[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]

                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


FAHEY BANKING COMPANY                            )       CASE NO. 11 MA 178
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )       OPINION
                                                 )
CAROLE SQUIRE, et al.                            )
                                                 )
        DEFENDANTS-APPELLANTS                    )


CHARACTER OF PROCEEDINGS:                                Civil Appeal from the Court of Common
                                                         Pleas of Mahoning County, Ohio
                                                         Case No. 10 CV 3723

JUDGMENT:                                                Affirmed. Summary Judgment
                                                         Arguments Dismissed.

APPEARANCES:
For Plaintiff-Appellee:                                  Atty. Michael N. Schaeffer
                                                         Atty. Scott N. Schaeffer
                                                         Atty. Richard G. Murray, II
                                                         Kemp, Schaeffer & Rowe Co., LPA
                                                         88 West Mound Street
                                                         Columbus, Ohio 43215

For Defendants-Appellants:                               Percy Squire, Pro se
                                                         Percy Squire Co., LLC
                                                         341 S. Third Street, Suite 101
                                                         Columbus, Ohio 43215

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                         Dated: September 14, 2012
[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]
VUKOVICH, J.


        {¶1}    Defendant-appellant Percy Squire appeals the decision of the

Mahoning County Common Pleas Court denying his Civ.R. 60(B) motion to vacate

the grant of summary judgment for plaintiff-appellee Fahey Banking Company.

Although Squire is appealing the trial court’s denial of his Civ.R. 60(B) motion, his

assignment of error and arguments focus solely on the propriety of the summary

judgment and decree of foreclosure order. Squire did not timely appeal that order,

thus the arguments presented are not reviewable. Furthermore, as to the propriety of

the trial court’s ruling on the Civ.R. 60(B) motion, the brief does not contain any

arguments concerning the correctness or lack thereof of the denial of his Civ.R. 60(B)

motion. Therefore, as there are no arguments before us concerning the denial of his

Civ.R. 60(B) motion, we will uphold that determination.     Consequently, for those

reasons and the ones discussed below, the trial court’s Civ.R. 60(B) ruling is

affirmed, however, the arguments regarding the trial court’s grant of summary

judgment for Fahey Banking Company are dismissed as untimely.

                                  STATEMENT OF THE CASE

        {¶2}    On September 27, 2010, Fahey Banking Company filed a complaint in

foreclosure on note and mortgage against Percy and Carole Squire.              In the

complaint, Fahey alleged that in August 1995, the Squires executed a promissory

note for $115,00.00. As security for the payment of the note, the Squires executed

and delivered to Fahey Banking Company a mortgage deed to the premises located

at 3405 Kiwatha Road, Youngstown, Ohio. Complaint ¶8. It is alleged that the

Squires have defaulted in the payment on the note.
                                                                                     -2-

       {¶3}   The Squires filed their answer and admitted that a loan had been

secured on the property, but denied that they were in default.

       {¶4}   Thereafter, Fahey Banking Company filed a motion for default judgment

and summary judgment. It attached documentation showing that the Squires were in

default on the loan and that it was exercising its option to accelerate the loan.

       {¶5}   The Squires filed a Civ.R. 56(F) motion for an extension of time to file a

memorandum in opposition to the Fahey Banking Company’s motion for summary

judgment. In conjunction with that motion the Squires filed their first set of discovery

requests. The trial court granted the Squires an extension of time and ordered them

to file their memorandum in opposition within 30 days following Fahey Banking

Company’s response to the discovery requests.

       {¶6}   In May 2011, Fahey Banking Company filed a notice of service of

responses to discovery and asked the trial court to make a ruling on its motion for

summary judgment. In that motion it indicated that it had hand-delivered the Squires

its responses to discovery on March 30, 2011. Thus, it concluded that the time for

filing a motion in opposition to summary judgment expired on April 30, 2011.

       {¶7}   An oral hearing on the summary judgment motions occurred at 1:30

p.m. on June 22, 2011.       The Squires failed to appear.       The trial court granted

summary judgment for Fahey Banking Company and entered a judgment entry and

decree of foreclosure on the Kiwatha Road property.            6/22/11 J.E. (Summary

judgment and decree of foreclosure order).
                                                                                 -3-

      {¶8}   After the hearing had concluded, the Squires faxed a motion requesting

leave to file a response to Fahey Banking Company’s motion for summary judgment

by June 27, 2011. The trial court denied that request. 6/23/11 J.E.

      {¶9}   The Squires did not appeal the June 22, 2011 ruling.       Instead, the

Squires filed a Civ.R. 60(B) motion to vacate that judgment. 7/01/11 Motion. In the

motion, they admitted to knowing about the hearing, but contended that due to their

inadvertence they believed the hearing was a non-oral hearing. They also claimed

that they have a meritorious defense because Fahey Banking Company did not

comply with 12 U.S.C. 1701x(c)(5). Fahey Banking Company opposed the motion to

vacate. 7/11/11 Motion.

      {¶10} The trial court denied the motion to vacate. The Squires filed a timely

notice of appeal from that judgment.

                             ASSIGNMENT OF ERROR

      The trial court erred when it granted Appellee’s summary judgment

      motion. Despite Appellant failing to timely respond to Appellee’s Motion

      for Summary Judgment, Appellee was not entitled to judgment as a

      matter of law by reason of failure to comply with the provisions of 12

      U.S.C. §1701x(c)(5).

      {¶11} As aforementioned, Squire filed a timely notice of appeal from the trial

court’s denial of his Civ.R. 60(B) motion to vacate the grant of Fahey Banking

Company’s motion for summary judgment. Attached to the notice of appeal is the

trial court’s judgment denying the Civ.R. 60(B) motion. However, in the appellate
                                                                                        -4-

brief, the only arguments made concern the correctness of the summary judgment

and order of foreclosure ruling; there is no analysis or discussion, even in the

slightest, regarding the Civ.R. 60(B) ruling. Nowhere in Squire’s argument does he

state that the trial court abused its discretion in denying the Civ.R. 60(B) ruling.

Instead, he discusses the standard of review for summary judgment, which is de

novo. He does not list the three requirements which must be shown to entitle a party

to Civ.R. 60(B) relief that were espoused by the Ohio Supreme Court in GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113

(1976). Instead, he discusses whether there is a genuine issue of material fact,

which is the Civ.R 56 summary judgment test. Thus, while the denial of the Civ.R.

60(B) motion was timely appealed, the only issues raised to this court concern the

propriety of the summary judgment ruling.

       {¶12} However, we lack jurisdiction to review these arguments because a

timely notice of appeal was not filed from the grant of summary judgment and decree

of foreclosure. The grant of summary judgment and decree of foreclosure disposed

of all claims and thus, constituted a final appealable order which Squire could have

appealed from. See PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-

3370, ¶18; Second Nat. Bank of Warren v. Walling, 7th Dist. No. 01CA62, 2002-

Ohio-3852. The record clearly indicates that Squire filed the notice of appeal 105

days after the summary judgment and decree of foreclosure order. As such, it was

filed outside the 30-day time limit prescribed by the App.R. 4(A). An appellant's

failure to file a timely notice of appeal renders the court of appeals without jurisdiction
                                                                                     -5-

and authority to entertain the appeal. State v. Bell, 8th Dist. No. 87727, 2007–Ohio–

3276, ¶24.

      {¶13} Squire cannot use the order denying his motion to vacate as a means

to extend the time for filing an appeal from the grant of summary judgment and

decree of foreclosure order.     The filing of a Civ.R. 60(B) motion for relief from

judgment does not extend the time for perfecting an appeal from the original

judgment. Key v. Mitchell, 81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998). Any claims

or arguments that could have been raised in a timely appeal are precluded from

being raised in a subsequent Civ.R. 60(B) motion, because it is the function of the

appellate court to correct legal errors committed by the trial court. Id. See also

Burgess v. Safe Auto, 2d Dist. No. 20941, 2005-Ohio-6829, ¶32 (arguments

regarding the propriety of a trial court's summary judgment motion have no place in a

Civ. R. 60(B) motion).

      {¶14} Therefore, since the notice of appeal was not timely as to the summary

judgment and decree of foreclosure order, we are without jurisdiction to consider

issues that are raised in this appeal regarding that order. See State ex rel. Pendell v.

Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988).

Consequently, those arguments are dismissed as untimely.

      {¶15} As to the propriety of the trial court’s denial of the Civ.R. 60(B) motion

to vacate, as aforementioned that decision was timely appealed. However, Squire

does not present any arguments to this court as to why this decision was not correct.
                                                                                    -6-

It is not this court’s function to create arguments for an appellant. Accordingly, we

affirm the trial court’s decision.

       {¶16} In conclusion, the trial court’s Civ.R. 60(B) ruling is affirmed, however,

the arguments regarding the trial court’s grant of summary judgment for Fahey

Banking Company are dismissed since this court lacks jurisdiction to due to the

untimely appeal.


Donofrio, J., concurs.

DeGenaro, J., concurs.
