Joseph Davilla, Sr. vs. Donald A. Harman
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STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT JOSEPH DAVILLA, SR., PLAINTIFF-APPELLEE, VS. DONALD A. HARMAN, DEFENDANT-APPELLANT. ) ) ) ) ) ) ) ) ) CASE NO. 00 C.A. 64 O P I N I O N CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court Case No. 97CV2657 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee: Attorney Matthew C. Giannini 950 Windham Court, Suite 5 Youngstown, Ohio 44512 For Defendant-Appellant: Donald A. Harman, pro se Be C.I. 313-037 P.O. Box 540 St. Clairsville, Ohio 43950 JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro Dated: May 21, 2001 - 1 - DONOFRIO, J. Defendant-appellant, Donald A. Harman, appeals a decision of the Mahoning County Common Pleas Court entering summary judgment in favor of plaintiff-appellee, Joseph Davilla Sr., on his complaint for foreclosure. On October 11, 1996, appellee obtained a judgment against appellant for $100,000.00 in Mahoning County Common Pleas Court Case No. 95-CV-1496. Appellant did not appeal that decision. On September 9, 1997, appellee filed the present action against appellant seeking to enforce the judgment lien by way of foreclosure. On October 1, 1999, appellee filed a motion for summary judgment followed by an amended motion on October 10, 1999. Appellant, proceeding pro se, filed a motion in opposition on December 2, 1999. On March 1, 2000, the trial court granted appellee s motion. The court noted that there was no dispute that the judgment obtained against appellant s real property. Continuing to appellant was made a lien upon raises four This appeal followed. proceed pro se, appellant assignments of error on appeal which state respectively: DID TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO RULE ON APPELLANT S MOTIONS - 2 - TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ASSESSED DAMAGES WITHOUT ANY EVIDENCE OR TESTIMONY TAKEN. TRIAL COURT JUDGE LIMBERT WAS PERSONALLY BIASED AND PREJUDICED TOWARDS APPELLANT HARMAN VISITING JUDGE MARY CACIOPPO ERRED AS A MATTER OF LAW WHEN SHE REFUSED TO RULE ON THE PROPERLY FILED MOTION FOR 60(B). Each of appellant s arguments are directed towards the judgment obtained against him on October 11, 1996, in Case No. 95-CV-1496. That judgment was a final and appealable order which appellant chose not to appeal. Failure to appeal that judgment constitutes a complete and total waiver of any alleged error. See In re Appropriation for 1979 (1980), 62 Ohio St.2d 99, 101. The present action is simply a means to enforce the judgment lien obtained against appellant in the prior lawsuit. Appellant cannot use this setting to collaterally attack the validity of the previous judgment. Appellant assigns no error to the trial court s grant of summary judgment in this case allowing the foreclosure. Accordingly, appellant s four assignments of error without merit. The judgment of the trial court is hereby affirmed. are - 3 - Waite, J., concurs DeGenaro, J., concurs
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