Pflanz v. Sinclair

[Cite as Pflanz v. Sinclair, 2018-Ohio-734.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LEONARD F. PFLANZ, : APPEAL NO. C-170172
TRIAL NO. A-1601386
Plaintiff-Appellant, :
O P I N I O N.
vs. :
KENNETH A. SINCLAIR, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 2, 2018
Timothy P. Nolan, for Plaintiff-Appellant,
Robbins, Kelly, Patterson & Tucker, Robert M. Ernst and Daniel J. Temming, for
Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Leonard F. Pflanz appeals from the trial court’s entry of summary
judgment for Kenneth A. Sinclair in Pflanz’s action for injunctive relief, declaratory
judgment, and damages related to an easement of ingress and egress that Pflanz
claimed over Sinclair’s real property. Because collateral estoppel bars Pflanz from
relitigating the issue of the easement after it was decided against him in a foreclosure
action, and Sinclair is entitled to judgment as a matter of law, we affirm.
Background Facts
{¶2} Pflanz owns real estate that abuts real estate owned by Sinclair (“the
Sinclair Property” or “the property”) in the Northside area of Cincinnati. Sinclair
purchased the property at a foreclosure sale in December 2011 “free and clear” of any
easement claimed by Pflanz, who, along with his wife, had been made parties to the
foreclosure action. Before the issuance of the order of foreclosure and sale, the
Pflanzes had unsuccessfully challenged the mortgagee Bank of Kentucky’s (“Bank”)
summary-judgment motion requesting that the property be sold to any purchaser
free of any easement claimed by the Pflanzes in part because the Bank was a bona
fide mortgagee.
{¶3} The magistrate’s decision on summary judgment provided that
Judgment is hereby rendered in favor of Plaintiff The Bank of
Kentucky, Inc. and against Defendant Davis Family Properties, LLC,
and Amanda Davis, jointly and severally on the Note * * *. Defendants
Leonard F. Pflanz and Della M. Pflanz possess no easement of any kind
in or over the Property, and the purchaser at any sale shall take same
free and clear of any such claimed easement. If this decision is
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adopted by the trial court, Plaintiff shall be permitted to file its
praecipe for sale and proceed consistent with the laws of this state.
{¶4} The Pflanzes objected to the magistrate’s finding that the Bank had
gained the status of bona fide mortgagee. On October 12, 2011, the foreclosure court
overruled the Pflanzes’ objection and adopted the magistrate’s decision granting
summary judgment to the Bank. The Pflanzes filed a notice of appeal from this
decision but later dismissed the appeal.
{¶5} On October 28, 2011, consistent with its adoption of the magistrate’s
decision, the foreclosure court journalized the order of foreclosure that also ordered
the sale of the property. In relevant part, this order stated
IT IS THEREFORE ORDERED, AJUDGED AND DECREED that
unless the sums hereinabove found due, together with the costs of this
action, be fully paid within three (3) days from the date of the entry of
this decree, the equity of redemption, dower and any lease interest of
all Defendants, in and to said premises, shall be forever barred and
foreclosed, and said premises sold; free and clear of the interests
of all parties herein[;] * * *.
(Emphasis added.) The order did not except the Pflanzes’ claimed easement from
this mandate.
{¶6} After Sinclair purchased the property, the foreclosure court
journalized an entry confirming the sale. That January 27, 2012 order indicated,
consistent with the order of foreclosure, that Sinclair had purchased the property
free of any easement claimed by the Pflanzes. The Pflanzes moved for partial relief
from the order under Civ.R. 60(A) due to an “an apparent oversight.” They asserted
in part that their claimed interest in the property remained unresolved because the
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OHIO FIRST DISTRICT COURT OF APPEALS
Bank did not purchase the property. Sinclair, who was not a party, was not served
with the motion. Ultimately, the foreclosure court amended the confirmation order
two times, and both amendments reflected the changes requested by the Pflanzes in
their Civ.R. 60(A) motion.
{¶7} After the foreclosure court issued the first amended order, the
Pflanzes withdrew their Civ.R. 60(A) motion and dismissed an appeal they had taken
from the decision issued by the foreclosure court in the first phase of the foreclosure
action granting summary judgment for the Bank.
This Action
{¶8} In March 2016, Pflanz filed this lawsuit against Sinclair, asserting that
he had an express easement, an implied easement by prescription, or an implied
easement by necessity over Sinclair’s property, and that Sinclair was blocking his
access over it. Pflanz later abandoned the implied-easement claims, and they are not
the subject of this appeal.1
{¶9} Sinclair moved for summary judgment, arguing that the doctrine of
collateral estoppel prevented Pflanz from asserting the claimed easement in this
case. Specifically, he argued issue preclusion applied because the order of
foreclosure provided that the property he purchased was to be sold “free and clear of
the interests of all parties to th[e] action,” including Pflanz’s interest asserted in this
case. Further, he took the position that the court presiding over the foreclosure
action lacked authority to retroactively affect the rights and interests set forth in the
foreclosure order during the sale confirmation process. To hold otherwise, Sinclair
contended, would “seriously jeopardize the Court’s ability to sell property free and
1 Pflanz additionally named as a defendant the city of Cincinnati, but the city successfully moved
for dismissal.
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OHIO FIRST DISTRICT COURT OF APPEALS
clear of the parties’ interests.” Sinclair’s motion was supported by the relevant
documents, including those from the foreclosure action.
{¶10} In opposing summary judgment, Pflanz argued that the foreclosure
court’s second amended entry confirming the sale and stating the issue of his
claimed easement was “unresolved” was the last and final statement on the issue of
the easement in the foreclosure litigation and that Sinclair was bound by it under the
doctrine of lis pendens. He characterized Sinclair’s argument as an improper
collateral attack on that confirmation order. Pflanz also presented an affidavit of a
real estate lawyer, Robert Hines, who opined that a buyer of the Sinclair Property
should have had constructive notice of the claimed easement. The trial court
ultimately granted summary judgment for Sinclair on all pending claims, indicating
that “there is no easement across the property.”
Analysis
{¶11} In one assignment of error, Pflanz claims the trial court erred by
granting summary judgment for Sinclair. Pflanz argues that collateral estoppel does
not apply in this case, and that genuine issues of material fact remain in dispute with
respect to the existence of the easement and whether it was enforceable against
Sinclair as purchaser of the property.
{¶12} We review the grant of summary judgment de novo, applying the
standards set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-
4559, 833 N.E.2d 712, ¶ 8. Because we conclude that collateral estoppel did apply,
and Pflanz was bound by the determination that he has no easement across Sinclair’s
property, we affirm the trial court’s judgment.
{¶13} The doctrine of collateral estoppel, or issue preclusion, “preclu[des] []
the relitigation in a second action of an issue * * * that ha[s] been actually and
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OHIO FIRST DISTRICT COURT OF APPEALS
necessarily litigated and determined in a prior action.” Goodson v. McDonough
Power Equip., Inc., 2 Ohio St. 3d 193, 195, 443 N.E.2d 978 (1983). Generally, this
court has applied collateral estoppel when “(1) the party against whom estoppel is
sought was a party or in privity with a party to the prior action; (2) there was a final
judgment on the merits in the previous action after a full and fair opportunity to
litigate the issue; (3) the issue was admitted or actually tried and decided and was
necessary to the final judgment; and (4) the issue was identical to the issue involved
in the new action.” Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio
App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 14 (1st Dist.), citing Monahan v.
Eagle Picher Industries, Inc., 21 Ohio App. 3d 179, 180, 486 N.E.2d 1165 (1st
Dist.1984); Keck v. Masters, 1st Dist. Hamilton No. C-940967, 1996 WL 741975, *2
(Dec. 31, 1996). Here, Sinclair is seeking to use collateral estoppel defensively.
{¶14} Pflanz concedes his easement of ingress and egress over the property
was litigated in the foreclosure action. He claims, however, that the foreclosure
action did not determine the easement with respect to Sinclair, a third-party
purchaser, as demonstrated by the amended order confirming the sale, which
provides that “because the Plaintiff [Bank] did not acquire the property at the
Sheriff’s sale, the enforceability of the easement claimed by Party Defendants
Leonard F. Pflanz and Della M. Pflanz remains undecided.”
{¶15} Pflanz contends it was within the foreclosure court’s discretion under
Civ.R. 60 to amend the original confirmation order to reflect that the summary
judgment for the Bank in the first phase of the foreclosure action was not intended to
apply to third-party purchasers. He maintains that Sinclair’s collateral-estoppel
argument amounts to an impermissible collateral attack on the amended
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OHIO FIRST DISTRICT COURT OF APPEALS
confirmation order, which Pflanz characterizes as the “final” order governing the
easement issue. For the reasons that follow, we disagree with Pflanz.
{¶16} A foreclosure action is unique in that it involves two distinct phases
that give rise to separate appealable judgments—the order of foreclosure and the
order confirming the sale. CitiMortgage, Inc. v. Roznowski, 139 Ohio St. 3d 299,
2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. The foreclosure order, which determines the
property interests of the parties before the bank’s foreclosure sale, cannot be
indirectly attacked in the ancillary proceedings confirming the sale. See id. at ¶ 39-
40; Fed. Natl. Mtge. Assn. v. Day, 158 Ohio App. 3d 349, 2004-Ohio-4514, 815
N.E.2d 730, ¶ 15 (2d Dist.) (holding that “the proper time to challenge the existence
and extent of a mortgage lien is during the foreclosure action.” The foreclosure order
is subject to appeal or a Civ.R. 60(B) motion, but it cannot be collaterally attacked by
objecting to the confirmation order.). In other words, a confirmation order cannot
revive a claimed interest that did not survive the foreclosure.
{¶17} Although foreclosure actions typically involve only lienholders, the
Bank foreclosing on the Sinclair Property named the Pflanzes as defendants because
it wanted to purchase or convey the property at the foreclosure sale free of any
interest owned by the Pflanzes. The foreclosure court determined that the Bank
could do so notwithstanding the Pflanzes’ challenge, and on October 28, 2011,
ordered the sale of the property free of any interest of the Pflanzes. That final
judgment was not set aside or reversed on appeal, and we cannot revisit the merits of
it now.
{¶18} Moreover, the foreclosure court’s initial confirmation order of
January 27, 2012, was a final judgment and mirrored the foreclosure order with
respect to the interests extinguished. That confirmation order was later amended by
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OHIO FIRST DISTRICT COURT OF APPEALS
the trial court to revive the Pflanzes’ interest in the property with respect to a third-
party purchaser, namely Sinclair.
{¶19} Civ.R. 60(A) provides the trial court with authority to correct clerical
mistakes in its judgment at any time, but that rule could not authorize the
foreclosure court to substantively modify a previously issued final judgment. See
Nemcic v. Phelps, 2014-Ohio-3952, 19 N.E.3d 554, ¶ 17 (2d Dist.). Civ.R. 60(B)
allows the court to make a substantive modification to a final judgment, but the
requirements of that rule were not met to authorize the challenged amendment.
Thus, the foreclosure court’s substantive modification of the January 27, 2012
confirmation order undertaken without jurisdiction was a nullity. An order issued
without jurisdiction is subject to a collateral attack. See Ohio Pyro, Inc. v. Ohio Dept.
of Commerce, Div. of State Fire Marshal, 115 Ohio St. 3d 375, 2007-Ohio-5024, 875
N.E.2d 550, ¶ 23. Because of this, Sinclair could collaterally attack the amended
confirmation order in this case.
{¶20} In sum, all of the elements of collateral estoppel have been met.
Pflanz’s claimed easement over the Sinclair Property was actually and finally litigated
against Pflanz in the foreclosure action involving the property, and the resolution of
this issue was essential to the judgment that set forth the property interests that
would survive the foreclosure and sale. Pflanz had a fair opportunity to litigate the
easement, and the foreclosure order was clear and unambiguous. This clarity is
reflected in the sheriff’s deed, issued on February 27, 2012, and recorded two months
later, conveying to Sinclair “all the right, title, and interest of * * * Leonard F.
Pf[l]anz and Della M. Pf[l]anz.” Pflanz never moved to set aside the judicial sale to
Sinclair, and the sale was in fact confirmed.
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{¶21} And there is a sound policy reason to apply issue preclusion here.
Observing the finality of the foreclosure order increases the security of land
transactions. Under these facts, there is no good reason to allow Pflanz to relitigate
this issue.
Conclusion
{¶22} The issue of Pflanz’s claimed easement in the Sinclair Property was
actually litigated and resolved against Pflanz in the foreclosure action involving the
property. His cause of action in this case against Sinclair involves the same easement
and is barred by collateral estoppel. Accordingly, we overrule Pflanz’s assignment of
error and affirm the trial court’s judgment.
Judgment affirmed.
M OCK , P.J, and M ILLER , J., concur.
Please note:
The court has recorded its own entry this date.
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