City of Columbus, Ohio, a municipal corporation, Petitioner-Appellee, v. Ohio Wholesale Auto Sales, LLC et al., Respondents-Appellees, Wiltshire Capital Partners, LP, Respondent-Appellant.
No. 23AP-513
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 6, 2024
2024-Ohio-2180
(C.P.C. No. 21CV-5236) (REGULAR CALENDAR)
Rendered on June 6, 2024
On brief: Haynes, Kessler, Myers & Postalakis, and Christopher T. Cline, for Ohio Wholesale Auto Sales, LLC. Argued: Christopher T. Cline.
On brief: Wells Law Office, and Joquetta S. Wells, for appellant. Argued: Joquetta S. Wells.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{1} Respondent-appellant, Wiltshire Capital Partners, LP, (“Wiltshire“) appeals from a decision and entry of the Franklin County Court of Common Pleas determining Wiltshire is barred from presenting any claims based on the mortgage and promissory note at issue in the matter. For the following reasons, we dismiss the appeal.
{2} On August 17, 2021, petitioner-appellee, city of Columbus, filed a petition for appropriation of real property declaring its intention to use eminent domain to appropriate a fee simple interest and a temporary easement for a 0.082-acre parcel of land in Clinton Township and to appropriate a temporary construction easement for a 0.016-acre parcel of land in Clinton Township. The city initiated the eminent domain proceedings “for the purposes of making, constructing, repairing or improving a state, U.S. or interstate highway which shall be open to the public, without charge” as part of the Hudson Street Sidewalks Project. (Petition for Appropriation at {7}.) In its appropriation petition, the city named nine entities who have, claim to have, or may have, the following estate, interest or right in the real property: (1) respondent-appellee, Ohio Wholesale Auto Sales, LLC, fee simple interest; (2) Doug Davis and Marilyn Bernard, mortgage of record; (3) William L. Bowersock, mortgage of record; (4) Florence Odita, mortgage of record; (5) Wiltshire, mortgage of record; (6) State of Ohio, Department of Taxation, judgment of record; (7) Don‘s Garage, Inc., judgment of record; (8) city of Columbus, notice of lis pendens; and (9) Franklin County Treasurer, property taxes and assessments. As the action progressed, the city dismissed the State of Ohio, Department of Taxation, and Don‘s Garage from the action, and the trial court entered default judgment against Davis and Bernard, Odita, and Bowersock. Thus, as of April 18, 2022, only three respondents remained: Wiltshire, Ohio Wholesale Auto Sales, and the Franklin County Treasurer. Ohio Wholesale Auto Sales is the title holder of the property and Wiltshire claims a mortgage interest in the property.
{3} On August 2, 2022, the matter came before the trial court for a status conference. Based on the parties’ representations at the status conference, the trial court set the matter for an evidentiary hearing “to determine Defendant Wiltshire Capital Partners LP‘s standing in this matter.” (Aug. 3, 2022 Order.) Prior to the scheduled hearing, the trial court issued an August 11, 2022 order vacating the order for the hearing and directing the parties to submit briefing and any evidence regarding Wiltshire‘s “standing,” stating the trial court would “rule on the issue without oral arguments.” (Aug. 11, 2022 Order.) The trial court ordered the parties to submit briefing by August 26, 2022. Ohio Wholesale Auto Sales submitted a brief and evidence to the trial court. Ohio Wholesale Auto Sales stated in its brief that Wiltshire had filed a complaint for foreclosure
{4} On July 24, 2023, the trial court issued a “Decision and Entry Regarding Status of Defendant Wiltshire Capital Partners LP.” In the decision and entry, the trial court determined because Wiltshire had its claim decided adversely against it in a separate foreclosure action involving the same mortgage interest it has in the property here, res judicata applied and Wiltshire “no longer has a stake in any matter relating to the mortgage and cannot claim some real interest in the subject matter of the action to fulfill its jurisdictional requirement.” (Decision & Entry at 5.) Thus, the trial court determined Wiltshire “has no standing and its claim is barred by res judicata,” and further ordered Wiltshire “is barred from presenting any claims based on the mortgage and promissory note which it first advanced in the 2017 Foreclosure.” (Decision & Entry at 5.)
{5} Wiltshire timely appeals. We note that while Ohio Wholesale Auto Sales filed a brief positioning itself as “defendant-appellee,” neither the city nor the Franklin County Treasurer have appeared in the appeal.
II. Assignments of Error
{6} Wiltshire assigns the following three assignments of error for our review:
- The trial court erred by ruling, contrary to law, that a Civil Rule 41(B)(1) dismissal for failure to prosecute a foreclosure action in which service of process on the defendant(s) has not been obtained, constitutes an adjudication on the merits and, therefore, (a) bars the plaintiff from refiling the foreclosure action and (b), by vitiation of the mortgage related to the foreclosure action, precludes a mortgagee from the status of “owner” within the meaning of
RC § 163.01(E) and from the status of Defendant/Respondent in an appropriation proceeding brought pursuant to Chapter 163 of the Ohio Revised Code. - The trial court erred in ruling that Appellant Wiltshire does not have standing to participate in any manner in an eminent domain proceeding that seeks to appropriate property that is encumbered by a mortgage lien held by Wiltshire.
The trial court abused its discretion to Wiltshire‘s substantial prejudice by denying Appellant Wiltshire, the Mortgagee of specific property sought for appropriation, leave to file its brief and thereby be meaningfully heard during the trial court‘s evidentiary proceeding on the issue of Wiltshire‘s status in the proceeding for appropriation of the mortgaged property and further abused its discretion by also denying Appellant Wiltshire‘s Motion For Reconsideration, made on the grounds of excusable neglect.
III. Discussion
{7} Before we can reach the merits of Wiltshire‘s assignments of error, we must address our subject-matter jurisdiction. Although neither party has raised the issue of whether the trial court‘s July 24, 2023 decision and entry is a final appealable order, an appellate court may raise that jurisdictional issue sua sponte and must dismiss an appeal that is not taken from a final appealable order. Oakley v. Ohio State Univ. Wexner Med. Ctr., 10th Dist. No. 18AP-843, 2019-Ohio-3557, {9}, citing Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, {8} (10th Dist.).
{8} Ohio appellate courts have jurisdiction to review only final appealable orders of lower courts within their districts.
{9}
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
* * *
(7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.
{10}
When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the 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 the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
{11} If a trial court enters judgment on some but not all of the claims in a multi-claim action or with respect to some but not all of the parties in a multi-party action, in the
{12} To be a final appealable order subject to review on appeal, the trial court‘s July 24, 2023 decision and entry must satisfy the requirements of
{13}
An owner has a right to an immediate appeal if the order of the court is in favor of the agency in any of the matters the owner denied in the answer, unless the agency is appropriating property in time of war or other public exigency imperatively requiring its immediate seizure, for the purpose of making or repairing roads which shall be open to the public without charge, for the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181, 6115.221, 6117.39, or 6119.11 of the Revised Code or by a public utility owned and operated by a municipal corporation as the result of a public exigency.
{14} Because the city named Wiltshire as a defendant in the appropriation action as a party with a mortgage interest in the property, Wiltshire is considered an “owner” for purposes of the applicability of
{15} Additionally, the immediate right to appeal contained in
{16} The only remaining subsections with arguable applicability are
{17} It is difficult to categorize the trial court‘s July 24, 2023 decision and entry for several reasons. First, the decision relates to an issue apparently raised at a status conference but not by any formal motion or pleading of a party. While the trial court asked
{18} Moreover, the trial court‘s July 24, 2023 decision and entry does not contain language, pursuant to
{19} Because the trial court‘s July 24, 2023 decision and entry was not a final appealable order, we lack jurisdiction to review Wiltshire‘s assignments of error.
IV. Disposition
{20} Based on the foregoing reasons, the decision and entry of the Franklin County Court of Common Pleas is not a final appealable order, and this court is without jurisdiction to consider the appeal. Accordingly, we sua sponte dismiss the appeal.
Appeal dismissed.
DORRIAN and BOGGS, JJ., concur.