BankUnited v. Klug , 2016 Ohio 5769 ( 2016 )

[Cite as BankUnited v. Klug, 2016-Ohio-5769.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
BANK UNITED, ASSIGNEE OF THE C.A. No. 16CA010923
FDIC
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
CAREY KLUG, et al. COUNTY OF LORAIN, OHIO
CASE No. 09CV162884
Appellants
DECISION AND JOURNAL ENTRY
Dated: September 12, 2016
SCHAFER, Judge.
{¶1} Defendant-Appellant, Charleen Chips, appeals the judgment of the Lorain County
Court of Common Pleas finding that the mortgage of Plaintiff-Appellee, BankUnited F.S.B., as
assignee of the FDIC (“BankUnited”), had priority over her dower interest. This Court dismisses
the appeal for lack of jurisdiction.
I.
{¶2} This is the second appeal taken involving this foreclosure action. In the previous
appeal, BankUnited v. Klug, 9th Dist. Lorain No. 11CA010068, 2013-Ohio-1599, this Court set
forth the basic underlying factual and procedural history as follows:
On January 10, 2005, while unmarried, Carey Klug obtained a $1,000,000
loan from BankUnited, for which he executed a promissory note payable to
BankUnited. He secured the note with a mortgage on a property that he owned in
Avon Lake, Ohio (“the property”). On September 17, 2005, Mr. Klug married
Charleen Chips. On June 23, 2006, while married to Ms. Chips, Mr. Klug
refinanced his loan with BankUnited. As part of the refinancing, Mr. Klug
executed a note in the amount of $1,050,000 payable to BankUnited, and he
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secured the note with a new mortgage on the property. The 2006 mortgage states
that Mr. Klug was “an unmarried man[.]” Ms. Chips did not sign, and was not
referenced on, any of the above documents.
In 2009, BankUnited commenced a foreclosure action against Mr. Klug,
his “[u]nknown [s]pouse,” and the Lorain County Treasurer to foreclose on the
2006 mortgage, to marshal the liens on the property, and to obtain a monetary
judgment on the 2006 note. Ms. Chips answered the complaint, setting forth that
she had a dower interest in the subject property, which she contended was
superior to BankUnited’s interest. BankUnited then filed an amended complaint,
in which it asserted that its interest in the property was superior to the dower
interest claimed by Ms. Chips due to the doctrines of equitable mortgage and
equitable subrogation. Ms. Chips answered the amended complaint, denying that
BankUnited’s interest in the property was superior to her dower interest.
Thereafter, BankUnited and Ms. Chips each filed motions for summary judgment.
In their motions, each party claimed that there was an absence of material fact as
to the priority of their respective interests.
Id. at ¶ 2-3. The trial court ultimately denied BankUnited’s motion for summary judgment in
regard to its claims for equitable mortgage and equitable subrogation against Ms. Chips. Id. at 4.
However, the trial court granted Ms. Chips’ summary judgment motion against BankUnited on
its equitable claims and determined that she had a “one-third dower interest” in the property that
was superior to BankUnited’s interest in the property. Id.
{¶3} On appeal, this Court affirmed the trial court’s denial of BankUnited’s motion for
summary judgment on its equitable claims, but reversed the trial court’s granting of summary
judgment to Ms. Chips on its claims for equitable mortgage and equitable subrogation. Id. at ¶
21, ¶ 29. In expressing no opinion as to whether BankUnited would ultimately be able to
establish the applicability of these equitable doctrines, this Court remanded the matter “for
further proceedings on the applicability of BankUnited’s claims of equitable mortgage and
equitable subrogation, and, if such claims apply, the effect of the claims on Ms. Chips’ dower
interest.” Id. at ¶ 31.
{¶4} On remand, the magistrate held a hearing on the applicability of the doctrines of
equitable mortgage and/or equitable subrogation. On March 5, 2014, the magistrate issued a
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decision finding that the doctrines of equitable mortgage and equitable subrogation both applied
in this case and that BankUnited’s mortgage had priority over Ms. Chips’ dower interest. Ms.
Chips filed objections to the magistrate’s decision. The trial court ultimately overruled Ms.
Chips’ objections and adopted the magistrate’s decision. The trial court subsequently filed its
final foreclosure entry, which Ms. Chips appealed to this Court. However, this Court dismissed
Ms. Chips’ attempted appeal for lack of a final appealable order because the trial court’s
judgment entry failed to resolve all of the issues in the foreclosure actions, namely that the entry
failed to determine Ms. Chips’ dower interest in the property. See BankUnited v. Klug, et al., 9th
Dist. Lorain No. 14CA010645 (Oct. 14, 2014).
{¶5} On remand, the magistrate held a hearing on the calculation of Ms. Chips’ dower
interest in the property and ultimately determined that Ms. Chips was entitled to a dower interest
equal to the present value factor of 3.70866% multiplied by the surplus of foreclosure sale
proceeds remaining after all liens are paid. Ms. Chips again filed objections to the magistrate’s
decision. On January 6, 2016, the trial court overruled Ms. Chips’ objections and adopted the
magistrate’s decision. The trial court also granted judgment for foreclosure. On January 22,
2016, the trial court issued an amended judgment entry and foreclosure decree in order to correct
minor typographical errors.
{¶6} Ms. Chips filed this appeal and raises three assignments of error for this Court’s
review. However, we cannot address the merits of Ms. Chips’ assignments of error because we
lack jurisdiction over this appeal.
Assignment of Error I
The trial court abused its discretion when it found that equitable subrogation
and equitable mortgage applied to Appellant’s case.
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Assignment of Error II
The trial court abused its discretion by finding that equitable subrogation
and/or equitable mortgage applied when Appellee BankUnited’s witness
lacked personal knowledge under Evid.R. 602 to testify.
Assignment of Error III
The trial court abused its discretion by finding that Appellant Charleen
Chips’ dower did not have priority over Appellee’s mortgage and should be
calculated from the surplus of foreclosure sale proceeds after costs.
{¶7} This Court initially questions its jurisdiction to hear this appeal. When
jurisdiction appears uncertain, a court of appeals must raise issues of jurisdiction sua sponte.
Kouns v. Pemberton, 84 Ohio App.3d 499, 501 (4th Dist.1992), citing In re Murray, 52 Ohio
St.3d 155, 159, fn. 2 (1990).
{¶8} Article IV, Section 3(B)(2) of the Ohio Constitution and R.C. 2505.03(A) restrict
the appellate jurisdiction of courts of appeal to the review of final orders. Flynn v. Fairview
Village Retirement Community, Ltd., 132 Ohio St.3d 199, 2012–Ohio–2582, ¶ 5. In the absence
of a final order, an appellate court has no jurisdiction. Gehm v. Timberline Post & Frame, 112
Ohio St.3d 514, 2007–Ohio–607, ¶ 14. An order is final only if it meets the requirements of
R.C. 2505.02 and, if applicable, Civ.R. 54. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d
299, 2014–Ohio–1984, ¶ 10. Pursuant to R.C. 2505.02(B), an order is a final order when it is
one of the following:
(1) An order that affects a substantial right in an action that in effect determines
the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon
a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy * * *;
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(5) An order that determines that an action may or may not be maintained as a
class action;
(6) An order determining the constitutionality of any changes to the Revised
Code made by Am.Sub.S.B. 281 of the 124th general assembly * * *;
(7) An order in an appropriation proceeding that may be appealed pursuant to
division (B)(3) of section 163.09 of the Revised Code.
{¶9} For an order to be final under R.C. 2505.02(B)(1), the order “‘must dispose of the
whole merits of the cause or some separate and distinct branch thereof and leave nothing for the
determination of the court.’” Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc.,
114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 7, quoting Hamilton Cty. Bd. of Mental Retardation &
Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 153 (1989). In a foreclosure
action, a judgment entry is final and appealable under R.C. 2505.02(B)(1) “if it resolves all
remaining issues involved in the foreclosure. This includes the questions of outstanding liens,
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.” Mtge. Electronic Registration
Systems, Inc. v. Green Tree Servicing, LLC, 9th Dist. Summit No. 23723, 2007-Ohio-6295, ¶ 9;
see also Roznowski at ¶ 19.
{¶10} Here, the trial court’s initial judgment entry and the amended judgment entry both
set forth a formula for the determination of Ms. Chips’ dower interest in the property, but stated
that a final determination will be made after the sale of the property. This Court has held that a
“judgment that leaves issues unresolved and contemplates that further action must be taken is not
a final appealable order.” Bell v. Horton, 142 Ohio App.3d 694, 696 (2001). “However, when
the remaining issue ‘is mechanical and unlikely to produce a second appeal because only a
ministerial task similar to assessing costs remains,’ then the order is final and appealable. State
v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, ¶ 20, quoting State ex rel. White v. Cuyahoga
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Metro. Hous. Auth., 79 Ohio St.3d 543, 546 (1997); Wenger v. Wenger, 9th Dist. Wayne No.
05CA0057, 2006-Ohio-3330, ¶ 9; see also Bankers Trust Co. v. Orchard, 9th Dist. Summit No.
CA 19528, 2000 WL 254899, *2 (Mar. 8, 2000) (holding that the award was “not definite, nor
[was] a definite formula for calculating that award contained within the judgment. A court
attempting to enforce the judgment would be required to look beyond the document that
purportedly articulated the final determination of the rights and responsibilities of each party.”).
{¶11} The trial courts’ initial judgment entry sets forth the rights of all lienholders, the
responsibilities of the mortgagor, the priority of all liens, and the amounts due all lienholders,
including a definite formula calculating Ms. Chips’ dower interest. Although the judgment entry
does not specify Ms. Chips’ dower interest in terms of a fixed dollar amount, we determine that
the definite formula contained in the entry is sufficient to constitute a final appealable order
under R.C. 2505.02(B)(1). See Roznowski at ¶ 25 (“Liability is fully and finally established [in a
foreclosure action] when the court issues the foreclosure decree and all that remains is
mathematics, with the court plugging in final amounts due after the property has been sold at a
sheriff's sale.”).
{¶12} Having determined that the trial court’s January 6, 2016 judgment entry was a
final appealable order, we turn now to the timeliness of Ms. Chips’ appeal. The Supreme Court
of Ohio has held that an untimely notice of appeal does not invoke this Court’s jurisdiction. See
Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus. App.R. 4(A) requires a
notice of appeal to be filed within thirty days of the order appealed.
{¶13} In this case, the trial court issued its initial judgment entry, which was a final
order, on January 6, 2016. Although the trial court subsequently issued an “amended judgment
entry” on January 22, 2016, the trial court noted that the amended entry was issued to “correct
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minor typographical errors[.]” As a general rule, a correcting order does not extend the time for
appeal unless the order creates additional rights or denies an existing right. See Perfection Stove
Co. v. Scherer, 120 Ohio St. 445 (1929); Brush v. Hassertt, 2nd Dist. Montgomery No. 21687,
2007-Ohio-2419. As the trial court’s amended entry in this matter neither created nor denied any
rights, the amended judgment entry did not alter the timeframe in which Ms. Chips was required
to file her notice of appeal. Because Ms. Chips filed her notice of appeal on February 19, 2016,
more than 30 days after the trial court issued the January 6, 2016 judgment entry, the notice of
appeal in this matter is untimely, and this Court is without jurisdiction to consider the attempted
appeal. Consequently, this Court dismisses the appeal. See Daniels-Rodgers v. Rodgers, 10th
Dist. Franklin No. 15AP-202, 2015-Ohio-1974 (dismissing appeal for lack of jurisdiction where
the appellant did not timely appeal from the trial court’s judgment entry and the trial court’s
subsequent nunc pro tunc entry did not extend the time to appeal).
III.
{¶14} Because Ms. Chips’ notice of appeal was not timely filed, this Court cannot
consider the merits of her assignments of error. The attempted appeal is dismissed for lack of
jurisdiction.
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(C). The Clerk of the Court of Appeals is
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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.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
MARC E. DANN, Attorney at Law, for Appellant.
RUSSELL J. KUTELL, Attorney at Law, for Appellee.