[Cite as Acacia on the Green Condo Assn. v. Jefferson, 2014-Ohio-2399.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100443
ACACIA ON THE GREEN CONDO. ASSN. PLAINTIFF-APPELLEE
vs.
JEVAUN JEFFERSON, ET AL. DEFENDANTS-APPELLEES
[APPEAL BY TED PROPERTIES, L.L.C. DEFENDANT-APPELLANT]
JUDGMENT: DISMISSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-08-656304
BEFORE: McCormack, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEYS FOR APPELLANT
Joseph J. Straka Morscher & Straka 11711 Lorain Ave. #56 Cleveland, OH 44111
Gregory W. Happ P.O. Box 546 Medina, OH 44258
ATTORNEYS FOR APPELLEES
For Acacia on the Green Condo. Assn.
M. Katherine Bushey Kaman & Cusimano, L.L.C. 50 Public Square Suite 2000 Cleveland, OH 44113
Joni Todd Macallister A. West Sikora Law L.L.C. 8532 Mentor Ave. Mentor, OH 44060
For First Horizon Home Loans
Michael J. Sikora, III Sikora Law L.L.C. 8532 Mentor Ave. Mentor, OH 44060
Richard T. Craven Sikora Law L.L.C. 88 West Main Street Columbus, OH 43215
For First Horizon Home Loans (continued) Anita L. Maddix Lerner, Sampson & Rothfuss P.O. Box 5480 Cincinnati, OH 45201
For Jevaun Jefferson
Michael L. Nelson 55 Public Square Suite 1500 Cleveland, OH 44113
For John Doe, Unknown Spouse
John Doe Unknown Spouse of Jevaun Jefferson 183 Millstream Court Copley, OH 44321
For Plymouth Park Tax Service, L.L.C.
Leonard A. Cuilli Keith D. Weiner & Associates Co., L.P.A. 75 Public Square, 4th Floor Cleveland, OH 44113
TIM McCORMACK, J.: {¶1} Defendant-appellant, TED Properties, L.L.C. (“TED”), appeals from the
judgment of the trial court granting defendant-appellee First Horizon Home Loans’
(“First Horizon”) motion for summary judgment regarding lien priority. We dismiss for
lack of a final, appealable order.
{¶2} On April 9, 2008, Acacia on the Green Condominium Association, Inc.
(“Acacia”), filed a complaint for foreclosure against the prior owner, defendant Jevaun
Jefferson, and First Horizon, seeking foreclosure of its lien on the real property located at
2112 Acacia Drive, Lyndhurst, Ohio. First Horizon filed an answer as well as a
cross-claim against TED, alleging that it had a valid and subsisting lien on the property.
Thereafter, First Horizon moved the court for summary judgment on the issues of
foreclosure, lien priority, and equitable subrogation. TED responded with a motion for
summary judgment of its own. The trial court referred the matter to the court’s
magistrate for disposition.
{¶3} The undisputed facts in the record demonstrate as follows: Sal Culotta
purchased the Lyndhurst property in June 2005. Culotta granted two mortgages on the
property — the first to Mortgage Electronic Registration Systems, Inc. (“MERS”), as
nominee for People’s Choice Home Loan, Inc., and the second to TED. The MERS
mortgage and the TED mortgage were recorded on June 27, 2005. Jevaun Jefferson then
purchased the property from Culotta by warranty deed, which was recorded on July 27,
2007. Jefferson then granted a mortgage to MERS as nominee for First Horizon, the
proceeds from which were used to satisfy the Culotta mortgage to MERS, as nominee for People’s Choice Home Loan, Inc. The First Horizon mortgage was recorded on July 27,
2007. After Acacia filed its complaint, Jefferson defaulted on the First Horizon
mortgage. The parties agree that TED’s mortgage was recorded prior to First Horizon’s
mortgage. Finally, the record shows that Acacia’s lien was recorded in January 2008.
{¶4} The magistrate issued its decision on September 18, 2012, denying First
Horizon’s motion for summary judgment against TED and granting TED’s motion for
summary judgment against First Horizon with respect to lien priority. The magistrate
found that TED’s mortgage was a valid mortgage, First Horizon had constructive or
actual knowledge of TED’s mortgage, and TED had priority over First Horizon’s
mortgage. The magistrate further found that plaintiff, Acacia, had a “good, valid and
subsisting lien upon the premises.” Notably, the magistrate’s decision did not expressly
state the priority of Acacia’s lien. The magistrate then entered an order of foreclosure.
First Horizon filed objections to the magistrate’s decision.
