[Cite as Davet v. Mikhli,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97291

RICHARD F. DAVET PLAINTIFF-APPELLANT

vs.

PAUL J. MIKHLI, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-724188

BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.

RELEASED AND JOURNALIZED: March 22, 2012 ATTORNEYS FOR APPELLANT

Marc Dann Grace Doberdruk Dann, Doberdruk & Wellen, LLC 20521 Chagrin Boulevard, Suite D Shaker Heights, Ohio 44122

ATTORNEYS FOR APPELLEES

Kerin L. Kaminski Rachael L. Israel Giffen & Kaminski, LLC 1300 East Ninth Street Cleveland, Ohio 44114 MARY EILEEN KILBANE, J.:

{¶1} Plaintiff-appellant, Richard F. Davet (“Davet”), appeals from the order of

the trial court that awarded summary judgment to defendants-appellees, Paul J. Mikhli and

Michal Mikhli (the “Mikhlis”). Because the trial court correctly determined that Davet’s

claim is barred by res judicata, we affirm.

{¶2} On March 1, 1996, NationsBanc Mortgage Corp. (“NationsBanc”) filed a

foreclosure action against Davet and Lynn Davet, in Case No. CV-96-304224, after they

defaulted upon the terms of their mortgage on property located at 24800 Community

Drive, in Beachwood, Ohio.

{¶3} Davet challenged the foreclosure proceedings over many years and filed

“numerous appeals of various decisions made in the state trial court. It appears that all of

the appeals were dismissed. Davet also appealed some of the dismissals to the Ohio

Supreme Court, which declined to hear the appeals.” See Davet v. Bank One Cleveland,

N.A., N.D.Ohio No. 1:06 CV 1875,

(Apr. 2, 2007).

{¶4} On July 13, 2005, the court granted a judgment of foreclosure against Davet

and in favor of NationsBanc in CV-96-304224. Thereafter, on November 11, 2005, the

property was sold at sheriff’s sale. Davet filed several appeals, which were later

dismissed as moot, and the court issued a decree confirming the sheriff’s sale on March 8,

2006. The Mikhlis subsequently purchased the property and hold title to it pursuant to a

limited warranty deed filed with the county on February 5, 2007. {¶5} On July 2, 2009, Davet filed an eviction action against the Mikhlis in the

Shaker Heights Municipal Court, alleging that the 2006 foreclosure decree was void ab

initio because NationsBanc lacked standing at the time the matter was first filed in 1996.

On March 2, 2010, the Shaker Heights Municipal Court determined that the matter had not

been filed within the applicable limitations period and dismissed it.

{¶6} On April 15, 2010, Davet filed the instant matter against the Mikhlis, claiming

that he had been wrongly evicted from 24800 Community Drive and again asserted that the

2006 foreclosure decree was void ab initio for lack of standing. Davet set forth claims

against the Mikhlis for civil trespass and ejectment, and he prayed for an order of

ejectment, damages, and attorney fees.

{¶7} The Mikhlis denied liability and asserted that they were bona fide purchasers

of the property. On October 15, 2010, the Mikhlis filed a motion for summary judgment

in which they argued that Davet’s claims were barred by res judicata and that Davet lacked

legal title to the premises. Davet also moved for summary judgment and asked the trial

court to vacate the foreclosure order issued in CV-96-304224. On August 11, 2011, the

trial court awarded summary judgment to the Mikhlis. Davet now appeals and assigns the

following error for our review:

The trial court erred by granting Appellee’s motion for summary judgment on the ejectment and trespass claim because the judgment of foreclosure was void ab initio so title never transferred to Appellees.

{¶8} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays,

,

(8th Dist. 2000). Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any material

fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter

of law, and (3) viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can reach only one conclusion, which is adverse to the nonmoving party.

Temple v. Wean United, Inc.,

,

(1977).

{¶9} Defendants argued that this matter was barred by res judicata. The doctrine of

res judicata involves both claim preclusion and issue preclusion. Grava v. Parkman Twp.,

,

,

.

{¶10} Under the claim preclusion aspect of res judicata, “[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.”

at

syllabus. Claim preclusion bars the relitigation of the same cause of action between the

same parties. Balboa Ins. Co. v. S.S.D. Distrib. Sys., Inc.,

,

(12th Dist. 1996), citing Grava; Johnson v. Cleveland City School Dist., 8th

Dist. No. 94214,

.

{¶11} Under issue preclusion or collateral estoppel, relitigation of an issue that has

been actually and necessarily litigated and determined in a prior action is precluded.

Krahn v. Kinney,

,

(1989); Balboa Ins. Co. To

successfully assert collateral estoppel, a party must establish: (1) the party against whom

estoppel is sought was a party or in privity with a party to the previous case; (2) there was a

final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be

necessary to the final judgment; and (4) the issue must have been identical to the issue

involved in the previous case.

{¶12} In this matter, the record demonstrates that in 2009, Davet filed eviction

proceedings against the Mikhlis in the Shaker Heights Municipal Court, asserting that the

2006 foreclosure action was void ab initio. Thereafter, the municipal court issued a valid,

final judgment on the merits and dismissed Davet’s claims. That judgment bars the

instant action in which Davet again claims that the 2006 foreclosure action is void ab initio,

as this matter arises out of the transaction that was the subject matter of the previous action.

The claim preclusion aspect of res judicata therefore bars the instant action as a matter of

law.

{¶13} In addition, because Davet’s interest in the property was extinguished in the

foreclosure action, CV-96-304224, following extensive proceedings in which he was given

a full and fair opportunity to litigate the issue, Davet may not relitigate his claimed interest

in the subject property. His claims against the Mikhlis are therefore barred by issue

preclusion.

{¶14} Davet insists, however, that since NationsBanc did not have the note and

mortgage in 1996, the date the complaint was filed, this defect is jurisdictional and can

therefore be raised at any time. In State ex rel. Davet v. Sutula, 8th Dist. No. 96548,

, this court rejected Davet’s claim that the trial court in CV-96-304224 “patently and unambiguously lacked jurisdiction because NationsBanc lacked standing to

file Case No. CV-304224.” This court stated:

We note there is a split in authority as to whether the issue of standing, or the “real party in interest” defense, in a foreclosure action may be waived if not timely asserted. See, e.g., JPMorgan Chase Bank Trustee v. Murphy, Montgomery App. No. 23927,

, ¶ 19 (standing can be waived); Mtge. Electronic Registration Sys., Inc. v. Mosley, Cuyahoga App. No. 93170,

, ¶ 17 (standing is jurisdictional and cannot be waived); Aurora Loan Servs., L.L.C. v. Car, Ashtabula App. No. 2009-A-0026,

, ¶ 18 (standing waived); First Horizon Home Loan Corp. v. Roberts, Cuyahoga App. No. 92367,

(standing waived).” CitiMortgage, Inc. v. Slack, Cuyahoga App. No. 94899,

, ¶ 10, fn. 3.

***

Rather, Davet had an adequate remedy in the ordinary course of the

law by way of appeal and relief through an original action is inappropriate.

“A trial court’s decision on the issue of standing is properly challenged in a

postjudgment appeal rather than via extraordinary writ. State ex rel. Smith

v. Smith [ (1996) ], 75 Ohio St.3d [418,] 420, 662 N.E.2d [366,] 369; State ex

rel. LTV Steel [ (1992) ], 64 Ohio St.3d [245,] 251, 594 N.E.2d [616,] 621.”

State ex rel. Tubbs Jones v. Suster (1998),

,

,

, N.E.2d 1002, 1008. Because Davet had an

adequate remedy by way of appeal, we must deny his request for relief in

prohibition.

{¶15} Davet did not properly appeal the standing issue to this court, and the court

hearing the foreclosure matter issued a decree of confirmation of sale. Thereafter, pursuant to R.C. 5721.19, upon the filing of the entry of confirmation of any sale “the title

to such land or lots shall be incontestable in the purchaser.”

{¶16} In accordance with the foregoing, the trial court properly determined that

there are no genuine issues of material fact and that the Mikhlis are entitled to judgment as

a matter of law.

{¶17} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR