[Cite as Ritchey v. JP Morgan Chase Bank, 2017-Ohio-8529.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                      LAKE COUNTY, OHIO


WILLIAM R. RITCHEY, et al.,                           :      OPINION

                 Plaintiffs-Appellants,               :
                                                             CASE NO. 2016-L-130
        - vs -                                        :

JP MORGAN CHASE BANK,                                 :
AS TRUSTEE ON BEHALF OF
FIRST FRANKLIN MORTGAGE                               :
LOAN TRUST 2004-FF10 ASSET-
BACKED CERTIFICATES SERIES                            :
2004-FF10,
                                                     :
                 Defendant-Appellee.


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2016 CV
000228.

Judgment: Affirmed.


A. Clifford Thornton, Jr., PDC Building, 3659 Green Road, Suite #305, Beachwood, OH
44122 (For Plaintiffs-Appellants).

Laura C. Infante and Jason A. Whitacre, Clunk, Paisley, Hoose Co., LPA, 4500
Courthouse Boulevard, Suite 400, Stow, OH 44224 (For Defendant-Appellee).



THOMAS R. WRIGHT, J.



        {¶1}     Appellants, William and Saundra Ritchey, appeal the trial court’s decision

granting appellee, JP Morgan Chase Bank as Trustee on behalf of First Franklin
Mortgage Loan Trust 2004-FF10 Asset-Backed Certificates Series 2004-FF 10,

summary judgment. We affirm.

       {¶2}   In February 2016, the Ritcheys filed their pro se complaint against

appellee seeking damages for breach of contract and unjust enrichment. They also

requested declaratory judgment as to their right to rescind and their general rights and

responsibilities under their mortgage and note executed on August 13, 2004 regarding

the property known as 9885 Weathersfield Drive, in Mentor, Ohio.

       {¶3}   Appellee initially moved to dismiss the complaint pursuant to Civ.R.

12(B)(6), which the trial court denied. Thereafter, appellee sought discovery that the

Ritcheys failed to provide, and as a result, ordered as sanctions that the Ritcheys were

precluded “from using any evidence, documentation or information that was not

provided to [appellee] as part of its discovery * * *.”

       {¶4}   In October 2016, appellee filed its motion for summary judgment, and the

Ritcheys did not respond. In its motion, appellee argues the Ritcheys’ claims are barred

via res judicata because they already fully litigated these issues in a prior lawsuit. The

trial court granted appellee summary judgment and journalized its decision November

10, 2016 at 1:05 p.m. Two minutes later, at 1:07 p.m. on November 10, 2016, the

Ritcheys filed their notice of voluntary dismissal pursuant to Civ.R. 41(A).

       {¶5}   The Ritcheys raise two assigned errors:

       {¶6}   “The trial court erred to the prejudice of the Appellants by granting the

Appellee’s motion for summary judgment when the Appellants had previously filed a

voluntary dismissal without prejudice pursuant to 41(A) of the Ohio Rules of Civil

Procedure. (T.d. 25, 26).




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       {¶7}   “Reviewing Appellee’s motion for summary judgment de novo, the record

is clear and convincing that the trial court erred to the prejudice of the Appellants by

granting the Appellee’s Motion for Summary Judgment as the Appellants were entitled

to a full rescission of the alleged note and mortgage through a declaratory judgment.”

       {¶8}   The Ritcheys first argue that the trial court was precluded from entering

summary judgment in light of their right to voluntarily dismiss under Civ.R. 41(A). We

disagree.

       {¶9}   Civ.R. 41(A) states:

       {¶10} “(1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E),

Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims

asserted by that plaintiff against a defendant by doing either of the following:

       {¶11} “(a) filing a notice of dismissal at any time before the commencement of

trial unless a counterclaim which cannot remain pending for independent adjudication

by the court has been served by that defendant[.]”

       {¶12} As the Ritcheys contend, “[t]he filing of a voluntary dismissal divests the

trial court of jurisdiction over the complaint.” Howard v. SunStar Acceptance Corp., 10th

Dist. Franklin No. 00AP-70, 2001 WL 481936, *4; Goble v. Univ. Hosp. of Cleveland,

119 Ohio App.3d 555, 557, 695 N.E.2d 1171 (8th Dist.1997). The effect of filing a

notice of voluntary dismissal by a plaintiff is as if the suit was never been filed against

the dismissed parties. McKay v. Promex Midwest Corp., 2d Dist. Montgomery No.

20112, 2004-Ohio-3576, ¶25, citing Denham v. New Carlisle, 86 Ohio St.3d 594, 597,

716 N.E.2d 184. However, once the trial court issues a final decision adjudicating the

merits on all claims and its decision is journalized, a parties’ subsequent notice of




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dismissal under Civ.R. 41(A) is a nullity. See generally Conley v. Jenkins, 77 Ohio

App.3d 511, 516-518, 602 N.E.2d 1187 (4th Dist.1991).

