CitiMortgage, Inc. v. Hoge

[Cite as CitiMortgage, Inc. v. Hoge, 2013-Ohio-698.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98597
CITIMORTGAGE, INC.
PLAINTIFF-APPELLEE
vs.
CYNTHIA ANN HOGE, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-652519
BEFORE: Stewart, A.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 28, 2013
ATTORNEY FOR APPELLANT
James G. Dawson
4881 Foxlair Trail
Richmond Heights, OH 44143
ATTORNEYS FOR APPELLEE
John E. Codrea
David B. Bokor
Matthew P. Curry
Edward M. Kochalski
Justin M. Ritch
Kristan A. Prill
Manley Deas Kochalski, L.L.C.
P.O. Box 165028
Columbus, OH 43216
MELODY J. STEWART, A.J.:
{¶1} When defendant-appellant Cynthia Hoge defaulted on payments for her home
loan, the assignee of the mortgage, plaintiff-appellee CitiMortgage, Inc., instituted
foreclosure proceedings. The court eventually granted summary judgment on the
complaint for foreclosure and ordered a sale of the property. CitiMortgage delayed the
sale pending all appeals. We affirmed the substantive aspects of the foreclosure in a
direct appeal, see CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40, 2011-Ohio-3839, 962
N.E.2d 327 (8th Dist.), and the Ohio Supreme Court declined jurisdiction. See
CitiMortgage, Inc. v. Hoge, 130 Ohio St.3d 1495, 2011-Ohio-6556, 958 N.E.2d 957.
Following the exhaustion of all appeals, the sheriff sold the property and the court
confirmed the sale. Hoge again appeals, claiming that we lacked jurisdiction to hear the
first appeal because the court had yet to rule on her counterclaims, thus depriving us of a
final order. She also argues that the court erred by confirming the sale of the property
because the court failed to find that the sale was made in conformity with R.C. 2329.01 to
2329.61.
I
{¶2} Hoge first argues that the court’s order granting summary judgment and
ordering foreclosure was not a final order under R.C. 2505.02 because the court failed to
rule on her counterclaims as required by Civ.R. 54(B). This argument is meritless.
{¶3} CitiMortgage sought summary judgment on both its complaint and Hoge’s
counterclaims for fraud and misrepresentation. On March 29, 2010, the court granted
summary judgment in its entirety, thus rendering judgment both for CitiMortgage on the
complaint and against Hoge on her counterclaims. Hoge attempted to appeal from the
summary judgment, but we dismissed that appeal for want of a final order because the
court had not yet issued a foreclosure order. After we dismissed the appeal, the court
issued a new judgment entry on October 28, 2010, reiterating the previous summary
judgment and granting a money judgment on the defaulted note. Hoge again appealed
and we affirmed.
{¶4} Given these facts, it is unclear why Hoge believes that the October 28, 2010
judgment entry was non-final. The March 29, 2010 summary judgment addressed all of
Hoge’s counterclaims as well as CitiMortgage’s claims. That judgment may have been
interlocutory given the court’s failure to issue a foreclosure judgment, but there is no
question that the October 28, 2010 judgment entry made the interlocutory summary
judgment final. Even if that was not the case, the October 28, 2010 foreclosure entry
stated that “plaintiff’s motions for default and summary judgment are granted.” That
order itself was sufficient to dispose of the counterclaims given the scope of
CitiMortgage’s summary judgment. Our earlier opinion in this case confirms this
conclusion: we affirmed summary judgment not only on the complaint for foreclosure,
but on the counterclaims, too. Hoge at ¶ 29. It follows that the court did render
judgment on Hoge’s counterclaims and that the October 28, 2010 order was final and
appealable.
II
{¶5} Hoge next argues that the court erred by confirming the sale of the property
because it failed to “document” the R.C. 2329.31(A) requirement that the sheriff’s sale be
made in conformity with sections 2329.01 to 2329.61 of the Revised Code.
{¶6} R.C. 2329.31(A) states in part:
Upon the 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 of
the Revised Code, it shall, within thirty days of the return of the writ, 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 attorney who
filed the writ of execution make to the purchaser a deed for the lands and
tenements.
{¶7} The statute contains no language requiring the court to “document” its
findings, nor does Hoge direct us to any precedent for that proposition. The court’s order
confirming the sheriff’s sale stated that the court was “satisfied of the legality of the sale
and that the notice of the sale was in all respects in conformity to law * * *.” This
statement tracked the language of the statute and sufficed to satisfy the court’s obligations
under R.C. 2329.31(A).
{¶8} We also reject Hoge’s argument that there should have been evidence
presented to the court that appraisers of the property inspected the interior condition of
the house as required by R.C. 2329.17(A). That section states:
(A) When execution is levied upon lands and tenements, the officer who
makes the levy shall call an inquest of three disinterested freeholders,
residents of the county where the lands taken in execution are situated, and
administer to them an oath impartially to appraise the property so levied
upon, upon actual view. They forthwith shall return to such officer, under
their hands, an estimate of the real value of the property in money.
{¶9} Some courts have held that a full and complete appraisal requires appraisers
to view the interior of the premises. See, e.g., Glendale Fed. Bank v. Brown, 2d Dist.
No. 13976, 1994 Ohio App. LEXIS 157 (Jan. 21, 1994). Other courts have held that an
actual view of the interior of the premises is not always necessary. See, e.g., St. Joseph
Mtge. Co., Inc. v. Allison, 7th Dist. No. 85-C-10, 1985 Ohio App. LEXIS 9693 (Dec. 13,
1985). We have taken a middle ground, holding that the appraisers’ failure to view the
inside of the premises will be a deviation from the terms of R.C. 2329.17 only when “the
condition of the house may have an impact on the value of the real estate.” Old Kent
Mtge. Co. v. Stancik, 8th Dist. No. 80548, 2002-Ohio-3436, ¶ 11. The burden is on the
owner of the premises to show prejudice from an alleged failure to view the interior of the
premises prior to issuing the appraisal. Id. To that end, we have found that “naked
assertions” of a failure to view the interior of the premises prior to appraisal will not show
that the appraisal itself is invalid. See United Cos. Lending v. Greenberg, 8th Dist. No.
80803, 2002-Ohio-4919, ¶ 11.
{¶10} Hoge did not object to the appraisal prior to the sale of the property at a time
when the court could have corrected any potential error, so she is barred from raising this
issue on appeal. Even if she had objected to the appraisal, the argument she makes on
appeal is merely a bald claim that the appraisers failed to inspect the interior of the
premises. Hoge offers no evidence to support her assertion that the appraisers failed to
view the interior of the premises. Nor does Hoge make any showing of prejudice from
the failure to view the interior of the premises. In short, her argument claims only a
technical violation of R.C. 2329.17. That will not suffice to show that the court abused
its discretion by proceeding with the sale.
{¶11} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR