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Whipps v. Ryan

Court of Appeals of Ohio, Tenth District

September 30, 2013

Edward F. Whipps, Trustee, Plaintiff-Appellee,
v.
James M. Ryan, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 05CVH-10-11685

James M. Ryan, pro se.

DECISION

CONNOR, J.

(¶ 1} Defendant-appellant, James M. Ryan ("Ryan"), appeals from entries of the Franklin County Court of Common Pleas confirming the sale of property and ordering deed and distribution; approving the receiver's final report; terminating the receivership and releasing bond; and approving the receiver's final application for approval of fees and costs. For the reasons that follow, we sua sponte dismiss the appeal for lack of final appealable order.

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} This case concerns several parcels of land located on East Main Street in Columbus, Ohio ("the property"). The dispute over the property has spanned several years and has been extensively examined by our prior decisions. See Whipps v. Ryan, 10th Dist. No. 07AP-231, 2008-Ohio-1216 ("Whipps I "); Whipps v. Ryan, 10th Dist. No. 08AP-838, 2009-Ohio-2228; and Whipps v. Ryan, 10th Dist. No. 10AP-167, 2011-Ohio- 3300 ("Whipps II "). The following facts are relevant to the disposition of the instant appeal.

(¶ 3} In November 1990, Ryan and Michael F. Colley executed two promissory notes in favor of The Ohio Bank. The face amount of the first note was $130, 000, and the face amount of the latter note was $570, 000. At the same time, Ryan, Colley, and Fred H. Pitz executed an open-end mortgage, an assignment of rents, and a security agreement to secure the obligations under the promissory notes. In July 2001, Ryan and Colley executed a promissory note in favor of Sky Bank, with the face amount of $400, 000. The November 1990 mortgage secured the $400, 000 note. In August 2005, Colley quitclaimed all of his interest in the property to Edward F. Whipps ("Whipps") in trust. See Whipps I at 2-6.

(¶ 4} In October 2005, Whipps filed a complaint for partition against Ryan. On January 17, 2006, Ryan filed an answer and a counterclaim against Whipps for contribution. Ryan's counterclaim asserted that he had made substantial improvements to the property, paid real estate taxes, and made mortgage payments, thereby benefitting Whipps' ownership interest in the property. Whipps replied to Ryan's counterclaim, asserting that the counterclaim was barred by the doctrines of laches, waiver, accord and satisfaction, and estoppel.

(¶ 5} In January 2006, Sky Bank filed a complaint for money damages against Ryan and Colley regarding the $130, 000 note. Sky Bank alleged that it was the successor in interest to The Ohio Bank, and that Ryan and Colley had defaulted on the promissory note. Colley filed an answer to Sky Bank's complaint and filed a cross-claim against Ryan. Colley's cross-claim alleged that Ryan breached an agreement with Colley, whereby Ryan had agreed to manage the property, account for rental income, and pay expenses associated with the property. Ryan filed an answer to Colley's cross-claim acknowledging the management arrangement, but denying that he had breached the agreement. Ryan also filed a cross-claim against Colley, asserting a claim in quantum meruit for Ryan's management services and claiming that Colley breached an agreement Colley had with Sky Bank and Ryan by failing to make payments on the note.

(¶ 6} On February 7, 2006, Sky Bank filed a motion to intervene in the partition action, noting that it held a mortgage on the property which was the subject of the partition action. The trial court granted Sky Bank's motion to intervene, and Sky Bank filed an answer to the partition complaint, as well as a cross-claim and counterclaim for foreclosure.

(¶ 7} Ryan answered Sky Bank's cross-claim for foreclosure on July 5, 2006. Ryan also filed a third-party complaint against Colley, alleging that Colley was jointly liable as a joint maker on the instruments which were the subject of the foreclosure action, and that Colley was liable to Ryan for contribution. Colley filed an answer to the third-party complaint.

(¶ 8} On August 3, 2006, Sky Bank moved to consolidate the partition/foreclosure action and the money damages action. The trial court granted Sky Bank's motion to consolidate. Thereafter, Sky Bank filed a motion for summary judgment on its cross-claim and counterclaim for foreclosure, and on its complaint for money damages. Sky Bank asserted that the amount due on the $130, 000 note was $72, 023.25 plus interest, and that the amount due on the $400, 000 note was $335, 666.89 plus interest. The court granted Sky Bank's motion for summary judgment on March 16, 2007, and issued a decree of foreclosure and order of sale on April 19, 2007.

(¶ 9} On May 23, 2008, Sky Bank moved to substitute DB Midwest, LLC ("DB Midwest"), noting that DB Midwest had purchased the loans which were the subject of the action. Sky Bank filed a motion for appointment of a receiver on July 16, 2008. The trial court granted the motion for substitution and the motion for appointment of a receiver.

(¶ 10} On November 5, 2009, Boca Environmental, Inc., filed a motion to intervene in the action, asserting that it was the purchaser of five tax certificates related to the property. The trial court granted Boca's motion to intervene, and Boca filed an answer and cross-claim on January 25, 2010. Boca attached the tax certificates to its cross-claim and asserted that, as the purchaser of the tax certificates, it was "vested with the first liens previously held by the State of Ohio and its taxing districts for the amount of taxes" on the property. (R. 227; Boca's cross-claim, ¶ 5.)

(¶ 11} The sheriff sold the property to Metro Properties, Inc., Premium Financial Corporation, and Diamonds in the Rough Investments, LLC ("bidders") on December 23, 2011 for $400, 000. On March 5, 2012, the bidders filed a motion to set aside ...


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