COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59402 FRANK PIZZURO : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : McKINLEY FEDERAL SAVINGS & LOAN : ASSOCIATION : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 153982 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Paul Mancino, Jr. Andrew R. Kasle 75 Public Square Building William E. Armstrong Suite 1016 Buckley, King & Bluso Cleveland, Ohio 44113 900 Park Plaza Cleveland, Ohio 44114-3516 - 1 - ANN McMANAMON, J.: Frank Pizzuro timely appeals the entry of judgment for McKinley Federal Savings and Loan Association ("the S & L") on his claims for the wrongful seizure of property. Pizzuro asserts four assignments of error./1\ Since none of his arguments are meritorious, we affirm. On July 8, 1988, the S & L transferred a $268,899.45 judgment against Frank Pizzuro's brother, Battista Pizzuro, from the Trumbull County Court of Common Pleas to Shaker Heights Municipal Court. On the same day, the S & L filed an execution for the levy and sale on ten horses owned by Battista Pizzuro at Thistledown Racetrack. On July 11, 1988, Battista Pizzuro sold three of these horses to his brother Frank. The next day, Battista Pizzuro arranged for all the horses to be shipped to a farm in Aurora, Ohio, thus defeating the S & L's attempt to levy on the horses at Thistledown Racetrack. The S & L subsequently seized the horses at the Aurora farm. On July 22, 1988, Frank Pizzuro brought a third party complaint against the S & L in the Shaker Heights lawsuit. He claimed ownership of three of the ten horses and alleged the S & L wrongfully seized them. Following a bench trial, the municipal court determined that the July 11, 1988 sale of the horses to /1\ See Appendix. - 2 - Frank Pizzuro was fraudulent. The court, thus, declared the sale void and entered judgment for the S & L. We affirmed this decision in McKinley Federal Savings & Loan v. Pizzuro Enterprises, Inc., et al. (Dec. 21, 1989), Cuyahoga App. No. 56416, unreported. After Frank Pizzuro filed his municipal court complaint but before the court issued its decision, he sued the S & L in Cuyahoga County Common Pleas Court, alleging wrongful seizure of the three horses as well as violation of Title 42 U.S.C. Section 1983 based upon this seizure. Pizzuro also sought an injunction to restrain the S & L from selling the horses. The S & L moved to dismiss or, in the alternative, for summary judgment on the grounds of, inter alia, res judicata. After our affirmance of the municipal court decision, the common pleas court granted the S & L's motion. In his first assignment of error, Frank Pizzuro asserts the trial court improperly found that res judicata barred the common pleas lawsuit. In Quality Ready Mix, Inc. v. Mamone (1988), 35 Ohio St. 3d 224, the Supreme Court stated: "'A comprehensive definition of res judicata is as follows: The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial - 3 - tribunal of concurrent jurisdiction. 30 American Jurisprudence, 908, Section 161. ***'" Id. at 227, quoting Norwood v. McDonald (1943), 142 Ohio St. 229, 305. For res judicata to apply, there must be an exact identity in parties and in causes of action. Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, 137. The related concept of collateral estoppel or issue preclusion bars relitigation, in a second lawsuit, of a point of law or fact which was directly at issue and resolved in the prior action between the same parties. Id. With collateral estoppel, the two lawsuits need not be based upon identical causes of action. Id. See, also, Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St. 2d 108, syllabus paragraph two. Frank Pizzuro's third party complaint against the S & L in the municipal court action alleged the S & L wrongfully seized his horses. The municipal court found the conveyance of the three horses between the brothers to be fraudulent, voided the sale, and entered judgment for the S & L. Pizzuro's first count in the common pleas action against the S & L mirrors the municipal court claim. Thus, res judicata bars relitigation of the first count. We further find that collateral estoppel bars Pizzuro from proceeding on his second and third counts in the common pleas action. The second count alleges a violation of Title 42 U.S.C. Section 1983 and is based upon the wrongful seizure of Frank Pizzuro's horses. The third count requests the court to permanently enjoin the S & L from selling the horses. Both of these counts are dependent upon Frank Pizzuro's ownership of the - 4 - horses. The municipal court, however, previously determined that Frank Pizzuro does not own the horses. Thus, the common pleas court properly entered judgment for the S & L on these counts. Accordingly, we overrule the first assignment of error. In the second assignment of error Frank Pizzuro asserts the trial court improperly considered consecutive motions for dismissal or summary judgment filed by the S & L. The record demonstrates the S & L initially filed a Civ. R. 12 motion and a supplemental brief urging the court to dismiss Pizzuro's lawsuit on the basis of, inter alia, res judicata. The court overruled the motion and the S & L filed its answer asserting res judicata as a defense to Pizzuro's lawsuit. The S & L subsequently moved for dismissal on summary judgment on the grounds of res judicata. The court overruled this motion apparently because the S & L failed to file certified copies of the municipal court documents. The S & L then filed a supplemental motion with certified copies of the relevant documents. The S & L later filed a motion for dismissal/summary judgment/reconsideration which the court granted. Pizzuro contends Civ. R. 12 precludes the filing of successive motions. We specifically rejected this argument in Barile v. Univ. of Virginia (1986), 30 Ohio App. 3d 190. Furthermore, the S & L's res judicata argument required consideration of evidentiary materials and, thus, the motion was - 5 - governed by Civ. R. 56. See Johnson v. Linder (1984), 14 Ohio App. 3d 412. Finally, it is well-established that an order overruling a motion for summary judgment is subject to reconsideration any time prior to the entry of final judgment. Maxey v. Lenigar (1984), 14 Ohio App. 3d 458, 459-460. Thus, the court did not err in reconsidering its earlier ruling and granting the S & L's motion. This assignment of error is overruled. In his third assignment, Pizzuro asserts the common pleas court erred by considering unauthenticated evidence attached to S & L's summary judgment motions. Civ. R. 56(C) provides, in relevant part: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ***." Further, a court shall not consider documents which are not sworn, certified or authenticated through an affidavit. Mitchell v. Ross (1984), 14 Ohio App. 3d 75. The S & L initially filed uncertified copies of the municipal court documents with his motions and Pizzuro objected. The record, however, demonstrates that the S & L's April 1989 and June 1989 motions included the affidavit of its attorney in the - 6 - municipal court case as well as certified copies of the court's judgment entry and findings of fact and conclusions of law. We find the common pleas court properly considered this evidence. Accordingly, this assignment of error is overruled. In his fourth assignment Pizzuro contends the court erroneously denied his motion for sanctions and attorney fees. In August 1988, the S & L filed its first motion to dismiss and later supplemented this motion on October 17, 1988. Pizzuro then filed a motion for sanctions and attorney fees, arguing that, since the court overruled the dismissal motion on September 9, 1988, the supplemental brief was frivolous. The S & L opposed the motions for sanctions and attached the affidavit of defense counsel who denied receiving notice of the court's ruling. The court overruled Pizzuro's motion. Pizzuro argues the court should have awarded sanctions and/or attorney fees pursuant to Civ. R. 11 and R.C. 2323.51. Civ. R. 11 provides in pertinent part: "Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. *** The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served. For a willful violation of this rule an attorney may be subjected to appropriate action." - 7 - The imposition of sanctions under this rule is left to the sound discretion of the trial court. Stevens v. Kiraly (1985), 24 Ohio App. 3d 211. R.C. 2323.51 also provides for the award of attorney fees for frivolous conduct in a civil action. See Sladoje v. Slettebak (1988), 44 Ohio App. 3d 206. We find no abuse of discretion in this case. Defense counsel swore he did not receive notice of the court's September 9, 1988 order before filing the S & L's supplemental materials. The court accepted the attorney's averments and reasonably determined defense counsel's conduct did not violate Civ. R. 11 or R.C. 2323.51. This assignment of error is overruled and the trial court's judgment is affirmed. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. DYKE, P.J., JAMES D. SWEENEY, J., CONCUR. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .