[Cite as Bank of Am. v. Flowers, 2014-Ohio-5249.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bank of America, N.A., :
Plaintiff-Appellee, :
v. : No. 14AP-451
(C.P.C. No. 13CV-1935)
Janice M. Flowers, :
(REGULAR CALENDAR)
Defendant-Appellant, :
John Doe, Unknown Spouse, if any, of :
Janice M. Flowers et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on November 25, 2014
McGlinchey Stafford, Amanda L. Holzhauer and Bryan T.
Kostura, for appellee Bank of America, N.A.
Janice M. Flowers, pro se.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶1} Defendant-appellant, Janice M. Flowers, appeals from a judgment of the
Franklin County Court of Common Pleas entered on May 1, 2014, granting the summary
judgment motion of plaintiff-appellee, Bank of America, N.A. ("Bank of America"). For
the following reasons, we dismiss the appeal because it does not present a final appealable
order.
No. 14AP-451 2
I. Facts and Procedural Background
{¶2} On February 21, 2013, Bank of America filed a complaint in foreclosure
naming appellant; John Doe, as her unknown spouse, if any; Capital One Bank; LVNV
Funding, LLC; and Blacklick Ridge Homeowners Association, Inc.; State of Ohio,
Department of Taxation; City of Columbus, Division of Income Tax; and Franklin County
Treasurer as defendants. Bank of America asserted that appellant was in default on a
promissory note that was secured by a mortgage on real property located at 7414 Bunker
Ridge Ct., Blacklick, Ohio 43004. At paragraph four of the complaint, Bank of America
asserted that "the conditions precedent have been satisfied." On March 7, 2013, the case
was referred to mediation. On October 18, 2013, Bank of America filed a motion to
remove the case from mediation and to reset the case management schedule. On
November 18, 2013, the trial court ordered the case removed from mediation and granted
appellant 28 days to file her answer. On December 16, 2013, appellant filed an answer pro
se. As she did in response to every other paragraph of the complaint, in response to
paragraph four of the complaint, appellant stated, "Defendant lacks sufficient information
to admit or deny the allegations contained in Paragraph 4 of Plaintiff's Complaint."
(Appellant's answer, 4.) She also asserted 22 defenses to Bank of America's claims,
including that it had failed to state any claims upon which relief may be granted.
{¶3} On January 31, 2014, Blacklick Ridge Homeowners Association filed an
answer and a cross-claim asserting appellant had not paid her condominium fees and as
of February 15, 2013, they were due in the amount of $593.31, plus ongoing assessments,
attorney fees, late fees, utility charges, and costs incurred during the pendency of the case.
{¶4} On February 13, 2014, Bank of America filed a motion for summary
judgment. On February 27, 2014, appellant filed a motion for summary judgment, a
memorandum contra to Bank of America's motion for summary judgment, and an
amended answer. However, appellant did not seek leave of court to file her amended
answer and Bank of America filed a motion to strike the amended answer and appellant's
motion for summary judgment on March 4, 2014 at 9:31 a.m. On March 4, 2014 at 2:38
p.m., appellant filed a motion for leave to file her amended answer. Also on March 4,
2014 at 11:10 a.m., Bank of America filed a motion for extension of time to file a reply brief
in support of its motion for summary judgment.
No. 14AP-451 3
{¶5} On March 26, 2014, Bank of America filed a motion to continue the trial
that was set for April 1, 2014. On March 27, 2014 at 12:08 p.m., the trial court granted
Bank of America's motion to continue the trial and scheduled it for April 28, 2014. At
5:07 p.m. on March 27, 2014, Bank of America filed a "Motion to Dismiss," in which it
stated, Bank of America "MOVES this Court to dismiss the within action, without
prejudice. It is represented to this Court that Plaintiff is not proceeding in the matter at
this time. Wherefore, Plaintiff hereby moves this Court to dismiss its Complaint without
prejudice at Plaintiff's cost." (Emphasis sic.) (R. 150.)
{¶6} On March 28, 2014 at 11:17 a.m., the trial court rendered a decision and
entry granting Bank of America's motion to strike and its motion for summary judgment,
and denying appellant's motion for leave to file an amended answer. The court found
Bank of America's motion to extend time and its motion for leave to file its initial
witnesses moot.
{¶7} On March 28, 2014 at 4:26 p.m., Bank of America filed a notice of
withdrawal of its motion to dismiss. At 4:48 p.m., appellant filed a motion to vacate the
March 28, 2014 decision and entry and also a motion to join in Bank of America's motion
to dismiss.
{¶8} On March 31, 2014, the trial court granted Bank of America's motion to
dismiss the action without prejudice. On April 18, 2014, appellant filed a motion to vacate
the April 2, 2014 entry and to allow her to amend her answer and a motion to vacate the
March 28, 2014 entry. On April 23, 2014, the trial court denied these motions.
{¶9} On May 1, 2014, the trial court reexamined the entire case. The trial court
again granted Bank of America's motion for summary judgment. The trial court entry
provided as follows:
The Court finds that there is due the Treasurer of Franklin
County, taxes, accrued taxes, assessments and penalties on
the premises described herein, as shown on the County
Treasurer's tax duplicate, the exact amount being
unascertainable at the present time, but which amount will be
ascertainable at the time of sale; which is a valid and
subsisting first lien thereon for that amount so owing as of the
day of the confirmation of sale.
No. 14AP-451 4
The Court finds that there are no genuine issues of material
fact, that reasonable minds can come to but one conclusion,
and that the Plaintiff is entitled to judgment herein as a
matter of law. Accordingly, Plaintiff's Motion for Summary
Judgment is hereby granted.
The Court finds on the evidence adduced that there is due
Plaintiff on the promissory note set forth in the First Count of
the Complaint, the sum of $204,200.03, plus interest thereon
at the rate of 5.5% per annum from October 1, 2010, and at
such interest rate as may change from time to time pursuant
to the terms of the note; plus all late charges due under the
Note and Mortgage, all advances made for the payment of real
estate taxes and assessments and insurance premiums, and all
costs and expenses incurred for the enforcement of the Note
and Mortgage, except to the extent the payment of one or
more specific such items is prohibited by Ohio law, for which
sum judgment is hereby rendered in favor of Plaintiff against
the Defendant, Janice M. Flowers.
***
The Court finds that Plaintiff has and will from time to time
advance sums for taxes, insurance and property protection.
Plaintiff has the first and best lien for these amounts in
addition to the amount set forth above. The Court makes no
finding as to the amounts of the advances and continues same
until the confirmation of sale.
The Court finds that the Defendants, Blacklick Ridge
Homeowners Association, Inc., Sate of Ohio, Department of
Taxation, and City of Columbus Division of Income Tax
claims some right, title, interest or lien upon the premises
described herein, as set forth in their Answers filed herein, but
that any right, title, interest, claim or lien said Defendants
may have is inferior and subsequent to the lien of Plaintiff.
The Court makes no finding at this time as to the right, title,
interest or lien of said Defendants as set forth in their Answers
filed herein, except to note that such claim, right, title, interest
or lien of said Defendants is hereby ordered transferred to the
proceeds derived from the sale of said premises, after the
payment of costs of the within action, taxes due and payable
and the amount found due Plaintiff, and the same is hereby
ordered continued until further order.
No. 14AP-451 5
***
The Court further finds that there is no just reason for delay in
entering judgment herein.
ORDER
It is therefore ORDERED, ADJUDGED and DECREED that
unless the sums found due herein, together with the costs of
this action be fully paid within three (3) days from the date of
the entry of this decree, the equity of redemption and dower
of all Defendants in and to said premises shall be foreclosed
and that Plaintiff may cause an order of sale to be issued to
the Sheriff of Franklin County, directing him to appraise,
advertise in a paper of general circulation within the County
and sell said premises as upon execution and according to law
free and clear of the interest of all parties to this action.
(Emphasis sic.) (R. 184.)
II. Assignments of Error
{¶10} On June 4, 2014, appellant filed a notice of appeal,1 raising the following
assignments of error:
[I.] The trial court patently and unambiguously lost
jurisdiction over the case when it dismissed Appellee's
Complaint pursuant to Civ.R. 41(A)(1)(a).
[II.] The trial court abused its discretion by denying
Appellant's motion for leave to file an amended answer
pursuant to Civ.R. 15(A).
[III.] The trial court erred in granting Appellee's motion for
summary judgment because the record indicates that there is
a genuine issue of material fact pursuant to Civ.R. 56(C).
III. Discussion
{¶11} Prior to addressing any assignments of error, we must determine whether
this judgment constitutes a final appealable order as this court may only entertain those
appeals from final judgments or orders. Noble v. Colwell, 44 Ohio St.3d 92 (1989). An
1We note that appellant did not file her appeal within 30 days of the entry. However, because the docket
does not indicate that the trial court's entry was served on the parties, the appeal is timely. App.R. 4(A).
No. 14AP-451 6
appellate court may raise, sua sponte, the jurisdictional question of whether an order is
final and appealable. See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 87
(1989). Moreover, we must sua sponte dismiss an appeal that is not from a final
appealable order. See Kopp v. Associated Estates Realty Corp., 10th Dist. No. 08AP-819,
2009-Ohio-2595, ¶ 6, citing Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio
St.2d 184, 186 (1972.)
{¶12} The Ohio Constitution, Article IV, Section 3(B)(2) provides that courts of
appeals have "such jurisdiction as may be provided by law to review and affirm, modify, or
reverse judgments or final orders of the courts of record inferior to the court of appeals
within the district." R.C. 2505.03(A) also limits appellate jurisdiction of courts of appeals
to the review of final orders, judgments or decrees. State ex rel. Bd. of State Teachers
Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, ¶ 44. A final
order is statutorily defined by R.C. 2505.02, which provides as follows:
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) A order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that grants or denies a provisional remedy * * *[.]
{¶13} An order of a court is a final appealable order only if the requirements of
both R.C. 2505.02 and, if applicable, Civ.R. 54(B) are met. Engineering Excellence Inc. v.
Northland Assocs., LLC, 10th Dist. No. 10AP-402, 2010-Ohio-6535, ¶ 10, citing Denham
v. New Carlisle, 86 Ohio St.3d 594, 596 (1999), citing Chef Italiano at 88. Civ.R. 54(B)
provides that "[w]hen more than one claim for relief is presented in an action whether as
a claim, counterclaim, cross-claim, or third-party claim," or when the action involves
multiple parties, "the court may enter final judgment as to one or more but fewer than all
No. 14AP-451 7
of the claims or parties only upon an express determination that there is no just reason for
delay." "Thus, in multiple-claim or multiple-party actions, if the court enters judgment as
to some, but not all, of the claims and/or parties, the judgment is a final appealable order
only upon the express determination that there is no just reason for delay." In re Estate
of L.P.B., 10th Dist. No. 11AP-81, 2011-Ohio-4656, ¶ 9. While inserting the language of
"no just reason for delay" in an entry is not a "mystical incantation which transforms a
nonfinal order into a final appealable order," the language can "transform a final order
into a final appealable order." Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352,
354 (1993), citing Chef Italiano. When determining whether a judgment or order is final
and appealable, an appellate court must determine whether the order is final within the
requirements of R.C. 2505.02. And then, if the order satisfies R.C. 2505.02, the court
must determine whether Civ.R. 54(B) applies and, if so, whether the order contains a
certification that there is no just reason for delay. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,
44 Ohio St.3d 17, 21 (1989). " 'Civ.R. 54(B) does not alter the requirement that an order
must be final before it is appealable.' " Id., quoting Douthitt v. Garrison, 3 Ohio App.3d
254, 255 (9th Dist.1981).
{¶14} R.C. 2505.02(A)(2) defines a special proceeding as "an action or proceeding
that is specially created by statute and that prior to 1853 was not denoted as an action at
law or a suit in equity." Since foreclosure actions were in existence prior to 1853, they are
not special proceedings within the context of final appealable orders. Fifth Third Bank
(Central Ohio) v. Banks, 10th Dist. No. 04AP-860, 2005-Ohio-4972, ¶ 16, citing Higgins
v. West, 5 Ohio 554 (1832).
{¶15} In this case, the trial court's order also does not meet the requirements of
R.C. 2505.02(B)(1). The order did not determine the action because the order did not
address the cross-claim of Blacklick Ridge Homeowners Association. In fact, the trial
court stated that it was making no finding at that time as to the right, title, interest or lien
of defendants as set forth in their answers, except to note that the claim was transferred to
the proceeds derived from the sale of said premises, after the payment of costs and taxes
and the amount found due Bank of America, and then continued the action until further
order. The trial court did not make a finding regarding priority other than prioritizing
Bank of America, costs and taxes. Then the trial court continued the matter. "Typically, a
No. 14AP-451 8
judgment entry ordering the foreclosure of property and the distribution of the proceeds
to the various claimants is a final appealable order. * * * A number of appellate courts,
though, have determined that a judgment entry ordering a foreclosure sale is not final and
appealable unless it resolves all of the issues involved in the foreclosure, including the
following: whether an order of sale is to be issued; what other liens must be marshaled
before distribution is ordered; the priority of any such liens; and the amounts that are due
the various claimants." (Emphasis sic.) Second Natl. Bank of Warren v. Walling, 7th
Dist. No. 01-CA-62, 2002-Ohio-3852, ¶ 18.
{¶16} As noted above, the final order at issue in this appeal does not resolve the
Blacklick Ridge Homeowners Association cross-claim; therefore, it is not a final
appealable order. See Whipps v. Ryan, 10th Dist. No. 12AP-509, 2013-Ohio-4334, ¶ 32.
IV. Conclusion
{¶17} Having determined that we lack jurisdiction to review the order, which does
not constitute a final appealable order under R.C. 2505.02, we dismiss the appeal.
Appeal dismissed.
TYACK and LUPER SCHUSTER, JJ., concur.