Wells Fargo Bank, N.A. v. Allen , 2012 Ohio 175 ( 2012 )

[Cite as Wells Fargo Bank, N.A. v. Allen, 2012-Ohio-175.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96611
WELLS FARGO BANK, N.A.
PLAINTIFF-APPELLEE
vs.
PATRICIA ALLEN, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-721567
BEFORE: E. Gallagher, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 19, 2012
ATTORNEY FOR APPELLANTS
James R. Douglass
James R. Douglass Co., LPA
20521 Chagrin Blvd.
Suite D
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
2
For Wells Fargo Bank, N.A.
Edward G. Bohnert
Reimer, Lorber & Arnovitz Co., LPA
P.O. Box 968
2450 Edison Blvd.
Twinsburg, Ohio 44087
Richard A. Freshwater
Thompson Hine LLP
127 Public Square
3900 Key Tower
Cleveland, Ohio 44114
Scott A. King
Jessica E. Salisbury
Thompson Hine LLP
Austin Landing I
10050 Innovation Dr., Suite 400
Dayton, Ohio 45342
For State of Ohio, Dept. of Taxation
Mike DeWine
Ohio Attorney General
Melanie Cornelius
Assistant Attorney General
150 East Gay Street, 21st Floor
Columbus, Ohio 43215
For United States of America
Eric H. Holder, Jr.
Attorney General of the United States of America
By: Marlon A. Primes
U.S. Court House
801 W. Superior Avenue
Suite 400
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Patricia Allen appeals from the judgment of the Cuyahoga
County Court of Common Pleas granting plaintiff-appellee Wells Fargo Bank, N.A.’s (“Wells
Fargo”) motions for default and summary judgment. We dismiss for lack of a final
appealable order.
3
{¶ 2} On March 18, 2010, Wells Fargo filed a complaint for foreclosure against
appellant, her unknown spouse, the State of Ohio Department of Taxation, Citifinancial, Inc.,
and the United States of America, relating to appellant’s alleged nonpayment of a note
secured by a mortgage on appellant’s property. The complaint further alleged that
Citifinancial, the State of Ohio Department of Taxation, and the United States of America
have or claim to have an interest in the property. The matter was referred by the court to the
court’s magistrate to try the issues of law and fact.
{¶ 3} Appellant answered Wells Fargo’s complaint on April 7, 2010. The State of
Ohio Department of Taxation and the United States of America answered and asserted
separate interests in the property and demanded that their liens be accorded their rightful
priority. Citifinancial failed to answer.
{¶ 4} The record indicates that the magistrate granted summary judgment in favor of
Wells Fargo against appellant on January 19, 2011. The magistrate further granted default
judgment in favor of Wells Fargo against Citifinancial on January 20, 2011. The magistrate
filed a decision ordering foreclosure on January 21, 2011. Notably, the magistrate’s
decision fails to ascertain the liens of the State of Ohio and the United States or the priority of
such liens. On March 2, 2011, the trial court issued a journal entry in which it adopted and
incorporated the magistrate’s decision and ordered that “[Wells Fargo’s] motions for default
and summary judgment are granted. Judgment for [Wells Fargo] against [Appellant] in the
sum of $96,480.02 with interest thereon at the rate of 5.78% per annum from 10/15/2009.
4
Decree of foreclosure for [Wells Fargo].” The journal entry further provided that Wells Fargo
may order the subject property to sheriff’s sale.
{¶ 5} Appellant presents two assignments of error arguing separately that the trial
court erred in failing to dismiss Wells Fargo’s claims because Wells Fargo lacked standing to
prosecute this foreclosure action and erred in failing to stay the case because jurisdiction over
the matter had previously been invoked in the United States District Court for the Northern
District of California, San Jose Division. We dismiss for lack of a final appealable order.
{¶ 6} In a Journal Entry dated November 10, 2011, this court raised the issue as to
whether this appeal presented us with a final appealable order. Appellate courts have
jurisdiction to review the final appealable orders from lower courts. See Ohio Constitution,
Article IV, Section 3(B)(2); R.C. 2505.02. In the absence of a final appealable order, the
appellate court does not possess jurisdiction to review the matter and must dismiss the case
sua sponte. Deutsche Bank Natl. Co. v. Caldwell, 8th Dist. No. 96249, 2011-Ohio-4508, 2011
WL 3925621, ¶ 6, citing St. Rocco’s Parish Fed. Credit Union v. Am. Online, 151 Ohio
App.3d 428, 431, 2003-Ohio-420, 784 N.E.2d 200 (8th Dist. 2003).
{¶ 7} A trial court’s judgment entry stating that it is adopting a magistrate’s decision is
not a final appealable order. Flagstar Bank, FSB v. Moore, 8th Dist. No. 91145,
2008-Ohio-6163, 2008 WL 5050139, ¶ 1. “To constitute a final appealable order, the trial
court’s journal entry must be a separate and distinct instrument from that of the magistrate’s
order and must grant relief on the issues originally submitted to the court.” Id. “The
court’s judgment entry should address all issues submitted to the court for determination so
5
that the parties may know, by referring to the judgment entry, what their responsibilities and
obligations may be.” In re Elliott, 4th Dist. No. 97 CA 2313, 1998 WL 101351 (Mar. 5,
1998). “In short, the trial court, ‘separate and apart from the magistrate’s decision,’ must
enter its own judgment containing a clear pronouncement of the trial court’s judgment and a
statement of the relief granted by the court.” (Emphasis added.) Deutsche Bank Natl. Co.,
at ¶ 7, quoting Flagstar Bank at ¶ 8; Ameriquest Mtge. Co. v. Stone, 8th Dist. No. 89899,
2008-Ohio-3984, 2008 WL 3126185, ¶ 3.
{¶ 8} In the present case, the trial court’s order fails to address Wells Fargo’s claims
against any of the defendants other than appellant. As in Deutsche Bank, the judgment entry
presently before this court purports to grant both default and summary judgment but fails to
state against which defendants. The order further fails to address the asserted liens of the
state of Ohio and the United States of America. Although the judgment entry allows Wells
Fargo to order the property to sheriff’s sale, the entry fails to make a determination as to the
priority of the liens asserted against the property.
{¶ 9} Under similar facts, we stated in Gaul v. Leeper, 8th Dist. No. 63222, 1993 WL
266818 (July 15, 1993), that, “[u]ntil such time as the trial court determines the claims
against John Doe, husband of appellant, the rights and liabilities of the party defendants
failing to file responsive pleadings, and the priority of the liens and orders the sale of the
property, there is no final appealable order.”
{¶ 10} This court has held that in a foreclosure action where the trial court fails to
make a determination as to the priority of liens asserted against the property, the trial court’s
6
order of foreclosure and sale is not a final appealable order and any appeal taken from that
order must be dismissed per Civ.R. 54(B). Culkar v. Fanter, 8th Dist. No. 48151, 1984 WL
6394 (Dec. 27, 1984).
{¶ 11} In the case sub judice, the adjudication of the errors assigned by the appellant
would affect not only appellant’s rights, but those of the defendants whom the trial court’s
judgment entry fails to properly address.
{¶ 12} The trial court’s inclusion in the entry of Civ.R. 54(B) language that “there is
no just cause for delay” does not overcome these deficiencies. Deutsche Bank, at ¶ 9. It
is well established that in a matter where multiple claims and/or parties are involved, a
judgment entry that enters final judgment as to one or more, but fewer than all, of the pending
claims is not a final appealable order in the absence of Civ.R. 54(B) language stating that
“there is no just reason for delay.” However, “the mere incantation of the required language
does not turn an otherwise non-final order into a final appealable order.” Id., citing Noble v.
Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989).
{¶ 13} The trial court’s March 2, 2011 entry is not a final appealable order. We
therefore lack jurisdiction and must dismiss the appeal.
Dismissed.
It is ordered that appellee recover of appellants costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
7
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR