CitiMortgage, Inc. v. Teofilo

2016 Ohio 4584

Opinion

[Cite as CitiMortgage, Inc. v. Teofilo, 2016-Ohio-4584.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

CitiMortgage, Inc., successor by merger Court of Appeals No. E-15-051 to ABN AMRO Mortgage Group, Inc. Trial Court No. 2013-CV-0297 Appellee

v.

Greg Teofilo, et al. DECISION AND JUDGMENT

Appellant Decided: June 24, 2016

*****

Mia L. Conner, for appellee.

Greg Teofilo, pro se.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Greg Teofilo, appeals pro se from the July 31, 2015 judgment of

the Erie County Court of Common Pleas denying Teofilo’s Civ.R. 60(B) motion for relief

from the granting of summary judgment to appellee, CitiMortgage, Inc. Finding that the

trial court ruled on Teofilo’s motion while an appeal from this judgment was pending, we conclude that the trial court’s judgment denying the motion was void and dismiss this

appeal.

{¶ 2} In 2013, CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage

Group, Inc., filed a complaint in foreclosure against Greg Teofilo and other defendants

regarding real property at 210 Cement Street, Castalia, Ohio. On July 25, 2014, the trial

court granted summary judgment to CitiMortgage, Inc. Teofilo filed a notice of appeal

from the judgment. CitiMortgage, Inc. v. Teofilo, 6th Dist. Lucas No. E-14-110, 2016-

Ohio-437. This court affirmed the granting of summary judgment on February 5, 2016.

Id.

{¶ 3} While the appeal was pending, defendant moved on May 28, 2015, to vacate

summary judgment pursuant to Civ.R. 60(B). On July 31, 2015, the trial court denied the

motion to vacate and Teofilo appealed from that judgment on August 7, 2015.

{¶ 4} On appeal, appellant asserts the following assignments of error:

Assignment of Error Number 1:

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

A CIV.R. 60(B) MOTION FOR RELIEF FROM JUDGMENT

CONTAINING ALLEGATIONS THAT WOULD, IF TRUE, WARRANT

RELIEF UNDER CIV.R. 60(B) WITHOUT HOLDING A HEARING ON

SUCH ALLEGATIONS.

2. Assignment of Error Number 2:

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CIV.R. 60(B) MOTION WITHOUT CONSIDERATION OR

EXPLANATION OF IT’S [SIC] DECISION.

Assignment of Error Number 3

THE TRIAL COURT ABUSED ITS DISCRETION BY

DENYING/RULING ON APPELLANT’S CIV.R. 60(B) MOTION FOR

RELIEF FROM JUDGMENT WHILE THE CASE WAS UNDER

APPEAL WITHIN CASE E-14-0094 [sic] REMAND WAS DENIED BY

THE COURT OF APPEALS ON JUNE 17TH 2015, [sic]

{¶ 5} We begin by addressing Teofilo’s third assignment of error first. Teofilo

argues the trial court lacked jurisdiction to rule on his Civ.R. 60(B) motion for relief from

the granting of summary judgment while an appeal of that judgment was pending.

{¶ 6} We agree. “[A]n appeal divests trial courts of jurisdiction to consider Civ.R.

60(B) motions for relief from judgment” while the appeal is pending. Howard v.

Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147, 637 N.E.2d 890

(1994). See also In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9; In

re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1943), paragraph two of the syllabus.

However, the court of appeals may remand the case to the trial court, giving it subject-

matter jurisdiction to rule on the motion. Howard.

3. {¶ 7} Appellee argues that ruling on the Civ.R. 60(B) motion was only harmless

error. We disagree. Judgments entered without subject-matter jurisdiction are void

ab initio. State ex rel. Ohio Democratic Party v. Blackwell, 111 Ohio St.3d 246, 2006-

Ohio-5202, 855 N.E.2d 1188, ¶ 8. Any appeal from a void judgment must be dismissed

for lack of a final, appealable order. Horvath v. Packo, 2013-Ohio-56, 985 N.E.2d 966,

¶ 13 (6th Dist.). The judgment must be treated like it never existed. State v. Simpkins,

117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 19. Therefore, the harmless

error doctrine cannot be applied to void judgments.

{¶ 8} In this case, the trial court’s judgment was rendered when it lacked subject-

matter jurisdiction and is, therefore, void. This appeal is hereby ordered dismissed at

appellant’s costs.

Appeal dismissed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

4. CitiMortgage, Inc. v. Teofilo C.A. No. E-15-051

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

5.