Beneficial Ohio, Inc. v. LaQuatra

[Cite as Beneficial Ohio, Inc. v. LaQuatra, 2014-Ohio-605.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99860
BENEFICIAL OHIO, INC.
PLAINTIFF-APPELLEE
vs.
KELLY A. LAQUATRA, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-731321
BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANTS
James R. Douglass
James R. Douglass Co., L.P.A.
4600 Prospect Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Robert Hoose
Timothy R. Billick
Ted A. Humbert
Ashley E. Mueller
Jason A. Whitacre
John D. Clunk Co., L.P.A.
4500 Courthouse Blvd., Suite 400
Stow, Ohio 44224
Warren T. McClurg, II
Melissa Zujkowski
Ulmer & Berne, L.L.P.
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Target National Bank
3701 Watzata Boulevard
Mail 3CG
Minneapolis, Minnesota 55416
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendants-appellants, Kelly and Louis LaQuatra (“LaQuatra”), appeal the
trial court’s decision denying their motion to vacate the order of sale. LaQuatra’s appeal
is dismissed because it is moot.
{¶2} In August 2010, plaintiff-appellee, Beneficial Ohio, Inc. (“Beneficial”) filed
an amended complaint for foreclosure against LaQuatra seeking judgment on a
promissory note and foreclosure on a mortgage. In July 2011, the court granted the bank
judgment by default after LaQuatra did not answer the complaint.
{¶3} The property was sold in September 2011, with the order of sale returned
three days later. The decree of confirmation of sale was filed in October 2011. In
March 2013, LaQuatra moved to vacate the order of sale contending that the judgment
decree in foreclosure was not a final appealable order because, although it determined
liability, it did not fully determine damages.
{¶4} The trial court denied their motion. LaQuatra now appeals from this
decision and raise as their sole assignment of error that the trial court erred when it issued
an order of sale absent a final appealable decree in foreclosure. LaQuatra’s assignment
of error is overruled as moot.
{¶5} A review of the record shows that LaQuatra never appealed the order of
foreclosure and sale. See Mulby v. Poptic, 8th Dist. Cuyahoga No. 96863,
2012-Ohio-1037, ¶ 6, citing Emerson Tool, L.L.C. v. Emerson Family Ltd. Partnership,
9th Dist. Summit No. 24673, 2009-Ohio-6617, ¶ 13 (the first judgment that can be
appealed in a foreclosure action is the order of foreclosure and sale). Because LaQuatra
failed to pursue an appeal of the September 2011 order of sale, any argument pertaining
to the order is now barred. See Third Fed. S. & L. Assn. of Cleveland v. Baldwin, 8th
Dist. Cuyahoga No. 98592, 2012-Ohio-5708, ¶ 10-12; Citifinancial v. Haller-Lynch, 9th
Dist. Lorain No. 06CA008893, 2006-Ohio-6908.
{¶6} In addition, LaQuatra did not appeal the October 2011 confirmation order and
never moved to stay any of the foreclosure proceedings. As this court recently reiterated:
Appellant never moved to stay the confirmation. The property has been
sold and the deed has been recorded. The order of confirmation has been
carried out to its fullest extent. If this court reversed the order of
confirmation, there is no relief that can be afforded appellants. An appeal
is moot if it is impossible for the appellate court to grant any effectual
relief. Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910).
Wells Fargo Bank N.A. v. Cuevas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498, ¶ 22,
quoting Equibanks v. Rivera, 8th Dist. Cuyahoga No. 72224, 1998 Ohio App. LEXIS
185, *3 (Jan. 22, 1998).
{¶7} Much like in Cuevas, the property in this case has been sold, the order of
confirmation has been carried out, and there is no relief in this action that can be afforded
to LaQuatra. Therefore, the appeal is moot and is dismissed.
{¶8} Even if this court considered the merits of the appeal, the trial court’s
decision denying the motion to vacate the order of sale was proper. See Bank of New
York Mellon v. Adams, 8th Dist. Cuyahoga No. 99399, 2013-Ohio-5572, citing LaSalle
Bank, N.A. v. Smith, 7th Dist. Mahoning No. 11 CA 85, 2012-Ohio-4040 (undetermined
damages, such as property protection, in the decree of foreclosure can be determined at
the time of the sheriff’s sale, from which the homeowner can file a new appeal).1
{¶9} Dismissed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
This issue is currently pending in the Ohio Supreme Court on the certified
1
question of “whether a judgment decree in foreclosure is a final appealable order if
it includes as part of the recoverable damages amounts advanced by the mortgagee
for inspections, appraisals, property protection, and maintenance, but does not
include specific itemization of those amounts in the judgment.” See CitiMortgage,
Inc. v. Roznowski, 134 Ohio St.3d 1447, 2013-Ohio-347, 982 N.E.2d 726. The
certified question arose from a conflict between districts — the Fifth District’s
holding in Citimortgage, Inc. v. Roznowski, 5th Dist. Stark No. 2012-CA-93,
2012-Ohio-4901, and the Seventh District’s resolution in LaSalle.