Freedom Mtge. Corp. v. Petty

[Cite as Freedom Mtge. Corp. v. Petty, 2011-Ohio-3067.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95834
FREEDOM MORTGAGE CORPORATION
PLAINTIFF-APPELLANT
vs.
JUANITA PETTY, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED AND MODIFIED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-679554
BEFORE: Rocco, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 23, 2011
-i-
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ATTORNEYS FOR APPELLANT
Peter J. Vance
Romi T. Fox
Thomas L. Henderson
Sherrie M. Miday
Kimberlee S. Rohr
Lerner, Sampson & Rothfuss
120 E. Fourth Street - 8th Floor
Cincinnati, Ohio 45202-7012
ATTORNEY FOR APPELLEES
Robert S. Belovich
9100 South Hills Blvd.
Suite 300
Broadview Heights, Ohio 44147
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Freedom Mortgage Corporation (“Freedom”)
appeals from the trial court’s orders in favor of defendant-appellee Juanita
Petty on Freedom’s complaint in which it sought judgment on a note of
indebtedness and foreclosure on Petty’s property.
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{¶ 2} Freedom presents five assignments of error. It argues the trial
court improperly denied its motions for default judgment, summary
judgment, and judgment on the pleadings. Freedom further argues the trial
court acted improperly in overruling the magistrate’s decision in its favor.
Finally, Freedom asserts the trial court erred in dismissing this case with
prejudice.
{¶ 3} Upon a review of the record, this court cannot find any error
occurred with respect to the trial court’s orders, either on Freedom’s motions
or on the magistrate’s decision. However, Freedom’s last assignment of error
has merit, since the trial court’s dismissal of this case should have been
without prejudice.
{¶ 4} Consequently, the trial court’s orders that denied Freedom’s
motions for default judgment, summary judgment, and judgment on the
pleadings, together with its order overruling the magistrate’s decision, are
affirmed. The trial court’s order that dismissed this case is modified to a
dismissal without prejudice.
{¶ 5} Freedom filed its complaint in this case on December 19, 2008.
In the first count, Freedom alleged that it held a note of indebtedness secured
by a mortgage on property, that Petty had defaulted under the terms of the
note, and that Petty owed $94,493.53 on the note. In the second count,
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Freedom alleged that, since the note was secured by a mortgage, and since
the mortgage had been assigned to Freedom, Freedom was entitled to a
decree of foreclosure with respect to the property.
{¶ 6} Freedom attached to its complaint three exhibits; all were copies.
The first was a copy of the note; it named Petty as the “Borrower” and
Consumers Mortgage Corporation of Ohio (“Consumers”) “and its successors
and assigns” as the “Lender” of a principal sum in the amount of $96,328.00
for the purchase of a property located at 1429 E. 175th Street in Cleveland.
Petty’s signature appeared over the line marked, “BORROWER - Juanita
Petty - DATE.” A date of “10/23/06” was handwritten next to the foregoing
words.
{¶ 7} Below the line for the borrower’s signature were the typewritten
words, “WITHOUT RECOURSE PAY TO THE ORDER OF” and, further
below, “FREEDOM MORTGAGE.” The additional word “Corporation” was
handwritten underneath the foregoing, with an asterisk before the initials
“CK.” A signature appeared on the line above the words, “CONSUMERS
MORTGAGE CORPORATION OF OHIO” and “ELIZABETH MILLER,
CLOSER”; the signature could be read to be that of an Elizabeth Miller.
{¶ 8} The bottom of the document appeared to be stamped with a line
above the typed words “P.O.A. by Freedom Mortgage Corporation.”
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Handwriting appeared on the line, viz., an asterisk, and under that, the
words “Consumers Mortgage Corporation of Ohio.”
{¶ 9} The second document attached to Freedom’s complaint as an
exhibit was a copy of an “Open-End Mortgage.” Dated October 23, 2006, it
indicated it was a “security instrument,” with Juanita Petty as the
“mortgagor.” It further indicated that this security instrument was “given to
Mortgage Electronic Registrations Systems, Inc. (‘MERS’) (solely as nominee
for Lender, as hereinafter defined, and Lender’s successors and assigns), as
beneficiary.” Consumers is named as the “Lender.” Petty initialed each
page of the security instrument, and signed her name on the final page. The
document concludes with a notarization of Petty’s signature dated October 23,
2006.
{¶ 10} The last exhibit Freedom attached to its complaint was a copy of
a document entitled, “Assignment of Mortgage.” The first page of this
document states, in pertinent part, “ the undersigned, Mortgage Electronic
Registrations Systems Inc[. ,] as nominee for Consumers Mortgage
Corporation,” transferred the Petty mortgage to Freedom, “whose address is
Loan Care Servicing Center” in Virginia Beach, Virginia. The second page
indicates that “Zeta Duffee Vice President” signed the document on behalf of
MERS “as nominee” for Consumers on the “20th day of November, 2008.”
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{¶ 11} The record reflects the trial court referred this case to a
magistrate the same day that Freedom filed it. Two days later, on December
21, 2008, a “preliminary judicial report” was filed. It indicated “First
American Title Insurance” had performed a title search on the mortgaged
property, and this report had been “Prepared for: Loan Care Servicing
Center.” The report further indicated the property was “free from all
encumbrances * * * except as shown in Schedule B.” The first item listed on
“Schedule B” was an “Open End Mortgage in the amount of $96,328.00 from
Juanita Petty, unmarried, to Mortgage Electronic Registration Systems, Inc.
as nominee for Consumers Mortgage Corporation of Ohio, dated October 23,
2006, recorded October 24, 2006 * * * .”
{¶ 12} On January 5, 2009, Petty filed in the trial court a letter
addressed, “To: Whom it may concern.” She stated therein that she asked
“you to reconsider your decision to file foreclosure on [her] home.” She
further indicated she had fallen “behind” in her payments through no fault of
her own but remained willing to do everything possible to reinstate her home
loan. Petty indicated she understood her “obligations and commitment to
the Lender,” and was “hoping you will take this into consideration.”
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{¶ 13} On January 11, 2009, the trial court issued a journal entry
stating that “the defendant ha[d] answered” the complaint. The court also
set a date for a case management conference (“CMC”).
{¶ 14} On January 29, 2009, an attorney entered a notice of appearance
on Petty’s behalf. Counsel made no request, however, to file an amended
answer.
{¶ 15} On February 13, 2009, the trial court issued a post-CMC journal
entry ordering Freedom, in pertinent part, to provide “payoff figures,
reinstatement figures, and loss mitigation information within 14 days,” and
to attend a mediation on April 17, 2009.
{¶ 16} Although Freedom’s counsel filed a timely “notice of compliance,”
in which she informed the trial court that she had sent the required
information to Petty’s attorney, the record fails to reflect Freedom’s counsel
submitted that information to the court itself.
{¶ 17} On April 20, 2009, after the mediation, the trial court issued a
journal entry setting dates for dispositive motions. The case also was set for
trial on August 3, 2009. The journal entry stated that a “representative of
Freedom Mortgage Company” must be “present in person” on the date of the
final pretrial hearing, and further stated that failure to comply “shall result
in dismissal for want of prosecution.”
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{¶ 18} On April 24, 2009, the trial court issued a journal entry that
noted as follows:
{¶ 19} “When moving for default or summary judgment, the moving
party is ordered to file proof that it owned the note and mortgage at the time
the within case was filed. If the moving party cannot prove [the foregoing], *
* * it lacks standing and the court will dismiss the case pursuant to the
holding in Wells Fargo v. Jordan, [Cuyahoga App. No. 91675,] 2009 Ohio 1092* * * . Failure to comply with this entry will result in the court dismissing
the case.”
{¶ 20} On May 8, 2009, Freedom filed a motion that stated, in its
entirety, as follows:
{¶ 21} “Now comes the plaintiff, Freedom Mortgage Corporation, and
moves the Court for a Default Judgment and Decree in Foreclosure in its
favor for the relief prayed for in its Complaint herein. This motion is made
pursuant to Rule 55 of the Ohio Rules of Civil Procedure.”
{¶ 22} That same day, Freedom filed a motion for summary judgment.
Freedom asserted there was no genuine issue of material fact and that it was
entitled to judgment on its complaint. Freedom attached to its motion the
affidavit of Serafin Hernandez.
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{¶ 23} Hernandez averred that she was “Vice-President of Loan Care
Servicing Center[,] servicing agent for Freedom,” and that, in her job position,
she had “custody of the accounts of said company, including the account of
Juanita Petty.” Hernandez further averred “that the records and accounts of
said company are compiled at or near the time of occurrence of each event by
persons with knowledge of said events, that said records are kept in the
course of its regularly conducted business activity, and that it is the regular
practice to keep such records * * * .”
{¶ 24} Hernandez also averred Freedom was “the holder of the note and
mortgage which are the subject of the within foreclosure action,” and “true
and accurate reproductions of the originals as they exist in Plaintiff’s files”
were attached. Hernandez averred that “there has been a default in
payment under the terms,” therefore, since “the account is due for the August
1, 2008 payment and all subsequent payments,” Freedom had “elected to
accelerate the entire balance due.” Attached as an exhibit to the affidavit
were copies of the note and mortgage.
{¶ 25} Freedom also provided a “supplemental affidavit” from its
attorney. The attorney averred that her affidavit was “based upon personal
knowledge.” The attorney averred she “caused the records of the Cuyahoga
County Recorder’s office to be searched for the real estate,” that “the judicial
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reports” she procured were “filed” in the action, and that Freedom was “the
holder of the note and mortgage,” that copies of these two documents had
been attached to both the complaint and “the Affidavit in Support of [the
motion for] Summary Judgment,” and that the “[n]ote attached to the
Complaint contain[ed] an endorsement.”
{¶ 26} According to the note, Consumers endorsed it to Freedom on
October 23, 2006. According to the assignment, MERS was Consumers’
“nominee,” and MERS had assigned the mortgage to Freedom in November
2008. Nothing indicates the latter was recorded. However, a “final judicial
report” appears in the record that states the assignment had been recorded on
December 19, 2008.1
{¶ 27} Petty filed briefs in opposition to both the motion for default
judgment and the motion for summary judgment. In the latter, Petty
contended that Freedom’s documents failed to prove it was an assignee of the
lender. The trial court subsequently issued separate journal entries denying
each of Freedom’s motions.
{¶ 28} On July 31, 2009, two days prior to the date set for trial, Freedom
filed a Civ.R. 12(C) motion for judgment on the pleadings. Freedom argued
1As previously set forth, this was the date the complaint was filed.
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that Petty had “waived” all of her defenses to the allegations made in its
complaint.
{¶ 29} The record reflects the matter proceeded to trial before the
magistrate. At the outset, the magistrate orally denied Freedom’s Civ.R.
12(C) motion on the basis that it was untimely. Freedom proceeded to
present testimony from Grisel Marrero.
{¶ 30} Marrero stated she was “default manager for LoanCare Servicing
Center.” She further stated that her company was the “subservicer” for
Petty’s “account,” that her company was responsible for enforcing the note,
and that Freedom was the “rightful owner of the servicing rights.” She
stated that MERS was a “system” utilized “whenever transfers of loans
happen in the industry, so that when you move from one particular client or
owner of record it is registered to them, which will avoid actually having to do
the manual paperwork for each loan.”
{¶ 31} In her testimony, Marrero identified documents presented to her
as “true and accurate cop[ies].” She claimed Freedom “bought the mortgage”
on Petty’s property from Consumer “back at the origination time,” and that
this fact was “documented” by the endorsement on “the note” beneath the
borrower’s signature.
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{¶ 32} During her testimony, Marrero identified some documents that
are not, however, included in the record on appeal.2 One of them was the
“notice of assignment, sale or transfer of servicing rights.” Marrero stated
this document “is typically given at the closing of the loan,” and served to
“notify the borrower of the assignment or the transfer of rights, in this
particular case from Consumer [sic] Mortgage Corporation to Freedom
Mortgage Corporation, LoanCare Servicing Center.”
{¶ 33} According to the magistrate’s comment, another was “captioned
Corporate Resolution at the top.” Marrero testified this document “provides
the individuals at LoanCare Servicing Center that can sign or execute
documents on behalf of MERS.” Marrero further indicated that the person
whose signature appeared on the “Assignment of Mortgage,” viz., Zeta Duffee,
was an employee of LoanCare, and that the Corporate Resolution showed
Duffee was “identified as a certifying officer” who had the authority to sign on
MERS’ behalf.
2The face page of the transcript of trial contains a notation that states: “No
exhibits have been filed by the court reporter preparing this transcript. There was
no court reporter present at the trial of this matter. The transcript was produced
by [the undersigned], an Official Court Reporter, from an audio recording. After a
review of the court’s file, calls to the magistrate and the court’s bailiff, no exhibits
could be found.”
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{¶ 34} Petty also testified at trial. She indicated she could not
remember either receiving a notice of assignment at the closing of the
transaction, or which entity received her mortgage payments.
{¶ 35} The magistrate subsequently issued a decision finding that
Freedom demonstrated it owned the note and mortgage. The magistrate
further determined, in pertinent part, that Petty “executed and delivered” the
note to Consumers and the mortgage to MERS, that Consumers endorsed the
note to Freedom, that MERS assigned the mortgage to Freedom, that Petty
defaulted on the note, and that Freedom was within its rights to seek
foreclosure on the property. The magistrate’s decision fails to mention any
ruling on Freedom’s motion for judgment on the pleadings; instead, the
magistrate issued a “journal entry” to that effect that the trial court never
specifically adopted.
{¶ 36} Petty filed objections to the magistrate’s decision. She argued
Marrero’s testimony had been inadequate to prove Freedom’s ownership.
Petty specifically referred to the “Corporate Resolution”; she contended
Marrero lacked any personal knowledge about the exhibit, the exhibit
contained neither a signature identifiable as that of the corporate secretary
nor a “corporate seal,” and the pages of the exhibit did not match.
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{¶ 37} Freedom filed a brief in opposition to Petty’s objections.
Freedom argued that since Petty had not specifically denied the authenticity
of the documents in her answer, she waived any challenge to them.
Freedom also argued the magistrate properly admitted into evidence all of its
exhibits as business records.
{¶ 38} After Petty filed a response, the trial court issued a journal entry
overruling the magistrate’s decision. The trial court subsequently issued a
judgment that dismissed Freedom’s complaint with prejudice.
{¶ 39} In its opinion, the trial court held that Marrero was unqualified
to provide testimony about the assignment of the note and the mortgage.
The court determined that, since Freedom “failed to prove that it was
properly assigned the Mortgage and the Note,” it failed to prove its case.
{¶ 40} Freedom filed a timely appeal from the order of dismissal, and
presents five assignments of error, as follows:
{¶ 41} “I. The trial court erred in denying Freedom’s motion for
default judgment where Petty failed to plead or otherwise defend as
provided by the Ohio Rules of Civil Procedure.
{¶ 42} “II. The trial court erred in denying Freedom’s motion
for summary judgment where Petty admitted the allegations in the
complaint and Freedom proved its case-in-chief.
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{¶ 43} “III. The trial court erred in denying Freedom’s motion
for judgment on the pleadings where Petty admitted the allegations
in the complaint and Freedom proved its case-in-chief.
{¶ 44} “IV. The trial court erred in overruling the magistrate’s
decision and dismissing Freedom’s case with prejudice where the
note, mortgage, and assignment were admissible evidence that
established Freedom’s right to judgment as a matter of law.
{¶ 45} “V. The trial court erred in dismissing Freedom’s case
with prejudice for lack of standing.”
{¶ 46} In its first assignment of error, Freedom argues the trial court
acted improperly in denying its motion for a default judgment, because
Petty’s letter did not defeat a conclusion that Freedom deserved judgment on
the complaint. On the facts of this case, this court disagrees.
{¶ 47} A trial court’s decision to grant or deny a motion for default
judgment is reviewed on appeal for an abuse of discretion. Fitworks v.
Sciranko, Cuyahoga App. No. 90593, 2008-Ohio-4861, ¶4, citing Discover
Bank v. Hicks, Washington App. No. 06CA55, 2007-Ohio-4448. The term
“abuse of discretion” connotes more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary, or
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unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140.
{¶ 48} Civ.R. 55(A) provides in pertinent part as follows:
{¶ 49} “(A) Entry of judgment. When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules, the party entitled to a judgment by default shall
apply in writing * * * to the court * * * . * * * If, in order to enable the court to
enter judgment or to carry it into effect, it is necessary to take an account or to
determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems necessary and
proper and shall when applicable accord a right of trial by jury to the parties.”
(Emphasis added.)
{¶ 50} Only when the defendant “fails to contest the opposing party’s
allegations” by either pleading or “otherwise defending” does a default arise.
Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio
St.3d 118, 121, 502 N.E.2d 599. Since granting a default judgment is
analogous to granting a dismissal, it is a harsh remedy that is generally
disfavored. Suki v. Blume (1983), 9 Ohio App.3d 289, 459 N.E.2d 1311.
When possible, cases should be decided on their merits rather than on
17
procedural grounds. Fowler v. Coleman (Dec. 28, 1999), Franklin App. No.
99AP-319; see, also, Civ.R. 61.
{¶ 51} In this case, Freedom provided the trial court with no particular
basis on which to grant a default judgment in its favor. Freedom’s failure to
present any argument to the trial court violated Loc.R. 11(B), and also
permits this court to conclude Freedom has waived any argument with
respect to the trial court’s decision. Moreover, before Freedom filed its
motion, the trial court already had issued both a journal entry notifying
Freedom that the court had deemed Petty’s letter an answer, and a journal
entry ordering Freedom “to file proof that it owned the note and mortgage at
the time the within case was filed.” Kreps v. Pesina (Aug. 11, 1995), Lucas
App. No. L-94-212.3
{¶ 52} Under these circumstances, this court cannot find the trial court
abused its discretion in this matter. Freedom’s first assignment of error,
accordingly, is overruled.
{¶ 53} Freedom next argues in its second assignment of error that the
trial court improperly denied its motion for summary judgment. For similar
3In citing Kreps, this court is cognizant that the better practice in this case
would have been, upon being retained, for Petty’s attorney to have filed an amended
answer to Freedom’s complaint.
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reasons as those set forth above, this court finds Freedom’s argument
unpersuasive.
{¶ 54} Appellate review of summary judgments is de novo. Grafton v.
Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v.
LaPine Truck Sales & Equip. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d
860. Pursuant to Civ.R. 56, summary judgment is appropriate only when
there is no genuine issue of material fact, the moving party is entitled to
judgment as a matter of law, and reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party
being entitled to have the evidence construed most strongly in her favor.
{¶ 55} The party moving for summary judgment bears the burden of
showing that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280,
292-293, 662 N.E.2d 264. If the moving party satisfies its burden, the
nonmoving party “may not rest upon the mere allegations or denials of the
adverse party’s pleadings, but the adverse party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial.” Mootispaw v. Eckstein (1996), 76 Ohio
St.3d 383, 385, 667 N.E.2d 1197; Civ.R. 56(E). Doubts must be resolved in
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favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d
356, 358-359, 604 N.E.2d 138.
{¶ 56} When ruling on a motion for summary judgment, the only
evidence a court may consider is that which complies with Civ.R. 56. Civ.R.
56(C) provides that “pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence in the pending case,
and written stipulations of fact” are properly considered when a court rules
on a motion for summary judgment. Civ.R. 56(E) provides that “affidavits
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.” Furthermore,
sworn or certified copies of all papers referred to in an affidavit shall be
attached to or served with the affidavit.
{¶ 57} In this case, Hernandez’s affidavit neither set forth an averment
that she had personal knowledge of the facts to which she herself attested,
nor were the attached copies of the documents to which she referred “sworn or
certified.” Bank of New York v. Grome, Hamilton App. No. C-100059,
2010-Ohio-4595, ¶12-14; cf., Deutsche Bank Natl. Trust Co. v. Cassens,
Franklin App. No. 09AP-865, 2010-Ohio-2851; Great Seneca Fin. v. Felty, 170
Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶12. The affidavit of
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Freedom’s attorney suffered from a similar defect, since the attached
assignment bore no indication it had been recorded, and the “final judicial
report” that appears in the record was neither attached to the affidavit or the
motion nor authenticated. Grome; Evid.R. 901(A).
{¶ 58} Since Petty objected to the adequacy of Freedom’s evidence, the
trial court acted within its discretion to deny Freedom’s motion for summary
judgment. Bowman v. Dettelbach (1996), 109 Ohio App.3d 680, 684, 672
N.E.2d 1081; cf., Bank of New York v. Dobbs, Knox App. No. 2009-CA-000002,
2009-Ohio-4742, ¶30. 4 Accordingly, Freedom’s second assignment of error
also is overruled.
{¶ 59} In its third assignment of error, Freedom argues it was entitled to
judgment on the pleadings in this case; therefore, the magistrate improperly
denied Freedom’s Civ.R. 12(C) motion. This argument also is rejected.
{¶ 60} Typically, Civ.R. 12(C) motions are filed by defendants alleging
that the complaint fails to state a cause of action, but the rule states that
“any party” may make the motion. Howard v. Seaway Food Town, Inc. (Aug.
4Freedom’s citation to this court’s decision in Deutsche Bank Natl. Trust Co.
v. Gardner, Cuyahoga App. No. 92916, 2010-Ohio-663, is inapposite for purposes of
this assignment of error, since the matter had proceeded to trial in the lower court
and thus entailed a different standard of review.
21
14, 1998), Lucas App. No. L-97-1322. The rule also states the motion must
be made “within such time as not to delay the trial.”
{¶ 61} The trial court set this matter for trial on April 20, 2009. Trial
was scheduled for Monday, August 3, 2009. At the outset of trial, Freedom’s
counsel acknowledged that he had filed the motion at 4:07 p.m. on Friday,
July 31, 2009, less than an hour before the clerk’s office closed for the
weekend.
{¶ 62} Although the record thus reflects counsel had almost four months
to submit the motion, he provided no excuse for waiting until what was
essentially the eve of trial to do so. The magistrate rightly determined on
these facts that Freedom’s motion was untimely.
{¶ 63} The record also reflects Freedom never notified the trial court
that it objected to the magistrate’s decision on this point. This court
concludes that, under such circumstances, the trial court committed no error
in declining to address this issue.
{¶ 64} Freedom’s third assignment of error is overruled.
{¶ 65} Freedom argues in its fourth assignment of error that the trial
court erred in overruling the magistrate’s decision in its favor on the
complaint. Freedom contends the trial court improperly held in its “Findings
22
of Fact and Conclusions of Law” that Freedom’s evidence was insufficient to
establish “that it was properly assigned the Mortgage and the Note.”
{¶ 66} Civ.R. 53 places upon the court the ultimate authority and
responsibility over the magistrate’s findings and rulings. Hartt v. Munobe,
67 Ohio St.3d 3, 1993-Ohio-177, 615 N.E.2d 617. In ruling on objections to a
magistrate’s decision, the trial court is required to make a full and
independent judgment of the referred matter, and should not adopt the
findings of the magistrate unless the trial court fully agrees with them.
DeSantis v. Soller (1990), 70 Ohio App.3d 226, 232, 590 N.E.2d 886. A trial
court retains its authority to decide an issue independent of the magistrate,
since the grant of authority to a magistrate does not affect a trial court’s
inherent jurisdiction. Davis v. Reed (Aug. 31, 2000), Cuyahoga App. No.
76712, citing Proctor v. Proctor (1988), 48 Ohio App.3d 55, 59, 548 N.E.2d
287.
{¶ 67} Having stated the foregoing, this court’s review of this
assignment of error is constrained by the fact that the record on appeal does
not contain any of the exhibits admitted by the magistrate at the trial of this
matter. This court presumes that the trial court conducted the proper
independent analysis of the magistrate’s decision. Bradach v. Bradach,
Cuyahoga App. No. 88622, 2007-Ohio-3417, ¶19. It is appellant’s duty to
23
ensure the completeness of the record on appeal. Shannon v. Shannon
(1997), 122 Ohio App.3d 346, 350, 701 N.E.2d 771.
{¶ 68} The transcript of trial indicates that Freedom’s exhibits numbers
9 and 10 were of particular importance in establishing whether or not
Freedom had the necessary standing to prevail on its claims. In the absence
of the exhibits the trial court found to be relevant to its overruling of the
magistrate’s decision, this court presumes the regularity of the proceedings
below. Snyder v. Snyder, Cuyahoga App. No. 95421, 2011-Ohio-1372, ¶41,
citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400
N.E.2d 384.
{¶ 69} For the foregoing reasons, Freedom’s fourth assignment of error
is overruled.
{¶ 70} Freedom argues in its fifth assignment of error that the trial
court’s dismissal of the complaint with prejudice was unwarranted. This
court agrees.
{¶ 71} A dismissal of a claim other than on the merits should be a
dismissal without prejudice. See Chadwick v. Barba Lou, Inc. (1982), 69
Ohio St.2d 222, 226, 431 N.E.2d 660. A dismissal that is premised on
jurisdiction “operate[s] as a failure otherwise than on the merits” and should
be a dismissal without prejudice. Civ.R. 41(B)(4). The dismissal of an
24
action because one of the parties is not a real party in interest or does not
have standing is not a dismissal on the merits. Wells Fargo Bank, N.A. v.
Byrd, 178 Ohio App.3d 285, 897 N.E.2d 722, 2008-Ohio-4603, ¶18, citing
State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877
N.E.2d 968, at ¶51.
{¶ 72} The trial court determined that Freedom failed to establish it had
standing to pursue this action against Petty. Since this was a failure
otherwise than on the merits, the trial court erred in dismissing this case
with prejudice. Freedom’s fifth assignment of error, therefore, is sustained.
{¶ 73} The trial court’s orders that denied Freedom’s motions for default
judgment, summary judgment, and judgment on the pleadings are affirmed.
The trial court’s order overruling the magistrate’s decision also is affirmed.
The trial court’s order of dismissal is modified to reflect Freedom’s case is
dismissed without prejudice.
It is ordered that appellant and appellee share 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.
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_____________________________________
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR