[Cite as Acacia on the Green Condo Assn. v. Jefferson, 2014-Ohio-2399.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100443



              ACACIA ON THE GREEN CONDO. ASSN.
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                         JEVAUN JEFFERSON, ET AL.
                                                          DEFENDANTS-APPELLEES

                      [APPEAL BY TED PROPERTIES, L.L.C.
                                                          DEFENDANT-APPELLANT]



                                           JUDGMENT:
                                            DISMISSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-08-656304

        BEFORE: McCormack, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: June 5, 2014
ATTORNEYS FOR APPELLANT

Joseph J. Straka
Morscher & Straka
11711 Lorain Ave. #56
Cleveland, OH 44111

Gregory W. Happ
P.O. Box 546
Medina, OH 44258


ATTORNEYS FOR APPELLEES

For Acacia on the Green Condo. Assn.

M. Katherine Bushey
Kaman & Cusimano, L.L.C.
50 Public Square
Suite 2000
Cleveland, OH 44113

Joni Todd
Macallister A. West
Sikora Law L.L.C.
8532 Mentor Ave.
Mentor, OH 44060

For First Horizon Home Loans

Michael J. Sikora, III
Sikora Law L.L.C.
8532 Mentor Ave.
Mentor, OH 44060

Richard T. Craven
Sikora Law L.L.C.
88 West Main Street
Columbus, OH 43215

For First Horizon Home Loans (continued)
 Anita L. Maddix
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, OH 45201

For Jevaun Jefferson

Michael L. Nelson
55 Public Square
Suite 1500
Cleveland, OH 44113

For John Doe, Unknown Spouse

John Doe
Unknown Spouse of
Jevaun Jefferson
183 Millstream Court
Copley, OH 44321

For Plymouth Park Tax Service, L.L.C.

Leonard A. Cuilli
Keith D. Weiner & Associates Co., L.P.A.
75 Public Square, 4th Floor
Cleveland, OH 44113




TIM McCORMACK, J.:
       {¶1} Defendant-appellant, TED Properties, L.L.C. (“TED”), appeals from the

judgment of the trial court granting defendant-appellee First Horizon Home Loans’

(“First Horizon”) motion for summary judgment regarding lien priority. We dismiss for

lack of a final, appealable order.

       {¶2} On April 9, 2008, Acacia on the Green Condominium Association, Inc.

(“Acacia”), filed a complaint for foreclosure against the prior owner, defendant Jevaun

Jefferson, and First Horizon, seeking foreclosure of its lien on the real property located at

2112 Acacia Drive, Lyndhurst, Ohio.         First Horizon filed an answer as well as a

cross-claim against TED, alleging that it had a valid and subsisting lien on the property.

Thereafter, First Horizon moved the court for summary judgment on the issues of

foreclosure, lien priority, and equitable subrogation. TED responded with a motion for

summary judgment of its own.         The trial court referred the matter to the court’s

magistrate for disposition.

       {¶3} The undisputed facts in the record demonstrate as follows: Sal Culotta

purchased the Lyndhurst property in June 2005. Culotta granted two mortgages on the

property — the first to Mortgage Electronic Registration Systems, Inc. (“MERS”), as

nominee for People’s Choice Home Loan, Inc., and the second to TED. The MERS

mortgage and the TED mortgage were recorded on June 27, 2005. Jevaun Jefferson then

purchased the property from Culotta by warranty deed, which was recorded on July 27,

2007. Jefferson then granted a mortgage to MERS as nominee for First Horizon, the

proceeds from which were used to satisfy the Culotta mortgage to MERS, as nominee for
People’s Choice Home Loan, Inc. The First Horizon mortgage was recorded on July 27,

2007.    After Acacia filed its complaint, Jefferson defaulted on the First Horizon

mortgage. The parties agree that TED’s mortgage was recorded prior to First Horizon’s

mortgage. Finally, the record shows that Acacia’s lien was recorded in January 2008.

        {¶4} The magistrate issued its decision on September 18, 2012, denying First

Horizon’s motion for summary judgment against TED and granting TED’s motion for

summary judgment against First Horizon with respect to lien priority. The magistrate

found that TED’s mortgage was a valid mortgage, First Horizon had constructive or

actual knowledge of TED’s mortgage, and TED had priority over First Horizon’s

mortgage. The magistrate further found that plaintiff, Acacia, had a “good, valid and

subsisting lien upon the premises.” Notably, the magistrate’s decision did not expressly

state the priority of Acacia’s lien. The magistrate then entered an order of foreclosure.

First Horizon filed objections to the magistrate’s decision.

        {¶5} On August 29, 2013, the trial court entered an opinion and order sustaining

First Horizon’s objections, finding that TED’s mortgage did not include any description

of the land and, therefore, did not have priority over First Horizon’s subsequently and

properly recorded mortgage.       The court stated that “the Magistrate’s decision of

September 18, 2012, is affirmed in all respects except as to the matter of lien priority.”

The court then ordered that “the Sheriff and Clerk of Courts are to follow the order of the

Magistrate’s Decision of September 18, 2012, while making any necessary adjustments

accordingly with regard to the sustaining of Defendant First Horizon’s objections to said
decision.” The trial court did not expressly enter judgment for foreclosure or order sale

of the property. Further, it did not expressly hold that First Horizon had the first and best

lien.

        {¶6} On appeal, TED raised four assignments of error, alleging the trial court

erred in sustaining First Horizon’s objections to the magistrate’s decision. This court,

however, sua sponte ordered the parties to brief the issue whether the trial court’s order is

a final, appealable order. Both TED and First Horizon responded, contending that it is a

final order with respect to the determination of the priority of liens.

        {¶7} Appellate courts have jurisdiction to review and affirm, modify, or reverse

judgments or final orders from lower courts. Ohio Constitution, Article IV, Section

3(B)(2); R.C. 2505.02. Therefore, “‘[i]f an order is not final, then an appellate court has

no jurisdiction.’” CitiMortgage, Inc. v. Roznowski, Slip Opinion No. 2014-Ohio-1984,

¶ 10, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d

266 (1989). A trial court’s order is a final, appealable order only if the requirements of

both R.C. 2505.02 and Civ.R. 54(B), if applicable, are satisfied. State ex rel. Scruggs v.

Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5.

        {¶8} Where a trial court reviews objections to a magistrate’s decision, the trial

court’s journal entry must be a “‘separate and distinct instrument from that of the

magistrate’s order and must grant relief on the issues originally submitted to the court,’”

in order to constitute a final, appealable order. Wells Fargo Bank, N.A. v. Allen, 8th Dist.

Cuyahoga No. 96611, 2012-Ohio-175, ¶ 7, quoting Flagstar Bank, F.S.B. v. Moore, 8th
Dist. Cuyahoga No. 91145, 2008-Ohio-6163, ¶ 1. In other words, the trial court must

enter its own judgment including “‘a clear pronouncement of the trial court’s judgment

and a statement of the relief granted by the court.’”         Deutsche Bank Natl. Co. v.

Caldwell, 196 Ohio App.3d 636, 2011-Ohio-4508, 964 N.E.2d 1093, ¶ 7 (8th Dist.),

quoting Flagstar Bank at ¶ 8.

       {¶9} This court recently reiterated that a trial court’s order must specify the relief

afforded the parties in order to conclude the matter:

       To terminate the matter, the court’s order must contain a statement of the

       relief granted to the parties. Harkai v. Scherba Industries, Inc., 136 Ohio

       App.3d 211, 216, 736 N.E.2d 101 (9th Dist.2000). A judgment that does

       not specify the relief granted does not terminate the action and does not

       constitute a final, appealable order. Id. at 221. Furthermore, a judgment

       that requires the parties to refer to other documents does not constitute a

       final, appealable order. Golden Goose Properties v. Daniel Leizman, 8th

       Dist. Cuyahoga No. 99937, 2013-Ohio-5438,            ¶ 7, citing Stumph Rd.

       Properties [v. Vargo, 8th Dist. Cuyahoga No. 89811, 2008-Ohio-1830,] at ¶

       13.

Bykova v. McBrayer, 8th Dist. Cuyahoga No. 100172, 2013-Ohio-5745, ¶ 3.

       {¶10} Generally, a determination that a party has the first and best lien is a final,

appealable order. Queen City S. & L. Co. v. Foley, 170 Ohio St. 383, 165 N.E.2d 633

(1960), paragraph one of the syllabus.          Where the trial court fails to make a
determination as to the priority of liens, however, the trial court’s order of foreclosure and

sale is not a final, appealable order and any appeal taken from that order must be

dismissed in accordance with Civ.R. 54(B). Wells Fargo Bank, N.A. at ¶ 10, citing

Culkar v. Fanter, 8th Dist. Cuyahoga No. 48151, 1984 Ohio App. LEXIS 12092 (Dec.

27, 1984).

       {¶11} Here, the parties argue that the trial court’s order of August 29, 2013, made

a determination with respect to the priority of liens. However, while the order arguably

determined that First Horizon had first priority, the order does not include a clear

pronouncement of that determination.       Although the trial court clearly held that the

recordation of TED’s mortgage did not provide it with priority over subsequently

recorded mortgages, we are left to presume that in making this statement, the court

intended to conclude that First Horizon therefore has the first and best lien.           This

presumption, while logical, is not supported by an express statement of the relief granted

the parties.

       {¶12} Moreover, the court’s order does not specifically address Acacia’s lien.

While it is undisputed that Acacia’s lien was filed later than TED’s and First Horizon’s

liens, we cannot assume that Acacia’s lien is inferior to them for purposes of the court’s

entering a final judgment, especially considering that the magistrate’s decision did not

expressly state the priority of Acacia’s lien and the court expressly excepted the

magistrate’s decision regarding lien priority from its order. Finally, the trial court did not
enter in its order of August 29, 2013, the order of foreclosure included in the magistrate’s

decision.

       {¶13} In light of the above, we find that the trial court’s order “to follow the order

of the Magistrate’s Decision of September 18, 2012, while making any necessary

adjustments accordingly with regard to the sustaining of Defendant First Horizon’s

objections to said decision” is not a final, appealable order. This court therefore lacks

jurisdiction and we must dismiss the appeal.

       It is ordered that appellees recover of appellant costs herein taxed.

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

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
KEYWORDS:

Acacia on the Green Condo. Assn. v. Jevaun Jefferson, et al., Appeal No. 100443

Final, appealable order; foreclosure; lien priority; magistrate’s decision. Where the trial
court failed to make an express determination as to the priority of liens in a foreclosure
action and required the parties to refer to the magistrate’s decision, its order is not a final,
appealable order. This court has no jurisdiction and must therefore dismiss the appeal.
