[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FAHEY BANKING COMPANY ) CASE NO. 11 MA 178 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CAROLE SQUIRE, et al. ) ) DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CV 3723
JUDGMENT: Affirmed. Summary Judgment Arguments Dismissed.
APPEARANCES: For Plaintiff-Appellee: Atty. Michael N. Schaeffer Atty. Scott N. Schaeffer Atty. Richard G. Murray, II Kemp, Schaeffer & Rowe Co., LPA 88 West Mound Street Columbus, Ohio 43215
For Defendants-Appellants: Percy Squire, Pro se Percy Squire Co., LLC 341 S. Third Street, Suite 101 Columbus, Ohio 43215
JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro
Dated: September 14, 2012 [Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.] VUKOVICH, J.
{¶1} Defendant-appellant Percy Squire appeals the decision of the
Mahoning County Common Pleas Court denying his Civ.R. 60(B) motion to vacate
the grant of summary judgment for plaintiff-appellee Fahey Banking Company.
Although Squire is appealing the trial court’s denial of his Civ.R. 60(B) motion, his
assignment of error and arguments focus solely on the propriety of the summary
judgment and decree of foreclosure order. Squire did not timely appeal that order,
thus the arguments presented are not reviewable. Furthermore, as to the propriety of
the trial court’s ruling on the Civ.R. 60(B) motion, the brief does not contain any
arguments concerning the correctness or lack thereof of the denial of his Civ.R. 60(B)
motion. Therefore, as there are no arguments before us concerning the denial of his
Civ.R. 60(B) motion, we will uphold that determination. Consequently, for those
reasons and the ones discussed below, the trial court’s Civ.R. 60(B) ruling is
affirmed, however, the arguments regarding the trial court’s grant of summary
judgment for Fahey Banking Company are dismissed as untimely.
STATEMENT OF THE CASE
{¶2} On September 27, 2010, Fahey Banking Company filed a complaint in
foreclosure on note and mortgage against Percy and Carole Squire. In the
complaint, Fahey alleged that in August 1995, the Squires executed a promissory
note for $115,00.00. As security for the payment of the note, the Squires executed
and delivered to Fahey Banking Company a mortgage deed to the premises located
at 3405 Kiwatha Road, Youngstown, Ohio. Complaint ¶8. It is alleged that the
Squires have defaulted in the payment on the note. -2-
{¶3} The Squires filed their answer and admitted that a loan had been
secured on the property, but denied that they were in default.
{¶4} Thereafter, Fahey Banking Company filed a motion for default judgment
and summary judgment. It attached documentation showing that the Squires were in
default on the loan and that it was exercising its option to accelerate the loan.
{¶5} The Squires filed a Civ.R. 56(F) motion for an extension of time to file a
memorandum in opposition to the Fahey Banking Company’s motion for summary
judgment. In conjunction with that motion the Squires filed their first set of discovery
requests. The trial court granted the Squires an extension of time and ordered them
to file their memorandum in opposition within 30 days following Fahey Banking
Company’s response to the discovery requests.
{¶6} In May 2011, Fahey Banking Company filed a notice of service of
responses to discovery and asked the trial court to make a ruling on its motion for
summary judgment. In that motion it indicated that it had hand-delivered the Squires
its responses to discovery on March 30, 2011. Thus, it concluded that the time for
filing a motion in opposition to summary judgment expired on April 30, 2011.
{¶7} An oral hearing on the summary judgment motions occurred at 1:30
p.m. on June 22, 2011. The Squires failed to appear. The trial court granted
summary judgment for Fahey Banking Company and entered a judgment entry and
decree of foreclosure on the Kiwatha Road property. 6/22/11 J.E. (Summary
judgment and decree of foreclosure order). -3-
{¶8} After the hearing had concluded, the Squires faxed a motion requesting
leave to file a response to Fahey Banking Company’s motion for summary judgment
by June 27, 2011. The trial court denied that request. 6/23/11 J.E.
{¶9} The Squires did not appeal the June 22, 2011 ruling. Instead, the
Squires filed a Civ.R. 60(B) motion to vacate that judgment. 7/01/11 Motion. In the
motion, they admitted to knowing about the hearing, but contended that due to their
inadvertence they believed the hearing was a non-oral hearing. They also claimed
that they have a meritorious defense because Fahey Banking Company did not
comply with 12 U.S.C. 1701x(c)(5). Fahey Banking Company opposed the motion to
vacate. 7/11/11 Motion.
{¶10} The trial court denied the motion to vacate. The Squires filed a timely
notice of appeal from that judgment.
ASSIGNMENT OF ERROR
The trial court erred when it granted Appellee’s summary judgment
motion. Despite Appellant failing to timely respond to Appellee’s Motion
for Summary Judgment, Appellee was not entitled to judgment as a
matter of law by reason of failure to comply with the provisions of 12
U.S.C. §1701x(c)(5).
{¶11} As aforementioned, Squire filed a timely notice of appeal from the trial
court’s denial of his Civ.R. 60(B) motion to vacate the grant of Fahey Banking
Company’s motion for summary judgment. Attached to the notice of appeal is the
trial court’s judgment denying the Civ.R. 60(B) motion. However, in the appellate -4-
brief, the only arguments made concern the correctness of the summary judgment
and order of foreclosure ruling; there is no analysis or discussion, even in the
slightest, regarding the Civ.R. 60(B) ruling. Nowhere in Squire’s argument does he
state that the trial court abused its discretion in denying the Civ.R. 60(B) ruling.
Instead, he discusses the standard of review for summary judgment, which is de
novo. He does not list the three requirements which must be shown to entitle a party
to Civ.R. 60(B) relief that were espoused by the Ohio Supreme Court in GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
(1976). Instead, he discusses whether there is a genuine issue of material fact,
which is the Civ.R 56 summary judgment test. Thus, while the denial of the Civ.R.
60(B) motion was timely appealed, the only issues raised to this court concern the
propriety of the summary judgment ruling.
{¶12} However, we lack jurisdiction to review these arguments because a
timely notice of appeal was not filed from the grant of summary judgment and decree
of foreclosure. The grant of summary judgment and decree of foreclosure disposed
of all claims and thus, constituted a final appealable order which Squire could have
appealed from. See PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-
3370, ¶18; Second Nat. Bank of Warren v. Walling, 7th Dist. No. 01CA62, 2002-
Ohio-3852. The record clearly indicates that Squire filed the notice of appeal 105
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[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FAHEY BANKING COMPANY ) CASE NO. 11 MA 178 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CAROLE SQUIRE, et al. ) ) DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CV 3723
JUDGMENT: Affirmed. Summary Judgment Arguments Dismissed.
APPEARANCES: For Plaintiff-Appellee: Atty. Michael N. Schaeffer Atty. Scott N. Schaeffer Atty. Richard G. Murray, II Kemp, Schaeffer & Rowe Co., LPA 88 West Mound Street Columbus, Ohio 43215
For Defendants-Appellants: Percy Squire, Pro se Percy Squire Co., LLC 341 S. Third Street, Suite 101 Columbus, Ohio 43215
JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro
Dated: September 14, 2012 [Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.] VUKOVICH, J.
{¶1} Defendant-appellant Percy Squire appeals the decision of the
Mahoning County Common Pleas Court denying his Civ.R. 60(B) motion to vacate
the grant of summary judgment for plaintiff-appellee Fahey Banking Company.
Although Squire is appealing the trial court’s denial of his Civ.R. 60(B) motion, his
assignment of error and arguments focus solely on the propriety of the summary
judgment and decree of foreclosure order. Squire did not timely appeal that order,
thus the arguments presented are not reviewable. Furthermore, as to the propriety of
the trial court’s ruling on the Civ.R. 60(B) motion, the brief does not contain any
arguments concerning the correctness or lack thereof of the denial of his Civ.R. 60(B)
motion. Therefore, as there are no arguments before us concerning the denial of his
Civ.R. 60(B) motion, we will uphold that determination. Consequently, for those
reasons and the ones discussed below, the trial court’s Civ.R. 60(B) ruling is
affirmed, however, the arguments regarding the trial court’s grant of summary
judgment for Fahey Banking Company are dismissed as untimely.
STATEMENT OF THE CASE
{¶2} On September 27, 2010, Fahey Banking Company filed a complaint in
foreclosure on note and mortgage against Percy and Carole Squire. In the
complaint, Fahey alleged that in August 1995, the Squires executed a promissory
note for $115,00.00. As security for the payment of the note, the Squires executed
and delivered to Fahey Banking Company a mortgage deed to the premises located
at 3405 Kiwatha Road, Youngstown, Ohio. Complaint ¶8. It is alleged that the
Squires have defaulted in the payment on the note. -2-
{¶3} The Squires filed their answer and admitted that a loan had been
secured on the property, but denied that they were in default.
{¶4} Thereafter, Fahey Banking Company filed a motion for default judgment
and summary judgment. It attached documentation showing that the Squires were in
default on the loan and that it was exercising its option to accelerate the loan.
{¶5} The Squires filed a Civ.R. 56(F) motion for an extension of time to file a
memorandum in opposition to the Fahey Banking Company’s motion for summary
judgment. In conjunction with that motion the Squires filed their first set of discovery
requests. The trial court granted the Squires an extension of time and ordered them
to file their memorandum in opposition within 30 days following Fahey Banking
Company’s response to the discovery requests.
{¶6} In May 2011, Fahey Banking Company filed a notice of service of
responses to discovery and asked the trial court to make a ruling on its motion for
summary judgment. In that motion it indicated that it had hand-delivered the Squires
its responses to discovery on March 30, 2011. Thus, it concluded that the time for
filing a motion in opposition to summary judgment expired on April 30, 2011.
{¶7} An oral hearing on the summary judgment motions occurred at 1:30
p.m. on June 22, 2011. The Squires failed to appear. The trial court granted
summary judgment for Fahey Banking Company and entered a judgment entry and
decree of foreclosure on the Kiwatha Road property. 6/22/11 J.E. (Summary
judgment and decree of foreclosure order). -3-
{¶8} After the hearing had concluded, the Squires faxed a motion requesting
leave to file a response to Fahey Banking Company’s motion for summary judgment
by June 27, 2011. The trial court denied that request. 6/23/11 J.E.
{¶9} The Squires did not appeal the June 22, 2011 ruling. Instead, the
Squires filed a Civ.R. 60(B) motion to vacate that judgment. 7/01/11 Motion. In the
motion, they admitted to knowing about the hearing, but contended that due to their
inadvertence they believed the hearing was a non-oral hearing. They also claimed
that they have a meritorious defense because Fahey Banking Company did not
comply with 12 U.S.C. 1701x(c)(5). Fahey Banking Company opposed the motion to
vacate. 7/11/11 Motion.
{¶10} The trial court denied the motion to vacate. The Squires filed a timely
notice of appeal from that judgment.
ASSIGNMENT OF ERROR
The trial court erred when it granted Appellee’s summary judgment
motion. Despite Appellant failing to timely respond to Appellee’s Motion
for Summary Judgment, Appellee was not entitled to judgment as a
matter of law by reason of failure to comply with the provisions of 12
U.S.C. §1701x(c)(5).
{¶11} As aforementioned, Squire filed a timely notice of appeal from the trial
court’s denial of his Civ.R. 60(B) motion to vacate the grant of Fahey Banking
Company’s motion for summary judgment. Attached to the notice of appeal is the
trial court’s judgment denying the Civ.R. 60(B) motion. However, in the appellate -4-
brief, the only arguments made concern the correctness of the summary judgment
and order of foreclosure ruling; there is no analysis or discussion, even in the
slightest, regarding the Civ.R. 60(B) ruling. Nowhere in Squire’s argument does he
state that the trial court abused its discretion in denying the Civ.R. 60(B) ruling.
Instead, he discusses the standard of review for summary judgment, which is de
novo. He does not list the three requirements which must be shown to entitle a party
to Civ.R. 60(B) relief that were espoused by the Ohio Supreme Court in GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
(1976). Instead, he discusses whether there is a genuine issue of material fact,
which is the Civ.R 56 summary judgment test. Thus, while the denial of the Civ.R.
60(B) motion was timely appealed, the only issues raised to this court concern the
propriety of the summary judgment ruling.
{¶12} However, we lack jurisdiction to review these arguments because a
timely notice of appeal was not filed from the grant of summary judgment and decree
of foreclosure. The grant of summary judgment and decree of foreclosure disposed
of all claims and thus, constituted a final appealable order which Squire could have
appealed from. See PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-
3370, ¶18; Second Nat. Bank of Warren v. Walling, 7th Dist. No. 01CA62, 2002-
Ohio-3852. The record clearly indicates that Squire filed the notice of appeal 105
days after the summary judgment and decree of foreclosure order. As such, it was
filed outside the 30-day time limit prescribed by the App.R. 4(A). An appellant's
failure to file a timely notice of appeal renders the court of appeals without jurisdiction -5-
and authority to entertain the appeal. State v. Bell, 8th Dist. No. 87727, 2007–Ohio–
3276, ¶24.
{¶13} Squire cannot use the order denying his motion to vacate as a means
to extend the time for filing an appeal from the grant of summary judgment and
decree of foreclosure order. The filing of a Civ.R. 60(B) motion for relief from
judgment does not extend the time for perfecting an appeal from the original
judgment. Key v. Mitchell, 81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998). Any claims
or arguments that could have been raised in a timely appeal are precluded from
being raised in a subsequent Civ.R. 60(B) motion, because it is the function of the
appellate court to correct legal errors committed by the trial court. Id. See also
Burgess v. Safe Auto, 2d Dist. No. 20941, 2005-Ohio-6829, ¶32 (arguments
regarding the propriety of a trial court's summary judgment motion have no place in a
Civ. R. 60(B) motion).
{¶14} Therefore, since the notice of appeal was not timely as to the summary
judgment and decree of foreclosure order, we are without jurisdiction to consider
issues that are raised in this appeal regarding that order. See State ex rel. Pendell v.
Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988).
Consequently, those arguments are dismissed as untimely.
{¶15} As to the propriety of the trial court’s denial of the Civ.R. 60(B) motion
to vacate, as aforementioned that decision was timely appealed. However, Squire
does not present any arguments to this court as to why this decision was not correct. -6-
It is not this court’s function to create arguments for an appellant. Accordingly, we
affirm the trial court’s decision.
{¶16} In conclusion, the trial court’s Civ.R. 60(B) ruling is affirmed, however,
the arguments regarding the trial court’s grant of summary judgment for Fahey
Banking Company are dismissed since this court lacks jurisdiction to due to the
untimely appeal.
Donofrio, J., concurs.
DeGenaro, J., concurs.