       {¶13} In Conley, the plaintiff filed his notice of voluntary dismissal four days after

the trial court advised the parties of its intent to rule in the defendants’ favor and grant

their motions to dismiss, but before the court actually journalized its judgment

memorializing its decision. Id. at 514-515. A few months later, the trial court journalized

its decision granting the defendants’ motions to dismiss. Conley argued, and the Fourth

District Court of Appeals agreed, that the trial court lacked jurisdiction to issue the

judgment granting the motions to dismiss because Conley had already dismissed his

suit via Civ.R. 41(A)(1)(a).   Id. at 517.    Conley’s voluntary dismissal of his action

“dissolve[d] all orders rendered by the trial court during the pendency of the action.” Id.

at 518.

       {¶14} As in Conley, the same situation arose in Howard v. SunStar Acceptance

Corp., 10th Dist. Franklin No. 00AP-70, 2001 WL 481936, *4, where the plaintiffs filed

their notice of voluntary dismissal before the trial court journalized its decision granting

defendant summary judgment. SunStar argued on appeal that the plaintiffs should be

barred from using the civil rules to thwart the efficient use of judicial resources.

However, the Tenth District disagreed and emphasized that a party’s right to voluntarily

dismiss is the plaintiff’s right regardless of motive or inconvenience to the court or other

parties if the notice is made before trial commences or where a counterclaim is pending

that cannot be independently adjudicated. Id.

       {¶15} Here, however, the court journalized its decision awarding appellee

summary judgment on all claims before the Ritcheys’ notice of voluntary dismissal was




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filed. Thus, unlike Conley and SunStar, the Ritcheys’ voluntary dismissal was too late

and thus, had no effect. Implicit in the rule permitting a plaintiff to voluntarily dismiss his

or her claims is the requirement that the claims are pending. Civ.R. 41(A).

       {¶16} Because the Ritcheys’ claims were fully adjudicated by the trial court’s

journalized, final decision granting appellee summary judgment on all claims, the

Ritcheys no longer had the right to voluntarily dismiss their complaint under Civ.R.

41(A). R.C. 2505.02(B)(1); Civ.R. 56; Wisintainer v. Elcen Power Strut Co., 67 Ohio

St.3d 352, 355, 617 N.E.2d 1136 (1993). Accordingly, their first assigned error lacks

merit and is overruled.

       {¶17} The Ritcheys’ second assigned error asserts summary judgment was

improperly granted based on res judicata because unlike the prior lawsuit adjudicating

the foreclosure against them, this suit sets forth their claims against appellee for its

violations of state and federal law during the foreclosure process and after foreclosure.

The Ritcheys now aver that they asserted claims based on appellee’s misconduct in the

prior proceedings and for the duration of the foreclosure, and as such, this case does

not involve legal issues that could have been previously adjudicated and that

consequently, are barred by res judicata.

       {¶18} We review a trial court’s decision awarding summary judgment de novo

and independently review the evidence without deference to the trial court’s decision.

Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th

Dist.1993); McKay v. Cutlip, 80 Ohio App.3d 487, 491, 609 N.E.2d 1272 (9th Dist.1992).

       {¶19} “In order to obtain summary judgment, the movant must show that (1)

there is no genuine issue of material fact; (2) the moving party is entitled to judgment as




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a matter of law; and (3) it appears from the evidence that reasonable minds can come

to but one conclusion when viewing evidence in favor of the nonmoving party, and that

conclusion is adverse to the nonmoving party. State ex rel. Cassels v. Dayton City

School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150, 152.” Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241 (1996).

       {¶20} Pursuant to Civ.R. 56(C), the moving party must direct the trial court to

some affirmative evidence demonstrating that no genuine issue of material fact exists

concerning the essential elements of the opponent's case. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264 (1996). The motion for summary judgment must

be denied if the moving party does not satisfy its initial burden. Id. However, if the

moving party satisfies its initial burden, the nonmoving party has a reciprocal burden

pursuant to Civ.R. 56(E), which states:

       {¶21} “‘When a motion for summary judgment is made and supported as

provided in this rule, an adverse party may not rest upon the mere allegations or denials

of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial. If he does not so

respond, summary judgment, if appropriate, shall be entered against him.’ (Emphasis

added.)” Id.

       {¶22} The Ritcheys argue that the prior judicial proceedings between them and

appellees only adjudicated the liability of the Ritcheys regarding the mortgage and note,

and that it did not involve the issues herein, i.e., the liability of appellee based on its

federal and Ohio law violations as well as appellee’s pre- and post-foreclosure failures.




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The Ritcheys now allege that they sought to recover based on appellee’s misconduct in

prosecuting the foreclosure litigation.

       {¶23} However, the arguments they claim to have asserted do not match the

allegations in their complaint. Our de novo review is limited to the merits of the claims

actually raised in the Ritcheys’ complaint, and we are precluded from addressing

additional causes of action not alleged in their complaint. Civ.R. 56(A); App.R. 9(A)(1).

       {¶24} The Ritcheys’ complaint asserts three causes of action.           They seek

declaratory judgment and allege claims for breach of contract and unjust enrichment.

They allege appellee’s security interest in their property is a nullity and that appellee

never obtained an interest in their property, and as such, appellee had no right to

foreclose.    The Ritcheys’ complaint also claims that appellee breached these

agreements, not them.

       {¶25} Appellee moved for summary judgment asserting that the Ritcheys’ claims

are barred by res judicata because identical issues between the parties were litigated in

the Lake County Court of Common Pleas, case number 06CF001121.                   Appellee

attached a certified copy the docket and judgment in that case under the self-

authentication rule in Evid.R. 902(4).

       {¶26} Copies of public records properly certified as correct by the custodian

under Evid.R. 902(4) are admissible as evidence in support of a summary judgment

motion. Evid.R. 902(4); Civ.R. 56; Cent. Ohio Neurological Surgeons, Inc. v. Rose, 10th

Dist. Franklin No. 96APE11-1611, 1997 WL 566160, *3; Hubbard v. Defiance, 3d Dist.

Defiance Nos. 4-12-22, 4-12-23, 2013-Ohio-2144, ¶36.




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       {¶27} The referenced certified docket and judgment decree reflect that appellee,

JP Morgan Chase Bank as Trustee on Behalf of First Franklin Mortgage Loan Trust

2004-FF10 Asset Backed Certificates Series 2004-FF10, was granted summary

judgment against Sandra M. and William R. Ritchey. The court found that Sandra

executed the note regarding the property and that both Sandra and William Ritchey

executed the mortgage deed with an original principal amount of $241,300 dated

August 13, 2004. Appellee was found to have a superior lien on the subject property.

The trial court also ordered the property to be sold, a description of which is attached to

the certified judgment of foreclosure.      We subsequently affirmed the trial court’s

decision. JP Morgan Chase Bank v. Ritchey, 11th Dist. Lake No. 2006-L-247, 2007-

Ohio-4225.

       {¶28} The Ritcheys did not file a written opposition to appellee’s summary

judgment motion.

       {¶29} “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 (1995) syllabus. Res judicata bars not only actions

involving the same legal theory as actually litigated in the prior lawsuit, but also bars all

claims that could have been litigated in the first action. Id. at 382. “All existing claims

between opposing parties that arise out of the same transaction or occurrence must be

litigated in a single lawsuit pursuant to Civ.R. 13(A), no matter which party initiates the

action.” Rettig Enterprises, Inc. v. Koehler, 68 Ohio St.3d 274, 626 N.E.2d 99 (1994)

paragraph one of the syllabus.




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      {¶30} The note and mortgage attached to the Ritcheys’ 2016 complaint filed in

the instant case are the same as those in issue in the 2006 foreclosure. The note,

dated August 13, 2004, reflects an original principal amount of $241,000 and the same

property address and parcel number as in the 2006 foreclosure. Moreover, this suit

involves the same parties as the 2006 foreclosure.

      {¶31} Thus, regardless of whether the Ritcheys actually pursued the identical

claims raised in this lawsuit in the 2006 foreclosure against them, the fact that they

could have raised their breach of contract and unjust enrichment claims, which logically

arise out of the same agreement, in the prior litigation precludes the subsequent pursuit

of the same now. Id.

      {¶32} Here, the Ritcheys’ breach of contract and unjust enrichment claims

arising from the same note and mortgage could have been raised in the foreclosure

action against them since the two cases involve the same agreements and the same

parties. Thus, the trial court properly entered summary judgment in favor of appellee on

the Ritcheys’ breach and unjust enrichment claims.

      {¶33} Summary judgment was also proper on the Ritcheys’ request for

declaratory judgment. Declaratory judgment will only be rendered when a live and

actual controversy exists. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972

N.E.2d 586, ¶10; Reinbolt v. Natl. Fire Ins. Co. of Hartford, 158 Ohio App.3d 453, 2004-

Ohio-4845, 816 N.E.2d 1083, ¶13 (6th Dist.), quoting Indiana Ins. Co. v. M.D.O. Homes,

Inc., 11th Dist. Lake No. 2000-L-167, 2001 WL 1561063 (Dec. 7, 2001). Because the

parties’ rights under the note and mortgage have already been adjudicated, no actual

controversy exists warranting declaratory judgment here.




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       {¶34} Thus, the Ritcheys’ second assigned error lacks merit, and the trial court’s

decision is affirmed.



CYNTHIA WESTCOTT RICE, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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