surp.je c101url carl j. stich, jr. white, getgey & meyer co., lpa 1700 fourth & vine tower...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
BANK OF AMERICA, N.A., Successor byMerger to LASALLE BANK NATIONALASSOCIATION,
Plaintiff-Appellant,
V.
OMEGA DESIGN/BUILD GROUP, LLC,TRU WALL CONCRETE, INC.,THE OSTERWISCH COMPANY,TRI-STATE CONCRETE,JACOB MASONRY CONTRACTORS,LLC,D.E.P.E., LLC, d/b/a PELLA WINDOWSAND DOORS
Defendants-Appellees.
and
THE OVERLOOK AT EDEN PARK, L.P., :et al.,
Defendants,
On Appeal from the Hamilton CountyCourt of Appeals, First Appellate District
Court of Appeals Case No. C 100018
MOTION OF PLAINTIFF-APPELLANT BANK OF AMERICA, N.A.,SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION
TO STAY PROCEEDINGS
Michael J. Sikora III (0069512)(Counsel of Record)Richard T. Craven (0082273)Sikora Law LLC8532 Mentor AvenueMentor, Ohio 44060msikora(c^ sikoralaw. comrcravengsikoralaw. c om(440) 266-7777 (telephone)(440) 266-7778 (facsimile)Co-counsel for Plaintiff-Appellant Bank of America, N.A., Successorby Merger to LaSalle Bank National Association
,k, '-`. t "t ;^ C.,,^^- `^' ' ^'^ ;.c ^,ESURP.jE C101URl ';^r M0
Paul E. PerryLawrence A. DudekMiller Canfield Paddock & Stone, PLC511 Walnut Street, 19th FloorCincinnati, OH 45202perrvkmillercanfield.comdudek cr millercanfreld.com(614) 203-7800 (telephone)(248) 879-2001 (facsimile)Co-counsel for Plaintiff-Appellant Bank of America, N.A.,Successor by Merger to LaSalle Bank National Association
Carl J. Stich, Jr.White, Getgey & Meyer Co., LPA1700 Fourth & Vine TowerOne West Fourth StreetCincinnati, Ohio 45202cstichna wgmlpa.com(513) 241-3685 (telephone)(513) 241-2399 (facsimile)Counsel for Defendant-Appellee Omega Design/Build Group, LLC
Meghan D. DonnellonThomas E. DonnellonDonnellon Donnellon & Miller LPA9079 Montgomery RoadCincinnati, Ohio 45242mdonnellongdonnellonlaw.comted(c^donnellonlaw.com(513) 891-7087 (telephone)(513) 891-7125 (facsimile)Counsel for Defendant-Appellee D.E.P.E., LLC dba Pella Windows and Doors
A. Dennis MillerDroder & Miller Co., LPA125 W. Central ParkwayCincinnati, Ohio 45202dmillergdrodermiller.com(513) 721-1504 (telephone)(513) 721-0310 (facsimile)Counsel for Defendant-Appellee Tri-State Concrete
William A. HuddlesonGraydon Head & Ritchey LLP1900 Fifth Third Center511 Walnut StreetCincinnati, Ohio 45202whuddlesongpraydon.com
2
(513) 629-2819 (telephone)(513) 651-3836 (facsimile)Counsel for Defendant-Appellee Tru Wall Concrete Inc.
Peter E. KoenigBuechner Haffer Meyers & Koenig Co., LPA105 E. 4th Street, Suite 300Cincinnati, Ohio 45202pkoenig(a)bhmklaw.com(513) 579-1500 (telephone)(513) 977-4361 (facsimile)Counsel for Defendant-Appellee Jacob Masonry Contractors LLC
Warren J. RitchieKeating, Ritchie & McGary5300 Socialville-Foster RdSuite 140Mason, Ohio 45040writchie&krslawyers.com(513) 234-0567 (telephone)(513) 234-0886 (facsimile)Counsel for Defendant-Appellee Osterwisch Company
3
Now comes Plaintiff-Appellant Bank of America, N.A., Successor by Merger to LaSalle
Bank National Association ("Bank of America"), by and through its undersigned counsel, and
hereby move this Court to stay the effectiveness of the Decision of the First District Court of
Appeals rendered on April 6, 2011 and stay further proceedings in the Trial Court in this matter.
Good cause exists for the granting of this Motion.
1. BACKGROUND
This is a commercial foreclosure action involving a multi-story condominium complex in
Hamilton County, Ohio ("the Property"). This case involves foreclosure of a Mortgage in the
amount of $13,200,000 that encumbers the Property and issues concerning the validity, priority,
and amounts of liens held by Defendants-Appellees, which have filed Affidavits for Mechanic's
Liens. The arguments concerning validity, priority, and amounts of liens all stem from a creative
argument advanced by Defendants-Appellees that a notice of commencement cannot be
terminated. If Defendants-Appellees do not prevail on that argument, than their alleged liens
relate to another notice of commencement, and no further litigation of lien validity, priority,
and/or amounts will be necessary.
On January 4, 2010, the Trial Court granted partial summary judgment to the Appellees
("the Trial Court Decision"). The Trial Court held, "The Court therefore finds that mechanics'
liens filed for work and materials supplied in connection with the improvements identified in the
Original Notice of Commencement are prior in time and have priority over the Mortgage of
Plaintiff the Bank of America * * * ." ("the Trial Court Decision"). On April 6, 2011, the First
District Court of Appeals affirmed the Trial Court Decision ("the Appellate Decision").1
Concurrent with the filing of this Motion to Stay, Bank of America is filing a Notice of
Appeal and Memorandum in Support of Jurisdiction with this Court.
The Appellate Decision is attached hereto as Exhibit A.4
II. LAW AND ARGUMENT
This Court should stay the Appellate Decision and further proceedings in the Trial Court
until this Court determines whether to accept the appeal, and if accepted, until this Court issues a
decision. "Inherent within a court's jurisdiction, and essential to the orderly and efficient
administration of justice, is the power to grant or deny stays."2 A court may grant a motion to
stay in the "interests of comity, orderly procedure, or judicial economy.,3"
With respect to jurisdiction, this Court has stated, "[W]e have consistently held that once
an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent
with the reviewing court's jurisdiction to reverse, modify, or afHrm the judgment."4 Therefore,
once an appeal is taken, the trial court is divested of jurisdiction except "over issues not
inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed
judgment, such as the collateral issues like contempt ***."5
In addition, Rule 2.2(D) of The Supreme Court of Ohio Rules of Practice states, "After an
appeal is perfected from a court of appeals to the Supreme Court, the court of appeals is divested
of jurisdiction, except to take action in aid of the appeal, to rule on an application timely filed
with the court of appeals pursuant to App. R. 26, or to rule on a motion to certify a conflict under
Article IV, Section 3(B)(4) of the Ohio Constitution." Similarly, Rule 2.2(A)(3) provides:
2 State v. Hochhausler (1996), 76 Ohio St. 3d 455, 464, 668 N.E.2d 457, 466, citing See Landis
v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 166; State v. Smith (1989), 42 Ohio St.3d
60, 61, 537 N.E.2d 198, 200.3 Lexford Prop. Mgt., LLC v. Lexford Prop. Mgt., Inc. (2001), 147 Ohio App. 3d 312, 318, 770
N.E.2d 603, 608, citing Zellner v. Bd. of Ed, of Cincinnati (1973), 34 Ohio St.2d 199, 202, 297
N.E.2d 528; Efros v. Nationwide Corp. (1984), 12 Ohio St.3d 191, 465 N.E.2d 1309.
4 State ex rel. Elec. Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 2011-
Ohio-626, 2011 WL 561996, quoting State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio
St.3d 206, 2002-Ohio-3957, ¶ 85 State ex rel. State Fire Marshal v. Curl (2000) 87 Ohio St. 3d 568, 570, quoting State ex rel.
Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 0.O.3d
88, 90, 378 N.E.2d 162, 165; Haller v. Borror (1995), 107 Ohio App.3d 432, 436, 669 N.E.2d
17, 19.5
In a claimed appeal of right or a discretionary appeal, if the appellant
intends to seek from the Supreme Court an immediate stay of the court
of appeals iudgment that is being appealed, the appellant may file anotice of appeal in the Supreme Court without an accompanyingmemorandum in support of jurisdiction, provided both of the following
conditions are satisfied:
(i) A motion for stay of the court of appeals judgment shall accompany the
notice of appeal.
(ii) A copy of the court of appeals opinion and judgment entry being
appealed shall be attached to the motion for stay.6
The Eighth District Court of Appeals has held that if a motion for stay is filed, and this Court
subsequently grants the motion, then the judgment of the court of appeals is stayed pending a
determination by this Court whether to exercise its jurisdiction to hear the appeal.7
Staying the Appellate Court Decision and proceedings in the Trial Court until this Court
determines whether to accept Bank of America's appeal will avoid judicial duplication.
Moreover, a stay will prevent potentially divergent judicial rulings on the issue of lien priority as
the Trial Court Decision remains subject to interpretation- this Court could interpret it one way,
and the Trial Court could interpret it another way. Similarly, if this Court allows the
discretionary appeal and reverses the Appellate Decision, further discovery, briefing, and other
litigation on the issues of validity, priority, and amounts of liens may not be necessary. Thus,
staying the Appellate Decision and further proceedings in the Trial Court will preserve costs and
avoid unnecessary expenditure of resources in the event this Court accepts jurisdiction. This
Motion to Stay is not intended for delay and will not cause prejudice to any of the parties.
Finally, it is also within the discretion of this Court to determine whether a bond is
necessary and its amount.8 An "adequate supersedeas bond" could reasonably be construed to
6 S. Ct. Prac. R. 21.1 emphasis added).7 Master v. Chalko, 8t Dist No. 75973, *6, 2000 WL 573200.
8 Bibb v. Home S. & L. Co. (1989), 63 Ohio App.3d 751, 752.6
mean no bond at all, if the court believes that no bond is necessary, as in this case.9 In this case,
the posting of a supersedeas bond is not necessary because no judgment has been executed.
Bank of America's position is that the Trial Court Decision and Appellate Decision only decided
the narrow issue concerning the effective date of the Notice of Commencement. Thus, other
issues remain to be decided including whether Defendants-Appellees even have valid interests.
Even assuming arguendo that the Trial Court Decision and Appellate Decision decided the issue
of lien priority entirely, which Bank of America denies, no bond is necessary given that the asset
at issue has not been sold and is in the control of and is being maintained by a Receiver
appointed by the Trial Court. Because no judgment has been rendered in this case, discovery is
not complete, issues remain to be decided, and the asset at issue has not been sold and is being
maintained and preserved, a stay should be granted without requiring the posting of a
supersedeas bond.
III. CONCLUSION
In order to avoid judicial duplication, potentially divergent judicial rulings, and the
unnecessary expenditure of resources, fees and costs, this Court should stay the Appellate
Decision and all proceedings in the Trial Court until this Court determines whether to accept the
appeal, and if accepted, until this Court issues a decision on the merits. Therefore, this Court
should stay the Appellate Decision and trial court proceedings in the instant case without
requiring the posting of a supersedeas bond.
9 Irvine v. Akron Beacon Journal (Ohio App. 9 Dist.,2002), 147 Ohio App.3d 428, 451. See
Lomas & Nettleton Co. v. Warren (June 29, 1990), I tth Dist. No. 89-G-1519, 1990 WL 93138
(construing "sufficient sureties" language of R.C. 2505.09 to encompass no sureties in certain
cases).7
Respectfully submitted,
SIKORA LAW LLC
^---ichael J. Sikora III (0069512)
(Primary Responsible Attorney)Richard T. Craven (0082273)8532 Mentor AvenueMentor, Ohio 44060(440) 266-7777 (telephone)(440) 266-7778 (facsimile)msikora(crsikoralaw.comrcraven@ sikoralaw.comCo-counsel for Plaintiff Bank ofAmerica, N.A., Successor by Merger toLaSalle Bank National Association
8
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Motion to Stay of Plaintiff-
Appellant Bank of America, N.A. was served via ordinary U.S. Mail, postage prepaid, and
electronic mail where indicated on the 24a' day of June, 2011, on the following:
Carl J. Stich, Jr.White, Getgey & Meyer Co., LPA
1700 Fourth & Vine TowerOne West Fourth StreetCincinnati, Ohio 45202
[email protected] for Defendant Omega Design/Build Group, LLC
Meghan D. DonnellonThomas E. Donnellon
Donnellon Donnellon & Miller LPA9079 Montgomery RoadCincinnati, Ohio 45242
mdonnellon cy donnellonlaw.comtedgdonnellonlaw.com
Counsel for Defendant D.E.P.E., LLC dba Pella Windows and Doors
A. Dennis MillerDroder & Miller Co., LPA
125 W. Central ParkwayCincinnati, Ohio 45202
dmillerkdrodermiller.comCounsel for Defendant Tri-State Concrete
William A. HuddlesonGraydon Head & Ritchey LLP
511 Walnut Street #1900Cincinnati, Ohio 45202
whuddleson(cr graydon. comCounsel for Defendant Tru Wall Concrete Inc.
Peter E. KoenigBuechner Haffer Meyers & Koenig Co., LPA
105 E. 4th Street, Suite 300Cincinnati, Ohio 45202pkoenig(cr bhmklaw com
Counsel for Defendant Jacob Masonry Contractors LLC
9
Warren J. RitchieKeating, Ritchie & McGary5300 Socialville-Foster Rd
Suite 140Mason, Ohio 45040
writcliie(c^krslawyers.comCounsel for Defendant Osterwisch Company
Paul E. PerryLawrence M. Dudek
Miller Canfield Paddock & Stone, PLC5 11 Walnut Street, 19th Floor
Cincinnati, OH 45202perry(&millercanfield. comdudek(a millercanfield.com
Co-counsel for Plaintiff Bank of America, N.A.,Successor by Merger to LaSalle Bank National Association
Michael J. Sikora III (0069512)Richard T. Craven (0082273)Co-counsel for Plaintiff-AppellantBank of America, N.A.
IN THE COURT OP APPEALS5T "PELLATE TIIST'RIC"t' OF OHIO
HAMILfi+G'ti1Kl' COUNTY, OHIO
BANK C7p AMERICA N'A, SUCCESSORBY MERGER TO LASALLE BANK.NATIONAL ASSOCIATION,
Plaintiff-Appellant,
OMEGA DF SSGN/STJII.D'GR{3,T7P;LLC.,TRU WALL CONCRETE, INC.,THE OSTERWISCH COSrTPA147I°;^TTLi-STAT>ti CONCRETE, ;,JACOB MASONRY CO23TRA,C CORSLLC.,D.E.P.E., L.L.C., d/b/i'PElWINDOWS & DOORS,,
and
Ti3E OVERLOOK Al' RDENpAL+"i'AL.
Defendants.
'll
APR 06 1C31'I
C(JUF3 T OF APPEALS
I
Civi] Appeal F.tom: Hamiltoir Countq Court of Common Pleas
dn.dgment Appealecl From Is: Affirnied
Date of Judgment Entry on Appeal: Apr116, 2011
Daniel E. Izenson, Christy M. N'ageteisen-Btades, and IZ'eatin.g ,MuethinXCiekamp, and Michael J. Sikora III, Maria Mariano Guthrie, and Sikora Law LLC^.^ ,^ •^ ci }^^yfor Plaintiff-Appellant,
Carl J. Stiah and `SVhite, uetgey, and Myer Co., LPA, for Defendant-Appellee (7megaDesign/Build Group LLC.,
APPEAL NO. C-xooot.8TRI.A.I. NG1. A-o810535
I7LCISION.
PRFSEiVTEE) TO TFlE CLERK; aF-C17URTS FOR FILING
+DTdl+p T+IR'sI' DIST.Itt+C'Y COURT t3V EA1'Y'Er\I.3
William A. I3trddlesort and Graydon Head & Ritchey LLF', for S?efendant-.A..ppellee
Tru Wall Concrete,lnc.,
J: Ritcliie and Keaiing'l:itchie, for De{'endant-14ppellee The Qsterwasch
mpany,
Dennis Miller and Droder &°Mitler Co, LZ'.A, for Defendant-Appellee Tri-State
Concrete,
Peter E. Koenig and Buechner F3'a,ffer Meyers and Koenig, Co. LPA, for Defendant-
Appellee Jacob Masonry Contractors, Lt.C-,
.Meghan D. Donnellon, Thomas E. Donnetlon, and Donnellon, Donnellon & Miller
LPA, for Defendant-!'`PPellee D.E.P.E., LLC, db.a. Pella'Windows & Doors.
Please note: This case has been removed from the accelerated calendar.
2
'r AtS'r121C'r CI3TfIt'Y' OF A.I'PI?.A,i'.3
J. H17"WAl2.L9 Si7Nt'.1F,1'tMANNt JtYt'lge.
(11) In thSs foreclosure action, plaintiff-appellant Bank of .America (the
Bank) appeals from the trial coart's order denying its motion for surnma.ry judgmeitt
and granting partial suanmary judgment to defendants-appellees t7mega Design
Build Group, LLC„ Tru Wall Concrete, Inc., The (Jsterwisch Company, 'I'ri-5tate
Concrete, Jacob Masonry Contractors, LLC., and D.E.P.E., LLC, d.b.a. Pella Windows
& Doors on the priority of their mechanic's liens over the Bank's mortgage under the
prtrvisions, of R.C. Chapter 1311. Finding none of the 13ank's assignments of error to
be meritorious, we affirm the trial court's order.
I.Overlaok at Eden Park Condomi
This case involves a multistory luxury residential condominium
complex ("the project") known as The Overlook at Eden Park. The cotnplex is
owned by the defendant, Overlook at Eden Park L.P. ("tJvexlook"}. Bank of America
is the lender for the project. Omega Design Build is the prime contractor for the
project. Tru Wall Concrete, The,Qsterwisch. Company, Jacob Masonry, and ll.E.P.E,
are stibcontt•actors of {}mega. who have filed meehanie's liens, TriState Concrete
perfprmed work directly for Overlook and has also filed a mechanic's lien,
{13) The project began with the filing of an original notice of
comrnencement with the liantilton County Recorder on September i, 2005, A year
later, LaSalle Bank, Bank of Amer'sca's predecessor in interest, closed on a loan with
Overlook. On September 1S, 200'6, at 2:42 p.m., LaSalle Bank filed its mortgage with
the county recorder. Approximately three minutes later, a document styled
"Affidavit to Terminate Notice of Commencement" was filed, asserting that "all
improvements on and to the property which relate to work covered by the [original]
3
TIUCT CUUti'r UF A]P7k'7?.A.Z 5
notice of commencernent are completed ** * '." I'he affidavit pnrported. then to
ternsinate the original notice of commencement, stating zn relevant part as follows:
(14) "Affiant states 'tbat at the time of fiiing of this Affidavit all
improvements on and to the property which relate to work covered by the aforesaid
Notice of Comrnencement are complete and all monies due to the general contractor
and any subcontractors, materialmen and laborers for the completion of said
improvements have been paid aind the Notice of Commencement is terminated as to
this Property."
(}j51 According to the, Bank, the affidavit was filed "[t]o ensure that the
rnortgage was [the] first and best lien on the property." Approximatel)r one minute
after filing the "Affidavit to Terminate Notice of Commencement," a new notice of
commencement was filed. Tt identified exactly the same improvements on the
property as did the original notice: "construction of a tihirteen (13) story
condominiuin tower."
{116} The defendttnts-appellees performed work and entered
subcontracts for materials and services for the project. 'I"he Bank subsequently
c3eclared Overlook in default and refused to advance further fLtnrix for the project.
Overlook then stopped paying Omega ancl the remaining contractors on the project.
As a result, Omega and the othex contractors filed affidavits for meGhanio's liens,
iI. 'T'he Foreclosure Acdon
(^ 7) The Bank then filed the current foreclosure action, claiming priority
over the naechanic's-ifen claimants. Thereafter, the Bank and C7verloolc entered into
a consent order appointing a receiver to manage the property. The receiver was also
given the authority, among other things; to direct the completion of construction of
the unoccupied ;anits and common areas and to market, lease andJor sell the
4
OfCILI FIRST T.1r.STRicr COURT OF AI'P1:A.i.S
unoccupied condonainium units. The receiver ultimately reported that he had
obta'sned contracts to sell five condominium units, but that he had been unable to
eonvey marketable title to the units due to the liens o#'the mechanic's-lien claimants.
As a result, the bank sought to post a bond in place of the mechanic's liens, pursuant
to R.C. Y3a.t.tr, for one and a half times the value of the liens, so that the receiver
could consummate the sales of the five units.
{t$} A number of the mechanic's-lien claimants, including L3tnega,
objected to the proposed language in the bond. They argued that the bond did not
comply with the statute because it voided any lien junior to the Bank's mortgage
without providing any security to the junior lienholders, and because it also
permitted the release of the bond upon the invalidity of "any and alI" rnechanic's
liens. The mechanic's-lien claimants argued that to facilitate and enhance the
settlement of their claims and to narrow the issues for trial,, the trial court should
determine as a threshold matter the issue of priority between the Bank and the
moehanie's-lien clainiants.
{19} As a result, defendants-appellees filed partial motions for summary
ji3dgrnent, asking th^ court to htrld that their mechanic's liens had priority over the
Bank's mortgage as a matter of law pursuant to it.C. 1311.o4(A)(2). Their rnotloris
focused on a single'legaI issue: whether the aft'idavit of termination filed by Overlook
at the request of the I3ari.k had the desired effect under the nzechanic's-lien statutes of
"terminating" the initial notice,of commencement so that the Bank could file its
mortgage after the termination and then have Overlook file a new notice of
cc,mmencement one year later, thereby creating the essential hierarchy of recorded
docurnents necessary to allow the Bank's mortgage to have priority over the
mechanic's liens.
OF31'O nRST I.lYSTR^^.`:T COC7}2T OF
ItlAj In response to each of the tnotions, Bank of Aamerica timely filed a
Civ.R, 56(F) motion for additional discovery. When the trial court, at a subsequent
hearing, indicated its intent to rule on the merits of the d,efendants-appellees'
motions for partial summary judgment in the absence of the requested discovery, the
iled a response and a cross-motion for sumtnary judgment on the sole legal
of the priority of its mortgage over the mechanic's liens based upon the
termination procedure that it had employed.
ITI. The'1'rial Court's Order
{111} Follow'ing a hearing on the motions, the trial court ruled that; based
upon the plain language of R.C. t3ti,o4(A)(2), the effective date of the notice of
commencement for the Overlook project was September 1, 2005. The court held that
the affidavit terminating that notice was a legal nullity because it violated the statute.
Tbus, it held that the notice of commencement filed by the Bank in 20o6 was, in
effect, an amendinent that related back to the original notiee of commencement, As
a result, it granted partial summary jtadgment to the m.echanic's-.1ien claimants,
ruling that any valid mechanic's liens for work and materials supplied in connection
with the imp'rovements identified in the original notice of comniencernent would
have priority over the Bank's tnortgage. The aourt, however, expressly stated in its
order that it was reserving any determi:nation concerning the validity of the
individual tnechanic's liens. This appeal followed wit.h the Bank raising five
assignments of error for our review.
IV. Birxality of tlie Trial Court's Order
{112} Before addressing the m of the Bank's assigncnents of error, we
must first determine if we have jurisdiction to entertain the Bank's appeal.,
Defendants-appellees bave filed a motion to dismiss the panlt's appeal, arguing that
6
1]t2.ST D1STEtIC"r C(}URT o.i' 1ipPr3A1S .
the trial court's, order is not final and appealable because it does not meet the
requirements of either R.C. 2505.02 or Giv,TL. 50),
{113} The Bank, however, argues that the trial court's Entry is a final and
appealable order because It has addressed the priority of the l'iens in this case. It
relies on Queen City Savings & Loan C'o. v. Foley,' where the Ohio Supreme Court
clearly and unequivocally held that "[i)n a mortgage foreclosure action, a journalized
order determining that the'm©rtgage constitutes the first and best lien upon the
subject real estate is a judgment or final order frorn which an appeal may be
perfected."3 The supreme court underscored the ramifications and extreme
prejudice to a lienholder if sucb an order is not immediately-appealable by stating the
following;
(fld} "A lien holcler who is a party to a mortgage firrec.J.osure action and
who fails to perfect an appeal from a judgment determining the mortgage to be the
and best lien on the subject premises cannot ttrereafrer in on appeal from a
sutrsec)uent judgrrsent confirming such priority attac3r the correctness of such earlier
judgnyent,"
(ff15} The Bank argues' that the trial court's entry in eh'is case specifically
cletermined the issue of priori.ty ty rec3ting that "[the Bank's:] rno#gage C*'* *} is
*] junior to the tr7echanics lieris filed for work and materials (and] the
mechanics liens fled for work and materials supplied in coianection -with the
improvements identified in the Original Notice of Commencement are prior in time
and have priority over the mortgage of plaintiff Bank of Ameiica ;'
1(1960), i7a ()hio St, 383,165 N.E.2d 633•a id. at syllabus
7
()Hltl PIRS"CDs8`FRIC7' COU1t'C OF APP
{1I6) Both the Bank and defendants-appellees acknowledge that since the
Ofxio Stxprexne Court issued. its holding ix) Queen City, Ohio 'appellate courts have
varied on the question whether an order determining the priority of liens, but not
ordering foreclosure and sale, is final arid appealable, even if the court has not yet
ordered foreclosure or sale of the property."s Defendants-appe7]ees have cited a
nurnber of cases that hold such orders to be 9nterlocutory by distinguishing Queen
City on its facts,^ while the Bank has cited other cases that hold that such orders are
final and appealable.s
{117} After reviewing that case law, we find the decisionin 7'CIF Reo GCM,
LLC v. National City Bank to be most instructive on the finality of the order before
this court. In that case, the Eighth Appellate District ctinsidered'whether an order in
a foreclosure action deterrniniug priority between two lenders, wh',ch expressly
stated that it was partial and which clearly contemplated itrrther'proceedings to
complete the foreclosure and sale of the property, was final and appealable.6 After
the Queen Citlj case, the Eighth Appellate District held that altihoup;h the
syllabtts in Queen G`ity was somewhat broader than the facts of the case required, and
that it could distinguish Queen Citj from the orrler before it on its i'acts, the syllatxus
in f4hteen, Citt/ was ttnequivocal, and "pursuant to Rule r.(A)(a) of the Supreme Court
Rules for Reporting of f7pinions, the syllsibus of the supreme court's opiniort in
3$ee 7'CTF12eo GCM, LLC v. National City Bank, 8th L7ist. No. 92447, ?oo9-Ohio-4o qn, at 9t$.
a$ee Mtge Eteoironie Regtsiralivn Sys„ }nc. v. Ateskin, gtb Dist, No, a$7 a3 aoU7°ohto-6aq5 at
^(g; Amenquest Mtge Co. v, Niiddiebrooks, 6th T3ist, No. L-ob-xapb, zaoq-O^io-93, at 11x9.
e See St Ciair Savings Assn. v. Janson (r974), Ao Ohio App.2r1 2tx, ^a5, 3x$ N.E.ad 3$> TCIF,
supra, at 11x^ and tq; Washington Mu#. Bank v. Loveland> ioth Dist. No. o4AP-92o, gzoo5-0hio-
ig4a; at ¶8; Bank L1ne v. Jude, rath 1)ist. Iao, o2P-xa 68 , 2 o o3-Ohio-3343> ^t 1 xb; Frey Roa3^i6;D Id
L
ardtnat&JrQd.pSai ngs ^anik v^Thomas 6r Thamas Constr^^Co^ (Ag¢lihra9 7), ^thxDts ^No,lerSC
x334§ 7Y;IF, supra, at 9xo.
8
0141t1 F't:R51' S}Ys'rltlt.i'CCS'iS:itTOl;'ri;iPl'EALS
Queen City is controlling over the text or footnotes, where there is disharmony."'r As
a result, the Eighth Appellate District held that the trial court's order determining
that National City I3ank`s mortgage had priority over TCIF"s rnortgage was a.final
appealable order.8
{¶r8} We agree with tlie reasoning of the Eighth Appellate District in TCf.t'.
And although this court has riot expressly cited Queen City's syllabus, we have
recently acted consistently with the explicit syllabus holding in C7ueen City by
exercising jurisdiction to review decisions on motions for partial summary judgtnent
that have determined only the priority of liens against real property.9 For these
reasons, we hold that the trial court's entry in this case is a final appealable order,
V. Analysis
(^1+Ij In its first assignment of error, the Bank argues thst the trial court
erred in granting the defendants-appellees' motions for summary judgment and.
denying its cross-motion for snmmary judgment on the issue of the priority of its
mortgage over the liens of the rnechanie's-lien claimants.
{VQ} "Suntrnary juc3.gnaent is appropriate where there is no genuine issue of
material fact, the rnoving party is intitled to judgment as a matter of law, and the
evidence ciemonstrates that reasonable niinds can corx,e to but one con lusiun, anrl
that conclusion is adverse to the party opposing the motiun. We revieNa the entry of
sutnnzary judgment as a matter of law under a de novo standard.",
7 Id, at Ix2 and rq..e Id, at 114.s More uit^ Inc. v. Fij•th•171ird Nati. Bank, ast Dist. No. 4o8o82q, 2oog-C7hio-2735, at il7°9; Old
Repub2^ic N^ati.lYtle Ins, Co. v, Fiftli 1'hird Bank, lst ]^ist. No. C-o7o567, 2006-Ohio-2054, at i19-
ro. ohio 7a2^. at 1,5.10 Morton v. Contintental Cas. Co., ist I>ist. Nos. C-ogo77^. and. C-e3e7o,q,9 oo4
9
01{10 FTIi.ST I"lI^aTR]fCT COURT t!Y' A.llp1?.A.T..̂3
{1f21 e priority rlispute in this case revolves arouncl R.C, 13xx.04, which
he owner of property on which work is to be performed to file a notiee of
commencement prior to the performance of any labor or work or the furnishing of
materials. The notice of commencement establishes the priority date of liens for any
subcontractors or materialmen on the project ideritified in the notice. R.G.
1311.ig(,h)(2) provides that all mechanic's liens are effective from the date of the
recording of the notice of commencement.r' Thus, once a project has commenced,
those who perform work or provide materials are entitled to rely upon the
commencement date to fix the priority of their liens.
R.G. t3xr.o4(A) adopts that policy in unequivocal terms for only one
notice: "Only one notice of commencement is required to be filed for a single
improvement and if more than one notice of commencement is filed for a single
improvement, all notices filed after the original notice shall be deemed to be
amenrlments to the original notice ***,'The date of the filing of the amended notice
is the date of the filing of the^origin¢al notice of commencement.°'^
case that the statute does not explicitlyliank argues in this
pxohibit an °Afifidavit of'.fermination ofl+lotice of Cammencernent." i3ut it is not the
"Affidavit of "1'erinination" itself that crentes the problein in this case. Ra:the^ir, it is
the use of an aff'triavit of termination, followed immediately by.the filing af a second
notice of commeneement for eiactly the same improvernent, that runs afoul of the
statute, If the project had actually been terminated, the owner could have filed an
affidavit of termination. If the project was at an end, and contractors were no longer
furnishing materials or labor, the existence or nonexistence of a notice of,
1, R.C. x3zas3(A){2).4 ft.C. 1311.04{A7(2).
10
01210 FIRB'r 77TS'1'ILiC'1' CO'C7YCT UIi A'C'Pr3Ail
ould have beenbe meaningless, But that is not what happened in
The real violation of the statute was the 13ank's attempt to restart the lien
clock by terminating the original notice, filing its mortgage, and then refiling the
notice of conimencement as an express means of gaining lien priority for the
mortgagee.
{124} An explicit prohibition on the owner terminating the original notice is
u:nnecessary when the very operation of the statute is inconsistent with the
canceAation and refiling of a notice of commencement as a means of circumventing
the statute. Ii the General Assembly had intended to permit such an artifice, it would
bave stated that any subsequent amendment would be effective from the date
specified in the amendment, or that the notice was effective until cancelled and re-
filed. instead, the legislature worded the statute to provide for only one notice, for
all subsequent notices to be amendments, and for all amendments to relate back to
andThe contents of the notice of c.ommencernent can be changed by
a,mendment, but the effective date of the notice remains the date
faling.
of the original notice, 1'he language of the statute preclndes cancellation
e original
{^(25} '1"hat is not to sa3r that an owner is prevented frorn filing a new notice
if there is a new and different improvement to real property. For exainple, if
Overlook had constructed a garage on the property after building the condorniniam
tower, that "single improvement'" would not have been the same as construction of
the condominium tower itself. A new notice of commencement could have been filed
for that new improvement, andl it would not have related baclz to the notice for the
condorniniurn tower itself. But,that is not what happened here. The °new" notice of
commencement listed the same improvement specified in the original notice-
xt
OHIO PtiisT owrtzrc,°r Covxr or
constructir;ts of a x3µstoty condonxinium tower. Tlxe averznents of the affidavit
purporting to cancel the original notice of commencement were simply untruey the
work on the improvement was riot and could not have been completed. lloth notices
related to the same improvernent, and the second was, therefore, by law an
amendment to the original notice that was effective as of the original filing date.
(T26} "The first rule of 'statutory construction is that a statute which is clear
is to be applied, not construed, `There is no authority under any rule of statutory
construction to add to, enlarge, supply, expand, extend, or improve the provisions of
the statute to meet a situation not provided for.' [T'he court'sj obligation is to apply
the statute as written."'3
('¶27) `<ln construing a statute, courts have an obligation to give effect to the
ion of the general assembly. In determining legislative inteint, courts must first
look to the language of the statute. If the language conveys a meaning that ic clear
and unequivocal, interpretation is at an end, and the^ statute must be applied
accordingly,"14
1',l2ii) The reqairerraeatt that there can be only one notice of c.o7nanencement
for an improvement on real property and that any subsequent notices for that
improvement are deenred anrendmettts is clear and unecluivocal. Given the
unaanbiguous language of R.C. 1311.04(A)(2), we conclude that the only possible
effective date of the notice of coramencement for the Overlook project••-and hence
the eflective date of the mechanic's liens for improvements on the property-was
when the original notice of cotnrnencement was flled on September 1, 2005. The
+a Vought Industries, Inc. v. Tracy, 72 Ohio St.gd 261, 265-66, r995-Ohio-i8, 64B N.E.2d 1364,
quoting Stat€ ex re], Foster u. Evntt (i944), yA-0 Ohio St,65, 56 N.E.2d 265, paragraph eit;ht of the
syllabus.xa Basic Distrib, Corp. v. Ohio Dept` of Ttcxcttion, 94 Ohio Si.3d 287, 291, 2oo2•Ohio-794, 762
N.E.2d 979.
12
•affidavit purporting to cancel tltat nokice of commencement was nzeaningless. The
notice of commencement filed in September 2oo6 related to the same improWernent
speci6ed in the original notice andzn.ust be treated as an amendment that related
back to the original notice.
(V9) The Bank argues, nonetheless, that Ohio lien law is to be strictly
construed against the mechan'ic's-lien claimants. But the cases it cites for that
principle address compliance of the lienholders themselves with the requirements of
the statutes. For example, Crock Constr. Co. v. Stanley Miller Constr. C0.'5 and C.C.
Constance Fr S'ons v. Lay'b denied relief based upon deficiencies in the mechanic's-
lien affidavits. Manpou.^er, fnc. v. Phiitips+% and Robert V. Ciapp Co, v. Fox's held
that the clairnants ivere not proper suppliers and were therefore not entitled to file
liens iri the first place. None of those eases allow owners or lenders to subordinate
mechanic's liens by unilaterally cltanging the attachnteut date of the liens. None of
those cases grant owtiraers carte blanche to engage in unauthorized filings as a rneans
(1(3Q) Ohio courts havd stated that strict compliance v+dt.fx the statute
requ3red for a lien to attach, but "once a lien has attached, the procedural and
retnedial provisions should be liberally construed:'19 •1'he rule of liberal construction
in favor of the mechanic's-lien claitnants is embodied in the legislative mandate that
the lien statutes "are to be construed.liberally to secure the beneficial results, intents,
is 66 Ohio St,3d 588, i993-Ohfo-2xa, 613 N.E.2d 1027.1e (1930),122 Ohio St. 468,172 N.E.sd 283,37 (x96z), x73 Oh9o St. 45,179 N.E,2d 922,,s {i9̂3i), 124 Ohio St. 331,178 N:E.^d 586. 1 8th Dist. No, 49433•1vrilirtlnnd-East Sales Corp, u. Adarns Sewer, Inc. (Oct. 3, 985),
13
UIiXiS FIRST DYNat"RiCI' COURT OF A'PPL^:A.I.S
and purposes thereof; and a substa.ntial coinp]iance with those sections is su
' * * * "gpe validity of the liens turder those sections .
The holdings cit6d by the Bank neither require nor pern3it the courts
to rewrite statutes to allow an ovnaer to stop and start the lien clock at wi13. Basic
rules of statutory construction still apply, as attested by the holding in one of the
cases upon which the Bank itself relies: "Tt is a general rule that coints, in the
interpretation of a statute, may not take, strike, or read anything orzt of a. statute, or
delete, srrbtraet, or omit anything therefronl. To the contrary, it is a cardinal rule of
statutory construction that significance and effect should if possible be accorded
every word, phrase, sentence, and part of an act."2'
{¶32j To adopt the Bank's interpretation of the statute, this court would
have to delete everything after the first clause af lt.C, 1311.04(A)(2). Doing so would
allow an owner (most lWely under compulsion by a lender) to nullify,the lien riglrts of
contractors and retroactively make those rights junior to the rights of a mortgagee.
The legislature took specific steps to prohibit that, and those prola `ibitions cannot be
judicially repealed.
(¶33) Moreover, the Ilanlc's contention that a notice of cornmencenlent
exists for "eternity" is an overwrought objection to the plain framework of the x9ga
I:f the irnproveanent described in the notice of corntnencrment has been
finished or abandoned, the notice ceases to have nzeanillg. A supplier ar contractor
cannot file a legitimate lien foi a project that does not exist. If a new pro}eot is
undertaken for the same real estate, it would cause the owner to file a new notice of
commencernent for,a new and different improvement to the real est.ate.
so R.C. 1311.22. $ N.^.2^r Wachendorf v. Shauer (r.948), xA4 Ohio St. 231, z37, 7 70.
' 14
O11IO Fi1LS'r'ISISTR.IC'1" COURT OFAI'k*EA:
(¶34) By specifying just one effective date for the notice^^af comrnencement
on a given intprovement, the General Assembly sought to insure certainty for
everyone involvecl in a given project. It did so by tying key events to the notice of
commencement. The General Asserttbly avoided the risk of confusion by providing
in R.C. 1311.13(A)(2) that mechanic's liens "for labor or work performecl or materials
furnished after the recording of a notice of commencement pursuant to section
1311,04 of the I2et*ised Code are effective from the date of recording of the notice of
encement," The statute refers to the "notice of commencement" in the
singular, not the plural. A reading of R.G. Chapter 1311 in its entirety makes it
apparent that the legislature intended R.C. 1311.04 to be the linchpin for establishing
the rights, duties, remedies, ancl. safeguards for both owners and mechanic's-lien
,ants. 1"hat i's why the normal practice for a construction lender is to insure that
recorded prior to the recording of the notice of comnlencesnent to
,1voSd any priority i ssues.
{135) h'inally, the Bank argues that the legislature amended the lien law in
2007~--after the relevant events in this case-to signal what it meant to say in '1991.
The new provision did not change R.C. 1111.04(A); instead, it added an entirely new
8), which states, "A notice of commencesnent filed as provided herein
expires six years after its filing date unless the notice of comrz1e11eeznent or
amendments made to the no,t3ce of commencement specify otherwise." The
provision does not state that a new notice of commencement may then be filed for
the same improvement, or that one can "amend" a notice to revoke it retroactively.
(1136} Nonetheless, thelBank argues that this new provision is proof that in
iqqi the General Assembly intended to allow the type of artifice forced upon the
owner in this case. Of course, if the Bank's interpretation of R.C. 1311.04(A) were
15
0}[10 FIRST DISTRICT CoUlt'r {7F .El.'t'i'L'A.I.S
the amend7nent of the statrite in 2+ao7 would have been unnecessary.
anything, the atnendment of the statute after the relevant filings in this case con
that prior to March 2007 there was no statutozy sunset, on a notice of
commencement for a specific improvemen#. But even under the new section, there is
no provision for niultiple notices of conranencement or affidavits of termination.
{^37} The real impact of the amendment is far more mundane. Under R.C.
igli.ag(C), a mechanic's lien expires six years after the date it is filed witli the county
recorder. The new provision makes the duration of the notice of commencement
consistent with the life of a mechanic's lien, i.e., the notice of commencement cannot
have a longer life than the mechanic's liens it spawns. Nothing in the legislative
history indicates that the General Assembly amended the statute to allow the type of
stratagem attempted by the Bank in this case, nor did the General Assembly voice
concern that R..C. i.3is.04(A) had been znisunderstood. zf that were the coizcern, the
obtiotis solution would have been to amend Tt.C'. 1311.04(A) itself, not to add a
sunset provi.sion to the enci af tlie statute.
Based itpon our review of the undisputed facts in this case tand the
plain language of l^..C. t3z.t,o*i, we cannot say tilat the trial court ea^red by granting
stzmtnary judgment to the defendants-appellees aiid t>y deziying the 13ank's cross-
motion for summary judgtnent. We, therefore, overrule the l3ank's first assignment
of error.{11391 In its second assignment of error, the Bank argues that the trial court
erred in deriying its Civ.R, 56(F)i motion for additional discovery.
t')H:Sa Fr'RST 171,^;Tr+..ZCT (,"t1t7RT t7'p t1.7[YPlf?.ASS
N40} `"I"he deci additional time under Civ.R. 56(p') is within
souncl discretion."92 "Thus, the trial court's decision to grant or deny
a motion for continuanee pursuant ta Civ.R. 56(F) wi1l not be disturbed on appeal
unless the court abused its discretion. *** The party seeking a continuance under
Civ,R. WF) bears the burden of demonstrating that it is warranted."23 When a party
fails to show that evidence sought by the motion would have precluded the entry of
summary judgnient, a trial court's denial of the motion should be upheld.24
{141} Here, the Bank's`Civ.R. 56(F) motion was premised on the need for
discovery from the defendants-appellees regarding the validity and amounts of their
individual mechanic's.liens, As a result, the defendants-appellees narrowed their
sumrnaryjudgment motions to focus exclusively on the issue that could be resolved
without further discovery: the effective date of the notice of commencement, with
any issues regarding lien validity reserved for further proceedin.gs. The trial court's
g addressed that narrowed issue, which could be resolved by reviewing the
>uted fa.lings with the county rer.order.
{ll42) Ttecsxuse t}tc trfaI coul-l's roling merely applied the plain lunguage of
the statttte to those uncontested filing dates, no other evidence was relevant to a
deterniination of that issue before the trial aourt. The trial court, furthermore,
ssly stated in its entry that it was not ruling upon the conduct of the parties or
the validity of any particular liens. Therefore, if Omega's canduct or that of some
other lienholder could possibly provide the Bank with defenses to enforcement of the
liens, those defenses can be raised when the trial court rules upon the validity and
22 Ramos u. Khawli, 181 Ohio ApP•3d 1* 2oo9-ohio-798, 9o8 NiE.2d4o95^hio^7 at x2 and
23 Cassner u. Bank One'Trust Co„ N.A., i.oth Dsst. No. C-ogAP- 4, 04- 3}S4, i
18." See State ex rel. Denton u, 8edinghaus, 98 Ohio St.3d a9$, 2oo3-dhio-861, 784 NX2d 99, at
131-32; see, also, Batl v. Hilton Hotels, Inn. (2972), 32 Ohio App.2d 293, 295, 29o N.E.zd 859.
17
TT.tTGx' Ci}'(7S2"r i7I" EL1PII"El+TS
amor.tnts of the liens. Because the discoVes'y sought by the Bank was xrot ►recessary
for the court's resolution of the issue before it, the trial court did not abuse its
discretion in denying the Tianlc's motion fcrr additional time to coriduct discovery. As
a result, we overrule its second assignment of error.
1y{43} Tn its third assignment of eiTor, the Bank argues that the trial court
erred in granting summary judginent to the de.fendants-appellees when they failed to
I
attach to their motion, or point to,_evidence that complied with CivEt. 56(C) and (E)..
{144} The only evidence germane to the issue before the court in the cross-
motions for summary judgment concerned the filing dates of the notices of
commencement, the Bank's affidavit to terminate the original notice, and the Bank's
mortgage. The filing dates for,the documents relevant to that determination were
uncontested. The Bank in its response and cross••motion for summary judgrssent did
not refute these facts, but based its argurnent upon the same sequence of filings, and
it attached an affidavit of its own expert attesting to the same documents upon which
the defendants-a,ppellees had relied.
}145) On appeal, the Bank bas cited the sarne history of tilings and has
argued based ripon thrase filing that it, not the defendants-appellees, was entitled to
judgment as a matter of law. So even if the defendants-appellees had failed in their
initial filings to tetider an af.f'idavit with certified copies of the documents, the Bank
has effectively waived any objection to the court's consideration of the uncontested
facts represented in those docutnents-the dates and sequence of filing of the original
notice of commencemertt, the affidavit of termination, the mortgage, and the second
notice of commencement.'s
2s See, e.g., R.obinson v. Gonsiteirner, 2007-Ohio-3845, at912-13 (no error to considerunauthenticated records where appellant filed cross-motion for summary judgment, reciting facts
i8
O1110 F1Ss'T' 7)TBTttitCT Gf>TJ3tT t'Jr At,*Pk.
the only issr.7e decided by the trial court was the effective date
of the notice of commencement in comparison to the effective date of the mot-rgage,
ttatd beeause those filing dates were uncontested, there was no need for t3ae
defenda.nts-appellee:s to introduce additional evidence in support of their motions for
summary judgment. Because the defendants-appellees fulfilled their Civ.R. 56
burden as to the narrow issue on which sunimary judgtnent was granted, the burden
was on the Bank to demonstrate a disputed issue of material fact, which it could not
do because it had admitted the only facts relevant to the motions and cross-motion?a
As a result, we overrule the Banik's third assignment of error,
1147j In its fourth and fifth assignments of error, the liank argues that the
trial court'erred by granting sutnmary judgment sua sponte in favor of parties that
had not filed motions for summaty judgment and by decidittg issues that had not
been raised or briefed by the parties.
(^48) In its entry, the trial court stated that it wvas only detertnining priority
based upon which notice of commencement was effeative. The trial court, furthermore,
expressly stated thstt it was "reserv[ing] [aj ruling on the validity of specific mechanics
liens pending further proceedings." The Tla,tik additionally surrendered its right to
cotnplain aboui: an adverse tuling'when it Ned its cross-motion for sumrnary,judgment.
0 'While Civ.R. 56 does not ordinarily authorize courts to enter summ.ary juclgment in
favor of a non-moving party an entry of summary judgtnent against the moving
patly does not prejuClice his due process rights where all the relevant evidence is before
consistent with contenis of uncertified eapies); 7nternnti. Bhd. ofElea. Ytrorkers o, Smith (t9g2),76 Ohio ppp.3d 652, bbo, 602 N.E.2d 782 (barrnless error to oonsider unveztified exhibits whenappeAant did not ehalle authentidty).
19reslte3v. Burt (:t99b),ng e 75 ohio St.3d 280, z9r°662 N.E.2d 261 (' Movant must be able topoint to evidentiary material in the record, but there ts no requirement in Cio,R. ,̂6 that the
u
uf
s
ilap aterials produded by the movanZi'^ (E phas sn^n a yt girt I,]j eeatdence, i.e.,
nla
m
Cdav^itsor syiin
i9
()T^TYU 1~[T{S'r L?YS1"R3CT G"'O'IJR"r OP A;.PS>EAI:.."z
the court, no genuine issue as to.:a.ny material fact exists, and the non-moving party is
entitled to judgmexrt as a nnsatter of law; "2^
(^49} Here, i17e 13anlc argued the legal issue from an nncozitested set of facts.
It cannot now protest that other par4ies will have benefatted from the fact that it was
wrong. As a result, we overrule the fourth and fifth assignments of error,
vIT, Conolusion
(¶50} Having found nizrie of the Banlt's assignments of error to be meritorious,
we affirm the judgme'nt of the trial court.
Judgment affirmed.
:HnNnt►ta,J., concurs.CC7NN72+rG1IAM, VJ,, C1TSSe:
CT3JvNINGCLaNT., ]'J., dlsse'.
{li) I respecttfully dissent. Unlike my colleagues, i cannot reach the merits of
ttYe I3an..k's assignments of error on appeal, because the entry from which it has appealed
is not a final appealable order.
'11-As court's jurisdiction is litnlted to the review er[sJ,
ent[s), or decree(sl:'28 Wliere, as here, the ackion invnlves rnt.lltiple pa
multiple claims, this court mvst engage tep analysis by first determining if the
is final within the requirements of R.C. 2505.02. If the order crnuplies with R.C.
2505.02 and is in fact, final, the court n-•tust fihen deterrnine if Civ.12. 54(B) langtrage is
•ed?s
^7 Todd Deu. Co. v. Morgan, n6 Ohio St•.3d 461, 2oo8-0hio-8,, 88o N,E.2d 88, af'px6, quoting
Stute ex re1. Cuyahoga Cty. Hosp. u, Ohio.Bureou of Workers Cornp. (1986), 27 Ohio 8t.3d 25,
28, yoo N.E.2d 137o; but, see, Lawtess u. lndus. Comm. of Ohio (Mar. 26,1997), ist Dist. No. C-
96ogao.'e A.C. 250,5.03; Section 3 (B}(2}, Article IV Ohio Gonstitution.^ J€nham u. New Car?zsle, 86 Ohio SY.g^ ^g4, 596, i99-Ohio-z28, 716 N.1;.2d 184; Sullivan u.
Anderson 7'wp., 122 Ohio St.3d 83, 26o9-Ohlo-797i, 9o9 N.E•2d 88, at tlio.
20
0I110 I'TPST .I?1S712TCT G'CYTJ1iT OF Al''T']^^A.1F±3
The order being appealed fram in this case provides, #n pertinmzt part, as
s: "The court theref"ore, fintis that tneehanics' liens filed for work and tnatezials
supplied in connection with th^ improvements identa!'ied in the prigirial Notice of
Commencement are ptior in time and. have priority over the mottgage of the plaintiff the
Bank of America, and to that extent the DefendanCs' motions are GRFaN'I'CT), and
T'laintiff's motion is O'VE3tRUl.EI7. Tlis Court reserues ruling on the validity of specific
rnechanics'tfens pending {urtherproceedings.° (Emphasis added.)
('¶4} In holding that the entzy is final, the majority relies solely upon the
syllabus paragraphs in Queen City Savings and Loan Co. v, Foley, which provide that a
court's order or judgment that determines the priority of liens is a final and appealable
order, The majority reasons thai because the order in this case stated that the Bank's
mortgage was junior to the mechanic's liens filed for work and matens}s supplied in
connection with the improvements identified in the original notice of cornmencement,
determined the pxiority of the lieus and, tlrercfore, is iiritnedi.itely
appealai}le.
{¶5^ "1'ha majority's reliance on Qua.eya CYty is tnisplaced. Queen 01y does aaot
apply because any determination of priority in this case MInot occur until the court
rules on the validity of the rszra:iianie s liens. Until the trial c:otzrt rtrles lhat the
meclianic's-lien claimants have valid liens under the original notice of conrmencernent,
no relief has been af'Eorded to any party. "i'he trial coure itself anticipated further
proceedings by ac;knowledging that its order did not determine the validity and
enforceability of the niechanic's liens of the appellees and the other, defendants in this
case.
21
O;fTIO FIRST UI5':l`P.ICT COURT t>F t1i''f'W
{1(61 Because the trial aourt's order arenrains an xnteriocutory order: an
interim or tetnporary order that is `tentative, informal, or incornplete,'30 that is
subject to change or reconsidezetion upon the trial court's own znotion or titat of a
party, and that does not determine the action and prevent a,judgment,"3, it is not a
final appealable order, and this court is without jurisdiction to entertain the Bank's
assignments of error on appeal. For that reason, I would distniss the Banlc's appeal.
Please Note:
The court has recorded its own entry this date.
9d Yantek v. Coach Builders Ine., ist bist, No. C-o6o6oi, 2oo7-t)hio-5126, at1z4, quoting Cohen
v. Beneficiat Indus. Loan Corp. (1.q4g), 337 U.S. 541,546,69 S.Ct. 1221.s,* Id, at'px4, citing R.C. 25o5.oa(B){i) and Pitts u. Dept. o,fTransp. (xg$x), 67 Ohio St.2d 378, 423
NX.2r1 iio5, fn, i.
22