Court of Appeals of Ohio, Fifth District, Tuscarawas
from the Tuscarawas County Court of Common Pleas, Case No.
2018 CF 02 0194
Plaintiff-Appellee AUSTIN BARNES, III
Defendants-Appellants DANIEL A. FRIEDLANDER Weltman, Weinberg
& Reis Co., LPA
Hon. W. Scott Gwin, P.J Hon. William B. Hoffman, J. Hon.
Patricia A. Delaney, J.
Defendant-appellant The Farmers National Bank of Canfield
appeals the December 19, 2018 Judgment Entry entered by the
Tuscarawas County Court of Common Pleas, which denied its
Motion for Leave to File Amended Answer and Complaint.
Plaintiff-appellee is Tax Ease Ohio LLC.
OF THE CASE AND FACTS
On February 28, 2018, Tax Ease Ohio LLC ("Tax
Ease") filed a complaint in the Tuscarawas County Court
of Common Pleas, naming Ronnie L. and Joyce C. Miller
("the Millers"), The Farmers National Bank of
Canfield as successor by merger to First National Bank
("Farmers"), Tuscarawas County Treasurer, and the
United States Department of the Treasury, Internal Revenue
Service, as defendants. Tax Ease sought to foreclose on a tax
certificate relating to real property at 9334 Strasburg
Bolivar Road, Strasburg, Ohio ("the Property"),
which was owned by the Millers. Although the Millers'
loan with Farmers was current at the time of the filing of
the complaint, Farmers filed a protective answer, asserting
it held the first lien after the tax certificate and real
estate taxes, to be paid from the proceeds of a sale, in
accordance with its priority.
Tax Ease filed a motion for default judgment against the
Millers on April 27, 2018. Via Judgment Entry and Decree of
Foreclosure filed May 10, 2018, the trial court granted
default against the Millers. With respect to Farmers and the
other lien claimants, the trial court stated:
4. The Court finds that Defendants the United States of
America Department of the Treasury Internal Revenue Service
and The Farmers National Bank of Canfield successor by merger
to First National Bank, claim some right, title, interest or
lien upon the premises described, as set forth in their
Answers filed herein, but that any right, title, interest,
claim or liens said Defendants may have are inferior and
subsequent to the lien of [Tax Ease]. The Court makes no
finding at this time as to the right, title, interest or lien
of said Defendants as set forth in its pleadings, except to
note that such claim, right, title, interest or lien of said
Defendants are hereby ordered transferred to the proceeds
derived from the sale of said premises, after the payment of
the costs of the within action, taxes due and payable, and
the amount found due [Tax Ease], and the same is hereby
ordered continued until further order. May 10, 2018 Judgment
Entry and Decree of Foreclosure.
On December 6, 2018, Farmers filed a Motion for Leave to File
Amended Answer and Complaint, seeking to file an amended
answer and cross-claim to affirmatively seek a money judgment
on its note and foreclose on its mortgage because the Millers
were in default. Farmers noted the trial court had entered
judgment in favor of Tax Ease. Farmers explained the judgment
entry did not make a finding relative to Farmer's
mortgage, but transferred it to the proceeds of the sale of
the Property. Tax Ease has not taken action to cause the
Property to be scheduled for sale.
Via Judgment Entry filed December 19, 2018, the trial court
denied Farmers' motion. The trial court found the motion
was not timely filed. The trial court further found final
judgment was rendered in the case on May 10, 2018.
It is from this judgment entry Farmers appeals, raising the
following assignments of error:
I. A JUDGMENT ENTRY AND DECREE OF FORECLOSURE IS NOT A FINAL
APPEALABLE ORDER AS TO ISSUES THAT ARE SPECIFICALLY RESERVED
FOR FURTHER ...