Fifth Third Bank, Natl. Assn. v. Hillman

[Cite as Fifth Third Bank, Natl. Assn. v. Hillman, 2022-Ohio-4338.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FIFTH THIRD BANK, NATIONAL JUDGES:
ASSOCIATION Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
-vs-
Case No. 22-CAE-06-0050
STEVEN E. HILLMAN, ET AL.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 21 CV E 0575
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 5, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
DANIEL A. FRIEDLANDER STEVEN E. HILLMAN
WELTMAN, WEINBERG & REIS 8581 Crail Court
965 Keynote Circle Dublin, Ohio 43017
Cleveland, Ohio 44131
Delaware County, Case No. 22-CAE-06-0050 2
Wise, J.
{¶1} Defendants-Appellants Steven E. Hillman and Gail V. Hillman (“Appellants”)
appeal from the May 31, 2022 Judgment Entry by the Delaware County Court of
Common Pleas. Plaintiff-Appellee is Fifth Third Bank, National Association (“Appellee”).
The relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On December 20, 2021, Appellee filed a foreclosure complaint against
Appellants relating to property located at 8581 Crail Court, Dublin, Ohio 43017.
{¶3} On April 29, 2022, Appellee filed a Motion for Summary Judgment.
{¶4} On May 12, 2022, Appellants filed a Memorandum Contra.
{¶5} On May 17, 2022, Appellee filed a Reply.
{¶6} On May 19, 2022, Appellants filed a Surreply.
{¶7} On May 31, 2022, the trial court granted Appellee’s Motion for Summary
Judgment.
ASSIGNMENTS OF ERROR
{¶8} Appellant filed a timely notice of appeal raising the following four
Assignments of Error:
{¶9} “I. NO SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.
{¶10} “II. THE TRIAL COURT SHOULD HAVE RECOGNIZED THAT THE
LONGSTANDING DOCTRINE THAT OHIO HAS RECOGNIZED THAT NO PERSONS
SHOULD BE VEXED TWICE FOR THE SAME CLAIM.
{¶11} “III. WHEN FILING A 60(B) MOTION ONLY THE MOVANT IS ENTITLED
TO THE RELIEF SOUGHT.
Delaware County, Case No. 22-CAE-06-0050 3
{¶12} “IV. WHEN THE TRIAL COURT ALLOWS A SUR REPLY [SIC] , CAN IT
DENY AN ORAL ARGUMENT THAT WAS REQUESTED?”
Standard of Review
{¶13} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may
grant summary judgment if it determines: (1) no genuine issues as to any material fact
remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion
and viewing such evidence most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).
{¶14} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶15} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion and identifying those portions of the record before the trial
court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264(1996). Once the moving party has met the burden, the nonmoving party then has a
reciprocal burden of specificity and cannot rest on the allegations or denials in the
Delaware County, Case No. 22-CAE-06-0050 4
pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing
a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
I., III., IV.
{¶16} Upon review of Appellants’ Brief, we find Appellants’ Brief does not comply
with the Appellate rules for Assignments of Error I., III., and IV.
{¶17} Ohio Rule of Appellate Procedure 16, in pertinent part, requires:
The appellant shall include in its brief, under the headings and in the
order indicated, all of the following:
***
(3) A statement of the assignments of error presented for review, with
reference to the place in the record where each error is reflected.
***
(7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies. The argument may be
preceded by a summary.
{¶18} Ohio Appellate Rule 12(A)(2), in pertinent part, states: “[t]he court may
disregard an assignment of error presented for review if the party raising it fails to identify
in the record the error is based or fails to argue the assignment separately in the brief,
as required under App.R. 16(A).”
Delaware County, Case No. 22-CAE-06-0050 5
{¶19} Under Appellants’ first Assignment of Error, Appellants reference a Motion
to Vacate Final Appealable Order before the trial court. However, no such Motion was
filed in the case sub judice. Appellants have failed to provide the court with a citation to
the part of the record of this case where the error is reflected. In fact, it appears as if
Appellants are attempting to appeal a case different than the case sub judice.
{¶20} Appellants’ third Assignment of Error lacks any argument, and does not
refence any part of the record where relief is sought, it simply provides two block quotes
from case law without applying the law to the facts of this case, and supporting that
application with references to the record. It is unclear if an error occurred in the case
sub judice, or if Appellant is arguing an error occurred in a case not before this Court.
{¶21} Appellants’ fourth Assignment of Error simply reads in its entirety: “The Sur
Reply requested oral argument which was never held.” Appellants fail to cite relevant
parts of the record in the first and third Assignments of Error, and cites no statutory, case
law, rules of evidence, or learned treatise from this or any other jurisdiction to support
their argument in the fourth Assignment of Error.
{¶22} “If an argument exists that can support [an] assignment of error, it is not this
court’s duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-
4368, ¶31. “It is not the function of this court to construct a foundation for [an appellant’s]
claims; failure to comply with the rules governing practice in the appellate courts is a
tactic which is ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009-
Ohio-1211, ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9 th
Dist.1996). Therefore, “[w]e may disregard any assignment of error that fails to present
Delaware County, Case No. 22-CAE-06-0050 6
any citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic,
Inc., 4th Gallia No. 07CA4, 2008-Ohio-2194, ¶12. See, also, App.R.16(A)(7);
App.R.12(A)(2); Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709,
¶16; Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-1831, ¶¶21-22;
Jarvis v. Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, ¶23; State v. Norman, 5th
Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v. Untied, 5th Dist.
Muskingum No. CT2006-0005, 2007-Ohio-1804, ¶141.
{¶23} An appellate court may rely upon App.R.12(A) in overruling or disregarding
an assignment of error because of “the lack of briefing” on the assignment of error.
Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393 (1988); Abon, Ltd.
v. Transcontinental Ins. Co., 5th Dist. Richland No. 2004-CA-0029, 2005-Ohio-3052,
¶100; State v. Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-4636, ¶41. “Errors
not treated in the brief will be regarded as having been abandoned by the party who gave
them birth.” Uncapher v. Baltimore & O.R. Co., 127 Ohio St. 351, 356, 188 N.E. 553, 555
(1933).
{¶24} Appellants’ first, third, and fourth Assignments of Error are overruled.
II.
{¶25} In Appellants’ second Assignment of Error, they argue Appellee should
have been barred from bringing suit against Appellants under the doctrine of res judicata.
We disagree.
{¶26} It is well established that “[t]he doctrine of res judicata involves both claim
preclusion (historically called estoppel by judgment in Ohio) and issue preclusion
(traditionally known as collateral estoppel).” Grava v. Parkman Township, 73 Ohio St.3d
Delaware County, Case No. 22-CAE-06-0050 7
379, 381, 653 N.E.2d 226 (1995) (Citations omitted). Under the doctrine of claim
preclusion, “an existing final judgment or decree between the parties to litigation is
conclusive as to all claims which were or might have been litigated in the first law suit.”
Natl. Amusements, Inc. v. City of Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178(1990) (Citation omitted). Accordingly, “[t]he doctrine of res judicata requires a plaintiff to
present every ground for relief in the first action, or be forever barred from asserting it.”
Id.{¶27} It is fundamental that the doctrine of res judicata cannot be used as a bar
to subsequent litigation unless the first judgment was a final determination of the rights
of the parties upon the merits. Harding v. Talbott, 60 Ohio App. 523, 28 Ohio Law Abs.
363, 22 N.E.2d 221 (5th Dist.1938).
{¶28} Appellants allege the previous law suit referenced between Appellants and
Tax Ease Ohio, LLC prevents Appellees from bringing suit against Appellants based
upon res judicata. However, the previous case was dismissed without prejudice and the
previous judgment vacated. Since, “[a] dismissal ‘without prejudice’ leaves the parties as
if no action had been instituted; and questions involved in such proceeding not res
judicata[,]” Appellees were not barred from bringing the current suit. Eaton v. French, 23
Ohio St. 560, 561 (1873).
Delaware County, Case No. 22-CAE-06-0050 8
{¶29} Appellants’ second Assignment of Error is overruled.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/br 1129