[Cite as Ledyard v. Plymouth Park Tax Serv., L.L.C., 2012-Ohio-3817.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97807


                          EDWARD LEDYARD, ET AL.

                                                          PLAINTIFFS-APPELLANTS

                                                    vs.

              PLYMOUTH PARK TAX SERVICE, LLC
                                                          DEFENDANT-APPELLEE



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                     Case No. CV-739388

        BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                           August 23, 2012
ATTORNEY FOR APPELLANTS

George W. MacDonald
514 Glen Park Drive
Bay Village, Ohio 44140


ATTORNEY FOR APPELLEE

Dean W. Kanellis
Keith D. Weiner & Associates Co.
75 Public Square, 4th Floor
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Plaintiffs-appellants Edward and Earnestine Ledyard appeal from the

judgment of the trial court granting summary judgment in favor of Plymouth Park Tax

Service, LLC.    The appellants argue that genuine issues of material fact remain to be

litigated and, thus, the trial court erred in its grant of summary judgment. For the

following reasons, we affirm the decision of the trial court.

       {¶2} Plaintiffs-appellants were the owners of a home located at 1411

Yellowstone Road, Cleveland Heights, Ohio. Between the years of 1997 and 1999, the

appellants failed to make real property tax payments.    In response, on October 29, 1999,

as part of a negotiated sale held pursuant to R.C. 5721.33, the Cuyahoga County

Treasurer sold a tax certificate to GLS capital, which was assigned number

68302024-99.     The certificate identified the plaintiffs-appellants as the owners of the

parcel and covered missed property tax payments for the year 1997-1998 and had a

certificate redemption price of $13,019.14.      On October 16, 2002, the original tax

certificate was revised, and re-recorded as Instrument No. 200210171855 of the

Cuyahoga County Recorder’s records.         On October 13, 2000, the treasurer sold a

subsequent tax certificate to GLS, which was identified as No. 683002024-00; the

subsequent tax certificate listed the same parcel number and owner as the first.     This

second certificate covered missed property tax payments for 1999 and had a certificate
redemption price of $4,478.30.

       {¶3} On November 3, 2004, GLS transferred the two certificates to Plymouth

Park, which were then endorsed and re-filed with the County Recorder as Instrument

Nos. 200411161546 and 200411161547.

       {¶4} Despite          their   serious   delinquency    in    property   taxes,    the

plaintiffs-appellants continued to make no effort to pay the property taxes due on the

property. Accordingly, the treasurer sold Plymouth Park two more tax certificates: No.

200503040037, for the years of 2000-2003 and having a certificate redemption price of

$24,617.11, and No. 200610110670 for the years 2004-2005 and having a certificate

redemption price of $13,822.80.

       {¶5} On November 7, 2007, Plymouth Park filed a complaint for foreclosure in

the Cuyahoga County Court of Common Pleas, Case No. CV-641082 against the

plaintiffs-appellants. Plymouth Park’s claim for foreclosure was based on the four tax

certificates that it held.

       {¶6} After being served with the foreclosure complaint, Edward Ledyard

entered an appearance and filed an answer.           Earnestine Ledyard did not answer or

otherwise appear in the foreclosure case.      As a result, on April 15, 2008, Plymouth Park

filed a motion for default judgment against Earnestine Ledyard and a motion for

summary judgment against Edward Ledyard.              Following a hearing, the trial court

granted Plymouth Park’s dispositive motions and decreed foreclosure on the certificate
parcel on May 23, 2008.

       {¶7} As part of its decision, the court found that Plymouth Park was certificate

holder of four tax certificates, that the certificates’ redemption price was due and unpaid,

and that Plymouth Park was entitled to foreclosure of its lien interest.        Thereafter,

Plymouth Park ordered the sale of the property and after being offered for sale twice, the

property was forfeited back to Plymouth Park, who then became the fee simple owner

thereof.

       {¶8} On October 19, 2010, plaintiffs-appellants initiated the current action by

filing a complaint against Plymouth Park, alleging that Plymouth Park had not timely

paid for the four tax certificates that formed the basis of their 2008 foreclosure action.

Plymouth Park responded by filing a motion to dismiss, arguing that the

plaintiffs-appellants’ claims were barred by res judicata and even if they were not barred,

plaintiffs-appellants’ claims were meritless.   The trial court converted Plymouth Park’s

motion to dismiss to a motion for summary judgment and allowed the parties to conduct

discovery.

       {¶9} On September 30, 2011, Plymouth Park filed a supplemental memorandum

and affidavit in support of summary judgment. In the attached affidavit, Plymouth Park

offered the testimony of County Fiscal Officer Richard Sensenbrenner who stated that

payment for each of the four tax certificates was timely made on the date of purchase.

       {¶10}     In response, the plaintiffs-appellants filed a brief in opposition
challenging Mr. Sensenbrenner’s lack of personal knowledge about the four tax

certificates and renewed their argument that the certificates were not paid for at the time

Plymouth Park initiated foreclosure proceedings.          In support of this argument,

plaintiffs-appellants attached a Freedom of Information Act request for “copies of all

checks and verification of payment for the [four tax certificates].”                      The

plaintiffs-appellants also included the response from the County Fiscal Office showing

two checks dated December 2010 and January 2011.

       {¶11}   On December 8, 2011, the trial court granted Plymouth Park’s motion for

summary judgment, concluding that plaintiffs-appellants’ arguments were barred by the

doctrine of res judicata and that plaintiffs-appellants failed to state a claim upon which

relief can be granted.

       {¶12}   Plaintiffs-appellants appeal, raising the following assignment of error:

       The Court of Common Pleas erred in granting summary judgment to
       defendant-appellee when said defendant failed to present evidence that it
       had ever paid for tax certificates which were at issue between the parties,
       and which formed the basis for a prior foreclosure judgment which
       Plaintiffs-Appellants were seeking to have declared void, and in which the
       only evidence Appellee presented in support of its motion was an affidavit
       by a party with no direct knowledge, while not presenting actual proof of
       payment.
       {¶13} We agree with the trial court’s conclusion that the plaintiffs-appellants’

claim is barred by the doctrine of res judicata.

       The doctrine of res judicata encompasses the two related concepts of claim
       preclusion, also known as * * * estoppel by judgment, and issue
       preclusion, also known as collateral estoppel. Grava v. Parkman Twp.,
       73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226 (1995). Claim
       preclusion prevents subsequent actions, by the same parties or their privies,
       based upon any claim arising out of a transaction that was the subject
       matter of a previous action. Fort Frye Teachers Assn., OEA/NEA v. State
       Emp. Relations Bd., 81 Ohio St.3d 392, 395, 1998-Ohio-435, 692 N.E.2d
       140 (1998). Where a claim could have been litigated in the previous suit,
       claim preclusion also bars subsequent actions on that matter. Grava, 73
       Ohio St.3d at 382, 653 N.E.2d 226.

       Issue preclusion, on the other hand, serves to prevent relitigation of any
       fact or point that was determined by a court of competent jurisdiction in a
       previous action between the same parties or their privies. Fort Frye, 81
       Ohio St.3d at 395, 692 N.E.2d 140. Issue preclusion applies even if the
       causes of action differ. Id. O’Nesti v. DeBartolo Realty Corp., 113
       Ohio St.3d 59, 61, 2007-Ohio-1102, 862 N.E.2d 803. See, also, State ex
       rel. Davis v. Public Employees Ret. Bd., 174 Ohio App.3d 135,
       2007-Ohio-6594, 881 N.E.2d 294 (holding that “issue preclusion precludes
       relitigation of an issue that has been actually and necessarily litigated and
       determined in a prior action”).

       {¶14}    The trial court properly dismissed the instant case under the doctrine of

res judicata.   Specifically, the issue of whether Plymouth Park used valid tax certificates

as the basis for foreclosing on plaintiffs-appellants’ property has already been decided by

a court of competent jurisdiction and, thus, plaintiffs-appellants are precluded from

relitigating this issue. See, Plymouth Park Tax Servs. v. Ledyard, Cuyahoga C.P. No.

CV-07-641082 (May 23, 2008). Additionally, even if plaintiffs-appellants failed to

raise this exact argument during their foreclosure case, the doctrine of res judicata still

acts as a bar to this action. “It has long been the law of Ohio that an existing final

judgment or decree between the parties to litigation is conclusive as to all claims which

were or might have been litigated in a first lawsuit.”         Natl. Amusements, Inc. v.

Springdale, 53 Ohio St.3d 60, 558 N.E.2d 1178 (1990); Grava.           See also Rogers v.
Whitehall, 25 Ohio St.3d 67, 494 N.E.2d 1387 (1986), “the doctrine of res judicata

requires a plaintiff to present every ground for relief in the first action, or be forever

barred from asserting it.”

       {¶15}   The Ohio Supreme Court set forth a three-part test for applying issue

preclusion, also known as collateral estoppel, in Thompson v. Wing, 70 Ohio St.3d 176,

183, 1994-Ohio-358, 637 N.E.2d 917 (1994):

       Collateral estoppel applies when the fact or issue (1) was actually and
       directly litigated in the prior action, (2) was passed upon and determined
       by a court of competent jurisdiction, and (3) when the party against whom
       collateral estoppel is asserted was a party in privity with a party to the prior
       action.

       {¶16}   Additionally, this court has held that

       [t]he essential test in determining whether the doctrine of collateral
       estoppel is to be applied is whether the party against whom the prior
       judgment is being asserted had full representation and a “full and fair
       opportunity to litigate that issue in the first action.” Cashelmara Villas
       Ltd. Partnership v. DiBenedetto, 87 Ohio App.3d 809, 813, 623 N.E.2d
       213 (8th Dist.1993).

       {¶17}     Plaintiffs-appellants were the defendants in the foreclosure action filed

by appellee Plymouth Park in the Cuyahoga County Court of Common Pleas. The issue

of whether Plymouth Park’s tax certificates were valid constituted a defense in the prior

foreclosure action.   That issue was decided by the trial court in the foreclosure case that

found that Plymouth Park was entitled to enforce the tax certificates against the

plaintiffs-appellants. Accordingly, the judgment was final and appealable, involved the

same parties, and the issues raised or that could have been raised in the judgment are
identical to the issues raised in this case. Thus, the doctrine of res judicata applies.

       {¶18}   Plaintiffs-appellants’ sole assignment of error is overruled.

       {¶19}   The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower 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.




EILEEN A. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR
