[Cite as Prouse, Dash & Crouch, L.L.P. v. DiMarco, 2012-Ohio-12.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96728


                      PROUSE, DASH & CROUCH, LLP
                                                          PLAINTIFF-APPELLEE

                                                    vs.

      BRUCE ANTHONY GORCYCA DIMARCO, ET AL.
                                                          DEFENDANTS-APPELLANTS



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-692424


        BEFORE: Jones, P.J., S. Gallagher, J., and Keough, J.

        RELEASED AND JOURNALIZED: January 5, 2012
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Daniel F. Lindner
Lindner, Sidoti, Jordan LLP
2077 East 4th Street, 2nd Floor
Cleveland, Ohio 44115




       LARRY A. JONES, P.J.:

       {¶ 1} Defendant-appellant, Bruce Anthony Gorcyca DiMarco (“DiMarco”),

appeals the trial court’s judgment overruling his objections to the magistrate’s decision,

adopting the magistrate’s decision, and ordering foreclosure of the real property located at

5810 Gilbert Avenue, Parma, Ohio.     We affirm.

                              I. Procedural History and Facts

       {¶ 2} Litigation between DiMarco and plaintiff-appellee, Prouse, Dash & Crouch,

LLP (“Prouse”), began in 2003, when Prouse sued DiMarco and Ji Hae Linda Yum

DiMarco (“Yum”) in Cuyahoga County Common Pleas Court for breach of contract.1

The trial court found in that case that DiMarco and Yum jointly and severally owed Prouse


       1
       Case No. CV-498823.
$296,342.97, that DiMarco had fraudulently transferred his home to Yum to defeat

creditors, and that the transfer was void.    Prouse thereafter perfected a judgment lien on

the property.2

       {¶ 3} This court reversed the trial court and found that the trial court did not have

personal jurisdiction over DiMarco.          Prouse, Dash & Crouch, LLP v. DiMarco,

Cuyahoga App. No. 86324, 2006-Ohio-1538, ¶15 (“Prouse I”).               The Ohio Supreme

Court reversed Prouse I, finding that the trial court had jurisdiction over DiMarco, and

ordered that the trial court’s judgment against him stand.     Prouse, Dash & Crouch, LLP

v. DiMarco, 116 Ohio St.3d 167, 2007-Ohio-5753, 876 N.E.2d 1226.

       {¶ 4} On remand, this court affirmed the trial court’s rulings (1) that the trial court

had jurisdiction over DiMarco, (2) awarding attorney fees to Prouse, and (3) that DiMarco

had fraudulently transferred the property to Yum.         Prouse, Dash & Crouch, LLP v.

DiMarco, Cuyahoga App. No. 86324, 2008-Ohio-919 (“Prouse II”).               The trial court

denied various motions to reconsider.

       {¶ 5} Prouse then filed this foreclosure action.      The action was initially brought

against DiMarco only, but the complaint was amended to include DiMarco’s alleged

former wives — Yum and Magaly Perez — for the purpose of allowing them to protect

any dower interest they may claim. Yum and Perez were served, but never defended in

the case; they were both found to be in default. DiMarco did not object.

       {¶ 6} The trial court entered judgment in favor of Prouse.         DiMarco sought a


       Case No. JL-234730.
       2
stay, which was granted on the condition that he post a $250,000 supersedeas bond.

DiMarco never posted the bond, and the property was sold in July 2011.

       {¶ 7} DiMarco presents the following assignments of error for our review:

              “[I.] Defendant was denied due process of law when the court ordered a
       foreclosure on property based upon an alleged fraudulent transfer over which the
       court lacked jurisdiction of a necessary and indispensable party.

             “[II.] Defendant was denied due process of law when the court entered a
       judgment against [him] where the court lacked personal jurisdiction.

              “[III.] Defendant was denied due process of law when the court ordered a
       foreclosure based upon service by publication which failed to comply with the
       minium requirement of due process of law.

             “[IV.] Defendant was denied due process of law when the court did not
       conduct a hearing on the defense of lack of personal jurisdiction.

            “[V.] Defendant was denied due process of law when service by publication
       was had without strict compliance with the Ohio Rules of Civil Procedure.”

                                  II.   Law and Analysis

       {¶ 8} By these assignments of error, it is DiMarco’s contention that (1) the trial

court did not have jurisdiction over Yum; (2) the trial court did not have jurisdiction over

him because the service by publication was not obtained in “strict compliance with the

Ohio Rules of Civil Procedure”; and (3) the trial court should have held a hearing in regard

to service on him.

       {¶ 9} We first consider DiMarco’s contention that the trial court did not have

jurisdiction over Yum. Yum was brought into this action, upon the trial court’s order, to

assert any dower interest in the property she may have had.       She did not defend and

default judgment was granted against her. She is not a party to this appeal.
       {¶ 10} An appealing party may complain of an error committed against a

non-appealing party when the error is prejudicial to the rights of the appellant. In re

Hitchcock (1996), 120 Ohio App.3d 88, 99-100, 696 N.E.2d 1090. Upon a showing of

prejudice, the appellant may challenge the error committed against the non-appealing

party. In re Hiatt (1993), 86 Ohio App.3d 716, 721, 621 N.E.2d 1222.

       {¶ 11} DiMarco claims that this court’s prior ruling that the transfer of the property

from him to Yum was a “taking of Yum’s property without due process of law.”

DiMarco’s contention affects Yum’s potential rights, not his own. He has not established

that his rights were prejudiced and, therefore, that he has the right to assert an error

committed against Yum.

       {¶ 12} In light of the above, the first assignment of error is overruled.

       {¶ 13} In his second assignment of error, DiMarco contends that the trial court did

not have personal jurisdiction over him.

       {¶ 14} 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.” Grava v. Parkman

Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226, syllabus.                  Thus, a final

judgment on the merits of an action precludes the parties from relitigating issues that were

or could have been raised in that action. Trojanski v. George, Cuyahoga App. No. 83472,

2004-Ohio-2414.     Moreover, the doctrine of res judicata prohibits a collateral attack on

an otherwise final judgment. Southridge Civic Assn. v. Parma, Cuyahoga App. No. 80230,
2002-Ohio-2748.

      {¶ 15} In regard to whether the trial court had jurisdiction over DiMarco, the Ohio

Supreme Court stated that “[w]e hold that the Cuyahoga County Court of Common Pleas

has personal jurisdiction over DiMarco.” Prouse, 2007-Ohio-5753, at ¶12. This court

acknowledged that holding.     Prouse II, ¶5.   The issue of whether the trial court had

jurisdiction over DiMarco has, therefore, been conclusively determined.       Accordingly,

the second assignment of error is overruled.

      {¶ 16} For his third assigned error, DiMarco contends that the service by

publication did not meet the minimum requirements of due process.             Specifically,

DiMarco challenges Prouse’s affidavit in support of service by publication, which

provided in part:   “Service was attempted by personal process server.    The female that

resided at the above [Canadian] address indicated that said defendant no longer resided at

said residence and she does not know where he currently resides.”            According to

DiMarco, “the statement in the affidavit does not indicate to whom this information was

given nor the identity of the ‘female’ who claimed she resided at the residence. * * * Thus

the conclusory statement that the residence was unknown would be insufficient.”        We

disagree.

      {¶ 17} The record demonstrates that Prouse attempted personal service on DiMarco

at the address where he was served in Prouse I and II.   The affidavit of attempted service

(separate and distinct from the above-mentioned affidavit in support of service by

publication) states as follows: “On Friday May 22, 2009 * * * I attempted to serve the
Defendant * * * DiMarco * * * with a copy of the Summons in a Civil Action, and

Complaint in Foreclosure by attending at his last known residential address * * *.           I

spoke with a female occupant of the premises who identified herself as Linda DiMarco,

she stated that she is the ex-wife of * * * DiMarco, and that he did not reside at the

premises and she did not know where he would currently reside.”

       {¶ 18} Under Civ.R. 4.4(B), even where a residence is known, but service cannot be

effectuated, service by publication is a permissible method of service.       Further, we are

not persuaded by DiMarco’s reliance on Dowers v. Krause, Hamilton App. No. C-030644,

2004-Ohio-1487. In Dowers, the plaintiff attempted service by mail, but it was rejected.

The plaintiff then proceeded to serve the defendant by publication.      The First Appellate

District held that the plaintiff did not demonstrate reasonable diligence because he knew

that the defendant still resided at the address and, thus, could have attempted personal

service.

       {¶ 19} Here, Prouse attempted personal service on DiMarco on his last known

address and his ex-wife told the process server that DiMarco no longer resided at the

address and she did not know where he was living. DiMarco’s residence was unknown

and Prouse, therefore, properly served him by publication.

       {¶ 20} In light of the above, the third assignment of error is overruled.

       {¶ 21} We next consider DiMarco’s contention that the trial court should have

conducted a hearing regarding his claim that the service by publication was inadequate.

DiMarco asserted this contention throughout the trial court proceedings.       The trial court
considered it and rejected that argument.

       {¶ 22} DiMarco relies on Phung v. Waste Mgt., Inc. (1988), 40 Ohio App.3d 130,

532 N.E.2d 195, in support of his contention that the trial court was required to hold a

hearing.   Phung does not support his contention.        Specifically, the Sixth Appellate

District held that “Phung was heard by the court, through his memorandum in opposition,

before the court ruled on the motion to dismiss. He was not denied due process.” Id. at

131.

       {¶ 23} Similarly, DiMarco’s contention was before the court through various

motions, pleadings, and his objections to the magistrate’s decision. The court considered

his contention, and determined it not to be well-founded. DiMarco was not denied due

process. Accordingly, the fourth assignment of error is overruled.

       {¶ 24} In his final assignment of error, DiMarco contends that he was denied due

process because the service by publication was not done in “strict compliance with the

Ohio Rules of Civil Procedure.” We are not persuaded. DiMarco filed objections to the

magistrate’s decision and did not assert any objection based on the alleged failure to serve

him under the Ohio Rules of Civil Procedure.          Civ.R. 53(D)(3)(b)(ii) provides that

“[o]bjections must be specific, and state with particularity all grounds for objection.”   If

an objection is not made on a particular issue, that issue is waived.                Civ.R.

53(D)(3)(b)(iv).

       {¶ 25} In his objections, DiMarco only made general arguments about personal

jurisdiction; he did not specifically state how Prouse allegedly failed to comply with the
Rules of Civil Procedure.       DiMarco has, therefore, waived his right to present this

argument on appeal.   The fifth assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
