Citimortgage Inc. v. Roznowski

2012 Ohio 74

• Court: Ohio Court of Appeals
• Decided: January 9, 2012
• Docket: 2011CA00124
• Status: Published

Opinion

[Cite as Citimortgage Inc., v. Roznowski, 2012-Ohio-74.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: CITIMORTGAGE INC., et al., : William B. Hoffman, P.J. : Sheila G. Farmer, J. Plaintiffs-Appellees : Julie A. Edwards, J. : -vs- : Case No. 2011CA00124 : : JAMES A. ROZNOWSKI, et al., : OPINION

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case No. 2008CV00894

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 9, 2012

APPEARANCES:

For Plaintiffs-Appellees For Defendants-Appellants

ERIN M. LAURITO PETER D. TRASKA COLLETTE S. CARR Elk & Elk Co., Ltd. Laurito & Laurito, LLC 6105 Parkland Blvd. 35 Commercial Way Mayfield Heights, Ohio 44124 Springboro, Ohio 45066

DAVID A. WALLACE KAREN A. CADIEUX Carpenter Lipps & Leland, LLP 280 North High Street, Ste. 1300 Columbus, Ohio 43215 [Cite as Citimortgage Inc., v. Roznowski, 2012-Ohio-74.]

Edwards, J.

{¶1} Defendants-appellants, James and Steffanie Roznowski, appeal from the

April 20, 2011, Judgment Entry of the Stark County Court of Common Pleas granting

summary judgment in favor of plaintiff-appellees CitiMortgage, Inc. and ABN AMRO

Mortgage Group, Inc.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 19, 2008, appellee CitiMortgage, Inc., (hereinafter

“CitiMortgage”) filed a foreclosure action against appellants James and Steffanie

Roznowski. After mediation was unsuccessful, appellants, on July 28, 2008, filed an

answer, counterclaim and Third Party Complaint against Quest Title Agency, Inc. and

appellee ABN AMRO Mortgage Group, Inc. The counterclaim and Third Party Complaint

alleged that appellee CitiMortgage and/or its predecessor, appellee ABN AMRO

Mortgage Group, Inc, had violated the Ohio Consumer Sales Practices Act. On August

19, 2008, appellee CitiMortgage filed an answer to the counterclaim and Third Party

Complaint and, on August 22, 2008, it filed a Motion for Summary Judgment. As

memorialized in a Judgment Entry filed on December 12, 2008, the motion was

overruled and the case was referred to the foreclosure mediation program for a second

time.

{¶3} On December 19, 2008, appellee ABN AMRO Mortgage Group, Inc filed

an answer to the counterclaim and Third Party Complaint.

{¶4} After mediation was unsuccessful, the case was returned to the active

docket in December of 2010. A non-jury trial was scheduled for February 10, 2011. Stark County App. Case No. 2011CA00124 3

{¶5} On January 10, 2011, Quest Title Agency, Inc. filed a Motion for Summary

Judgment. On the same date, appellees Citimortgage and ABN AMRO Mortgage

Group, Inc filed a Motion for Summary Judgment on the complaint, on appellants’

counterclaim and on the Third Party Complaint. In response, appellants filed a request

asking for a pretrial and for a continuance of the trial scheduled for February 10, 2011.

Appellants also asked that the summary judgment motions be held in abeyance. The

trial court, pursuant to a Judgment Entry filed on January 25, 2011, continued the trial

date until February 24, 2011. In a separate Notice filed the same date, the trial court

gave appellants until January 31, 2011 to respond to the Motions for Summary

Judgment.

{¶6} Appellants, on January 31, 2011, filed a motion, pursuant to Civ.R. 56(F),

for additional time within which to conduct discovery. A telephone conference call was

held on February 24, 2011. Via a Judgment Entry filed on February 25, 2011, the trial

court continued the trial date until May 3, 2011 and gave appellants until March 25,

2011 to file responses to the pending Motions for Summary Judgment.

{¶7} Thereafter, on March 22, 2011, appellant filed a second motion, pursuant

to Civ.R. 56(F), for additional time to conduct discovery. Three days later, On March

25, 2011, appellants filed a memorandum in opposition to the pending Motions for

Summary Judgment and a cross Motion for Summary Judgment. Appellants had

requested leave from the trial court to file their cross Motion for Summary Judgment.

{¶8} On April 19, 2011, appellants filed a Notice of Voluntary Dismissal of Third

Party Complaint against Quest Title Agency, Inc. with prejudice. Stark County App. Case No. 2011CA00124 4

{¶9} Pursuant to a Judgment Entry filed on April 20, 2011, the trial court denied

appellants’ motion for additional time within which to conduct discovery and their motion

for leave to file a cross Motion for Summary Judgment. The trial court granted

appellees’ Motion for Summary Judgment. The trial court, in its Judgment Entry, stated,

in relevant part, as follows: “Counsel for Plaintiff is to prepare the judgment entry

consistent with this Entry, the pleadings and the record within two weeks from the date

of this entry. This is a final appealable order and there is no just cause for delay.”

{¶10} Appellants now raise the following assignments of error on appeal:

{¶11} “I. THE TRIAL COURT ENTERED FINAL JUDGMENT IN A

FORECLOSURE ACTION WITHOUT ANY ENTRY ON THE AMOUNT OWED.

{¶12} “II. THE TRIAL COURT’S ENTRY OF JUDGMENT RESTS ENTIRELY

ON HEARSAY.

{¶13} “III. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE

FACE TO FACE MEETING REQUIREMENT OF 24 CFR 203.604(B).

{¶14} “IV. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT

ALLOWING ADEQUATE TIME FOR DISCOVERY.”

{¶15} As a preliminary matter, we must first determine whether the order under

review is a final appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event that the

parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.

See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989), Stark County App. Case No. 2011CA00124 5

syllabus; Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280

N.E.2d 922, (1972).

{¶16} An appellate court has jurisdiction to review and affirm, modify, or reverse

judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article

IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M

Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final and

appealable, then we have no jurisdiction to review the matter and must dismiss it. See

Gen. Acc. Ins. Co., supra at 20.

{¶17} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable. R.C. § 2505.02(B) provides the following in pertinent part:

{¶18} “(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:

{¶19} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

{¶20} “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment.”

{¶21} Civ.R. 54(B) provides:

{¶22} “When 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. In the absence of a

determination that there is no just reason for delay, any order or other form of decision, Stark County App. Case No. 2011CA00124 6

however designated, which adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties, shall not terminate the action as to any of the

claims or parties, and the order or other form of decision is subject to revision at any

time before the entry of judgment adjudicating all the claims and the rights and liabilities

of all the parties.”

{¶23} Therefore, to qualify as final and appealable, the trial court's order must

satisfy the requirements of R.C. § 2505.02, and if the action involves multiple claims

and/or multiple parties and the order does not enter a judgment on all the claims and/or

as to all parties; as is the case here, the order must also satisfy Civ .R. 54(B) by

including express language that “there is no just reason for delay.” Internatl. Bhd. of

Electrical Workers, Local Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335,

2007-Ohio-6439, 879 N.E.2d 187, ¶ 7, citing State ex rel. Scruggs v. Sadler, 97 Ohio

St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5–7. We note that “the mere incantation

of the required language does not turn an otherwise non-final order into a final

appealable order.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, (1989). To

be final and appealable, the judgment entry must also comply with R.C. 2505.02. Id.

{¶24} As noted by the court in CitiMortgage v. Arnold, 9th Dist. No. 25186, 2011-

Ohio-1350, ¶7:

{¶25} “Generally, an order that determines liability but not damages is not a final,

appealable order. Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d

863, at ¶ 31. There is an exception to this general rule, however, ‘where the

computation of damages is mechanical and unlikely to produce a second appeal

because only a ministerial task similar to assessing costs remains.’ State ex rel. White Stark County App. Case No. 2011CA00124 7

v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 546, 684 N.E.2d 72. Thus,

if ‘only a ministerial task similar to executing a judgment or assessing costs remains’

and there is a low possibility of disputes concerning the parties' claims, the order can be

appealed without waiting for performance of that ministerial task. Id.”

{¶26} In the case sub judice, we find that the April 20, 2011 Judgment Entry was

not a final appealable order despite inclusion of the Civ.R. 54(B) language. While the

order granted summary judgment to appellees, it did not set forth the dollar amount of

the balance due on the mortgage, and did not reference any documents in the record

that did. See CitiMortgage v. Arnold, supra.1 While the April 20, 2011 Judgment Entry

ordered: “Counsel for Plaintiff is to prepare the judgment entry consistent with this Entry,

the pleadings and the record within two weeks from the date of this entry…” no such

entry has been filed.

1 In such case, the court held that a summary judgment order in a foreclosure case that did not set forth the amount of judgment owed was not final. Stark County App. Case No. 2011CA00124 8

{¶27} Because the judgment appealed from is not a final, appealable order, the

appeal is dismissed.

By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

______________________________

JUDGES [Cite as Citimortgage Inc., v. Roznowski, 2012-Ohio-74.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CITIMORTGAGE INC., et al., : : Plaintiffs-Appellees : : : -vs- : JUDGMENT ENTRY : JAMES A. ROZNOWSKI, et al., : : Defendants-Appellants : CASE NO. 2011CA00124

For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Stark County Court of Common Pleas is dismissed. Costs assessed to

appellants.

_________________________________

JUDGES