[Cite as Whittington v. Chase #1, 2011-Ohio-2288.]



         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95728




                           DARRYL WHITTINGTON
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                                 CHASE #(1), ET AL.
                                                           DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-724914

        BEFORE:           Rocco, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                            May 12, 2011
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FOR APPELLANT

Darryl Whittington, pro se
2209 East 93rd Street
Cleveland, Ohio 44106-3405

ATTORNEYS FOR APPELLEES

For Chase #(1)

Seamus J. McMahon
Moscarino & Treu, L.L.P.
The Hanna Building, Suite 630
1422 Euclid Avenue
Cleveland, Ohio 44115

For City of Cleveland

Robert J. Triozzi
Director of Law
BY: L. Stewart Hastings, Jr.
      Chief Assistant Director of Law
      William M. Menzalora
      Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114

For Cuyahoga County

William D. Mason,
Cuyahoga County Prosecutor
BY: Sara E. Decaro
      Assistant County Prosecutor
Justice Center 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
                                       3



KENNETH A. ROCCO, J.:

      {¶ 1} In this action in “conversion and replevin” seeking return of

forfeited funds, plaintiff-appellant Darryl Whittington, proceeding pro se,

appeals from the trial court orders that granted each of the defendants’

separate motions to dismiss his complaint. Defendants-appellees are JP

Morgan Chase Bank, N.A. (designated in his complaint as simply “Chase”),

the city of Cleveland, and Cuyahoga County.

      {¶ 2} Appellant presents three assignments of error.1       He first argues

the trial court abused its discretion in granting all of the motions to dismiss

without considering the merits of his claim. He next argues the trial court

abused its discretion when it declined to reconsider its decision to grant

Cleveland’s motion to dismiss. Lastly, he argues that the trial court wrongly

determined his claim against Chase was barred by the doctrine of res

judicata.2




      1Appellant’s  “statement” of his assignments of error differs markedly from
the ones he actually argues. Faced with this dichotomy, this court will address the
assigned errors as presented immediately before his three arguments.
      2This  court has rephrased appellant’s arguments to reflect its understanding
of what he is asserting in this appeal.
                                      4

      {¶ 3} Upon a review of the record, this court finds the trial court’s

orders were appropriate. They are therefore affirmed.

      {¶ 4} Appellant filed his complaint on April 22, 2010.    In it, he alleged

the following: 1) he had been convicted of a “drug offense on January 12,

2007”; 2) much of his personal property, including two Chase bank accounts,

had been seized as a result of his criminal case; 3) his indictment in his

criminal case did not carry a forfeiture specification; 4) his two sisters, Linda

Whittington and Laura Holmes, had filed civil actions in replevin for release

of the bank account funds, but their complaints had been “dismissed without

prejudice”; 5) in those civil actions, Chase had wrongfully deposited the funds

in his accounts with the trial court; 6) both Cleveland and Cuyahoga County

were now in “wrongful possession” of those funds; and 7) he needed the

money.

      {¶ 5} Appellant filed a motion for an “order of possession of property”

contemporaneously with his complaint. He attached his affidavit to support

the allegations of his complaint.

      {¶ 6} After Chase received service, it filed a motion to place the case on

the docket of the trial court that had presided over appellant’s sisters’ cases;

those two cases had been consolidated. The motion was granted.
                                      5

        {¶ 7} On June 4, 2010, Chase filed a motion to dismiss the complaint,

arguing appellant’s claim was barred by the doctrine of res judicata. Chase

attached exhibits to its motion.

        {¶ 8} These exhibits included a copy of the journal entry of forfeiture

ordered by the trial court in appellant’s criminal case, dated December 5,

2008.    In relevant part, the order stated it was entered “pursuant to the

voluntary forfeiture of [seized] contraband by [appellant], the person from

whom the contraband was seized. Said property being * * * ($7,984.33)

contained in JPMorgan Bank acct#661695106, * * * ($10,501.31) contained in

JPMorgan Bank acct#648246636 * * * .

