[Cite as M&M Winfield, L.L.C. v. Huntington Natl. Bank, 2014-Ohio-196.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                           JUDGES:
M&M WINFIELD, LLC                                  :       Hon. W. Scott Gwin, P.J.
                                                   :       Hon. Sheila G. Farmer, J.
       Plaintiff-Appellee                          :       Hon. John W. Wise, J.
                                                   :
-vs-                                               :
                                                   :       Case No. 2013 AP 04 0019
                                                   :
                                                   :
HUNTINGTON NATIONAL BANK                           :       OPINION
                                                   :
        Intervening Defendant-Appellant




CHARACTER OF PROCEEDING:                               Civil appeal from the Tuscarawas County
                                                       Court of Common Pleas, Case No.
                                                       2011CV070800

JUDGMENT:                                              Affirmed




DATE OF JUDGMENT ENTRY:                                January 16, 2014

APPEARANCES:

For Plaintiff-Appellee                                 For Intervening Defendant-Appellant

MICHAEL JOHNSON                                        TODD BUNDY
Johnson Urban & Range Co., LPA                         ROBERT PRESTON III
117 South Broadway                                     Black, McCuskey, Souers & Arbaugh
Box 1007                                               220 Market Avenue South, Ste. 1000
New Philadelphia, OH 44663                             Canton, OH 44702
[Cite as M&M Winfield, L.L.C. v. Huntington Natl. Bank, 2014-Ohio-196.]


Gwin, P.J.

        {¶1}    Appellant appeals the March 27, 2013 judgment entry of the Tuscarawas

County Court of Common Pleas denying Huntington National Bank’s motion to

intervene.

                                         Facts & Procedural History

        {¶2}    On July 26, 2011, appellee M&M Winfield, LLC filed a declaratory

judgment complaint against Paul Richmond (“Richmond”) and Huntington Mortgage

Company (“Huntington Mortgage”). The complaint alleged that the legal descriptions for

the real property owned by appellee and Richmond were incorrect and requested the

court switch the legal descriptions for the parcels. Appellee sold a real estate lot to

Richmond and, at the same time, had other acreage transferred into lots. Due to a mix-

up in recording the deeds, Richmond took title to appellee’s adjacent lot. Richmond

built a home on the lot he purchased. Richmond received a mortgage on the property

from National City Bank to build the residence, and the mortgage is serviced by

Huntington Mortgage, where Richmond sends his payments. Huntington National Bank,

as successor to Sky Bank, also holds a mortgage on the lot owned by appellee and

surrounding the lot at issue.

        {¶3}    The Clerk of Courts sent a summons on complaint to Huntington on July

27, 2011. The signed certified mail receipt from Huntington Mortgage was returned to

the Clerk of Courts as served on August 1, 2011. On November 29, 2011, appellee

filed a motion for default judgment against Huntington Mortgage and motion for

judgment on the pleadings against Richmond.                    The trial court filed an entry on

December 20, 2011, scheduling an oral evidentiary hearing on the complaint and the
Tuscarawas County, Case No. 2013 AP 04 0019                                              3


motions for January 12, 2012. A copy of this judgment entry was mailed to Huntington

Mortgage.

      {¶4}   The trial court held an evidentiary hearing on January 12, 2012. On June

6, 2012, the trial court filed a judgment entry transferring the real estate and mortgages.

The trial court made the following factual findings: Huntington Mortgage got a mortgage

from Richmond for the deeded lot; Richmond has his home on the lot owned by

appellee; Richmond signed a quit-claim deed to appellee in October of 2010 but the

deed has not been recorded because of Huntington Mortgage’s failure to cooperate and

transfer its mortgage onto the Richmond home; appellee built a residential dwelling on

the lot wrongly deed to Richmond; appellee signed a quit-claim deed to Richmond in

September of 2010 but the deed was not recorded due to Huntington Mortgage’s failure

to cooperate and transfer its mortgage onto the proper lots; both appellee and

Richmond have attempted for more than 2 years to exchange lots but Huntington

Mortgage has not cooperated to move its residential mortgage from appellee’s property

onto the Richmond dwelling property; and that, prior to the hearing, Richmond

contacted Huntington Mortgage and was informed that Huntington would not participate

in the hearing on January 12, 2012.        The trial court also stated that “Defendant

Huntington Mortgage was not present and has not made an appearance in this matter.”

      {¶5}     In a June 6, 2012 judgment entry, the trial court ordered the Tuscarawas

County Recorder to correct the real property descriptions on the parcels and to transfer

the mortgage encumbering Richmond’s previously-described parcel to Richmond’s new

parcel, the parcel formerly owned by appellee. Also in the judgment entry, the trial court
Tuscarawas County, Case No. 2013 AP 04 0019                                            4


set a hearing date on damages and court costs for July 12, 2012. The judgment entry

indicates a copy was mailed to Huntington Mortgage.

      {¶6}   In a July 13, 2012 judgment entry the trial court rendered judgment in

favor of appellee against Huntington Mortgage in the amount of $429,549.50, plus

interest and costs. The trial court stated that appellee presented evidence against

Huntington Mortgage relative to the issue of damages. Further, that no legal counsel for

Huntington Mortgage or officer of the company appeared at the hearing. The judgment

entry indicates a copy with notice of appealable order was mailed to Huntington

Mortgage. The record demonstrates that no mailings were refused or returned to the

Clerk of Courts from Huntington Mortgage. In addition, the trial court took evidence at

the January 12, 2012 and July 12, 2012 hearings, but neither party requested or

supplied this Court with the transcripts of those hearings. No appeal was taken from the

July 13, 2012 final appealable order judgment entry.

      {¶7}   On January 24, 2013, Huntington National Bank filed a motion to intervene

as a defendant to assert its mortgage interest against appellee and included a proposed

answer, crossclaim, and third-party complaint. Huntington National Bank stated it has a

mortgage interest in the parcel of real property that is the subject of this action, that

such interest is not adequately represented by existing parties, and that Huntington

Mortgage merged out of existence in 2002. Appellee filed a response to Huntington

National Bank’s motion on February 1, 2013, and attached a document as Exhibit A that

indicates Huntington Mortgage was accepting payments until at least October of 2012.

The trial court held an oral hearing on Huntington National Bank’s motion on February
Tuscarawas County, Case No. 2013 AP 04 0019                                              5


19, 2013. On March 27, 2013, the trial court denied Huntington National Bank’s motion

to intervene.

       {¶8}     Appellant appeals the March 27, 2013 judgment entry of the Tuscarawas

County Court of Common Pleas and assigns the following as error:

       {¶9}     “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

DENYING HUNTINGTON NATIONAL BANK’S POST-JUDGMENT MOTION TO

INTERVENE IN ITS JUDGMENT ENTRY DATED 3-27-13.”

                                                I.

       {¶10} Huntington National Bank argues that the trial court has taken away

Huntington’s ability to contest the swap of the properties, has permitted appellee to strip

the Huntington mortgage, and created an encumbrance on Richmond’s property. Thus,

Huntington National Bank contends the trial court erred in denying their motion to

intervene. We disagree.

       {¶11} Huntington National Bank sought to intervene pursuant to Civ.R. 24(A).

The rule provides, in pertinent part:

                Upon timely application anyone shall be permitted to

       intervene in an action: * * * (2) when the applicant claims an interest

       relating to the property or transaction that is the subject of the

       action and the applicant is so situated that the disposition of the

       action may as a practical matter impair or impede the applicant’s

       ability to protect that interest, unless the applicant’s interest is

       adequately represented by existing parties.

Civil Rule 24(A)(2).
Tuscarawas County, Case No. 2013 AP 04 0019                                                    6


       {¶12} The standard of review for a Civ.R.24(A)(2) motion for intervention as a

matter of right is abuse of discretion. Meyers v. Basobas, 129 Ohio App.3d 692, 696,

718 N.E.2d 1001 (10th Dist. 1998). In order to find an abuse of discretion, we must

determine that the trial court’s decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶13} In order for a party to intervene as a matter of right, the following elements

must be met: (1) the intervenor must claim an interest relating to the property or

transaction that is the subject of action; (2) the intervenor must be so situated that the

disposition of the action may, as a practical matter, impair or impede the intervenor’s

ability to protect his or her interest; (3) the intervenor must demonstrate that his or her

interest is not adequately represented by the existing parties; and (4) the motion to

intervene must be timely. Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 591

N.E.2d 1312 (10th Dist. 1990). “Failure to meet any one of the elements in Civ.R. 24(A)

will result in denial of the right to intervene.” Id. at 831. Civil rule 24(A) is to be liberally

construed in favor of intervention, but the putative intervenor still bears the burden of

establishing each of the elements to intervene.            Grover Court Condominium Unit

Owners’ Assn. v. Hartman, 8th Dist. No. 94910, 2011-Ohio-218.

       {¶14} “Intervention after final judgment has been entered is unusual and

ordinarily will not be granted.” Greenman v. Greenman, 5th Dist. No. 04CA69, 2005-

Ohio-4961. However, intervention after judgment is permissible if it is the only way to

protect the intervenor’s rights. Id.
Tuscarawas County, Case No. 2013 AP 04 0019                                             7


      {¶15} In addition, the following factors are considered in determining timeliness

of the motion to intervene: (1) the point to which the suit had progressed; (2) the

purpose for which intervention is sought; (3) the length of time preceding the application

during which the proposed intervenor knew or reasonably should have known of his

interest in the case; (4) the prejudice to the original parties due to the proposed

intervenor’s failure after he knew or reasonably should have known of his interest in the

case to apply promptly for intervention and (5) the existence of unusual circumstances

mitigating against or in favor of intervention. State ex rel. First New Shiloh Baptist

Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998).

      {¶16} Huntington National Bank argues that the trial court stripped the

Huntington mortgages and they must intervene to protect this interest.          However,

appellee concedes that Huntington National Bank continues to have a valid mortgage

encumbering the lot owned by appellee, surrounding the lot in question.          Further,

Huntington also maintains its mortgage in regards to Richmond, as the trial court

specifically stated that the “Tuscarawas County Recorder is ordered to transfer the

mortgage (Exhibit C) from Paul Richmond (Volume 1205, Page 2008) to the real estate

transferred to Paul Richmond and such mortgage is hereby cancelled on the lot

transferred to M&M Winfield, LLC; this mortgage shall be considered valid on the

Richmond property.” Accordingly, intervention after judgment is not required to protect

Huntington Bank’s interests.

      {¶17} Further, Huntington National Bank argues they are entitled to intervene

because Huntington Mortgage was merged out of existence in 2002 and thus

Huntington Mortgage could not represent Huntington Bank adequately.             However,
Tuscarawas County, Case No. 2013 AP 04 0019                                                8


appellee submitted an exhibit in response to appellant’s motion to intervene that clearly

indicates that Huntington Mortgage was accepting payments from Richmond until

October of 2012. This exhibit contains the Huntington corporate logo, the Huntington

name, and the Huntington address. In addition, the certified mail sent to “Huntington

Mortgage” was signed and returned as served in August of 2011, and the record

demonstrates that multiple mailings sent to Huntington Mortgage throughout the case

were never refused or returned to the Clerk of Courts. Thus, the fact that Huntington

Mortgage was merged out of existence in 2002 does not necessitate a ruling that

Huntington Bank has the ability to intervene in this action, and Huntington Mortgage

could adequately represent the interests of Huntington Bank in this action.

       {¶18} Finally, based upon the factors as detailed above, Huntington National

Bank’s motion to intervene is not timely. The motion was filed more than six (6) months

after the notice of appealable order was entered in July of 2012. Huntington National

Bank argues they did not discover the complaint until September of 2012 when appellee

attempted to execute on the judgment and waited to file their motion until January 24,

2013 due to settlement negotiations. However, Huntington National Bank reasonably

should have known about the proceedings prior to the September 2012 date.

Huntington Mortgage was served with the complaint in 2011, notice of two evidentiary

hearings, and two judgment entries, including one final appealable order. In both of the

trial court’s judgment entries after the evidentiary hearings, the trial court made note that

no representative or counsel for Huntington appeared at the hearing. Further, the trial

court made a finding of fact in its June 6, 2012 judgment entry that “prior to the hearing,

Richmond contacted Huntington Mortgage and was informed that Huntington would not
Tuscarawas County, Case No. 2013 AP 04 0019                                               9


participate in the hearing on January 12, 2012.”         Appellant failed to provide the

transcript of this hearing to dispute this factual finding and thus this Court has no choice

but to presume the validity of the lower court’s factual finding.      Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).

       {¶19} Based upon the foregoing, we find the trial court did not abuse its

discretion in denying Huntington National Bank’s motion to intervene.           Appellant’s

assignment of error is overruled.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur
