Wells Fargo Bank, N.A. v. Fields

[Cite as Wells Fargo Bank, N.A. v. Fields, 2015-Ohio-4580.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 101814 and 101985

WELLS FARGO BANK, N. A.
PLAINTIFF-APPELLEE

vs.

MICHAEL A. FIELDS, ET AL.
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART,
DISMISSED IN PART

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-788300

BEFORE: Hensal, P.J., Carr, J., and Moore, J.

RELEASED AND JOURNALIZED: November 5, 2015
FOR APPELLANTS

Michael A. Fields, pro se
3640 S. Fulton Avenue
Atlanta, Georgia 30354

Stephanie Fields, pro se
1975 Brookdale Road
Richmond Heights, Ohio 44143

ATTORNEY FOR APPELLEE

Kimberly Y. Smith Rivera
McGlinchey Stafford
25550 Chagrin Boulevard, Suite 406
Cleveland, Ohio 44122-4640
HENSAL, Presiding Judge.

{¶ 1} Defendant-Appellants, Michael Fields and Stephanie Douglas f/k/a Fields, now

appeal from the judgment of the Cuyahoga County Court of Common Pleas, in favor of

Plaintiff-Appellee, Wells Fargo Bank, N.A. (“Wells Fargo”). This Court affirms in part and

dismisses in part.

I.

{¶ 2} On June 14, 2004, Mr. Fields executed a note1 in the amount of $168,300 in

favor of WMC Mortgage Corporation (“WMC Mortgage”) for property located at 1975

Brookdale Road in Richmond Heights (“the Property”). The note was secured by a

mortgage on the Property in favor of Mortgage Electronic Registration Systems, Inc.

(“MERS”), as nominee for WMC Mortgage. The mortgage identified both Mr. Fields

and Ms. Douglas as the borrower, and Ms. Douglas signed it on her own behalf as well as

on behalf of Mr. Fields. Subsequently, Wells Fargo became the holder of both the note

and the mortgage.

{¶ 3} On August 1, 2012, Wells Fargo filed a complaint in foreclosure against Mr.

Fields and Ms. Douglas. Wells Fargo attempted to serve them at the Property by private process

server and by certified mail, but both attempts failed. The bank was able, however, to secure

certified mail return receipts from alternative addresses it had for them. Specifically, the bank

served Mr. Fields at an apartment in Atlanta, Georgia, and served Ms. Douglas at a residence in

Ms. Douglas signed the note on behalf of Mr. Fields, her former husband, pursuant to a power of
1

attorney.
Lithonia, Georgia. Both attempts at service resulted in the return of certified mail return receipts

purportedly signed by individuals other than Mr. Fields and Ms. Douglas.

{¶ 4} When neither Mr. Fields, nor Ms. Douglas filed responsive pleadings, Wells

Fargo sought a default judgment against them. A default hearing was set for March 21, 2013,

but the hearing did not go forward. Three days before the hearing, Ms. Douglas filed a motion

to dismiss in which she argued that she had never received Wells Fargo’s complaint. Ms.

Douglas indicated that she had never maintained a residence in Lithonia, Georgia, so it was

improper for Wells Fargo to serve her there. In response to her motion, Wells Fargo once again

attempted to serve Ms. Douglas by certified mail at the Property. The attempt was unsuccessful,

so the bank instructed the clerk to serve her at the Property by ordinary mail. Ordinary mail

service succeeded, and Ms. Douglas answered the bank’s complaint. Meanwhile, the court

denied the bank’s motion for default judgment and Ms. Douglas’ motion to dismiss.

{¶ 5} On June 4, 2013, Ms. Douglas filed a motion in which she asked the court to

either dismiss the matter or grant her summary judgment on the basis that the parties had reached

a settlement in 2009. Wells Fargo filed a brief in opposition to her motion, and the trial court

later denied it. Wells Fargo then sought summary judgment against Ms. Douglas and a default

judgment against Mr. Fields, who had yet to appear in the action.

