Opinion
No. 105450
06-14-2018
BLISSWOOD VILLAGE HOME OWNERS ASSOCIATION PLAINTIFF-APPELLEE v. CLEVELAND COMMUNITY REINVESTMENT, L.L.C., ET AL. DEFENDANTS-APPELLANTS
ATTORNEY FOR APPELLANTS Mark Novak 4154 Ardmore Road Cleveland, OH 44121 ATTORNEYS FOR APPELLEES For Blisswood Village Home Owners Association Steven B. Potter Jason A. Whitacre Dinn, Hochman & Potter, L.L.C. 5910 Landerbrook Drive, Suite 200 Cleveland, OH 44124 For Cuyahoga County Fiscal Officer Michael C. O'Malley Cuyahoga County Prosecutor By: Anthony J. Giunta Assistant Prosecuting Attorney 310 W. Lakeside Ave., Suite 300 Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED IN PART; AFFIRMED IN PART Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-853437 BEFORE: McCormack, J., Kilbane, P.J., and E.T. Gallagher, J.
ATTORNEY FOR APPELLANTS
Mark Novak
4154 Ardmore Road
Cleveland, OH 44121
ATTORNEYS FOR APPELLEES
For Blisswood Village Home Owners Association
Steven B. Potter
Jason A. Whitacre
Dinn, Hochman & Potter, L.L.C.
5910 Landerbrook Drive, Suite 200
Cleveland, OH 44124
For Cuyahoga County Fiscal Officer
Michael C. O'Malley
Cuyahoga County Prosecutor By: Anthony J. Giunta
Assistant Prosecuting Attorney
310 W. Lakeside Ave., Suite 300
Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant Cleveland Community Reinvestment, L.L.C. ("CCR") brings this appeal challenging the trial court's decision to grant summary judgment in foreclosure in favor of plaintiff-appellee Blisswood Village Home Owners Association ("Blisswood").
{¶2} For the reasons that follow, we dismiss CCR's appeal from the foreclosure order as moot and affirm the trial court's award of attorney fees to Blisswood. Procedural and Substantive History
{¶3} On October 29, 2015, Blisswood instituted a foreclosure action against CCR and other defendants holding or claiming interests in a residential condominium unit located in Euclid, Ohio. CCR was the title owner of record for the unit, and Blisswood is the unit owners association for the condominium complex.
{¶4} The foreclosure complaint sought a decree of foreclosure against the unit and requested a judgment in the amount of $2,066.96, plus interest, for unpaid monthly assessments for common expenses, late fees, interest, and charges for collection costs. Blisswood alleged in the complaint that it had obtained a continuing lien on the unit for the unpaid assessments. The corresponding certificate of lien was filed with Cuyahoga County on September 22, 2015, as instrument number 201509220285.
{¶5} The underlying foreclosure action was plagued with discovery disputes. After CCR failed to adequately respond to Blisswood's initial discovery requests, Blisswood filed a motion to compel discovery on June 8, 2016. The trial court granted this motion on August 12, 2016, and ordered CCR to produce discovery responses by August 26, 2016.
{¶6} When CCR failed to comply with the court's order, Blisswood filed a motion for discovery sanctions on August 30, 2016. On October 4, 2016, the trial court held a hearing on this motion, for which CCR failed to appear.
{¶7} On October 5, 2016, a magistrate's order was issued granting Blisswood's motion for discovery sanctions. The order stated, in part:
The magistrate therefore finds that defendant Cleveland Community Reinvestment, LLC has demonstrated a willful disregard for the discovery process and has failed to comply with the court's orders in conjunction therewith. Plaintiff's motion for discovery sanctions is granted. Defendant Cleveland Community Reinvestment, LLC is precluded from asserting and maintaining any defenses to the claims in plaintiff's complaint. Further, plaintiff is entitled to attorney fees incurred as a result of the failure of defendant to participate in the discovery process and court orders related thereto. The amount of attorney fees awarded will be determined by further order of the court.
{¶8} On November 4, 2016, Blisswood filed a motion for summary judgment. On November 29, 2016, CCR sent discovery responses to Blisswood's counsel. On December 5, 2016, CCR filed a brief in opposition to Blisswood's motion for summary judgment. On December 7, 2016, Blisswood filed a motion to strike CCR's reply brief on the grounds that it was filed in violation of the court's October 5 order.
{¶9} On December 21, 2016, the trial court granted Blisswood's motion to strike. In a magistrate's order, the reply brief was stricken "as a result of defendant's failure to comply with discovery and the resulting court orders associated therewith."
{¶10} On December 27, 2016, the trial court issued a magistrate's order granting Blisswood's motion for summary judgment. On January 13, 2017, the trial court adopted the magistrate's decision.
{¶11} On February 10, 2017, CCR appealed the trial court's decision granting summary judgment for Blisswood.
{¶12} On January 8, 2018, the property was sold at a sheriff's sale to Blisswood Village Reinvestment, L.L.C. On January 18, 2018, the trial court issued a decree of confirmation of the sale. On March 22, 2018, while this appeal was pending, the proceeds of the sale were distributed.
{¶13} On March 26, 2018, Blisswood filed a motion to dismiss the appeal as moot. Law and Analysis
{¶14} CCR presents three assignments of error for our review. In its first two assignments of error, CCR argues that the trial court erred as a matter of law because it had established two genuine issues of material fact that should have precluded summary judgment. In its third assignment of error, CCR argues that the trial court abused its discretion when it awarded Blisswood attorney fees in the amount of $2,618.50.
{¶15} CCR did not challenge the discovery sanctions issued by the trial court in any of its three assignments of error.
{¶16} Before addressing CCR's assignments of error, we must address Blisswood's motion to dismiss.
{¶17} We decline to consider CCR's first and second assignments of error challenging summary judgment for Blisswood because they are moot. In cases where a party successfully appeals from a confirmation of sale, and the proceeds of the sale have not yet been distributed, the remedy is limited to restitution from the monetary proceeds of the sale. R.C. 2329.45. Such a remedy is appropriate, though, only when the appealing party sought and obtained a stay of the distribution of the proceeds. Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, ¶ 6, citing Bankers Trust Co. Of California, N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 11. It follows, then, that where a defendant in a foreclosure action fails to obtain a stay of the distribution of the sale proceeds, R.C. 2329.45 does not apply and any appeal is moot, because "the matter has been extinguished through satisfaction of the judgment." Tutin at ¶ 16.
{¶18} Here, although CCR appealed the foreclosure order, it did not seek a stay of the distribution of proceeds following the confirmation of the sheriff's sale. The proceeds have been distributed and are thus no longer under the court's jurisdiction. Because it is therefore impossible for the court to grant any relief, the appeal of the foreclosure order should be dismissed as moot. Wells Fargo Bank, N.A. v. Cuevas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498, ¶ 22.
{¶19} In its brief in opposition to Blisswood's motion to dismiss, CCR cites this court's holding in Fannie Mae v. Hicks, 2016-Ohio-8484, 77 N.E.3d 380 (8th Dist.), for the proposition that Blisswood Village Reinvestment, L.L.C. was not a good-faith, third-party purchaser. Therefore, according to CCR, Blisswood Village Reinvestment, L.L.C. is not entitled to the protections of R.C. 2325.03 and 2329.45. We disagree.
{¶20} In Hicks, this court found that the statutory protections for good faith purchasers at foreclosure sales do not apply to plaintiff-purchasers. As a result of that conclusion, the Hicks court found that the trial court "erred as a matter of law by not vacating the foreclosure sale and by ordering [the plaintiff] to pay [the debtor] restitution" pursuant to R.C. 2329.45. Id. at ¶ 19.
{¶21} Our holding in Hicks does not negate the fact that CCR failed to seek a stay of the distribution of the sale proceeds. The Hicks court did not consider the issue of mootness. That case, therefore, cannot be construed as a remedy to CCR's failure to pursue a stay of the distribution of the sale proceeds. Therefore, we dismiss the first two assignments of error as moot. Attorney Fees
{¶22} In its third assignment of error, CCR argues that the trial court abused its discretion when it awarded Blisswood attorney fees in the amount of $2,618.50. Appellate courts review a trial court's award of attorney fees for abuse of discretion. Motorists Mut. Ins. Co. v. Brandenburg, 75 Ohio St.3d 157, 160, 648 N.E.2d 488 (1995). An abuse of discretion constitutes more than an error in law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A party moving for attorney fees bears the burden of presenting sufficient evidence of the services performed and the reasonable value thereof. Stonehenge Land Co. v. Beazer Home Invests., L.L.C., 177 Ohio App.3d 7, 2008-Ohio-48, 893 N.E.2d 855 (10th Dist.). In calculating attorney fees, courts consider numerous factors, including the time and labor involved in litigation, the novelty and difficulty of the legal questions involved, and the results of the legal services. Id., citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991).
{¶23} Here, the trial court awarded Blisswood attorney fees in its October 5, 2016 discovery sanctions order. Further, Blisswood is entitled to recover attorney fees pursuant to R.C. 5311.18(A)(1)(b). The award of attorney fees was reasonable in light of the proceedings. Nothing in the record indicates the award was unreasonable, arbitrary, or unconscionable, and therefore the award does not constitute an abuse of discretion. Furthermore, the trial court correctly determined a reasonable amount for the award based on an affidavit attesting to the award's reasonableness.
{¶24} In light of the foregoing, CCR's appeal of the foreclosure order is dismissed and trial court's award of attorney fees is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
TIM McCORMACK, JUDGE MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR