Bank of New York Mellon v. Wahle ( 2011 )

[Cite as Bank of New York Mellon v. Wahle, 2011-Ohio-6737.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BANK OF NEW YORK C.A. No. 25789
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSEPH F. WAHLE, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV 2010 03 2074
DECISION AND JOURNAL ENTRY
Dated: December 28, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Joseph Wahle has attempted to appeal the Summit County Common Pleas Court’s
grant of summary judgment in favor of Bank of New York Mellon in this foreclosure action. We
must dismiss it because two of the orders he has attempted to appeal are interlocutory and the
third is a nullity.
BACKGROUND
{¶2} The Bank of New York Mellon initiated a mortgage foreclosure action against
Mr. Wahle. After the bank moved for summary judgment, Mr. Wahle hired a lawyer. He then
amended his answer and opposed the bank’s motion for summary judgment.
{¶3} On November 30, 2010, the trial court granted summary judgment to the bank and
ordered it to “submit its proposed judgment entry and decree of foreclosure to the Court within
thirty (30) days[.]” Thus, the trial court’s order of November 30 did not list the outstanding
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liens, prioritize them, or order foreclosure. Mr. Wahle moved for reconsideration of the
summary judgment decision. On December 15, 2010, the trial court denied Mr. Wahle’s motion
for reconsideration. The same day, the bank moved for default judgment against Mortgage
Electronic Registration Systems Inc.
{¶4} Mr. Wahle filed a notice of appeal on December 29, indicating his intent to appeal
the trial court’s orders of November 30 and December 15. The clerk of courts assigned that
notice of appeal case number 25745. The next day, the trial court granted the bank’s motion for
default judgment against Mortgage Electronic Registration Systems Inc. In its order of
December 30, 2010, the trial court also ordered foreclosure and prioritized the liens.
{¶5} On January 28, 2011, Mr. Wahle filed a second notice of appeal, indicating his
intention to appeal the trial court’s entry of December 30, 2010, in addition to those of
November 30 and December 15. On February 4, 2011, this Court dismissed case number 25745
for lack of an appealable order because both the November 30 and December 15 entries were
interlocutory. In a foreclosure case, the judgment must resolve “all remaining issues . . .
including what other liens must be marshaled before distribution is ordered, the priority of any
such liens, and the amounts that are due the various claimants.” Mortgage Elec. Registration
Sys. Inc. v. Green Tree Servicing LLC, 9th Dist. No. 23723, 2007-Ohio-6295, at ¶9. This
attempted appeal involves only the notice of appeal filed January 28, 2011.
JURISDICTION
{¶6} Unless an exception applies, Rule 4(A) of the Ohio Rules of Appellate Procedure
requires a notice of appeal to be filed within 30 days of the entry appealed. A failure to meet the
deadline deprives this Court of jurisdiction to consider the merits of the appeal. State v. Lewis,
9th Dist. No. 25080, 2011-Ohio-2014, at ¶22. In this case, Mr. Wahle filed his notice of appeal
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on January 28, 2011. That was within the thirty-day time limit for appealing the trial court’s
entry of December 30, 2010. Further, if the December 30, 2010, entry were a properly
appealable judgment, the November 30 and December 15 orders would have merged into that
judgment and also could have been addressed on appeal.
{¶7} A trial court, however, loses jurisdiction over a case once it has been appealed,
except to take action in aid of the appeal. In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, at ¶9.
The trial court lost jurisdiction over this case on December 29, 2010, when Mr. Wahle filed his
first notice of appeal. That attempted appeal remained pending until February 2011. Therefore,
the trial court acted without jurisdiction by entering an order on December 30, 2010. That order
is void and cannot be appealed. See id. at ¶15.
CONCLUSION
{¶8} Mr. Wahle may not now appeal the trial court orders of November 30 and
December 15, 2010, because they are interlocutory. He may not appeal the December 30, 2010,
entry because it is a nullity. This attempted appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR
APPEARANCES:
JACK W. MORRISON, JR., Attorney at Law, for Appellant.
DEANNA STOUTENBOROUGH, Attorney at Law, for Appellee.