         [Cite as Pflanz v. Sinclair, 2018-Ohio-734.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



LEONARD F. PFLANZ,                                  :   APPEAL NO. C-170172
                                                        TRIAL NO. A-1601386
        Plaintiff-Appellant,                        :
                                                            O P I N I O N.
  vs.                                               :

KENNETH A. SINCLAIR,                                :

    Defendant-Appellee.                             :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 2, 2018


Timothy P. Nolan, for Plaintiff-Appellant,

Robbins, Kelly, Patterson & Tucker, Robert M. Ernst and Daniel J. Temming, for
Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}    Leonard F. Pflanz appeals from the trial court’s entry of summary

judgment for Kenneth A. Sinclair in Pflanz’s action for injunctive relief, declaratory

judgment, and damages related to an easement of ingress and egress that Pflanz

claimed over Sinclair’s real property. Because collateral estoppel bars Pflanz from

relitigating the issue of the easement after it was decided against him in a foreclosure

action, and Sinclair is entitled to judgment as a matter of law, we affirm.

                                Background Facts

       {¶2}    Pflanz owns real estate that abuts real estate owned by Sinclair (“the

Sinclair Property” or “the property”) in the Northside area of Cincinnati. Sinclair

purchased the property at a foreclosure sale in December 2011 “free and clear” of any

easement claimed by Pflanz, who, along with his wife, had been made parties to the

foreclosure action. Before the issuance of the order of foreclosure and sale, the

Pflanzes had unsuccessfully challenged the mortgagee Bank of Kentucky’s (“Bank”)

summary-judgment motion requesting that the property be sold to any purchaser

free of any easement claimed by the Pflanzes in part because the Bank was a bona

fide mortgagee.

       {¶3}    The magistrate’s decision on summary judgment provided that

       Judgment is hereby rendered in favor of Plaintiff The Bank of

       Kentucky, Inc. and against Defendant Davis Family Properties, LLC,

       and Amanda Davis, jointly and severally on the Note * * *. Defendants

       Leonard F. Pflanz and Della M. Pflanz possess no easement of any kind

       in or over the Property, and the purchaser at any sale shall take same

       free and clear of any such claimed easement.          If this decision is




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       adopted by the trial court, Plaintiff shall be permitted to file its

       praecipe for sale and proceed consistent with the laws of this state.

       {¶4}     The Pflanzes objected to the magistrate’s finding that the Bank had

gained the status of bona fide mortgagee. On October 12, 2011, the foreclosure court

overruled the Pflanzes’ objection and adopted the magistrate’s decision granting

summary judgment to the Bank. The Pflanzes filed a notice of appeal from this

decision but later dismissed the appeal.

       {¶5}     On October 28, 2011, consistent with its adoption of the magistrate’s

decision, the foreclosure court journalized the order of foreclosure that also ordered

the sale of the property. In relevant part, this order stated

       IT IS THEREFORE ORDERED, AJUDGED AND DECREED that

       unless the sums hereinabove found due, together with the costs of this

       action, be fully paid within three (3) days from the date of the entry of

       this decree, the equity of redemption, dower and any lease interest of

       all Defendants, in and to said premises, shall be forever barred and

       foreclosed, and said premises sold; free and clear of the interests

       of all parties herein[;] * * *.

(Emphasis added.) The order did not except the Pflanzes’ claimed easement from

this mandate.

       {¶6}     After Sinclair purchased the property, the foreclosure court

journalized an entry confirming the sale. That January 27, 2012 order indicated,

consistent with the order of foreclosure, that Sinclair had purchased the property

free of any easement claimed by the Pflanzes. The Pflanzes moved for partial relief

from the order under Civ.R. 60(A) due to an “an apparent oversight.” They asserted

in part that their claimed interest in the property remained unresolved because the



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Bank did not purchase the property. Sinclair, who was not a party, was not served

with the motion. Ultimately, the foreclosure court amended the confirmation order

two times, and both amendments reflected the changes requested by the Pflanzes in

their Civ.R. 60(A) motion.

        {¶7}     After the foreclosure court issued the first amended order, the

Pflanzes withdrew their Civ.R. 60(A) motion and dismissed an appeal they had taken

from the decision issued by the foreclosure court in the first phase of the foreclosure

action granting summary judgment for the Bank.

