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Jo Dee Fantozz, Treasurer v. Paul Clark

October 14, 2011

JO DEE FANTOZZ, TREASURER APPELLEE
v.
PAUL CLARK, ET AL. APPELLEES [AMERICAN GENERAL FINANCIAL SERVICES APPELLANT]



Trial Court No. 2007-CV-0241

The opinion of the court was delivered by: Yarbrough, J.

Cite as Fantozz v. Clark,

DECISION AND JUDGMENT

{¶1} Appellant, American General Financial Services ("American General"), appeals from a judgment of the Erie County Court of Common Pleas, in which the trial court denied its Civ.R. 60(A) motion to amend the judgment entry of foreclosure. For the following reasons, we affirm.

{¶2} In April 2007, the Erie County Treasurer initiated a foreclosure action due to a tax delinquency on property located at 14216 State Route 113, Wakeman, Ohio 44889 ("the Clark property"). Paul Clark doing business as Clarks Auto Body ("Clark"), Linda Clark, and Clarks Auto Body were named as defendants. Also named as defendants were lienholders on the Clark property including appellant, Echo Valley Golf Club ("Echo Valley"), and CACV of Colorado, LLC ("CACV"). Appellant and CACV filed answers and cross-claims against the Clarks. On July 31, 2008, over one year after the initial complaint, the Erie County Treasurer filed a notice of voluntary dismissal as the Clarks paid their delinquent property taxes in full. Thereafter, on August 5, 2008, the trial court notified the remaining cross-claimants that they were to file dispositive motions no later than September 2, 2008, or the court would dismiss their claims pursuant to Civ.R. 41(B)(1) for want of prosecution.

{¶3} In response, Echo Valley filed a motion for leave to file a cross-claim, a cross-claim against Clark, and a motion for summary judgment, which was granted by the trial court on October 28, 2008. In the same judgment entry granting summary judgment to Echo Valley, the trial court dismissed the cross-claims of appellant and CACV pursuant to Civ.R. 41(B)(1) because they failed to file dispositive motions or take any other action. The record reflects that appellant was sent notice of this judgment entry.

{¶4} On November 18, 2008, the trial court issued a judgment entry of foreclosure on the Clark property which marshaled the Echo Valley lien. The order directed that the Clark property be sold and that the Erie County Clerk of Courts was to be paid first from the proceeds of the sale, with second priority to the Erie County sheriff, and then to Echo Valley, with the remainder to return to the Clerk of Courts for later disbursement. The Clerk was directed to serve all parties, including appellant, of the judgment entry of foreclosure, pursuant to Civ.R. 58(B) and 5(B).

{¶5} No action was taken on the case until March 2010, when American General appeared in the trial court and sought leave to file an amended answer, cross-claim and counterclaim. These motions were denied by the trial court on April 21, 2010.

{¶6} Thereafter, on June11, 2010, appellant and Echo Valley filed a joint motion to amend the November 18, 2008 judgment entry of foreclosure, pursuant to Civ.R. 60(A). In this motion, appellant sought to have its lien marshaled on the judgment entry of foreclosure. The motion did not include a certificate of service. Subsequently, on July 27, 2010, appellant voluntarily withdrew its motion and contemporaneously filed an identical joint motion with a certificate of service. Linda Clark opposed the motion.*fn1

{¶7} In denying the joint motion, the trial court noted that its judgment entry of foreclosure was final and appealable, and therefore the proper remedy for appellant would have been to file a notice of appeal within 30 days from that judgment. The trial court also stated:

{¶8} "Assuming arguendo, that this Court had the ability, over eighteen (18) months after the fact, to amend a Final Appealable Order, this Court could not ascertain the proper amount of any judgment to be awarded to American General. American

General never moved for judgment and failed to establish the amount of its interest. The Cross-Claim in which American General sought to obtain a money judgment against the Clarks and foreclose upon this parcel of land, was dismissed on the merits (i.e. 'with prejudice') and any attempt to now obtain a money judgment and seek to Foreclose would be barred by res judicata[.]"

Appellant filed its notice of appeal on November 4, 2010, and its merit brief on January 10, 2011--three days after it was required to file its brief in this court. Further, after requesting and being granted leave to amend its issue presented for review, appellant failed to file an amended brief. ...


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