[Cite as First Place Bank v. Ohio Farmers Ins. Co., 2011-Ohio-4077.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
FIRST PLACE BANK JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2011 CA 00009 OHIO FARMERS INSURANCE COMPANY OPINION Intervening Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2009 CV 00745
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Intervening Defendant-Appellant
DAVID A. FREEBURG JEROME W. COOK MCFADDEN & FREEBURG CO., LPA ERIN K. WALSH 1370 Ontario Street, Suite 600 MCDONALD HOPKINS LLC Cleveland, Ohio 44115 600 Superior Avenue East Suite 2100 DAVID J. WOLFE, JR. Cleveland, Ohio 44114-2653 185 East Market Street Warren, Ohio 44481-1102 Stark County, Case No. 2011 CA 00009 2
Wise, J.
{¶1} Appellant Ohio Farmers Insurance Company appeals the decision of the
Court of Common Pleas, Stark County, which issued a confirmation of sale judgment
entry and amended conformation of sale judgment entry in an action by Appellee First
Place Bank to pursue foreclosure on certain lots in a residential real estate development
known as “Danbury Glen Estates” in Hartville, Ohio. Appellant Ohio Farmers Insurance
has throughout the case challenged the priority of Appellee First Place’s mortgages
based on a mechanic’s lien presently held by Appellant. The relevant facts leading to
this appeal are as follows.
{¶2} In May 2004, Northern Valley Contractors, Inc. executed a contract with
Danbury Glen Estates, Inc., under the terms of which Northern Valley agreed to provide
construction-related services on the streets and sanitary sewer system for the
subdivision. On July 29, 2004, John Hershberger, acting as president of Danbury Glen
Estates, Inc., filed with the Stark County Recorder a notice of commencement for
improvements to real property under R.C. 1311.04. At the time, Danbury Glen Estates,
Inc. was the owner of the development real estate described in the affidavit for
mechanic’s lien. On the same day, a mortgage between Danbury Glen Estates, Inc. and
Fifth Third Bank, as mortgagee, was recorded in the Stark County Recorder's Office.
{¶3} Subsequently, on or about March 6, 2006, Danbury Glen Estates, Inc.
conveyed 24 lots to Hersh Construction, Inc. To finance the purchase of the lots, Hersh
Construction obtained a loan from appellee First Place Bank in the amount of
$1,293,840.00. As security for the loan, Hersh Construction executed and delivered to
appellee First Place Bank a mortgage interest in the lots. Such mortgage was recorded Stark County, Case No. 2011 CA 00009 3
in the Stark County Recorder's Office on March 6, 2006. From the proceeds of the note,
appellee First Place Bank paid off the Fifth Third Bank mortgage from Danbury Glen
Estates, Inc.
{¶4} On February 28, 2007, Northern Valley Contractors Inc., which had
continued performing work on the Danbury Glen Subdivision project, filed a mechanic's
lien. The lien was later assigned to appellant Ohio Farmers Insurance Company.
{¶5} On August 15, 2008, Danbury Glen Estates, Inc. filed a complaint against
Northern Valley Contractor's Inc. in a separate case, namely Stark County Common
Pleas Court Case No. 2008 CV 03574, in which Danbury challenged, inter alia, the
validity of the Northern Valley mechanic's lien. A Stipulated Judgment Entry was filed in
that case on May 6, 2009, including the following finding:
{¶6} “6. The Mechanic's Lien, recorded in the name of NVC on February 28,
2007, as Stark County Instrument No. 200702280010773, is declared to be a valid and
subsisting lien upon all of the land described therein (the ‘Mechanic's Lien’). The
effective date of the Mechanic's Lien is July 29, 2004, 2:23:10 P.M., the time and when
the Notice of Commencement was recorded as Stark County Recorder's Instrument No.
200407290054658. Ohio Farmers is hereby declared the sole owner of the Mechanic's
Lien.”
{¶7} On February 23, 2009, in the case sub judice, Appellee First Place Bank
filed a complaint in foreclosure. Appellee therein alleged that it held the first and best
lien on 19 lots of real property located in the Danbury Glen Estates Subdivision.
Appellant Ohio Farmers Insurance Company obtained leave to intervene, and on April
17, 2009 filed an answer. In its affirmative defenses, Appellant Ohio Farmers alleged Stark County, Case No. 2011 CA 00009 4
that its “Mechanic's Lien was timely recorded and served pursuant to Ohio R.C.
[Section] 1311.06 and [Section] 1311.07, and its effective date related back to the date
of the recording of the Notice of Commencement, which was July 29, 2004. Thus, Ohio
Farmer's Mechanic's Lien constitutes the first and best lien on the real property with
priority over all other liens that are the subjects of Plaintiff's Complaint.”
{¶8} Each side thereafter filed motions for summary judgment. Pursuant to a
judgment entry filed on March 5, 2010, the trial court granted appellee's motion for
summary judgment while overruling that filed by appellant. The trial court particularly
held that the mortgage held by appellee was superior to the mechanic's lien held by
appellant. A Judgment Entry and Decree in Foreclosure was filed on March 12, 2010.
{¶9} Appellant thereupon timely appealed to this Court. Its notice of appeal was
filed April 1, 2010. However, appellant did not file a motion to stay execution of the
March 5, 2010 judgment entry or the March 12, 2010 decree of foreclosure.
{¶10} On April 11, 2011, this Court affirmed, concluding that appellee’s
mortgage takes priority over appellant’s mechanic’s lien. See First Place Bank v. Hersh
Construction, et al., Stark App.No. 2010CA00074, 2011-Ohio-1790, ¶ 38, ¶ 43.
{¶11} While the appeal was pending, however, several developments occurred
in the trial court. On July 19, 2010, the trial court issued an order of sale to the Stark
County Sheriff. Appellant did not file a motion to stay execution of this order of sale.
{¶12} On August 30, 2010, appellee filed a notice of sheriff’s sale, setting the
sale for September 27, 2010. This notice was served on all parties. Appellant again did
not file a motion to stay the sheriff’s sale. On September 27, 2010, the Sheriff filed a
return of sale stating that the property had been sold to appellee for $600,000.00. Stark County, Case No. 2011 CA 00009 5
{¶13} On December 16, 2010, the trial court issued a confirmation of sale order.
Appellant filed a motion to stay distribution of proceeds on January 3, 2011. The trial
court denied same on January 5, 2011. On January 6, 2011, the trial court issued an
amended confirmation of sale order. Appellant filed a motion to stay distribution on
January 11, 2011. The trial court denied same on January 18, 2011.
{¶14} On January 11, 2011, (while the prior appeal was still pending), Appellant
Ohio Farmers filed a notice of appeal. It amended its notice of appeal on January 14,
2011 to include the original confirmation order of December 16, 2010.
{¶15} Appellant herein raises the following sole Assignment of Error:
{¶16} “I. THE TRIAL COURT ERRED WHEN IT DID NOT TIMELY NOTIFY
APPELLANT OF THE FINAL APPEALABLE ORDERS PURSUANT TO OHIO RULE
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[Cite as First Place Bank v. Ohio Farmers Ins. Co., 2011-Ohio-4077.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
FIRST PLACE BANK JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2011 CA 00009 OHIO FARMERS INSURANCE COMPANY OPINION Intervening Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2009 CV 00745
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Intervening Defendant-Appellant
DAVID A. FREEBURG JEROME W. COOK MCFADDEN & FREEBURG CO., LPA ERIN K. WALSH 1370 Ontario Street, Suite 600 MCDONALD HOPKINS LLC Cleveland, Ohio 44115 600 Superior Avenue East Suite 2100 DAVID J. WOLFE, JR. Cleveland, Ohio 44114-2653 185 East Market Street Warren, Ohio 44481-1102 Stark County, Case No. 2011 CA 00009 2
Wise, J.
{¶1} Appellant Ohio Farmers Insurance Company appeals the decision of the
Court of Common Pleas, Stark County, which issued a confirmation of sale judgment
entry and amended conformation of sale judgment entry in an action by Appellee First
Place Bank to pursue foreclosure on certain lots in a residential real estate development
known as “Danbury Glen Estates” in Hartville, Ohio. Appellant Ohio Farmers Insurance
has throughout the case challenged the priority of Appellee First Place’s mortgages
based on a mechanic’s lien presently held by Appellant. The relevant facts leading to
this appeal are as follows.
{¶2} In May 2004, Northern Valley Contractors, Inc. executed a contract with
Danbury Glen Estates, Inc., under the terms of which Northern Valley agreed to provide
construction-related services on the streets and sanitary sewer system for the
subdivision. On July 29, 2004, John Hershberger, acting as president of Danbury Glen
Estates, Inc., filed with the Stark County Recorder a notice of commencement for
improvements to real property under R.C. 1311.04. At the time, Danbury Glen Estates,
Inc. was the owner of the development real estate described in the affidavit for
mechanic’s lien. On the same day, a mortgage between Danbury Glen Estates, Inc. and
Fifth Third Bank, as mortgagee, was recorded in the Stark County Recorder's Office.
{¶3} Subsequently, on or about March 6, 2006, Danbury Glen Estates, Inc.
conveyed 24 lots to Hersh Construction, Inc. To finance the purchase of the lots, Hersh
Construction obtained a loan from appellee First Place Bank in the amount of
$1,293,840.00. As security for the loan, Hersh Construction executed and delivered to
appellee First Place Bank a mortgage interest in the lots. Such mortgage was recorded Stark County, Case No. 2011 CA 00009 3
in the Stark County Recorder's Office on March 6, 2006. From the proceeds of the note,
appellee First Place Bank paid off the Fifth Third Bank mortgage from Danbury Glen
Estates, Inc.
{¶4} On February 28, 2007, Northern Valley Contractors Inc., which had
continued performing work on the Danbury Glen Subdivision project, filed a mechanic's
lien. The lien was later assigned to appellant Ohio Farmers Insurance Company.
{¶5} On August 15, 2008, Danbury Glen Estates, Inc. filed a complaint against
Northern Valley Contractor's Inc. in a separate case, namely Stark County Common
Pleas Court Case No. 2008 CV 03574, in which Danbury challenged, inter alia, the
validity of the Northern Valley mechanic's lien. A Stipulated Judgment Entry was filed in
that case on May 6, 2009, including the following finding:
{¶6} “6. The Mechanic's Lien, recorded in the name of NVC on February 28,
2007, as Stark County Instrument No. 200702280010773, is declared to be a valid and
subsisting lien upon all of the land described therein (the ‘Mechanic's Lien’). The
effective date of the Mechanic's Lien is July 29, 2004, 2:23:10 P.M., the time and when
the Notice of Commencement was recorded as Stark County Recorder's Instrument No.
200407290054658. Ohio Farmers is hereby declared the sole owner of the Mechanic's
Lien.”
{¶7} On February 23, 2009, in the case sub judice, Appellee First Place Bank
filed a complaint in foreclosure. Appellee therein alleged that it held the first and best
lien on 19 lots of real property located in the Danbury Glen Estates Subdivision.
Appellant Ohio Farmers Insurance Company obtained leave to intervene, and on April
17, 2009 filed an answer. In its affirmative defenses, Appellant Ohio Farmers alleged Stark County, Case No. 2011 CA 00009 4
that its “Mechanic's Lien was timely recorded and served pursuant to Ohio R.C.
[Section] 1311.06 and [Section] 1311.07, and its effective date related back to the date
of the recording of the Notice of Commencement, which was July 29, 2004. Thus, Ohio
Farmer's Mechanic's Lien constitutes the first and best lien on the real property with
priority over all other liens that are the subjects of Plaintiff's Complaint.”
{¶8} Each side thereafter filed motions for summary judgment. Pursuant to a
judgment entry filed on March 5, 2010, the trial court granted appellee's motion for
summary judgment while overruling that filed by appellant. The trial court particularly
held that the mortgage held by appellee was superior to the mechanic's lien held by
appellant. A Judgment Entry and Decree in Foreclosure was filed on March 12, 2010.
{¶9} Appellant thereupon timely appealed to this Court. Its notice of appeal was
filed April 1, 2010. However, appellant did not file a motion to stay execution of the
March 5, 2010 judgment entry or the March 12, 2010 decree of foreclosure.
{¶10} On April 11, 2011, this Court affirmed, concluding that appellee’s
mortgage takes priority over appellant’s mechanic’s lien. See First Place Bank v. Hersh
Construction, et al., Stark App.No. 2010CA00074, 2011-Ohio-1790, ¶ 38, ¶ 43.
{¶11} While the appeal was pending, however, several developments occurred
in the trial court. On July 19, 2010, the trial court issued an order of sale to the Stark
County Sheriff. Appellant did not file a motion to stay execution of this order of sale.
{¶12} On August 30, 2010, appellee filed a notice of sheriff’s sale, setting the
sale for September 27, 2010. This notice was served on all parties. Appellant again did
not file a motion to stay the sheriff’s sale. On September 27, 2010, the Sheriff filed a
return of sale stating that the property had been sold to appellee for $600,000.00. Stark County, Case No. 2011 CA 00009 5
{¶13} On December 16, 2010, the trial court issued a confirmation of sale order.
Appellant filed a motion to stay distribution of proceeds on January 3, 2011. The trial
court denied same on January 5, 2011. On January 6, 2011, the trial court issued an
amended confirmation of sale order. Appellant filed a motion to stay distribution on
January 11, 2011. The trial court denied same on January 18, 2011.
{¶14} On January 11, 2011, (while the prior appeal was still pending), Appellant
Ohio Farmers filed a notice of appeal. It amended its notice of appeal on January 14,
2011 to include the original confirmation order of December 16, 2010.
{¶15} Appellant herein raises the following sole Assignment of Error:
{¶16} “I. THE TRIAL COURT ERRED WHEN IT DID NOT TIMELY NOTIFY
APPELLANT OF THE FINAL APPEALABLE ORDERS PURSUANT TO OHIO RULE
OF CIVIL PROCEDURE 58(B) THUS DEPRIVING APPELLANT OF FUNDAMENTAL
DUE PROCESS RIGHTS.”
I.
{¶17} In its sole Assignment of Error, Appellant Ohio Farmers Insurance
contends the trial court erred in failing to timely serve appellant with the two final
confirmation orders under Civ.R. 58. We disagree.
{¶18} Ohio Constitution Art. IV, § 3(B)(2), reads in pertinent part: “Courts of
appeals shall have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the court
of appeals within the district * * *.” Appellant’s fundamental argument in this matter is
unusual in that it claims an error was committed by the clerk of courts, rather than by
the trial court itself within the confirmation entries under appeal. In other words, Stark County, Case No. 2011 CA 00009 6
appellant’s challenge to the clerk of court’s purported failure to serve the two
confirmation entries upon appellant raises no error within the four corners of each entry,
the purpose of which is to determine that the Sheriff properly carried out the prior
execution of sale order. It is undisputed that each confirmation entry in this instance
duly contains Civ.R. 54(B) language and a directive from the trial court to the clerk of
courts to serve the entry on all appearing parties. Furthermore, “[d]ue process does not
require the court records to be the only source of notice.” McCarthy v. Lippitt, Monroe
App.No. 04-MO-1, 2004-Ohio-5367, ¶ 28. Instead, due process requires notice in
general. Id. Appellant herein concedes that it monitored the docket upon its own volition
and thereby was aware that the confirmation of sale had occurred. See Appellant’s Brief
at 3.
{¶19} Accordingly, we find no cognizable error by the trial court, prejudicial to
appellant, under the facts and circumstances of this case. The sole Assignment of Error
is overruled.
{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, J. Gwin, P. J., and Delaney, J., concur.
___________________________________
JUDGES JWW/d 0718 Stark County, Case No. 2011 CA 00009 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
FIRST PLACE BANK : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : OHIO FARMERS INSURANCE : COMPANY : : Intervening Defendant-Appellant : Case No. 2011 CA 00009
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES