IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

ABN AMRO Mortgage Group, Inc., :

Plaintiff-Appellee, :

No. 04AP-457

v. :

(C.P.C. No. 03CV-3702)

Christopher Roush et al., :

(REGULAR CALENDAR)

Defendants, :

(Teresa Roush, :

Defendant-Appellant). :

O P I N I O N

Rendered on April 14, 2005

Sikora Law, LLC

, and

Michael J. Sikora; Lerner, Sampson &

Rothfuss

Patricia K. Block

and

Kevin Walsh

, for appellee.

The Brunner Firm Co., LPA

, and

Rick L. Brunner

, for

appellant Teresa Roush.

APPEAL from the Franklin County Court of Common Ple

as.

SADLER, J.

{¶1}

Defendant-appellant, Teresa Roush ("appellant"), ap

peals from the

judgment of the Franklin County Court of Common Ple

as, denying her motion to dismiss

the complaint of plaintiff-appellee, ABN AMRO Mortg

age Group, Inc. ("appellee"), and

granting summary judgment in favor of appellee. Fo

No. 04AP-457

{¶3}

See

Roush v. Roush,

No. 04AP-457

It is undisputed that appellant did not file a cert

ificate of this judgment with the Franklin

County Recorder.

{¶5}

On October 25, 2002, the court entered a Nunc Pro T

unc Order in the

Roush lawsuit, which provided:

This matter came on to correct this Court's order o

November 1, 2001, which provided specific remedies

sought

in the Plaintiff's Motion but which did not adequat

ely spell out

the specific remedy and has apparently been agreed

to in the

Defendant's Answer in the above-captioned matter of

litigation. The Court has determined that the Defe

ndant has

agreed that the Plaintiff has a life estate in the

subject

premises and in his Answer filed June 7, 2001. It

is therefore,

* * *

ORDERED, ADJUDGED and DECREED that Plaintiff has

retained a life estate in the premises as 329 Danhu

rst Road,

City of Columbus, County of Franklin, State of Ohio

(October 25, 2002 Nunc Pro Tunc Order.)

{¶6}

On November 8, 2002, appellant filed a forcible ent

ry and detainer action in

the Franklin County Municipal Court to evict Roush

from the property.

On July 17,

2003, the magistrate issued a decision in which he

found appellant had the current right

of possession of the property, because she held a l

ife estate interest therein. The

Franklin County Municipal Court adopted the magistr

ate's decision on July 22, 2003.

{¶7}

On April 9, 2002, Roush executed a note and conveye

d a mortgage to

appellee in order to secure payment of said note.

Appellant asserts that she had no

knowledge of the mortgage Roush entered into with a

ppellee. (Appellant's Aff. ¶19.)

See

Roush v. Roush

Franklin County Municipal Court,

ase No. 2002 CVG-43085.

The record does not reflect when Roush lived at th

e property or the length of his tenancy.

No. 04AP-457

{¶8}

Appellee initiated the instant foreclosure

action in the Franklin County Court

of Common Pleas by complaint filed April 1, 2003.

The complaint named as defendants

Christopher Roush and "Jane Doe, Unknown Spouse of

Christopher Roush." In its

complaint, appellee asserted that it was the owner

and holder of a note Roush signed

with a sum due of $95,899.79, that the note was in

default, and that appellee was the

holder of a mortgage securing payment of the note.

At that time, appellee did not name

appellant as a party defendant or assert any claims

against her.

{¶9}

On August 27, 2003, without first obtaining leave t

o intervene, appellant

filed a motion to dismiss the complaint pursuant to

Civ.R. 12(B), asserting that she held

and continues to hold a life estate in the property

, and that her interest is superior to the

interest of appellee. Appellant claimed

that appellee's claims against her were barred by

the doctrine of collateral estoppel, res judicata a

nd lis pendens. Additionally, appellant

alleged the court lacked personal jurisdiction, and

that appellee failed to state a claim

upon which relief could be granted. Finally, appel

lant claimed appellee failed to obtain

proper service of summons over her, and failed to c

omply with the requirements of Civ.R.

10(A) inasmuch that the complaint failed to name ap

pellant as a party.

{¶10}

By leave of court, on September 9, 2003, appellee a

mended its complaint in

order to name appellant as a party defendant. Ther

ein, appellee sought a declaratory

judgment declaring its interest in the property to

be superior to that of appellant.

{¶11}

On September 16, 2003, appellant filed a motion ent

itled "Defendant,

Teresa Roush's, Combined Motions, Pursuant to Ohio

Civ.R. 12(B), to Dismiss the

Complaint of Plaintiff and to Strike the Amended Co

mplaint for Plaintiff's Violations of

Ohio Civil Rule 5(D). ("September 16, 2003 Motion t

o Dismiss.") Therein appellant

No. 04AP-457

reiterated her arguments stated in the August 27, 2

003 motion to dismiss. Appellee filed

a memorandum in opposition on September 29, 2003.

{¶12}

On October 23, 2003, appellee moved for summary jud

gment on its claim

for declaratory judgment against appellant. Appell

ee argued that as a bona fide

purchaser for value of the property, it had neither

actual and/or constructive notice of

Roush's life estate interest in the real property,

and that it was entitled to an interest of the

property that was superior to that of the life esta

te interest of appellant. Alternatively,

appellee asked the trial court to find that the doc

trine of equitable subrogation applied to

give appellee priority in at least the amount it pa

id to satisfy prior liens. Appellee

supported its motion with an affidavit from a repre

sentative of appellee, a copy of the

mortgage and the affidavit of Dirken T. Voelker ("V

oelker"), a title examiner who

performed a title search on the property. Voelker'

s affidavit read in pertinent part:

2. I examined the records of the Franklin county R

ecorder

with respect to the property commonly known as 329

Danhurst Road, Columbus, Ohio ("the Property").

3. As of April 2, 2002, the records of the Frankl

in county

Recorder reflected that Christopher A. Roush a.k.a.

Adam

Roush ("Mr. Roush") was the holder of a fee simple

interest in

the Property resulting from a conveyance from Sharo

n K.

Augustine. Also, the Property was subject to the m

ortgage

interest of Consolidated Mortgage and Financial Ser

vices

Corporation ("Consolidated") that was executed on J

uly 26,

1997 and recorded on August 7, 1997.

4. I examined the records of the Franklin County C

lerk of

Courts with respect to Mr. Roush and the Property.

5. As of April 2, 2002, the records of the Frankli

n County

Clerk of Courts with respect to Mr. Roush and the P

roperty

indicated that the only action regarding Mr. Roush

was Case

No. 01CVC04 3929, and the docket for that case show

ed that

the case had been "Dismissed.:q:s)1k:s:s:s)1k:s:s:cmRh_":gsRs:s:s:_zRs:s:s:rgRqRk)dJJJ":s:s:k)dJJJ":s:s:cm:qTRh_w:d1:TfRs)wwjsw:s:s:d:"1:"ms)yJ:TmR[7No. 04AP-457

No. 04AP-457

7. Furthermore, Ms. Roush has had no opportunity to

examine the Plaintiff and its representatives on de

position as

to his testimony in relation to information set for

th in the said

documents and affidavits attached to the Plaintiff'

s Motion for

Summary Judgment.

8. A significant amount of discovery needs to be c

onducted.

9. However, it is necessary for Ms. Roush to condu

ct more

discovery in order to fully address the contentions

of the

Plaintiff in its motion for summary judgment.

{¶15}

In her memorandum contra, appellant argued that gen

uine issues of

material fact exist as to whether or not appellee h

ad knowledge of her interest in the

property at the time appellee acquired its interest

in the property. Further, appellant

argued that appellee has failed to demonstrate it i

s entitled to a superior interest in the

property under the doctrine of equitable subrogatio

{¶16}

In support of her memorandum contra, appellant subm

itted a copy of the

complaint she filed against Roush to quiet title, c

opies of the November 1, 2001 Order

and the October 24, 2002 nunc pro tunc order filed

in Franklin County Court of Common

Pleas case No. 01CVC04-3929, a copy of the mortgage

between Roush and appellee

and a copy of the July 17, 2003 magistrate's decisi

on issued in Franklin County Municipal

Court case No. 2002 CVG-43085. Appellant also subm

itted her affidavit, with an

attached copy of the warranty deed conveying the pr

operty to Roush from Augustine, and

a copy of a prior mortgage between Roush and Consol

idated.

{¶17}

Appellee filed a memorandum contra to appellant’s m

otion for an extension

of time on November 21, 2003. Therein, appellee as

serted that additional time for

discovery was unnecessary, as issues of law governe

d the instant matter. Appellant filed

a reply memorandum on November 26, 2003 in which sh

No. 04AP-457

perform discovery.

{¶18}

No. 04AP-457

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN DENYING DEFENDANT-

APPELLANT, TERESA ROUSH'S MOTION FOR AN

EXTENSION OF TIME TO CONDUCT DISCOVERY,

PURSUANT TO RULE 56(F), OHIO RULES OF CIVIL

PROCEDURE, FILED NOVEMBER 7, 2003, IN ITS

DECISION AND ENTRY JOURNALIZED ON FEBRUARY 23,

2004 AND THEREAFTER ENTERING FINAL JUDGMENT

PURSUANT TO SAID DECISION ON APRIL 16, 2004.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-

APPELLEE, ABN AMRO MORTGAGE GROUP, INC.'S

MOTION FOR SUMMARY JUDGMENT FILED ON

OCTOBER 23, 2003 IN ITS DECISION AND ENTRY

JOURNALIZED ON FEBRUARY 23, 2004 AND

THEREAFTER ENTERING FINAL JUDGMENT PURSUANT

TO SAID DECISION IN A JUDGMENT

ENTRYJOURNALIZED ON APRIL 16, 2004.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN DENYING DEFENDANT-

APPELLANT TERESA ROUSH'S MOTION TO DISMISS

PLAINTIFF'S COMPLAINT FILED AUGUST 27, 2003 IN ITS

DECISION AND ENTRY JOURNALIZED ON FEBRUARY 23,

2004 AND THEREAFTER RENDERING FINAL JUDGMENT

PURSUANT TO SAID DECISION IN A JUDGMENT ENTRY

JOURNALIZED ON APRIL 16, 2004.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN RENDERING THE

JUDGMENT AND DECREE IN FORECLOSURE

JOURNALIZED ON APRIL 6, 2004.

{¶21}

In her first assignment of error, appellant asserts

the trial court abused its

discretion by denying her motion for an extension o

f time pursuant to Civ.R. 56(F). Civ.R.

56(F) provides that “should it appear from the affi

davits of a party opposing the motion for

summary judgment that the party cannot for sufficie

nt reasons stated present by affidavit:q:s)1k:s:s:s)1k:s:s:cmRh_":gsRs:s:s:_zRs:s:s:rgRqRk)dJJJ":s:s:k)dJJJ":s:s:cm:qTRh_w:d1:TfRs)wwjsw:s:s:d:"1:"ms)yJ:TmR[7No. 04AP-457

had or may make such other order as is just.”

{¶22}

No. 04AP-457

{¶25}

In her second assignment of error, appellant claims

the court erred by

granting appellee’s motion for summary judgment.

{¶26}

Summary judgment is proper only when the party mov

ing for summary

judgment demonstrates: (1) no genuine issue of mate

rial fact exists, (2) the moving

parties are entitled to judgment as a matter of law

, and (3) reasonable minds could come

to but one conclusion, and that conclusion is adver

se to the party against whom the

motion for summary judgment is made, when the evide

nce is construed in a light most

favorable to the nonmoving party. Civ.R. 56(C);

State ex rel. Grady v. State Emp. Rels.

Bd.

(1997), 78 Ohio St.3d 181, 677 N.E.2d 343.

{¶27}

We review the trial court's grant of summary judgme

nt de novo.

Coventry

Twp. v. Ecker

(1995), 101 Ohio App.3d 38, 654 N.E.2d 1327. We s

tand in the shoes

of the trial court and conduct an independent revie

w of the record. As such, we must

affirm the trial court's judgment if any of the gro

unds raised by the movant at the trial court

are found to support it, even if the trial court fa

iled to consider those grounds. See

Dresher v. Burt

(1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264;

Coventry

, supra, at 41-

42.

{¶28}

The moving party bears the initial responsibility o

f informing the trial court of

the basis for the motion, and identifying those por

tions of the record before the trial court

which demonstrate the absence of a genuine issue of

fact on the essential element(s) of

the nonmoving party's claims.

Dresher

, supra, at 292.

The moving party cannot discharge its initial burde

n under

Civ.R. 56 simply by making a conclusory assertion t

hat the

nonmoving party has no evidence to prove its case.

Rather,

the moving party must be able to specifically point

to some

evidence of the type listed in Civ.R. 56(C) which a

ffirmatively

No. 04AP-457

demonstrates that the nonmoving party has no eviden

ce to

support the nonmoving party's claims. If the movin

g party

fails to satisfy its initial burden, the motion for

summary

judgment must be denied. However, if the moving pa

rty has

satisfied its initial burden, the nonmoving party t

hen has a

reciprocal burden outlined in Civ.R. 56(E) to set f

orth specific

facts showing that there is a genuine issue for tri

al and, if the

nonmovant does not so respond, summary judgment, if

appropriate, shall be entered against the nonmoving

party.