        {¶ 9} “The proceeds of * * * all forfeited monies shall be applied

pursuant to division (D) of Ohio Revised Code Section 2933.43 with twenty

percent (20%)

        {¶ 10} * * distributed to the Cuyahoga County Prosecuting Attorney

Law Enforcement Trust Fund, and eighty percent (80%) distributed to the

City of CLEVELAND Law Enforcement Trust Fund.”

        {¶ 11} Chase also included copies of the “docket information” posted by

the court in appellant’s sisters’ consolidated cases. These showed Chase had

deposited the funds contained in appellant’s two accounts with the court, the

claims against Chase had been dismissed in February 2010, all the claims
                                       6

had been resolved by March 2010, and the court ordered the funds distributed

to Cuyahoga County and to Cleveland on March 18, 2010.

      {¶ 12} Chase also presented a copy of appellant’s “Answer and Cross

Complaint” he filed in his sister Laura’s case. Therein, appellant raised the

same issues as those he presented in the instant case; the docket entries of

Laura’s case reflect the trial court ordered appellant’s pleading stricken for

failure to follow the Ohio Rules of Civil Procedure.

      {¶ 13} On June 7, 2010, the trial court noted Chase’s filing of its motion

and ordered appellant to file a brief in opposition by June 14, 2010.3

      {¶ 14} The record reflects appellant failed to respond to Chase’s motion.

On June 23, 2010, the trial court issued an order that granted Chase’s

“unopposed” motion on the basis that appellant’s claims against Chase were

barred by the doctrine of res judicata.

      {¶ 15} On July 1, 2010, Cleveland filed a motion to dismiss appellant’s

complaint against it.    Cleveland argued that it was entitled to statutory

immunity and that appellant’s claims were barred by the doctrine of res

judicata.




      3The  seven-day time limitation for filing opposition briefs is prescribed by
Loc.R. 11(C).
                                       7

      {¶ 16} Like Chase’s previous motion, Cleveland’s motion was supported

by exhibits. In relevant part, Cleveland attached copies of the complaints

appellant’s sisters had filed in their subsequently consolidated cases.

Appellant’s sisters named as defendants Chase, Cleveland, the county, and

appellant.   Cleveland also attached certified copies of the journal entries

disposing of all the claims in the two cases.

      {¶ 17} On July 14, 2010, the trial court issued an order that stated

Cleveland’s motion to dismiss appellant’s complaint was “unopposed and

granted.”    Appellant filed a brief in opposition to Cleveland’s motion the

following day. He attached his affidavit. In essence, appellant claimed that

his bank accounts were unrelated to his drug conviction; rather, they “were

attached to [his] legal [clothing] business.”

      {¶ 18} On August 2, 2010, appellant filed a motion he entitled as one

“for relief after judgment,” asking the trial court to reverse its dismissal of his

claims against Cleveland. He asserted his opposition brief had been timely.

The trial court disagreed, denying appellant’s motion on August 8, 2010.

      {¶ 19} On August 9, 2010, the county filed a motion to dismiss

appellant’s complaint.      The county presented the same arguments as

Cleveland had, relying on the evidence already contained in the record.
                                       8

      {¶ 20} Appellant filed a timely opposition brief, but argued the county’s

motion should be denied because “genuine issues of material fact” existed.

Although he reminded the trial court that evidentiary materials could not be

considered in ruling on a motion to dismiss, he nevertheless attached an

affidavit to his brief.

      {¶ 21} On August 18, 2010, the trial court granted the county’s motion.

Appellant filed his appeal from this final order.           He presents three

assignments of error, stated in his appellate brief as follows:4

      {¶ 22} “I.     The trial court erred in not granting Appellant’s

motion for return of property.

      {¶ 23} “II.    The trial court erred in its rush to judgment in

granting Defendant-Appellee the City of Cleveland’s motion to

dismiss without allowing Appellant to file a reply and denying

Appellant’s motion for relief after judgment under Civil Rule 60(B).

      {¶ 24} “III.    The court erred in granting Defendant-Appellee

Chase’s motion to dismiss where he [sic] raised a claim separate a

[sic] distinctive from claims raised by his family members in their

civil complaints.         Appellant’s claim against Chase is not barred by

the doctrine of res judicata.”


      4See   Fn.1.
                                       9

      {¶ 25} In his first assignment of error, appellant apparently argues5 the

trial court should have considered his claim for “conversion and replevin” on

its merits, because the trial court in his original criminal case lacked

statutory authority to issue an order of forfeiture.

      {¶ 26} This court, however, cannot consider this argument, because it is

barred by the doctrine of res judicata. Appellant never appealed from his

conviction. Since he could have raised this argument in a direct appeal, he is

precluded from raising it herein. Cline v. Urbana Police Div., Champaign

App. No. 09-CA-45, 2010-Ohio-5384, citing, inter alia, Phillips v. Haines (Oct.

26, 1994), Montgomery App. No. 14127, and Wagner v. Euclid (Oct. 26, 1978),

Cuyahoga App. No. 37817. Consequently, his first assignment of error is

overruled.

      {¶ 27} Appellant next seems to argue the trial court abused its

discretion in denying his motion “for relief from judgment.”       This court

disagrees.

      {¶ 28} Since appellant has been proceeding pro se, he apparently is

unaware that Civ.R. 60(B) has no application to a case in which claims

remain pending.      Thus, appellant’s motion actually was a motion for

reconsideration.      Yeckley   v.   Yeckley,   Cuyahoga   App.   No.   94358,


      5See   Fn.2.
                                        10

2010-Ohio-4252, citing Lee v. Joseph Horne Co. (1995), 99 Ohio App.3d 319,

323, 650 N.E.2d 530.

        {¶ 29} Requests for reconsideration of interlocutory orders in the trial

court “may be entertained at the discretion of the court.”          LaBarbera v.

Batsch (1962), 117 Ohio App. 273, 276, 182 N.E.2d 632; see, also, Cleveland v.

W.E. Davis Co.

        {¶ 30} (July 18, 1996), Cuyahoga App. No. 69915.    It follows that a trial

court’s determination of a motion for such reconsideration will not be

disturbed on appeal absent an abuse of discretion. Vanest v. Pillsbury Co.

(1997), 124 Ohio App.3d 525, 535, 706 N.E.2d 825; Picciuto v. Lucas Cty. Bd.

Commrs. (1990), 69 Ohio App.3d 789, 796, 591 N.E.2d 1287.

        {¶ 31} An abuse of discretion exists only where it is clear from the record

that the court acted in a manner that was unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87,

482 N.E.2d 1248. Since the trial court correctly determined appellant’s claim

against Cleveland was barred, no abuse of discretion occurred.           See, e.g.,

Price v. Austintown Local School Dist. Bd. of Edn., 178 Ohio App.3d 256,

2008-Ohio-6254, 899 N.E.2d 975, Church v. Cleveland (Feb. 9, 2011) N.D.

Ohio,    No.   1:10-CV-1399.       Appellant’s   second   assignment    of   error,

accordingly, also is overruled.
                                     11

     {¶ 32} In his third assignment of error, appellant apparently argues that

his claim against Chase was improperly dismissed.          However, even if

appellant’s claims were not barred by the doctrine of res judicata, appellant

never challenged the trial court’s ruling in Chase’s favor during the

proceedings below.    He, therefore, is precluded from raising this issue on

appeal.   State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78,

1997-Ohio-71, 679 N.E.2d 706; First Fed. Sav. & Loan Assn. of Akron v.

Cheton & Rabe (1989), 57 Ohio App.3d 137, 567 N.E.2d 298, paragraph four

of the syllabus.   Appellant’s third assignment of error, accordingly also is

overruled.

     {¶ 33} The trial court orders are affirmed.

     It is ordered that appellees recover from appellant 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.



________________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., CONCURS;
                             12

COLLEEN CONWAY COONEY, J.,
CONCURS IN JUDGMENT ONLY
