[Cite as Ford Motor Credit Co., L.L.C. v. Collins, 2014-Ohio-5152.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101405



                           FORD MOTOR CREDIT COMPANY, L.L.C.

                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                     MORTON COLLINS, ET AL.

                                                            DEFENDANTS-APPELLANTS




                                               JUDGMENT:
                                                AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-13-807658

        BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                        November 20, 2014
APPELLANTS

Morton Collins, pro se
Kim Collins, pro se
P.O. Box 202481
Shaker Heights, Ohio 44120


ATTORNEYS FOR APPELLEE

Michael S. Berkowitz
Keith D. Weiner & Associates Co., L.P.A.
75 Public Square, 4th Floor
Cleveland, Ohio 44113

Brett K. Bacon
Adam J. Russ
Frantz Ward, L.L.P.
2500 Key Center
127 Public Square
Cleveland, Ohio 44114




KATHLEEN ANN KEOUGH, J.:
       {¶1}    This appeal is before the court on the accelerated docket pursuant to App.R. 11.1

and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a

brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735,

¶ 1; App.R. 11.1(E).

       {¶2}    Defendants-appellants, Morton S. and Kim O. Collins, pro se (the “Collinses”),

appeal from the trial court’s judgment granting the motion for summary judgment of

plaintiff-appellee, Ford Motor Credit Company, L.L.C. (“Ford Credit”). Finding no merit to the

appeal, we affirm.

I.     Background

       {¶3}    In January 2007, the Collinses purchased a 2007 Mazda CX7 from the Mazda of

Kent dealership in Kent, Ohio. As part of the financing of that purchase, Ford Credit entered

into a retail installment contract with the Collinses. Under the contract, the Collinses agreed to

pay Ford Credit $30,966.67 plus interest at 5.90% per annum, through 72 equal monthly

payments of $513.00, beginning on February 25, 2007. The Collinses defaulted on the contract

by failing to make all monthly payments.

       {¶4}    On September 21, 2012, more than five years after they purchased the Mazda, the

Collinses filed suit against Ford Credit and others in the Portage County Court of Common Pleas

in which they claimed, among other things, a civil rights violation under 42 U.S.C. 1983 relating

to the transaction. Collins v. Mercury Lincoln Ford Customer Relations Dept., Portage C.P. No.

2012-CV-01118. Because the case involved a federal claim, on October 25, 2012, Ford Credit

removed the action to the United States District Court for the Northern District of Ohio.

       {¶5}    After Ford Credit filed its answer, the Collinses filed motions for default and
summary judgment as to their claims. In response, on November 16, 2012, the district court

issued an opinion and journal entry denying the Collinses’ motions and dismissing the action.

Collins v. Ford Motor Credit Co., LLC, N.D.Ohio No. 5:12 CV 2677, 2012 U.S. Dist. LEXIS

164079 (Nov. 16, 2012).

       {¶6}    The district court specifically found that Ford Credit’s answer in federal court had

been “timely filed and Ford Motor Credit is not in default.” It also rejected the Collinses’

contention that Ford Credit had been in default of answer in the state court prior to removal,

stating “[m]oreover, Plaintiff indicates the state court had already found Defendants to be in

default. The state court record transmitted to this court on November 5, 2012 does not reflect a

finding of default.” The district court further found that the Collinses had not asserted a legally

viable cause of action under 42 U.S.C. 1983 against Ford Credit or the other defendants, and that

in any event, the statute of limitations for filing an action under 42 U.S.C. 1983 had expired well

before the action was filed.      Accordingly, the district court concluded that the Collinses’

complaint “lack[ed] the legal plausibility necessary to invoke federal subject matter jurisdiction,”

and it dismissed the matter for lack of subject matter jurisdiction.

       {¶7}    On May 20, 2013, after the district court action had been dismissed, Ford Credit

filed this action against the Collinses in the Cuyahoga County Common Pleas Court to recover

the deficiency balance owed under the parties’ financing agreement. The Collinses filed a

counterclaim (mislabeled a “cross-complaint”) in which they asserted various defenses and

claims for damages against Ford Credit; they also subsequently filed three variously-captioned

dispositive motions.1 Ford Credit then filed a motion for summary judgment, and a brief in


        “Motion for Default and Summary Judgment”; “Motion for Judgment on the Pleadings”; and
       1


“Dispositive Motion.”
opposition to the Collinses’ three dispositive motions.

