[Cite as Jarvis v. Wells Fargo Bank, 2010-Ohio-3283.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PAUL E. JARVIS, JR., et al. ) CASE NO. 09 CO 6
)
PLAINTIFFS-APPELLANTS )
)
VS. ) OPINION
)
WELLS FARGO BANK, N.A., AS )
TRUSTEE, et al. )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Columbiana County, Ohio
Case No. 08 CV 1200
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellants: Atty. Daniel S. White
34 Parmelee Drive
Hudson, Ohio 44236
For Defendants-Appellees: Atty. Robin M. Wilson
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 30, 2010
WAITE, J.
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{¶1} This is the second time an appeal has come to us involving the
foreclosure action against Appellants Paul E. Jarvis, Jr., and Kimberly Sue Jarvis,
instituted by Appellee Wells Fargo Bank, N.A. (“Wells Fargo”), trustee for the original
mortgagee, Appellee Option One Mortgage Corporation (“Option One”). The
foreclosure action was filed in the Columbiana County Court of Common Pleas
against Appellants in 2007. In that action, Appellants belatedly attempted to assert a
number of compulsory counterclaims, but they failed to seek leave of the court to do
so. The matter was resolved in the bank’s favor without the court expressly
addressing any of the counterclaims. Appellants filed an appeal, and we held that
the failure to seek leave to file the counterclaims rendered the counterclaims
effectively overruled by the trial court once it granted summary judgment to the bank.
Wells Fargo Bank, N.A. v. Jarvis, 7th Dist. No. 08 CO 30, 2009-Ohio-3055. While
that appeal was pending, Appellants filed their own complaint in the Columbiana
County Court of Common Pleas raising the same claims that were unsuccessfully
brought as counterclaims in the earlier foreclosure action. The trial court once again
granted judgment to the bank, this time on the basis of res judicata, and this appeal
followed. Both appeals were pending at the same time, and prior to the release of
our Opinion in the earlier case, Appellees filed a motion to dismiss this second
appeal.
{¶2} Appellees filed their motion to dismiss on jurisdictional grounds.
Although the subject matter of the two appeals certainly overlaps, we find no
jurisdictional problem which interferes with our ability to rule on this appeal. Hence,
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Appellee’s motion to dismiss is overruled. As to the merits of the appeal, the record
reflects that Appellants are attempting to litigate the same compulsory counterclaims
that they failed to properly raise in the original foreclosure action. Civ.R. 13(A)
requires parties to litigate all compulsory counterclaims in one suit. Therefore, the
trial court was correct in dismissing the second complaint and the judgment of the
trial court is affirmed.
Background of the Case
{¶3} In April of 2005, Appellants obtained an adjustable rate mortgage from
Option One to purchase a house in Hanoverton, Ohio. The initial interest rate was
9.25%, and the monthly payment was $1,151.75. In June, 2007, the interest rate
increased to 12.25% and the monthly payment rose to $1,457.76. Appellants soon
had problems paying the monthly installments on the mortgage. Starting in August,
2005, Appellants were late in making their payment. By 2007, Appellants were two
months behind in their payments. The mortgage loan had standard provisions
providing for late charges and default on the loan if payments were not made on
time. In June of 2007, Appellants made no payment. Appellants then attempted to
partially pay the arrears, but no amounts were tendered from July, August or
September of 2007.
{¶4} On September 20, 2007, Wells Fargo filed a complaint in foreclosure as
trustee of Option One. The complaint alleged that $138,046.47 was due, plus
interest, as of June 1, 2007. Appellants answered the complaint without filing any
counterclaims.
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{¶5} On November 9, 2007, Wells Fargo filed a motion for summary
judgment. They attached the promissory note, the mortgage, the assignment of the
mortgage, and an affidavit confirming that the loan was in default. Appellants
opposed the motion for summary judgment, and the court extended discovery to
March 3, 2008, to allow the parties to file reply briefs.
{¶6} On March 5, 2008, Appellants filed counterclaims without seeking leave
of the court. Appellants alleged that Wells Fargo had no right to file the complaint
when it did, and that payments were not properly applied to real estate taxes, interest
charges were not properly calculated, the foreclosure was not properly instituted, and
the foreclosure was instituted maliciously and without cause. Appellants failed to file
any further response to the motion for summary judgment. Wells Fargo filed an
answer to the counterclaims, raising the issue that Appellants had failed to seek
leave of the court to file the untimely claims.
{¶7} On June 30, 2008, the trial court entered summary judgment in favor of
Wells Fargo, finding that $138,046.47 was due on the note plus interest. The court
ordered sale in foreclosure if payment was not made in three days. Appellants filed a
timely appeal of this judgment on July 30, 2008.
{¶8} While the appeal was still pending, on November 18, 2008, Appellants
filed a three-page complaint in the Columbiana County Court of Common Pleas
against Wells Fargo, Option One, and American Home Mortgage. The complaint
does not delineate specific causes of action, but instead generally alleges that,
“[plaintiffs] have been significantly damaged by the conduct of one or more of the
Defendants in connection with their home mortgage and related matters * * *.”
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(11/18/08 Complaint, p. 2.) They alleged that their credit rating was damaged, the
foreclosure complaint should not have been filed, the defendants failed to apply
payments to real estate taxes, failed to properly calculate interest rates, failed to
properly serve documents, failed to make their representatives available for
discovery, improperly refused a late payment, misapplied payments, and that all
these acts were done in a negligent manner.
{¶9} On December 23, 2008, Appellees filed a Civ.R. 12(B)(6) motion to
dismiss and a motion for summary judgment. Appellees argued that Appellants had
not specified any cause of action or operative facts to support a cause of action, and
that res judicata should bar any claims based on the prior foreclosure action, then on
appeal.
{¶10} On January 13, 2009, Appellants filed a response. They argued that
they had attempted to file counterclaims in the prior foreclosure action, but that,
“based on a Judgment Entry improperly prepared and submitted by previous counsel
for the financial institutions, the case was improperly terminated at the Trial Court
level without proper adjudication of the Counterclaims.” (Brief in Opposition, p. 2.)
The reply goes on to state that, “[i]n short, the Counterclaims filed in the earlier case
by the Jarvises were never properly adjudicated by the Trial Court * * *.” (Brief in
Opposition, p. 2.)
{¶11} On February 11, 2009, the trial court entered summary judgment in
favor of the defendants on the grounds of res judicata and because Appellants had
failed to state a claim for which relief could be granted. This appeal was filed on
March 11, 2009.
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{¶12} On June 8, 2009, this Court filed its Opinion in the underlying
foreclosure action. Wells Fargo Bank, N.A. v. Jarvis, 7th Dist. No. 08 CO 30, 2009-
Ohio-3055. Appellants had argued on appeal that the trial court erred by failing to
adjudicate their counterclaims. We held that the counterclaims were presumed to be
dismissed by the court’s ruling or were rendered moot when the court awarded
summary judgment to the bank. Id. at ¶25-27. It was clear that the trial court had
grounds for dismissing the counterclaims because Appellants failed to seek leave of
the court to file them. Id. at ¶29. Appellants’ only issue on appeal was the status of
the counterclaims, and they failed to present any argument at all regarding the basis
for the award of summary judgment to Wells Fargo. Id. at ¶30-32. We affirmed the
trial court judgment in full.
{¶13} On June 11, 2009, Appellees filed a motion to dismiss the instant
appeal on the basis of our Opinion in Wells Fargo Bank, N.A. On July 22, 2009, we
continued any action on the motion to dismiss until after final briefing and oral
argument.
Motion to Dismiss the Appeal
{¶14} Appellees filed a motion to dismiss this appeal based on the theory that
an appeal was already pending in this Court when Appellants filed their complaint,
and that Appellants’ complaint alleged the same or similar claims as those Appellants
unsuccessfully attempted to raise in the foreclosure action, filed by the bank.
Appellees have not explained how these facts would prevent us from hearing this
appeal. It is true that Appellants’ foreclosure action was on appeal when they filed a
complaint that dealt with some of the same subject matter as in the foreclosure.
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Appellants attempted to raise counterclaims to the foreclosure action, but were
unsuccessful. Appellants then filed their own action, currently before us on appeal,
that involves those same counterclaims. Appellees had the opportunity to challenge
or request dismissal of Appellant’s complaint on whatever grounds they deemed
appropriate. They decided to challenge the claims on the basis of res judicata.
Appellants have not been designated as vexatious litigators and there is no indication
that they were under any statutory or court order preventing them from filing a
complaint or from filing an appeal of the subsequent judgment. Therefore, the normal
course of events would be for us to rule on the merits of the instant appeal.
{¶15} Appellees defended Appellants’ complaint on the grounds of res
judicata, which is an affirmative defense. Civ.R. 8(C). An affirmative defense
consists of a confession and avoidance, as it admits the plaintiff has a claim but
asserts a legal reason for which the plaintiff cannot recover. State ex rel. Plain
Dealer Pub. Co. v. Cincinnati (1996), 75 Ohio St.3d 31, 33, 661 N.E.2d 187. The
affirmative defense of res judicata, particularly the res judicata affect of failing to raise
compulsory counterclaims, is often reviewed on direct appeal. See, e.g., Lewis v.
Harding, 182 Ohio App.3d 588, 2009-Ohio-3071, 913 N.E.2d 1048; Sunkin v.
Collision Pro, Inc., 174 Ohio App.3d 56, 2007-Ohio-6046, 880 N.E.2d 947. The fact
that Appellants’ final judgment in an earlier action was pending on appeal does not
affect this Court’s jurisdiction to determine whether the trial court correctly dismissed
the Appellants’ complaint on grounds of res judicata. The jurisdiction of the appellate
court is affected by such things as the lack of a final, appealable order or the failure
to file the notice of appeal in the time allowed by the Ohio Rules of Appellate
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Procedure. It is not affected by the fact that underlying claims have no merit and
were disposed of through summary proceedings in the trial court.
{¶16} If Appellants had filed their complaint in a different court, then it might
have been appropriate to discuss jurisdictional issues on appeal. In that hypothetical
scenario, the jurisdictional priority rule could have been raised. This rule provides
that, as between state courts of concurrent jurisdiction, the authority of the court
which first properly acquires jurisdiction over a matter retains exclusive jurisdiction
until the matter is completely adjudicated. State ex rel. Shimko v. McMonagle (2001),
92 Ohio St.3d 426, 429, 751 N.E.2d 472. The jurisdictional priority rule does not
apply when two complaints are filed in the same court. Bright v. Family Medicine
Found., Inc., 10th Dist. No. 02AP-1443, 2003-Ohio-6652, ¶13. Since this case
involves two complaints filed in the same court, we can find no jurisdictional issue
that bars our review.
ASSIGNMENT OF ERROR
{¶17} “THE TRIAL COURT’S DECISION TO GRANT THE DISPOSITIVE
MOTION CONSTITUTES REVERSIBLE ERROR.”
{¶18} Appellants argue that neither Civ.R. 12(B) dismissal nor summary
judgment was appropriate in this case. Appellants submit that Appellees have not
met the requirements for establishing a res judicata defense or the defense of failure
to state a judiciable claim. They argue that there are additional parties in this matter
that were not brought into the earlier foreclosure litigation, and that the addition of
these parties defeats a res judicata defense. They also argue that there was no full
and fair opportunity to litigate their counterclaims in the earlier case, thereby
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establishing a second reason to defeat a res judicata defense. It is obvious from the
record that Appellants are attempting to relitigate their failed attempt to present
compulsory counterclaims in the foreclosure action. Thus, they are precluded from
raising those claims in a second suit. Appellants’ sole assignment of error is
overruled.
{¶19} An order granting a Civ.R. 12(B)(6) motion to dismiss for failure to state
a claim upon which relief may be granted is subject to de novo review on appeal.
State ex rel. Cook v. Seneca Cty. Bd. of Commrs., 175 Ohio App.3d 721, 2008-Ohio-
736, 889 N.E.2d 153, ¶21. In order to sustain the dismissal, “it must appear beyond
doubt that the plaintiff can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.” LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323,
2007-Ohio-3608, 872 N.E.2d 254, ¶14, citing Archdiocese of Cincinnati, 109 Ohio
St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. In reviewing whether a motion to
dismiss was properly granted, an appellate court must construe all factual allegations
in the complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192,
532 N.E.2d 753. Additionally, the material allegations of the complaint and any
inferences drawn therefrom must be construed in favor of the nonmoving party.
LeRoy at ¶14.
{¶20} Summary judgment is also reviewed under a de novo standard of
review. In accordance with Civ.R. 56, summary judgment is appropriate when: “(1)
there is no genuine issue of material fact, (2) the moving party is entitled to judgment
as a matter of law, and (3) reasonable minds can come to but one conclusion and
that conclusion is adverse to the nonmoving party, said party being entitled to have
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the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp.
(1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The
party moving for summary judgment bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.”
Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201. If
the moving party meets its initial burden of production, the nonmoving party bears a
reciprocal burden to produce evidence on any issue for which that party bears the
burden of proof at trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.
{¶21} The record in this case reflects that the trial court granted summary
judgment on the basis of res judicata. The doctrine of res judicata requires that a
party to a lawsuit must present every ground for relief in that action or be forever
barred from asserting any additional grounds. Natl. Amusements, Inc. v. Springdale
(1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178. “It has long been the law of Ohio
that ‘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 a first lawsuit.’ ”
(Emphasis sic.) Id., citing Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69, 25 OBR
89, 494 N.E.2d 1387.
{¶22} In Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226,
syllabus, the Ohio Supreme Court, in explaining the doctrine of res judicata, held that
“[a] valid, final judgment rendered upon 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.” The doctrine of res judicata applies to those who were
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parties in the prior action, to those who were in privity with the litigants, and also to
those who could have joined the action and did not. See Howell v. Richardson
(1989), 45 Ohio St.3d 365, 367, 544 N.E.2d 878, 880; Keeley & Assoc., Inc. v.
Integrity Supply, Inc. (1997), 120 Ohio App.3d 1, 4, 696 N.E.2d 618.
{¶23} Res judicata is particularly relevant when a party fails to present
compulsory counterclaims pursuant to Civ.R. 13(A), which requires a party to raise all
counterclaims against the opposing parties. Civ.R. 13(A) states in pertinent part:
{¶24} “A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing party's claim and
does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction.”
{¶25} Civ.R. 15(A) allows a defendant to amend his answer once as a matter
of course within 28 days after having served the answer on the plaintiff. Appellants
did not amend their answer within 28 days, and thus, could not amend their answer
as a matter of course to include their counterclaims. Civ.R. 15(A) provides an
additional means to amend a pleading after the 28-day time period has expired, but,
“only by leave of court or by written consent of the adverse party.”
{¶26} Civ.R. 13(F) provides a similar means to raise a counterclaim after
seeking leave from the court: “When a pleader fails to set up a counterclaim through
oversight, inadvertence, or excusable neglect, or when justice requires, he may by
leave of court set up the counterclaim by amendment.”
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{¶27} The record indicates that Appellants did not seek leave of the court to
file their counterclaims, and that Appellees did not consent to the filing of an
amended answer by Appellants to the original foreclosure complaint. These issues
were litigated in the earlier appeal. We concluded that Appellants failure to seek
leave to file the counterclaims, their discussion of the counterclaims as part of the
summary judgment proceedings, and the trial court’s ruling in favor of the bank,
constituted a rejection of those counterclaims by the trial court. Wells Fargo Bank,
N.A., supra, 7th Dist. No. 08 CO 30, 2009-Ohio-3055, at ¶23-27.
{¶28} It is clear from our earlier Opinion that Appellants failed to properly raise
compulsory counterclaims arising from the foreclosure action. Failure to assert a
compulsory counterclaim constitutes a form of res judicata and acts as a bar to
subsequent litigation. Forney v. Climbing Higher Ents., Inc., 158 Ohio App.3d 338,
2004-Ohio-4444, 815 N.E.2d 722, ¶20, citing Quintus v. McClure (1987), 41 Ohio
App.3d 402, 403-404, 536 N.E.2d 22. “The purpose of [Civ.R. 13(A)] is to settle all
related claims in one action and thereby avoid a wasteful multiplicity of litigation on
claims which arise from a single transaction or occurrence. State ex rel. Massaro
Corp. v. Franklin Cty. Court of Common Pleas (1989), 65 Ohio App.3d 428, 430, 584
N.E.2d 756. The rule also provides for an orderly delineation of res judicata,
Cleveland v. A.J. Rose Mfg. Co. (1993), 89 Ohio App.3d 267, 275, 624 N.E.2d 245,
as failure to assert a compulsory counterclaim will result in its being barred in any
subsequent action. Quintus v. McClure (1987), 41 Ohio App.3d 402, 404, 536
N.E.2d 22.” ATAC Corp. v. Lindsay (Jan. 16, 1997), 8th Dist. Nos. 70293, 70294,
and 70572, at *4.
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{¶29} The Ohio Supreme Court has held that:
{¶30} “All existing claims between opposing parties that arise out of the same
transaction or occurrence must be litigated in a single lawsuit pursuant to Civ.R.
13(A), no matter which party initiates the action.” Rettig Enterprises, Inc. v. Koehler
(1994), 68 Ohio St.3d 274, 626 N.E.2d 99, paragraph one of the syllabus.
{¶31} The Ohio Supreme Court has used the “logical relation test” to decide
whether claims, “arise out of the same transaction or occurrence,” as required by
Rule 13(A). Id. at 278. The test defines a compulsory counterclaim as one that “is
logically related to the opposing party's claim” and would require considerable
duplication of effort by both the parties and the trial court if separate trials were
permitted. Id.
