MHN SUB I, LLC, Plaintiff-Appellee, - vs - LAWRENCE A. DONNELLY, JR., et al., Defendant-Appellant.
CASE NO. 2014-L-031
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
August 25, 2014
[Cite as MHN SUB I, L.L.C. v. Donnelly, 2014-Ohio-4128.]
COLLEEN MARY O‘TOOLE, J.
MEMORANDUM OPINION
Judgment: Appeal Dismissed.
Miranda S. Hamrick and Melanie D. Butler, Lerner, Sampson & Rothfuss, 120 East Fourth Street, Suite 800, P.O. Box 5480, Cincinnati, OH 45202 (For Plaintiff-Appellee).
Jay F. Crook, Shryock, Crook & Associates, LLP, 30601 Euclid Avenue, Wickliffe, OH 44092 (For Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Lawrence A. Donnelly, Jr., appeals from the February 21, 2014 judgment of the Lake County Court of Common Pleas, denying his
{¶2} On March 16, 2005, appellant executed a note with CitiFinancial Mortgage Company, Inc. (“CitiFinancial“) in the amount of $189,795.89 plus interest for property located at 7254 Argee Drive, Mentor, Lake County, Ohio 44060. Appellant also granted
{¶3} Following appellant‘s default on his payments, appellee filed a complaint in foreclosure on June 7, 2013.1 As of the date of the complaint, there was a balance owed to appellee in the amount of $181,174.61 plus interest. Appellant did not file an answer. As a result, appellee filed a motion for default judgment on September 27, 2013. The trial court granted appellee‘s motion and filed a judgment and decree in foreclosure on September 30, 2013. Appellant did not appeal that judgment.
{¶4} Appellee filed a praecipe for order of sale on October 11, 2013. The order of sale was issued to the Lake County Sheriff on October 22, 2013. On November 8, 2013, appellant filed a
{¶5} On January 21, 2014, the property was appraised at $144,000. On January 30, 2014, a notice of sheriff‘s sale was filed. The sale was scheduled to take place on February 24, 2014 at 10:00 a.m. On February 18, 2014, appellant filed an emergency ex parte motion to stay the sale. Three days later, appellee filed an opposition.
{¶7} “The trial court abused its discretion in denying Mr. Donnelly‘s motion to vacate the default judgment.”
{¶8} At the outset, we note that while this appeal was pending, appellee filed a motion to dismiss the appeal.3 In that motion, as well as in its appellate brief, appellee stresses that a satisfaction of judgment and the failure to file a motion to stay pending appeal renders appellant‘s appeal moot and thereby terminates his right to appeal. In response, appellant asserts his appeal is not moot. Appellant claims the trial court lacked jurisdiction to execute on the judgment once the notice of appeal was filed and, in the alternative, that the confirmation of sale cannot be considered to be voluntary satisfaction. Thus, before we examine the merits of appellant‘s assignment of error, we must dispose of the mootness argument.
{¶9} In foreclosure proceedings such as this, if a stay is not sought by and granted for the borrower, it becomes possible for any appeal of judgment in favor of the lender to become moot. “It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot.” Kogler v. Daniel Bros. Fuel Co., 11th Dist. Lake No. 2002-L-122, 2003-Ohio-6774, ¶21, quoting Blodgett v. Blodgett, 49 Ohio St.3d 243, 245 (1990). In a situation where a “judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away (* * *) the right to appeal or prosecute error or even to move for vacation of judgment.” Kogler, supra, at ¶21, quoting Lynch v. Lakewood City School Dist. Bd. of Edn., 116 Ohio St. 361, paragraph three of the syllabus (1927) (emphasis sic). “[T]he mere filing of a notice of appeal from the judgment of the trial court without a stay of execution being issued does not deprive the trial court of authority to enforce its judgment.” Atlantic Mtge. & Invest. Corp. v. Sayers, 11th Dist. Ashtabula No. 2000-A-0081, 2002 Ohio App. LEXIS 856, *4 (Mar. 1, 2002), quoting White v. White, 50 Ohio App.2d 263, paragraph five of the syllabus (8th Dist.1977).
{¶10} Thus, the result of an appellant failing to obtain a stay of the judgment is that the nonappealing party can obtain satisfaction of the judgment despite the pending appeal. Marotta Bldg. Co. v. Lesinski, 11th Dist. Geauga No. 2004-G-2562, 2005-Ohio-558, ¶18, citing Sayers, supra, at *6. “Consequently, when ‘the nonappealing party is successful in obtaining satisfaction of judgment, the appeal must be dismissed because the issues raised in the appeal have become moot.‘” Kogler, supra, at ¶21, quoting Hagood v. Gail, 105 Ohio App.3d 780, 785 (11th Dist.1995).
{¶11}
{¶12} “When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.”
{¶13} In this case, appellant asserts the trial court lacked jurisdiction to execute on the judgment once he filed an appeal and, in the alternative, that the confirmation of sale cannot be considered to be voluntary satisfaction.4 For the reasons that follow, we disagree.
{¶14} As stated, the trial court filed a judgment and decree in foreclosure on September 30, 2013. Appellant filed a
{¶15} Appellant filed a notice of appeal on March 21, 2014. Thereafter, appellee filed its motion for entry of confirmation of sale on May 15, 2014, and the trial court recorded the entry confirming the sale on June 16, 2014. Thus, appellee succeeded in satisfying the judgment granted in its favor.
{¶17} The record establishes that appellant failed to follow
{¶18} In the related context of an order confirming a sale, “(w)ithout a stay order and/or bond, the property can legally be transferred to the purchasers and the proceeds can be used to satisfy the debts against the property.” Cooper v. Westerville, 5th Dist. Delaware No. 13 CAE 02 0011, 2013-Ohio-4652, ¶17. “[T]his court has stated that a party is deemed to have acted voluntarily in satisfying a judgment when the party fails to seek a stay order prior to the judgment‘s being satisfied.” See Marotta, supra, at ¶19.
{¶19} In the case at bar, appellant neither obtained a stay nor posted a bond after filing his notice of appeal. Further, appellee, as the non-appealing party, has successfully obtained a satisfaction of judgment. Thus, an appeal of that judgment is now moot.
{¶20} For the foregoing reasons, we conclude that appellant‘s appeal is moot. Accordingly, we will not consider appellant‘s assignment of error. Therefore, appellee‘s motion to dismiss is granted. The instant appeal is hereby dismissed.
CYNTHIA WESTCOTT RICE, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.