[Cite as Pramco CV6, L.L.C. v. Aberdeen Invests., Inc., 2014-Ohio-32.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100130
PRAMCO CV6, L.L.C.
PLAINTIFF-APPELLEE
vs.
ABERDEEN INVESTMENTS, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-622242
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 9, 2014
ATTORNEYS FOR APPELLANTS
Thomas C. Pavlik
Rochelle L. Paley
Novak Pavlik Deliberato, L.L.P.
Skylight Office Tower
1660 West 2nd Street, Suite 950
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
James A. Amodio
Aaron M. Harrison
Brown, Amodio & Chandler L.P.A.
109 West Liberty Street
P.O. Box 1117
Medina, Ohio 44256
KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendants-appellants, James T. Caldwell, Sr. and Barbara J. Caldwell (the
“Caldwells”), appeal the trial court’s decision denying their motion to void judgment and
quash attachment proceedings. For the reasons that follow, we affirm.
{¶3} In 2007, Pramco CV6, L.L.C. filed a foreclosure action against Aberdeen
Investments, Inc. (“Abderdeen”) and the Caldwells on a default mortgage for real
property commonly known as 6012 Linwood Avenue, Cleveland. On September 9,
2009, Sopramco, CV6, L.L.C., as successor-in-interest, received a judgment against
Aberdeen and the Caldwells, jointly and severally. The property was subsequently sold
at sheriff’s sale, with the court confirming the sale on November 20, 2009. In addition to
the judgment obtained in the foreclosure action, Sopramco was awarded attorney fees
incurred as a result of the foreclosure action.
{¶4} In January 2013, Sopramco assigned its judgment to plaintiff-appellee,
ACM Browncroft Trust. In its effort to collect on the outstanding judgment, ACM
Browncroft filed three bank attachments on the Caldwells’ bank accounts — two at
KeyBank and one at Charter One Bank on a trust account.
{¶5} In response to the bank attachments, the Caldwells moved to void the
September 9, 2009 judgment and quash the attachment proceedings claiming that the
collection actions were barred by the two-year statute of limitations as provided in R.C.
2329.08 and, therefore, ACM Browncroft was prohibited from collecting any deficiency.
Specifically, the Caldwells argued that their son, James T. Caldwell, Jr. (now deceased),
lived at the Linwood property, which was a single family dwelling, and effectively
executed the mortgage because he was a shareholder. According to the Caldwells, in
light of these facts, the protections under R.C. 2329.08 applied.
{¶6} ACM Browncroft opposed the motion, arguing that R.C. 2329.08 did not
apply because although James T. Caldwell, Jr. was a shareholder of Aberdeen, his
shareholder status alone does not mean he executed the mortgage on behalf of Aberdeen.
{¶7} The trial court denied the Caldwells’ motion to void judgment and quash
attachment proceedings, finding that the Caldwells “failed to provide sufficient evidence
and grounds in support of their motion.” The Caldwells now appeal from this judgment,
contending in their sole assignment of error that “the trial court erred in failing to void the
judgment in the within matter and quashing the attachment proceedings.”1
{¶8} A trial court has discretion in determining whether to grant a motion for relief
from judgment, and an appellate court will not reverse that determination absent an abuse
of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564
(1988); Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 11, 371 N.E.2d 214 (1978). An abuse
of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
Although the trial court’s order also denied the Caldwells’ motion to quash
1
attachment proceedings, the Caldwells make no argument on appeal regarding the
legality of the attachment proceedings. Therefore, we do not address this issue.
(1983).
{¶9} In support of their appeal, the Caldwells rely on the language of R.C.
2329.08. The relevant portion of the statute provides:
Any judgment for money rendered in a court of record in this state upon any
indebtedness which is secured or evidenced by a mortgage, or other
instrument in the nature of a mortgage, on real property or any interest
therein, upon which real property there has been located a dwelling or
dwellings for not more than two families which has been used in whole or
in part as a home or farm dwelling or which at any time was held as a
homestead by the person who executed or assumed such mortgage or other
instrument, or which has been held by such person as a homesite, shall be
unenforceable as to any deficiency remaining due thereon, after the
expiration of two years from the date of the confirmation of any judicial
sale of such property completed subsequent to the rendition of such
judgment.
{¶10} Thus, under the statute, the Caldwells are entitled to relief if the evidence
shows that either the real property (1) has upon it a dwelling or dwellings for not more
than two families which has been used in whole or part as a home, farm dwelling, or held
as a homestead by the person who executed or assumed the mortgage or other instrument,
or (2) has been held by such person as a homesite.
{¶11} Although the Caldwells argue on appeal that their son, James, used the
property as a homesite, the legal definition of “homesite” as explained by the Ohio
Supreme Court, is “[a] location suitable for a home”; whereas, “homestead” is “[a]
family’s dwelling place, with the inclosure or ground immediately contiguous; an abode;
a home.” Mut. Bldg. & Invest. Co. v. Efros, 152 Ohio St. 369, 372, 89 N.E.2d 648
(1949). Because a dwelling already existed on the real property, the Caldwells are not
entitled to relief under the “homesite” option under R.C. 2329.08. See id.
{¶12} Therefore, the Caldwells are entitled to relief if the real property has upon it
a dwelling or dwellings for not more than two families that has been used in whole or part
as a home, farm dwelling, or held as a homestead by the person who executed or assumed
the mortgage or other instrument.
{¶13} The Caldwells contend that because James was a shareholder of Aberdeen,
he executed the mortgage. We disagree.
{¶14} The mortgage on the real property was given by Aberdeen, the corporate
entity that owned the real property. The mortgage was executed by James T. Caldwell,
Sr., in his capacity as president of Aberdeen. It was also executed by James T. Caldwell,
Sr. and Barbara G. Caldwell, individually as co-makers. James T. Caldwell, Jr., was
merely a shareholder of Aberdeen and his signature does not appear on any of the
mortgage documents. His part ownership of the corporate mortgagor does not change
the fact that the corporate mortgagor was a separate person from him. “It is well settled
that a corporation is a separate legal entity from its shareholders, even when the
corporation only has one shareholder.” My Father’s House #1, Inc. v. McCardle,
2013-Ohio-420, 986 N.E.2d 1081, ¶ 27 (3d Dist.). James Jr.’s shareholder status is
insufficient to satisfy “the person who executed or assumed the mortgage or other
instrument” protection of R.C. 2329.08.
{¶15} Accordingly, the Caldwells’ sole assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellants 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.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR