[Cite as Weese v. Dalton, 2023-Ohio-3905.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
WILLIAM WEESE : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Andrew J. King, J. -vs- : : CHARLES W. DALTON III, ET AL. : Case No. 23CA000003 : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21CV000242
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: October 26, 2023
APPEARANCES:
For Plaintiff-Appellant For Appellee Christina Dalton
BRIAN W. BENBOW JESSE W. MOSES 265 Sunrise Center Drive 255 Second Street, NE, Suite D Zanesville, OH 43701 New Philadelphia, OH 44663
For Guernsey County Treasurer For Larry Lang
LINDEY ANGLER MATTHEW C. CARLISLE 409 Wheeling Avenue 424 Second Street Cambridge, OH 43725 P.O. Box 739 Marietta, OH 45750 Guernsey County, Case No. 23CA000003 2
King, J.
{¶ 1} Plaintiff-Appellant, William Weese, appeals the January 5, 2023 entry of the
Court of Common Pleas of Guernsey County, Ohio, granting the summary judgment
motion filed by Defendant-Appellee, Christina Dalton ("Christina"). We reverse the trial
court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2017, Weese and Charles W. Dalton, III ("Dalton") entered into a contract
for Dalton to perform home remodeling work on Weese's residence. Dalton failed to
uphold his end of the bargain.
{¶ 3} On November 6, 2017, Weese filed a complaint against Dalton alleging
several claims including fraud (Case No. 2017CI0391); the complaint was filed in the
Coshocton County Court of Common Pleas. Dalton failed to answer. By judgment entry
filed March 20, 2018, the trial court granted default judgment to Weese and awarded him
$87,994.66; a finding of fraud was not affirmatively made by the trial court. On April 27,
2018, Weese filed a certificate of judgment in Coshocton County (Case No. 2018JLD046).
{¶ 4} On January 8, 2018, Larry Lang received a judgment against Dalton in the
amount of $22,500.00 from the Court of Common Pleas of Washington County (Case No.
16OT000287). On February 7, 2018, Lang filed a certificate of judgment in Guernsey
County (Case No. 18JL015496).
{¶ 5} On May 25, 2018, Lang filed a complaint in the Court of Common Pleas of
Guernsey County seeking foreclosure on a property Dalton owned, allegedly as tenants
in common with his wife, Christina (Case No. 18CV000278).1 Named defendants were
1The Lang case has been made a part of the record for this appeal. See Judgment Entry filed January 30, 2023. A General Warranty Deed conveyed the property to Charles W. Guernsey County, Case No. 23CA000003 3
Dalton and the Guernsey County Treasurer; Weese was not named as a party to the
action. Dalton failed to answer. Instead he informed the trial court he had filed for
bankruptcy and the case was stayed; the bankruptcy was never filed and Lang's case
proceeded.
{¶ 6} On October 9, 2018, Weese filed his certificate of judgment in Guernsey
County (Case No. 18JL015656).
{¶ 7} On February 14, 2019, the trial court granted Lang's motion for summary
judgment in Case No. 18CV000278 and ordered foreclosure and sale of the property. A
sheriff's sale held on August 16, 2019, did not attract any bidders; there was no sale. An
amended final judicial report was filed on September 10, 2019; Weese's certificate of
judgment was not listed. On September 11, 2019, Dalton filed a notice asserting a
homestead exemption. By magistrate's order filed September 12, 2019, the sheriff's sale
scheduled for the next day was cancelled. By entry filed October 17, 2019, the trial court
granted Dalton's homestead exemption.
{¶ 8} On January 13, 2020, Dalton passed away.
{¶ 9} On May 26, 2021, Weese filed a motion to intervene in the Lang case and
a motion for relief from judgment. Weese sought to enforce his judgment lien out of
Coshocton County and filed in Guernsey County. On July 21, 2021, Weese filed a motion
to substitute the estate fiduciary for Dalton as a new party-defendant. Weese could not
locate any estate matter filed for Dalton. By entry filed July 23, 2021, the trial court denied
Weese's motion to intervene, finding the "issues that are raised as to whether or not
Christina Dalton may or may not be entitled to pursue a homestead exemption are not
Dalton, III and Christina Moore on June 23, 2008. The parties married in September 2012. Guernsey County, Case No. 23CA000003 4
ripe for decision at this time." The trial court also denied Weese's motion to substitute the
estate fiduciary for Dalton. Weese did not appeal the decision denying his motion to
intervene.
{¶ 10} On August 5, 2021, Weese filed a complaint in the Court of Common Pleas
of Guernsey County seeking to foreclose on his judgment lien (Case No. 21CV000242).
Named as defendants in part were Dalton, the executor of Dalton's estate, Christina, and
Lang.
{¶ 11} On June 28, 2022, Christina filed a motion for summary judgment, arguing
lis pendens and res judicata stemming from the Lang case. On October 3, 2022, Weese
filed a memorandum contra and a cross-motion for summary judgment, arguing he was
not a party in the Lang case, the two doctrines did not apply, and Christina lacked standing
to invoke the homestead exemption. By entry filed January 5, 2023, the trial court granted
summary judgment to Christina and denied Weese's motion, finding lis pendens applied;
the trial court dismissed the case.
{¶ 12} Weese filed an appeal with the following assignment of error:
I
{¶ 13} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING
APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND BY GRANTING
APPELLEE'S MOTION FOR SUMMARY JUDGMENT."
{¶ 14} In his sole assignment of error, Weese claims in part that the trial court erred
in granting summary judgment to Christina. We agree. Guernsey County, Case No. 23CA000003 5
{¶ 15} Summary judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Regarding summary judgment, the Supreme Court stated the following in State
ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made. State ex. rel.
Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d
466, 472, 364 N.E.2d 267, 274.
{¶ 16} As an appellate court reviewing summary judgment motions, we must stand
in place of the trial court and review summary judgments on the same standard and
evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506
N.E.2d 212 (1987).
{¶ 17} This matter comes to us on a complaint of foreclosure filed nearly two years
after final judgment in the Lang foreclosure action addressing the same property, but it
involved different parties and Weese was not a party to that final judgment. Moreover,
Dalton has since died; whether or not an estate has been opened and the status of the
property are unknown. In addition, Christina's interest in the property was not expressly Guernsey County, Case No. 23CA000003 6
decided in that case. We conclude the trial court erred in finding the doctrine of lis
pendens had a preclusive effect and remand this matter for the trial court to determine
the various rights and priorities of the parties consistent with this opinion.
{¶ 18} In order to properly resolve the matter before us, it is necessary to review
the Lang case. In January 2018, Lang received a judgment against Dalton in the amount
of $22,500.00 from the Court of Common Pleas of Washington County; Lang filed his
certificate of judgment in Guernsey County in February 2018. In May 2018, Lang filed a
complaint in the Court of Common Pleas of Guernsey County to foreclosure on a property
Dalton owned in the county. Lang asked the court to marshal the liens, foreclose on
them, and distribute the proceeds from the sale in order of priority. At the time, Weese
was an unsecured judgment creditor by benefit of the judgment he received in Coshocton
County. But, unlike other lienholders, Weese was not joined in the Lang case because
he had yet to file a certificate of judgment against the property. Although, for reasons not
in the record, other creditors became aware of the case and filed motions to intervene.
{¶ 19} Dalton initially did not formally answer; instead, he filed a handwritten letter
stating he had filed a Chapter 13 bankruptcy. But as it turned out, Dalton had not actually
filed bankruptcy. Lang filed a notice of non-filing of bankruptcy and the trial court
proceeded with the matter. Although Weese did not seek to join the case, he
domesticated his certificate of judgment in Guernsey County on October 9, 2018.
Because this action was after the filing of the complaint, his lien did not appear on the
preliminary judicial report required by R.C. 2329.191.
{¶ 20} On October 12, 2018, Lang filed a motion for summary judgment. He
argued he had a valid lien under R.C. 2329.02 and was entitled to an order of sale. On
the same day the trial court filed an entry granting summary judgment to Lang, another Guernsey County, Case No. 23CA000003 7
creditor filed a motion to intervene. The trial court then vacated the summary judgment
decision and took the motion to intervene under consideration.
{¶ 21} On December 10, 2018, the trial court granted the motion to intervene and
gave that creditor time to respond to the motion for summary judgment. Ultimately on
February 14, 2019, the trial court granted the summary judgment and ordered foreclosure.
In that entry, the trial court ordered the property to be sold, and set forth the priority of
proceeds to be paid to creditors as follows: first, to pay the court costs; second, to pay
sums owed to the Treasurer; third, payment to Lang for amounts he pleaded and
associated court costs; and last, "the balance, if any, shall be held subject to further Order
of this Court." The trial court also included Civ.R. 54(B) language stating there was no
just cause for delay.
{¶ 22} On July 15, 2019, the trial court ordered the sale to take place on August
16, 2019. On the day of the sale, the sheriff gave notice to the trial court that there were
no bidders. Although Christina had not been included as a party, she sent a letter to the
trial court on or about August 26, 2019, asking for time "to find out what exactly [is] going
on with my home." She was unaware her home "was in danger." Then on September
11, 2019, counsel for Dalton appeared, asserting a homestead exemption and asking for
an immediate stay.
{¶ 23} Lang responded, arguing the failure to raise the homestead exemption
before the judicial sale was preclusive and Dalton did not attest that the property was his
domicile. Although the parties were separated, and Dalton never properly answered, the
trial court found the homestead exemption applied and was timely raised. No party
appealed and nothing further happened until Weese filed a suggestion of death of Dalton,
a motion to intervene, and a motion for relief from judgment on May 26, 2021. Guernsey County, Case No. 23CA000003 8
{¶ 24} Christina responded, arguing if Weese had been a party at the time of
judgment, he would have been in the same position as the other creditors i.e., the
homestead exemption would have precluded foreclosure of his interest too. Christina
also argued she is now entitled to raise the homestead exemption; so, there would be no
change in the status quo. Finally, she argued granting intervention after final judgment
was unusual and should not be allowed. The trial court denied the motion to intervene
and stated, "[t]he issues that are raised as to whether or not Christina Dalton may or may
not be entitled to pursue a homestead exemption are not ripe for decision at this time."
Weese did not appeal the denial of his motion to intervene; he instead filed a separate
suit seeking foreclosure of the property.
{¶ 25} On August 5, 2021, Weese filed a complaint seeking foreclosure of the
same property. This complaint named Christina, Dalton, and the Executor of the Estate
of Charles W. Dalton, III.2 Christina argued the doctrines of res judicata and lis pendens
barred Weese's complaint and moved for summary judgment. The trial court agreed,
finding lis pendens barred the complaint and dismissed the action. The matter is now
before us.
{¶ 26} Because the purpose of doctrines such as claim preclusion bar certain
claims in later litigation, it is useful to first consider the claims that Christina argues are
barred. After Weese received a default judgment against Dalton in Coshocton County,
he obtained a certificate of judgment. He then filed the certificate of judgment in Guernsey
County. Weese did not then seek to execute against the property, nor was his lien
marshalled in the Lang action. In fact, he took no action to execute until after Dalton died.
2An executor was not named, and service to executor was made to Christina's address.
There is no indication in the record that an estate has been opened. Guernsey County, Case No. 23CA000003 9
Then Weese filed his motion to intervene in the Lang case. After his motion was denied,
Weese filed this case, making similar arguments as in his motion.
{¶ 27} Weese's suit seeks foreclosure on the same property as the Lang case.
Weese's complaint also seeks to marshal the various liens and to execute the decree of
foreclosure. These actions were also contemplated in the Lang case. Indeed, the
property was ordered to be sold and was offered for sale by the Guernsey County Sheriff.
But the issues are not completely identical. Christina now seeks to thwart an execution
against the property she no longer shares an ownership interest in with Dalton. Her
argument is that the Lang judgments, particularly the one finding that Dalton's interest in
the property (up to $125,000.00) was exempt from foreclosure under R.C.
2329.66(A)(1)(b) (the Homestead Exemption), effectively bar Weese's complaint. Weese
contends his claim is not barred. He also appears to contend that because of Dalton's
death, the homestead exemption must be evaluated under the interest of the surviving
owner, Christina.
{¶ 28} We address first the issue of foreclosure, which Weese's present action
seeks. Christina argues the trial court's denial of Weese's motion to intervene and motion
for relief from judgment in the Lang case requires dismissal of this case under the doctrine
of claim preclusion (also known as res judicata or estoppel by judgment). The Supreme
Court of Ohio has defined this doctrine as preventing "subsequent actions, by the same
parties or their privies, based upon any claim arising out of a transaction that was the
subject matter of a previous action." O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d
59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6. Later claims that were not raised but could
have been are also precluded. Id. The Supreme Court has acknowledged the concept
of privity can be "amorphous." Id. at ¶ 9. Typically, claim preclusion only applies Guernsey County, Case No. 23CA000003 10
defensively i.e., a defendant in a later suit can use the doctrine to bar the action. Id. at ¶
14.
{¶ 29} We begin with the fact that Weese was not a party to the Lang case prior to
final judgment being entered. Christina makes much out of the fact that years after final
judgment, Weese filed a motion to intervene and a motion for relief from judgment. But
the Supreme Court has held that motions to intervene generally should not be granted
after final judgment. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio
St.3d 501, 503-504, 696 N.E.2d 1058 (1998) ("Intervention after final judgment has been
entered is unusual and ordinarily will not be granted"). It would be incongruent to
encourage trial courts to deny these motions then broadly apply claim and issue
preclusion to a movant's subsequent and related filed action. To that end, the Supreme
Court has held: "When a party has sought and been denied intervention, collateral
estoppel will not prohibit future litigation of similar issues." Gehm v. Timberline Post &
Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, paragraph two of the
syllabus.
{¶ 30} Further, the Supreme Court's holding in Gehm suggests the denial of a
motion to intervene is often not a final appealable order. Id. at ¶ 37. Thus, applying the
doctrine here would require us to engage in a hypothetical analysis as to whether that
non-existent appeal would have been a final appealable order without the benefit of
briefing from the parties on the matter. We decline to undertake such an inquiry given
these conditions. Accordingly, we hold Weese's failure to appeal the denial of his motion
to intervene does not act as an absolute bar in bringing this action.
{¶ 31} Next, we consider whether the doctrine of lis pendens applies to this matter.
This doctrine has been codified in R.C. 2703.26: "When a complaint is filed, the action is Guernsey County, Case No. 23CA000003 11
pending so as to charge a third person with notice of its pendency. While pending, no
interest can be acquired by third persons in the subject of the action, as against the
plaintiff's title." The overriding purpose of this doctrine is meant to protect the interest of
the plaintiff-creditor rather than any interest of the defendant-debtor. See, e.g., Buckner
v. Bank of New York, 12th Dist. Clermont No. CA2013-07-053, 2014-Ohio-568, ¶ 30;
Levin v. George Fraam & Sons, Inc., 65 Ohio App.3d 841, 845, 585 N.E.2d 527 (9th
Dist.1990). Other districts have stated the doctrine as follows: " 'Lis pendens prevents
third parties who claim to have "acquired an interest" in the property, after service and
during the pendency of the foreclosure action, from challenging the trial court's judgment.'
" Buckner at ¶ 30, quoting Bates v. Postulate Investments, L.L.C., 176 Ohio App.3d 523,
2008-Ohio-2815, 892 N.E.2d 937, ¶ 16 (8th Dist.). The Twelfth District went on to say:
"Thus, one who acquires an interest in the property during the pending lawsuit 'takes
subject to the judgment or decree, and is as conclusively bound by the result of the
litigation as if he had been a party thereto from the outset.' " Id., quoting Cook v. Mozer,
108 Ohio St. 30, 36, 140 N.E. 590 (1923).
{¶ 32} Because lis pendens is a doctrine of constructive notice to avoid a creditor's
interest in the property being impaired, it does not appear to have a direct bearing on this
matter. This is because of the following circumstances: Weese's claimed interest arises
from a foreign certificate of judgment obtained prior to the filing of the Lang complaint; the
certificate of judgment was domesticated prior to the order of foreclosure and preparation
of the final judicial report; the foreclosure was never executed, i.e., there was no sale and
confirmation; and neither a creditor in the prior action nor the debtor is invoking this
doctrine. Indeed, Christina, a non-party to the first action, is now invoking this doctrine
for her own benefit rather than as the executor of the estate to protect estate assets. In Guernsey County, Case No. 23CA000003 12
any event, Christina argues lis pendens functions like issue preclusion, which she does
have standing to raise. So, we will review this matter under that doctrine.
{¶ 33} In Fort Frye Teachers Association, OEA/NEA v. State Employment
Relations Board, 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998), the Supreme Court
explained the following:
The doctrine of issue preclusion, also known as collateral estoppel,
holds that a fact or a point that was actually and directly at issue in a
previous action, and was passed upon and determined by a court of
competent jurisdiction, may not be drawn into question in a subsequent
action between the same parties or their privies, whether the cause of action
in the two actions be identical or different.
{¶ 34} Here, the argument appears to be since the trial court found Dalton timely
raised that his interest in the property was subject to the homestead exemption, Weese
is prevented from ever seeking foreclosure on the same property by the doctrine of issue
preclusion. We disagree. The prior plaintiff (Lang) ceased efforts to execute after the
trial court found Dalton was permitted to claim the homestead exemption. But the trial
court never vacated the foreclosure order. As a result, the decree of foreclosure is still
valid and not dormant. See R.C. 2329.07 and Beaumont v. Herrick, 24 Ohio St. 445, 457
(1873). The issue of whether Weese can institute a foreclosure, therefore, is irrelevant.
{¶ 35} Next, we turn to the issue of whether the Lang decision on the applicability
of the homestead exemption is conclusive here. It may well have been the case that,
during Dalton's life, Weese was precluded from relitigating that particular homestead Guernsey County, Case No. 23CA000003 13
exemption issue. But now Dalton is deceased. The general proposition is, " 'heir takes
the land subject to the payment of the ancestor's debts.' " Wead v. Lutz, 161 Ohio App.3d
580, 2005-Ohio-2921, 831 N.E.2d 482, ¶ 26 (12th Dist.), quoting Gill v. Pinney's
Administrator, 12 Ohio St. 38, 46, 1861 WL 3 (1861). It then follows that the trial court's
decision regarding the homestead exemption did not operate to extinguish any of the
liens. We can infer from the trial court's decision and Lang's abandonment of the action
that the homestead exemption made execution on the liens impractical. But this does not
mean that any of the liens were extinguished.
{¶ 36} In fact, at least in the case of mortgages, the failure to include a senior
mortgagor in a foreclosure action prior to a sheriff's sale makes a purchaser subject to
that mortgage. Society Bank and Trust Co. v. Zigterman, 82 Ohio App.3d 124, 126, 611
N.E.2d 477 (3d Dist.1992). Further, R.C. 2329.20 allows property to be sold at
foreclosure subject to liens. And the statute makes no apparent distinction between liens
and mortgages. In sum, there is no authority cited that Weese's certificate of judgment is
no longer valid or that he is forever barred from seeking execution, especially since the
foreclosure order was never vacated. We note further that the certificate of judgment was
filed before the amended final judicial report. As such, it should have been included in
the report; we do not know why the title examiner did not include Weese's lien. If it had
been, this matter could have been resolved prior to the property being offered for sale.
{¶ 37} Accordingly, as a valid lienholder, Weese might be able to avail himself of
the procedure under R.C. 5302.20(C)(4): "A creditor of a survivorship tenant may enforce
a lien against the interest of one or more survivorship tenants by an action to marshal
liens against the interest of the debtor or debtors." See also New Falls Corporation v.
Pierson, 12th Dist. Clermont No. CA2013-03-023, 2014-Ohio-567, ¶ 21. But we note Guernsey County, Case No. 23CA000003 14
whether the property was subject to the right of survivorship has yet to be briefed by the
parties or decided by the trial court. Further, there is not yet information about whether
there is an estate open or whether this property would be subject to the jurisdiction of the
probate court in that action. Upon remand, the trial court can address these issues, if at
all, as appropriate. In any event, the issues raised by Weese, i.e., the impact of Dalton's
death and whether Christina can claim the homestead exemption and similarly avoid
execution, were not addressed in the Lang case; thus, the doctrine of issue preclusion
does not apply to these issues.
{¶ 38} In sum, we conclude that neither issue preclusion nor claim preclusion nor
lis pendens bars Weese from seeking satisfaction of his lien. Because the trial court
affirmatively did not rule on whether Christina is entitled to claim the homestead
exemption, we do not find that issue ripe for review on appeal. Likewise, Weese appears
to raise an issue of first impression as to whether the facts underlying the judgment in the
Coshocton County case provides him with a "special" lien that can avoid the homestead
exemption, despite the statutory language of R.C. 2329.66(A)(1)(b). We likewise decline
to address that or any issues of priority of lienholders until the trial court does so first.
{¶ 39} Upon review, we find the trial court erred in granting summary judgment to
Christina.
{¶ 40} The sole assignment of error is granted. Guernsey County, Case No. 23CA000003 15
{¶ 41} The judgment of the Court of Common Pleas of Guernsey County, Ohio is
hereby reversed and the matter is remanded to said court for further proceedings
consistent with the opinion.
By King, J.
Wise, P.J. and
Delaney, J. concur. Guernsey County, Case No. 23CA000003 16
Wise, P. J., dissenting
{¶42} I respectfully dissent from the majority opinion. The majority finds that the
court erred in granting summary judgment based on the rationale expressed in Gehm v.
Timberline Post & Frame.
{¶43} “Supreme Court has held that motions to intervene generally should not be
granted after final judgment. State ex rel. First New Shiloh Baptist Church v. Meagher, 82
Ohio St.3d 501, 503-504, 696 N.E.2d 1058 (1998) ("Intervention after final judgment has
been entered is unusual and ordinarily will not be granted"). It would be incongruent to
encourage trial courts to deny these motions then broadly apply claim and issue
preclusion to a movant's subsequent and related filed action. To that end, the Supreme
Court has held: "When a party has sought and been denied intervention, collateral
estoppel will not prohibit future litigation of similar issues." Gehm v. Timberline Post &
Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, paragraph two of the
syllabus.”
{¶44} I would find the application in Gehm to this case is overbroad. In Gehm the
denial of intervention was based on the legal rational that they had no standing. This case
is distinguished from Gehm as Appellant was denied intervention not because they lacked
standing, but because their motion to intervene was untimely.
{¶45} I would further find the doctrine of lis pendens does apply in the case sub
judice. R.C. 2703.26 states, “[w]hen a complaint is filed, the action is pending so as to
charge a third person with notice of its pendency. While pending, no interest can be
acquired by third persons in the subject of the action, as against the plaintiff’s title.”
{¶46} Three elements must be present for lis pendens to apply: (1) the property
must be of a character to be subject to the rule, (2) the court must have jurisdiction over Guernsey County, Case No. 23CA000003 17
both the person and the res, and (3) the property or res must be sufficiently described in
the pleadings; additionally, the litigation must be about some specific thing that must be
necessarily affected by the termination of the suit. Natl. Union Fire Ins. Co. v. Hall, 2nd
Dist. Montgomery No.19331, 2003-Ohio-462, ¶14.
{¶47} “Lis pendens prevents third parties who claim to have ‘acquired an interest’
in the property, after service and during the pendency of the foreclosure action, from
challenging the trial court’s judgment.” Bates v. Postulate Invests., L.L.C., 8th Dist. No.
90099, 176 Ohio App.3d 523, 2008-Ohio-2815, 892 N.E.2d 937, ¶16.
{¶48} The Ohio Supreme Court explained the doctrine of lis pendens in Cook v.
Mozer, (1923), 108 Ohio St. 30, 36-37, 140 N.E. 590, 592:
The general rule is that one not a party to a suit is not affected by the
judgment. The exception is that one who acquires an interest in property
which is at that time involved in litigation in a court having jurisdiction of the
subject-matter and of the person of the one from whom the interests are
acquired, from a party to the proceeding, takes subject to the judgment or
decree, and is as conclusively bound by the result of the litigation as if he
had been a party thereto from the outset. This is so irrespective of whether
he has been made a party to the proceeding, or had actual notice of the
pendency of the proceeding, and even where there was no possibility of his
having had notice of the pendency of the litigation.
{¶49} In the case sub judice, Appellant filed a judicial lien on the property in
question after a complaint was filed in a foreclosure proceeding. After the final judgment
in the proceeding, Appellant attempted to intervene into the foreclosure case. The trial
court denied his motion to intervene. Appellant then filed a second foreclosure action on Guernsey County, Case No. 23CA000003 18
the same property in question. The trial court found Appellant was precluded from
bringing this suit based on the doctrine of lis pendens.
{¶50} The majority finds the doctrine of lis pendens does not apply because
Appellant is attempting to foreclose on Charles Dalton, III’s interest in the property;
however, case sub judice cannot proceed without disrupting the original foreclosure
proceeding which already marshalled the creditors liens. Therefore, I find the doctrine of
lis pendens does apply and Appellant’s lien on the property in question is extinguished
by the operation of the lis pendens statute. Appellant is prevented from challenging the
trial court’s judgment in the original foreclosure case in a separate action.
{¶51} Accordingly, I would affirm the trial court and overrule Appellant’s sole
Assignment of Error. [Cite as Weese v. Dalton, 2023-Ohio-3905.]