{¶5} On August 29, 2013, the trial court entered an opinion and order sustaining
First Horizon’s objections, finding that TED’s mortgage did not include any description
of the land and, therefore, did not have priority over First Horizon’s subsequently and
properly recorded mortgage. The court stated that “the Magistrate’s decision of
September 18, 2012, is affirmed in all respects except as to the matter of lien priority.”
The court then ordered that “the Sheriff and Clerk of Courts are to follow the order of the
Magistrate’s Decision of September 18, 2012, while making any necessary adjustments
accordingly with regard to the sustaining of Defendant First Horizon’s objections to said decision.” The trial court did not expressly enter judgment for foreclosure or order sale
of the property. Further, it did not expressly hold that First Horizon had the first and best
lien.
{¶6} On appeal, TED raised four assignments of error, alleging the trial court
erred in sustaining First Horizon’s objections to the magistrate’s decision. This court,
however, sua sponte ordered the parties to brief the issue whether the trial court’s order is
a final, appealable order. Both TED and First Horizon responded, contending that it is a
final order with respect to the determination of the priority of liens.
{¶7} Appellate courts have jurisdiction to review and affirm, modify, or reverse
judgments or final orders from lower courts. Ohio Constitution, Article IV, Section
3(B)(2); R.C. 2505.02. Therefore, “‘[i]f an order is not final, then an appellate court has
no jurisdiction.’” CitiMortgage, Inc. v. Roznowski, Slip Opinion No. 2014-Ohio-1984,
¶ 10, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d
266 (1989). A trial court’s order is a final, appealable order only if the requirements of
both R.C. 2505.02 and Civ.R. 54(B), if applicable, are satisfied. State ex rel. Scruggs v.
Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5.
{¶8} Where a trial court reviews objections to a magistrate’s decision, the trial
court’s journal entry must be a “‘separate and distinct instrument from that of the
magistrate’s order and must grant relief on the issues originally submitted to the court,’”
in order to constitute a final, appealable order. Wells Fargo Bank, N.A. v. Allen, 8th Dist.
Cuyahoga No. 96611, 2012-Ohio-175, ¶ 7, quoting Flagstar Bank, F.S.B. v. Moore, 8th Dist. Cuyahoga No. 91145, 2008-Ohio-6163, ¶ 1. In other words, the trial court must
enter its own judgment including “‘a clear pronouncement of the trial court’s judgment
and a statement of the relief granted by the court.’” Deutsche Bank Natl. Co. v.
Caldwell, 196 Ohio App.3d 636, 2011-Ohio-4508, 964 N.E.2d 1093, ¶ 7 (8th Dist.),
quoting Flagstar Bank at ¶ 8.
{¶9} This court recently reiterated that a trial court’s order must specify the relief
afforded the parties in order to conclude the matter:
To terminate the matter, the court’s order must contain a statement of the
relief granted to the parties. Harkai v.
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[Cite as Acacia on the Green Condo Assn. v. Jefferson, 2014-Ohio-2399.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100443
ACACIA ON THE GREEN CONDO. ASSN. PLAINTIFF-APPELLEE
vs.
JEVAUN JEFFERSON, ET AL. DEFENDANTS-APPELLEES
[APPEAL BY TED PROPERTIES, L.L.C. DEFENDANT-APPELLANT]
JUDGMENT: DISMISSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-08-656304
BEFORE: McCormack, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 5, 2014 ATTORNEYS FOR APPELLANT
Joseph J. Straka Morscher & Straka 11711 Lorain Ave. #56 Cleveland, OH 44111
Gregory W. Happ P.O. Box 546 Medina, OH 44258
ATTORNEYS FOR APPELLEES
For Acacia on the Green Condo. Assn.
M. Katherine Bushey Kaman & Cusimano, L.L.C. 50 Public Square Suite 2000 Cleveland, OH 44113
Joni Todd Macallister A. West Sikora Law L.L.C. 8532 Mentor Ave. Mentor, OH 44060
For First Horizon Home Loans
Michael J. Sikora, III Sikora Law L.L.C. 8532 Mentor Ave. Mentor, OH 44060
Richard T. Craven Sikora Law L.L.C. 88 West Main Street Columbus, OH 43215
For First Horizon Home Loans (continued) Anita L. Maddix Lerner, Sampson & Rothfuss P.O. Box 5480 Cincinnati, OH 45201
For Jevaun Jefferson
Michael L. Nelson 55 Public Square Suite 1500 Cleveland, OH 44113
For John Doe, Unknown Spouse
John Doe Unknown Spouse of Jevaun Jefferson 183 Millstream Court Copley, OH 44321
For Plymouth Park Tax Service, L.L.C.
Leonard A. Cuilli Keith D. Weiner & Associates Co., L.P.A. 75 Public Square, 4th Floor Cleveland, OH 44113
TIM McCORMACK, J.: {¶1} Defendant-appellant, TED Properties, L.L.C. (“TED”), appeals from the
judgment of the trial court granting defendant-appellee First Horizon Home Loans’
(“First Horizon”) motion for summary judgment regarding lien priority. We dismiss for
lack of a final, appealable order.
{¶2} On April 9, 2008, Acacia on the Green Condominium Association, Inc.
(“Acacia”), filed a complaint for foreclosure against the prior owner, defendant Jevaun
Jefferson, and First Horizon, seeking foreclosure of its lien on the real property located at
2112 Acacia Drive, Lyndhurst, Ohio. First Horizon filed an answer as well as a
cross-claim against TED, alleging that it had a valid and subsisting lien on the property.
Thereafter, First Horizon moved the court for summary judgment on the issues of
foreclosure, lien priority, and equitable subrogation. TED responded with a motion for
summary judgment of its own. The trial court referred the matter to the court’s
magistrate for disposition.
{¶3} The undisputed facts in the record demonstrate as follows: Sal Culotta
purchased the Lyndhurst property in June 2005. Culotta granted two mortgages on the
property — the first to Mortgage Electronic Registration Systems, Inc. (“MERS”), as
nominee for People’s Choice Home Loan, Inc., and the second to TED. The MERS
mortgage and the TED mortgage were recorded on June 27, 2005. Jevaun Jefferson then
purchased the property from Culotta by warranty deed, which was recorded on July 27,
2007. Jefferson then granted a mortgage to MERS as nominee for First Horizon, the
proceeds from which were used to satisfy the Culotta mortgage to MERS, as nominee for People’s Choice Home Loan, Inc. The First Horizon mortgage was recorded on July 27,
2007. After Acacia filed its complaint, Jefferson defaulted on the First Horizon
mortgage. The parties agree that TED’s mortgage was recorded prior to First Horizon’s
mortgage. Finally, the record shows that Acacia’s lien was recorded in January 2008.
{¶4} The magistrate issued its decision on September 18, 2012, denying First
Horizon’s motion for summary judgment against TED and granting TED’s motion for
summary judgment against First Horizon with respect to lien priority. The magistrate
found that TED’s mortgage was a valid mortgage, First Horizon had constructive or
actual knowledge of TED’s mortgage, and TED had priority over First Horizon’s
mortgage. The magistrate further found that plaintiff, Acacia, had a “good, valid and
subsisting lien upon the premises.” Notably, the magistrate’s decision did not expressly
state the priority of Acacia’s lien. The magistrate then entered an order of foreclosure.
First Horizon filed objections to the magistrate’s decision.
{¶5} On August 29, 2013, the trial court entered an opinion and order sustaining
First Horizon’s objections, finding that TED’s mortgage did not include any description
of the land and, therefore, did not have priority over First Horizon’s subsequently and
properly recorded mortgage. The court stated that “the Magistrate’s decision of
September 18, 2012, is affirmed in all respects except as to the matter of lien priority.”
The court then ordered that “the Sheriff and Clerk of Courts are to follow the order of the
Magistrate’s Decision of September 18, 2012, while making any necessary adjustments
accordingly with regard to the sustaining of Defendant First Horizon’s objections to said decision.” The trial court did not expressly enter judgment for foreclosure or order sale
of the property. Further, it did not expressly hold that First Horizon had the first and best
lien.
{¶6} On appeal, TED raised four assignments of error, alleging the trial court
erred in sustaining First Horizon’s objections to the magistrate’s decision. This court,
however, sua sponte ordered the parties to brief the issue whether the trial court’s order is
a final, appealable order. Both TED and First Horizon responded, contending that it is a
final order with respect to the determination of the priority of liens.
{¶7} Appellate courts have jurisdiction to review and affirm, modify, or reverse
judgments or final orders from lower courts. Ohio Constitution, Article IV, Section
3(B)(2); R.C. 2505.02. Therefore, “‘[i]f an order is not final, then an appellate court has
no jurisdiction.’” CitiMortgage, Inc. v. Roznowski, Slip Opinion No. 2014-Ohio-1984,
¶ 10, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d
266 (1989). A trial court’s order is a final, appealable order only if the requirements of
both R.C. 2505.02 and Civ.R. 54(B), if applicable, are satisfied. State ex rel. Scruggs v.
Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5.
{¶8} Where a trial court reviews objections to a magistrate’s decision, the trial
court’s journal entry must be a “‘separate and distinct instrument from that of the
magistrate’s order and must grant relief on the issues originally submitted to the court,’”
in order to constitute a final, appealable order. Wells Fargo Bank, N.A. v. Allen, 8th Dist.
Cuyahoga No. 96611, 2012-Ohio-175, ¶ 7, quoting Flagstar Bank, F.S.B. v. Moore, 8th Dist. Cuyahoga No. 91145, 2008-Ohio-6163, ¶ 1. In other words, the trial court must
enter its own judgment including “‘a clear pronouncement of the trial court’s judgment
and a statement of the relief granted by the court.’” Deutsche Bank Natl. Co. v.
Caldwell, 196 Ohio App.3d 636, 2011-Ohio-4508, 964 N.E.2d 1093, ¶ 7 (8th Dist.),
quoting Flagstar Bank at ¶ 8.
{¶9} This court recently reiterated that a trial court’s order must specify the relief
afforded the parties in order to conclude the matter:
To terminate the matter, the court’s order must contain a statement of the
relief granted to the parties. Harkai v. Scherba Industries, Inc., 136 Ohio
App.3d 211, 216, 736 N.E.2d 101 (9th Dist.2000). A judgment that does
not specify the relief granted does not terminate the action and does not
constitute a final, appealable order. Id. at 221. Furthermore, a judgment
that requires the parties to refer to other documents does not constitute a
final, appealable order. Golden Goose Properties v. Daniel Leizman, 8th
Dist. Cuyahoga No. 99937, 2013-Ohio-5438, ¶ 7, citing Stumph Rd.
Properties [v. Vargo, 8th Dist. Cuyahoga No. 89811, 2008-Ohio-1830,] at ¶
13.
Bykova v. McBrayer, 8th Dist. Cuyahoga No. 100172, 2013-Ohio-5745, ¶ 3.
{¶10} Generally, a determination that a party has the first and best lien is a final,
appealable order. Queen City S. & L. Co. v. Foley, 170 Ohio St. 383, 165 N.E.2d 633
(1960), paragraph one of the syllabus. Where the trial court fails to make a determination as to the priority of liens, however, the trial court’s order of foreclosure and
sale is not a final, appealable order and any appeal taken from that order must be
dismissed in accordance with Civ.R. 54(B). Wells Fargo Bank, N.A. at ¶ 10, citing
Culkar v. Fanter, 8th Dist. Cuyahoga No. 48151, 1984 Ohio App. LEXIS 12092 (Dec.
27, 1984).
{¶11} Here, the parties argue that the trial court’s order of August 29, 2013, made
a determination with respect to the priority of liens. However, while the order arguably
determined that First Horizon had first priority, the order does not include a clear
pronouncement of that determination. Although the trial court clearly held that the
recordation of TED’s mortgage did not provide it with priority over subsequently
recorded mortgages, we are left to presume that in making this statement, the court
intended to conclude that First Horizon therefore has the first and best lien. This
presumption, while logical, is not supported by an express statement of the relief granted
the parties.
{¶12} Moreover, the court’s order does not specifically address Acacia’s lien.
While it is undisputed that Acacia’s lien was filed later than TED’s and First Horizon’s
liens, we cannot assume that Acacia’s lien is inferior to them for purposes of the court’s
entering a final judgment, especially considering that the magistrate’s decision did not
expressly state the priority of Acacia’s lien and the court expressly excepted the
magistrate’s decision regarding lien priority from its order. Finally, the trial court did not enter in its order of August 29, 2013, the order of foreclosure included in the magistrate’s
decision.
{¶13} In light of the above, we find that the trial court’s order “to follow the order
of the Magistrate’s Decision of September 18, 2012, while making any necessary
adjustments accordingly with regard to the sustaining of Defendant First Horizon’s
objections to said decision” is not a final, appealable order. This court therefore lacks
jurisdiction and we must dismiss the appeal.
It is ordered that appellees recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________ TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR KEYWORDS:
Acacia on the Green Condo. Assn. v. Jevaun Jefferson, et al., Appeal No. 100443
Final, appealable order; foreclosure; lien priority; magistrate’s decision. Where the trial court failed to make an express determination as to the priority of liens in a foreclosure action and required the parties to refer to the magistrate’s decision, its order is not a final, appealable order. This court has no jurisdiction and must therefore dismiss the appeal.