WBCMT 2007-C33 Office 7870, LLC v. Bar J Ranch-Kemper Pointe LLC

• Decision Date: 26 March 2018
• Docket Number: No. A–13–04126,A–13–04126
• Citation: 108 N.E.3d 772
• Parties: WBCMT 2007–C33 OFFICE 7870, LLC, Plaintiff, v. BAR J RANCH–KEMPER POINTE LLC, et al., Defendants.
• Court: Ohio Court of Common Pleas

108 N.E.3d 772

WBCMT 2007–C33 OFFICE 7870, LLC, Plaintiff,

v.BAR J RANCH–KEMPER POINTE LLC, et al., Defendants.

No. A–13–04126

COURT OF COMMON PLEAS OF OHIO, HAMILTON COUNTY

March 26, 2018

Alan K. Mills (alan.mills@btlaw.com ), Jonathan D. Sundheimer (jsundheimer@btlaw.com ), David J. Dirisamer, Columbus, (David.Dirisamer@btlaw.com ), Counsel for Plaintiff

Edward J. McTigue (ejmctigue@cincilaw.corn ), Counsel for Thompson and Thompson entities

Lawrence C. Baron (larry.baron@hcpros.org ), Ass't Hamilton County Prosecutor, Breakwater Equity Partners, LLC, 3636 Nobel Drive, Suite 350, San Diego, CA 92122, TIC Kemper Point LLC, c/o National Registered Agents, Inc., 1300 East Ninth Street, Cleveland, OH 44114, Daniel J. Donnellon (ddonnellon@ficlaw.com ), Martin A. Foos, Dayton, (mfoos@ficlaw.com ), Mathew G. Bruce (mbruce@ficlaw.com ), Attorney for Borrowers

Brian W. Wais, Cincinnati, (bwais@gfh-law.com ), Attorney for Receiver

ENTRY DENYING MOTION TO STAY PENDING APPEAL

Curt C. Hartman, Judge

This matter is before the Court on the Motion to Stay Execution of Judgment Pending Appeal wherein Plaintiff WBCMT 2007–C33 OFFICE 7870, LLC, seeks "to maintain the status quo" by staying execution or enforcement proceedings of the Final Judgment Entry , entered on February 21, 2018, as well as staying the underlying Opinion Concluding Court Lacks Continued Jurisdiction Over Current Proceedings and the Entry Vacating Order and Judgment Entered Under and Pursuant to the Amended Complaint . Because the Final Judgment Entry neither enters a monetary award against WBCMT 2007–C33 nor compels WBCMT 2007–C33 to undertaken or perform any action, there is no execution or enforcement proceedings that could be stayed. Thus, it would be an illusory and futile act for the Court to stay execution or enforcement proceedings with respect to the Final Judgment Entry . Alternatively, upon consideration and weighing of the four traditional stay factors applicable to stays pending appeal, WBCMT 2007–C33 has failed to satisfy its burden of demonstrating the circumstances justify the exercise of this Court's discretion to issue the requested stay. Accordingly, the Motion to Stay Execution of Judgment Pending Appeal is DENIED.

I.

The lengthy history of the proceedings sub judice is set forth in detail in the Opinion Concluding Court Lacks Continued Jurisdiction Over Current Proceedings , entered on February 21, 2018. Pursuant to that Opinion , this Court concluded that it lacked jurisdiction over all proceedings under the Amended Complaint which WBCMT 2007–C33 filed after final judgments had been entered in the foreclosure proceedings brought pursuant to the original Complaint . Consistent with that conclusion, all interlocutory orders and the interlocutory judgment entered pursuant to the Amended Complaint were vacated and the Amended Complaint dismissed for want of jurisdiction. Included within the orders or judgment vacated was the Judgment Entry Granting Plaintiff's Motion for Summary Judgment (entered on March 22, 2016) which entered a judgment against the THOMPSON DEFENDANTS "in an amount not less than the $258,669.58", as well as an additional deficiency judgment of nearly $7 million against two of the THOMPSON DEFENDANTS, including ANTHONY THOMPSON.

Previously, the THOMPSON DEFENDANTS appealed that Judgment Entry to the First District Court of Appeals. Notice of Appeal (filed on April 20, 2016) . Ultimately, on March 17, 2017, the First District concluded that the Judgment Entry "did not determine the action and prevent a judgment" and, therefore, "it is not a final order". Accordingly, that earlier appeal was dismissed for want of appellate jurisdiction and the case remanded to this Court. Judgment Entry of Dismissal (C–16–00422) .

In the interim, WBCMT 2007–C33 domesticated the Judgment Entry in Lake County, Florida, on October 31, 2016. Motion to Stay Execution ¶ 2. Ensuing enforcement actions in Lake County resulted in the sheriff of Lake County seizing the personal property of Mr. THOMPSON, with such personal property continuing to be in the possession, custody or control of the sheriff. Motion to Stay Execution ¶ 3.

When the premature appeal of the Judgment Entry was remanded from the First District, this case was transferred to the undersigned. Entry of Assignment . Upon a review of the pleadings, filings, etc. , the Court questioned whether it continued to possess jurisdiction over the case sub judice . After affording the parties the opportunity to address the issues related thereto, this Court concluded that, prior to the filing of the Amended Complaint which brought entirely new claims against new parties and eliminated all previous claims and parties named in the original Complaint , final judgments had been entered pursuant to the Complaint, thus terminating the Court's jurisdiction. Opinion Concluding Court Lacks Continued Jurisdiction Over Current Proceedings; see Mason v. Alexander , 44 Ohio St. 318, 333, 7 N.E. 435 (1886) ("where jurisdiction is once acquired, unless the action be ended by the parties, the jurisdiction continues until final judgment in the case"); In re Burton S. , 136 Ohio App.3d 386, 391, 736 N.E.2d 928 (6th Dist.) ("[o]nce a court of competent jurisdiction acquires jurisdiction over an action, its authority continues until a final judgment on the merits of the dispute before it has been issued"). And it was based upon the claims in the Amended Complaint that this Court entered the Judgment Entry Granting Plaintiff's Motion for Summary Judgment and WBCMT 2007–C33 undertook enforcement action in Florida.

Without jurisdiction over the claims asserted in the Amended Complaint , the Court entered the Entry Vacating Order and Judgment Entered Under and Pursuant to the Amended Complaint , together with the Final Judgment Entry dismissing the Amended Complaint . Subsequently, i.e. , on March 7, 2018, WBCMT 2007–C33 filed the presently-pending Motion to Stay Execution , followed the next day by filing the Notice of Appeal . Through the Notice of Appeal , WBCMT 2007–C33 seeks review by the First District of this Court's ruling concerning whether this Court possessed continued jurisdiction over the claims asserted in the Amended Complaint .

II.

Ohio R. Civ. P. 62(B) authorizes the issuance of a stay pending the appeal of a judgment:

When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court

Thus, even though an appeal has been taken, " Civ. R. 62 specifically provides that the trial court is not divested of jurisdiction to grant a stay of execution." Huntington Natl. Bank v. Payson , 2015-Ohio-1976, 2015 WL 2452302 ¶ 28 (2d Dist.). Thus, the Motion to Stay Execution is properly before this Court.

A.

Before addressing the traditional factors as it concerns the Motion to Stay Execution , consideration must be given to that for which a stay is actually being sought. This is necessary because the Final Judgment Entry from which the present appeal has been taken does not enter a judgment that is amenable to execution.¹ Instead, the Final Judgment Entry simply dismissed the Amended Complaint for want of jurisdiction. And as a result of such disposition, any interlocutory orders or interlocutory judgment entered pursuant to the Amended Complaint were vacated. See Entry Vacating Order and Judgment Entered Under and Pursuant to the Amended Complaint . Thus, to stay execution or enforcement proceedings of the Final Judgment Entry would, at best, allow interlocutory orders or the interlocutory judgment to remain in place or effect; but there is not a final judgment subject to execution or enforcement proceedings, or even potential execution or enforcement proceedings.²

Ohio R. Civ. P 62(B) allows for "a stay of execution of a judgment or any proceedings to enforce a judgment." Thus, it is the execution of a judgment or other enforcement proceedings of a judgment that are stayed; the judgment itself is not stayed. Generally speaking, there are two types of judgments for which execution or enforcement proceedings may arise, viz. , judgments for payment of money and judgments directing the performance of a specific act. See generally Ohio R. Civ. P. 69 & 70. But with respect to the Final Judgment Entry to which the Motion to Stay Execution is directed, nothing therein is of the nature by which the THOMPSON DEFENDANTS could execute or undertake proceedings in aid thereof against WBCMT 2007–C33. The Final Judgment Entry does not adjudicate against WBCMT 2007–C33 a monetary award; similarly, the Final Judgment Entry does not compel or require WBCMT 2007–C33 to undertake or perform any action for which, absent a stay, it could be held in contempt for the failure to perform. See State ex rel. State Fire Marshal v. Curl , 87 Ohio St.3d 568, 570, 2000-Ohio-248, 722 N.E.2d 73 ("[a] trial court, however, lacks jurisdiction to execute a judgment or contempt proceedings regarding the judgment if there is a stay of the judgment pending appeal").

Because the Final Judgment Entry neither awards a monetary award against WBCMT 2007–C33 nor directs WBCMT 2007–C33 to undertake or perform any action, there is no execution or enforcement proceedings that could be stayed. Instead, the result should the Court grant the Motion to Stay Execution would be illusory and a futile act. For that reason alone, the Motion to Stay Execution of Judgment Pending Appeal is DENIED.

B.

Nonetheless, the Court will separately and alternatively consider the traditional stay factors in light of the gist of that which WBCMT 2007–C33 seeks through the Motion to Stay Execution , viz. , to keep in place, pending appeal, the Judgment Entry Granting Plaintiff's Motion for Summary Judgment (entered on March 22, 2016) upon which enforcement...