Hudson City Savs. Bank v. Havener

[Cite as Hudson City Savs. Bank v. Havener, 2016-Ohio-270.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
HUDSON CITY SAVINGS BANK, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2015-G-0044
- vs - :
THOMAS G. HAVENER, et al., :
Defendants-Appellants. :
Civil Appeal from the Court of Common Pleas, Case No. 13 F 000686.
Judgment: Appeal dismissed.
Kara A. Czanik, Graydon Head & Ritchey LLP, 1900 Fifth Third Center, 511 Walnut
Street, Cincinnati, OH 45202, and Robert R. Hoose, The Law Offices of John D. Clunk
Co., L.P.A., 4500 Courthouse Boulevard, Suite 400, Stow, OH 44224 (For Plaintiff-
Appellee).
Gary Cook and Michael B. Aten, Jr., The Law Offices of Gary Cook, 3800 Lakeside
Avenue, Suite 400, Cleveland, OH 44114, and Stacey E. Polk, P.O. Box 1895,
Cleveland, OH 44106 (For Defendants-Appellants).
COLLEEN MARY O’TOOLE, J.
{¶1} This appeal is taken from an entry in which the Geauga County Court of
Common Pleas granted the motion for summary judgment of appellee, Hudson City
Savings Bank.
{¶2} The docket in this case reveals that on July 25, 2013, appellee filed a
foreclosure action against appellants, Thomas G. Havener and Kathleen B. Havener, as
well as other defendants. After appellants answered the complaint, appellee moved for
summary judgment against appellants. Appellants opposed the motion for summary
judgment and also filed a separate motion for summary judgment. In an entry dated
September 15, 2015, the trial court granted appellee’s motion for summary judgment
and entered judgment in favor of appellee and against appellants. The trial court’s entry
noted that appellee’s “counsel shall submit an appropriate Judgment Entry to [the]
Court.” On October 14, 2015, appellants filed the instant notice of appeal.
{¶3} On October 30, 2015, appellee filed with this court a motion to dismiss the
appeal due to lack of a final appealable order. No brief or memorandum in opposition to
the motion to dismiss was filed. On November 24, 2015, appellee moved the trial court
for an indefinite continuance of the matter and the deadline to submit a final entry and
foreclosure decree due to the pending appeal, which the trial court granted.
{¶4} We must determine if the September 15, 2015 entry appealed from is a
final appealable order. According to Section 3(B)(2), Article IV of the Ohio Constitution,
a judgment of a trial court can only be immediately reviewed by an appellate court if it
constitutes a “final order” in the action. Estate of Biddlestone, 11th Dist. Trumbull No.
2010-T-0131, 2011-Ohio-1299, ¶ 3. If a lower court’s order is not final, an appellate
court has no jurisdiction to review the matter and the matter must be dismissed. Gen.
Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be final
and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable,
Civ.R. 54(B).
{¶5} Pursuant to R.C. 2505.02(B), there are seven categories of a “final order,”
and if the trial court’s judgment satisfies any of them, it will be deemed a “final order”
and can be immediately appealed and reviewed by a court of appeals.
{¶6} R.C. 2505.02(B) states that:
{¶7} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
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{¶8} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶9} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
{¶10} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶11} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶12} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
{¶13} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶14} “(5) An order that determines that an action may or may not be maintained
as a class action;
{¶15} “(6) An order determining the constitutionality of any changes to the
Revised Code * * *;
{¶16} “(7) An order in an appropriation proceeding * * *.”
{¶17} For R.C. 2505.02(B)(2) to apply to the instant matter, the entry under
review must be made in a special proceeding, which is defined as “an action or
proceeding that is specially created by statute and that prior to 1853 was not denoted as
an action at law or a suit in equity.” R.C. 2505.02(A)(2). Foreclosure actions were in
existence prior to 1853, and thus, they are not special proceedings in the context of final
appealable orders. See U.S Bank v. Denen, 11th Dist. Trumbull No. 2015-T-0102,
2015-Ohio-5070, ¶ 16. Therefore, R.C. 2505.02(B)(2) does not apply here.
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{¶18} Additionally, it is clear that the September 15, 2015 entry did not vacate a
judgment, grant a provisional remedy, deal with a class action, or determine the
constitutionality of Am. Sub. S.B. 281 or Sub. S.B. 80. Thus, R.C. 2505.02(B)(3)-(6) do
not apply to the matter at hand.
{¶19} For R.C. 2505.02(B)(1) to apply to the September 15, 2015 entry, it must
affect a substantial right, determine the action, and prevent further judgment. Typically,
a judgment ordering the foreclosure of property and the distribution of the proceeds to
the various claimants is a final appealable order. Third Natl. Bank of Circleville v.
Speakman, 18 Ohio St.3d 119 (1985). However, this court recently held that a trial
court failed to issue a final appealable order and had no jurisdiction to consider an
appeal until a final decree of foreclosure was issued. Denen, supra, at ¶ 18.
{¶20} In this case, the September 15, 2015 entry does not include any language
to proceed with a foreclosure sale, and therefore, is not a final appealable order.
Rather, it is simply prefatory to the issuance of an actual foreclosure decree ordering
the sale of the property and establishing the priority of any valid liens. Hence, until a
final decree of foreclosure is issued by the trial court, this court is without jurisdiction to
consider the merits in this matter.
{¶21} Accordingly, appellee’s motion to dismiss the appeal is granted, and this
appeal is hereby dismissed for lack of a final appealable order.
{¶22} Appeal dismissed.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.
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