Deutsche Bank Natl. Trust Co. v. Jones

[Cite as Deutsche Bank Natl. Trust Co. v. Jones, 2018-Ohio-3286.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
DEUTSCHE BANK NATIONAL TRUST :
COMPANY, TRUSTEE :
: Appellate Case No. 27936
Plaintiff-Appellee :
: Trial Court Case No. 2017-CV-1937
v. :
: (Civil Appeal from
MARLAINE Y. JONES, et al. : Common Pleas Court)
:
Defendant-Appellant :
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OPINION
Rendered on the 17th day of August, 2018.
...........
SCOTT A. KING, Atty. Reg. No. 0037582, and TERRY W. POSEY, Atty. Reg. No.
0078292, Austin Landing I, 10050 Innovation Drive, Suite 400, Dayton, Ohio 45342
Attorneys for Plaintiff-Appellee
WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Dayton, Ohio 45459
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Marlaine Y. Jones appeals a judgment of the
Montgomery County Court of Common Pleas, Civil Division, granting the motion of
plaintiff-appellee Deutsche Bank National Trust Company (hereinafter referred to as “DB”)
to vacate a prior judgment of foreclosure pursuant to Civ.R. 60(B). Jones filed a timely
notice of appeal with this Court on March 13, 2018.
{¶ 2} On April 24, 2017, DB filed a complaint in foreclosure against Jones. Jones
filed a pro se answer to DB’s complaint on May 22, 2017. Thereafter, DB filed a motion
for summary judgment on August 21, 2017. On August 22, 2017, the trial court issued
an entry ordering that any opposition to DB’s motion for summary judgment be submitted
on or before September 12, 2017. On September 3, 2017, counsel for Jones filed a
motion requesting an extension of time in which to file a response to DB’s motion for
summary judgment. The trial court granted Jones a 30-day extension in an entry issued
on September 11, 2017.
{¶ 3} On October 5, 2017, Jones filed a motion requesting a second extension of
time. In her motion, Jones argued that she had previously sent a discovery packet to DB
in which she specifically requested it produce the original promissory note for the property
in question. Thus, Jones requested that the trial court hold the summary judgment
proceedings in abeyance until DB produced the original promissory note.
{¶ 4} On October 10, 2017, the trial court scheduled a status conference for the
case to be held before a magistrate on November 9, 2017. However, on October 26,
2017, the trial court granted DB’s motion for summary judgment and issued a Foreclosure
Decree without first addressing Jones’s motion requesting a second extension of time or
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the scheduled status conference to be held before the magistrate.
{¶ 5} One day later on October 27, 2017, Jones filed a notice of appeal with this
Court in Montgomery App. No. CA 27788. In her appellate brief filed on November 13,
2017, Jones argued that she had been denied the opportunity to inspect the original
promissory note. Accordingly, Jones requested that we vacate the Foreclosure Decree
and remand the case to the trial court.
{¶ 6} Thereafter, on February 12, 2018, DB filed a motion in this Court requesting
that we remand the case to the trial court so that it could vacate the Foreclosure Decree
judgment, thereby allowing Jones to inspect the original promissory note and then
ostensibly file a memorandum in opposition to DB’s motion for summary judgment. On
February 27, 2018, DB filed a motion to vacate the Foreclosure Decree with the trial court.
{¶ 7} On March 5, 2018, we granted DB’s motion and remanded the case to the
trial court. On March 12, 2018, the trial court granted DB’s motion to vacate the
Foreclosure Decree judgment. Jones filed a timely notice of appeal with this Court on
March 13, 2018. (Montgomery App. No. CA 27936). We note that on April 17, 2018, we
dismissed Jones’s first appeal in Case No. CA 27788, finding that the appeal was
rendered moot because the trial court vacated the Foreclosure Decree judgment.
{¶ 8} Accordingly, the instant appeal in Case No. CA 27936 is now properly before
this Court.
{¶ 9} Jones’s first assignment of error is as follows:
THE ORDER GRANTING PLAINTIFF’S MOTION TO VACATE WAS
CONTRARY TO LAW IN THAT THE MOTION UPON WHICH IT WAS
BASED WAS FILED WHEN THE COURT OF APPEAL[S] HAD
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EXCLUSIVE JURISDICTION OF THE MATTER, AND THE SAID MOTION
WAS A NULLITY AND COULD NOT HAVE BEEN RULED UPON BY THE
TRIAL COURT.
{¶ 10} In her first assignment, Jones contends that because her appeal was
pending before this Court in Case No. CA 27788, the trial court was without jurisdiction
to rule on DB’s motion to vacate the Foreclosure Decree judgment.
{¶ 11} The proper procedure in filing a motion for relief from judgment while an
appeal is pending is to obtain from the trial court certification that it will consider the motion
and then move the court of appeals, for good cause shown, to remand the matter to the
trial court for the limited purpose of conducting a hearing on and deciding the motion for
relief from judgment. Majnaric v. Majnaric, 46 Ohio App. 2d 157, 161, 347 N.E.2d 552
(9th Dist.1975); see also Best Toy Mfg. Co. v. Good Time Servs., Inc., 2d Dist.
Montgomery Nos. 8185, 8406, 1984 WL 5421 (Jan. 12, 1984) (trial court erred when it
denied appellant's motion for relief from judgment on the basis that it lacked jurisdiction
over such motion while an appeal was pending, when appellant filed a motion for
certification which requested the trial court to certify that it would consider appellant's
motion for relief from judgment).
