Pertuset v. HullPertuset v. Hull
Tyler E. Cantrell, Office of Young & Caldwell, LLC, West Union, Ohio, for Appellants.
Stеphen C. Rodeheffer, Office of Stephen C. Rodeheffer, Portsmouth, Ohio, for Appellees.
Smith, P.J.
{¶1} On September 20, 2018, the trial court granted judgment in favor of Brandon and Jeana Hull, defendants/appelleеs, against Carl and Vera Pertuset, plaintiffs/appellants, and various additional plaintiffs/appellants, on all counts of plaintiffs/appellants’ amended complaint for conversion, reрlevin, and associated damages. Upon review of the record, we find we do not have jurisdiction to consider the merits of this appeal as the September
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Carl and Vera Pertuset (“Appellants“) once owned a large family farm in the northwest area of Scioto County. The property, designated parcel number 23-0528 on the Scioto County Auditor‘s records, consists of a 181.458-acre tract of land. During Appellants’ ownership of the farm, they entered into a mortgage loan agreement with Ameriсan Savings Bank (“American“), and unfortunately later defaulted on their mortgage payments. In 2009, a complaint in foreclosure, Scioto County Common Pleas Court Case No. 09CIE140, was commenced by Farm Credit оf America, PCA (“Farm Credit“) against Appellants and various named defendants including American. American filed a timely answer and also asserted a cross-claim in foreclosure against Appellants. Over the course of nearly ten years, Appellants have vigorously challenged the foreclosure and associated proceedings. See Am. Savs. Bank v. Pertuset, 4th Dist. Scioto No. 11CA3442, 2013-Ohio-566, (“Pertuset I“); Am. Savs. Bank v. Pertuset, 4th Dist. Scioto No. 13CA3564, 2014-Ohio-1290 (“Pertuset II“); and Scioto Cty. Bd. Of Commrs./Revolving Loan Fund Bd. v. McDermott Industries, L.L.C., 4th Dist. Scioto No. 12CA3504, 2014-Ohio-240. In Pertuset II, this
{¶3} Apрellants’ current appeal relates to the sale of Appellants’ farm to Brandon and Jeanna Hull (“Appellees“) at the Scioto County Sheriff‘s sale on November 14, 2012. On September 8, 2014, the trial court filed a judgment entry confirming the sale. On October 27, 2014, the trial court filed another judgment entry ordering deed and distribution to Appellees. In November 2014, Appellees filed a writ of possession. On January 15, 2015, the Shеriff executed the writ and Appellants’ were forcibly removed from the farm.
{¶4} The instant action, Scioto County Common Pleas Court Case Number 2015CIH163, was commenced nearly ten months later, on October 26, 2015, by the filing of Appellants’ complaint for conversion, compensatory and punitive damages, against Appellees. Appellants also joined with additional plaintiffs: Jake Pertuset; Donald Osbornе; Steve Armstrong; and Rob Parsley. John and Jane Doe, Unknown Occupants, and Farm Credit were also named as defendants.
{¶5} Appellants Carl and Vera Pertuset alleged ownership of personal prоperty, family heirlooms, and livestock which remained at the farm on
{¶6} The complaint further alleged that after Appellants were removеd on January 15, 2015, Appellees allegedly caused the Appellants’ personal property and livestock to be removed and/or destroyed. Farm Credit took possession of the Frick sawmill. Aрpellants alleged injury and damage as a result of Appellees’ wrongful conduct. Appellants demanded judgment in their favor on the basis of wrongful conversion, compensatory and punitive damаges, costs and attorney fees.
{¶7} Appellees filed a timely answer and counterclaim against Appellants. On December 14, 2015, Appellees filed a Motion to Deposit Money into Court Registry. In the motion, Appellees informed that at the time they took possession of the property livestock remained on the premises. Appellees were unfamiliar with and unequipped to care for the livestock. Therefore, Appellees sold the livestock at auction and were in
{¶8} Farm Credit filed a timely answer and counterclaim against Jake Pertuset. Written discovery ensued. The matter was eventually scheduled for jury trial, continued, and rescheduled several times. On June 3, 2016, Appellants filed an amended complaint asserting an additional claim for replevin. Farm Credit again filed a timely answer and counterclаim. Appellees, however, filed a motion to strike and request for hearing. Appellees argued that Appellants’ amended complaint was not properly before the court and was rеquired to be stricken from the record pursuant to
{¶9} Appellants filed a memorandum in opposition to the motion to strike the amended complaint. Apрellants asserted that during a May 5, 2016 hearing in chambers their attorney requested leave to file the amended
{¶10} In August 2016, Farm Credit filed a motion for summary judgment. Generally, Farm Credit moved the court to dismiss Appellants’ amended complaint as to Farm Credit because Farm Credit was the legal owner of the Frick sawmill as adjudicated in the foreclosure case. As such, Farm Credit concluded that Jake Pertuset‘s claims were barred by the doctrine of res judicata.
{¶11} Also in August 2016, Appellants’ counsel, Attorney Bruce Broyles, filed a motion for leave to withdraw аs counsel for Appellants. In September 2016, the trial court granted Attorney Broyles’ motion. Appellants obtained new trial counsel, Attorney Cantrell, in November 2016. The matter proceeded with written discovery and depositions. A jury trial was scheduled for July 23, 2018.
{¶12} In May 2017, Appellees’ counsel was permitted to withdraw and Attorney Rodeheffer undertook representation of Appellees.
{¶13} On May 31, 2018, Appellees filed a motion for summary judgment. Appellants filed a memorandum contra to the motion for summary judgment. On September 20, 2018, the trial court granted judgment in favоr of Appellees. On October 3, 2018, Appellees voluntarily dismissed their counterclaims against Appellants.
{¶14} On October 11, 2018, Appellants timely appealed the trial court‘s decision granting summary judgment.
A. STANDARD OF REVIEW
{¶15} In Stepp v. Starrett, 4th Dist. Vinton No. 18CA714, 20019-Ohio-4707, this court recently observed at ¶ 3:
Aрpellate courts “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of appeals within thе district[.]” Section 3(B)(2), Article IV, Ohio Constitution ; see alsoR.C. 2505.03(A) . If a court‘s order is not final and appealable, we have no jurisdiction to review the matter and must dismiss the appeal. Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio-4755, at ¶ 11. If the parties do not raise the jurisdictional issue, we must raise it sua spоnte. Ray v. Wal-Mart Stores, Inc., 4th Dist. Washington No. 10CA27, 2011-Ohio-5142, ¶ 8 citing Sexton v. Conley, 4th Dist. Scioto No. 99CA2655, 2000 WL 1137463, (Aug. 7, 2000), at *2.
A. LEGAL ANALYSIS
{¶16} Appellants have appealed from the trial court‘s Decision & Order entered September 20, 2018. The trial court found as follows:
It is hereby Ordered, that upon their motion for summary judgment, defendants Brandon Hull and Jeana Hull are granted judgment in their favor and against all plaintiffs on all counts of plaintiffs’ amended complaint.
{¶17} The trial court‘s decision made no ruling relative to the distributiоn of the $19,723.51 in funds deposited with the court in June 2016. As a result, we find the trial court‘s September 20, 2018 Decision & Order, which granted Appellees summary judgment as to all claims against them, does not constitute a final apрealable order. See Kilcoyne Properties, LLC v. Fischbach, 5th Dist. Licking No. 02CA107, 2003-Ohio-2751, at ¶ 19. Thus we have no jurisdiction to consider the appeal. It is hereby dismissed.
APPEAL DISMISSED
It is ordered that the APPEAL BE DISMISSED. Costs shall be divided equally between the parties.
The Court finds there were reasоnable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. and Hess, J., concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding 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.