State ex rel. Midwest Pride IV, Inc. v. Pontious

• Citation: 75 Ohio St.3d 565,664 N.E.2d 931
• Decision Date: 05 June 1996
• Docket Number: No. 95-1297,95-1297
• Parties: The STATE ex rel. MIDWEST PRIDE IV, INC., Appellant, v. PONTIOUS, Judge, Appellee.
• Court: Ohio Supreme Court

Page 565

75 Ohio St.3d 565

664 N.E.2d 931

The STATE ex rel. MIDWEST PRIDE IV, INC., Appellant, v. PONTIOUS, Judge, Appellee.

No. 95-1297.

Supreme Court of Ohio.

Submitted April 15, 1996.

Decided June 5, 1996.

Berkman, Gordon, Murray & DeVan, J. Michael Murray, Lorraine R. Baumgardner and Jeremy A. Rosenbaum, Cleveland, for appellant.

John H. Wead, Washington Courthouse, for appellee.

PER CURIAM.

For a writ of mandamus to issue, the relator must possess a clear legal right to the respondent's performance of a clear legal duty and have no adequate remedy in the ordinary course of law. State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas (1995), 73 Ohio St.3d 19, 20, 652 N.E.2d 179, 181. The court of appeals dismissed this cause on the grounds that M.P. could not establish its clear legal right to a hearing on the motion to set aside the sheriff's sale or Judge Pontious's clear legal duty to conduct such a hearing. For the reasons that follow, we affirm.

In authorizing the transfer of property upon confirmation of a sheriff's sale, R.C. 2329.31 provides:

"Upon the return of any writ of execution for the satisfaction of which lands and tenements have been sold, on careful examination of the proceedings of the officer making the sale, if the court of common pleas finds that the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61, inclusive, of the Revised Code, it shall direct the clerk of the common pleas court to make an entry on the journal that the court is satisfied of the legality of such sale and that the officer make to the purchaser a deed for the lands and tenements." (Emphasis added.)

M.P. argues that the emphasized language confers a statutory right to a hearing on the successful bidder at a sheriff's sale. We disagree. In Union Bank Co. v. Brumbaugh (1982), 69 Ohio St.2d 202, 208, 23 O.O.3d 219, 223, 431 N.E.2d 1020, 1025, we recognized that "[t]here is no statutory dictate that a hearing be held [after a sheriff's sale]." Thus, the court of appeals correctly concluded that R.C. 2329.31 does not confer the clear legal right or clear legal duty M.P. asserts.

M.P. also seems to assert a due process right to a hearing prior to confirmation or vacation of a sheriff's sale. M.P. provides no authority or analysis as to whether its successful bid was a property interest protected by the Fourteenth Amendment to the United States Constitution. We, however, need not decide this issue because M.P. received all that due process requires--notice and an opportunity for some kind of hearing prior to deprivation of a protected interest. Mullane v. Cent. Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Bd. of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. M.P. admittedly received notice of the treasurer's motion to set the sheriff's sale aside, but failed to respond within fourteen days as required by local rule. This opportunity was sufficient due process under the circumstances, regardless of whether M.P. was entitled to it.

M.P. mainly relies on Reed v. Radigan (1884), 42 Ohio St. 292, as authority for its right as the successful bidder or "purchaser" to participate in proceedings to confirm or vacate a sheriff's sale. Reed, at 294, quoted the statement in Ohio Life Ins. & Trust Co. v. Goodin (1860), 10 Ohio St. 557, 566, that "parties [to a foreclosure action]--the plaintiff, the defendant and the purchaser--may be heard" at the confirmation or vacation of a sheriff's sale, and these cases have been cited to establish the successful bidder's "right" to be heard on the issue of confirmation. See, e.g., Citizen's Loan & Savings Co. v. Stone (1965), 1 Ohio App.2d 551, 553, 30 O.O.2d 584, 585, 206 N.E.2d 17, 19; Ohio Savings Bank v. Ambrose (1990), 56 Ohio St.3d 53, 57, 563 N.E.2d 1388, 1391 (Herbert R. Brown, J., dissenting). M.P. maintains that this "right" was acknowledged and left undisturbed by Ambrose, supra. The court of appeals correctly disagreed.

Ambrose cited Reed for the premise that purchasers at a sheriff's sale generally possess "some type of interest in the proceedings prior to confirmation." Id. at 54, 563 N.E.2d at 1389. This interest, however, was not enough to give the purchaser standing to appeal if the defendant-mortgagor later redeemed the property and a court set the sale aside. Rather, we held that "purchasers have no rights until the sale is confirmed." Id. at 55, 563 N.E.2d at 1389. We based this holding on another observation in Reed--that a purchaser has no vested rights in property until confirmation of a sheriff's sale, and if confirmation is refused, "the rights of the purchaser fall to the ground." Reed, 42 Ohio St. at 294. In effect, we found that a purchaser's interest evaporated upon denial of confirmation, such that the purchaser could not establish the "aggrieved" status necessary for standing. Ambrose at 56, 563 N.E.2d at 1390, fn. 3. Thus, far from an absolute right to participate in proceedings to vacate a sheriff's sale, Ambrose recognized only that, absent confirmation, a purchaser had no actionable interest by virtue of the successful bid alone.

M.P., however, insists that since Ambrose, courts have continued to recognize the "right" of potential purchasers to participate in hearings prior to vacation or confirmation. M.P. cites one relevant case--Federal Home Loan Mtge. Corp. v. Slagle (Dec. 4, 1992), Lake App. Nos. 92-L-022 and 92-L-035, unreported, 1992 WL 361441. In Slagle, two bidders each asserted that their bid had been accepted by the deputy sheriff conducting the sale, and both bidders were permitted to intervene, one of whom successfully moved to have the sale set aside. The Slagle court followed Ambrose as to the unavailability of any appeal for the purchasers, holding that this rule applied even though these purchasers had intervened and the purchasers in Ambrose had not. The court later found a right to participate in the confirmation proceedings that stemmed from Ambrose and Reed.

But Slagle does not support M.P.'s right to a hearing under the facts alleged here. The purchasers in Slagle were granted leave to intervene; M.P. was not. Moreover, to read Slagle as recognizing a right to a hearing, irrespective of intervention, elevates the purchaser's interest to a level Ambrose did not intend. Again, in referring to the purchaser as having "some type of interest in the proceedings prior to confirmation," Ambrose hardly declared the purchaser's absolute right to be heard. Id. at 54, 563 N.E.2d at 1389. Moreover, Ambrose affirmed the dismissal of an appeal from the vacation of a sheriff's sale on the grounds that (1) the purchasers had "no interest in the property prior to confirmation," id. at 55, 563 N.E.2d at 1390, and (2) "their failure to intervene as parties divested them of their capacity to appeal the decision of the trial court," id. at 54, 563 N.E.2d at 1389-1390. Thus, Ambrose is consistent with a finding that the purchaser's ability to participate in confirmation proceedings as a party, for any purpose, depends on the purchaser's intervention.

M.P.'s final argument on the issues of clear right and clear duty is essentially that Judge Pontious erred or abused his discretion by setting aside the sheriff's sale ex parte and without evidence of irregularities. M.P. complains that the treasurer submitted no evidence with the set-aside motion and that only two of at least three named defendants in the foreclosure action agreed to the entry setting aside the sale.

Mandamus does not lie to control judicial discretion, R.C. 2731.03, or to correct judgments manifesting an abuse of discretion. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 180, 631 N.E.2d 119, 122. Moreover, the allegations in M.P.'s complaint, as well as the incorporated exhibits, ¹ do not establish an abuse of discretion.

The record before Judge Pontious contained the agreed entry of the treasurer and Ward that irregularities had occurred in the sheriff's sale and had "prejudiced the bidding." True, the unincluded parties to the foreclosure action might have objected to the entry; however, the entry still had evidentiary value. Judge Pontious thus permissibly relied on the agreed entry identifying irregularities in the sheriff's sale. See, e.g., Merkle v. Merkle (1961), 116 Ohio App. 370, 22 O.O.2d 202, 188 N.E.2d 170 (court did not abuse its discretion in setting aside judicial sale by...