THE STATE EX REL. MIDWEST PRIDE IV, INC., APPELLANT, v. PONTIOUS, JUDGE, APPELLEE.
No. 95-1297
Supreme Court of Ohio
June 5, 1996
75 Ohio St.3d 565 | 1996-Ohio-459
Submitted April 15, 1996. APPEAL from the Court of Appeals for Fayette County, No. CA94-09-008.
{¶ 1} According to its complaint, Midwest Pride IV, Inc. (“M.P.”), appellant, was the successful bidder for real property at a sheriff’s sale in Fayette County. Fayette County Common Pleas Judge Victor D. Pontious, Jr., appellee, ordered the sheriff’s sale in Jean Palmer, Treasurer of Fayette County v. Bobby Ward et al., case No. CIV930138, due to Bobby and Betty Ward’s failure to pay delinquent real estate taxes. The other defendants in the foreclosure action were Roger’s Roadside Inns of America, Inc., a mortgagee, and Ohio Motor Inns, Inc., which did not pursue any claim in the premises.
{¶ 2} Prior to the sheriff’s sale, three different appraisers estimated the value of the property at $50,000 pursuant to
{¶ 3} On August 2, 1994, before confirmation of the sale pursuant to
{¶ 4} On August 29, 1994, several days before the scheduled hearing, Judge Pontious granted the treasurer’s motion and set aside the sale, finding that “statements made to the appraisers prior to the taking of bids may have prejudiced the bidding.” The judge granted the motion by an entry approved and filed by attorneys for the treasurer and Ward. The day after this filing, M.P. filed a motion to intervene and a “proposed” complaint seeking confirmation of the sale. Judge Pontious denied the motion to intervene by entry filed on October 19, 1994, noting that M.P. had not timely responded to the set-aside motion.
{¶ 5} On September 26, 1994, M.P. sought a writ of mandamus to compel Judge Pontious to vacate the order setting aside the sale and to conduct a hearing on the treasurer’s motion. M.P. claimed it could prove the appraisers had not been influenced by erroneous information and that erroneous information had not been announced at the sale. Judge Pontious answered the complaint, admitting the proceedings in the underlying foreclosure action, and later filed combined motions for summary judgment, judgment on the pleadings, and dismissal. The Court of Appeals for Fayette County granted the motion for dismissal, finding that M.P. had no right to a hearing under
{¶ 6} The cause is now before this court upon an appeal as of right.
Berkman, Gordon, Murray & DeVan, J. Michael Murray, Lorraine R. Baumgardner and Jeremy A. Rosenbaum, for appellant.
John H. Wead, for appellee.
Per Curiam.
{¶ 7} For a writ of mandamus to issue, the relator must possess a clear legal right to the respondent’s performance of a clear legal duty and have no adequate remedy in the ordinary course of law. State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas (1995), 73 Ohio St.3d 19, 20, 652 N.E.2d 179, 181. The court of appeals dismissed this cause on the grounds that
{¶ 8} In authorizing the transfer of property upon confirmation of a sheriff’s sale,
{¶ 9} “Upon the return of any writ of execution for the satisfaction of which lands and tenements have been sold, on careful examination of the proceedings of the officer making the sale, if the court of common pleas finds that the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61, inclusive, of the Revised Code, it shall direct the clerk of the common pleas court to make an entry on the journal that the court is satisfied of the legality of such sale and that the officer make to the purchaser a deed for the lands and tenements.” (Emphasis added.)
{¶ 10} M.P. argues that the emphasized language confers a statutory right to a hearing on the successful bidder at a sheriff’s sale. We disagree. In Union Bank Co. v. Brumbaugh (1982), 69 Ohio St.2d 202, 208, 23 O.O.3d 219, 223, 431 N.E.2d 1020, 1025, we recognized that “[t]here is no statutory dictate that a hearing be held [after a sheriff’s sale].” Thus, the court of appeals correctly concluded that
{¶ 11} M.P. also seems to assert a due process right to a hearing prior to confirmation or vacation of a sheriff’s sale. M.P. provides no authority or analysis as to whether its successful bid was a property interest protected by the
{¶ 12} M.P. mainly relies on Reed v. Radigan (1884), 42 Ohio St. 292, as authority for its right as the successful bidder or “purchaser” to participate in proceedings to confirm or vacate a sheriff’s sale. Reed, at 294, quoted the statement in Ohio Life Ins. & Trust Co. v. Goodin (1860), 10 Ohio St. 557, 566, that “parties [to a foreclosure action]—the plaintiff, the defendant and the purchaser—may be heard” at the confirmation or vacation of a sheriff’s sale, and these cases have been cited to establish the successful bidder’s “right” to be heard on the issue of confirmation. See, e.g., Citizen’s Loan & Savings Co. v. Stone (1965), 1 Ohio App.2d 551, 553, 30 O.O.2d 584, 585, 206 N.E.2d 17, 19; Ohio Savings Bank v. Ambrose (1990), 56 Ohio St.3d 53, 57, 563 N.E.2d 1388, 1391 (Herbert R. Brown, J., dissenting). M.P. maintains that this “right” was acknowledged and left undisturbed by Ambrose, supra. The court of appeals correctly disagreed.
{¶ 13} Ambrose cited Reed for the premise that purchasers at a sheriff’s sale
{¶ 14} M.P., however, insists that since Ambrose, courts have continued to recognize the “right” of potential purchasers to participate in hearings prior to vacation or confirmation. M.P. cites one relevant case -- Federal Home Loan Mtge Corp. v. Slagle (Dec. 4, 1992), Lake App. Nos. 92-L-022 and 92-L-035, unreported. In Slagle, two bidders each asserted that their bid had been accepted by the deputy sheriff conducting the sale, and both bidders were permitted to intervene, one of whom successfully moved to have the sale set aside. The Slagle court followed Ambrose as to the unavailability of any appeal for the purchasers, holding that this rule applied even though these purchasers had intervened and the purchasers in Ambrose had not. The court later found a right to participate in the confirmation proceedings that stemmed from Ambrose and Reed.
{¶ 15} But Slagle does not support M.P.’s right to a hearing under the facts alleged here. The purchasers in Slagle were granted leave to intervene; M.P. was not. Moreover, to read Slagle as recognizing a right to a hearing, irrespective of intervention, elevates the purchaser’s interest to a level Ambrose did not intend. Again, in referring to the purchaser as having “some type of interest in the proceedings prior to confirmation,” Ambrose hardly declared the purchaser’s absolute right to be heard. Id. at 54, 563 N.E.2d at 1389. Moreover, Ambrose affirmed the dismissal of an appeal from the vacation of a sheriff’s sale on the grounds that (1) the purchasers had “no interest in the property prior to confirmation,” id. at 55, 563 N.E.2d at 1390, and (2) “their failure to intervene as parties divested them of their capacity to appeal the decision of the trial court,” id. at 54, 563 N.E.2d at 1389-1390. Thus, Ambrose is consistent with a finding that the purchaser’s ability to participate in confirmation proceedings as a party, for any purpose, depends on the purchaser’s intervention.
{¶ 16} M.P.’s final argument on the issues of clear right and clear duty is essentially that Judge Pontious erred or abused his discretion by setting aside the sheriff’s sale ex parte and without evidence of irregularities. M.P. complains that
{¶ 17} Mandamus does not lie to control judicial discretion,
{¶ 18} The record before Judge Pontious contained the agreed entry of the treasurer and Ward that irregularities had occurred in the sheriff’s sale and had “prejudiced the bidding.” True, the unincluded parties to the foreclosure action might have objected to the entry; however, the entry still had evidentiary value. Judge Pontious thus permissibly relied on the agreed entry identifying irregularities in the sheriff’s sale. See, e.g., Merkle v. Merkle (1961), 116 Ohio App. 370, 22 O.O.2d 202, 188 N.E.2d 170 (court did not abuse its discretion in setting aside judicial sale by relying on disputed testimony of plaintiff that he intended to offer a more competitive bid).
{¶ 19} M.P. also assails the court of appeals’ procedural disposition, arguing that its complaint stated a cause of action sufficient to withstand a
{¶ 20} A reviewing court must examine the entire journal entry and the proceedings below where necessary to ascertain the precise basis of a lower court’s judgment. Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 95, 551 N.E.2d 172, 174. Here, the parties concur that the court of appeals reviewed Judge Pontious’s “Motion for Summary Judgment for the Respondent; Motion for Judgment for Respondent on Pleadings; Motion to Dismiss” as a
{¶ 21} We draw our conclusion first from the fact that Judge Pontious filed his tripartite motion after having answered the complaint. “[A] motion to dismiss filed after the pleadings have closed * * * is appropriately considered a motion for judgment on the pleadings pursuant to
{¶ 22} In the main, M.P. argues that the court of appeals did not comply with these standards by accepting its allegations as true and construing in its favor all reasonable inferences. M.P. cites only one example—the appellate court’s finding that “the parties in the underlying foreclosure action agreed to set aside the sale.” M.P. claims this finding contradicts the allegation that M.P. and Roger’s Roadside Inns of America, Inc. (a named defendant) did not sign the agreed entry of August 29, 1994.
{¶ 23} The absence of M.P.’s consent to the August 29, 1994 entry, however, was not material to the court of appeals’ conclusion that, after Ambrose, this successful bidder had no right to participate in the underlying foreclosure action. The allegation indicates that M.P. did not participate as a party, not that it was entitled to do so. Similarly, Judge Pontious’s failure to require a named defendant’s consent has no bearing on M.P.’s legal capacity to be heard.
{¶ 24} The court of appeals correctly determined that M.P., as the successful bidder at a sheriff’s sale, was not entitled to be heard prior to vacation of the sale. This legal conclusion is permissible under
{¶ 25} The court of appeals’ judgment, therefore, is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ., concur.