          {¶8}   The trial court subsequently issued an opinion and order in which it denied the

Collinses’ dispositive motions, dismissed their counterclaim, and granted summary judgment to

Ford Credit against the Collinses, jointly and severally, in the amount of $8,761.17, plus costs

and post-judgment interest from the date of the judgment. This appeal followed.

II.       Analysis

          {¶9} Civ.R. 56(C) provides that 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) after construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v.

Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201; Temple

v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). We review the trial

court’s judgment de novo, using the same standard that the trial court applies under Civ.R. 56(C).

 Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.

Accordingly, we stand in the shoes of the trial court and conduct an independent review of the

record.

A.        Res judicata

          {¶10} In their first, second, third, and fourth assignments of error, the Collinses assert that

the trial court erred in granting summary judgment to Ford Credit because this case is barred by

the doctrine of res judicata. Specifically, they contend that Ford Credit failed to raise any claims

in either the Portage County or district court cases regarding monies allegedly owed it by the

Collinses and, therefore, because the district court’s decision dismissing the case was final, the

doctrine of res judicata applies to bar Ford Credit’s complaint in this case. Consequently, they
contend, the trial court was without jurisdiction to rule on Ford Credit’s motion for summary

judgment.    Further, they contend that because res judicata applies, they were entitled to

judgment on their claims as originally presented in the Portage County Common Pleas Court

case.

        {¶11} Under the doctrine of res judicata, “‘[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.’” Hughes v. Calabrese, 95 Ohio

St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 12, quoting Kelm v. Kelm, 92 Ohio St.3d 223,

227, 2001-Ohio-168, 749 N.E.2d 299.

        {¶12}    A dismissal for lack of subject matter jurisdiction does not operate as an

adjudication on the merits. Civ.R. 41(B)(4). “This rule ‘reflects the policy of the Civil Rules

that dismissal of an action for want of jurisdiction * * * does not bar the commencement of a

new action on the same claim if the defect is cured.’” Diagnostic & Behavioral Health Clinic,

Inc. v. Jefferson Cty. Mental Health, Alcohol & Drug Addiction Bd., 7th Dist. Jefferson No. 01

JE 5, 2002-Ohio-1567, ¶ 11, quoting 2 Klein & Darling, Baldwin’s Ohio Civil Practice, Section

41-36 (1997). Accordingly, the Ohio Supreme Court has held that a dismissal for lack of

jurisdiction is not res judicata to a subsequent action. State ex rel. Schneider v. Bd. of Edn., 39

Ohio St.3d 281, 530 N.E.2d 206 (1988).2

        {¶13}   Here, the district court dismissed Case No. 5:12 CV 2677 without a final

judgment or decree on the merits. Accordingly, the doctrine of res judicata does not apply to bar


        An exception, not applicable here, occurs when the jurisdictional defect cannot be cured. In
        2


such cases, a party may not relitigate the issue of subject matter jurisdiction in a second suit on the
same claim, and res judicata bars the subsequent action. Diagnostic & Behavioral Health Clinic at ¶
12-17.
Ford Credit’s claims in this suit. Similarly, res judicata does not apply to bolster or support the

Collinses’ counterclaims in this case, nor does it bar the trial court’s jurisdiction. And, contrary

to the Collinses’ argument, even if res judicata did apply, it would not allow the Cuyahoga

County Common Pleas Court to enter judgment for the Collinses in a suit filed in Portage

County.

B.     Default

       {¶14} In addition to the res judicata argument, in their fourth assignment of error, the

Collinses also assert that the trial court erred in finding that “default did not enter the record in

Portage County Court of Common Pleas.” We construe this as an argument that Ford Credit

was barred from bringing this action because it was in default of prosecuting its claims or

defending against those levied against it by the Collinses in the Portage County case. This

argument is without merit.

       {¶15} As the trial court recognized, the district court addressed this argument in its

opinion and found that Ford Credit was not in default in either the district court or Portage

County cases. Specifically, the district court stated:

       In this case, plaintiff is not properly computing the time within which defendants
       had to serve an answer. Defendants were served with the complaint on
       September 28, 2012. A notice of removal was timely filed on October 25, 2012.
       Based on Rule 81(C), defendants’ answer was due on the later of either
       twenty-one days after service, which would make the answer due on October 26,
       2012, or seven days after the notice of removal was filed, which would make the
       answer due on November 1, 2012. November 1, 2012 is the later of those two
       dates. Defendants’ answer was filed on November 1, 2012. It was therefore
       timely filed and Ford Motor Credit is not in default. There is no indication that
       the plaintiff has perfected service on the other defendant. Plaintiff’s motion for
       default judgment is therefore denied. Because plaintiff’s motion for summary
       judgment is premised on plaintiff’s assertion that defendants were in default, that
       motion is also denied.

       Moreover, plaintiff indicates the state court had already found defendants to be in
       default. The state court record transmitted to this court on November 5, 2012
       (Doc. 6) does not reflect a finding of default.

       {¶16} Accordingly, the trial court properly concluded that Ford Credit was not in default

nor barred from asserting its claims in this action.

C.     Other Alleged Errors

       {¶17} In their first four assignments of error, the Collinses also vaguely raise several

alleged errors relating to the district court case (e.g., improper transfer of the case from Portage

County to the district court; alleged erroneous factual findings by the district court, etc.).

Although we find no errors, we note that this court’s jurisdiction is limited to review of

judgments or final orders of courts within the Eighth District — Ohio constitutional and statutory

law provides that we have no jurisdiction to a review federal district court decisions. State v.

Fawcett, 91 Ohio St.3d 1, 3, 2000-Ohio-195, 740 N.E.2d 654; Sundstrom v. Sundstrom, 11th

Dist. Ashtabula No. 2005-A-0013, 2006-Ohio-486, ¶ 31. The Collinses should have raised any

alleged errors regarding the district court decision on appeal in the federal court; this is not the

appropriate forum to do so.

       {¶18}     Accordingly, the first, second, third, and fourth assignments of error are

overruled.

D.     Motion for Summary Judgment

       {¶19} In their fifth assignment of error, the Collinses contend that the trial court’s

judgment granting Ford Credit’s motion for summary judgment was “in error and contrary to all

practical and logical assessments.”

       {¶20} It is well established that the party moving for summary judgment bears the

burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.         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 that demonstrate the absence of a genuine issue of fact on a material

element of the nonmoving party’s claim. Id. The nonmoving party has a reciprocal burden of

specificity and cannot rest on mere allegations or denials in the pleadings. The nonmoving party

must set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a genuine

issue for trial. Id.

        {¶21} In its motion, Ford Credit sought summary judgment on its claims for breach of

contract and money due on an account, as well as the Collinses’ counterclaim. Ford Credit’s

motion was supported by the affidavit of Danny Demel, debt sale coordinator for Ford Credit.

In his affidavit, Demel set forth the history of the transaction between the Collinses and Ford

Credit, and detailed how the Collinses had defaulted on their payment obligations under the

financing agreement, resulting in a balance owed of $8,761.17 plus interest.         Demel also

reference Exhibits A and B to Ford Credit’s complaint: true and accurate copies of the financing

agreement and a current account status setting forth the history of the account from January 11,

2007 through October 12, 2012. Despite their reciprocal burden, the Collinses did not counter

Ford Credit’s motion with any evidence demonstrating there was a genuine issue for trial on

either Ford Credit’s complaint or their counterclaim. Accordingly, the undisputed evidence

demonstrated that Ford Credit was entitled to summary judgment as a matter of law.

        {¶22}    Our review of the record demonstrates that the Collinses likewise failed to

provide any evidentiary support for their variously-named dispositive motions. As the trial court

stated in denying the motions:

        The [Collinses’] arguments regarding the underlying transaction are best
       characterized as attempts to create issues of fact by raising various defenses to
       Ford’s monetary claim, albeit without affidavits or other proper evidentiary
       materials. Said arguments do not support [the Collinses’] motion for summary
       judgment.

       {¶23} In short, the Collinses did not provide any evidence consistent with Civ.R. 56 in

support of their allegations, nor did they produce any evidence contrary to the evidence offered

by Ford Credit. Accordingly, the trial court did not err in granting summary judgment to Ford

Credit. The fifth assignment of error is therefore overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
