[Cite as Fannie Mae v. Hicks, 2018-Ohio-1831.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 105550



                                        FANNIE MAE
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       LYNDA HICKS
                                                       DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-11-746293


        BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED: May 10, 2018
ATTORNEY FOR APPELLANT

John Wood
281 Corning Drive
Bratenahl, Ohio 44108


ATTORNEYS FOR APPELLEE

John E. Codrea
David B. Bokor
Matthew P. Curry
Edward M. Kochalski
Matthew J. Richardson
Justin M. Ritch
Manley, Deas & Kochalski, L.L.C.
P.O. Box 165028
Columbus, Ohio 43216

For JP Morgan Chase Bank, N.A.

Maria A. Citeroni
Stephen D. Williger
Nicole K. Wilson
Thompson & Hine, L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114

Laura Hauser
Hauser Law Office
3713 Longwood Court
Cleveland, Ohio 44118

Nelson M. Reid
Anne Marie Sferra
Bricker & Eckler, L.L.P.
100 South Third Street
Columbus, Ohio 43215
EILEEN T. GALLAGHER, P.J.:

      {¶1} Defendant-appellant, Lynda Hicks, appeals the denial of her request for

damages sustained by her property as a result of a judgment in foreclosure that was

subsequently vacated. She claims the following sole assignment of error:

      Where a rental is wrongfully taken in foreclosure for a period of years by a
      party with no interest, and the Court of Appeals orders return of the
      property to the rightful owner and for the trial court to conduct proceedings
      consistent with the appellate ruling, it was an abuse of discretion for the
      trial court, who wrongly ordered the foreclosure, to refuse to consider the
      motion for damages inflicted by the party in error upon the innocent party.

      {¶2} We find merit to the appeal and reverse the trial court’s judgment.

                           I. Facts and Procedural History

      {¶3} In 2011, plaintiff-appellee, Federal National Mortgage Association (“Fannie

Mae”), filed a complaint in foreclosure against Hicks seeking foreclosure on a two-family

home that Hicks owned as a rental property. Both parties filed motions for summary

judgment. Fannie Mae conceded in its motion that the note on which its foreclosure

claim was predicated was lost, but argued it was nevertheless entitled to foreclosure on

Hicks’s property because it was the assignee of the mortgage on the property. Hicks

argued that Fannie Mae was not legally entitled to foreclosure without the missing note.

      {¶4} The trial court granted Fannie Mae’s motion, denied Hicks’s motion, and

entered judgment in foreclosure in favor of Fannie Mae. On appeal, we concluded that

the assignment of the mortgage to Fannie Mae, by itself, was insufficient to sustain an

action in foreclosure and reversed the trial court’s judgment. Fannie Mae v. Hicks, 8th
Dist. Cuyahoga No. 102079, 2015-Ohio-1955 (“Hicks I”). However, while the appeal

was pending, Hicks’s property was sold in a sheriff’s sale to Fannie Mae for a $110,000

credit bid, representing the amount of the debt owed on the property. Hicks did not

request a stay of the confirmation of sale, but moved for a stay of distribution of the sale

proceeds pending our decision in her appeal. The trial court denied her motion. One

week later, Fannie Mae was issued a deed to the property, which was recorded in June

2015.

        {¶5} Following release of this court’s decision in Hicks I, Hicks filed a motion

seeking restitution from Fannie Mae in the amount of $110,000, the foreclosure price of

the property. Fannie Mae opposed the motion, asking the court to instead vacate the

confirmation of sale pursuant to Civ.R. 60(B) and return the property to Hicks. The trial

court denied Fannie Mae’s motion to vacate the confirmation of sale and ordered Fannie

Mae to pay Hicks $110,000 in restitution. This time Fannie Mae appealed the trial

court’s judgment.

        {¶6} In the second appeal, we determined that the trial court erred by not vacating

the foreclosure sale and by ordering Fannie Mae to pay Hicks $110,000 in restitution.

Fannie Mae v. Hicks, 8th Dist. Cuyahoga No. 103804, 2016-Ohio-8484, ¶ 19

(“Hicks II”). Following release of this court’s decision but before the file was returned

to the trial court, Hicks filed a motion styled “Motion for Conference to Determine the

Effect of Setting Aside an Order of Sale,” seeking to recover damages sustained while

Fannie Mae had possession of her property. Hicks alleged that Fannie Mae failed to
secure, maintain, and winterize the home, and that the property “wasted significantly from

its pre-sale condition.” (Motion for Conference to Determine the Effect of Setting Aside

an Order of Sale at 2.) Hicks alleged, among other things, that two water heaters and a

furnace were broken, tenants left the property, and a squatter was now inhabiting one of

the units. Hicks also alleged that after it was determined that Fannie Mae had no right to

foreclosure in 2015, it continued to demand payment from Hicks “through much of

2016.” (Motion for Conference to Determine the Effect of Setting Aside an Order of

Sale at 3.)

