[Cite as BAC Home Loans Servicing, L.P. v. Booth, 2012-Ohio-487.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, L.P.                           JUDGES:
FKA COUNTRYWIDE HOME LOANS                               Hon. W. Scott Gwin, P.J.
SERVICING, L.P.                                          Hon. William B. Hoffman, J.
                                                         Hon. John W. Wise, J.
        Plaintiff-Appellant
                                                         Case No. 2011CA00161
-vs-

CARL B. BOOTH, ET AL.                                    OPINION

        Defendant-Appellees



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Common
                                                     Pleas Court, Case No. 2010CV03436


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT ENTRY:                              February 6, 2012


APPEARANCES:


For Plaintiff-Appellant                              For Defendant-Appellees


ELIZABETH S. FULLER                                  DAVID L. DINGWELL
Designated as Primary Counsel                        Tzangas, Plakas, Mannos & Raies, LTD
Lerner, Sampson & Rothfuss                           220 Market Avenue South
120 East Fourth Street, 8th Floor                    Eighth floor
Cincinnati, Ohio 45202                               Canton, Ohio 44702
Stark County, Case No. 2011CA00161                                                     2

Hoffman, J.


       (¶1)   Plaintiff-appellant BAC Home Loans Servicing L.P., fka Countrywide

Home Loans Servicing L.P., appeals the June 22, 2011 Order entered by the Stark

County Court of Common Pleas in favor of Defendants-appellees Carl B. Booth and

Cynthia L. Booth.

                           STATEMENT OF FACTS AND THE CASE

       (¶2)   Appellees Carl and Cynthia Booth executed a promissory note in the

amount of $69,750.00 in favor of America’s Wholesale Lender to secure property at

9341 Oak Avenue S.E., East Sparta, Ohio. To secure the borrowed sum, Appellees

granted a first mortgage to Mortgage Electronic Registration Systems, Inc, as nominee

for America’s Wholesale Lender. The loan was later acquired by Appellant Countrywide

Home Loans Servicing, L.P., nka BAC Home Loans Servicing, L.P.

       (¶3)   Appellees defaulted on the mortgage, and Appellant accelerated the

amount due on the note. Appellant then filed a foreclosure action on September 20,

2010, and Appellees filed an answer on October 8, 2010. The trial court scheduled the

matter for mediation. Appellant failed to send a representative at the appointed time,

and did not make a representative available by phone as agreed upon. The trial court

then mandated a dispositive motion deadline of April 28, 2011, and scheduled a non-

jury trial for June 13, 2011. The assignment notice was sent via facsimile to Appellant’s

counsel.

       (¶4)   On June 13, 2011, Appellant’s counsel moved the trial court for a

continuance of the scheduled trial date, which the trial court denied.
Stark County, Case No. 2011CA00161                                                          3


       (¶5)   On June 13, 2011, Appellees' counsel moved the trial court to dismiss the

complaint with prejudice.

       (¶6)   On June 22, 2011, the trial court ordered dismissal of the complaint with

prejudice. The same day, June 22, 2011, Appellant filed a notice of dismissal with the

trial court voluntarily dismissing the case without prejudice. The trial court’s order of

dismissal is filed prior to Appellant’s notice of dismissal in the trial court docket.

       (¶7)   On July 21, 2011, Appellant moved the trial court to vacate the dismissal

with prejudice pursuant to Civil Rule 60(B).

       (¶8)   Prior to the trial court’s ruling on Appellant’s 60(B) motion, Appellant filed a

notice of appeal with this Court, assigning as error:

       (¶9)   “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT WITH PREJUDICE BECAUSE APPELLANT DID NOT RECEIVE

SUFFICIENT NOTICE OF THE TRIAL COURT’S INTENTION TO DISMISS THE CASE

WITH PREJUDICE.

       (¶10) “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT WITH PREJUDICE BECAUSE APPELLANT’S CONDUCT DID NOT

NECESSITATE SUCH A HARSH SANCTION.

       (¶11) “III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT WITH PREJUDICE BECAUSE APPELLANT WAS WITHIN ITS RIGHTS

TO VOLUNTARILY DISMISS ITS COMPLAINT WITHOUT PREJUDICE SINCE THE

JUNE 13, 2011 TRIAL NEVER COMMENCED.

       (¶12) “IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT WITH PREJUDICE BECAUSE THE DISMISSAL UNJUSTLY ENRICHED
Stark County, Case No. 2011CA00161                                                          4


APPELLEES WHO WERE PREVIOUSLY DISCHARGED OF THE UNDERLYING

DEBT IN A CHAPTER 7 BANKRUPTCY.”

                                          I, II, and III.

         (¶13) Appellant’s first, second and third assignments of error raise common and

interrelated issues; therefore we will address the arguments together.

         (¶14) The standard of review of an involuntary dismissal issued by the trial court

with prejudice is an abuse of discretion. Nelson v. Alpha Enterprises, Inc., 2003-Ohio-

5422. Civil Rule 41(B) states,

         (¶15) “(B) Involuntary dismissal: effect thereof

         (¶16) “(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply

with these rules or any court order, the court upon motion of a defendant or on its own

motion may, after notice to the plaintiff's counsel, dismiss an action or claim.

         (¶17) “(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the

court without a jury, has completed the presentation of the plaintiff's evidence, the

defendant, without waiving the right to offer evidence in the event the motion is not

granted, may move for a dismissal on the ground that upon the facts and the law the

plaintiff has shown no right to relief. The court as trier of fact may then determine them

and render judgment against the plaintiff or may decline to render any judgment until the

close of all the evidence. If the court renders judgment on the merits against the plaintiff,

the court shall make findings as provided in Civ. R. 52 if requested to do so by any

party.

         (¶18) “(3) Adjudication on the merits; exception. A dismissal under division (B) of

this rule and any dismissal not provided for in this rule, except as provided in division
Stark County, Case No. 2011CA00161                                                     5


(B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its

order for dismissal, otherwise specifies.”

       (¶19) Appellant argues the trial court did not afford them notice of the trial

court’s intent to dismiss the case with prejudice, and Appellant was unable to appear at

the scheduled trial on June 13, 2011.

       (¶20) Upon review of the record, the March 24, 2011 Report of Mediation

indicates the case should be returned to the docket due to the failure of Appellant to be

available at mediation either in person or by phone as previously agreed upon. Further,

Appellant moved the trial court for a continuance of the trial date asserting:

       (¶21) “Bank of America and BAC Home Loans Servicing, LP (together “BAC”)

has established a process to insure that reasonable efforts to avoid foreclosure

sale/judgment have been exhausted before proceeding to sale/judgment. These efforts

have not yet been completed in connection with this loan and plaintiff therefore requests

that the trial be postponed for 120 days to allow these efforts to conclude. Plaintiff

notes that the case is under the 1 year guideline as same was filed September of 2010.”

       (¶22) The June 13, 2011 transcript of the proceedings before the trial court

indicates the trial court called the matter for trial and Appellees were present in the

courtroom with counsel. The trial court reviewed the record and Appellees’ counsel

made a brief statement as to the proceedings to date and Appellant’s failure to

prosecute and act in good faith.      The trial court overruled Appellant’s motion for a

continuance, and dismissed Appellant’s complaint because counsel for Appellant failed

to appear for the scheduled trial.
Stark County, Case No. 2011CA00161                                                        6


       (¶23) Appellant received notice the case had been set for trial, effectively putting

them on notice if they failed to appear for trial, the case may be dismissed for lack of

prosecution. The record reflects Appellant had notice of the trial date, and throughout

the proceedings had failed to actively participate. We find the trial court did not abuse

its discretion in dismissing Appellant’s complaint with prejudice due to Appellant’s failure

to appear at the scheduled trial. We find failure to appear for a scheduled trial different

from case law addressing dismissals for want of prosecution for failing to abide by

interlocutory court orders or discovery related disputes.

       (¶24) Our review of the trial court docket indicates the trial court’s order of

dismissal was filed prior to Appellant’s notice of voluntary dismissal without prejudice in

the record.

       (¶25) The first, second and third assignments of error are overruled.

                                            IV.

       (¶26) Appellant’s fourth assignment of error asserts Appellees were unjustly

enriched by the trial court’s judgment as the underlying debt was previously discharged

in a Chapter 7 bankruptcy.

       (¶27) Appellant’s complaint states at Count I:

       (¶28) “Plaintiff further says that the defendants, Carl B. Booth and Cynthia L.

Booth, are immune from personal liability on said note by virtue of Bankruptcy Case No.

08-64367, United States Bankruptcy Court, Northern District of Ohio, Eastern Division.”

       (¶29) We find Appellant’s complaint does not set forth a claim for unjust

enrichment.
Stark County, Case No. 2011CA00161                                                        7


       (¶30) Upon review of the record, while the trial court’s dismissal of Appellant’s

complaint with prejudice may well appear to present a windfall for Appellees, Appellant’s

failure to appear at trial cannot be circumvented by now claiming unjust enrichment.

Appellant’s own actions lead to the trial court’s dismissal of the complaint with prejudice,

and Appellant was the architect of that outcome.

       (¶31) Appellant’s fourth assignment of error is overruled.

       (¶32) The June 22, 2011 Order of the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

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


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


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE
Stark County, Case No. 2011CA00161                                                 8


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


BAC HOME LOANS SERVICING, L.P.            :
FKA COUNTRYWIDE HOME LOANS                :
SERVICING, L.P.                           :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CARL B. BOOTH, ET AL.                     :
                                          :
       Defendant-Appellees                :         Case No. 2011CA00161


       For the reasons stated in our accompanying Opinion, the June 22, 2011 Order 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/ John W. Wise______________________
                                          HON. JOHN W. WISE
