[Cite as Sky Bank v. Colley, 2016-Ohio-3139.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Sky Bank,                                        :

                Plaintiff-Appellee,              :

v.                                               :                   No. 15AP-736
                                                                 (C.P.C. No. 06CV-1244)
Michael F. Colley et al.,                        :
                                                             (REGULAR CALENDAR)
                Defendants-Appellees,            :

[James M. Ryan,                                  :

                Defendant-Appellant].            :

Edward F. Whipps, Trustee,                       :

                Plaintiff-Appellee,              :

v.                                               :                   No. 15AP-737
                                                                 (C.P.C. No. 05CV-11685)
James M. Ryan,                                   :
                                                             (REGULAR CALENDAR)
                Defendant-Appellant.             :




                                           D E C I S I O N

                                      Rendered on May 24, 2016


                On brief: Brian S. Piper Co. L.P.A., and Brian S. Piper, for
                appellees Joe Hakim, Metro Properties, Inc., and 195 E.
                Main St. LLC. Argued: Brian S. Piper.

                On brief: James M. Ryan, pro se.

                  APPEALS from the Franklin County Court of Common Pleas
Nos. 15AP-736 and 15AP-737                                                                2


DORRIAN, P.J.

       {¶ 1} Defendant-appellant, James M. Ryan, appeals from an order of the Franklin
County Court of Common Pleas confirming a judicial sale of real property and ordering
execution of the deed and distribution of proceeds in this foreclosure action.
I. Facts and Procedural History
       {¶ 2} The trial court has twice attempted to confirm the judicial sale of a property
whose foreclosure dates to 2007 and whose sale pursuant to foreclosure dates to 2011.
Each time Ryan has interrupted the process with unsuccessful intervening appeals to this
court and the Supreme Court of Ohio. On remand from our most recent decision, the trial
court attempted yet again to confirm sale by amending its prior entries to reflect an
assignment of the original purchaser's interest to a successor and to reflect the ever-
increasing tax lien accruing on the property. Whipps v. Ryan, 10th Dist. No. 14AP-67,
2014-Ohio-5302.
       {¶ 3} Ryan again seeks to delay the inevitable with another appeal. To avoid
unnecessary reiteration of the factual context and procedural history of the matter, we
incorporate by reference the pertinent passages in Ryan ¶ 2-19. That decision affirmed
judgments of the common pleas court that confirmed the sale of the affected property
and, in a companion case, approved a receiver's final report and dismissed certain claims
and counterclaims among various parties. Id. at ¶ 48.
       {¶ 4} The present appeal concerns only the trial court's latest attempt to finalize
the sale of the property. The trial court first attempted to confirm sale of the property on
May 17, 2012. On July 6, 2012, the court amended its confirmation order. After remand
from Ryan, on July 7, 2015, the trial court entered its second amended confirmation of
sale, giving rise to this appeal.
II. Assignments of Error
       {¶ 5} Ryan appeals and asserts four assignments of error for our review:
               [I.] The Trial Court erred and abused its discretion by issuing
               and docketing its July 7, 2015 Judgment Entry titled Second
               Amended Entry Confirming Sale of 185, 193, 195, 203, 205
               E. Main Street, Columbus, Ohio and Ordering Deed and
               Distribution * * * as the Trial Court was without jurisdiction
               to order and docket said Judgment Entry making it void ab
               initio.
Nos. 15AP-736 and 15AP-737                                                                 3


              [II.] The Trial Court erred and abused its discretion by
              recognizing the Assignment dated May 5, 2015 * * * and in
              accordance therewith identifying 195 East Main Street LLC
              as the Purchaser in the Second Amended Entry Confirming
              Sale of 185, 193, 195, 203, 205 E. Main Street, Columbus,
              Ohio and Ordering Deed and Distribution * * * as the Trial
              Court is without jurisdiction and subject-matter jurisdiction
              to order a change of purchaser by assignment or otherwise.

              [III.] The Trial Court erred, abused its discretion and lacked
              jurisdiction to consider and grant Plaintiff's motion and
              docketing the Second Amended Entry Confirming Sale of
              185, 193, 195, 203, 205 E. Main Street, Columbus, Ohio and
              Ordering Deed and Distribution * * * as the motion and Trial
              Court proceedings related thereto did not meet Ohio Civil
              Rule 4 & 5(B)(2), (3) & (4), thereby damaging Appellant and
              violating his rights to Due Process as protected by the
              Fourteenth Amendment of the United States Constitution
              and Article 1, Section 16 of the Ohio Constitution.

              [IV.] The Trial Court erred in docketing its Stipulated Entry
              for Substitution of Party dated June 25, 2015.

III. Discussion
       {¶ 6} Confirmation of judicial foreclosure sales in Ohio is governed by R.C.
2329.31, which provides that, if the common pleas court finds that the sale was made in
conformity with R.C. Chapter 2329, the court will direct distribution of the proceeds and
order that the purchaser receive the deed for the subject property. " 'Whether a judicial
sale should be confirmed or set aside is within the sound discretion of the trial court.' "
Ohio Savings Bank v. Ambrose, 56 Ohio St.3d 53, 55 (1990), quoting Michigan Mtge.
Corp. v. Oakley, 68 Ohio App.2d 83 (12th Dist.1980). A court of appeals will reverse
confirmation of sale by the trial court only where the trial court has abused its discretion.
Id. The public policy of Ohio is to promote the finality of judicial sales and lend some
certainty to the judicial process of foreclosure. CitiMortgage, Inc. v. Roznowski, 139 Ohio
St.3d 299, 2014-Ohio-1984, ¶ 23.
       {¶ 7} Ryan's first assignment of error argues that for two reasons the trial court
lacked jurisdiction to enter the second amended entry confirming sale. He first asserts
that, because the clerk of the trial court had entered a docket notation terminating the
case during the pendency of a prior appeal to this court, the trial court had no authority to
revisit the merits and enter a revised confirmation order. He then asserts that the trial
Nos. 15AP-736 and 15AP-737                                                                    4


court's 2012 first amended order of confirmation was a final appealable order, as
demonstrated by the ensuing appeal to this court, and could not be altered without due
filing and consideration of a Civ.R. 60(B) motion for relief from judgment.
        {¶ 8} With respect to the docket notation, Ryan points out that on January 14,
2014, the trial court entered an order dismissing for failure to prosecute Ryan's various
cross-claims and third-party complaints against other parties.           This order does not
reference the as-yet-unfinalized judicial sale or other ongoing aspects of the case, but does
state that it is a final appealable order. The clerk's docket sheet reflects entry of this order
with the notation "terminate case." Ryan argues that these filings indicate that the case
was completely terminated and the trial court lacked jurisdiction to proceed further and
again attempt to confirm the sale.
        {¶ 9} Ryan's reliance on the clerk's "terminate case" notation as some indication
of finality is unfounded. The clerk's ministerial practice of noting cases as terminated
during a purely interlocutory appeal does not affect the actual status of the case or the
jurisdiction of the trial court. Second, at the time the court put on this entry disposing of
various claims for failure to prosecute, the matter was still pending on other issues before
this court on appeal. The trial court (and even less the clerk of court) would not have been
the final arbiter of termination of the case.
        {¶ 10} As to the court's continuing jurisdiction to amend its previous entry
confirming sale of the property, we agree with Ryan that ordinarily a trial court may not
revisit its own final judgment. Anderson v. Consumer Portfolio Servs., 10th Dist. No.
12AP-339, 2012-Ohio-4380, ¶ 7 ("Other than a judgment that is void ab initio for lack of
jurisdiction, a court has no authority to vacate or modify its final orders other than as set
forth under Civ.R. 60(B)."). We further find, however, that, on the facts of this case, this
generally hard-and-fast rule does not apply to amendment of orders confirming judicial
sale in foreclosure proceedings, particularly when the delay that necessitates the
amendment is caused by the party opposing enforcement of the prior confirmation of
sale.
        {¶ 11} Moreover, we have addressed the trial court's first attempt to amend the
confirmation of sale in this case in our prior decision in Ryan and found no error in the
trial court's initial amendment on that occasion. The trial court's right to amend its initial
confirmation of sale in this matter therefore stands as the law of the case. Second, the
Nos. 15AP-736 and 15AP-737                                                                              5


trial court's amendment in this matter does not revisit the order of priority and
distribution of funds, but addresses only two ministerial aspects: first, the ever-increasing
property tax bill accumulating during the numerous delays imposed by appellant's
repeated appeals in the case, and second, the substitution of a party through assignment
of the interest of the initial prevailing bidder at sheriff's sale. In fact, as to the property tax
bill, it was not only within the jurisdictional power of the trial court to update the
confirmation order as it did, but a statutory obligation to do so. R.C. 5721.19(A)(2)
provides that the taxing authority, in pursuit of the first lien for taxes, may estimate the
amount due and payable at the anticipated time the purchaser at sheriff's sale will receive
deed to the property. In the present case, issuance of that deed has been repeatedly
delayed, generally on the initiative of Ryan, and that estimate required from the county
treasurer would necessarily require continuous updating. As to the substitution of a party
through assignment, we also find no error as discussed more fully below in our discussion
of the second assignment of error.
        {¶ 12} We accordingly hold in this case that the trial court in this foreclosure action
retains continuing jurisdiction to amend the prior confirmation of sale that has been the
object of appeal, affirmance, and subsequent remand to the trial court, as those
amendments reflected only the continued accrual of property taxes after entry of the
initial confirmation of sale, and the assignment of interest and substitution of parties for
the initial successful purchasers at sheriff's sale.1 Accordingly, Ryan's first assignment of
error is overruled.
        {¶ 13} Ryan's second assignment of error asserts that the trial court lacked
jurisdiction to amend the confirmation of sale to reflect the assignment of the successful
bidder's interest during the course of subsequent litigation. This argument lacks merit for
two reasons. First, there is precedent in Ohio that a successful bidder's interest acquired
at sheriff's sale is assignable. Watson v. Watson, 24 Ohio App. 45 (1st Dist.1927). Second,
Ryan has no standing to challenge such an assignment.



1We note in fact, while appellate courts have not expressly addressed the propriety of such subsequent
amendment of confirmation orders, many Ohio cases refer to them without questioning their propriety.
See, e.g., Green Tree Servicing, L.L.C. v. Barcroft, 10th Dist. No. 13AP-1009, 2014-Ohio-2286; First Place
Bank v. Ohio Farmers Ins. Co., 5th Dist. No. 2011 CA 00009, 2011-Ohio-4077; Bankers Trust Co. of
California, N.A. v. Long, 5th Dist. No. 2002CA00023, 2002-Ohio-5299; JPMorgan Chase Bank, N.A. v.
Brown, 2d Dist. No. 21853, 2008-Ohio-200.
Nos. 15AP-736 and 15AP-737                                                                6


       {¶ 14} In his brief on appeal, Ryan freely concedes that the judicial sale has
extinguished his ownership interest in the property. A former owner whose interest has
been extinguished by confirmation of sale lacks standing to challenge any assignment of
the bidder's interest in the property. A similar situation was thoroughly discussed by the
Second District in the case of JPMorgan Chase Bank, N.A. v. Brown, 2d Dist. No. 21853,
2008-Ohio-200. In that case, Brown, the former owner, challenged and delayed, through
a series of appeals and bankruptcy filings, any attempt to convey title to the successful
bidders at sheriff's sale. When the successful bidders eventually assigned their interest to
a successor, Brown attempted to challenge the trial court's entry of an amended
confirmation order to reflect the assignment and substitution of parties:
              "When the trial court confirmed the sale, the title to the
              property passed to the Thomases, and Brown's property
              interest was extinguished. Thus, Brown lacked standing to
              challenge the assignment. Furthermore, even if Brown had
              possessed a property interest, the Thomases were entitled to
              assign the bid to Glendale despite the fact that the Thomases
              owned the property and regardless of whether Glendale was
              the real party in interest."

              ***

              Finally, we rejected Brown's assertion that he should have
              been notified of and afforded an opportunity to be heard on
              the assignment prior to the issuance of the June 30, 1997
              amended entry. We stated:

              "Brown apparently interprets the June 30, 1997 amended
              entry as a second sale and confirmation. This entry, however,
              simply amended the January 19, 1993 confirmation of sale to
              reflect that Glendale, rather than the Thomases, should
              receive the deed from the sheriff and be awarded a writ of
              possession. Thus, Loc.R. 2.23(III) of the Montgomery
              County Court of Common Pleas, Civil Division, which
              requires notice of an upcoming judicial sale to the record
              owner of the property and other interested parties, did not
              apply. Furthermore, Brown's due process rights were not
              violated because he did not have a protected interest in the
              property following the confirmation of sale to the
              Thomases."

Id. at ¶ 37-40.
Nos. 15AP-736 and 15AP-737                                                                  7


       {¶ 15} In the present case, Ryan's property interest has been extinguished and he
has no standing to challenge the assignment. The interests conveyed to the successful
bidder, as well as the distribution of funds and the impact on Ryan's deficiency judgment
in the case, are not affected by the assignment. Accordingly, Ryan's second assignment of
error is overruled.
       {¶ 16} Ryan's third assignment of error asserts that the trial court could not
proceed to enter the second amended confirmation order because the court was acting on
a motion brought by parties who never served Ryan with their motion in conformity with
Civ.R. 4 and 5. Appellees point out that the motion in question was not newly filed before
the court, but was a long-standing motion to distribute the proceeds of the sale. This
preceded the trial court's first confirmation order entered May 17, 2012. Ryan made no
complaint in the multiple intervening appeals that he was not served with this motion,
and no intervening unserved motion appears on the docket. Accordingly, Ryan's third
assignment of error is overruled.
       {¶ 17} Ryan's fourth assignment of error asserts that the trial court erred in
substituting a party to reflect the assignment of the successful bidder's interest acquired at
sheriff's sale. As discussed above in connection with Ryan's second assignment of error,
he lacks standing to contest either the assignment itself or the trial court's judicial
acknowledgement of the assignment. Accordingly, Ryan's fourth assignment of error is
overruled.
IV. Conclusion
       {¶ 18} In summary, we overrule appellant's four assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                             KLATT and SADLER, JJ., concur.
