[Cite as Bank of Am. Corp. v. Haley , 2021-Ohio-2018.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) BANK OF AMERICA CORPORATION, et al. Appellees

v. STEPHEN T. HALEY Appellant C.A. No. 29644

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2018-02-0736

DECISION AND JOURNAL ENTRY Dated: June 16, 2021

SUTTON, Judge. {¶1} Defendant-Appellant, Stephen Haley, appeals the judgment of the Summit County

Court of Common Pleas. For the r easons that follow, this Court affirms the decision below.

I. {¶2} Appellees-Plaintiffs Bank of Ame rica Corporation (“BAC”), Bank of America, N.A., (“BANA”), Merrill Lynch, Pierce, Penner & Smith (“Merrill Lynch”), and BAC Field Services Corporation (“BACFSC”) (collectively “Appellees”) join tly filed a complaint seeking declaratory judgment from the Summit County Court of Common Ple as as to whether Mr. Haley could enforce a default judgment obtained against “Bank of Amer ica f/k/a Countrywide Field Services Corporation” against A ppellees. Mr. Haley obtained th e default judgment against “Bank of America f/k/a Countrywide F ield Services Corporation” in Maxim Enterprises, Inc. v. Stephen Haley , Summit County Common Pleas Court, Case No. CV-2008-07-5093 (“ 2008 Default Judgment Case”).2

The 2008 Default Judgment Case {¶3} Previously, in Maxim Enterprises, Inc. v. Haley , 9th Dist. Summit No. 28126, 2018- Ohio-72, ¶ 2, (“2018 appeal”) this Court summarized the procedu ral history of the 2008 Default Judgment Case as follows: Countrywide Field Services (“Count rywide”) provided real proper ty inspections and maintenance services to mo rtgage servicers. Countrywide co ntracted with Maxim Enterprises, Inc. (“Maxim” ) to provide these services on properties located in Ohio. Maxim subcontracted this work to several subcontracto rs. The subcontractors claimed to have provided services to the propert ies, but denied having received payment from Maxim. Mr. Haley entered into agr eements with the subcontractors, wherein the subcontractors assigned their a ccounts receivable and claims to Mr. Haley. Mr. Haley claimed that he contacted M axim for payment and that Maxim responded that it had not provided payment to th e subcontractors because Countrywide had not provided payment to Maxim. In 2008, Maxim filed a complaint against several parties, inclu ding Mr. Haley, wherein Maxim alleged that Mr. Haley engaged in tortious interf erence with a business relationship and civil c onspiracy. Thereafter, Mr. Ha ley filed a third-party complaint against several parties, including Countrywide. This initial third-party complaint was dismissed in 2009. Later that year, Mr. Haley ag ain filed a thirdparty complaint against several parties, including “Bank of Ame rica fka Countrywide Field Services Corpor ation,” (“Bank of America”). Bank of America failed to answer the third-party complaint, and Mr. Haley moved for default judgment, which the tri al court granted in 2010. On April 16, 2010, Mr. Haley filed a praecipe for a writ of exe cution against Bank of America dba Merrill Lynch. On April 28, 2010, “BAC Field Se rvices Corporation” [“BACFSC”] filed a motion to stay execution of jud gment. In its motion, [BACFSC] argued, in part, that it was also known as “Ba nk of America Field Services,” but it was “imp roperly named in the third part y complaint * * * as ‘Bank of America f/k/a Countrywi de Field Services Corporation[. ]’” [BACFSC] requested the court to stay the proceedings to enforce the judg ment pending the disposition of a motion brought pursuant to Civ.R. 60. [BACFSC ] then filed its Civ.R. 60(B) motion, in which it again argued, in part, that it was incorrectly named in the third-party complaint as “Bank of America fka Countrywid e Field Services Corporation[.]” [BACFSC] maintai ned that “Bank of America” was a non-entity, and that Bank of America Corporation was its parent company and was never known as “Countrywide Fiel d Services Corporation.” The trial court granted [BACFSC’ s] motion in an order dated Jun e 18, 2010. Subsequently, [BACFSC] filed an a nswer to the third-party compl aint and cross claims against Maxim. Mr. Haley then attempted to appeal from the June 18, 20103

order, and we dismissed his app eal for lack of a final appealab le order. See Maxim Ents, Inc. v. Haley , 9th Dist. Summit No. 25459, 2011-Ohio-6734. [While the appeal was pending, [BACFSC] filed a motion for judgment on the pleadings, which it renewed following the di smissal of the appeal.] There after, the trial court issued another order granting [BACFSC’s] motion to vacate the d efault judgment, and including language that there was “no just reason for delay ” pursuant to Civ.R. 54(B). Mr. Haley appealed and this Court remanded the matter to the tr ial court for the express purpose of clarifying its reasoning. Id. at ¶ 3. Upon remand, Mr. Haley filed a motion to reinstate the default judgment and a motion t o strike all motions and pleadin gs filed by BACFSC for failing to intervene pursuant to Civ.R. 24. Id . at ¶ 7. Following reassignment to a different judge, and a request for additional briefing, the trial court concluded that Mr. Haley’s default judgment was against a non-entity and ordered the judgment against “Bank of America f/k/a Countrywide Field Service Corporation” vacated. Id . Mr. Haley again appealed to this Court. Id . In resolving the 2018 appeal, this Court concluded BACFSC did not properly inter vene in the matter and therefore its filings in the case were not properly before the trial cour t. Id . at ¶ 17. As such, BACFSC’s filings were stricken from the record and the judgment of the t rial court vacating Mr. Haley’s default judgment was r eversed and remanded. Id

. {¶4} After this Court’s ruling in the 2018 appeal, BACFSC filed a mo tion to intervene, which was subsequently denied by the trial court leaving Mr. Ha ley’s default judgment against “Bank of America f/k/a Countrywi de Field Services Corporation” on the record. Neither BACFSC, nor Mr. Haley, appealed the judgment denying BACFSC’s m otion to intervene. Instead, BACFSC joined the other Appellees and filed the compla int for declaratory judgment at issue in this appeal.4

Complaint for Declaratory Judgment {¶5} In their complaint for declarato ry judgment, Appellees asserted that none of them have ever been known as “Bank of America f/k/a Countrywide Fiel d Services Corporation” and

that “Bank of America f/k/a Count rywide Field Services Corporat ion” was not a known legal entity. As such, Appellees argued Mr. Haley’s default judgment could not be enforced against them. In conjunction with their complaint, Appellees filed a m otion for preliminary injunction seeking to prevent Mr. Haley from obtaining a writ of execution against any of Appellees and from seizing any property of Appellees. {¶6} In response, Mr. Haley, however, argued “Bank of America f/k/a Countrywide Field Services Corporation” was a valid legal entity and that “ Bank of America” was liable under the default judgment. Preliminary Injunction Hearing {¶7} At the hearing on the preliminar y injunction, Appellees present ed testimony from David Wyatt, the Chief Financial Officer and Treasurer for BACF SC and Senior Vice President and Manager of Finance for BANA. Mr. Wyatt testified that Coun trywide Field Services Corporation changed its name to BACFSC effective April 27, 2009 . Mr. Wyatt acknowledged BACFSC was the legal entity formerly known as Countrywide Field Services Corporation, but that he was not aware of any legal entity named “Bank of Americ a f/k/a Countrywide Field Services Corporation.” Mr. Wyatt testified BACFSC remained a s eparate and distinct corporate entity and BACFSC never operate d under the trade name “Bank of America.” The trial court ultimately granted the Appellees’ motion for a preliminary inju nction preventing Mr. Haley from obtaining a writ of executi on against any of Appellees.5

Motions for Summary Judgment {¶8} Mr. Haley moved for summary judgm ent on the basis that whether his default judgment was against a non-entity was an issue that was litigat ed in the 2008 Default Judgment Case and related appeals. Mr. Haley claimed the prior cases pr ecluded Appellees from filing the complaint for declaratory judgment. Appellees then filed a mot ion for summary judgment arguing that none of the Appellees were parties to the 2008 Default Jud gment Case, and, therefore, could not be judgment debtors to Mr. Haley’s judgment against “Bank o f America f/k/ a Countrywide Field Service Corporation.” {¶9} On October 22, 2018, the trial court denied Mr. Haley’s motion for summary judgment because Mr. Haley had failed to establish mutuality of the parties or claims in the 2008 Default Judgment Case. Subsequently, on December 12, 2019, the trial court granted the Appellees’ motion for summary judgment, finding against Mr. Hal ey and issuing a permanent injunction preventing Mr. Haley from executing his judgment aga inst any of the Appellees. The

trial court found Mr. Haley presented no admissible evidence to support his claim that “Bank of America f/k/a Countrywide Field Services Corporation” constitut ed a trade name or fictitious name of any of the Appellees within the meaning of R.C. 1329.01 . The trial court also rejected Mr. Haley’s argument that the “f/k/a Countrywide Field Services Corporation” portion of the judgment debtor name in the 2008 Default Judgment Case should b e ignored as surplusage. Further, the trial court noted M r. Haley failed to establish BA CFSC ever operated under the trade

name or fictitious na me “Bank of America ,” and the only entitie s that had ever operated using the

trade name “Bank of America” were BAC and BANA.6

{¶10} The October 22, 2018 order denying Mr. Haley summary judgment a nd the December 12, 2019 order granting Appellees summary judgment for m the basis of Mr. Haley’s appeal.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO SUPPLEMENT THE RECORD ON APPEAL WITH THE RECORD OF JUDGMENT CASE CV-2008-07-5093 AFTER INCORPORATING THE JUDGMENT CASE RECORD WITHIN ITS ORDER DENYING [MR.] HALEY’S MOTION FOR SUMMARY JUDGMENT BASED ON THE DOCTRINE OF RES JUDICATA AND WAIVER AND USING THE JUDGMENT CASE RECORD TO PROVIDE THE FACTUAL BASIS DENYING [MR.] HALEY’S MOTION TO DISMISS THE INJUNCTION CASE CV 2018-02-0736 FILED BY [APPELLEES] BASED ON THE DOCTRINE OF RES JUDICATA AND WAIVER. {¶11} In his first assignment of error, Mr. Haley argues the trial co urt erred by failing to allow him to supplement the record with filings from the 2008 D efault Judgment Case. {¶12} Mr. Haley first moved this Court to supplement the record in th is case with the entire record from the 2008 Default Judgment Case. Under App.R . 9(E), his request was denied because the issue of supplementa tion was to be submitted and se ttled by the trial court. This Court stayed the appeal and Mr. Haley filed a Motion to Supplement th e Record with the trial court. The trial court denied the motion on the grounds that the entire re cord from the 2008 Default Judgment

Case was not considered when the trial court rendered its decis ion. Some of the filings from the 2008 Default Judgment Case were considered because they were at tached as exhibits, but the entire record from the 2008 Default Judgment case was not. {¶13} Mr. Haley’s first assignment of error appears to challenge the trial court’s decision to deny his motion to supplement the record. However, that dec ision is not properly before this Court because Mr. Haley failed to amend his Notice of Appeal to include it. However, even if the7

order denying his motion to supplement the record was properly before this Court, Mr. Haley’s assignment of error would not b e well taken. Under App.R. 9(A), the record on appeal is constituted of only materials that the trial court considered i n the case. The trial court cannot add

additional materials to the reco rd on appeal that were not file d during the pendency of the case.

See State v. Ishmail , 54 Ohio St.2d 402, 406 (1978). {¶14} Mr. Haley’s first assignme nt of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT HELD THAT THE TRADENAME “BANK OF AMERICA,” OWNED AND USED SOLELY BY BANK OF AMERICA CORP., AND BANK OF AMERICA, N.A., IS A NON-ENTITY, WHICH RESULTED FROM THE TRIAL COURT FAILING TO APPLY ORC § 1329.10(C) WHICH PERMITS AN ACTION TO BE COMMENCED AGAINST THE USER OF A FICTITIOUS OR TRADENAME IN OHIO WHEN THE CORPORATION FAILS TO FILE A NOTICE OF USE OF A TRADENAME OR FICTITIOUS NAME OR REGISTER TO DO BUSINESS IN OHIO. {¶15} In his second assignment of error, Mr. Haley argues the trial c ourt improperly applied R.C. 1329.10(C) when gran ting summary judgment in favor of Appellees. Mr. Haley argues that the trial court was incorrect in its conclusion tha t “Bank of America f/k/a Countrywide Field Services Corporation” was not a trade name or fictitious name of any of t he Appellees. {¶16} In response, Appellees argue that Mr. Haley did not sue the tra de name “Bank of America,” that “Bank of America f/k/a Countrywide Field Service s Corporation” is not a trade name or fictitious name, and that parent and subsidiary corpora tions are separate and distinct legal

entities.8

R.C. 1329.10(C) {¶17} R.C. 1329.10(C) states: “an action may be commenced or maintain ed against the

user of a trade name or fictitious name whether or not the name has been registe red or reported in compliance with section 1329.01 of the Revised Code.” {¶18} A trade name is defined in R.C. 1329.01(A)(1) as: “Trade name” means a name used in business or trade to designat e the business of the user and to which the user asse rts a right to exclusive use

. {¶19} A fictitious name is defi ned in R.C. 1329.01(A)(2) as:

“Fictitious name” means a name us ed in business or trade that i s fictitious and that the user has not registered or is not entitled to register as a trade name. It does not include the name of record of any domestic corporation that is formed under Chapter 1701 or 1702 of the Revised Code, any foreign corporati on that is registered pursuant to Chapt er 1703. of the Revised Code, any d omestic or foreign limited liability company that is formed under or registered pu rsuant to Chapter 1705. of 1706. of the Revised Coe, any domestic or foreign limi ted liability company that is formed under or registered pursuant to Chapter 1705. or 1706. of the Revised Code, any domestic or foreign limited partnership t hat is formed or registered pursuant to Chapter 1782. of the Revised Code, or an y domestic or foreign limited liability partners hip that is formed under or r egistered pursuant to Chapter 1775. or 1776. of the Revised Code. “Bank of America f/k/a Countrywi de Field Services Corporation” is not a trade name or a fictitious name {¶20} It is undisputed by Mr. Haley and Appellees that none of the Ap pellees have ever

used the name “Bank of America f/k/a Countrywide Field Services Corporation” in business or trade. Additionally, the partie s do not dispute that there is no legal entity known as “Bank of America f/k/a Countrywide Field Services Corporation.” It is well established and accepted law that “an action may only be brought against a party who actuall y or legally exists and has the capacity to be sued.” Barnhart v. Schultz , 53 Ohio St.2d 59, 61 (1978), overruled for other reasons by Baker v. McKnight , 4 Ohio St.3d 125 (1983), citing Cobble v. Farmers’ Bank , 63 Ohio St. 528 (1900). Furthermore, it is axiom atic that if “Bank of America f/k/a Countrywide Field Services9

Corporation” is not a legal entity, Mr. Haley cannot enforce hi s default judgment against Appellees. {¶21} Mr. Haley also argues that the “ f/k/a Countrywide Field Service s Corporation” is surplusage and he was actually naming the trade name “Bank of A merica” in the lawsuit. However, Mr. Haley cites no statute or case law permitting a pl aintiff to discard a portion of a judgment debtor’s name. {¶22} Furthermore, even if this Court was persuaded that “f/k/a Count rywide Field Services Corporation” was surplusage of the trade name “Bank of America,” Mr. Haley did not

establish that “Bank of America” was the trade name of the enti ty that was formerly known as Countrywide Field Services Corpor ation. As previously indicate d, Mr. Wyatt, the Chief Financial

Officer and Treasurer of BACFSC and Senior Vice President and M anager of Finance for BANA, testified that Countrywide Field S ervices Corporation changed i ts name to BAC Field Services Corporation (BACFSC) on April 27, 2009. Mr. Wyatt further test ified that while BACFSC was the only entity formerly known as Countrywide Field Services Co rporation, BACFSC was never formerly known as “Bank of America f/k/a Countrywide Field Serv ices Corporation.” Importantly, Mr. Wyatt testified that BACFSC never used the tra de name “Bank of America” and, when Countrywide Field Services Corporation changed its name, n othing changed in the operations of the business. BACFSC did not, at any time, begin using the trade name “Bank of America” or become part of BAC or BANA. {¶23} Mr. Haley’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT MISSTATED [SIC.] THE FACTS CONCERNING PRIVITY BETWEEN [APPELLEES] WHERE THE JUDGMENT CASE CV 2008-07-5093 CONTAINED EVIDENCE THAT BANK OF AMERICA HAD MERGED10

WITH COUNTRYWIDE FINANCIAL SERVICES CORPORATION AND WHERE MERRILL LYNCH AND CO, AND BANK OF AMERICA NA APPEARED IN THE JUDGMENT CASE CV 2008-07-5093 DOC. #356 AND DOC. #458 AND THE TRIAL COURT T HEN USING THE INCORRECT FACTS TO DENY [MR.] HALEY’S MOTION FOR SUMMARY JUDGMENT TO DISMISS THE CASE BASED ON THE DOCTRINE OF RES JUDICATA AND WAIVER. {¶24} In Mr. Haley’s third assignment of error, he argues the trial c ourt erred by denying his motion for summary judgment on the basis of res judicata. In response, Appellees argue their complaint for declaratory judgment does not involve the same pa rties and raises different issues than the 2008 Default Judgment Case. Appellees, therefore, sub mit the doctrine of res judicata does not bar Appellees’ complaint. Summary Judgment {¶25} We review a trial court’s awar d of summary judgment de novo. Grafton v. Ohio

Edison Co. , 77 Ohio St.3d 102, 105 (1996). U nder Civil Rule 56(C), summar y judgment is proper

if: (1) No genuine issue as to any m aterial fact remains to be liti gated; (2) the moving party is entitled to judgment as a matter of law; and (3) it ap pears from the evidence that reasonable minds can come to but one conclusion, and viewi ng such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). {¶26} The moving party bears the initial burden of informing the tria l court of the basis for the motion and pointing to the parts of the record that sho w the absence of a genuine issue of

material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292-293 (1996). If the moving party meets this burden, then the nonmoving party bears the burden to offer spec ific facts demonstrating a genuine

issue for trial. Id . at 293.11

{¶27} In his motion for summary judgment, Mr. Haley argued he was ent itled to summary judgment as a matter of law becau se Appellees’ complaint was ba rred by res judicata. Mr. Haley argued that res judicata applies because judgment was entered a gainst “Bank of America” in the 2008 Default Judgment Case and that “Bank of America” was a par ty to the 2008 Default Judgement Case.

Res Judicata {¶28} Under the doctrine of res judicat a, “[a] valid, final judgment rendered upon the

merits bars all subse quent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp. , 73 Ohio St.3d 379, 382 (1995). Res judicata incorpor ates the concepts of both cla im preclusion and issue preclusion.

Id . at 381. Here, Mr. Haley argues that Appellees’ claims are ba rred by claim preclusion. {¶29} “For claim preclusion to apply, t he parties to the subsequent s uit must either be the same or in privity with the parties to the original suit.” Johnson’s Island, Inc. v. Board of Tp. Trustees of Danbury Tp ., 69 Ohio St.2d 241, 244 (1982). Mutuality can support a find ing of privity only if “the person taking advant age of the judgment would have been bound by it had the result been the opposite. Conversely, a s tranger to the prior judgment , being not bound thereby, is not entitled to rely upon its effect und er the claim of res judicat a or collateral estoppel.” Id

. Trial Court’s Denial of Mr. Hal ey’s Motion for Summary Judgment {¶30} As a result of this Court’s 2018 decision in Maxim Enterprises v. Hale y, the trial court struck all of the pleadings of BACFSC in the 2008 Default Judgment Case. BACFSC subsequently filed a motion to int ervene as a party and the tri al court denied that motion. Neither BACFSC, nor any of the other A ppellees, were parties to the 200 8 Default Judgment Case. Thus, Appellees are not bound by the 2008 Default Judgment Case, and Mr. Haley is not entitled to rely12

upon it for purposes of barring Appellees’ declaratory judgment action under the doctrine of res judicata. See Johnson’s Island , supra

. {¶31} Because Appellees’ complaint for declaratory judgment was not b arred by res judicata, the trial c ourt correctly denied Mr. Haley’s motion f or summary judgment. {¶32} Mr. Haley’s third assignment of error is overruled.

III. {¶33} Based upon the foregoing, Mr. Haley’s three assignments of erro r are overruled, and the judgment of the Summit C ounty Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT13

HENSAL, P.J. CALLAHAN, J. CONCUR.

APPEARANCES: STEPHEN T. HALEY, pro se, Appellant. BRYAN T. KOSTURA and JAMES W. SANDY, Attorneys at Law, for Appe llee.