CitiMortgage, Inc. v. Teofilo

[Cite as CitiMortgage, Inc. v. Teofilo, 2016-Ohio-4584.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
CitiMortgage, Inc., successor by merger Court of Appeals No. E-15-051
to ABN AMRO Mortgage Group, Inc.
Trial Court No. 2013-CV-0297
Appellee
v.
Greg Teofilo, et al. DECISION AND JUDGMENT
Appellant Decided: June 24, 2016
*****
Mia L. Conner, for appellee.
Greg Teofilo, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Greg Teofilo, appeals pro se from the July 31, 2015 judgment of
the Erie County Court of Common Pleas denying Teofilo’s Civ.R. 60(B) motion for relief
from the granting of summary judgment to appellee, CitiMortgage, Inc. Finding that the
trial court ruled on Teofilo’s motion while an appeal from this judgment was pending, we
conclude that the trial court’s judgment denying the motion was void and dismiss this
appeal.
{¶ 2} In 2013, CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage
Group, Inc., filed a complaint in foreclosure against Greg Teofilo and other defendants
regarding real property at 210 Cement Street, Castalia, Ohio. On July 25, 2014, the trial
court granted summary judgment to CitiMortgage, Inc. Teofilo filed a notice of appeal
from the judgment. CitiMortgage, Inc. v. Teofilo, 6th Dist. Lucas No. E-14-110, 2016-
Ohio-437. This court affirmed the granting of summary judgment on February 5, 2016.
Id.
{¶ 3} While the appeal was pending, defendant moved on May 28, 2015, to vacate
summary judgment pursuant to Civ.R. 60(B). On July 31, 2015, the trial court denied the
motion to vacate and Teofilo appealed from that judgment on August 7, 2015.
{¶ 4} On appeal, appellant asserts the following assignments of error:
Assignment of Error Number 1:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
A CIV.R. 60(B) MOTION FOR RELIEF FROM JUDGMENT
CONTAINING ALLEGATIONS THAT WOULD, IF TRUE, WARRANT
RELIEF UNDER CIV.R. 60(B) WITHOUT HOLDING A HEARING ON
SUCH ALLEGATIONS.
2.
Assignment of Error Number 2:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
CIV.R. 60(B) MOTION WITHOUT CONSIDERATION OR
EXPLANATION OF IT’S [SIC] DECISION.
Assignment of Error Number 3
THE TRIAL COURT ABUSED ITS DISCRETION BY
DENYING/RULING ON APPELLANT’S CIV.R. 60(B) MOTION FOR
RELIEF FROM JUDGMENT WHILE THE CASE WAS UNDER
APPEAL WITHIN CASE E-14-0094 [sic] REMAND WAS DENIED BY
THE COURT OF APPEALS ON JUNE 17TH 2015, [sic]
{¶ 5} We begin by addressing Teofilo’s third assignment of error first. Teofilo
argues the trial court lacked jurisdiction to rule on his Civ.R. 60(B) motion for relief from
the granting of summary judgment while an appeal of that judgment was pending.
{¶ 6} We agree. “[A]n appeal divests trial courts of jurisdiction to consider Civ.R.
60(B) motions for relief from judgment” while the appeal is pending. Howard v.
Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St. 3d 141, 147, 637 N.E.2d 890
(1994). See also In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9; In
re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1943), paragraph two of the syllabus.
However, the court of appeals may remand the case to the trial court, giving it subject-
matter jurisdiction to rule on the motion. Howard.
3.
{¶ 7} Appellee argues that ruling on the Civ.R. 60(B) motion was only harmless
error. We disagree. Judgments entered without subject-matter jurisdiction are void
ab initio. State ex rel. Ohio Democratic Party v. Blackwell, 111 Ohio St. 3d 246, 2006-
Ohio-5202, 855 N.E.2d 1188, ¶ 8. Any appeal from a void judgment must be dismissed
for lack of a final, appealable order. Horvath v. Packo, 2013-Ohio-56, 985 N.E.2d 966,
¶ 13 (6th Dist.). The judgment must be treated like it never existed. State v. Simpkins,
117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 19. Therefore, the harmless
error doctrine cannot be applied to void judgments.
{¶ 8} In this case, the trial court’s judgment was rendered when it lacked subject-
matter jurisdiction and is, therefore, void. This appeal is hereby ordered dismissed at
appellant’s costs.
Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
4.
CitiMortgage, Inc. v. Teofilo
C.A. No. E-15-051
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.