CNT Constr., Inc. v. Bailey

[Cite as CNT Constr., Inc. v. Bailey, 2011-Ohio-4640.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 96292

CNT CONSTRUCTION, INC., ET AL.
PLAINTIFFS-APPELLANTS

vs.

ANGELA BAILEY, ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
DISMISSED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-721902

BEFORE: Rocco, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: September 15, 2011

ATTORNEY FOR APPELLANTS
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Harvey J. McGowan
1245 East 135th Street
East Cleveland, Ohio 44112-2413

ATTORNEYS FOR APPELLEES

For Angela Bailey

Michael L. Nelson
1700 East 13th Street
Suite 11 SE
Cleveland, Ohio 44114

For American Eagle Mortgage Corp.

Joshua E. Lamb
Colella & Weir, P.L.L.
6055 Park Square Drive
Lorain, Ohio 44053

For Freedom Mortgage Corp.

Brian C. Lee
Brent S. Silverman
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093

KENNETH A. ROCCO, J.:
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{¶ 1} After obtaining a verdict in their favor on one of the claims they

asserted against defendant Angela Bailey, plaintiffs-appellants CNT

Construction, Inc. and Charles Ficklin appeal several orders made by the

trial court in this case and, apparently, in another case that relate to the

remaining defendants, i.e., defendants-appellees American Eagle Mortgage

Corporation (“AEM”), and Freedom Mortgage Corporation (“FMC”).

{¶ 2} Appellants present eleven assignments of error. However, since

this court lacks jurisdiction to consider them, this appeal is dismissed. A

brief outline of the facts illustrates the foregoing conclusion.

{¶ 3} Appellants performed renovation work on Bailey’s home after she

obtained a mortgage loan through the Federal Housing Authority’s

rehabilitation loan program. AEM provided the loan agreement Bailey

signed, and subsequently sold the servicing rights to FMC. FMC sent a

check to Bailey for the final “draw” amount, but Bailey never paid that

amount to appellants.

{¶ 4} Appellants originally filed an action against only Bailey for

breach of contract; this was Case No. CV-671460. The docket of that case

reflects that, after Bailey answered and filed counterclaims, the matter

proceeded to arbitration and the panel found in favor of appellants.

However, since appellants were not able to collect on their judgment, they
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subsequently entered into a settlement agreement with Bailey. On this basis,

the parties dismissed their claims against each other in September 2009.

When the agreement failed, the trial court again took over the case. In

February 2010, the parties again dismissed that action.1

{¶ 5} In April 2010, appellants filed the instant action against Bailey,

AEM, and FMC.

{¶ 6} Appellants asserted the following claims against Bailey: 1) breach

of contract; 2) unjust enrichment; 3) detrimental reliance; and, 4) tortious

interference with property rights. Appellants presented the following claims

against the appellees: 1) breach of contract; 2) negligence; 3) “willful, wanton,

reckless [actions], * * * [with] inten[t] to cause Plaintiffs harm * * * ”; and, 4)

civil conspiracy.

{¶ 7} Bailey answered appellants’ complaint and asserted a

counterclaim for breach of contract.2 AEM filed a Civ.R. 12(B)(6) motion to

dismiss the complaint. FMC answered the complaint and asserted

cross-claims against Bailey for indemnification and contribution.

{¶ 8} The trial court granted AEM’s motion to dismiss. A short time

1 Thus, pursuant to Civ.R. 41(A)(1)(b), appellants’ second dismissal of his
claim against Bailey operated as a final adjudication.
2Bailey did not assert res judicata as an affirmative defense. Civ.R. 8(C).
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later, FMC filed a motion for summary judgment. FMC supported its motion

with an affidavit, several documents, a copy of appellant Ficklin’s deposition

testimony, and a copy of the arbitration award made by the panel in

CV–671460.

{¶ 9} Appellants filed an opposition brief that was supported by several

exhibits. They also filed a copy of Bailey’s deposition testimony.

Nevertheless, the trial court granted summary judgment to FMC on

appellants’ claims. FMC subsequently dismissed its cross-claims against

Bailey.

{¶ 10} Approximately two weeks later, appellant Ficklin, proceeding pro

se, filed a motion for reconsideration of the trial court’s order of summary

judgment in FMC’s favor. FMC filed an opposition brief. The trial court

thereafter denied Ficklin’s motion.

{¶ 11} The case proceeded to trial.3 At the conclusion of trial, the court

issued an order that states in pertinent part:

{¶ 12} “* * * [J]ury returns a verdict in favor of Plaintiffs * * * and

against the Defendant, Angela Bailey, on Plaintiffs’ claim of breach of

contract in the amount of $20,905.00. Jury returns a verdict in favor of

3Since appellants filed this appeal pursuant to App.R. 9(A), no transcript of
the trial is included in the record.
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Defendant Angela Bailey and against the Plaintiffs on [Bailey’s] counterclaim

of breach of contract in the amount of $1,500.00. * * * . There is no just

reason for delay. * * * .” (Emphasis added.)

{¶ 13} Appellants instituted this appeal upon the trial court’s entry of

the foregoing order. In their assignments of error, appellants present

arguments that relate to their original case, CV-671460, and to orders issued

by the trial court relating to AEM and FMC.4 This court cannot address any

of appellants’ assignments of error.

{¶ 14} Pursuant to App.R. 4(A) and 12(A)(1)(a), appellants cannot appeal

from any decision the trial court entered in CV-671460, because their notice

of appeal does not refer to it, and an appeal from that case would not have

been timely-filed. Bosco v. Euclid (1974), 38 Ohio App.2d 40, 311 N.E.2d

870.

{¶ 15} In addition, appellants have not obtained a final order in this

case, since claims remain pending. The Ninth Appellate District made the

following pertinent observations in Haley v. Reisinger, Summit App. No.

24376, 2009-Ohio-447:

{¶ 16} “Section 3(B)(2), Article IV of the Ohio Constitution limits * * *

4 Appellants’ assignments of error are attached as an “Appendix” to this
opinion.
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appellate jurisdiction to the review of final judgments of lower courts. For a

judgment to be final and appealable, it must satisfy the requirements of R.C.

2505.02 and, if applicable, Civ.R. 54(B). Chef Italiano Corp. v. Kent State

Univ. (1989), 44 Ohio St.3d 86, 88, 541 N.E.2d 64.

{¶ 17} “R.C. 2505.02(B)(1) states:

{¶ 18} “‘An order is a final order that may be reviewed, affirmed,

modified, or reversed, with or without retrial, when it is * * * [a]n order that

affects a substantial right in an action that in effect determines the action

and prevents a judgment[.]’

{¶ 19} “This Court has recognized that ‘an order may not be “final,”

within the meaning of Section 2505.02, if it fails to dispose of all claims

presented in an action.’ Gosden Constr. Co., Inc. v. Gerstenslager (Sept. 13,

1996), 9th Dist. No. 17687.

{¶ 20} “The Ohio Supreme Court has held:

{¶ 21} “ ‘Appeal lies only on behalf of a party aggrieved by the final order

appealed from. An aggrieved party is one whose interest in the subject

matter of the litigation is immediate and pecuniary, and not a remote

consequence of the judgment.’ (Internal quotations and citations omitted.)

Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals (2001),

91 Ohio St.3d 174, 177, [2001-Ohio-24,] 743 N.E.2d 894.
 8

{¶ 22} “ * * * [Appellant] is not an aggrieved party by the order from

which he purports to appeal because he prevailed * * * on those claims.

{¶ 23} “Because the earlier orders do not relate to the ruling disposing

solely of three of his four claims, those orders did not merge into the trial

court’s judgment * * * As [appellant] argues that he should have [prevailed]

on all his claims, his appeal must be dismissed as an attempt to appeal from a

non-final order.” (Emphasis added.)

{¶ 24} Similarly, in this case, appellants prevailed on one of their claims

against Bailey, but two of their claims against her are unresolved, viz.,

detrimental reliance, and tortious interference with property rights. The

trial court’s earlier orders relate to appellees, the other defendants in this

action.

{¶ 25} As to the appellees, this court adheres to the following analysis:

{¶ 26} “ * * * It is clear under Ohio case law that when a final judgment

has been entered terminating an entire case, all prior interlocutory orders will

merge into the final judgment and be appealable at that time. [Citations

omitted.] The law is not so clear when, as in this case, the final judgment

being appealed does not terminate an entire case * * * . In that situation, we

find that only prior interlocutory orders which relate in some way to the

ruling disposing of the defendant will merge into the final judgment as to that
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defendant.” Davis v. Galla, Lucas App. No. L-08-1149, 2008-Ohio-3501, ¶6.

(Emphasis added.)

{¶ 27} Appellants in this case attempt to appeal from judgments that do

not relate to Bailey, but Bailey was the only defendant named in the latest

order, and appellants prevailed in that order. Therefore, the phrase “no just

reason for delay” cannot serve to make that order a final one. Chef Italiano,

at 89. (“[S]ince the * * * order did not determine Chef Italiano’s claim and

prevent it from obtaining a judgment against Testa, it is not a final,

appealable order pursuant to R.C. 2505.02 regardless of the presence of

Civ.R. 54(B) language.”).

{¶ 28} Appellants are not prevented from obtaining a judgment on their

remaining claims against Bailey, so any appeal from interlocutory orders that

relate to AEM and FMC is premature. Id., at 89-90. (“Since the [earlier]

judgment did not expressly determine that there is ‘no just reason for delay,’

th[at] order, though final [as to that defendant], is not appealable.”)

{¶ 29} Under such circumstances as those presented in this case, this

court lacks jurisdiction to entertain appellants’ appeal. Id. This appeal,

accordingly, is dismissed.

It is ordered that appellants pay the costs herein taxed.

The court finds there were reasonable grounds for this appeal.
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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.

_________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR

APPENDIX

FIRST ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR AMERICAN EAGLE MORTGAGE COMPANY AND
FREEDOM MORTGAGE COMPANY AS THE ACTIONS OF THESE
DISMISSED DEFENDANT-APPELLEES WERE IN VIOLATION OF THE
203(K) REGULATIONS GOVERNING THE MORTGAGE LOAN AND THE
CONSTRUCTION REPAIRS BY THE PLAINTIFFS.

SECOND ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO AMERICAN EAGLE MORTGAGE CORPORATION AS
CONSIDERING THE MATTER MOST FAVORABLY AGAINST THE
MOVING PARTY, THE DEFENDANT-APPELLEE AMERICAN EAGLE
MORTGAGE CORPORATION WAS NOT ENTITLED TO JUDGMENT AS A
MATTER OF LAW AS SUBSTANTIAL, UNRESOLVED DISPUTED FACT
EXISTED.

THIRD ASSIGNMENT OF ERROR
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“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO FREEDOM MORTGAGE CORPORATION AS
CONSIDERING THE MATTER MOST FAVORABLY AGAINST THE
MOVING PARTY THE DEFENDANT-APPELLEE FREEDOM MORTGAGE
CORPORATION WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF
LAW AS SUBSTANTIAL, UNRESOLVED DISPUTED FACT EXISTED.

FOURTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT-APPELLEE FREEDOM MORTGAGE
CORPORATION AS THERE WERE CLEARLY TWO INTERPRETATIONS
OF THE DISPUTED LANGUAGE. THE TRIAL COURT ERRED IN
FINDING THAT ‘FREEDOM MORTGAGE DID NOT BREACH A
CONTRACT WITH CNT CONSTRUCTION AS THE PARTIES NEVER
ENTERED A CONTRACT AND HEREBY GRANT SUMMARY JUDGMENT
IN FAVOR OF FREEDOM MORTGAGE ON THE BREACH OF CONTRACT
CLAIM.’

FIFTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT-APPELLEE FREEDOM MORTGAGE
CORPORATION AS THERE WERE CLEARLY TWO INTERPRETATIONS
OF THE DISPUTED LANGUAGE. THE TRIAL COURT ERRED IN
FINDING THAT ‘THE COURT ORDER FINDS THAT DEFENDANT
FREEDOM MORTGAGE IS ENTITLED TO JUDGMENT AS A MATTER OF
LAW ON THE NEGLIGENCE CLAIM.’ TO ESTABLISH A CLAIM FOR
NEGLIGENCE THERE MUST BE THE EXISTENCE OF A DUTY ON THE
PART OF THE DEFENDANT. STANFORD. PAR-RUCHMAN HOME
TOWN MOTOR SALES, INC. (1971) 25 Ohio St.2d 1.

SIXTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT-APPELLEE FREEDOM MORTGAGE
CORPORATION AS THERE WERE CLEARLY TWO INTERPRETATIONS
OF THE DISPUTED LANGUAGE. THE TRIAL COURT ERRED IN
FINDING THAT ‘THE HUD CONTRACT SPECIFICALLY PROVIDES
THAT FREEDOM MORTGAGE MAY MAKE THE CHECK IN QUESTION
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PAYABLE TO THE BORROWER AND/OR THE CONTRACTOR THEREBY
AUTHORIZING FREEDOM MORTGAGE TO MAKE THE CHECK
PAYABLE TO ANGELA BAILEY ONLY. REHABILITATION LOAN
AGREEMENT, PARAGRAPH 4. PLAINTIFF MAY NOT IMPLY A DUTY
TO MAKE THE CHECK PAYABLE TO BOTH CNT CONSTRUCTION AND
ANGELA BAILEY WHEN THERE IS A SPECIFIC PROVISION IN THE
CONTRACT ALLOWING FREEDOM MORTGAGE TO MAKE THE CHECK
PAYABLE TO ANGELA BAILEY ONLY.’

SEVENTH ASSIGNMENT OF ERROR

“THE TRIAL JUDGE ERRED IN CASE NO.: CV-671460 BY FAILING
TO HOLD THE FUNDS RELEASED PURSUANT TO THE COURTS
ORDER SUBSEQUENTLY VACATED. THE TRANSCRIPT THEREOF
WAS FILED AND MADE A PART OF THE COURT RECORD IN CASE NO.:
CV-10-721902 AND IS RELEVANT HERETO BY INCORPORATION
THEREBY.

EIGHTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED BY NOT RECUSING HIMSELF IN
CASE NO.: CV-10-721902 WHEN THE COURT HAD BEEN PRESIDING
OVER AND WAS A PARTICIPANT OF THE SETTLEMENT ACTIONS
(SUBSEQUENTLY VACATED) IN CASE NO.: CV-671460. THE
DEFENDANT, ANGELA BAILEY WAS ONLY ABLE TO OBTAIN THE
FUNDS DUE TO THE PLAINTIFF/APPELLANT BY THE ENTRY OF THE
COURT THAT PROVIDED AS FOLLOWS: ‘...that the parties have agreed
Defendant, Angela Bailey shall pay to CNT Construction, et al. The check
from Freedom Mortgage ($20,905.50) by Fri 9/18/09 through Defendant
Counsel IOLTA. All other claims and counterclaims dismissed with
prejudice. Parties will sign mutual releases. Both parties acknowledge they
are accepting this settlement with full understanding and willingly...’

NINTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING THE SUMMARY
JUDGMENT TO EITHER AMERICAN EAGLE MORTGAGE COMPANY
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AND/OR FREEDOM MORTGAGE CORPORATION FOR REASONS
INCLUDING THAT THE ONLY REPRESENTATIVE OF EITHER
DEFENDANT-APPELLEE WAS THEIR MUTUAL EMPLOYEE, JOE
HOWARD WHO ORIGINATED THE CONTROL OF THE MORTGAGE
WITH AMERICAN EAGLE AND CONTINUED TO HIS CONTROL OF THE
MORTGAGE WITH FREEDOM MORTGAGE CORPORATION. THE
TRIAL COURT WAS FURTHER IN ERROR IN NOT FINDING THAT THIS
WAS A DUAL AGENCY LEAVING BOTH MORTGAGE COMPANIES
RESPONSIBLE EVEN THOUGH THE ‘DUAL AGENCY WAS NEVER
DISCLOSED.’

TENTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT-APPELLEES’ AMERICAN EAGLE
CORPORATION AND/OR FREEDOM MORTGAGE CORPORATION
HOLDING NEITHER RESPONSIBLE FOR THE ACTIONS THAT
OCCURRED IN SPITE OF THE FACTS THAT THE SALE OF THE
MORTGAGE DOCUMENTS LEFT FREEDOM MORTGAGE COMPANY
RESPONSIBLE TO INDEMNIFY AMERICAN EAGLE MORTGAGE
CORPORATION FOR THE LIABILITIES THAT ARE ADDRESSED
WITHIN THE LITIGATION IN THIS CASE.

ELEVENTH ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO DEFENDANT-APPELLEES’ FREEDOM MORTGAGE
CORPORATION AND/ OR FREEDOM MORTGAGE CORPORATION WHO
RELEASED THE FUNDS DIRECT TO DEFENDANT, ANGELA BAILEY
PURSUANT TO AN ORDER OF THE COURT ORIGINATING IN CASE
NO.: CV-671460 AND SUBSEQUENTLY VACATED BY THE COURT
WHEN IT WAS UNDISPUTED THAT PLAINTIFF/APPELLANTS DID ALL
OF THE WORK ON THE PROPERTY AND REMAIN UNPAID TO DATE.”