Third Fed. S.& L. Assn. of Cleveland v. Rains

[Cite as Third Fed. S. & L. Assn. of Cleveland v. Rains, 2012-Ohio-5708.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98592
THIRD FEDERAL SAVINGS & LOAN
ASSOCIATION OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
JEAN BALDWIN RAINS, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-742680
BEFORE: Cooney, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
James R. Douglass
James R. Douglass Co., L.P.A.
20521 Chagrin Blvd., Suite D
Shaker Heights, OH 44122
ATTORNEYS FOR APPELLEE
Eric T. Deighton
Richard J. Feuerman
Carlisle, McNellie, Rini, Kramer & Ulrich Co. L.P.A.
24755 Chagrin Blvd., Suite 200
Cleveland, OH 44122
COLLEEN CONWAY COONEY, J.:
{¶1} This case came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Jean Baldwin Rains
(“Rains”), appeals from the trial court’s June 2012 confirmation of sale. Finding no merit to
the appeal, we affirm.
{¶2} In December 2010, plaintiff-appellee, Third Federal Savings and Loan
Association of Cleveland (“Third Federal”), filed a foreclosure action against Rains and
moved for summary judgment. Rains filed a brief in opposition to the motion. In August
2011, the magistrate’s decision granted summary judgment to Third Federal. No objections
to the magistrate’s decision were filed. In September 2011, the trial court entered an order of
foreclosure, adopting the magistrate’s order in its entirety, and entering judgment for Third
Federal in the amount of $209,748.34.
{¶3} In October 2011, Rains appealed the trial court’s order of foreclosure. This
court granted her motion to stay the sheriff’s sale pending the appeal. In February 2012,
however, Rains filed a motion to dismiss her appeal. This court granted her motion, and the
appeal was voluntarily dismissed.
{¶4} In June 2012, the foreclosed property was sold at sheriff’s sale pursuant to the
trial court’s September 2011 order of foreclosure. That same month, the trial court issued a
confirmation of sale, from which Rains now appeals. She has not sought a stay of the
confirmation.
{¶5} In her sole assignment of error, Rains argues that the trial court erred in entering
a confirmation of sale based on an earlier order of foreclosure that was not final and
appealable.
{¶6} R.C. 2329.31 governs confirmation of judicial foreclosure sales and provides as
follows:
Upon return of any writ of execution for the satisfaction of which lands and
tenements have been sold, on careful examination of the proceedings of the
officer making the sale, if the court of common pleas finds that the sale was
made, in all respects, in conformity with sections 2329.01 to 2329.61, inclusive,
of the Revised Code, it shall direct the clerk of the court of common pleas to
make an entry on the journal that the court is satisfied of the legality of such
sale, and that the officer make to the purchaser a deed for the lands and
tenements. Nothing in this section prevents the court of common pleas from
staying the confirmation of the sale to permit a property owner time to redeem
the property or for any other reason that it determines is appropriate. In those
instances, the sale shall be confirmed within thirty days after the termination of
any stay of confirmation.
The officer making the sale shall require the purchaser, including a lienholder,
to pay within thirty days of the confirmation of the sale the balance due on the
purchase price of the lands and tenements.
{¶7} This court will reverse a trial court’s confirmation of a sale only if the trial
court has abused its discretion. See Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55, 563
N.E.2d 1388 (1990). An abuse of discretion connotes more than an error of law or judgment;
it implies an attitude that is “unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In making its decision to
confirm a sheriff’s sale, a trial court must determine whether the sale was conducted in
accordance with R.C. 2329.01 through 2329.61 inclusive. See R.C. 2329.31. See also Sky
Bank v. Mamone, 182 Ohio App.3d 323, 2009-Ohio-2265, 912 N.E.2d 668, ¶25 (8th Dist.).
{¶8} Rains argues that the court erred in issuing a confirmation of sale because the
court’s order of foreclosure was not final and appealable. Rains claims that this was her
basis for dismissing her first appeal in February 2012. However, the issue of whether the
trial court’s September 2011 order was a final appealable order was never addressed because
the appeal was voluntarily dismissed pursuant to her motion. A thorough review of the
record reveals that the trial court’s September 9, 2011 journal entry adopting the magistrate’s
decision separately granted complete relief and was, in turn, properly executed.
{¶9} Regardless, this court made no finding regarding the appealability of the court’s
September 2011 order of foreclosure when it dismissed Rains’s appeal pursuant to her motion.
Furthermore, this court did not remand the case in order for the trial court to enter a final and
appealable order of foreclosure. Rains’s voluntary dismissal prevented this court from
addressing the issue she now raises.
{¶10} Moreover, whether an order is appealable merely relates to this court’s
jurisdiction to review it at that time and does not render it a nullity. Therefore, regardless of
whether it could have been appealed, the September 2011 order of foreclosure still stands as a
valid order from which the property was properly sold at sheriff’s sale. Because Rains failed
to pursue her appeal of this order, any argument pertaining to the September 2011 order is
now barred.
{¶11} In a similar case, the Ninth District Court of Appeals held that appellant’s
failure to timely appeal the earlier foreclosure judgment bars her from raising the same issues
when she appeals the confirmation order. Citifinancial v. Haller-Lynch, 9th Dist. No.
06CA008893, 2006-Ohio-6908, ¶ 5. Likewise, Rains’s voluntary dismissal of her appeal
bars her from raising issues regarding the order of foreclosure in the instant appeal of the
confirmation order.
“[A]ll irregularities are cured after the sale is made and confirmed. It is said
that the final order of confirmation, having the effect of a final conclusive
judgment, cures all such irregularities, misconduct, and unfairness in the making
of the sale, departures from the provisions of the decree of sale, and errors in
the decree and the proceedings under it.”
(Emphasis added.) Citimortgage, Inc. v. Haverkamp, 12th Dist. No. CA2010-11-089,
2011-Ohio-2099, ¶ 17 , quoting Peoples Liberty Bank & Trust Co. v. Cornett, 86 Ohio App.
222, 223-224, 90 N.E.2d 450 (1949).
{¶12} Any argument regarding the finality and appealability of the September 2011
order is barred. Rains has not argued any deficiency or irregularity with the confirmation
order itself. Therefore, we find no abuse of discretion in the trial court’s decision to confirm
the sheriff’s sale.
{¶13} In addition, we note that Rains failed to file a motion to stay the confirmation of
sale. Pursuant to Equibank v. Rivera, 8th Dist. No. 72224, 1998 Ohio App. LEXIS 185 (Jan.
22, 1998), her failure to seek a stay has rendered her appeal of the confirmation of sale moot.
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 to appellants. An appeal is moot if it is
impossible for the appellate court to grant any effectual relief. Miner v. Witt
(1910), 82 Ohio St. 237, 92 N.E. 21.
Likewise, the property in the instant case has been sold and the deed has been recorded. The
order of confirmation has been carried out to its fullest extent and there exists no relief that
can be afforded to Rains.
{¶14} Accordingly, the sole assignment of error is overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas 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.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR