Bank of Am. v. Telerico

[Cite as Bank of Am. v. Telerico, 2014-Ohio-434.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
BANK OF AMERICA, A NATIONAL : MEMORANDUM OPINION
BANKING ASSOCIATION, AS
SUCCESSOR IN INTEREST BY :
MERGER TO MERRILL LYNCH CREDIT CASE NO. 2013-P-0069
CORPORATION, :
Plaintiff-Appellee, :
- vs - :
LOUIS A. TELERICO, et al., :
Defendants-Appellants. :
Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 01105.
Judgment: Appeal dismissed.
David A. Freeburg, McFadden & Freeburg Co., L.P.A., 1370 Ontario Street, Suite 600,
Cleveland, OH 44113 (For Plaintiff-Appellee).
Susan J. Lax, 755 White Pond Drive, #403, Akron, OH 44320 (For Defendants-
Appellants).
DIANE V. GRENDELL, J.
{¶1} This appeal is taken from a judgment of the Portage County Court of
Common Pleas, in which the trial court granted appellee, Bank of America, a National
Banking Association, as Successor in Interest by Merger to Merrill Lynch Credit
Corporation, judgment against appellants, Louis A. Telerico, Louis A. Telerico, Trustee
of the Elaine J. Telerico Trust, and Louis A. Telerico, Trustee of the Louis A. Telerico
2007 Amended and Restated Revocable Trust Indenture.
{¶2} The docket in this case reveals that on August 23, 2011, appellee filed a
foreclosure complaint against appellants in the Portage County Court of Common
Pleas. After appellants answered the complaint and counterclaimed, appellee moved
for summary judgment on the note and the mortgage, as well as on the counterclaim.
Appellants filed a motion to strike the motion for summary judgment, and appellee filed
a brief in opposition to the motion to strike. In an entry dated April 15, 2013, the trial
court overruled appellants’ motion to strike appellee’s motion for summary judgment,
granted appellee’s motion for summary judgment, and ordered the parties to draft a final
judgment entry. Pursuant to that entry, appellee submitted a final entry of judgment to
the trial court on July 23, 2013.
{¶3} The July 23, 2013 entry granted appellee judgment against appellants in
the amount of $2,999,985, plus interest equal to $238,492.60 as of April 15, 2013, and
costs. The entry also stated that appellee is “entitled to judgment finding that its
mortgage is the first and best lien on the property * * *” and that “one or more of the
Defendants have a subordinate lien on the property.” Further, the last paragraph in the
entry indicates that “there is no just reason for delay.” On August 22, 2013, appellants,
by and through counsel of record, Susan J. Lax, filed the instant notice of appeal.
{¶4} We must determine whether the order 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 be immediately reviewed by an appellate court only if it constitutes a “final
order” in the action. Estate of Biddlestone, 11th Dist. No. 2010-T-0131, 2011-Ohio-
1299, ¶ 3. If a lower court’s order is not final, a reviewing court has no jurisdiction to
review the matter and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. of N.
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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 judgment of the trial court 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:
{¶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;
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{¶15} “(6) An order determining the constitutionality of any changes to the
Revised Code * * *;
{¶16} “(7) An order in an appropriation proceeding * * *.”
{¶17} In the case at hand, for R.C. 2505.02(B)(2) to apply, the order 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). Since foreclosure actions were
in existence prior to 1853, they are not special proceedings in the context of final
appealable orders. See Second Natl. Bank of Warren v. Walling, 7th Dist. No. 01-C.A.-
62, 2002-Ohio-3852, ¶17. Therefore, R.C. 2505.02(B)(2) does not apply.
{¶18} In addition, it is clear that the July 23, 2013 entry does 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.
{¶19} For R.C. 2505.02(B)(1) to apply to the July 23 judgment entry, it must
affect a substantial right, determine the action, and prevent further judgment. Typically,
a judgment entry 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).
{¶20} This court has determined that there is no final appealable order where a
judgment entry merely rules that a party had a valid lien on the property and was
entitled to a future order of foreclosure. See BCGS, L.L.C. v. Raab, 11th Dist. No. 98-L-
041, 1998 Ohio App. LEXIS 6584. Furthermore, other appellate courts have held that
an entry “ordering a foreclosure sale is not a final and appealable order unless it
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resolves all of the issues involved in the foreclosure, including: whether an order of sale
is to be issued; what other liens must be marshaled before distribution is ordered; the
priority of any such liens; and the amounts that are due to the various claimants.”
Centex Home Equity Co., LLC v. Williams, 3d Dist. No. 6-06-07, 2007-Ohio-902, ¶ 17.
{¶21} This court has also stated that until a final decree of foreclosure has been
issued, appellate courts have no jurisdiction to consider an appeal because the trial
court has failed to issue a final appealable order. Mortgage Electronic Registration
Systems, Inc. v. Estate of Rose, 11th Dist. No. 2004-L-120, 2005-Ohio-559.
{¶22} Here, the July 23, 2013 entry does not include any language to proceed
with a foreclosure sale. At most, the trial court ruled that appellee had a valid lien on
the property and was entitled to future order of foreclosure. Hence, the July 23, 2013
entry appealed from is not a final appealable order, but rather 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.
{¶23} Therefore, we find that the trial court has not yet issued a final appealable
order. Until a final decree of foreclosure is issued, this court is without jurisdiction to
consider the merits in this matter. Furthermore, merely including Civ.R. 54(B) language
into an otherwise non-final order does not transform it into a final one. Bristol Twp. Bd.
of Trustees v. Haney, 11th Dist. No. 2010-T-0084, 2010-Ohio-3965, ¶ 5.
{¶24} Accordingly, this appeal is hereby dismissed, sua sponte, for lack of a final
appealable order.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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