TCF Natl. Bank v. Estate of Oliver

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[Cite as TCF Natl. Bank v. Estate of Oliver, 2010-Ohio-1306.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT TCF NATIONAL BANK FBO AEON FINANCIAL, LLC Plaintiff-Appellant -vs- : : : : : : : : : JUDGES: W. Scott Gwin, P.J. John W. Wise, J. Julie A. Edwards, J. Case No. 2009 CA 00124 OPINION ESTATE OF CHARLES F. OLIVER, SR., et al., Defendants-Appellees CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case No. 2008 CV 04870 JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: March 22, 2010 APPEARANCES: For Plaintiff-Appellant For Defendants-Appellees MARK A. SCHWARTZ DAVID T. BRADY KIRK W. LIEDERBACH JOHN S. PUCIN PATRICK J. RYLL Schwartz & Associates, LLP 27 N. Wacker Drive, #503 Chicago, IL 60606 ESTATE OF CHARLES F. OLIVER, Sr. 2630 6th Street, S.E. Canton, Ohio 44707 UNKNOWN SPOUSE, IF ANY, OF THE ESTATE OF CHARLES OLIVER, SR. 2630 6th Street, S.E. Canton, Ohio 44707 For Defendants-Appellees For Defendants-Appellees GARY D. ZEIGLER Treasurer of Stark County C/o John F. Anthony, II Assistant Prosecutor, Civil Division 110 Central Plaza, South, Ste. #510 Canton, Ohio 44702 PATRICIA OLIVER 2630 6th Street, S.E. Canton, Ohio 44707 FCI NATIONAL FUND II, LLC, MORTGAGEE 8180 E. Kaiser Boulevard Anaheim Hills, CA 92808 [Cite as TCF Natl. Bank v. Estate of Oliver, 2010-Ohio-1306.] Edwards, P.J. {¶1} Plaintiff-Appellant, TCF National Bank FBO Aeon Financial, LLC, appeals the April 30, 2009, Judgment Entry entered by the Stark County Court of Common Pleas. STATEMENT OF THE FACTS AND CASE {¶2} Appellant purchased a tax lien certificate from the Stark County Treasurer on a property located in Stark County, Ohio. Subsequently, Appellant filed a Complaint for Foreclosure, pursuant to R.C. 5721.30 to 5721.46. Appellant s counsel filed a motion for private attorney s fees with a supporting Affidavit attached. The motion for fees requested $2,500.00 in attorney s fees, to be taxed as a cost of the private foreclosure action, and requested a hearing. {¶3} The motion for attorney s fees was unopposed. Thereafter, the trial court issued an Order and Decree of Foreclosure on April 30, 2009. The court made Findings of Fact and Conclusions of Law in the same judgment. {¶4} It is from the April 30, 2009, Judgment Entry Appellant appeals, raising as its sole assignment of error: {¶5} I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN REDUCING AEON'S STATUTORILY RECOVERABLE ATTORNEY FEES, BELOW THE $2,500 IT INCURRED AND REQUESTED, BECAUSE THE COURT FAILED TO ACCORD AEON THE BENEFIT OF THE STATUTORY PRESUMPTION OF REASONABLENESS CREATED BY THE OHIO LEGISLATURE, IN R.C. SECTION 5721.371, IN FAVOR OF A TAX CERTIFICATE HOLDER FOR ATTORNEY FEES INCURRED IN TAX Stark County App. Case No. 2009 CA 00124 3 CERTIFICATE FORECLOSURE CASES WHERE SUCH FEES DO NOT EXCEED $2,500. {¶6} In finding of fact no. 11 at page six of the trial court s entry, the court states, Plaintiff is entitled to reimbursement for reasonable attorney s fees incurred in the amount of $______, and to have said sum taxed as a cost to be paid from the proceeds of Sheriff s Sale. At page seven of the judgment entry, when stating the amount which must be paid to the county treasurer to redeem the property prior to sale, the court includes reasonable attorney fees of _____, again without including a dollar amount in the blank. However, in the order of the court directing how the proceeds are to be applied by the Sheriff upon confirmation of sale, the court states, 1) To Plaintiff s attorney, the fees and costs incurred in this proceeding, which are hereby taxed as costs[.] {¶7} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and it must be dismissed. {¶8} A judgment which expressly orders attorney fees but does not specify an amount is not a final, appealable order. Ft. Frye Teachers Association v. Ft. Frye Local School Dist. Bd. of Education (1993), 87 Ohio App.3d 840, 843, 623 N.E.2d 232, 234. Accord, Cwynar v. Jackson Twp. Bd. of Trustees, 178 Ohio App.3d 345, 897 N.E.2d 1181, 2008-Ohio-5011, ¶54; Jones v. McAlarney Pools, Spas & Billiards, Inc., 4th Dist. No. 07CA34, 2008-Ohio-1365; Vannoy v. Capital Lincoln-Mercury Sales, Inc. (Jun. 1, 1993), Ross App. Nos. 1868 & 1871; Cole v. Cole (Nov. 8, 1993), Scioto App. No. Stark County App. Case No. 2009 CA 00124 4 93CA2146; Pickens v. Pickens (Aug. 27, 1992), Meigs App. No. 459; State ex rel. VanMeter v. Lawrence Co. Bd. of Commrs. (Aug. 25, 1992), Lawrence App. No. 91 CA25. {¶9} Because the entry appealed from awarded attorney s fees taxed as costs in the action but did not include a dollar amount, the judgment appealed from is not a final appealable order. The appeal is dismissed. By: Edwards, J. Gwin, P. J. and Wise, J. concur s/Julie A. Edwards_______________ s/W. Scott Gwin_________________ s/John W. Wise_________________ JUDGES JAE/r0310 [Cite as TCF Natl. Bank v. Estate of Oliver, 2010-Ohio-1306.] IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT TCF NATIONAL BANK FBO AEON FINANCIAL, LLC Plaintiff-Appellant -vsESTATE OF CHARLES F. OLIVER, SR., et al., Defendants-Appellees : : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2009 CA 00124 For the reasons stated in our accompanying Memorandum-Opinion on file, the appeal of the April 30, 2009, Judgment Entry of the Stark County Court of Common Pleas is dismissed. Costs waived. s/Julie A. Edwards__________________ s/W. Scott Gwin____________________ s/John W. Wise_____________________ JUDGES

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