Milton Banking Co. v. Adkins

[Cite as Milton Banking Co. v. Adkins, 2020-Ohio-1481.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY

THE MILTON BANKING COMPANY : Case No. 19CA07
A Division of THE OHIO VALLEY :
BANK COMPANY, : DECISION AND JUDGMENT
: ENTRY
Plaintiff-Appellee, :
:
V. :
:
REBEKAH A. ADKINS, ET AL., :
:
Defendants-Appellants. :

APPEARANCES:

Bruce M. Broyles, Lancaster, Ohio, for Appellants.

Lawrence A. Heiser and Jessica M. Ismond, Oths, Heiser, Miller, Waigand &
Clagg, LLC, Wellston, Ohio, for Appellee.

Smith, P.J.

{¶1} This is an appeal of an April 16, 2019 judgment entry in foreclosure of

the Jackson County Court of Common Pleas which awarded judgment in favor of

The Milton Banking Company, a division of The Ohio Valley Bank Company,

hereinafter “Milton Banking,” and against Rebekah A. Adkins and Jason Adkins,

hereinafter, “Appellants.” Appellants raise three assignments of error challenging

the trial court’s entry of judgment. For the reasons which follow, we find we do
Jackson App. No. 19CA07 2

not have jurisdiction to consider this appeal. Accordingly, we dismiss the appeal

for lack of a final appealable order.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On December 5, 2018, Milton Banking filed a complaint in foreclosure.

Along with Appellants, Milton Banking named several additional defendants.

These defendants included: State of Ohio Department of Taxation; Knight Nguyen

Investments; Ohio Health Corporation; Bruce Hann; Jan Shroy; Vecron Exim Ltd;

Lane Aviation Corporation; United States of America Department of the Treasury,

Internal Revenue Service; Ohio Department of Job & Family Services, Bureau of

Unemployment Compensation Taxation; State of Ohio Department of Job &

Family Services; and the Jackson County Treasurer.

{¶3} The foreclosure complaint alleged as follows:

1. On November 24, 2010, the Defendant Rebekah A. Adkins,

executed and delivered to Plaintiff, the Milton Banking

Company, a division of The Ohio Valley Bank Company,

her certain Adjustable Rate Note, in the original principal

sum of Sixty-Five Thousand Dollars ($65,000.00) with

interest accruing thereon at 7.50% per annum until paid in

full. Said Note attached hereto as Exhibit A.
Jackson App. No. 19CA07 3

2. The Defendant was to make 240 monthly payments of

$523.79 beginning December 24, 2010.

3. The Defendant is in default on said Note, and there is due

and owing the sum of Fifty Thousand Five Hundred Five

Dollars and Ninety-Two Cents ($50,505.92) as of November 6,

2018 plus interest at 8.00% per annum ($11.06979 per day),

until paid in full plus costs.

***

4. As security for payment of the note referred to in Count

One, the Defendants, Rebekah A. Adkins and Jason Adkins,

husband and wife, executed and delivered to Plaintiff, The

Milton Banking Company, a division of The Ohio Valley

Bank Company, their certain Open End Mortgage, a copy

of which is attached hereto as Exhibit B, covering the

following described real estate: SEE EXHIBIT C.

Parcel Numbers: 116-014-00-037-00, 116-014-00-00-038-00,

116-014-00-039-00

Address of Property: 163 South Bingham Street, Oak Hill,

Ohio 45656.
Jackson App. No. 19CA07 4

The Complaint requested judgment in favor of plaintiff in the above-referenced

amount and also requested that the real estate be sold according to law.

{¶4} On February 25, 2019, Appellants filed a Motion for Extension of

Time to File Answer to Complaint. In the motion, Appellants alleged:

Rebekah A. Adkins and Jason Adkins say that the complaint

was filed on December 5, 2018; that certified mail was returned

unclaimed on December 24 and December 27, 2018, and that

certificates of mailing by regular mail to Defendants were filed

on December 28, 2018. Pursuant to Civil Rule 4.6(D) Defendants

answer day was twenty-eight (28) days after the certificate of

mailing or January 25, 2019. Defendants Rebekah and Jason

Adkins further say that previous counsel did not expect to be

called upon to handle the above-captioned matter, that Defendants

have recently retained new counsel, and that Plaintiff has not

yet moved for default judgment.

{¶5} Also on February 25, 2019, Milton Banking filed a motion for

summary judgment. On March 29, 2019, Appellants filed a second Motion for

Extension of Time to File Answer to Complaint. In the motion, Appellants

acknowledged being granted an extension of time to answer complaint until March
Jackson App. No. 19CA07 5

24, 2019. However, Appellants asserted that “the schedule of their counsel has and

will prevent the timely filing of their answer, that this motion is not interposed for

the purposes of undue delay, that no party will be prejudiced and that the interests

of justice will be well served if this Court were to grant them an extension of

time.” Appellants specifically requested an extension of time until April 24, 2019.

{¶6} On April 4, 2019, Milton Banking filed a memorandum contra

extension of time and requested the motion for extension be overruled. Milton

Banking argued that it had already filed its motion for summary judgment and

Appellants had more than adequate time. On April 16, 2019, the trial court entered

judgment entry of foreclosure.

{¶7} This timely appeal followed.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ABUSED ITS DISCRETION
IN FAILING TO GRANT APPELLANTS A SECOND
EXTENSION OF TIME TO FILE ANSWER TO COMPLAINT
AND IMMEDIATELY ENTERING SUMMARY JUDGMENT
IN FAVOR OF APPELLEE.

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT WHEN APPELLEE FAILED TO DEMONSTRATE
THAT IT COMPLIED WITH ALL CONDITIONS PRECEDENT
TO THE FILING OF THE FORECLOSURE COMPLAINT.

III. THE TRIAL COURT ERRED IN GRANTING SUMMARY
Jackson App. No. 19CA07 6

JUDGMENT WHEN APPELLEE FAILED TO ALLEGE IN ITS
COMPLAINT THAT IT COMPLIED WITH ALL CONDITIONS
PRECEDENT TO THE FILING OF THE FORECLOSURE
COMPLAINT, AND THERE REMAINED GENUINE ISSUES
OF MATERIAL FACT AS TO APPELLEE’S COMPLIANCE
WITH ALL CONDITIONS PRECEDENT TO THE FILING OF
THE FORECLOSURE COMPLAINT.”

LEGAL ANALYSIS

{¶8} Appellate courts “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[.]” Partners for Payment

Relief DE L.L.C. v. Jarvis, 4th Dist. Scioto No. 15CA3723, 2016-Ohio-7562, ¶ 6,

quoting Ohio Constitution, Article IV, Section 3(B)(2); see R.C. 2505.03(A). If a

court's order is not final and appealable, we have no jurisdiction to review the

matter and must dismiss the appeal. Jarvis, supra; Eddie v. Saunders, 4th Dist.

Gallia No. 07CA7, 2008-Ohio-4755, ¶ 11.

{¶9} An order must meet the requirements of R.C. 2505.02 to constitute a

final, appealable order. Jarvis, supra, at ¶ 7, citing Chef Italiano Corp. v. Kent

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

2505.02(B)(1), an order is a final order if it “affects a substantial right in an action

that in effect determines the action and prevents a judgment[.]” To determine the

action and prevent a judgment for the party appealing, the order “ ‘must dispose of
Jackson App. No. 19CA07 7

the whole merits of the cause or some separate and distinct branch thereof and

leave nothing for the determination of the court.’ ” Jarvis, supra, quoting

Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals

Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).

{¶10} “Foreclosure actions proceed in two stages, both of which end in a

final appealable judgment: the order of foreclosure and the confirmation of sale.”

Farmers State Bank v. Sponaugle, 157 Ohio St. 3d 151, 2019-Ohio-2518, at ¶ 18.

A judgment decree in foreclosure fully disposes of liability if it “ ‘determines the

extent of each lienholder's interest, sets forth the priority of the liens, and

determines the other rights and responsibilities of each party in the action.’ ”

Jarvis, supra, at ¶ 8, quoting CitiMortgage, Inc. v. Roznowski,139 Ohio St.3d 299,

2014-Ohio-1984, ¶ 39. Thus, to qualify as a final order under R.C. 2505.02(B)(1),

a foreclosure decree must account for each lienholder's interest and delineate each

lienholder's rights. Id. at ¶ 20-21; Second Natl. Bank of Warren v. Walling, 7th

Dist. No. 01-CA-62, 2002-Ohio-3852, ¶ 18 (“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”);
Jackson App. No. 19CA07 8

See also Green Tree Servicing L.L.C. v. Columbus & Cent. Ohio Children's

Chorus Found., 10th Dist. Franklin No. 15AP-802, 2016-Ohio-3426, ¶ 9.

{¶11} Additionally, if a case involves multiple parties or multiple claims,

the court's order must meet the requirements of Civ.R. 54(B) to qualify as a final,

appealable order. Jarvis, supra at ¶ 9. See Chef Italiano Corp. at 88. Under

Civ.R. 54(B), “[w]hen more than one claim for relief is presented in an action

whether as a claim, counterclaim, cross-claim, or third-party claim, and whether

arising out of the same or separate transactions, or when multiple parties are

involved, the court may enter final judgment as to one or more but fewer than all of

the claims or parties only upon an express determination that there is no just reason

for delay.” “Absent the mandatory language that ‘there is no just reason for delay,’

an order that does not dispose of all claims is subject to modification and is not

final and appealable.” Jarvis, supra, at ¶ 9, quoting Noble v. Colwell, 44 Ohio

St.3d 92, 96, 540 N.E.2d 1381 (1989); see Civ.R. 54(B). The purpose of Civ.R.

54(B) is “ ‘to make a reasonable accommodation of the policy against piecemeal

appeals with the possible injustice sometimes created by the delay of appeals[,]’

* * * as well as to insure that parties to such actions may know when an order or

decree has become final for purposes of appeal * * *.” Pokorny v. Tilby Dev. Co.,
Jackson App. No. 19CA07 9

52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977); quoting Alexander v. Buckeye

Pipeline, 49 Ohio St.2d 158, 160, 359 N.E.2d 702 (1977).

{¶12} The case presently before us involves multiple parties and claims.

Defendants Ohio Health, Bruce Hann, Jan Shroy, and Lane Aviation filed answers.

All defendants except the Ohio Department of Taxation and the Jackson County

Treasurer had filed liens with the Jackson County Recorder. The Ohio Department

of Taxation had filed a certificate of judgment. The complaint alleged that taxes

were due and owed to the Jackson County Treasurer. However, in the April 16,

2019 judgment entry in foreclosure, only Milton Banking’s interests have been

resolved. On the third page of the foreclosure entry, the third full paragraph states:

The Sheriff of Jackson County, Ohio is ordered to sale [sic]

said real estate as upon execution and return these proceedings

to the Court whereupon the court shall consider the marshalling

of liens and distribution of proceeds as sale.

{¶13} The interests of the other defendants named in the foreclosure

complaint are unresolved and are not addressed in the entry except for the vague

reference that “the court shall consider the marshalling of liens and distribution of

proceeds as sale.” This language demonstrates that the April 16, 2019 order is

subject to modification and not final and appealable. Thus the foreclosure decree
Jackson App. No. 19CA07 10

is not a final order under R.C. 2505.02(B)(1) because it fails to address the

interests and rights of all lienholders.

{¶14} Furthermore, while the third page of the April 16, 2019 judgment

entry of foreclosure sets forth “ no just cause for delay” language, Civ. R. 54(B)

does not apply. “ ‘Before Civ. R. 54(B) can apply the order at issue must qualify

as a final order under R.C. 2505.02(B).’ ’’ Johnson v. Stone, 2019-Ohio-4630,

_N.E.3d._, at ¶ 21 (3rd Dist.), quoting Green Tree Servicing, at ¶ 13. “The mere

incantation of Civ.R. 54(B) language does not convert an otherwise non-final order

into a final, appealable order.” Id. (finding that a judgment decree in foreclosure

that did not address the interest of other lienholders was not a final order under

R.C. 2505.02(B) and the trial court’s use of Civ.R. 54(B) language could not

transform the non-final order into a final, appealable one). The April 16, 2019

judgment decree in foreclosure is not a final order under R.C. 2505.02(B), so the

trial court’s use of Civ.R. 54(B) language cannot transform it into a final,

appealable order.

CONCLUSION

{¶15} In light of our determination that the April 16, 2019 judgment entry of

foreclosure is subject to modification and is not final and appealable, we lack
Jackson App. No. 19CA07 11

jurisdiction to consider this appeal. Accordingly, we DISMISS the appeal for lack

of a final, appealable order.

APPEAL DISMISSED.
Jackson App. No. 19CA07 12

JUDGMENT ENTRY

It is ordered that the APPEAL BE DISMISSED and costs be assessed to
Appellee.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Jackson County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J. & Hess, J.: Concur in Judgment and Opinion.

For the Court,

__________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.