{¶ 6} The court set the matter for a default hearing on September 26, 2013. One day

before the scheduled default hearing, Mr. Fields filed a motion to strike the complaint. Mr.

Fields argued that Wells Fargo failed to commence its suit against him within one year of its

filing because Wells Fargo had never properly served him with its complaint. Subsequently, the

court denied the motion to strike. Meanwhile, Ms. Douglas and Wells Fargo filed several

additional briefs with respect to Wells Fargo’s motion for summary judgment.
 {¶ 7} On April 2, 2014, a magistrate issued a decision on Wells Fargo’s motions for

default judgment and summary judgment. The magistrate determined that Wells Fargo had

properly served Mr. Fields with its complaint and that he had failed to deny the allegations

contained therein. Consequently, with regard to Mr. Fields, the magistrate granted a default

judgment in favor of Wells Fargo. With regard to Ms. Douglas, the magistrate determined that

no genuine issues of material fact remained and that Wells Fargo was entitled to summary

judgment.

{¶ 8} Both Mr. Fields and Ms. Douglas filed objections to the magistrate’s decision, and

Wells Fargo filed briefs in opposition. On May 23, 2014, the trial court issued its decision,

overruling their objections and adopting the decision of the magistrate. The trial court entered

judgment in favor of Wells Fargo in the amount of $167,047.09, plus interest. Additionally, the

court ordered the Property to be sold at sheriff’s sale.

{¶ 9} On July 22, 2014, Mr. Fields and Ms. Douglas filed a motion to enforce the terms

of a settlement they had allegedly reached with Wells Fargo in 2009. They also filed a motion to

stay the execution of the court’s judgment based on the alleged settlement. Additionally, they

filed a motion for relief pursuant to Civil Rule 60(B). In their Civil Rule 60(B) motion, Mr.

Fields and Ms. Douglas once again argued that Wells Fargo had never properly served them with

its complaint. They also argued that the 30-day timeframe within which to file their appeal had

never commenced because they were never served with a copy of the court’s judgment entry.

Wells Fargo filed briefs in opposition to each of the three foregoing motions, and the trial court

denied them. On August 11, 2014, the Property was sold at sheriff’s sale.

{¶ 10} Subsequently, Mr. Fields and Ms. Douglas appealed from the court’s judgment

entry of foreclosure and filed a motion to stay all the proceedings. The Eighth District initially
dismissed their appeal as untimely, but reinstated the appeal on reconsideration. In the

meantime, the trial court issued a decree of confirmation for the sale of the Property. The trial

court also denied a second motion to stay the proceedings.

{¶ 11} Mr. Fields and Ms. Douglas filed a second appeal to contest the trial court’s

decree of confirmation, and their two appeals were consolidated for oral argument and decision.

The Ohio Supreme Court then assigned the matter to a panel of visiting judges.

{¶ 12} Mr. Fields and Ms. Douglas now appeal from the trial court’s judgments and raise

eight assignments of error for our review. For ease of analysis, we rearrange and consolidate

several of the assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING DEFENDANT MICHAEL FIELDS’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT FOR FAILURE TO COMMENCE WHERE HE
WAS NOT JOINED AS AN INDISPENSABLE PARTY PURSUANT TO
CIV.R. 19.
ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED ABUSED ITS DISCRETION IN
DENYING DEFENDANT STEPHANIE FIELDS’S MOTION TO DISMISS
PLAINTIFF’S COMPLAINT PURSUANT TO CIV.R. 4(E).
ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
GRANTING DEFAULT JUDGMENT AGAINST DEFENDANT MICHAEL
FIELDS WHERE THAT JUDGMENT WAS CONTRARY TO CIV.R. 55.
ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST
DEFENDANT STEPHANIE FIELDS AND DENYING DEFENDANT
STEPHANIE FIELDS’S[] MOTION TO DISMISS WITH PREJUDICE.
ASSIGNMENT OF ERROR VIII
 THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
WHERE IT ENTERED JUDGMENT AGAINST DEFENDANTS, AND FAILED
PURSUANT TO CIV.R. 58, TO GIVE INSTRUCTION TO THE CLERK TO
ISSUE NOTICE OF THE TRIAL COURT’S JUDGMENT TO DEFENDANTS
AND THEN PROCEEDED TO ENTER AN ORDER OF SALE AND
CONFIRMATION OF SALE.
{¶ 13} In each of the foregoing assignments of error, Mr. Fields and Ms. Douglas

challenge various aspects of the trial court’s judgment entry of foreclosure as well as its ruling on

certain interlocutory orders that merged with the final judgment. Because the record reflects that

their appeal from the court’s judgment entry of foreclosure is untimely, we cannot address the

merits of the foregoing assignments of error.

{¶ 14} In general, “a party who wishes to appeal from an order that is final upon its entry

shall file the notice of appeal * * * within 30 days of that entry.” App.R. 4(A)(1). An

exception exists in civil cases in which the clerk fails to complete service “within the three-day

period prescribed in [Civil Rule] 58(B).” App.R. 4(A)(3). In those cases, “the 30-day period[]

* * * begin[s] to run on the date when the clerk actually completes service.” Id. “It is well

established that an appellate court lacks jurisdiction over any appeal that is not timely filed.”

Brown v. Solon Pointe at Emerald Ridge, 8th Dist. Cuyahoga No. 99363, 2013-Ohio-4903, ¶ 8.

{¶ 15} The trial court here entered its judgment entry of foreclosure on May 23, 2014.

Mr. Fields and Ms. Douglas did not file their notice of appeal until August 15, 2014, 84 days

later. Thus, they filed their notice of appeal well beyond the 30-day time limit established by

Appellate Rule 4(A)(1). According to Mr. Fields and Ms. Douglas, their appeal is timely

because the court never instructed the clerk to serve them with a copy of its final judgment entry.

They argue that service was not perfected upon them in accordance with Civil Rule 58(B), so

their 30-day window for filing an appeal never commenced. See App.R. 4(A)(3). Because Mr.
Fields and Ms. Douglas have not shown that the clerk failed to perfect service upon them,

however, we reject their argument.

{¶ 16} Civil Rule 58(B) provides:

When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties not in default for failure to appear
notice of the judgment and its date of entry upon the journal. Within three days
of entering the judgment upon the journal, the clerk shall serve the parties in a
manner prescribed by [Civil Rule] 5(B) and note the service in the appearance
docket. Upon serving the notice and notation of the service in the appearance
docket, the service is complete. The failure of the clerk to serve notice does not
affect the validity of the judgment or the running of the time for appeal except as
provided in [Appellate Rule] 4(A).
Thus, the 30-day time limit for an appeal “does not begin to run until the later of (1) entry

of the judgment * * * appealed if the notice mandated by [Civil Rule] 58(B) is served within

three days of the entry of the judgment; or (2) service of the notice of judgment and its date of

entry if service is not made on the party within the three-day period * * *.” In re A.A., 8th Dist.

Cuyahoga No. 85002, 2005-Ohio-2618, ¶ 12, quoting Whitehall ex rel. Fennessy v. Bambi Motel,

Inc., 131 Ohio App.3d 734, 741 (10th Dist.1998).

{¶ 17} The record here reflects that the trial court failed to include in its judgment entry

of foreclosure an instruction to the clerk to serve the parties with “notice of the judgment and its

date of entry upon the journal.” Civ.R. 58(B). Nevertheless, the record also reflects that the

clerk included a notation of service when it docketed the court’s judgment entry. Specifically,

the docket entry for the court’s foreclosure judgment is followed by the language “NOTICE

ISSUED.” Accordingly, there is evidence in the record that the clerk served the parties with

notice of the judgment entry of foreclosure.

{¶ 18} “Once the clerk has served the parties notice of the entry [of judgment] and made

the appropriate notation in the appearance docket, notice is deemed served, and the time for filing
the notice of appeal begins to run.” (Emphasis omitted.) State ex rel. DelMonte v. Village of

Woodmere, 8th Dist. Cuyahoga No. 83293, 2004-Ohio-2340, ¶ 3. “In cases where the civil rules

on service are followed, there is a rebuttable presumption of proper service. A party’s failure to

receive such notice after it has been served is neither a basis to challenge the validity of the

judgment nor a defense for failure to file a timely appeal.” (Internal citations omitted.) State ex

rel. Ormond v. Solon, 8th Dist. Cuyahoga No. 82553, 2003-Ohio-5654, ¶ 7. Accord Perkins v.

Halex Co., 8th Dist. Cuyahoga No. 67253, 1995 WL 229104, *2 (Apr. 13, 1995); Balogh v.

Balogh, 8th Dist. Cuyahoga No. 67645, 1995 WL 33067, *1 (Jan. 26, 1995). “Although [a]

docket notation is not conclusive evidence that service was made, a reviewing court shall

presume regularity absent any evidence to the contrary.” State ex rel. Ormond at ¶ 8.

{¶ 19} Neither Mr. Fields, nor Ms. Douglas presented any evidence to rebut the

presumption that proper service occurred here. Compare DeFini v. Broadview Hts., 76 Ohio

App.3d 209, 211-214 (8th Dist.1991). Although the court failed to include Civil Rule 58(B)

language in its judgment entry, the docket reflects that the clerk nonetheless issued notice of the

entry. Compare State v. Tucker, 8th Dist. Cuyahoga No. 95556, 2011-Ohio-4092, ¶ 9-10 (time

for filing appeal never commenced where trial court did not direct clerk to serve notice and

“clerk also failed to note the date of any notice sent”); Whitehall ex rel. Fennessy, 131 Ohio

App.3d at 741 (“Where the trial court never instructed the clerk to send notices to the parties and

where no notices were sent in compliance with Civ.R. 58(B), the appeal is deemed timely under

App.R. 4(A).”). In the absence of evidence to the contrary, this Court must presume that the

clerk did, in fact, issue that notice. See State ex rel. Ormond at ¶ 8. Thus, Mr. Fields and Ms.

Douglas “have not demonstrated that [the] clerk failed to comply with [Civil Rule] 58(B).”

State ex rel. Caldwell v. Gallagher, 8th Dist. Cuyahoga No. 98317, 2012-Ohio-4608, ¶ 8
(appellant failed to show that clerk did not comply with Civil Rule 58(B) where appearance

docket reflected “notice issued” for the journal entry at issue).

{¶ 20} Once again, the time for filing the notice of appeal commences “[o]nce the clerk

has served the parties notice of the entry [of judgment] and made the appropriate notation in the

appearance docket * * *.” (Emphasis omitted.) State ex rel. DelMonte at ¶ 3. According to

the docket here, the clerk issued notice of the court’s judgment entry on May 23, 2014, the same

day that the court entered its judgment. Because Mr. Fields and Ms. Douglas did not file their

notice of appeal within 30 days of that date, their appeal from the judgment entry of foreclosure

is untimely.2 Thus, we lack jurisdiction to address the foregoing assignments of error.

See Brown v. Solon Pointe at Emerald Ridge, 8th Dist. Cuyahoga No. 99363,

2013-Ohio-4903, ¶ 8.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN DENYING DEFENDANTS’
MOTION TO ENFORCE MODIFICATION AGREEMENT, AND
SUBSEQUENTLY FAILING TO HOLD A HEARING ON
DEFENDANTS’ MOTION.

2

We acknowledge that this appeal was originally dismissed as untimely, but reinstated on
reconsideration after Mr. Fields and Ms. Douglas pointed to the lack of Civil Rule 58(B) language in
the court’s judgment entry of foreclosure. We note that an appellate court’s decision to reinstate an
appeal after dismissal does not guarantee that the appeal will ultimately proceed to a determination on
its merits. This appeal was dismissed and then reinstated at a very early stage of the appellate
proceedings, before the record in this matter was even due to be filed. Moreover, our decision in this
matter does not run afoul of the case law cited in support of the order granting reconsideration. See
State ex rel. Ford v. McClelland, 8th Dist. Cuyahoga No. 100014, 2013-Ohio-4379, ¶ 5. Thus, we
do not view the order granting reconsideration as being dispositive of the issue of timeliness.
 {¶ 21} In their fourth assignment of error, Mr. Fields and Ms. Douglas argue that the trial

court erred by denying their motion to enforce and by doing so without first holding a hearing.

We disagree.

{¶ 22} After the trial court entered its judgment entry of foreclosure, Mr. Fields and Ms.

Douglas filed a “motion to enforce modification agreement.” The essence of their motion was

that Wells Fargo was not entitled to judgment because it had agreed to settle this matter in 2009.

Mr. Fields and Ms. Douglas asked the court to enforce the modification agreement that the

parties had allegedly reached, but the court denied their motion.3

{¶ 23} “Under Ohio law, once a trial court has entered a final judgment in a matter

* * * a party’s options for legal recourse become significantly limited.” Rocky River v.

Garnek, 8th Dist. Cuyahoga No. 97540, 2012-Ohio-3079, ¶ 7, quoting Avon Lake Sheet

Metal Co., Inc. v. Huntington Environmental Sys., Inc., 9th Dist. Lorain No.

03CA008393, 2004-Ohio-5957, ¶ 11. A post-judgment motion to enforce a

modification agreement “is not provided for in any * * * civil rule and is therefore

considered a legal nullity.” Cleveland v. Farrell, 8th Dist. Cuyahoga No. 100136,

2014-Ohio-3131, ¶ 10, fn.2. The motion filed here was tantamount to a motion for

reconsideration, and “motions for reconsideration are not allowable either expressly or

impliedly in the trial court after a final judgment.” U.S. Bank, N.A. v. Majchrowicz, 8th

Dist. Cuyahoga No. 100174, 2014-Ohio-2530, ¶ 18. Because the motion that Mr. Fields

3

Mr. Fields and Ms. Douglas appealed within 30 days of the court’s denial of their motion to enforce,
as well as its denial of their Civil Rule 60(B) motion for relief from judgment. See discussion, infra.
Although they did not include those rulings in their original notice of appeal, they subsequently
and Ms. Douglas filed amounted to a legal nullity, the trial court did not err by denying it.

See Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379 (1981). See also Garnek at

¶ 8. As such, Mr. Fields and Ms. Douglas’ fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
IN DENYING DEFENDANTS[’] MOTION FOR RELIEF FROM
JUDGMENT.
{¶ 24} In their fifth assignment of error, Mr. Fields and Ms. Douglas argue that the trial

court erred by denying their motion for relief from judgment under Civil Rule 60(B). We

disagree.

{¶ 25} “A reviewing court will not disturb a trial court’s decision regarding a [Civil

Rule] 60(B) motion absent an abuse of discretion.” Fannie Mae Fed. Natl. Mtge. Assn. v.

Nedbalski, 8th Dist. Cuyahoga No. 102247, 2015-Ohio-2159, ¶ 12.

To prevail on a [Civil Rule] 60(B) motion to vacate judgment, the moving
party must demonstrate (1) the party has a meritorious defense or claim to present
if relief is granted; (2) the party is entitled to relief under one of the grounds stated
in [Civil Rule] 60(B)(1) through (B)(5); and (3) the motion is made within a
reasonable time * * *.
M & T Bank v. Steel, 8th Dist. Cuyahoga No. 101924, 2015-Ohio-1036, ¶ 9, citing GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the

syllabus. “If any of these three requirements is not met, the motion should be overruled.”

Nedbalski at ¶ 12. Moreover, “[w]hen a party merely reiterates arguments that concern the

merits of the case and that could have been raised on appeal, relief under [Civil Rule] 60(B) is

not available as a substitute for appeal.” Guadalupe v. Minadeo, 8th Dist. Cuyahoga No. 98077,

2012-Ohio-5071, ¶ 8.

amended their notice of appeal so as to include them. Consequently, we address those rulings.
 {¶ 26} Mr. Fields and Ms. Douglas argue that they were entitled to relief under either

Civil Rule 60(B)(1) or (B)(5) because they never received notice of the judgment entry of

foreclosure. They note that the court’s judgment entry does not contain Civil Rule 58(B)

language. According to Mr. Fields and Ms. Douglas, they were still awaiting a response on their

objections to the magistrate’s decision when they learned that their property was scheduled for

sheriff’s sale. They argue that the trial court failed to address one of their objections, regarding

a settlement that they allegedly reached with Wells Fargo in 2009. Additionally, they note that

their Civil Rule 60(B) motion contained “[o]ther meritorious defenses.”

{¶ 27} To prevail on their Civil Rule 60(B) motion, Mr. Fields and Ms. Douglas had to

“show ‘operative facts’ demonstrating entitlement to relief.” Parts Pro Automotive Warehouse

v. Summers, 8th Dist. Cuyahoga No. 99574, 2013-Ohio-4795, ¶ 13. They could not satisfy their

burden by resting upon “bare allegations of entitlement to relief.” Id. Yet, that is precisely

what they attempted to do in their motion. Other than the judgment entry of foreclosure itself,

they did not point to any evidence tending to show that they were not served with the judgment.

Although the judgment entry does not contain a Civil Rule 58(B) directive to the clerk, the

docket reflects that the clerk nonetheless issued notice of the judgment. See discussion, supra.

Neither Mr. Fields, nor Ms. Douglas submitted any evidence to rebut the presumption that the

clerk did, in fact, issue that notice. See State ex rel. Ormond, 2003-Ohio-5654, at ¶ 7-8

(presumption of service arises when docket notation indicates notice was issued). Accordingly,

they did not “show ‘operative facts’ demonstrating [their] entitlement to relief.” Parts Pro

Automotive Warehouse at ¶ 13.

{¶ 28} To the extent Mr. Fields and Ms. Douglas argue that the trial court failed to

address one of their objections to the magistrate’s decision, that argument could have been raised
on direct appeal. As previously noted, “relief under [Civil Rule] 60(B) is not available as a

substitute for appeal.” Guadalupe, 2012-Ohio-5071, at ¶ 8. Because Mr. Fields and Ms.

Douglas could have challenged the court’s ruling on their objections via a timely appeal, they

were not entitled to Civil Rule 60(B) relief on that basis.

{¶ 29} Lastly, Mr. Fields and Ms. Douglas argue that the trial court abused its discretion

by denying their Civil Rule 60(B) motion because their motion raised “[o]ther meritorious

defenses.” They have not separately analyzed any of the “[o]ther meritorious defenses” in their

assignment of error, however, and “it is not the duty of this Court to develop an argument in

support of an assignment of error if one exists.” State v. Collins, 8th Dist. Cuyahoga No. 89668,

2008-Ohio-2363, ¶ 91, quoting State v. Franklin, 9th Dist. Summit No. 22771, 2006-Ohio-4569,

¶ 19. An “appellant carries the burden of establishing his claims on appeal through the use of

legal authority and facts contained in the record.” Collins at ¶ 88. Because Mr. Fields and Ms.

Douglas have not developed their argument, we reject their blanket assertion that they were

entitled to relief with respect to their “[o]ther meritorious defenses.”

{¶ 30} In sum, Mr. Fields and Ms. Douglas have not shown that the trial court abused its

discretion by denying their motion for relief from judgment. Consequently, their fifth

assignment of error is overruled.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING DEFENDANTS’ MOTION TO STAY PROCEEDINGS.
{¶ 31} In their sixth assignment of error, Mr. Fields and Ms. Douglas argue that the trial

court abused its discretion when it denied their motions to stay the proceedings. We disagree.

{¶ 32} “The determination of whether to issue a stay of proceedings generally rests

within the trial court’s discretion and will not be disturbed absent a showing of abuse of
discretion.” Lenard v. Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 20. “The

term ‘abuse of discretion’ connotes judgment exercised by a court that does not comport with

either reason or the record.” State v. Maddox, 8th Dist. Cuyahoga No. 102133, 2015-Ohio-2859,

¶ 13.

{¶ 33} Mr. Fields and Ms. Douglas filed two motions to stay. They filed their first

motion to stay on July 22, 2014. In that motion, they asked the court to stay the proceedings so

that it might grant their motion to enforce the modification agreement that they allegedly reached

with Wells Fargo in 2009.4 They filed their second motion to stay on August 28, 2014.

In that motion, they did not assert any grounds in support of their motion.

{¶ 34} As previously noted, Mr. Fields and Ms. Douglas’ post-judgment “motion to

enforce modification agreement” was a nullity. See discussion, supra. Because the motion was

a nullity, we cannot conclude that the trial court abused its discretion when it refused to stay the

matter in order to consider it. Likewise, we cannot conclude that the court abused its discretion

when it denied Mr. Fields and Ms. Douglas’ second motion for a stay. Their second motion did

not set forth any basis in support of their request for a stay. Accordingly, the court’s decision to

deny it comported with both reason and the record. See Maddox at ¶ 13. Mr. Fields and Ms.

Douglas’ sixth assignment of error is overruled.

III.

{¶ 35} Mr. Fields and Ms. Douglas’ fourth, fifth, and sixth assignments of error are

overruled. This Court lacks jurisdiction to consider the merits of their remaining assignments of

4

Contrary to Mr. Fields and Ms. Douglas’ assertion on appeal, their first motion to stay did not ask
the court to stay the matter on the basis that the court’s judgment was contrary to the service
error, as those assignments of error stem from an untimely appeal. With regard to those

assignments of error, the appeal is dismissed. With regard to their fourth, fifth, and sixth

assignments of error, the judgment of the Cuyahoga County Court of Common Pleas is affirmed.

Judgment affirmed in part,
And appeal dismissed in part.

It is ordered that appellee recover of appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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.

_________________________________________
JENNIFER HENSAL, PRESIDING JUDGE

CARLA MOORE, J. CONCURS

CARR, J., concurring in part and dissenting in part.

{¶ 36} I respectfully dissent from the majority’s determination that a portion of this

appeal is untimely. The Eighth District Court of Appeals originally dismissed Mr. Fields and

Ms. Douglas’ appeal from the trial court’s judgment entry of foreclosure because it determined

that their appeal was untimely. The Eighth District then reconsidered its decision, however, and

reinstated their appeal, thereby concluding that it was, in fact, timely. Because the Eighth

requirements of Civil Rule 58(B).
District has already spoken on the issue of timeliness, I would not revisit its decision. Instead, I

would adhere to its determination on the issue of timeliness and address that portion of the

appeal on the merits. As to the remainder of the opinion, I concur in the majority’s resolution of

Mr. Fields and Ms. Douglas’ assignments of error. As such, I respectfully concur in part and

dissent in part.

(Sitting by assignment: Judge Donna Carr, Judge Jennifer Hensal, and Judge Carla
Moore, of the Ninth District Court of Appeals.)