Fed. Natl. Mtge. Assn. v. Andolsek

[Cite as Fed. Natl. Mtge. Assn. v. Andolsek, 2019-Ohio-271.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
FEDERAL NATIONAL MORTGAGE : MEMORANDUM OPINION
ASSOCIATION (“FANNIE MAE”), A
CORPORATION ORGANIZED AND :
EXISTING UNDER THE LAWS OF THE CASE NO. 2018-L-081
UNITED STATES OF AMERICA, :
Plaintiff-Appellee, :
- vs - :
YOLANDA ANDOLSEK, et al., :
Defendants-Appellants. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CF
000892.
Judgment: Appeal dismissed.
Dean K. Hegyes, Michael L. Wiery and Katherine D. Carpenter, Reimer Law Co.,
30455 Solon Road, Solon, OH 44139 (For Plaintiff-Appellee).
David N. Patterson, P.O. Box 1423, Willoughby, OH 44096 (For Defendants-
Appellants).
CYNTHIA WESTCOTT RICE, J.
{¶1} On June 19, 2018, appellants, Yolanda Andolsek, Moya Andolsek, and
Branka Andolsek, filed a notice of appeal from the June 8, 2018 entry of the Lake
County Court of Common Pleas denying their motion to stay execution of judgment
pending modification and settlement negotiations. Appellants have failed to comply with
numerous appellate and local rules; importantly they have presented no assignment of
error or argument to support the matter appealed. Accordingly, the appeal is dismissed.
{¶2} Initially, we note this is not appellants’ first appeal filed in this court
regarding their father’s estate and ancillary matters. Two previous appeals, Case Nos.
2017-L-011 and 2017-L-151, were dismissed for lack of final appealable order. In a
third appeal, Case No. 2017-L-108, we noted appellants’ brief contained serious
violations of App.R. 16(A)(6) but allowed the case to be heard and ultimately affirmed
the trial court in that matter. However, serious violations of numerous appellate and
local rules warrant dismissal of the instant appeal.
{¶3} The underlying controversy stems from a foreclosure proceeding initiated
by appellee, Federal National Mortgage Association (“Fannie Mae”), against the three
named appellants regarding a house owned by their father at his death. In an attempt
to prevent sale of the house, appellants filed various motions with the trial court, both
pro se and through counsel, and unsuccessfully attempted mediation with Fannie Mae.
Near the end of the underlying proceeding, on June 7, 2018, appellants filed a motion,
pro se, for automatic stay of proceedings based on a purported bankruptcy of one
appellant. On June 8, 2018, appellants, through counsel, filed a motion to stay
execution of judgment pending modification and settlement negotiations. The trial court
denied the latter motion to stay execution of judgment pending modification and
settlement negotiations the same day. Two days later, on June 11, 2018, the subject
property sold at a Sherriff’s sale.
{¶4} On June 19, 2018, appellants, pro se, filed a notice of appeal from the
June 8, 2018 entry of the Lake County Court of Common Pleas denying the motion to
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stay execution of judgment pending modification and settlement negotiations. Before
appellants filed their brief, appellee filed a motion to dismiss for lack of final appealable
order. This court denied the motion, stating: ““[w]hile an order denying stay of
proceedings may not be appealable before a final order has been issued, we find no
reason why appellants cannot appeal the denial of their motion to stay execution of a
final judgment. An appeal on that issue may be narrow or limited, but there is not a
jurisdictional defect.” However, appellants’ subsequently filed brief has failed to assign
error or offer argument on this narrow issue, among other serious violations of the
appellate and local rules.
{¶5} Appellants requested two extensions of time to file their brief. We granted
both: the first through September 9, 2018 and the second through October 1, 2018. In
granting the latter, we expressly stated no further extensions would be granted.
Appellants then filed their brief on October 9, 2018, eight days past the extended
deadline. App.R.18(C) states, “[i]f an appellant fails to file the appellant’s brief within the
time provided by this rule, or within the time as extended, the court may dismiss the
appeal.” Thus, this failure alone permits dismissal of the appeal.
{¶6} In addition, however, we also note appellants’ failure to comply with
App.R. 16(A)(1)-(6), as appellants’ brief does not contain a table of contents, a table of
cases, an assignment of error on the matter appealed, a statement of the issues
presented for review, a statement of the cases, or a relevant statement of the facts.
This court’s local rules warn appellants “failure to comply with [these rules] may result in
* * * the dismissal of the appeal, without prior notice * * *.” Loc.R. 16(E).
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{¶7} Appellants are also required to present “[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies.” App.R. 16(A)(7).
Importantly, appellants have exclusively argued that appellee has violated the automatic
stay. However, matters relating to an automatic stay are not before us for review;
appellants have specifically appealed the denial of the June 8, 2018 motion to stay
execution of judgment pending modification and settlement negotiations.
{¶8} Loc.R. 103 provides that “[f]ailure to timely file a brief with assignments of
error and issues presented for review; [or] [a]ny other non-compliance with the appellate
rules or the rules of this court” constitute “good cause” for dismissal. Loc.R. 103(E),(F).
{¶9} As appellants’ brief is in serious violation of numerous appellate and local
rules and has presented no challenge to the denied motion to stay execution of
judgment pending modification and settlement negotiations, the appeal is dismissed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concurs.
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