Yeckley v. Yeckley

2020 Ohio 5432

• Court: Ohio Court of Appeals
• Decided: November 25, 2020
• Docket: 109275
• Status: Published

Opinion

[Cite as Yeckley v. Yeckley, 2020-Ohio-5432.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

THOMAS D. YECKLEY, :

Plaintiff, : No. 109275 v. :

THOMAS D. YECKLEY, ET AL., :

Defendants-Appellants. :

[Appeal by Richard Yeckley]

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 25, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-07-611861

Appearances:

Barry L. Sweet, for appellee Dennis Yeckley.

Reimer Law Co., Mike L. Wiery, and Katherine D. Carpenter, for appellee Keybank, N.A.

Edwin V. Hargate, for appellant Richard Yeckley.

LARRY A. JONES, SR., J.:

This case involves a dispute among four siblings over the family

house. In the instant appeal, defendant-appellant Richard Yeckley (“Richard”) appeals various trial court orders imposed in a partition lawsuit filed by his brother

plaintiff-appellee Thomas Yeckley (“Thomas”). For the reasons that follow, we

affirm the trial court’s judgment.

In 2001, the siblings’ mother, Lena Yeckley (“Lena”), and defendant-

appellee and sibling Linda Scott (“Linda”) executed a promissory note in the

amount of $60,000 plus interest at a variable rate to defendant-appellee KeyBank

National Association (“KeyBank”). Lena executed a mortgage granting KeyBank

first and best lien on real property located at 271 East 270th Street in Euclid, Ohio.

The mortgage was recorded in the Cuyahoga County Recorder’s Office on

November 7, 2001.

Lena died in 2006 and Linda lived in the house until 2009. In 2007,

Thomas filed a complaint for partition. In 2009, defendant-appellee and sibling

Dennis Yeckley (“Dennis”) moved into the house.

Thomas moved for summary judgment, which the trial court

granted, finding that the four siblings were coparceners of the property and

entitled to a proportional share of the property. The litigation among the siblings

continued, with parties filing motions for various setoffs for improvements,

investments, and rent. In 2015, the trial court determined that the reasonable

rental value of the property was $800 a month and Linda “enjoyed exclusive

possession of the premises from April 2006 through March 2009, a period of 36

months, for a total of $28,800.00.” The trial court further held that Dennis “enjoyed exclusive possession of the premises from April 2009 through the time of

the [2014] hearing, a period of 75 months, for a total value of $60,000.00.”

Thomas and Richard filed a joint motion for accounting and rents.

In October 2016, a magistrate denied the motion; Thomas and Richard filed

untimely objections and the trial court overruled their objections. Thomas and

Richard filed a motion for reconsideration, which the trial court also denied.

Linda defaulted under the terms of the note and mortgage. KeyBank

accelerated the loan balance and filed a complaint for foreclosure in June 2018.

In October 2019, the magistrate entered an order granting the

foreclosure and sale of the property. Thomas and Richard filed objections that

were denied by the trial court in its entry adopting the magistrate’s decision.

Richard filed a notice of appeal on December 5, 2019.

Richard raises four assignments of error for our review:

I. The trial court erred and abused its discretion in denying on October 19, 2016 plaintiff and defendant-appellant’s joint motion for an accounting and rents filed August 28, 2015 and filed two months after the magistrate’s decision on set-offs (partial); since a motion for an accounting and rents pursuant to O.R.C. 5307.21 is a separate cause of action or claim, and payment is not limited to a motion for set-offs from improvements investments and rents received from third parties, which is commonly filed in a partition action, and the action is considered an action in law Warner v. Matthews, 79 Ohio App. 111 (1946); the plaintiff and defendant-appellant are entitled to a judgment for their respective share of the reasonable rental value of the property.

II. The trial court erred and abused its discretion in denying plaintiff and defendant-appellant’s motion for reconsideration; since the motion calls to the trial court’s attention an obvious error in its decision. III. The trial court erred and abused its discretion in denying plaintiff and appellant’s objections to foreclosure and order of sale decision of October 4, 2019.

IV. The trial court erred and abused its discretion in denying plaintiff and appellant’s request for findings of fact and conclusions of law regarding the denial of their motion for an accounting and rents filed August 28, 2015 in an entry date November 21, 2016.

Final Appealable Order

As an initial matter, we first determine whether this is a final,

appealable order. Dennis filed a motion to dismiss, arguing that the November 7,

2019 judgment entry of foreclosure was not a final, appealable order because it did

not dispose of all claims against all parties. He also requested sanctions and

attorney fees.

Article IV, Section 3(B)(2) of the Ohio Constitution grants

jurisdiction to courts of appeals “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.” Consequently, this court does not have jurisdiction over

nonfinal orders. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-

1984, 11 N.E.3d 1140, ¶ 10, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio

St.3d 17, 20, 540 N.E.2d 266 (1989). ‘“An order of a court is a final appealable

order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R.

54(B), are met.”’ Roznowski at id., quoting State ex rel. Scruggs v. Sadler, 97 Ohio

St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5.

In order for a judgment decree in foreclosure to constitute a final

order, it must address the rights of all lienholders and responsibilities of the mortgagor. Roznowski at ¶ 20. Dennis claims that the trial court’s foreclosure

order is not a final, appealable order because it did not reference or dispose of

Thomas’s and Richard’s second motion for accounting and rents, filed August 28,

2015. We disagree.

On October 19, 2016, the magistrate denied Thomas’s and Richard’s

August 28, 2015 motion, finding:

The Magistrate finds that the relative interests of the cotenants in the partition action, Thomas D. Yeckley, Linda L. Scott, Dennis G. Yeckley, and Richard A. Yeckley were determined by the Court’s orders of 8/14/15 and 5/26/16, but that those orders have become partially stale as a result of subsequent events, most notably the redemption of the tax certificates * * * and the non-payment of the KeyBank’s mortgage. Paragraphs eight and nine (regarding the tax certificates and selling the property subject to KeyBank’s mortgage) of the order of 8/14/15 are vacated. The order of distribution in the order of 5/26/16 is superseded by the order of distribution below. Any further adjustments of the relative interests of the cotenants, and any further distributions of sale proceeds, after the third distribution paragraph below, are continued until further order.

The court continued in a footnote, as follows:

The findings in the 8/14/15 order, with respect to set-offs and the cotenants’ relative interests will be, final, and appealable (if this Magistrate’s decision is adopted), but they are also still subject to being amended due to future events. If one of the cotenants were to exercise their right of redemption prior to a confirmation of a sale, they would properly seek an adjustment to the set-offs determined in the 8/14/15 order by motion, filed post-Decree of Foreclosure. In addition, the trial court’s November 7, 2019 order of foreclosure

stated that, “The objections of Plaintiff, Thomas Yeckley and Defendant, Richard

Yeckley are overruled.”1

When the court’s orders are read together, it is apparent that the

trial court disposed of Richard’s and Thomas’s first and second motions for

accounting and rents.

Civ.R. 54(B) provides that when there are multiple claims and

parties, a trial court may enter final judgment as to one or more but fewer than all

of the claims or parties only upon an express determination that there is no just

reason for delay. In accordance with Civ.R. 54(B), the trial court’s judgment entry

stated: “There is no just reason for delay.”

In light of the above, we find that we have a final, appealable order

and deny Dennis’s motion to dismiss this appeal in its entirety. We now proceed to

the merits of this appeal.

Motion for Accounting and Rents

In his first assignment of error, Richard argues that the trial court

erred in denying his and Thomas’s August 2015 joint motion for an accounting and

rents.

1Even if the trial court had not expressly overruled Thomas’s and Richard’s August 28, 2015 motion, an appellate court ordinarily presumes that a trial court overruled a motion when the trial court fails to explicitly rule on the motion. State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). As mentioned, Richard and Thomas filed two joint motions for

accounting and rents. Richard argues that, pursuant to R.C. 5307.21, Dennis and

Linda should be required to pay the fair rental value of the property because they

seized the exclusive possession of the family home following their mother’s 2006

death for their own benefit and without Richard’s and Thomas’s consent. Richard

and Thomas requested a judgment against Dennis and Linda for “the reasonable

rental value of the property since 2006.”

The magistrate overseeing the case held a hearing on the motion,

took testimony, and the parties submitted evidence. On June 30, 2015, the

magistrate issued a “Decision on Set-offs” with findings of fact and conclusions of

law, finding in part: (1) the house was properly valued at $105,000; (2) the parties’

fifth sibling, Nena Yeckley, previously transferred her interest to Linda making

Linda’s ownership interest, prior to setoff, 40 percent; (3) Thomas, Dennis, and

Linda’s ownership interest, prior to setoff, was 20 percent each; and (4) various

setoffs modified the siblings’ interests to 36.439 percent (Richard), 35.94 percent

(Linda), 19.252 percent (Thomas), and 8.096 percent (Dennis).

On July 13, 2015, Richard and Thomas filed a motion for an

extension of time in which to file objections to this decision and filed their

objections on August 11, 2015. Dennis filed pro se objections on July 28, 2015.

On August 14, 2015, the trial court adopted the magistrate’s

decision, expressly issuing a nonfinal order. The court gave the parties 30 days to

file a “Notice of Election” if a party wished to purchase the property for $105,000 and denied Richard’s and Thomas’s prior motion for an extension of time in which

to file objections to the magistrate’s decision. The trial court also overruled the

motion for an extension of time to object to the magistrate’s decision.

On appeal, Richard contends that “the central issue in this appeal is

the trial court’s denial of [his] statutory Motion for an Accounting and Rents.”

Civ.R. 53(D)(3)(b)(i) states as follows:

A party may file written objections to a magistrate’s decision within fourteen days of the filing of the decision, whether or not the court has adopted the decision during that fourteen-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed.

In accordance with Civ.R. 53(D), Richard and Thomas had 14 days

to object from the date when the magistrate filed its decision. The magistrate

issued its decision, including findings of fact and conclusions of law, on June 30,

2016. On July 13, 2016, Richard and Thomas filed a joint motion requesting an

extension of time; they did not, however, file objections to the magistrate’s

decision at that time. Instead, they waited until August 11, 2015, to file their

objections; therefore, their objections were untimely.

Because Richard’s and Thomas’s objections were untimely filed,

Richard has waived all but plain error. A review of the magistrate’s decision shows

that the magistrate thoroughly reviewed the testimony and evidence submitted at

the hearings on the motion as well as all pertinent pleadings. The magistrate

determined that each of the four siblings was entitled to a proportionate share of the house to be adjusted by setoffs for certain expenditures spent to upkeep the

house, and, in the case of Dennis and Linda, for having exclusive possession of the

premises at various times after their mother’s death.

Although Richard argues that the trial court erred in denying the

motion for an extension of time in which to file objections and argues against the

substance of the magistrate’s decision, he does not advance a plain error argument

on appeal and we decline to construct such a claim for him. See State v. White, 9th

Dist. Summit Nos. 23955 and 23959, 2008-Ohio-2432, ¶ 33 (“[T]his Court will not

construct a claim of plain error on behalf of an appellant who fails to raise such an

argument in her [or his] brief.”).

In light of the above, the first assignment of error is overruled.

Motion for Reconsideration

In the second assignment of error, Richard contends that the trial

court erred in denying his motion for reconsideration. In his fourth assignment of

error, Richard claims that the trial court erred in denying his motion for findings of

fact and conclusions of law. We consider these assignments of error together.

As mentioned, Richard and Thomas filed a second motion for

accounting and rents on August 28, 2015, after the trial court had already issued its

decision on their first motion. The magistrate held the motion in abeyance and the

trial court subsequently denied the motion. Richard and Thomas filed a motion

for findings of fact and conclusions of law and a subsequent motion for

reconsideration, both of which the trial court denied in a November 21, 2016 journal entry, stating that the parties’ evidence and arguments on setoffs, including

any claims for rent, had been previously heard and determined by the magistrate

in the magistrate’s June 30, 2015 order, as well as any objections to that decision,

were untimely filed.

Richard claims that the August 28, 2015 motion for accounting and

rents differs from the first motion for accounting and rents, and the court erred in

denying his motion to reconsider. Specifically, he claims that the first motion

concerned common law setoffs “and other matters” while the second motion was

made pursuant to R.C. 5307.21; therefore, they are separate and distinct motions

that the court erred in considering as one.

We review a trial court’s ruling on a motion for reconsideration

under an abuse of discretion standard. Maddox Defense, Inc. v. GeoData Sys.

Mgmt., 2019-Ohio-1778, 135 N.E.3d 1212, ¶ 74 (8th Dist.), citing Vanest v.

Pillsbury Co., 124 Ohio App.3d 525, 535, 706 N.E.2d 825 (4th Dist.1997). “The

term ‘abuse of discretion’ connotes more than an error of law or of judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

We have reviewed the first and second joint motions for accounting

and rents and agree with the trial court that the arguments with regard to setoffs

and claims for rent were decided by the June 30, 2015 magistrate’s decision, to

which Richard and Thomas failed to file timely objections. Richard and Thomas

were merely attempting to “cure” their untimely filing with a successive motion for accounting and rents. The trial court did not abuse its discretion when it denied

their motion for reconsideration.

The trial court also did not err when it overruled Richard’s motion

for findings of fact and conclusions of law. Richard and Thomas requested

findings of fact and conclusions of law for the magistrate’s October 19, 2016

decision that denied their second motion for accounting and rents. The trial court

denied their motion for findings of fact in its November 21, 2016 journal entry.

Because both motions for accounting and rents set forth the same arguments and

requested the same relief, the trial court did not err in determining that the

magistrate’s initial order disposing of the first motion for accounting and rents also

disposed of the second motion. Thus, there was no requirement for the court to

issue findings of fact and conclusions of law; the magistrate issued thorough

findings of fact and conclusions of law in its June 30, 2015 order.

The second and fourth assignments of error are overruled.

Objections to Foreclosure

In the third assignment of error, Richard claims that the trial court

erred in overruling his and Thomas’s objections to the magistrate’s October 4,

2019 foreclosure and order of sale.

On October 4, 2019, the magistrate issued its foreclosure and order

of sale decision. Richard and Thomas filed timely objections. On November 7,

2019, the trial court issued an order, adopting the magistrate’s decision and

overruling the objections. The November 7, 2019 judgment entry adopting the magistrate’s

foreclosure order granted appellee KeyBank’s motion for summary judgment and

motion for default judgment, granted a money judgment in favor of KeyBank, and

granted KeyBank foreclosure of the property.

Richard contends that the trial court abused its discretion in

overruling their objections for the same reasons that the trial court erred in

overruling previous objections to court order’s regarding the first and second

motions for accounting and rents ─ namely that Richard and Thomas filed joint

motions for accounting and rents under two separate theories of recovery and the

court erred in finding that the magistrate’s August 14, 2015 decision disposed of

both motions.

Richard fails to advance any arguments separate from those made

under the previous assignments of error and does not contest KeyBank’s

foreclosure of the property.

In light of the above, the trial court did not abuse its discretion in

denying Richard’s and Thomas’s objections to the magistrate’s October 4, 2019

order.

The third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

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.

LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and MARY EILEEN KILBANE, J., CONCUR