Deutsche Bank Natl Trust Co. v. Baker

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-4207

Case Date: 09/17/2012

Plaintiff: Deutsche Bank Natl Trust Co.

Defendant: Baker

Preview:[Cite as Deutsche Bank Natl Trust Co. v. Baker, 2012-Ohio-4207.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
DEUTSCHE BANK NATIONAL TRUST                                                              :                                         MEMORANDUM OPINION
COMPANY, AS TRUSTEE FOR
AMERIQUEST MORTGAGE SECURITIES                                                            :
INC., ASSET-BACKED PASS-THROUGH                                                                                                     CASE NO. 2012-A-0022
CERTIFICATES, SERIES ARSI 2006-M3,                                                        :
Plaintiff-Appellee,                                                                       :
- vs -                                                                                    :
ELAINE V. BAKER, a.k.a. ELAINE                                                            :
BAKER, et al.,
:
Defendants/Third Party
Plaintiffs-Appellants,                                                                    :
- vs -                                                                                    :
AMERIQUEST MORTGAGE CO., et al.,                                                          :
Third Party Defendants-                                                                   :
Appellees.
Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 40.
Judgment: Appeal dismissed.
Darryl E. Gormley and Peter L. Mehler, Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.,
2450 Edison Boulevard, P.O. Box 968, Twinsburg, OH   44087 (For Plaintiff-Appellee).
David  N.  Patterson,                                                                     33579  Euclid  Avenue,  Willoughby,  OH   44094-3199             (For
Defendants/Third Party Plaintiffs-Appellants).
Kara A. Czanik, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, OH                45202 (For
Third Party Defendants-Appellees, Ameriquest Mortgage Co. and Ameriquest Mortgage
Securities, Inc.).

Brittany L. Griggs, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, OH                    45202
(For Third Party Defendant-Appellee, Citi Residential Lending, Inc.)
CYNTHIA WESTCOTT RICE, J.
{¶1}   On June 12, 2012, appellants, Elaine V. Baker and Robert Baker, filed a
notice of appeal from a May 14, 2012 entry of the Ashtabula County Court of Common
Pleas.   In that entry, the trial court dismissed the third party complaint against appellees,
Ameriquest and Citi Residential Lending, Inc.    The trial court also ordered that the
motion to dismiss filed by appellee, Deutsche Bank National Trust Company, as trustee
for Ameriquest Mortgage Securities Inc., asset-backed pass-through certificates series
ARSI 2006-M3, be granted and that appellants’ counterclaim be dismissed.
{¶2}   Civ.R. 54(B) provides that:
{¶3}                                                                                              “When more than one claim for relief is presented in an action whether as
a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the
same or separate transactions, or when multiple parties are involved, the court may
enter final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay.   In the absence of
a  determination  that  there  is  no  just  reason  for delay,  any  order  or  other form  of
decision, however designated, which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties, shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.”
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{¶4}   This court has stated that where there are multiple claims and/or parties
involved, an entry that enters final judgment as to one or more but fewer than all of the
claims is not a final appealable order in the absence of Civ.R. 54(B) language stating
that “there is no just reason for delay[.]”   Montello v. Ackerman, 11th Dist. No. 2009-L-
111, 2009-Ohio-6383, at ¶6.   See, also, Kessler v. Totus Tuus, L.L.C., 11th Dist. No.
2007-A-0028, 2007-Ohio-3019, at ¶7.
{¶5}   In the case at hand, it is clear from a review of the record that while the
trial court dismissed appellants’ counterclaim and third party complaint, the action in
foreclosure still remains pending.   Furthermore, the May 14, 2012 judgment entry that
was appealed from does not contain any Civ.R. 54(B) language.   Without the inclusion
of Civ.R. 54(B) language, there is no final appealable order at this time.
{¶6}   Based upon the foregoing analysis, this appeal is hereby dismissed due to
lack of a final appealable order.
{¶7}   Appeal dismissed.
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.
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Download 2012-a-0022.pdf