Fifth Third Bank, Natl. Assn. v. Audia

2024 Ohio 2127

• Court: Ohio Court of Appeals
• Decided: June 3, 2024
• Docket: 2024-P-0026
• Status: Published

Opinion

[Cite as Fifth Third Bank, Natl. Assn. v. Audia, 2024-Ohio-2127.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

FIFTH THIRD BANK, CASE NO. 2024-P-0026 NATIONAL ASSOCIATION,

Plaintiff, Civil Appeal from the Court of Common Pleas - vs -

CHALMETTE AUDIA, et al., Trial Court No. 2023 CV 00456

Defendant-Appellee,

(SUMIT DAVRE,

Appellant).

MEMORANDUM OPINION

Decided: June 3, 2024 Judgment: Appeal dismissed

Jeffrey K. Krueger, Krueger and Valente Law, LLC, 11925 Pearl Road, Suite 201, Strongsville, OH 44136 (For Appellant).

Jason A. Whitacre, Flynn Keith & Flynn, LLC, 214 South Water Street, Kent, OH 44240 (For Defendant-Appellee).

JOHN J. EKLUND, J.

{¶1} Sumit Davre (“Davre”) filed an appeal on April 17, 2024 from a judgment of

the Portage County Court of Common Pleas staying execution of the case. Fifth Third

Bank, National Association (“FTB”) filed a complaint against Chalmette Audia (“Audia’)

for failing to make payments on a note and mortgage. The trial court granted a default

judgment, and the property was scheduled for sheriff’s sale and sold to a third-party purchaser, Davre. The trial court entered an order on February 23, 2024, confirming the

sale of the property. Audia filed a motion for a stay of execution of the judgment pending

appeal, which the trial court granted on March 20, 2024.

{¶2} Audia filed a motion to dismiss this appeal for lack of a final appealable

order, and Davre opposed the motion. The appealability of the trial court’s March 20 stay

is now before this court.

{¶3} Section 3(B)(2), Article IV of the Ohio Constitution states that a judgment of

a trial court can be immediately reviewed by an appellate court only if it constitutes a “final

order.” If a trial court’s judgment satisfies any of the categories in R.C. 2505.02(B), it will

be considered a “final order,” which can be immediately appealed and reviewed by a court

of appeals. In re Adoption of M.J.E.S., 11th Dist. Trumbull Nos. 2022-T-0055 and 2022-

T-0056, 2022-Ohio-2336, ¶ 2.

{¶4} R.C. 2505.02(B) provides, in pertinent part:

{¶5} “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:

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

determines the action and prevents a judgment;

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

upon a summary application in an action after judgment; * * *

{¶8} “(4) An order that grants or denies a provisional remedy * * *.”

{¶9} This court has repeatedly held that appealing an entry that stays a

proceeding is not a final order. In re Adoption of M.J.E.S., at ¶ 5; In re: K.S., 11th Dist.

Ashtabula No. 2015-A-0023, 2015-Ohio-1771, ¶ 5; Anderson v. Wojtasik, 11th Dist.

Case No. 2024-P-0026 Geauga No. 2011-G-3039, 2012-Ohio-2119, ¶ 16; see also Alexander v. Chandley, 113

Ohio App.3d 435, 437 (“a stay order is not a final and appealable order”).

{¶10} Specifically, regarding R.C. 2505.02(B)(1) and (2), this court has explained

that an order granting a stay does not affect a substantial right, but simply places the case

on hold. In re Adoption of M.J.E.S., at ¶ 6. The primary function of a final, appealable

order is the termination of a case or controversy. Id. Placing a case “on hold” is not

consistent with that purpose. Id.

{¶11} As to R.C. 2505.02(B)(4), this court has stated that since a stay is not an

ancillary proceeding, it is not a provisional remedy, and since it is not an offshoot of the

main action; it is the main action postponed. Id.; see also Community First Bank & Trust

v. Dafoe, 108 Ohio St.3d 472, 476, 2006-Ohio-1503.

{¶12} Based upon the foregoing analysis, Audia’s motion to dismiss is hereby

granted. This appeal is dismissed due to lack of a final appealable order.

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2024-P-0026