{¶ 12} As previously stated, on February 12, 2018, DB filed a motion in this Court
requesting that we remand the case to the trial court so that it could vacate the
Foreclosure Decree judgment. We note that Jones’s appeal in Case No. CA 27788 was
pending at the time. Thereafter, on February 27, 2018, DB filed a motion to vacate the
Foreclosure Decree with the trial court. On March 5, we granted DB’s motion and
remanded the case to the trial court, thus providing the trial court with jurisdiction to
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consider the motion to vacate. After we remanded the case, the trial court granted DB’s
motion to vacate the Foreclosure Decree judgment on March 12, 2018.
{¶ 13} In the instant case, we note that DB did not obtain a certification from the
trial court that it would consider the motion to vacate prior to filing the motion in this Court
requesting that we remand the case to the trial court. Aside from that minor procedural
deficiency, DB procured a remand from this Court on March 5, 2018, so that the trial court
could properly consider its motion to vacate the Foreclosure Decree judgment.
Significantly, the trial court did not rule on the motion to vacate until March 12, 2018, at
which time it had proper jurisdiction to consider the motion. Accordingly, we find that the
trial court had jurisdiction to consider and rule upon DB’s motion to vacate the Foreclosure
Decree judgment.
{¶ 14} Jones’s first assignment of error is overruled.
{¶ 15} Jones’s second assignment of error is as follows:
THE ORDER GRANTING PLAINTIFF’S MOTION TO VACATE WAS
CONTRARY TO LAW AS THE [PLAINTIFF] FAILED TO SHOW THAT
THERE WAS A MERITORIOUS CLAIM OR DEFENSE, MISTAKE,
INADVERTENCE, OR EXCUSABLE NEGLECT, AS IS REQUIRED BY
CIV.R. 60(B), AND THE TRIAL COURT’S CORRECTION OF ITS
PREVIOUS ORDER GRANTING SUMMARY JUDGMENT AS A MATTER
OF LAW AND DECREE OF FORECLOSURE, WAS CONTRARY TO THE
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS TO REVIEW
FINAL ORDERS.
{¶ 16} In her second and final assignment of error, Jones argues that the trial court
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erred when it granted DB’s motion to vacate the Foreclosure Decree judgment for the
following reasons: 1) the trial court lacked jurisdiction to vacate the judgment; 2) DB could
not have moved to vacate the judgment while the appeal in Case No. CA 27788 was
pending; and 3) DB could not use Civ.R. 60(B) as a substitute for appeal.
{¶ 17} Civ.R. 60(B) permits trial courts to relieve a party from a final judgment for
the following reasons: (1) “mistake, inadvertence, surprise or excusable neglect;” (2)
newly discovered evidence; (3) fraud, misrepresentation or other misconduct of an
adverse party; (4) the judgment has been satisfied, released or discharged; or (5) any
other reason justifying relief from the judgment. In order to prevail on a motion brought
under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious
defense or claim to present if relief is granted; (2) the party is entitled to relief under one
of the grounds stated in Civ.R. 60(B); and (3) the motion is made within a reasonable time
and, for reasons under Civ.R. 60(B)(1)-(3), not more than one year after judgment. GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus. All of these requirements must be satisfied, and the
motion should be denied if any one of the requirements is not met. Strack v. Pelton, 70
Ohio St. 3d 172, 174, 637 N.E.2d 914 (1994); Cincinnati Ins. Co. v. Schaub, 2d Dist.
Montgomery No. 22419, 2008–Ohio–4729, ¶ 15.
{¶ 18} We review the trial court's determination of a Civ. R. 60(B) motion for an
abuse of discretion. Griffey v. Rajan, 33 Ohio St. 3d 75, 77, 514 N.E.2d 1122 (1987). An
abuse of discretion means that the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
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{¶ 19} Initially, we note that, in the analysis of Jones’s first assignment, we found
that the trial court had jurisdiction to rule on DB’s motion to vacate the Foreclosure Decree
judgment after we remanded the matter to the trial court. Therefore, to the extent that
Jones repeats her argument in that regard here, her assignment is overruled.
{¶ 20} Furthermore, it is generally accepted that Civ.R. 60(B) relief is not a
substitute for a timely appeal. Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No.
22419, 2008-Ohio-4729, ¶ 16; State ex rel. Martin v. Ohio Adult Parole Auth., 124 Ohio
St.3d 63, 2009-Ohio-6164, 918 N.E.2d 1005, ¶ 1. However, this proposition of law is not
applicable to the instant case because DB did not appeal the trial court’s original decision
granting the Foreclosure Decree judgment. DB had no reason to appeal a ruling in its
favor. Rather, DB filed a motion in this Court seeking remand so that the trial court would
have jurisdiction to consider a motion to vacate the Foreclosure Decree judgment filed by
DB. Therefore, we find that DB did not file its motion to vacate pursuant to Civ.R. 60(B)
as a substitute for a timely appeal.
{¶ 21} Finally, we note that DB argues that it sought remand to the trial court and
filed a motion to vacate the Foreclosure Decree judgment because it had located the
original promissory note signed by Jones. DB further argues that it was only through
some mistake and/or inadvertence on its part that Jones was not provided the promissory
note during the discovery phase of the case. Jones fails to provide us with any evidence
that DB’s argument does not constitute a proper basis for a Civ.R. 60(B) motion. Upon
review, we therefore conclude that the trial court did not abuse its discretion when it
granted DB’s motion to vacate the Foreclosure Decree judgment pursuant to Civ.R. 60(B).
{¶ 22} Jones’s second and final assignment of error is overruled.
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{¶ 23} Both of Jones’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Scott A. King
Terry W. Posey
Worrell A. Reid
Michele Phipps
Hon. Michael W. Krumholtz