Sutton v. Sutton

2017 Ohio 5559

• Court: Ohio Court of Appeals
• Decided: June 28, 2017
• Docket: 28393
• Status: Published

Opinion

[Cite as Sutton v. Sutton, 2017-Ohio-5559.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

RODD SUTTON C.A. No. 28393

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE VICTORIA SUTTON, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2006-08-4953

and

ENTITLE, LLC

Appellant

DECISION AND JOURNAL ENTRY

Dated: June 28, 2017

CARR, Judge.

{¶1} Appellant, EnTitle L.C.C., appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms

I.

{¶2} This case has a lengthy procedural history that dates back to 2006 when Rodd

Sutton sued his ex-wife, Victoria Douglas (f.k.a. Victoria Sutton). Subsequent to the filing of the

complaint, Ms. Douglas conveyed a parcel of real estate to her mother, Rosemary Douglas. Mr.

Sutton amended his complaint to add a claim for fraudulent conveyance against Victoria and

Rosemary Douglas. After a jury trial, Mr. Sutton was awarded significant monetary judgments

against both his ex-wife and her mother. In 2012, Mr. Sutton filed a motion to amend the 2010 2

judgment to order that a lien be placed on the property located at 3093 Ghent Ct., Akron, Ohio.

Mr. Sutton asserted that an amendment to the judgment was necessary to allow him to pursue

foreclosure against the property under the doctrine of lis pendens in order to execute the

judgment. The trial court subsequently filed an order stating that it could not rule on the motion

because Rosemary Douglas filed a petition for bankruptcy in the U.S. Bankruptcy Court for the

Middle District of Florida. Having determined that it would be inappropriate to rule on the

motion to amend the judgment, the trial court stated that it would hold the motion in abeyance

until the bankruptcy stay was lifted.

{¶3} On August 29, 2016, EnTitle L.C.C., filed a motion to intervene in the action

pursuant to Civ.R. 24(A). Therein, EnTitle argued that it was the current title holder on the

Ghent Ct. property at issue. Though EnTitle attached a brief in support of its claim, as well as

various exhibits, it did not file a pleading along with its motion. Mr. Sutton promptly filed a

memorandum in opposition to the motion. The trial court issued an order denying the motion to

intervene on September 12, 2016.

{¶4} On appeal, EnTitle raises one assignment of error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT ENTITLE, LLC’S MOTION TO INTERVENE.

{¶5} In its sole assignment of error, EnTitle argues that the trial court abused its

discretion in denying the motion to intervene. This Court disagrees.

{¶6} The decision to grant or deny a motion to intervene is within the sound discretion

of the trial court and will not be reversed on appeal absent an abuse of discretion. Kayatin v.

Petro, 9th Dist. Lorain No. 06CA008934, 2007-Ohio-334, ¶ 9. But see, In re M.N., 9th Dist. 3

Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 5 (maintaining that the denial of a motion to

intervene as of right should be reviewed de novo). The result in this matter is the same under

either standard of review.

{¶7} “Civ.R. 24 provides for both intervention as of right and permissive intervention.

Civ.R. 24(A), (B). Irrespective of the basis upon which a party seeks to intervene, the party must

comply with the procedural requirements set forth in Civ.R. 24(C)[.]” Univ. of Akron v. Nemer,

9th Dist. Summit No. 24494, 2009-Ohio-2681, ¶ 6.

{¶8} Civ.R. 24(C) states:

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Civ.R. 5. The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.

Civ.R. 7(A) defines a pleading as “a complaint and an answer” and further specifies that no other

pleading will be permitted. It is well settled that a party’s failure to file a pleading in compliance

with Civ.R. 24(C) is fatal to a motion to intervene. Nemer at ¶ 6, citing State ex rel. Polo v.

Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 144 (1995); Summit Cty. Fiscal Officer v.

Estate of Barnett, 9th Summit Dist. No. 24456, 2009-Ohio-2456, ¶ 14; State ex rel. Boston Hills

Property Invests., LLC v. Boston Hts., 9th Dist. Summit No. 24205, 2008-Ohio-5329, ¶ 6. See

also Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, ¶ 11.

{¶9} The trial court properly denied the motion to intervene in this case. As noted

above, EnTitle’s motion contained a memorandum in support as well as numerous exhibits.

Significantly, however, the motion to intervene was not accompanied by a pleading as required

by Civ.R. 24(C). A party seeking intervention cannot prevail on a motion to intervene when the

motion is not accompanied by a pleading. Nemer at ¶ 7 (holding that “the trial court should have 4

denied [the] motion based solely on the omission of a pleading[]). Under these circumstances,

the trial court properly denied the motion to intervene.

{¶10} EnTitle’s assignment of error is overruled

III.

{¶11} EnTitle’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT 5

HENSAL, P. J. TEODOSIO, J. CONCUR.

APPEARANCES:

BRADLEY P. TOMAN, Attorney at Law, for Appellant.

TIMOTHY H. HANNA, Attorney at Law, for Appellee.

LARRY D. SHENISE, Attorney at Law, for Appellees.

JAMES M. CAMPBELL and JULIET K. FALCONE, Attorneys at Law, for Appellees.