Court of Appeals of Ohio, Eleventh District, Lake
WILLIAM R. RITCHEY, et al., Plaintiffs-Appellants,
JP MORGAN CHASE BANK, AS TRUSTEE ON BEHALF OF FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FF10 ASSET-BACKED CERTIFICATES SERIES 2004-FF10, Defendant-Appellee.
Appeal from the Lake County Court of Common Pleas, Case No.
2016 CV 000228.
Clifford Thornton, Jr., PDC Building (For
C. Infante and Jason A. Whitacre, Clunk, Paisley, Hoose Co.,
LPA, (For Defendant-Appellee).
R. WRIGHT, J.
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.
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.
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 * * *."
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).
The Ritcheys raise two assigned errors:
"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).
"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."
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.
Civ.R. 41(A) states:
"(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 ...