Buckeye Gypsum, Inc. v. Donald D. and Diane Martin

• Decision Date: 25 June 1992
• Docket Number: 91AP-1323,92-LW-2620
• Parties: Buckeye Gypsum, Inc., Plaintiff-Appellee, v. Donald D. and Diane Martin, Defendants-Appellants. Freedom Federal Savings & Loan Association et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Buckeye Gypsum, Inc., Plaintiff-Appellee, v. Donald D. and Diane Martin Defendants-Appellants.

No. 91AP-1323

92-LW-2620 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

June 25, 1992

Carlile Patchen & Murphy, Jay F. McKirahan and Jack D'Aurora, for plaintiff-appellee.

Stephen A. Moyer, for defendants-appellants.

Thompson Nine & Flory, Michael A. Renne, John T. Sunderland and Douglas L. Hertlein, for defendant-appellee First American Mortgage and Federal National Mortgage Association.

APPEAL from the Franklin County Common Pleas Court.

O P I N I O N

MARTIN J.

Defendants-appellants, Donald D. and Diane Martin, timely appeal from the judgment of the Franklin County Common Pleas Court entered October 18, 1991, which, inter alia, ordered the foreclosure sale of a certain real estate mortgage.

Defendants Martin raise three assignments of error:

"I. The Trial Court committed reversible error by overruling Appellants' objections to the referee's report.

"A. The Trial Court erred by overruling objections as to the weight of the evidence before the transcript was completed and filed.

"B. The Trial Court erred by overruling Appellants' objections, since there was clear and convincing evidence of fraud.

"II. The Trial Court committed reversible error by execution of the Judgment Entry and Decree of Foreclosure.

"A. The Court erred by not striking the defective response of First American Mortgage Corporation, a non-party.

"B. The Court abused its discretion by granting judgment in favor of Federal National Mortgage Association, a non-party, without the filing of a joinder motion, a substitution of party entry, an answer or affording any due process to challenge Federal National Mortgage Association's claim.

"III. The Trial Court committed reversible error by overruling Appellants' Motion to Dismiss filed February 20, 1991."

Plaintiff, as the holder of a second mortgage on the Martins' premises, commenced a foreclosure action in the trial court on January 4, 1989. Thereafter, the case rebounded on and off the active docket in that forum until the instant appeal was filed on November 15, 1991.

For purposes of this appeal, the salient facts and circumstances follow. As the result of several defendants being in default of answer, including the Martins, on September 5, 1989, the trial court noticed and ordered the plaintiff to move for a default judgment by September 25, 1989 or face a Civ. R. 41(B) (1) dismissal for lack of prosecution of its case. An untimely motion for default judgment was ultimately filed by plaintiff, and the trial court entered a Civ. R. 41(B) (1) dismissal on October 5, 1989, without prejudice. Civ. R. 41(B) (3).

Somehow, and although the case had been dismissed on October 5, 1989, an order of foreclosure in plaintiff's behalf was entered on October 19, 1989, even though not in fact signed by the trial judge. By a further judgment entry entered on or about October 30, 1990, the trial court vacated the October 5, 1989 dismissal, the October 19, 1989 purported foreclosure decree, the pending sheriff's sale, and he "reinstated" the case with leave to the parties to plead. Defendants Martin filed their answer on November 7, 1990.

A second "show cause" order was entered on November 30, 1990, requiring the plaintiff to move the case along by February 1, 1991 or again face a Civ. R. 41(B)(1) dismissal. As a result of the plaintiff's failure to comply with the November 30, 1990 order, the trial court entered a second Civ. R. 41(B) (1) dismissal on February 7, 1991, but this time with prejudice. The journal entry itself was stamped "final appeal able order," and copies were mailed to the plaintiff and defendants Martin.

Although the record before us is silent as to any post-judgment motions per Civ. R. 60(B) having been filed by any party, nonetheless the trial court, on or about February 15, 1991 and apparently acting sua sponte, vacated the second February 7, 1991 dismissal order, and referred the case to a referee for an evidentiary hearing. On February 20, 1991, the defendants Martin promptly filed a motion to dismiss predicated upon the prior final order of dismissal with prejudice. The referee overruled that motion and the case proceeded in the trial court. Subsequent proceedings are not particularly relevant to the primary issue before this court now, and they will not be delineated. It should, however, be noted that on or about January 9, 1992, the defendants Martin commenced Chapter 13 proceedings in the United States Bankruptcy Court, and an automatic stay was issued which presumably is still in effect.

Attention is turned first to an examination of the third assignment of error alleging trial court error in overruling the Martins' February 20, 1991 motion to dismiss. It is evident from the form and content of the trial court's order of February 7, 1991 that it had dismissed plaintiff's complaint, pursuant to Civ. R. 41(B) (1) for lack of prosecution. Adequate prior "notice" of this intention and result had been provided to the parties on November 30, 1990. Perotti v. Ferguson (1983), 7 Ohio St.3d 1; Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99; Cook v. Transamerica Ins. Serv. (1990), 70 Ohio App.3d 327.

By operation of Civ. R. 41(B) (3), the February 7, 1991 dismissal was an adjudication upon the merits and, therefore, with prejudice. That journal entry was unambiguously designated by the trial court as "a Final Order" and "Final Appeal able Order."

Civ R. 60(B) provides the exclusive grounds which must be present, and the procedures which must be followed, in order for a trial court to vacate its own final judgment. McCue v. Insurance Co. (1979), 61 Ohio App.2d 101; Cale Products, Inc. v. Orrville...