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Third Federal Savings & Loan v. Sutton

Court of Appeals of Ohio, Ninth District, Summit

May 23, 2018

THIRD FEDERAL SAVINGS & LOAN Appellee
v.
JACQUELINE SUTTON Appellant and DOLORES HOVAN, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2015-07-3661

          BRADLEY HULL, IV, Attorney at Law, for Appellant.

          DOLORES HOVAN, pro se, Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, PRESIDING JUDGE.

         {¶1} Defendant-Appellant, Jacqueline L. Sutton, appeals from the judgment entered against her in the Summit County Court of Common Pleas on the cross-claim of Cross-claimant/Defendant-Appellee, Dolores Hovan. For the reasons set forth below, this Court affirms.

         I.

         {¶2} This matter initiated with a complaint in foreclosure filed by the bank, Third Federal Savings and Loan, on July 22, 2015. The bank named Jacqueline L. Sutton as a primary defendant in the foreclosure action. The bank also named Dolores P. Hovan as a defendant claiming an interest in the property. Ms. Sutton was served with the complaint, but failed to enter an appearance in the action.

         {¶3} On September 8, 2015, Ms. Hovan filed an answer to the complaint and asserted a cross-claim against Ms. Sutton. The cross-claim demanded judgment against Ms. Sutton in the amount of $96, 000.000 based on Ms. Hovan's interest in the subject property of the foreclosure memorialized in a recorded agreement between Ms. Hovan, Ms. Sutton, and Ms. Sutton's deceased husband, Robert. She served Ms. Sutton with the cross-claim by publication as of November 13, 2015.

         {¶4} Ms. Hovan initially moved for default judgment on November 17, 2015. However, the trial court overruled that motion as premature because, although Ms. Sutton had been served with the cross-claim, her time to respond to the pleading had not yet run. On December 29, 2015, Ms. Hovan again moved for default judgment. The trial court entered judgment and issued a decree of foreclosure on January 13, 2016, and also granted default judgment in favor of Ms. Hovan on her cross-claim against Ms. Sutton.

         {¶5} Thereafter, on January 28, 2016, Ms. Sutton attempted to appear by counsel and sought leave to file an answer to the cross-claim. The trial court denied the motion on February 3, 2016, indicating that judgment had already been granted.

         {¶6} On February 2, 2016, Ms. Sutton filed a "motion to vacate partially void judgment" asserting that Ms. Hovan's application for default was not served on Ms. Sutton. After this Court dismissed an attempted appeal for lack of a final appealable order, the trial court issued an order denying Ms. Sutton's motion to vacate on March 25, 2016. The subject property then sold at sheriffs sale and that sale was confirmed on April 15, 2016.

         {¶7} Ms. Sutton filed a motion for relief from judgment pursuant to Civ.R. 60(B) on November 28, 2016. In this motion, Ms. Sutton argued that she should be relieved from judgment on the grounds of fraud under Civ.R. 60(B)(3) and, alternatively, for other reasons justifying relief under Civ.R. 60(B)(5). The trial court denied this motion in an order dated December 21, 2016. Ms. Sutton again attempted to appeal the matter to this Court. On June 6, 2017, this Court again dismissed the appeal for lack of a final appealable order regarding the judgment entered against Ms. Sutton

         {¶8} The trial court entered a "final and appealable" judgment entry on August 4, 2017. In the judgment entry, the trial court ordered that Ms. Hovan is entitled to judgment against Ms. Sutton, personally, in the amount of $96, 000.00, plus interest at the applicable statutory rate from the date of January 13, 2016, until the judgment is paid. The trial court denied Ms. Hovan's request for attorney fees. The trial court also reaffirmed its prior decisions of March 24, 2016, denying Ms. Sutton's motion to vacate, and of December 21, 2016, denying Ms. Sutton's motion for relief from judgment.

         {¶9} Ms. Sutton has timely appealed the final judgment entered, raising three ...


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