Id. at 293.

{¶29}

In support of her second assignment of error, appel

lant alleges that issues

of fact remain as to whether or not appellee had co

nstructive knowledge of appellant’s

interest in the property.

{¶30}

Pursuant to R.C. 5301.25, "a bona fide purchaser fo

r value is bound by an

encumbrance upon land only if he has constructive o

r actual knowledge of the

encumbrance."

Emrick v. Multicon Builders, Inc.

(1991), 57 Ohio St.3d 107, 109 quoting

Tiller

Hinton

(1985), 19 Ohio St.3d 66, 68, 19 OBR 63, 65, 482 N

.E.2d 946, 949.

{¶31}

Actual notice is "such notice as is positively prov

ed to have been given to a

party directly and personally, or such as he is pre

sumed to have received personally

because the evidence within his knowledge was suffi

cient to put him upon inquiry."

Black's Law Dictionary, (6 Ed.Rev. 1990) 1061. "Co

nstructive notice may be afforded by

a recorded instrument by lis pendens, and by knowle

dge of circumstances sufficient to

awaken suspicion and put the purchaser on inquiry."

41 Ohio Jurisprudence 3d §78. We

have previously held that a "good faith mortgagee i

s charged with constructive notice only

of the rights of the person in possession and the r

ights of persons claiming an interest

under a duly recorded instrument."

Mellon Natl. Mortgage Co. of Ohio v. Jones

(Nov. 3,

1977), 54 Ohio App.2d 45, 374 N.E.2d 666, This " '[

No. 04AP-457

records of the county or actual knowledge thereof.'

" Id. at 49 citing

Standard Oil Co. v.

Moon

(1930), 34 Ohio App. 123, 170 N.E. 368.

{¶32}

R.C. 5301.25, Ohio's recording statute, provides in

relevant part:

All deeds, land contracts referred to in division (

A)(2)(b) of

section 317.08 of the Revised Code, and instruments

writing properly executed for the conveyance or enc

umbrance

of lands, tenements, or hereditaments, other than a

s provided

in division (C) of this section and section 5301.23

of the

Revised Code, shall be recorded in the office of th

e county

recorder of the county in which the premises are si

tuated.

Until so recorded or filed for record, they are fra

udulent

insofar as they relate to a subsequent bona fide pu

rchaser

having, at the time of purchase, no knowledge of th

existence of that former deed, land contract, or in

strument.

{¶33}

Applying the foregoing, appellant asserts that appe

llee had constructive

notice of her life estate interest as a result of h

er possession of the property. In support,

appellant references her affidavit, in which she as

serts she has resided at the property

since she took possession in 1995. Further, appell

ant argues "the world was required to

take notice of [her] possession of the real propert

y and in turn engage in a diligent search

as to Appellant Roush's interest." (Appellant's Br

ief at 19.)

{¶34}

Appellant further argues that appellee had construc

tive notice of her interest

in the property as a result of the Roush lawsuit.

She argues that appellee had a duty to

apprise itself in detail as to the disposition of t

he Roush lawsuit. Without citing any

supporting authority, appellant asserts "it is simp

ly not reasonable diligence of a

mortgagee or purchaser to simply witness that litig

ation against a potential borrower no

longer remains pending."

(Appellant’s Brief at 21.)

Appellant additionally alleges Voelker’s statement

s in his affidavit regarding the status of the Rous

lawsuit are inadmissible hearsay, because appellee

failed to attach a certified copy of the court’s do

cket to

No. 04AP-457

{¶35}

In response, appellee directs our attention to Voel

ker’s affidavit, and argues

the public records of the Franklin County Recorder

and the Franklin County Clerk of Court

did not provide notice of appellant’s alleged inter

est in the property. Appellee asserts that

Voelker conducted a title search that did not revea

l any interest in favor of appellant

existing at the time appellee obtained its interest

. Appellee argues that because appellant

did not record her alleged interest within the prop

erty’s chain of title, so as to place third

parties on notice of her interest, it was a bona fi

de mortgagee that obtained its mortgage

interest in the property without actual or construc

tive notice of appellant’s alleged interest.

Accordingly, appellee maintains its interest is sup

erior to that of appellant and the trial

court correctly entered summary judgment in its fav

or.

{¶36}

Appellee asserts that the trial court correctly rel

ied upon

Bank of N.Y v.

Stambaugh

, Trumbull App. No. 2002-T-0184, 2003-Ohio-6416 at

¶16, in which the

Eleventh Appellate District found a party receiving

a property interest was required to

comply with the recording requirements of R.C. 5301

.23 and 5301.25. We agree.

{¶37}

Spring Lakes Ltd. v. O.F.M. Co.

(1984), 12 Ohio St.3d 333, 467 N.E.2d

537, the Supreme Court of Ohio held that "in order

for a purchaser of real property to be

charged with constructive notice of an encumbrance

contained in a prior recorded

instrument, the prior instrument must be recorded i

n the purchaser's chain of title." Id. at

336.

verify the truth of his statements. Because appell

ant did not raise this argument in the proceedings

before

the trial court, she waives it on appeal. See

Bank One v. Barclay

, Franklin App. No. 03AP-870, 2004-Ohio-

2718 at ¶20. (Citation omitted.)

No. 04AP-457

{¶38}

Here, it is undisputed that appellant did not recor

d her "reserved" life estate

interest when the property was conveyed from August

ine to Roush, nor did she record a

certificate of judgment after she won the Roush law

suit, in accordance with the

requirements of R.C. 5301.25. Thus, the trial cour

t was correct in determining that

appellee did not have constructive notice of appell

ant's interest in the property.

{¶39}

Appellant further asserts in support of her second

assignment of error that

the doctrine of lis pendens prevented appellee from

obtaining an interest in the property,

because the Roush lawsuit remained pending until th

e nunc pro tunc entry was

journalized by the trial court on October 25, 2002,

which was over six months after

Voelker examined the chain of title.

{¶40}

The doctrine of lis pendens, codified at R.C. 2703.

26, provides that "[w]hen

summons has been served or publication made, the ac

tion is pending so as to charge

third persons with notice of its pendency. While pe

nding, no interest can be acquired by

third persons in the subject of the action, as agai

nst the plaintiff's title."

{¶41}

Furthermore, R.C. 5309.58 specifically addresses li

s pendens and provides:

No suit, action, or proceeding, pending in any cour

t, affecting

registered land or any interest therein or charge u

pon such

land is lis pendens, or notice to any person dealin

g with such

land, until a certificate of the pendency of such s

uit, bill, or

proceeding, under the hand and official seal of the

clerk of the

court in which it is pending, is filed with the cou

nty recorder,

and a memorial thereof entered by him upon the last

registered certificate of title to the land to be a

ffected.

* * *

When any suit, bill, or proceeding has been dismiss

ed or

otherwise disposed of, or any judgment, decree, or

order has

been satisfied, released, reversed, or modified, or

any levy of

execution, attachment, or other process has been re

leased,

No. 04AP-457

discharged, or otherwise disposed of, the sheriff,

or the clerk

of the court in which such proceedings were pending

or had,

shall forthwith under his hand, and if the clerk, u

nder the seal

of the court, certify to and file with the recorder

an instrument

showing such discharge, release, dismissal, or fina

disposition.

{¶42}

In order for the doctrine of lis pendens to apply t

o charge third person with

notice of pending litigation, three requirements mu

st be met: "(1) the property must be of

a character to be subject to the rule; (2) the cour

t must have jurisdiction over both the

person and the res; and (3) the property or res inv

olved must be sufficiently described in

the pleadings."

Bank of N.Y. v. Barclay

, Franklin App. No. 03AP-844, 2004-Ohio-1217, at

¶10, quoting

Cook v. Mozer

(1923), 108 Ohio St. 30, 37, 1 Ohio Law Abs. 436,

1 Ohio

Law Abs. 845, 140 N.E. 590.

{¶43}

With respect to the second requirement, we agree wi

th the trial court that

"when an initial entry is a final determination of

the rights of the parties, a subsequent

nunc pro tunc entry clarifying the initial entry re

lates back to the time of the filing of the

initial entry, and does not extend the time for app

eal."

Northwood Local Edn. Assn. v.

State Emp. Rels. Bd.

, Wood App. No. WD-89-24, 1990 Ohio App. LEXIS 427

at *6. The

fact that the court issued the October 24, 2004 nun

c pro tunc order does not mean that

the court had retained jurisdiction in the case aft

er November 1, 2001, the date upon

which it originally entered judgment in the Roush l

awsuit. The trial court relinquished

jurisdiction well before appellee obtained its mort

gage interest. Thus, the doctrine of lis

pendens does not demonstrate constructive notice on

the part of appellee.

{¶44}

Finally, appellant argues the trial court improperl

y granted appellee's motion

for summary judgment, as the doctrine of collateral