BANK OF NEW YORK v. RYAN JACKSON, ET AL.
No. 99874
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 21, 2013
2013-Ohio-5133
BANK OF NEW YORK, PLAINTIFF-APPELLEE vs. RYAN JACKSON, ET AL., DEFENDANTS-APPELLANTS [Appeal by Richard Lenard]
JUDGMENT: AFFIRMED
Civil Appeal from the Lyndhurst Municipal Court Case No. 09 CVG 00752
BEFORE: Jones, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 21, 2013
Richard Lenard, pro se
6755 Mayfield Road, #422
Mayfield Hts., Ohio 44124
ATTORNEYS FOR APPELLEE
John D. Clunk
Ashley E. Mueller
Jason A. Whitacre
The Law Offices of John D. Clunk, Co., L.P.A.
4500 Courthouse Blvd.
Suite 400
Stow, Ohio 44224
LARRY A. JONES, SR., P.J.:
{¶2} On April 28, 2009, plaintiff-appellee, the Bank of New York, filed a complaint for forcible entry and detainer against Ryan Jackson, Herman Hunt, and “John Doe (unknown tenant).” The complaint alleged that in May 2007, the bank had bought a parcel of real property located at 197 Richmond Road, Richmond Heights, as result of a foreclosure on the house. The complaint further alleged that the defendants unlawfully occupied the premises.
{¶3} The trial court held a hearing on May 15, 2009, and no defendants appeared, so the trial court granted judgment in favor of the bank on May 18, 2009.
{¶4} On February 9, 2010, Lenard filed a motion titled “Motion to set aside Writ of Restitution Judgment” pursuant to
{¶5} On June 25, 2010, Lenard filed a notice of appeal with this court, which stated that he was appealing the trial court‘s June 7, 2010 order denying his
{¶6} On August 10, 2011, Lenard filed another motion for relief from judgment pursuant to
{¶7} On November 21, 2012, Lenard filed a motion to vacate void judgment pursuant to
{¶8} Lenard then filed the instant appeal, raising five assignments of error for our review, set forth in the appendix, which challenge the trial court‘s May 18, 2009 order granting the forcible entry and detainer.
{¶9} As an initial matter, we clarify that Lenard is the only appellant on this case, even though he listed Ryan Jackson and Herman Hunt on the notice of appeal. Although Lenard, who was incarcerated during the pendency of this case, appeared to be representing all the defendants, as a non-attorney, Lenard may not represent the others.1
{¶10} Next, we are unable to consider the merits of Lenard‘s claims because they are barred by res judicata. The doctrine of res judicata prevents repeated attacks on a final judgment and applies to all issues that were or might have been litigated. Rogers v. Whitehall, 25 Ohio St.3d 67, 494 N.E.2d 1387 (1986). “Principles of res judicata prevent relief on successive, similar motions raising issues which were or could have been raised originally.” Coulson v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983), citing Brick Processors, Inc. v. Culbertson, 2 Ohio App.3d 478, 442 N.E.2d 1313 (5th Dist.1981), paragraph one of the syllabus. Further, this court has held that where a new motion simply rephrases issues previously raised and where the facts alleged in successive motions were available to the appellant at the time he filed his earlier motion, the principles of res judicata bar the later motion. D‘Agnese v. Holleran, 8th Dist. Cuyahoga No. 86769, 2006-Ohio-2470, ¶ 6, citing Bahgat v. Bahgat, 10th Dist. Franklin No. 83AP-469, 1984 Ohio App. LEXIS 11749 (Dec. 6, 1984).
{¶11} The trial court entered its judgment on May 18, 2009. Lenard did not file a direct appeal from that judgment. Instead, on February 9, 2010, Lenard filed his motion to vacate the judgment pursuant to
{¶12}
{¶13} In the instant appeal, Lenard again argues that the trial court should have not granted the original forcible entry and detainer because Jackson had purchased the house from the bank and he had leased the house from Jackson.
{¶14} Although his third
{¶15} This court has already previously dismissed two of Lenard‘s appeals in
{¶16} Because Lenard did not directly appeal the trial court‘s May 18, 2009 judgment, nor successfully perfect an appeal from the trial court‘s order denying his motion to vacate, this court lacks jurisdiction to entertain his appeal regarding the arguments contained in his third motion to vacate. Simply put, Lenard has previously claimed and is again trying to argue that the trial court‘s May 2009 judgment is invalid, hoping that by rephrasing his motion he can now seek our further review. He cannot.
{¶17} Accordingly, the judgment of the trial court is affirmed. Further, this court finds no reasonable grounds for this appeal; therefore, the costs will be assessed to the appellant.
It is ordered that appellee recover of appellant the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Lyndhurst Municipal 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.
LARRY A. JONES, SR., PRESIDING JUDGE
Appendix
Assignments of Error
[I]. The trial court committed reversible error when it found that BONY complied with
[II]. The trial court entered a void judgment on May 18, 2009 when it awarded BONY the writ of restitution judgment.
[III.] The trial court committed substantial error when it found that BONY had jurisdiction to terminate Richard Lenard‘s tenancy because BONY was not privy to the lease agreement to bring a three day notice against Richard Lenard.
[IV.] The trial court committed manifest error when it found that BONY had standing to bring a forcible entry and detainer action against the tenant Richard Lenard. BONY was foreclosed to claim it had a right to immediate possession of the subject property pursuant to
[V]. The trial court committed manifest error when it found that BONY was the title holder at the time it filed the forcible entry and detainer on April 28, 2009. BONY failed to state a claim for forcible entry and detainer in this matter.