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Bank of America v. Telerico

Court of Appeals of Ohio, Eleventh District, Portage

April 10, 2017

BANK OF AMERICA, A NATIONAL BANKING ASSOCIATION, AS SUCCESSOR IN INTEREST BY MERGER TO MERRILL LYNCH CREDIT CORPORATION, Plaintiff-Appellee,
v.
LOUIS A. TELERICO, et al., Defendant-Appellant.

         Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 01105.

          David A. Freeburg, McFadden & Freeburg Co., L.P.A., (For Plaintiff-Appellee).

          Susan J. Lax, (For Defendant-Appellant).

          MEMORANDUM OPINION

          DIANE V. GRENDELL, J.

         {¶1} This appeal is taken from a judgment in which the Portage County Court of Common Pleas granted the motion for summary judgment of appellee, Bank of America, a National Banking Association, as Successor in Interest by Merger to Merrill Lynch Credit Corporation. Appellee sought, inter alia, judgment on a note and mortgage, specifically, "judgment against Defendant Louis Telerico in the amount of $3, 661, 288.31" and "an order of foreclosure."

         {¶2} The docket reveals that on August 23, 2011, appellee filed a foreclosure complaint against appellant, Louis A. Telerico, as well as others. After appellant answered the complaint and counterclaimed, appellee moved for summary judgment. The trial court granted appellee's motion for summary judgment. Appellee filed an amended complaint on April 23, 2014, and appellant filed an answer and counterclaim to that complaint. Appellee filed another motion for summary judgment, which was overruled on March 4, 2015. On August 16, 2016, appellee filed a renewed motion for summary judgment, and appellant filed a response to the renewed motion. In an entry dated November 8, 2016, the trial court granted appellee's motion for summary judgment. On November 30, 2016, the instant appeal ensued.

         {¶3} We must determine whether the order appealed from is a final appealable order. According to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Estate of Biddlestone, 11th Dist. Trumbull No. 2010-T-0131, 2011-Ohio-1299, ¶ 3. If a lower court's order is not final, a reviewing court has no jurisdiction to review the matter and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).

         {¶4} Pursuant to R.C. 2505.02(B), there are seven categories of a "final order, " and if the judgment of the trial court satisfies any of them, it will be deemed a "final order" and can be immediately appealed and reviewed by a court of appeals.

         {¶5} R.C. 2505.02(B) states that:

         {¶6} "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

         {¶7} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

         {¶8} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

         {¶9} "(3) An order that vacates or sets aside a judgment or grants a new trial;

         {¶10} "(4) An order that grants or denies a provisional remedy and to which ...


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