EMC Mtge. Corp. v. Pratt, 2007 Ohio 4669 (Ohio App. 9/11/2007)
| Decision Date | 11 September 2007 |
| Docket Number | No. 07AP-214.,07AP-214. |
| Citation | 2007 Ohio 4669 |
| Parties | [EMC Mortgage Corporation], Plaintiff-Appellee, v. Mark S. Pratt et al., Third-Party Defendants-Appellants, Phillip R. Partee et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 04CVE-04-4305.
Reimer, Lorber & Arnovitz Co., L.P.A., and Darryl E. Gormley, for appellee.
John G. Neal, for appellants.
{¶1} Mark S. Pratt and Carl H. Woodford, third-party defendants-appellants, appeal from a judgment of the Franklin County Court of Common Pleas, in which the court denied appellants' motion to vacate and granted the motion to show cause filed by EMC Mortgage Corporation ("EMC"), plaintiff-appellee, the successor in interest to Wells Fargo Home Mortgage, Inc. ("Wells Fargo").
{¶2} On April 19, 2004, Wells Fargo filed a complaint for foreclosure against various parties holding an interest in real property secured by a mortgage deed and promissory note held by Wells Fargo. On December 22, 2004, EMC was substituted as plaintiff for Wells Fargo as the successor in interest via assignment of the mortgage. On September 16, 2005, appellants successfully bid on the foreclosed real property at a sheriff's sale. Appellants' winning bid was in the amount of $270,000, and they made a deposit on the real estate in the amount of $33,000. On October 24, 2005, the Franklin County Court of Common Pleas confirmed the sale of the property and ordered the property conveyed to appellants. It was apparent from the confirmation entry that appellants would be responsible to pay the property taxes on the real property for the first and second halves of 2005, when those taxes became due and payable in 2006. Thereafter, appellants refused to take possession of the deed and pay the balance of the purchase price.
{¶3} On January 25, 2006, EMC filed a motion requesting appellants to show cause why they should not be held in contempt for failing to pay the remaining balance of the purchase price of the real property. On March 6, 2006, appellants filed a motion to vacate the judgment confirming the sale and ordering distributions, to set aside the sale, and to recover their deposit.
{¶4} After a hearing, the magistrate filed a decision on January 30, 2007. In that decision, the magistrate: (1) found appellants were responsible for the property taxes for the first half of 2005; (2) found appellants were in contempt of court for failure to pay the balance of the purchase price; (3) denied appellants' motion to vacate; (4) granted EMC the authority to move to vacate the sale and leave to file a pluries order of sale without a new appraisal; (5) ordered a hearing to assess the amount of attorney fees and damages incurred by EMC for appellants' failure to pay the balance of the purchase price; and (6) ordered the $33,000 deposit be held as security for any amounts that the court might later order for attorney fees and damages. Appellants filed objections to the magistrate's decision. On February 21, 2007, the trial court filed a judgment adopting the magistrate's decision. Appellants appeal the trial court's judgment, asserting the following four assignments of error:
1. The lower court abused its discretion by holding Third-Party Purchasers in contempt.
2. The lower court abused its discretion by denying Third-Party Purchasers' Motion to Vacate the Judgment Entry confirming the sale and recovery of the $33,000.00 deposit.
3. Third-Party Purchasers did not have an opportunity to participate in the confirmation entry.
4. The lower court is clearly biased against Messrs. Pratt and Woodford and this bias has affected the lower court's decision to rule against Third Party Purchasers.
{¶5} Appellants argue in their first assignment of error that the trial court abused it discretion when in found them in contempt. However, after a review of the trial court's judgment, we find that portion of the judgment finding appellants in contempt was not a final appealable order. To constitute a final appealable order, there must be both a finding of contempt and imposition of a sanction. Chain Bike Corp. v. Spoke'N Wheel, Inc. (1979), 64 Ohio App.2d 62, 64 (); Cooper v. Cooper (1984), 14 Ohio App.3d 327, paragraph one of the syllabus (in order for there to be final order in contempt of court proceeding, there must be both a finding of contempt and the imposition of a sanction or penalty; the mere adjudication of contempt of court is not a final appealable order until a sanction or penalty is also imposed). In the present case, the trial court merely found appellants in contempt without imposing any sanction for the contempt. The trial court "expressly reserve[d] jurisdiction" to determine the amount of legal fees and damages that EMC incurred as a result of appellants' failure to pay the purchase price, as well as whether sanctions under either R.C. 2323.51 or Civ.R. 11 were warranted. The future award of attorney fees may be part of a contempt sanction. See, e.g., Franklin Twp. v. Meadows (1998), 130 Ohio App.3d 704, 713. Likewise, the future award of damages may also be part of a contempt sanction, which may be imposed "to compensate for losses or damages sustained by reason of noncompliance." McComb v. Jacksonville Paper Co. (1949), 336 U.S. 187, 191, 69 S.Ct. 497. As the trial court had yet to rule on any sanctions, such order was not final or appealable.
{¶6} Further, in cases of civil contempt, the sanction must afford the contemnor an opportunity to purge the contempt. Tucker v. Tucker (1983), 10 Ohio App.3d 251, paragraph one of syllabus. Here, the trial court did not mention any opportunity to purge, further demonstrating the non-final and non-appealable nature of the trial court's order. Therefore, we find that, because the portion of the order finding appellants in contempt was not a final, appealable order, we cannot address appellants' argument and must overrule their first assignment of error.
{¶7} Appellants argue in their second assignment of error that the lower court abused its discretion when it denied their motion to vacate the judgment entry confirming the sale and to recover their $33,000 deposit. In order to prevail on a Civ.R. 60(B) motion, a movant must demonstrate that: (1) she has a meritorious claim or defense; (2) she is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. If any of these three requirements are not met, the motion should be denied. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351. We review the trial court's decision on a Civ.R. 60(B) motion for an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. In order to find an abuse of discretion, we must find that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶8} In the present case, the trial court denied appellants' motion to vacate. The trial court noted that, although appellants failed to plead any relief under Civ.R. 60(B), their motion could be read to claim surprise, under Civ.R. 60(B)(1), "in finding out how the confirmation entry dealt with the issue of property taxes." The court, however, concluded that appellants did not file their motion within a reasonable time. The requirement of timely filing a motion for relief ensures finality in all cases. S. Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661, 670. Civ.R. 60(B) sets forth a two-part standard for the timely filing of a motion for relief from judgment: "within a reasonable time, and * * * not more than one year after the judgment." While the movant may have up to one year from the date of the judgment to file a motion to vacate, the movant is also bound by the "reasonable time" provision. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 106. Accordingly, a motion may be filed within one year under Civ.R. 60(B), but still may not be considered within a "reasonable time." Id.
{¶9} It is the movant's burden of proof to present factual material that, on its face, establishes the timeliness or justifies delays in filing the motion to vacate. Novak v. CDT Dev. Corp., Cuyahoga App. No. 83655, 2004-Ohio-2558. In order to sustain this burden the movant must present allegations of operative facts to demonstrate that he is filing his motion within a reasonable period of time. Adomeit, supra, at 103. In the absence of any explanation for the delay in filing the Civ.R. 60(B) motion, the movant has failed to meet his burden of establishing timeliness of his motion, and the motion to vacate should be denied. Youssefi v. Youssefi (1991), 81 Ohio App.3d 49, 53.
{¶10} We agree with the trial court that appellants failed to file their motion within a reasonable time. On October 24, 2005, the trial court entered its judgment confirming the sale and ordering distribution. In that order, the trial court ordered that appellants "assume...
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