion that 

relator’s assertion does not give rise to a material factual issue as to respondent’s 

compliance with the public records law, given the undisputed averment in the 

affidavit of a prison employee that the institution received legal mail from 

respondent, addressed to relator, on March 19, 2019.”). 

We find that Ware’s motion for relief from judgment is frivolous. 

Ware’s claim that the affidavit attached to his motion for relief from judgment is the 

same affidavit attached to his complaint is demonstrably false. Even if the newly 

minted affidavit was originally filed with the complaint, there is still no grounds for

relief from judgment because Ware only managed to arguably correct one of 

multiple instances of his failure to include all the names of the parties to his prior 

actions. Pursuant to Loc.App.R. 23(A), we find the motion for relief from judgment 

is frivolous and impose double costs for its filing as a sanction. This court will find 

Ware to be a vexatious litigator under Loc.App.R. 23(B) should he persist in filing 

frivolous motions or actions in the future.

Double costs assessed against relator. The clerk is directed to serve 

on the parties notice of this judgment and its date of entry upon the journal. 

Civ.R. 58(B).
Motion denied.

________________________________

ANITA LASTER MAYS, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and 

EMANUELLA D. GROVES, J., CONCUR