[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]


                                      COURT OF APPEALS
                                    HOLMES COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                    :   JUDGES:
ONE WEST BANK, FSB                                  :   William B. Hoffman, P.J.
                                                    :   Julie A. Edwards, J.
                        Plaintiff-Appellee          :   Patricia A. Delaney, J.
                                                    :
-vs-                                                :   Case No. 11CA013
                                                    :
                                                    :
JAMES MILLER, et al.,                               :   OPINION

                 Defendants-Appellants




CHARACTER OF PROCEEDING:                                 Civil Appeal from Holmes County
                                                         Court of Common Pleas Case No.
                                                         2009CV142

JUDGMENT:                                                Affirmed

DATE OF JUDGMENT ENTRY:                                  December 13, 2011

APPEARANCES:

For Plaintiff-Appellee                                   For Defendants-Appellants

RICHARD J. LOLLI                                         PAUL HERVEY, ESQ.
JUSTINE S. GREENFELDER                                   FRANK J. ROSE, JR., ESQ.
Buckingham, Doolitle &                                   Fitzpatrick, Zimmerman &
Burroughs, LLP                                           Rose Co., Ltd.
4518 Fulton Drive, N.W.                                  140 Fair Avenue, N.W.
P.O. Box 35548                                           P.O. Box 1014
Canton, Ohio 44735-5548                                  New Philadelphia, Ohio 44663
For Plaintiff-Appellee        For Defendants-Appellants

KEVIN L. WILLIAMS, ESQ.       EDWIN H. BREYFOGLE, ESQ.
Manley Deas, Kochalski, LLC   108 – 3rd Street, N.E.
P.O. Box 165028               Massillon, Ohio 44646
Columbus, Ohio 43216-5028

                              For Defendant

                              STEVE KNOWLING, ESXQ.
                              Holmes County Prosecutor’s Office
                              164 E. Jackson Street
                              Millersburg, Ohio 44654
[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]


Edwards, J.

        {¶1}    Appellant, The Commercial & Savings Bank, appeals a judgment of the

Holmes County Common Pleas Court finding that their lien is secondary to that of

appellee OneWest Bank, FSB.

                                  STATEMENT OF FACTS AND CASE

        {¶2}    In 2000, James and Rachel Miller purchased land in Sugarcreek, Ohio.

Funding came in the form of a $140,000.00 loan from Farm Credit Services secured by

a mortgage on the newly-purchased land.

        {¶3}    In 2003 and 2005, the Millers obtained two loans from appellant, also

secured by mortgages on the land. The 2003 loan was in the amount of $55,000 and

the 2005 loan was for $95,000.00. The $95,000.00 loan was refinanced later in 2005

through an agreement with appellant whereby the Millers’ roofing company also became

liable for repayment. This refinanced loan was treated as a new loan and assigned a

new number.

        {¶4}    In 2006, the Millers sought a loan from Quicken, intending to refinance

their existing loans. During a credit check, Quicken discovered the $140,000.00 loan

from Farm Credit Services in addition to the two loans from appellant.         Quicken

requested information regarding the balance of these loans in order to pay the balances

and have the lien on the property released, thus obtaining the first lien position.

Appellant mistakenly informed Quicken that the $95,000.00 loan was completely paid

off when in fact there was a balance. Quicken was informed that the $55,000.00 loan

had a remaining balance of $30,000.00.
Holmes County App. Case No. 11CA013                                                    3


       {¶5}   Quicken had approved the Millers for $264,000.00.       Quicken paid the

remaining balance on the Farm Credit Services loan and the $30,000.00 remaining on

the one loan with appellant. The remaining balance was given to the Millers. The

Millers defaulted on their loan with Quicken and Quicken assigned the loan to appellee.

       {¶6}   On August 17, 2009, appellee filed the instant complaint in foreclosure

against the Millers, appellant, National Association, and the Holmes County Treasurer.

Appellant claimed they have the primary mortgage on the sale of the property and are

first in line when the proceeds are distributed, as approximately $58,000.00 remains on

the 2005 loan for $95,000.00.

       {¶7}   Appellee filed a motion for summary judgment on the issue of lien

priorities. The trial court issued a summary judgment on May 26, 2010, finding appellee

to hold priority over appellant pursuant to the doctrine of equitable estoppel. Appellant

assigns a single error:

       {¶8}   “THE TRIAL COURT ERRED IN APPLYING THE THEORY OF

EQUITABLE SUBROGATION IN ADVANCING THE LIEN PRIORITY OF THE

PLAINTIFF-APPELLEE.”

       {¶9}   This case comes before this Court on the accelerated calendar. App. R.

11.1, which governs cases on the accelerated calendar, provides in pertinent part:

       {¶10} “(E) Determination and judgment on appeal.

       {¶11} “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.
Holmes County App. Case No. 11CA013                                                    4


        {¶12} As a preliminary matter, appellant argues that this case is a final,

appealable order despite the fact that no order of foreclosure has issued. We agree.

The Ohio Supreme Court has stated that in a mortgage foreclosure action, a journalized

order determining that a mortgage constitutes the first and best lien upon the subject

real estate is a judgment or final order from which an appeal may be perfected, and a

lien holder who is a party to a mortgage foreclosure action but who fails to appeal from

a judgment determining the mortgage to be the first and best lien on the subject

premises cannot thereafter in an appeal from a subsequent judgment confirming such

priority attack the correctness of such earlier judgment. Queen City Sav. & Loan Co. v.

Foley (1960), 170 Ohio St. 383, 165 N.E.2d 633, paragraphs one and three of the

syllabus.

        {¶13} Appellant’s assignment of error and argument in its brief claim the trial

court erred in applying the doctrine of equitable subrogation. However, the trial court

did not apply the doctrine of equitable subrogation. The trial court decided the issue of

lien priority solely on the basis of equitable estoppel.     Equitable subrogation and

equitable estoppel are separate legal concepts, and one or both may apply in a given

case. See, e.g., Blue View Corporation v. Rhynes, Summit App. No. 23034, 2006-Ohio-

4084.
Holmes County App. Case No. 11CA013                                                  5


       {¶14} Because appellant’s only claim of error relates to a legal doctrine which

the court did not apply in the instant case, the assignment of error is overruled.


       {¶15} The judgment of the Holmes County Common Pleas Court is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Delaney, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/r0914
[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]


              IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


ONE WEST BANK, FSB                                      :
                                                        :
                           Plaintiff-Appellee           :
                                                        :
                                                        :
-vs-                                                    :       JUDGMENT ENTRY
                                                        :
JAMES MILLER, et al.,                                   :
                                                        :
                    Defendants-Appellants               :       CASE NO. 11CA013




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Holmes County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                            _________________________________


                                                            _________________________________


                                                            _________________________________

                                                                         JUDGES
