Provident Funding Assocs., L.P. v. Turner

2014 Ohio 2190

• Court: Ohio Court of Appeals
• Decided: May 22, 2014
• Docket: 100493
• Status: Published

Opinion

[Cite as Provident Funding Assocs., L.P. v. Turner, 2014-Ohio-2190.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100493

PROVIDENT FUNDING ASSOCIATES, L.P. PLAINTIFF-APPELLEE

vs.

TAMARA K. TURNER, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-10-742147

BEFORE: Keough, J., S. Gallagher, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: May 22, 2014 ATTORNEY FOR APPELLANTS

James R. Douglass James R. Douglas Co., L.P.A. 4600 Prospect Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Jennifer B. Madine Lorelei C. Bolohan Rick D. Deblasis Pamela A. Fehring Cynthia Fischer Lerner, Sampson & Rothfuss P.O. Box 5480 Cincinnati, Ohio 45201 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendants-appellants, Phillip and Tamara Turner (“Turner”), appeal from

the trial court’s decision confirming the sheriff sale. For the reasons that follow, the

appeal is dismissed as moot.

{¶2} In June 2011, plaintiff-appellee, Provident Funding Associates, L.P.

(“Provident”), filed an amended complaint for foreclosure against Turner seeking

judgment on a promissory note and foreclosure on a mortgage. In 2013, the trial court

entered a judgment in favor of appellee. The property was subsequently sold by Sheriff’s

Sale, and the decree of confirmation of sale was issued in September 2013.

{¶3} Turner now appeals the confirmation and raises as the sole assignment of

error that the trial court erred when it issued an order of sale absent a final appealable

decree in foreclosure.

{¶4} Turner contends in their brief that the order of stay was denied; however,

after a thorough review of the record, we find no evidence of any stay requested by

Turner. This issue is dispositive of this appeal.

{¶5} As this court recently reiterated,

Appellant never moved to stay the confirmation. The property has been

sold and the deed has been recorded. The order of confirmation has been

carried out to its fullest extent. If this court reversed the order of

confirmation, there is no relief that can be afforded appellants. An appeal

is moot if it is impossible for the appellate court to grant any effectual relief. Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910).

Wells Fargo Bank N.A. v. Cuevas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498, ¶ 22,

quoting Equibanks v. Rivera, 8th Dist. Cuyahoga No. 72224, 1998 Ohio App. LEXIS

185, *3 (Jan. 22, 1998); see also Beneficial Ohio, Inc. v. LaQuatra, 8th Dist. Cuyahoga

No. 99860, 2014-Ohio-605.

{¶6} Much like in Cuevas and LaQuatra, the property in this case has been sold,

the order of confirmation has been carried out, and there is no relief in this action that can

be afforded Turner. Therefore, the appeal is moot and is dismissed.

{¶7} Even if this court considered the merits of the appeal, the order of sale was a

proper final appealable order. See Bank of New York Mellon v. Adams, 8th Dist.

Cuyahoga No. 99399, 2013-Ohio-5572, citing LaSalle Bank, N.A. v. Smith, 7th Dist.

Mahoning No. 11 CA 85, 2012-Ohio-4040 (undetermined damages, such as property

protection, in the decree of foreclosure can be determined at the time of the sheriff’s sale,

from which the homeowner can file a new appeal).1

{¶8} Dismissed.

It is ordered that appellee recover from appellants costs herein taxed.

This issue is currently pending in the Ohio Supreme Court on the certified 1

question of “whether a judgment decree in foreclosure is a final appealable order if it includes as part of the recoverable damages amounts advanced by the mortgagee for inspections, appraisals, property protection, and maintenance, but does not include specific itemization of those amounts in the judgment.” See CitiMortgage, Inc. v. Roznowski, 134 Ohio St.3d 1447, 2013-Ohio-347, 982 N.E.2d 726. The certified question arose from a conflict between districts — the Fifth District’s holding in Citimortgage, Inc. v. Roznowski, 5th Dist. Stark No. 2012-CA-93, 2012-Ohio-4901, and the Seventh District’s resolution in LaSalle. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR