[Cite as Settlers Bank v. Burton, 2012-Ohio-2418.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

SETTLERS BANK,                                             :    Case Nos.   11CA10
                                                           :                11CA12
        Plaintiff-Appellee,                                :                11CA14
                                                           :
        v.                                                 :    DECISION AND
                                                           :    JUDGMENT ENTRY
WILLIAM BURTON, et al.,                                    :
                                                           :    RELEASED 05/24/12

     Defendants-Appellants.           :
______________________________________________________________________
                             APPEARANCES:

Laura A. Hauser and Diane Goderre, THOMPSON HINE LLP, Columbus, Ohio, for
appellant JPMorgan Chase Bank, National Association.

William L. Burton, Marietta, Ohio, pro se appellant.

James W. Peters, PETERS LAW OFFICE CO., L.P.A., Woodsfield, Ohio, for appellant
Jennifer S. Burton.

Gerald J. Tiberio, Jr. and Scott D. Eickelberger, KINCAID, TAYLOR & GEYER,
Zanesville, Ohio, for appellee Settlers Bank.
______________________________________________________________________
Harsha, J.

        {¶1}     Settlers Bank filed a complaint against property owned by William and

Jennifer Burton to collect a judgment it obtained against Mr. Burton. In appeals that we

consolidated sua sponte, Mr. Burton, Mrs. Burton, and JPMorgan Chase Bank, National

Association (“JPMorgan”) challenge various rulings the trial court made in favor of

Settlers Bank. However, because none of the orders appealed from constitute a final,

appealable order, we lack jurisdiction to consider the merits of the appeals and dismiss

them.

                                                     I. Facts

        {¶2}     In May 2010, Settlers filed a complaint against the Burtons, JPMorgan, the
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                                 2

Ohio Department of Job and Family Services (“ODJFS”), and the Washington County

Treasurer. Settlers alleged that in 2009 it obtained a judgment against Mr. Burton, it filed

a certificate of judgment against him, and by virtue of that certificate it had a valid lien on

real property owned by the Burtons. Settlers alleged that Mrs. Burton, JPMorgan,

ODJFS, and the Washington County Treasurer all “may have or claim to have an interest

in the premises” for various reasons. Settlers sought a declaration that it had a valid lien

on the real property, marshalling of any other liens on the property, and foreclosure of the

property to satisfy the judgment against Mr. Burton.

       {¶3}   The Burtons and the treasurer filed answers; JPMorgan and ODJFS did

not. Settlers filed a motion for default judgment against JPMorgan, which the trial court

granted by an entry dated August 2, 2010. The court “ORDERED, ADJUDGED AND

DECREED that the mortgage of JP Morgan * * * is no longer valid and is hereby removed

from the real estate which is the subject of this litigation * * *, and shall not be considered

a valid lien upon the premises * * *.” In its entry, the trial court did not expressly state that

there was “no just reason for delay” of an appeal.

       {¶4}   Next, Settlers filed a motion for summary judgment against the Burtons,

which it later amended and filed solely against Mr. Burton. Then, Mrs. Burton filed a

motion for summary judgment in which she sought “an order of summary and declaratory

judgment” as to certain “issues of fact”: 1.) “they” (presumably Mr. and Mrs. Burton) were

the owners of the real property at issue; 2.) JPMorgan’s mortgage constituted the “first

and best lien” against the property, “subordinate only to accrued real estate taxes”; 3.)

Settlers’ judgment lien was a lien against Mr. Burton only and did not attach to any

interest in the real estate held by Mrs. Burton; 4.) Mrs. Burton was entitled to her share of

the proceeds from the sale of the premises prior to any payment to Settlers on its
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                               3

judgment lien. In its memorandum contra, Settlers agreed with Mrs. Burton’s first, third,

and fourth requests but asked the court to deny her second request related to JPMorgan.

Settlers also filed a “Memorandum in Support of [JPMorgan’s] Loss of Priority of Lien.”

JPMorgan filed a motion for leave to file a response to this memorandum. Before the

court ruled on this motion, JPMorgan filed its memorandum in opposition. The same day,

JPMorgan also filed a motion for relief from default judgment under Civ.R. 60(B).

       {¶5}   On February 2, 2011, the trial court issued an entry titled “DECISION (On

All Pending Motions).” The court granted Settlers’ motion for summary judgment against

Mr. Burton. The trial court denied Mrs. Burton’s motion for summary judgment. The

court did not address the uncontested matters raised in Mrs. Burton’s motion. Instead,

the court focused on her request that JPMorgan’s mortgage be considered the “first and

best lien” against the property. In addition, the court denied JPMorgan’s motion for leave

to file a memorandum in opposition to Settlers’ memorandum on JPMorgan’s loss of its

lien. On April 14, 2011, the court issued an entry denying JPMorgan’s motion for relief

from default judgment.

       {¶6}   Then on May 4, 2011, the trial court issued two additional judgment entries.

In the first entry, the court declared that its February 2 entry was “hereby entered as a

Final Appealable Judgment.” In the second entry, the court declared that its April 14

entry was “hereby entered as a Final Appealable Judgment.” Subsequently, all of the

appellants filed notices of appeal from both of the May 4 entries. Settlers filed a motion

for default judgment against ODJFS the same day Mr. Burton filed his notice of appeal.

However, the trial court held that it lacked jurisdiction to decide the motion due to the

pending appeals.

                                  II. Assignments of Error
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                      4

     {¶7}   Mr. Burton assigns two errors for our review:

     I.     THE TRIAL COURT ERRED IN REMOVING THE PRIORITY OF
            THE MORTGAGE OF DEFENDANT/APPELLANT, JPMORGAN
            CHASE.

     II.    THE TRIAL COURT ERRED IN DENYING
            DEFENDANT/APPELLANT CHASE’S MOTION FOR RELIEF
            UNDER CIVIL RULE 60(B).

     {¶8}   Mrs. Burton assigns two errors for our review:

     I.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            FAILING TO GRANT DEFENDANT-APPELLANT JENNIFER S.
            BURTON’S MOTION FOR SUMMARY JUDGMENT FILED ON
            DECEMBER 8, 2010.

     II.    THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
            HOLDING THAT J.P. MORGAN CHASE BANK LOST THE
            PROPERTY OF ITS MORTGAGE LIEN WHEN DEFAULT
            JUDGMENT WAS ENTERED AGAINST IT IN FAVOR OF THE
            PLAINTIFF-APPELLEE SETTLERS BANK ON AUGUST 2, 2010.

     {¶9}   JPMorgan assigns three errors for our review:

     I.     The Court of Common Pleas erred in entering summary judgment
            against Defendant-Appellant JPMorgan Chase Bank, National
            Association because the relief the Court of Common Pleas awarded
            to Plaintiff-Appellee Settlers Bank extinguished JPMorgan Chase
            Bank, National Association’s mortgage lien and is contrary to Ohio
            law. * * *

     II.    The Court of Common Pleas erred in denying the motion of
            Defendant-Appellant JPMorgan Chase Bank, National Association
            for relief from judgment pursuant to Rule 60(B) of the Ohio Rules of
            Civil Procedure because that motion was made within a reasonable
            time and less than one year after the entry of default judgment,
            Defendant-Appellant JPMorgan Chase Bank, National Association
            has a meritorious defense to Plaintiff-Appellee Settlers Bank’s
            claims, and Defendant-Appellant JPMorgan Chase Bank, National
            Association’s failure to respond was the result of excusable neglect
            as contemplated by Civ.R. 60(B)(1). * * *

     III.   The Court of Common Pleas erred in denying the motion of
            Defendant-Appellant JPMorgan Chase Bank, National Association
            for relief from judgment pursuant to Rule 60(B) of the Ohio Rules of
            Civil Procedure because that motion was made within a reasonable
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                                    5

              time and less than one year after the entry of default judgment,
              Defendant-Appellant JPMorgan Chase Bank, National Association
              has a meritorious defense to Plaintiff-Appellee Settler Bank’s claims,
              and relief from the default judgment is proper under Ohio Civil Rule
              60(B)(5) because the judgment was erroneous. * * *

                            III. No Final, Appealable Order Exists

       {¶10} Before we address the merits of the appeals, we must decide whether we

have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided by

law to review and affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district[.]” Ohio Constitution, Article IV,

Section 3(B)(2); see R.C. 2505.03(A). If a court’s order is not final and appealable, we

have no jurisdiction to review the matter and must dismiss the appeal. Eddie v.

Saunders, 4th Dist. No. 07CA7, 2008-Ohio-4755, ¶ 11. In the event that the parties do

not raise the jurisdictional issue, we must raise it sua sponte. Sexton v. Conley, 4th Dist.

No. 99CA2655, 2000 WL 1137463, *2 (Aug. 7, 2000).

       {¶11} JPMorgan and Settlers raised jurisdictional issues in their appellate briefs.

Upon reviewing the record, we questioned our jurisdiction to consider the merits of all of

the appeals and ordered the parties to file memoranda on the issue. For the reasons

below, we conclude that the orders appealed from are not final and appealable.

       {¶12} An order must meet the requirements of both R.C. 2505.02 and Civ.R.

54(B), if applicable, to constitute a final, appealable order. Chef Italiano Corp. v. Kent

State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). Under R.C. 2505.02(B)(1), an

order is a final order if it “affects a substantial right in an action that in effect determines

the action and prevents a judgment[.]” To determine the action and prevent a judgment

for the party appealing, the order “must dispose of the whole merits of the cause or some

separate and distinct branch thereof and leave nothing for the determination of the court.”
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                                6

Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals

Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).

       {¶13} Additionally, if the case involves multiple parties or multiple claims, the

court’s order must meet the requirements of Civ.R. 54(B) to qualify as a final, appealable

order. Under Civ.R. 54(B), “[w]hen more than one claim for relief is presented in an

action whether as a claim, counterclaim, cross-claim, or third-party claim, * * * or when

multiple parties are involved, the court may enter final judgment as to one or more but

fewer than all of the claims or parties only upon an express determination that there is no

just reason for delay.” Absent the mandatory language that “there is no just reason for

delay,” an order that does not dispose of all claims is subject to modification and is not

final and appealable. Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989);

see Civ.R. 54(B). The purpose of Civ.R. 54(B) is “‘to make a reasonable accommodation

of the policy against piecemeal appeals with the possible injustice sometimes created by

the delay of appeals[,]’ * * * as well as to insure that parties to such actions may know

when an order or decree has become final for purposes of appeal * * *.” Pokorny v. Tilby

Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977).

       {¶14} Here, the case obviously involves multiple parties because Settlers named

five defendants in its complaint. The trial court appeared to resolve the claims against

JPMorgan in its August 2, 2010 entry granting Settlers a default judgment against

JPMorgan. Although none of the parties appealed from this entry, we must address its

appealability because it impacts our analysis on the entries from which the parties did

appeal. When the court granted Settlers’ motion for default judgment, the claims against

the other four defendants remained pending, and the court did not expressly state the

mandatory Civ.R. 54(B) language that there was no just reason for delay in its entry.
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                                   7

Thus, the August 2 entry does not constitute a final, appealable order.

       {¶15} The first entry the parties appeal from is the May 4 entry declaring the

February 2 entry a “Final Appealable Judgment.” In this entry, the court again addressed

the claims against JPMorgan because both JPMorgan and Mrs. Burton sought to

reestablish the company’s lien. The court rejected their arguments. So again, it

appeared the court had resolved all the claims against JPMorgan. The trial court also

resolved the claims against Mr. Burton by granting Settlers’ motion for summary

judgment. However, Settlers’ claims against the treasurer, ODJFS, and Mrs. Burton

remain pending. Because the court did not expressly state that there was “no just reason

for delay” in its entry, it does not constitute a final, appealable order. The portion of the

court’s order denying Mrs. Burton a summary judgment is not final for the additional

reason that “the denial of a motion for summary judgment does not determine the action

and prevent a judgment, and thus generally does not constitute a final order under R.C.

2505.02.” Celebrezze v. Netzley, 51 Ohio St.3d 89, 90, 554 N.E.2d 1292 (1990) (per

curiam). Mrs. Burton does not claim that any exception to this general rule applies.

       {¶16} The second entry the parties appeal from is the May 4 entry declaring the

April 14 entry a “Final Appealable Judgment.” In this entry, the court denied JPMorgan’s

motion for relief from default judgment under Civ.R. 60(B) on the merits. Generally, an

entry denying a motion for relief from judgment filed under Civ.R. 60(B) is itself a final,

appealable order. Colley v. Bazell, 64 Ohio St.2d 243, 245, 416 N.E.2d 605 (1980).

However, JPMorgan could not file a Civ.R. 60(B) motion in this case. Under Civ.R.

60(B), a court may only relieve a party from a “final judgment, order or proceeding.” We

have already determined that the court’s order granting Settlers a default judgment

against JPMorgan was not a final order, nor was the court’s May 4 entry declaring the
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                                         8

February 2 entry a “Final Appealable Judgment.” In other words, the court never entered

a final judgment against JPMorgan from which it could seek relief under Civ.R. 60(B).

JPMorgan could not convert the court’s prior entries into final orders simply by

characterizing his motion as one filed under Civ.R. 60(B). Therefore, the court’s order

denying JPMorgan’s “Civ.R. 60(B)” motion does not constitute a final, appealable order.1

        {¶17} Accordingly, we dismiss the appeals for lack of a final, appealable order.

                                                                             APPEALS DISMISSED.




1
  Because it was not a final order, a motion for reconsideration was/is an appropriate procedural
mechanism to obtain relief. Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379, 423 N.E.2d 1105
(1981), fn. 1.
Washington App. Nos. 11CA10, 11CA12, & 11CA14                                              9

                                   JUDGMENT ENTRY

         It is ordered that the APPEALS BE DISMISSED and that Appellants shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

                                                 For the Court



                                                 BY: ________________________
                                                     William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