{¶32} Appellants’ complaint reflects that their claims arose “in connection with
the Plaintiffs’ home mortgage and related matters”. (11/18/08 Complaint, p. 2.) Any
claims that Appellants have that are logically related to the mortgage and the
foreclosure are compulsory counterclaims to the foreclosure action. It is apparent
from the nature of the claims in this instant action that they are logically related to the
earlier foreclosure. Appellants raise issues with Appellees’ failure to pay real estate
taxes from the mortgage payments, with the calculated interest rates, with Appellees’
refusal to accept a late payment, and with misapplied payments. These are all
counterclaims that should have been properly raised and dealt with in the foreclosure
action, itself. That matter was resolved in the bank’s favor and was affirmed on
appeal, and we agree with the trial court that the claims in the instant action are now
res judicata.
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{¶33} Appellants argue that res judicata, and presumably Civ.R. 13(A), do not
apply to this case because the opposing party in the foreclosure action was only
Wells Fargo, and not all three of the defendants named in the instant appeal. It
should first be noted that Appellants did not oppose summary judgment in this case
on the basis that there are different parties in the two lawsuits, and their attempt to
manufacture that argument on appeal is inconsistent with their pleadings and filings
in the case.
{¶34} The fact that there are two additional parties in the instant action does
not defeat a res judicata defense. For res judicata to apply, “one of the requirements
is that the parties to the subsequent action must be identical to or in privity with those
in the former action.” (Emphasis added.) Kirkhart v. Keiper, 101 Ohio St.3d 377,
2004-Ohio-1496, 805 N.E.2d 1089, ¶8. Further, courts have interpreted the term
“opposing party” in Civ.R. 13(A) to also include parties who are “in privity” with the
named parties. See, e.g., Keeley & Assoc., Inc. v. Integrity Supply, Inc. (1997), 120
Ohio App.3d 1, 6-7, 696 N.E.2d 618. “[T]he term ‘opposing party’ in Civ.R. 13(A)
includes not only formally named opposing parties, but also any party who is in privity
with a formally named opposing party.” Fender v. Miles, 12th Dist. No. CA2009-01-
003, 2009-Ohio-6043, ¶18. A party is in “privity” with another if it succeeds to an
estate or an interest formerly held by the other, or where a party is so identified in
interest with another that the party represents the same legal right. Lennon v. Neil
(2000), 139 Ohio App.3d 437, 744 N.E.2d 228; Deaton v. Burney (1995), 107 Ohio
App.3d 407, 669 N.E.2d 1. “[A] mutuality of interest, including an identity of desired
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result,” may also create privity between parties. Brown v. Dayton (2000), 89 Ohio
St.3d 245, 248, 730 N.E.2d 958.
{¶35} The three named defendants in this case are Wells Fargo, Option One,
and American Home Mortgage. Wells Fargo and Option One are obviously in privity
because Wells Fargo filed the foreclosure action as trustee for Option One. Wells
Fargo Bank, N.A., supra, 7th Dist. No. 08 CO 30, 2009-Ohio-3005, at ¶9. A trustee is
in privity with the trust and the beneficiaries of the trust for purposes of establishing
res judicata. Forney v. Climbing Higher Enterprises, Inc., 158 Ohio App.3d 338,
2004-Ohio-4444, 815 N.E.2d 722, ¶21-22.
{¶36} Appellants’ complaint in the instant case does not explain why
American Home Mortgage is named as a defendant, other than to say that all three
defendants are connected to their home mortgage. Despite this lack of explanation,
it is apparent from Appellants’ averments and admissions in the record that American
Home Mortgage should be treated as being in privity with the parties of the earlier
foreclosure action. Appellants’ reply to Appellees’ motion for summary judgment
makes it very clear that the instant complaint was filed as a means to relitigate the
counterclaims that were unsuccessfully raised in the earlier foreclosure action.
Because Appellants lost their appeal of that foreclosure judgment, including the
appeal of their attempt to belatedly raise counterclaims, any further attempt to
relitigate those counterclaims against any party connected to those counterclaims is
res judicata.
{¶37} The trial court properly dismissed Appellants’ complaint on the grounds
of res judicata. The claims in this case all relate to the mortgage and foreclosure of
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the mortgage already litigated through appeal in Wells Fargo Bank, N.A. v. Jarvis.
Appellants failed to properly raise compulsory counterclaims in that matter, and they
cannot raise them by filing their own lawsuit. Appellants’ assignment of error is
overruled and the judgment of the trial court affirmed.
Donofrio, J., concurs.
Vukovich, P.J., concurs.