[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
BAC HOME LOANS SERVICING, : W. Scott Gwin, P.J.
L.P. : John W. Wise, J.
: Julie A. Edwards, J.
Plaintiff-Appellee :
: Case No. 11CAE080075
-vs- :
:
: OPINION
DOUGLAS DEVOLL, et al.,
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from Delaware County
Court of Common Pleas Case No.
10CVE01559
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 19, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMELIA A. BOWER, ESQ. STEVEN E. HILLMAN, ESQ.
300 E. Broad Street, Suite 590 425 Metro Place North, Suite 460
Columbus, Ohio 43215` Dublin, Ohio 43017
[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]
Edwards, J.
{¶1} Appellant, Desiree Devoll, appeals a judgment of the Delaware County
Common Pleas Court entering summary judgment in favor of appellee BAC Home
Loans Services on a claim for foreclosure.
STATEMENT OF FACTS AND CASE
{¶2} Appellant and her ex-husband, Douglas Devoll, own property located at
5802 Honors Court, in Westerville, Ohio, which they purchased in 2002. On March 10,
2005, Douglas Devoll executed a note in the amount of $244,500.00 to refinance this
property. The same day, he and appellant signed a mortgage and fixed rate rider with
Mortgage Electronic Registration Systems, Inc. (MERS) as the lender. In 2007, MERS
assigned the mortgage to Countrywide Home Loans, which then assigned the mortgage
to appellee on June 2, 2009.
{¶3} The Devolls were divorced on August 5, 2008. As part of the decree, they
agreed that they would both retain ownership of the property, which would be sold when
their youngest child turned eighteen. The mortgage went into default in January of
2009.
{¶4} Appellee filed a foreclosure action in May, 2009 (Case No. 09 CV E 05
0661). Appellant filed an answer and a counterclaim, alleging that her one-half interest
in the property was not subject to the mortgage. On August 26, 2009, the court granted
appellee a default judgment against Douglas Devoll but denied appellee’s motion for
default judgment as to appellant, setting the matter for bench trial. On December 29,
2009, the court found that appellee was not the real party in interest and did not have
Delaware County App. Case No. 11CAE080075 3
standing to bring the action, dismissing the case without prejudice. The court dismissed
appellant’s counterclaim without prejudice on January 14, 2010.
{¶5} Appellee filed the instant complaint in foreclosure on April 8, 2010.
Appellant answered and filed a counterclaim, alleging that appellee had no claim on her
one-half interest in the property. Appellee filed a motion for extension of time to
respond to the counterclaim on May 10, 2010. Appellee was given until June 23, 2010
to reply. Appellee failed to file an answer to the counterclaim and on August 6, 2010,
appellee filed a motion to reply instanter. The trial court set the motion for a hearing on
September 13, 2010. On September 16, 2010, the court entered judgment permitting
appellee to respond to appellant’s counterclaim within 14 days and giving appellee 30
days to file a motion for summary judgment.
{¶6} On July 12, 2011, the court overruled appellant’s motion for default
judgment on her counterclaim and granted appellee’s motion for summary judgment. A
decree of foreclosure was entered on July 28, 2011. Appellant assigns three errors on
appeal:
{¶7} “I. THE TRIAL COURT ERRED WHEN APPLYING THE LAW TO THE
UNDISPUTED MATERIAL FACTS AND PLAINTIFF/APPELLEE’S SUMMARY
JUDGMENT BECOMES INAPPROPRIATE AND MUST BE DENIED.
{¶8} “II. THE TRIAL COURT ERRED BY FINDING THAT RES JUDICATA
AND/OR COLLATERAL ESTOPPEL DID NOT APPLY.
{¶9} “III. THE TRIAL COURT ERRED IN BY (SIC) DENYING THE
DEFENDANT/APPELLANT’S MOTION FOR DEFAULT JUDGMENT AGAINST THE
PLAINTIFF-APPELLEE AND BY DOING SO HAS DENIED THE
Delaware County App. Case No. 11CAE080075 4
DEFENDANT/APPELLANT EQUAL PROTECTION UNDER THE LAW VIOLATING
HER CONSTITUTIONAL RIGHTS.”
I, II
{¶10} In her first and second assignments of error, appellant argues that the
court erred in granting appellee’s motion for summary judgment because the instant
action is barred by res judicata and collateral estoppel.
{¶11} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must
refer to Civ. R. 56(C) which provides 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 as to any 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 most
strongly in the party’s favor.”
{¶12} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
Delaware County App. Case No. 11CAE080075 5
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the moving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the non-moving
party to set forth specific facts demonstrating that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶13} Appellant argues that the dismissal of the first foreclosure action (Case
No. 09 CV E 05 0661) bars the instant action.
{¶14} The doctrine of res judicata has two aspects: claim preclusion and issue
preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 1995-Ohio-
331. Claim preclusion holds that a valid, final judgment on the merits bars all
subsequent actions based upon any claim arising out of the transaction or occurrence
that was the subject matter of the previous action. Id. at syllabus. Issue preclusion, also
known as collateral estoppel, provides that “a fact or a point that was actually and
directly at issue in a previous action, and was passed upon and determined by a court
of competent jurisdiction, may not be drawn into question in a subsequent action
between the same parties or their privies, whether the cause of action in the two actions
be identical or different.” Ft. Frye Teachers Assn. v. State Emp. Relations Bd., 81 Ohio
St.3d 392, 395, 1998–Ohio–435. While claim preclusion precludes relitigation of the
same cause of action, issue preclusion precludes relitigation of an issue that has been
Delaware County App. Case No. 11CAE080075 6
actually and necessarily litigated and determined in a prior action. Id., citing Whitehead
v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112.
{¶15} In Case No. CV E 05 0661, the trial court found that appellee had not
demonstrated that it was the real party in interest at the time the foreclosure was filed
and dismissed the complaint without prejudice.
{¶16} The Ohio Supreme Court has held that a dismissal for lack of jurisdiction
on the basis that one of the parties is not the real party in interest does not bar a later
action on the grounds of res judicata:
{¶17} “In general, the dismissal of an action because one of the parties is not a
real party in interest or does not have standing is not a dismissal on the merits for
purposes of res judicata. See, e.g., Stewart v. K & S Co., Inc. (Utah 1979), 591 P.2d
433, 434 (“the dismissal of an action because one of the parties is not the real party in
interest is not a dismissal on the merits so as to bar a subsequent action”); 18A Wright,
Miller & Cooper, Federal Practice and Procedure (2002) 189, Section 4438 (“Dismissal
on the ground that the plaintiff is not the real party in interest should not preclude a later
action by the real party in interest”); A-1 Nursing Care of Cleveland, Inc. v. Florence
Nightingale Nursing, Inc. (1994), 97 Ohio App.3d 623, 627, 647 N.E.2d 222 (dismissal
for lack of standing “terminates the action other than on the merits and affords proper
parties the opportunity to refile without fear of the effects of res judicata ”); Asher v.
Cincinnati (Dec. 23, 1999), Hamilton App. No. C-990345, 2000 WL 955617 (dismissal
for lack of standing is not on the merits for purposes of res judicata).” State ex rel.
Coles v. Granville (2007), 116 Ohio St.3d 231, 241, 877 N.E.2d 968, 977.
Delaware County App. Case No. 11CAE080075 7
{¶18} Thus, the prior dismissal did not bar the instant action on the grounds of
res judicata. Further, we find the action is not barred by collateral estoppel. Although
the question of whether appellee was the real party in interest was litigated in the prior
case between the parties, such finding was based on the position of appellee at that
specific point in time:
{¶19} “The Plaintiff has failed to establish that it was the real party in interest at
the time it filed suit in this foreclosure action. Therefore, the Plaintiff did not have
standing to bring this action. Accordingly, the Court hereby DENIES the Plaintiff’s
Motion for Summary Judgment and DISMISSES the Plaintiff’s complaint, without
prejudice.” Judgment Entry, December 29, 2009, Case No. 09 CV E 05 0661.
{¶20} The trial court based this finding on the fact that the complaint was filed in
that action on May 20, 2009, while the mortgage was not assigned to appellee from
Countrywide until June 2, 2009.
{¶21} Therefore, the issue that was litigated between the parties was whether
appellee was the real party in interest on May 20, 2009, when the first complaint was
filed, not whether appellee was the real party in interest on the date the complaint in the
instant action was filed. Accordingly, the instant action is not barred by collateral
estoppel.
{¶22} The first assignment of error is overruled.
III
{¶23} Appellant argues that the court erred in allowing appellee to file a
response to her counterclaim instanter, and therefore default judgment should have
been entered in her favor on the counterclaim.
Delaware County App. Case No. 11CAE080075 8
{¶24} Civ. R. 6(B)(2) governs the court’s discretion to allow a party to file a reply
instanter:
{¶25} “When by these rules or by a notice given thereunder or by order of court
an act is required or allowed to be done at or within a specified time, the court for cause
shown may at any time in its discretion (1) with or without motion or notice order the
period enlarged if request therefor (sic) is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon motion made after
the expiration of the specified period permit the act to be done where the failure to act
was the result of excusable neglect; but it may not extend the time for taking any action
under Rule 50(B), Rule 59(B), Rule 59(D), and Rule 60(B), except to the extent and
under the conditions stated in them.”
{¶26} In the instant case, appellee stated in its August 6, 2010, motion to reply
to the counterclaim instanter that appellee was working with counsel from the title
company to investigate appellant’s claim of fraud. Appellant argues that this is not
excusable neglect.
{¶27} On August 24, 2010, the court scheduled a hearing for September 13,
2010, on appellee’s motion to reply to appellant’s counterclaim instanter and appellant’s
motion for default judgment. In the court’s judgment allowing appellee to file the reply
instanter, the court notes that the matter came on for status conference on September
13, 2010. Appellant did not request a transcript of this hearing, and thus we do not
know what evidence or representations appellee presented to the court concerning the
issue of excusable neglect. When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing to pass
Delaware County App. Case No. 11CAE080075 9
upon and thus, as to those assigned errors, must presume validity of the lower court's
proceedings and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400
N.E.2d 384.
{¶28} The third assignment of error is overruled.
{¶29} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1025
[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, LP :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DOUGLAS DEVOLL, et al., :
:
Defendants-Appellants : CASE NO. 11CAE080075
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
to appellants.
_________________________________
_________________________________
_________________________________
JUDGES