                                          This Action

        {¶8}     In March 2016, Pflanz filed this lawsuit against Sinclair, asserting that

he had an express easement, an implied easement by prescription, or an implied

easement by necessity over Sinclair’s property, and that Sinclair was blocking his

access over it. Pflanz later abandoned the implied-easement claims, and they are not

the subject of this appeal.1

        {¶9}     Sinclair moved for summary judgment, arguing that the doctrine of

collateral estoppel prevented Pflanz from asserting the claimed easement in this

case.    Specifically, he argued issue preclusion applied because the order of

foreclosure provided that the property he purchased was to be sold “free and clear of

the interests of all parties to th[e] action,” including Pflanz’s interest asserted in this

case. Further, he took the position that the court presiding over the foreclosure

action lacked authority to retroactively affect the rights and interests set forth in the

foreclosure order during the sale confirmation process. To hold otherwise, Sinclair

contended, would “seriously jeopardize the Court’s ability to sell property free and



1 Pflanz additionally named as a defendant the city of Cincinnati, but the city successfully moved
for dismissal.


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clear of the parties’ interests.” Sinclair’s motion was supported by the relevant

documents, including those from the foreclosure action.

       {¶10}   In opposing summary judgment, Pflanz argued that the foreclosure

court’s second amended entry confirming the sale and stating the issue of his

claimed easement was “unresolved” was the last and final statement on the issue of

the easement in the foreclosure litigation and that Sinclair was bound by it under the

doctrine of lis pendens.    He characterized Sinclair’s argument as an improper

collateral attack on that confirmation order. Pflanz also presented an affidavit of a

real estate lawyer, Robert Hines, who opined that a buyer of the Sinclair Property

should have had constructive notice of the claimed easement. The trial court

ultimately granted summary judgment for Sinclair on all pending claims, indicating

that “there is no easement across the property.”

                                         Analysis

       {¶11}   In one assignment of error, Pflanz claims the trial court erred by

granting summary judgment for Sinclair. Pflanz argues that collateral estoppel does

not apply in this case, and that genuine issues of material fact remain in dispute with

respect to the existence of the easement and whether it was enforceable against

Sinclair as purchaser of the property.

       {¶12}   We review the grant of summary judgment de novo, applying the

standards set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-

4559, 833 N.E.2d 712, ¶ 8. Because we conclude that collateral estoppel did apply,

and Pflanz was bound by the determination that he has no easement across Sinclair’s

property, we affirm the trial court’s judgment.

       {¶13}   The doctrine of collateral estoppel, or issue preclusion, “preclu[des] []

the relitigation in a second action of an issue * * * that ha[s] been actually and



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necessarily litigated and determined in a prior action.” Goodson v. McDonough

Power Equip., Inc., 2 Ohio St.3d 193, 195, 443 N.E.2d 978 (1983). Generally, this

court has applied collateral estoppel when “(1) the party against whom estoppel is

sought was a party or in privity with a party to the prior action; (2) there was a final

judgment on the merits in the previous action after a full and fair opportunity to

litigate the issue; (3) the issue was admitted or actually tried and decided and was

necessary to the final judgment; and (4) the issue was identical to the issue involved

in the new action.” Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio

App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 14 (1st Dist.), citing Monahan v.

Eagle Picher Industries, Inc., 21 Ohio App.3d 179, 180, 486 N.E.2d 1165 (1st

Dist.1984); Keck v. Masters, 1st Dist. Hamilton No. C-940967, 1996 WL 741975, *2

(Dec. 31, 1996). Here, Sinclair is seeking to use collateral estoppel defensively.

       {¶14}   Pflanz concedes his easement of ingress and egress over the property

was litigated in the foreclosure action. He claims, however, that the foreclosure

action did not determine the easement with respect to Sinclair, a third-party

purchaser, as demonstrated by the amended order confirming the sale, which

provides that “because the Plaintiff [Bank] did not acquire the property at the

Sheriff’s sale, the enforceability of the easement claimed by Party Defendants

Leonard F. Pflanz and Della M. Pflanz remains undecided.”

       {¶15}   Pflanz contends it was within the foreclosure court’s discretion under

Civ.R. 60 to amend the original confirmation order to reflect that the summary

judgment for the Bank in the first phase of the foreclosure action was not intended to

apply to third-party purchasers. He maintains that Sinclair’s collateral-estoppel

argument amounts to an impermissible collateral attack on the amended




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                       OHIO FIRST DISTRICT COURT OF APPEALS



confirmation order, which Pflanz characterizes as the “final” order governing the

easement issue. For the reasons that follow, we disagree with Pflanz.

          {¶16}   A foreclosure action is unique in that it involves two distinct phases

that give rise to separate appealable judgments—the order of foreclosure and the

order confirming the sale. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299,

2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. The foreclosure order, which determines the

property interests of the parties before the bank’s foreclosure sale, cannot be

indirectly attacked in the ancillary proceedings confirming the sale. See id. at ¶ 39-

40; Fed. Natl. Mtge. Assn. v. Day, 158 Ohio App.3d 349, 2004-Ohio-4514, 815

N.E.2d 730, ¶ 15 (2d Dist.) (holding that “the proper time to challenge the existence

and extent of a mortgage lien is during the foreclosure action.” The foreclosure order

is subject to appeal or a Civ.R. 60(B) motion, but it cannot be collaterally attacked by

objecting to the confirmation order.). In other words, a confirmation order cannot

revive a claimed interest that did not survive the foreclosure.

          {¶17}   Although foreclosure actions typically involve only lienholders, the

Bank foreclosing on the Sinclair Property named the Pflanzes as defendants because

it wanted to purchase or convey the property at the foreclosure sale free of any

interest owned by the Pflanzes. The foreclosure court determined that the Bank

could do so notwithstanding the Pflanzes’ challenge, and on October 28, 2011,

ordered the sale of the property free of any interest of the Pflanzes. That final

judgment was not set aside or reversed on appeal, and we cannot revisit the merits of

it now.

          {¶18}   Moreover, the foreclosure court’s initial confirmation order of

January 27, 2012, was a final judgment and mirrored the foreclosure order with

respect to the interests extinguished. That confirmation order was later amended by



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                     OHIO FIRST DISTRICT COURT OF APPEALS



the trial court to revive the Pflanzes’ interest in the property with respect to a third-

party purchaser, namely Sinclair.

       {¶19}   Civ.R. 60(A) provides the trial court with authority to correct clerical

mistakes in its judgment at any time, but that rule could not authorize the

foreclosure court to substantively modify a previously issued final judgment. See

Nemcic v. Phelps, 2014-Ohio-3952, 19 N.E.3d 554, ¶ 17 (2d Dist.).          Civ.R. 60(B)

allows the court to make a substantive modification to a final judgment, but the

requirements of that rule were not met to authorize the challenged amendment.

Thus, the foreclosure court’s substantive modification of the January 27, 2012

confirmation order undertaken without jurisdiction was a nullity. An order issued

without jurisdiction is subject to a collateral attack. See Ohio Pyro, Inc. v. Ohio Dept.

of Commerce, Div. of State Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024, 875

N.E.2d 550, ¶ 23.    Because of this, Sinclair could collaterally attack the amended

confirmation order in this case.

       {¶20}   In sum, all of the elements of collateral estoppel have been met.

Pflanz’s claimed easement over the Sinclair Property was actually and finally litigated

against Pflanz in the foreclosure action involving the property, and the resolution of

this issue was essential to the judgment that set forth the property interests that

would survive the foreclosure and sale. Pflanz had a fair opportunity to litigate the

easement, and the foreclosure order was clear and unambiguous. This clarity is

reflected in the sheriff’s deed, issued on February 27, 2012, and recorded two months

later, conveying to Sinclair “all the right, title, and interest of * * * Leonard F.

Pf[l]anz and Della M. Pf[l]anz.” Pflanz never moved to set aside the judicial sale to

Sinclair, and the sale was in fact confirmed.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}   And there is a sound policy reason to apply issue preclusion here.

Observing the finality of the foreclosure order increases the security of land

transactions. Under these facts, there is no good reason to allow Pflanz to relitigate

this issue.

                                     Conclusion

       {¶22}   The issue of Pflanz’s claimed easement in the Sinclair Property was

actually litigated and resolved against Pflanz in the foreclosure action involving the

property. His cause of action in this case against Sinclair involves the same easement

and is barred by collateral estoppel. Accordingly, we overrule Pflanz’s assignment of

error and affirm the trial court’s judgment.

                                                                 Judgment affirmed.




M OCK , P.J, and M ILLER , J., concur.


Please note:
       The court has recorded its own entry this date.




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