Rodney Bell, et al., Plaintiffs-Appellants, v. William A. Turner, et al., Defendants-Appellees, and Harriett Fout, dba Fout Realty, Third-Party Defendant-Appellant.
Case Nos. 10CA18 & 10CA19
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Filed: February 13, 2012
2012-Ohio-669
Kline, J.
Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Plaintiff-Appellant, Rodney Bell.
Conrad A. Curren, Greenfield, Ohio, for Defendant-Appellant, Harriet Fout, dba Fout Realty.
John S. Porter, Rose & Dobyns,Co. L.P.A. Blanchester, Ohio, for Defendant-Appellee, Stella Turner.
DECISION AND JUDGMENT ENTRY
Kline, J.:
{¶1} Rodney Bell and Shirley Diane Bell (hereinafter the “Bells“) appeal the judgment of the Highland County Court of Common Pleas granting rescission of a contract for the sale of real estate to William and Stella Turner (hereinafter the
I.
{¶2} This litigation is the product of a failed real estate transaction. This case has been before us on multiple occasions, and we have recounted the facts of this case in previous opinions. See Bell v. Turner, 4th Dist. No. 05CA10, 2006-Ohio-704, ¶ 2-14; Bell v. Turner, 172 Ohio App.3d 238, 2007-Ohio-3054, 874 N.E.2d 820 ¶ 3-13 (4th Dist.) (hereinafter ”Bell II“); Bell v. Turner, 191 Ohio App.3d 49, 2010-Ohio-4506, 944 N.E.2d 1179, ¶ 2-5 (4th Dist.) (hereinafter ”Bell III“).
{¶3} Following our remand of this case in Bell II, the trial court held a trial on the remedy of rescission. After trial, the trial court issued its July 6, 2009 Entry. The July 6, 2009 Entry ordered Fout to disgorge the $6,500 real estate commission she had received as a result of the Bells and Turners’ failed real estate transaction.
{¶4} Both the Bells and Fout appealed the trial court‘s July 6, 2009 Entry. We held that, because the July 6, 2009 Entry did not determine the recipient of the disgorged $6,500 real estate commission, that entry was not a final appealable order. Bell III at ¶ 15. Therefore, we dismissed the appeal for lack of jurisdiction. Id.
{¶5} Following our remand in Bell III, the trial court issued an entry on Nov. 24, 2010. The Bells and Fout now appeal from the trial court‘s Nov. 24, 2010 Entry. The Bells assert the following assignments of error: I. “The Trial Court erred in its decree of rescission wherein the Defendant/Appellee incurred the real estate taxes and imposed the delinquent taxes on Appellant.” And, II. “The Trial Court erred in placing the burden of restoration upon the Plaintiff/Appellants since it was the Defendant/Appellee Turners seeking rescission.” Fout asserts the following assignments of error: I. “The trial court did not have jurisdiction to address the matter of Appellant Fout‘s commission, as the doctrine or [sic] res judicata bars all claims that have been previously litigated and any order relating to Appellant Fout was beyond the mandate of the Appellate Court‘s remand.” And, II. “The trial court erred to the detriment of the Defendant/Appellant when it ordered Defendant/Appellant Fout to disgorge the commission, together with statutory interest, as such order was in violation of the Appellate Court‘s remand, which required the trial court to determine what steps are required to put the parties back in their pre-contract position.”
II.
{¶6} As we did in Bell III, we must address our jurisdiction before we address the merits of the parties’ arguments. “Ohio law provides that appellate courts have jurisdiction to review the final orders or judgments of inferior courts in their district.”
{¶7} As indicated above, we dismissed the appeal in Bell III because the trial court‘s July 6, 2009 Entry was not a final appealable order. That entry states as follows: “Defendant Harriet Fout dba Fout Realty is hereby ordered to immediately disgorge the $6,500.00 real estate commission paid to her on June 9, 1995 and pay that amount plus accrued statutory interest from March 12, 1996 (the date of the initial demand for rescission) to the Clerk of this Court. The Clerk shall hold said funds for future disbursement on the motion of any party.” July 6, 2009 Entry at 1-2.
{¶8} In finding that the July 6, 2009 Entry was not a final appealable order, we found the following: “By leaving the issue of the $6,500 open, * * * sound judicial administration does not support giving the parties the right to immediately appeal the trial court‘s order.” Bell III at ¶ 15. Instead, we found that the July 6, 2009 Entry was not final and appealable because it “expressly reserved decision on the final destination of the $6,500.” Id.
{¶9} Following our dismissal in Bell III, the trial court issued a new entry, which states as follows:
Defendant Harriet Fout dba Fout Realty is hereby ordered to immediately disgorge the $6,500.00 real estate commission paid to her on June 9, 1995 and pay that amount plus accrued statutory interest from March 12, 1996 (the date of the initial demand for rescission) to the Clerk of this Court.
Upon receipt of the disgorged real estate commission and accrued interest, the Clerk of Courts shall immediately notify all parties via their respective counsel that said funds are being held by the Court. Following receipt of said notice from the Clerk of Courts, Defendant Stella Turner (individually and in her capacity as Executrix of the Estate of William A. Turner) shall have fourteen (14) days to file an application for a disbursement from said funds held on deposit to effectuate the reimbursement to said Defendant of all closing costs paid on June 9, 1995 as Ordered herein. Further, Plaintiffs shall also have fourteen (14) days to submit a similar application to the Court seeking disbursement from the funds held on deposit by the Clerk of Courts as an offset against the real estate taxes, interest, and penalties which have accrued since March 12, 1996 on the subject parcels as Ordered herein. In the event the application for disbursement of funds is not timely made by any party, the Clerk of Courts shall refund all amounts paid by Defendant Harriett Fout dba Fout Realty back to said Defendant. Nov. 24, 2010 Entry.
{¶10} We conclude that the Nov. 24, 2010 Entry suffers from the same defect as the July 6, 2009 Entry. That is, the Nov. 24, 2010 Entry also reserves decision on the final
{¶11} Accordingly, we dismiss this appeal for lack of jurisdiction.
APPEAL DISMISSED.
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Appellants and Appellees shall pay equally the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.