[Cite as U.S. Bank Natl. Assn.. v. Holland, 2011-Ohio-5301.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

U.S. BANK NATIONAL ASSOCIATION

        Plaintiff-Appellee

-vs-

CARLTON E. HOLLAND, ET AL.

        Defendant-Appellant

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.

Case No. 2011CA00046


OPINION



CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2009CV02976


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                October 13, 2011


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


BENJAMIN D. CARNAHAN                                   DAVID A. VAN GAASBEEK
Dinn, Hochman & Potter, LlC                            1303 West Maple Street
5910 Landerbrook Drive, Suite 200                      Suite 104
Cleveland, Ohio 44124                                  North Canton, Ohio 44720
Hoffman, J.


          (¶1)   Defendant-appellant Sandra Cuenot, Successor-Trustee of the Gabriel S.

Cuenot Revocable Trust dated December 15, 1994, (“Cuenot”), appeals the February 4,

2011 Judgment Entry entered by the Stark County Court of Common Pleas which

dismissed its counterclaim with prejudice.       Plaintiff-appellee   is U.S. Bank National

Association as Trustee under Pooling and Servicing Agreement dated as of December

1, 2006 MASTR Asset Backed Securities Trust 2006-HE 5 Mortgage Pass-Through

Certificates Series 2006-HE 5 (“U.S. Bank”).

                            STATEMENTS OF THE FACTS AND CASE

          (¶2)   Carlton and Silka Holland borrowed money to buy a house. The mortgage

securing the home loan was eventually purchased by U.S. Bank. The Hollands gave a

second mortgage to Cuenot.

          (¶3)   The Hollands defaulted on their mortgage payments to U.S. Bank, who

then filed for foreclosure in September, 2008. Cuenot was joined as a defendant in that

action.     That complaint was voluntarily dismissed by U.S. Bank after a repayment

agreement was entered into between itself and the Hollands.

          (¶4)   Following a subsequent default by the Hollands, U.S. Bank again filed for

foreclosure in January 9, 2009. Cuenot was again joined as a defendant. The trial

court dismissed U.S. Bank’s complaint without prejudice for want of prosecution

pursuant to Civ.R. 41(B)(1) on March 31, 2009.

          (¶5)   The Hollands remained in default prompting U.S. Bank to yet again file the

instant foreclosure action in July, 2009.      Cuenot was again joined as a defendant.
Cuenot filed a counterclaim seeking to have its second mortgage lien take priority over

U.S. Bank’s mortgage lien based upon its theory the double-dismissal rule applied and

precluded U.S. Bank from asserting any further claim. Eventually, U.S. Bank and the

Hollands settled and dismissed the underlying foreclosure complaint by entering into

another loan modification agreement. Cuenot’s counterclaim remained pending.

         (¶6)   The parties filed a stipulation of facts and briefs on the issue of

prioritization of their respective mortgage liens. On February 4, 2011, the trial court

dismissed with prejudice Cuenot’s counterclaim, declaring U.S. Bank’s lien had priority

over Cuenot’s lien.

         (¶7)   It is from that judgment entry Cuenot prosecutes this appeal, assigning as

error:

         (¶8)   “I. THE TRIAL COURT ERRED BY RULING THAT APPELLEE’S LIEN

HAS PRIORITY BECAUSE APPELLEE IS BARRED FROM ASSERTING ITS CLAIM

AGAINST CARLTON E. HOLLAND AND SILKA HOLLAND BECAUSE THERE HAVE

BEEN TWO PREVIOUS DISMISSALS OF THE SAME COMPLAINT IN CASE

NUMBERS 2008CV04183 AND 2009CV00086.”

         (¶9)   Herein, Cuenot argues U.S. Bank’s instant foreclosure complaint was

barred by res judicata. Cuenot cites U.S. Bank Nat’l Ass’n v. Gullotta (2008), 120 Ohio

St.3d 399, which relied upon Olynyk v. Scoles (2007), 114 Ohio St.3d 56, to support its

argument.

         (¶10) We find the trial court properly distinguished the Olynyk case as it involved

two dismissals under Civ.R. 41(A)(1), as opposed to the instant case which involved

one dismissal under Civ.R. 4(A)(1) and a subsequent dismissal without prejudice under
Civ.R. 41(B)(1). We find the trial court correctly applied Olynyk to the case sub judice in

determining the “double dismissal” rule did not apply.1,2

       (¶11) Cuenot’s sole assignment of error is overruled.

       (¶12) The judgment of the trial court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin_____________________
                                             HON. W. SCOTT GWIN


                                             s/ Sheila G. Farmer___________________
                                             HON. SHEILA G. FARMER




1
  Although not raised by U.S. Bank, we would find Cuenot’s argument barred by res
judicata because it failed to raise such via direct appeal after the trial court’s dismissal
without prejudice of U.S. Bank’s second foreclosure complaint.
2
  We find Cuenot’s reliance of Sisk & Associates Inc. v. Comm. to Elect Tim Grendell
(2009), 123 Ohio St.3d 447, distinguishable as it was based on Civ.R. 3(A), and held an
instruction by plaintiff to the clerk to attempt service on a complaint filed more than a
year after the complaint was filed, operates, as a matter of law, as a second notice of
dismissal under Civ.R. 4(A)(1).
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


U.S. BANK NATIONAL ASSOCIATION            :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CARLTON E. HOLLAND, ET AL.                :
                                          :
       Defendant-Appellant                :         Case No. 2011CA00046


       For the reasons stated in our accompanying Opinion, the February 4, 2011

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to

Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin_____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER
