Nimble Corp. v. Wilson

2012 Ohio 3625

Opinion

[Cite as Nimble Corp. v. Wilson, 2012-Ohio-3625.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

NIMBLE CORP. JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 2011CA00255 JONATHAN L. WILSON, ET AL.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CV04202

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: August 6, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

JASON A. WHITACRE DAVID A. VAN GAASBEEK LAURA C. INFANTE 1303 West Maple Street The Law Offices of John D. Clunk Suite 104 4500 Courthouse Blvd., Suite 400 North Canton, Ohio 44720 Stow, Ohio 44224 Stark County, Case No. 2011CA00255 2

Hoffman, J.

{¶1} Defendants-appellants Jonathan L. Wilson and Kim Wilson, aka Kim J.

Wilson, appeal the October 14, 2011 Judgment Entry Granting Plaintiff’s Motion for

Summary Judgment entered by the Stark County Court of Common Pleas. Plaintiff-

appellee is Nimble Corp.

STATEMENT OF THE CASE1

{¶2} Appellee filed a foreclosure action against Appellants based upon an

alleged default in payment of a promissory note executed by Appellants and secured by

a mortgage on their real property. Appellee’s complaint further requested reformation of

the legal description contained in the mortgage.

{¶3} Appellee filed a motion for summary judgment on July 5, 2011. Appellants

filed their response on July 19, 2011. Appellants filed their own motion for summary

judgment on July 7, 2011, to which Appellee responded on July 22, 2011.

{¶4} On October 14, 2011 the trial court granted Appellee’s motion for

summary judgment and denied Appellants’ motion for summary judgment.

{¶5} It is from the October 14, 2011 judgment entry Appellants prosecute this

appeal assigning as error:

{¶6} “I. THE TRIAL COURT ERRED BY SUSTAINING THE APPELLEE’S

MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLEE CANNOT OBTAIN A

FORECLOSURE ON A MORTGAGE THAT IS DEFECTIVE AND CANNOT INCLUDE A

CAUSE OF ACTION IN ITS ACTION OF FORECLOSURE SEEKING REFORMATION

OF THE INSTRUMENT THAT IS THE SUBJECT OF THE FORECLOSURE.”

1 A rendition of the facts is unnecessary for our disposition of this appeal. Stark County, Case No. 2011CA00255 3

{¶7} Upon review of the trial court’s October 14, 2011 judgment entry, we find

this Court lacks jurisdiction to determine this appeal under R.C. 2505.02.

{¶8} In its entry granting Appellee summary judgment, the trial court ordered

“Plaintiff shall provide an entry to this Court in accord with its decision and give

notification thereof to the defendants.” October 14, 2011 judgment entry at p.2.

{¶9} Appellants filed their notice of appeal on November 14, 2011. Appellee

has yet to provide the trial court with the entry ordered by it on October 14, 2011. As

such we find the trial court has yet to render a final appealable order on Appellee’s

complaint for foreclosure and reformation.

{¶10} Appellants’ appeal is dismissed for lack of jurisdiction.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Stark County, Case No. 2011CA00255 4

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

NIMBLE CORP. : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JONATHAN L. WILSON, ET AL. : : Defendants-Appellants : Case No. 2011CA00255

For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs assessed to Appellants.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER