[Cite as Am. Tax Funding, L.L.C. v. Whitlow, 2012-Ohio-3839.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

AMERICAN TAX FUNDING, LLC                      :
                                               :
        Plaintiff-Appellee                     :     Appellate Case No. CA 24599
                                               :
v.                                             :     Trial Court Case No. 2008-CV-4447
                                               :
CLARA D. WHITLOW                               :     (Civil Appeal from Montgomery County
                                               :     Court of Common Pleas)
        Defendant-Appellant                    :
                                               :
                                            ...........

                                            OPINION

                             Rendered on the 24th day of August, 2012.

                                            ...........

DAVID S. ANTHONY, 55 Public Square, Suite 1800, Cleveland, Ohio 44113
     Plaintiff-Appellee

CLARA D. WHITLOW, 102 Lorenz Avenue, Dayton, Ohio 45417
     Defendant-Appellant, pro se

                                            ...........

FRENCH, J.

        {¶ 1}      Defendant-Appellant, Clara D. Whitlow (“Whitlow”), appeals the judgment

of the Montgomery County Court of Common Pleas, which granted an order of forfeiture filed

by Plaintiff-Appellee, American Tax Funding, LLC (“ATF”). For the following reasons, we
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affirm.

          {¶ 2}   In 2008, ATF filed a complaint for foreclosure. In it, ATF alleged that it

was the purchaser and current holder of tax certificates, by which it had acquired the first lien,

previously held by the State of Ohio, for the amount of delinquent taxes, assessments, interest,

and penalties charged against property owned by Whitlow. Among other relief, ATF asked

for a determination of the amounts due on the certificates plus interest, an order of sale

directing the sheriff to conduct a sale of the property with certain conditions, and an order

directing that proceeds from the sale be applied to satisfy the amounts owed to ATF

          {¶ 3}   ATF moved for default judgment against Whitlow for her failure to answer the

complaint, and the trial court signed a judgment of foreclosure. The court later vacated that

judgment, however, stating that Whitlow had filed an answer under the wrong case number.

          {¶ 4}   ATF subsequently moved for summary judgment. ATF contended that it

purchased the tax certificates at issue lawfully, and provided documentary evidence to show

the purchase, the amounts paid, and the interest and attorney fees owed. On December 16,

2008, the court signed a judgment of foreclosure, which determined the amounts owed to ATF

and ordered a sale of the property. That same day, Whitlow filed a letter that asked the trial

court to delay its judgment. The letter stated that the tax bills were sent to the wrong address,

and Whitlow had asked the county auditor to review her case.

          {¶ 5}   In January 2009, Whitlow filed a notice of appeal in this court. On appeal,

this court affirmed the trial court’s judgment. See American Tax Funding, LLC v. Whitlow,

2d Dist. Montgomery No. 23182, 2010-Ohio-3333.
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         {¶ 6}    In October 2010, ATF asked the clerk of the trial court to issue an order of

sale on the property. Thereafter, the property was offered for sale, but no bids were received,

and the property was not sold

         {¶ 7}        On March 17, 2011, ATF moved for forfeiture of the property to Secure

Advanced Funding Enterprise, 2009-I, LLC (“SAFE 2009“), to which ATF had assigned its

interest.   On March 21, 2011, ATF filed a proposed order of forfeiture; the trial court

electronically signed and filed the order of forfeiture that same day. Whitlow filed a notice of

appeal to which she attached, among other things, a copy of the trial court’s March 21, 2011

order.

         {¶ 8}        Whitlow’s first six assignments of error are as follows:

         [I] On December 16, 2008, the Trial Court erred, abused its discretion and

         committed reversible error when it granted Summary Judgment and Order of

         Forfeiture to [ATF], as there were genuine issues of material fact yet to be

         litigated.

         [II] On December 16, 2008, the Trial Court erred, abused its discretion and

         committed reversible error when it granted Summary Judgment to ATF,

         because ATF lacked legal standing to bring forth foreclosure action for * * * all

         of the tax years filed in their Complaint of Foreclosure.

[III] On December 16, 2008, the Trial Court erred when it granted Summary Judgment and

Order of Forfeiture to the Appellee and against [Whitlow], because the Appellee was not

entitled to Summary Judgment as a matter of law.
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       [IV] On December 16, 2008, the Trial Court erred when it granted Summary

       Judgment and Order of Forfeiture to the Appellee and against [Whitlow],

       because the Trial Court failed to consider the Answer provided by [Whitlow]

       dated August 28, 2008 (Answer), before Summary [Judgment] was granted to

       the Appellee.

       [V] On December 16, 2008, [t]he Trial Court erred when it granted Summary

       Judgment to the Appellee and against [Whitlow], because the Court denied

       [Whitlow’s] due process because the Appellee never responded to the contents

       of the Answer, as required by law.

       [VI] On October 22, 2008[,] the Trial Court [e]rred when it filed the Notice

       (Summary [Judgment]) To file [within] 14 days, because 48 hours prior, the

       trial Court by [its] own Motion, VACATED and held for naught [its] Final

       [Judgment] and Decree of Foreclosure and the Appellee did not supply or file

       any new documentation that would justify the Trial Court to allow the Appellee

       to move forward with the originally filed complaint of foreclosure after it had

       been VACATED by the Trial Court.

       {¶ 9}    By these six assignments of error, Whitlow contends that the trial court erred

when it issued its December 16, 2008 summary judgment and order of foreclosure in favor of

Appellee. The doctrine of res judicata precludes a party from relitigating issues already

decided by a court or raising matters that the party should have brought in a prior action.

State v. Harris, 2d Dist. Montgomery No. 24739, 2012-Ohio-1853, ¶ 14. Here, Whitlow

already appealed the December 16, 2008 judgment and raised multiple errors in that appeal.
                                                                                               5


This court affirmed the trial court’s judgment, and Whitlow may not relitigate those issues

now. Accordingly, we overrule Whitlow’s first six assignments of error.

       {¶ 10}    In her seventh assignment of error, Whitlow contends the following:

       On July 10, 2009[,] the Court erred when it denied [Whitlow] right of

       authentication of documents submitted with and attached to the Complaint of

       foreclosure filed on May 28, 2008.

       {¶ 11}    In this assignment, Whitlow takes issue with a portion of this court’s July

2010 decision in her prior appeal. Specifically, Whitlow contends that this court erred when

it concluded, at footnote 3, that the question of document authentication was not before the

court on appeal because Whitlow had not objected below. We note, again, however, that a

party may not relitigate claims that were litigated in a prior action. Id., citing Deaton v.

Burney, 107 Ohio App.3d 407, 669 N.E.2d 1 (2d Dist.1995). Accordingly, we overrule

Whitlow’s seventh assignment of error.

       {¶ 12} In her eighth assignment of error, Whitlow contends the following:

       On August 3, 2011[,] [Whitlow] filed a Motion to Stay the Possession

       Praecipe/Writ of Restitution and the court erred when it denied the Motion 6

       days later yet allowed the Appellee to proceed with the Possession

       Praecipe/Writ of Restitution on August 3, 2011.

       {¶ 13}    In this assignment, Whitlow contends that the trial court erred when it denied

her August 3, 2011 motion to stay a writ of restitution issued by the trial court. On July 26,

2011, this court denied a similar motion that Whitlow had filed in this court. In its decision,

this court advised Whitlow of the requirement, contained in App.R. 7(A), that an
                                                                                               6


“[a]pplication for a stay of the judgment or order of a trial court pending appeal * * * must

ordinarily be made in the first instance in the trial court.”         The online docket of the

Montgomery County Court of Common Pleas indicates that Whitlow filed requests for stay in

the trial court on July 26, 2011 and August 3, 2011. In orders filed on July 26, 2011 and

August 10, 2011, the trial court denied her requests

         {¶ 14} Whitlow did not appeal the July 26, 2011 or August 10, 2011 orders. Nor did

she move this court for a stay after those dates. In her brief, Whitlow states that Appellee

failed to give notice to the tenants living on the property, but she does not direct us to legal or

record support for her statement. Whitlow also argues that the trial court should not have

delayed its ruling by six days given the urgent nature of the request. We note, however, that

the trial court denied Whitlow’s first request for a stay on July 26, 2011, the same day

Whitlow filed it. And, in any event, it appears that this issue is now moot, as restitution of

the property has occurred. For all these reasons, we overrule Whitlow’s eighth assignment of

error.

         {¶ 15}     In conclusion, we overrule all eight of Whitlow’s assignments of error. We

affirm the judgment of the Montgomery County Court of Common Pleas.

                                                    .............

FAIN and FROELICH, JJ., concur.

(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio.)


Copies mailed to:

David S. Anthony
David Cliffe
                              7


Clara D. Whitlow
Hon. Mary Katherine Huffman