       {¶7} In a journal entry denying Hicks’s motion for damages, the court stated:

       Motion * * * for hearing is denied. The Clerk of Courts of the Eighth
       District Court of Appeals has not returned the filed. [sic] Also, Lynda
       Hicks’s motion is premature because Hicks can appeal the Eighth District’s
       entry and opinion to the Ohio Supreme Court.

Hicks now appeals the trial court’s judgment.

                                 II. Law and Analysis

       {¶8} In her sole assignment of error, Hicks argues the trial court erred in denying

her request for a hearing on damages.

       {¶9} Before addressing the merits of Hicks’s argument, we must resolve the

procedural issues raised in Fannie Mae’s appellee brief. Fannie Mae contends the trial

court properly denied Hicks’s motion for damages because (1) the trial court lacked

jurisdiction to rule on her motion while her appeal was pending, and (2) Hicks failed to

seek a stay of the trial court’s execution of this court’s mandate in Hicks II while her
appeal in the Ohio Supreme Court was pending. Neither of these procedural claims

justified the trial court’s denial of Hicks’s motion for a hearing on damages.

       {¶10} The general rule of law is that the trial court loses jurisdiction to take action

in a cause after an appeal has been taken and decided except “to take action in aid of the

appeal, until the case is remanded to it by the appellate court.” State ex rel. Special

Prosecutors v. Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 97, 378

N.E.2d 162 (1978). Still, the trial court retains jurisdiction over issues “not inconsistent

with the appellate court’s jurisdiction to reverse, modify, or affirm the judgment from

which an appeal is taken.” Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 44, 553

N.E.2d 1354 (1990).

       {¶11} In State v. Drake, 8th Dist. Cuyahoga No. 105908, 2017-Ohio-7328, we

explained that where a court lacks jurisdiction to rule on a motion due to a pending

appeal, the trial court lacks authority to deny the motion and must hold the motion in

abeyance until the appeal is decided. Id. at ¶ 4. Therefore, if an appeal was pending

when Hicks filed her motion for a hearing on damages, the trial court should have held

the motion in abeyance rather than denying it as premature. Id.

       {¶12} Moreover, this court released its decision in Hicks II on December 29, 2016.

 Hicks filed her motion for damages on January 12, 2017, two weeks after the appeal was

decided. And because Hicks did not file a notice of appeal to the Ohio Supreme Court

until March 9, 2017, there was no pending appeal that prevented the court ruling on her
motion. Therefore, the trial court erred in denying Hicks’s motion on grounds that this

court had not yet returned the file and the motion was premature.

       {¶13} Hicks argues, citing Heatherstone Homeowners Assn. v. Conrad, 10 Ohio

Misc.2d 18, 461 N.E.2d 35 (C.P. 1983), that she is entitled to damages sustained by the

property while it was in Fannie Mae’s possession. In Heatherstone, defendants Thomas

and Sharon Conrad owned a condominium that was a member of the Heatherstone

Homeowners Association. Members periodically owed condominium association fees to

Heatherstone.

       {¶14} The Conrads’ interest in their condominium was sold to a third party at a

sheriff’s sale. The sale was later vacated, and Heatherstone claimed the Conrads owed

fees that accrued while the property was in possession of the third party. In deciding

whether the Conrads were liable to Heatherstone for fees incurred while the property

belonged to a third party, the court held that

       [i]f a purchaser, who was released in good faith because of a defect in title,
       is entitled to have the amount paid by him returned, he should be liable for
       any expenses incurred during the time in his possession.

Id. at 18, citing 50 Corpus Juris Secundum, Judicial Sales, Section 68, at 692 (1947).

Thus, the Heatherstone court held that the purchaser was liable for expenses incurred to

the property during the time the property was in the purchaser’s possession.   Id.

       {¶15} Hicks argues this logic should apply to damages she incurred while her

property was in Fannie Mae’s possession. Indeed, the trial court has broad discretion in

equitable matters to fashion a fair and just remedy. Williams v. Schneider, 8th Dist.
Cuyahoga Nos. 104201, 104206, and 104232, 2018-Ohio-968, ¶ 72, citing McDonald &

Co. Secs. v. Alzheimer’s Disease & Related Disorders Assn., 140 Ohio App.3d 358, 747

N.E.2d 843, ¶ 16-18 (1st Dist.2000).

       {¶16} Hicks claims Fannie Mae failed to maintain and secure the property and that

its neglect caused damage to the property and loss of rents from tenants.       Fannie Mae

knew, or should have known, that Hicks had an appeal pending and that the house could

be returned to her. And since Fannie Mae had possession and control of the property, it

had the power to preserve and protect the property from damage; Hicks did not.

Therefore, equitable principles of fairness require that Hicks have an opportunity to

present a claim for damages against Fannie Mae in the trial court, and the trial court erred

in dismissing her motion.

       {¶17} The sole assignment of error is sustained.

       {¶18} Judgment reversed and case remanded to the trial court to allow Hicks to

present a damages claim against Fannie Mae.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR
