IN THE SUPREME COURT OF OHIO

BANK OF AMERICA, N.A., Successor byMerger to LASALLE BANK NATIONALASSOCIATION,

Plaintiff-Appellant,

V.

OMEGA DESIGN/BUILD GROUP, LLC,TRU WALL CONCRETE, INC.,THE OSTERWISCH COMPANY,TRI-STATE CONCRETE,JACOB MASONRY CONTRACTORS,LLC,D.E.P.E., LLC, d/b/a PELLA WINDOWSAND DOORS

Defendants-Appellees.

and

THE OVERLOOK AT EDEN PARK, L.P., :et al.,

Defendants,

On Appeal from the Hamilton CountyCourt of Appeals, First Appellate District

Court of Appeals Case No. C 100018

MOTION OF PLAINTIFF-APPELLANT BANK OF AMERICA, N.A.,SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION

TO STAY PROCEEDINGS

Michael J. Sikora III (0069512)(Counsel of Record)Richard T. Craven (0082273)Sikora Law LLC8532 Mentor AvenueMentor, Ohio 44060msikora(c^ sikoralaw. comrcravengsikoralaw. c om(440) 266-7777 (telephone)(440) 266-7778 (facsimile)Co-counsel for Plaintiff-Appellant Bank of America, N.A., Successorby Merger to LaSalle Bank National Association

,k, '-`. t "t ;^ C.,,^^- `^' ' ^'^ ;.c ^,ESURP.jE C101URl ';^r M0

Paul E. PerryLawrence A. DudekMiller Canfield Paddock & Stone, PLC511 Walnut Street, 19th FloorCincinnati, OH 45202perrvkmillercanfield.comdudek cr millercanfreld.com(614) 203-7800 (telephone)(248) 879-2001 (facsimile)Co-counsel for Plaintiff-Appellant Bank of America, N.A.,Successor by Merger to LaSalle Bank National Association

Carl J. Stich, Jr.White, Getgey & Meyer Co., LPA1700 Fourth & Vine TowerOne West Fourth StreetCincinnati, Ohio 45202cstichna wgmlpa.com(513) 241-3685 (telephone)(513) 241-2399 (facsimile)Counsel for Defendant-Appellee Omega Design/Build Group, LLC

Meghan D. DonnellonThomas E. DonnellonDonnellon Donnellon & Miller LPA9079 Montgomery RoadCincinnati, Ohio 45242mdonnellongdonnellonlaw.comted(c^donnellonlaw.com(513) 891-7087 (telephone)(513) 891-7125 (facsimile)Counsel for Defendant-Appellee D.E.P.E., LLC dba Pella Windows and Doors

A. Dennis MillerDroder & Miller Co., LPA125 W. Central ParkwayCincinnati, Ohio 45202dmillergdrodermiller.com(513) 721-1504 (telephone)(513) 721-0310 (facsimile)Counsel for Defendant-Appellee Tri-State Concrete

William A. HuddlesonGraydon Head & Ritchey LLP1900 Fifth Third Center511 Walnut StreetCincinnati, Ohio 45202whuddlesongpraydon.com

2

(513) 629-2819 (telephone)(513) 651-3836 (facsimile)Counsel for Defendant-Appellee Tru Wall Concrete Inc.

Peter E. KoenigBuechner Haffer Meyers & Koenig Co., LPA105 E. 4th Street, Suite 300Cincinnati, Ohio 45202pkoenig(a)bhmklaw.com(513) 579-1500 (telephone)(513) 977-4361 (facsimile)Counsel for Defendant-Appellee Jacob Masonry Contractors LLC

Warren J. RitchieKeating, Ritchie & McGary5300 Socialville-Foster RdSuite 140Mason, Ohio 45040writchie&krslawyers.com(513) 234-0567 (telephone)(513) 234-0886 (facsimile)Counsel for Defendant-Appellee Osterwisch Company

3

Now comes Plaintiff-Appellant Bank of America, N.A., Successor by Merger to LaSalle

Bank National Association ("Bank of America"), by and through its undersigned counsel, and

hereby move this Court to stay the effectiveness of the Decision of the First District Court of

Appeals rendered on April 6, 2011 and stay further proceedings in the Trial Court in this matter.

Good cause exists for the granting of this Motion.

1. BACKGROUND

This is a commercial foreclosure action involving a multi-story condominium complex in

Hamilton County, Ohio ("the Property"). This case involves foreclosure of a Mortgage in the

amount of $13,200,000 that encumbers the Property and issues concerning the validity, priority,

and amounts of liens held by Defendants-Appellees, which have filed Affidavits for Mechanic's

Liens. The arguments concerning validity, priority, and amounts of liens all stem from a creative

argument advanced by Defendants-Appellees that a notice of commencement cannot be

terminated. If Defendants-Appellees do not prevail on that argument, than their alleged liens

relate to another notice of commencement, and no further litigation of lien validity, priority,

and/or amounts will be necessary.

On January 4, 2010, the Trial Court granted partial summary judgment to the Appellees

("the Trial Court Decision"). The Trial Court held, "The Court therefore finds that mechanics'

liens filed for work and materials supplied in connection with the improvements identified in the

Original Notice of Commencement are prior in time and have priority over the Mortgage of

Plaintiff the Bank of America * * * ." ("the Trial Court Decision"). On April 6, 2011, the First

District Court of Appeals affirmed the Trial Court Decision ("the Appellate Decision").1

Concurrent with the filing of this Motion to Stay, Bank of America is filing a Notice of

Appeal and Memorandum in Support of Jurisdiction with this Court.

The Appellate Decision is attached hereto as Exhibit A.4

II. LAW AND ARGUMENT

This Court should stay the Appellate Decision and further proceedings in the Trial Court

until this Court determines whether to accept the appeal, and if accepted, until this Court issues a

decision. "Inherent within a court's jurisdiction, and essential to the orderly and efficient

administration of justice, is the power to grant or deny stays."2 A court may grant a motion to

stay in the "interests of comity, orderly procedure, or judicial economy.,3"

With respect to jurisdiction, this Court has stated, "[W]e have consistently held that once

an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent

with the reviewing court's jurisdiction to reverse, modify, or afHrm the judgment."4 Therefore,

once an appeal is taken, the trial court is divested of jurisdiction except "over issues not

inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed

judgment, such as the collateral issues like contempt ***."5

In addition, Rule 2.2(D) of The Supreme Court of Ohio Rules of Practice states, "After an

appeal is perfected from a court of appeals to the Supreme Court, the court of appeals is divested

of jurisdiction, except to take action in aid of the appeal, to rule on an application timely filed

with the court of appeals pursuant to App. R. 26, or to rule on a motion to certify a conflict under

Article IV, Section 3(B)(4) of the Ohio Constitution." Similarly, Rule 2.2(A)(3) provides:

2 State v. Hochhausler (1996), 76 Ohio St. 3d 455, 464, 668 N.E.2d 457, 466, citing See Landis

v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 166; State v. Smith (1989), 42 Ohio St.3d

60, 61, 537 N.E.2d 198, 200.3 Lexford Prop. Mgt., LLC v. Lexford Prop. Mgt., Inc. (2001), 147 Ohio App. 3d 312, 318, 770

N.E.2d 603, 608, citing Zellner v. Bd. of Ed, of Cincinnati (1973), 34 Ohio St.2d 199, 202, 297

N.E.2d 528; Efros v. Nationwide Corp. (1984), 12 Ohio St.3d 191, 465 N.E.2d 1309.

4 State ex rel. Elec. Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 2011-

Ohio-626, 2011 WL 561996, quoting State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio

St.3d 206, 2002-Ohio-3957, ¶ 85 State ex rel. State Fire Marshal v. Curl (2000) 87 Ohio St. 3d 568, 570, quoting State ex rel.

Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 0.O.3d

88, 90, 378 N.E.2d 162, 165; Haller v. Borror (1995), 107 Ohio App.3d 432, 436, 669 N.E.2d

17, 19.5

In a claimed appeal of right or a discretionary appeal, if the appellant

intends to seek from the Supreme Court an immediate stay of the court

of appeals iudgment that is being appealed, the appellant may file anotice of appeal in the Supreme Court without an accompanyingmemorandum in support of jurisdiction, provided both of the following

conditions are satisfied:

(i) A motion for stay of the court of appeals judgment shall accompany the

notice of appeal.

(ii) A copy of the court of appeals opinion and judgment entry being

appealed shall be attached to the motion for stay.6

The Eighth District Court of Appeals has held that if a motion for stay is filed, and this Court

subsequently grants the motion, then the judgment of the court of appeals is stayed pending a

determination by this Court whether to exercise its jurisdiction to hear the appeal.7

Staying the Appellate Court Decision and proceedings in the Trial Court until this Court

determines whether to accept Bank of America's appeal will avoid judicial duplication.

Moreover, a stay will prevent potentially divergent judicial rulings on the issue of lien priority as

the Trial Court Decision remains subject to interpretation- this Court could interpret it one way,

and the Trial Court could interpret it another way. Similarly, if this Court allows the

discretionary appeal and reverses the Appellate Decision, further discovery, briefing, and other

litigation on the issues of validity, priority, and amounts of liens may not be necessary. Thus,

staying the Appellate Decision and further proceedings in the Trial Court will preserve costs and

avoid unnecessary expenditure of resources in the event this Court accepts jurisdiction. This

Motion to Stay is not intended for delay and will not cause prejudice to any of the parties.

Finally, it is also within the discretion of this Court to determine whether a bond is

necessary and its amount.8 An "adequate supersedeas bond" could reasonably be construed to

6 S. Ct. Prac. R. 21.1 emphasis added).7 Master v. Chalko, 8t Dist No. 75973, *6, 2000 WL 573200.

8 Bibb v. Home S. & L. Co. (1989), 63 Ohio App.3d 751, 752.6

mean no bond at all, if the court believes that no bond is necessary, as in this case.9 In this case,

the posting of a supersedeas bond is not necessary because no judgment has been executed.

Bank of America's position is that the Trial Court Decision and Appellate Decision only decided

the narrow issue concerning the effective date of the Notice of Commencement. Thus, other

issues remain to be decided including whether Defendants-Appellees even have valid interests.

Even assuming arguendo that the Trial Court Decision and Appellate Decision decided the issue

of lien priority entirely, which Bank of America denies, no bond is necessary given that the asset

at issue has not been sold and is in the control of and is being maintained by a Receiver

appointed by the Trial Court. Because no judgment has been rendered in this case, discovery is

not complete, issues remain to be decided, and the asset at issue has not been sold and is being

maintained and preserved, a stay should be granted without requiring the posting of a

supersedeas bond.

III. CONCLUSION

In order to avoid judicial duplication, potentially divergent judicial rulings, and the

unnecessary expenditure of resources, fees and costs, this Court should stay the Appellate

Decision and all proceedings in the Trial Court until this Court determines whether to accept the

appeal, and if accepted, until this Court issues a decision on the merits. Therefore, this Court

should stay the Appellate Decision and trial court proceedings in the instant case without

requiring the posting of a supersedeas bond.

9 Irvine v. Akron Beacon Journal (Ohio App. 9 Dist.,2002), 147 Ohio App.3d 428, 451. See

Lomas & Nettleton Co. v. Warren (June 29, 1990), I tth Dist. No. 89-G-1519, 1990 WL 93138

(construing "sufficient sureties" language of R.C. 2505.09 to encompass no sureties in certain

cases).7

Respectfully submitted,

SIKORA LAW LLC

^---ichael J. Sikora III (0069512)

(Primary Responsible Attorney)Richard T. Craven (0082273)8532 Mentor AvenueMentor, Ohio 44060(440) 266-7777 (telephone)(440) 266-7778 (facsimile)msikora(crsikoralaw.comrcraven@ sikoralaw.comCo-counsel for Plaintiff Bank ofAmerica, N.A., Successor by Merger toLaSalle Bank National Association

8

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Motion to Stay of Plaintiff-

Appellant Bank of America, N.A. was served via ordinary U.S. Mail, postage prepaid, and

electronic mail where indicated on the 24a' day of June, 2011, on the following:

Carl J. Stich, Jr.White, Getgey & Meyer Co., LPA

1700 Fourth & Vine TowerOne West Fourth StreetCincinnati, Ohio 45202

cstich@wamlpa.comCounsel for Defendant Omega Design/Build Group, LLC

Meghan D. DonnellonThomas E. Donnellon

Donnellon Donnellon & Miller LPA9079 Montgomery RoadCincinnati, Ohio 45242

mdonnellon cy donnellonlaw.comtedgdonnellonlaw.com

Counsel for Defendant D.E.P.E., LLC dba Pella Windows and Doors

A. Dennis MillerDroder & Miller Co., LPA

125 W. Central ParkwayCincinnati, Ohio 45202

dmillerkdrodermiller.comCounsel for Defendant Tri-State Concrete

William A. HuddlesonGraydon Head & Ritchey LLP

511 Walnut Street #1900Cincinnati, Ohio 45202

whuddleson(cr graydon. comCounsel for Defendant Tru Wall Concrete Inc.

Peter E. KoenigBuechner Haffer Meyers & Koenig Co., LPA

105 E. 4th Street, Suite 300Cincinnati, Ohio 45202pkoenig(cr bhmklaw com

Counsel for Defendant Jacob Masonry Contractors LLC

9

Warren J. RitchieKeating, Ritchie & McGary5300 Socialville-Foster Rd

Suite 140Mason, Ohio 45040

writcliie(c^krslawyers.comCounsel for Defendant Osterwisch Company

Paul E. PerryLawrence M. Dudek

Miller Canfield Paddock & Stone, PLC5 11 Walnut Street, 19th Floor

Cincinnati, OH 45202perry(&millercanfield. comdudek(a millercanfield.com

Co-counsel for Plaintiff Bank of America, N.A.,Successor by Merger to LaSalle Bank National Association

Michael J. Sikora III (0069512)Richard T. Craven (0082273)Co-counsel for Plaintiff-AppellantBank of America, N.A.

IN THE COURT OP APPEALS5T "PELLATE TIIST'RIC"t' OF OHIO

HAMILfi+G'ti1Kl' COUNTY, OHIO

BANK C7p AMERICA N'A, SUCCESSORBY MERGER TO LASALLE BANK.NATIONAL ASSOCIATION,

Plaintiff-Appellant,

OMEGA DF SSGN/STJII.D'GR{3,T7P;LLC.,TRU WALL CONCRETE, INC.,THE OSTERWISCH COSrTPA147I°;^TTLi-STAT>ti CONCRETE, ;,JACOB MASONRY CO23TRA,C CORSLLC.,D.E.P.E., L.L.C., d/b/i'PElWINDOWS & DOORS,,

and

Ti3E OVERLOOK Al' RDENpAL+"i'AL.

Defendants.

'll

APR 06 1C31'I

C(JUF3 T OF APPEALS

I

Civi] Appeal F.tom: Hamiltoir Countq Court of Common Pleas

dn.dgment Appealecl From Is: Affirnied

Date of Judgment Entry on Appeal: Apr116, 2011

Daniel E. Izenson, Christy M. N'ageteisen-Btades, and IZ'eatin.g ,MuethinXCiekamp, and Michael J. Sikora III, Maria Mariano Guthrie, and Sikora Law LLC^.^ ,^ •^ ci }^^yfor Plaintiff-Appellant,

Carl J. Stiah and `SVhite, uetgey, and Myer Co., LPA, for Defendant-Appellee (7megaDesign/Build Group LLC.,

APPEAL NO. C-xooot.8TRI.A.I. NG1. A-o810535

I7LCISION.

PRFSEiVTEE) TO TFlE CLERK; aF-C17URTS FOR FILING

+DTdl+p T+IR'sI' DIST.Itt+C'Y COURT t3V EA1'Y'Er\I.3

William A. I3trddlesort and Graydon Head & Ritchey LLF', for S?efendant-.A..ppellee

Tru Wall Concrete,lnc.,

J: Ritcliie and Keaiing'l:itchie, for De{'endant-14ppellee The Qsterwasch

mpany,

Dennis Miller and Droder &°Mitler Co, LZ'.A, for Defendant-Appellee Tri-State

Concrete,

Peter E. Koenig and Buechner F3'a,ffer Meyers and Koenig, Co. LPA, for Defendant-

Appellee Jacob Masonry Contractors, Lt.C-,

.Meghan D. Donnellon, Thomas E. Donnetlon, and Donnellon, Donnellon & Miller

LPA, for Defendant-!'`PPellee D.E.P.E., LLC, db.a. Pella'Windows & Doors.

Please note: This case has been removed from the accelerated calendar.

2

'r AtS'r121C'r CI3TfIt'Y' OF A.I'PI?.A,i'.3

J. H17"WAl2.L9 Si7Nt'.1F,1'tMANNt JtYt'lge.

(11) In thSs foreclosure action, plaintiff-appellant Bank of .America (the

Bank) appeals from the trial coart's order denying its motion for surnma.ry judgmeitt

and granting partial suanmary judgment to defendants-appellees t7mega Design

Build Group, LLC„ Tru Wall Concrete, Inc., The (Jsterwisch Company, 'I'ri-5tate

Concrete, Jacob Masonry Contractors, LLC., and D.E.P.E., LLC, d.b.a. Pella Windows

& Doors on the priority of their mechanic's liens over the Bank's mortgage under the

prtrvisions, of R.C. Chapter 1311. Finding none of the 13ank's assignments of error to

be meritorious, we affirm the trial court's order.

I.Overlaok at Eden Park Condomi

This case involves a multistory luxury residential condominium

complex ("the project") known as The Overlook at Eden Park. The cotnplex is

owned by the defendant, Overlook at Eden Park L.P. ("tJvexlook"}. Bank of America

is the lender for the project. Omega Design Build is the prime contractor for the

project. Tru Wall Concrete, The,Qsterwisch. Company, Jacob Masonry, and ll.E.P.E,

are stibcontt•actors of {}mega. who have filed meehanie's liens, TriState Concrete

perfprmed work directly for Overlook and has also filed a mechanic's lien,

{13) The project began with the filing of an original notice of

comrnencement with the liantilton County Recorder on September i, 2005, A year

later, LaSalle Bank, Bank of Amer'sca's predecessor in interest, closed on a loan with

Overlook. On September 1S, 200'6, at 2:42 p.m., LaSalle Bank filed its mortgage with

the county recorder. Approximately three minutes later, a document styled

"Affidavit to Terminate Notice of Commencement" was filed, asserting that "all

improvements on and to the property which relate to work covered by the [original]

3

TIUCT CUUti'r UF A]P7k'7?.A.Z 5

notice of commencernent are completed ** * '." I'he affidavit pnrported. then to

ternsinate the original notice of commencement, stating zn relevant part as follows:

(14) "Affiant states 'tbat at the time of fiiing of this Affidavit all

improvements on and to the property which relate to work covered by the aforesaid

Notice of Comrnencement are complete and all monies due to the general contractor

and any subcontractors, materialmen and laborers for the completion of said

improvements have been paid aind the Notice of Commencement is terminated as to

this Property."

(}j51 According to the, Bank, the affidavit was filed "[t]o ensure that the

rnortgage was [the] first and best lien on the property." Approximatel)r one minute

after filing the "Affidavit to Terminate Notice of Commencement," a new notice of

commencement was filed. Tt identified exactly the same improvements on the

property as did the original notice: "construction of a tihirteen (13) story

condominiuin tower."

{116} The defendttnts-appellees performed work and entered

subcontracts for materials and services for the project. 'I"he Bank subsequently

c3eclared Overlook in default and refused to advance further fLtnrix for the project.

Overlook then stopped paying Omega ancl the remaining contractors on the project.

As a result, Omega and the othex contractors filed affidavits for meGhanio's liens,

iI. 'T'he Foreclosure Acdon

(^ 7) The Bank then filed the current foreclosure action, claiming priority

over the naechanic's-ifen claimants. Thereafter, the Bank and C7verloolc entered into

a consent order appointing a receiver to manage the property. The receiver was also

given the authority, among other things; to direct the completion of construction of

the unoccupied ;anits and common areas and to market, lease andJor sell the

4

OfCILI FIRST T.1r.STRicr COURT OF AI'P1:A.i.S

unoccupied condonainium units. The receiver ultimately reported that he had

obta'sned contracts to sell five condominium units, but that he had been unable to

eonvey marketable title to the units due to the liens o#'the mechanic's-lien claimants.

As a result, the bank sought to post a bond in place of the mechanic's liens, pursuant

to R.C. Y3a.t.tr, for one and a half times the value of the liens, so that the receiver

could consummate the sales of the five units.

{t$} A number of the mechanic's-lien claimants, including L3tnega,

objected to the proposed language in the bond. They argued that the bond did not

comply with the statute because it voided any lien junior to the Bank's mortgage

without providing any security to the junior lienholders, and because it also

permitted the release of the bond upon the invalidity of "any and alI" rnechanic's

liens. The mechanic's-lien claimants argued that to facilitate and enhance the

settlement of their claims and to narrow the issues for trial,, the trial court should

determine as a threshold matter the issue of priority between the Bank and the

moehanie's-lien clainiants.

{19} As a result, defendants-appellees filed partial motions for summary

ji3dgrnent, asking th^ court to htrld that their mechanic's liens had priority over the

Bank's mortgage as a matter of law pursuant to it.C. 1311.o4(A)(2). Their rnotloris

focused on a single'legaI issue: whether the aft'idavit of termination filed by Overlook

at the request of the I3ari.k had the desired effect under the nzechanic's-lien statutes of

"terminating" the initial notice,of commencement so that the Bank could file its

mortgage after the termination and then have Overlook file a new notice of

cc,mmencement one year later, thereby creating the essential hierarchy of recorded

docurnents necessary to allow the Bank's mortgage to have priority over the

mechanic's liens.

OF31'O nRST I.lYSTR^^.`:T COC7}2T OF

ItlAj In response to each of the tnotions, Bank of Aamerica timely filed a

Civ.R, 56(F) motion for additional discovery. When the trial court, at a subsequent

hearing, indicated its intent to rule on the merits of the d,efendants-appellees'

motions for partial summary judgment in the absence of the requested discovery, the

iled a response and a cross-motion for sumtnary judgment on the sole legal

of the priority of its mortgage over the mechanic's liens based upon the

termination procedure that it had employed.

ITI. The'1'rial Court's Order

{111} Follow'ing a hearing on the motions, the trial court ruled that; based

upon the plain language of R.C. t3ti,o4(A)(2), the effective date of the notice of

commencement for the Overlook project was September 1, 2005. The court held that

the affidavit terminating that notice was a legal nullity because it violated the statute.

Tbus, it held that the notice of commencement filed by the Bank in 20o6 was, in

effect, an amendinent that related back to the original notiee of commencement, As

a result, it granted partial summary jtadgment to the m.echanic's-.1ien claimants,

ruling that any valid mechanic's liens for work and materials supplied in connection

with the imp'rovements identified in the original notice of comniencernent would

have priority over the Bank's tnortgage. The aourt, however, expressly stated in its

order that it was reserving any determi:nation concerning the validity of the

individual tnechanic's liens. This appeal followed wit.h the Bank raising five

assignments of error for our review.

IV. Birxality of tlie Trial Court's Order

{112} Before addressing the m of the Bank's assigncnents of error, we

must first determine if we have jurisdiction to entertain the Bank's appeal.,

Defendants-appellees bave filed a motion to dismiss the panlt's appeal, arguing that

6

1]t2.ST D1STEtIC"r C(}URT o.i' 1ipPr3A1S .

the trial court's, order is not final and appealable because it does not meet the

requirements of either R.C. 2505.02 or Giv,TL. 50),

{113} The Bank, however, argues that the trial court's Entry is a final and

appealable order because It has addressed the priority of the l'iens in this case. It

relies on Queen City Savings & Loan C'o. v. Foley,' where the Ohio Supreme Court

clearly and unequivocally held that "[i)n a mortgage foreclosure action, a journalized

order determining that the'm©rtgage constitutes the first and best lien upon the

subject real estate is a judgment or final order frorn which an appeal may be

perfected."3 The supreme court underscored the ramifications and extreme

prejudice to a lienholder if sucb an order is not immediately-appealable by stating the

following;

(fld} "A lien holcler who is a party to a mortgage firrec.J.osure action and

who fails to perfect an appeal from a judgment determining the mortgage to be the

and best lien on the subject premises cannot ttrereafrer in on appeal from a

sutrsec)uent judgrrsent confirming such priority attac3r the correctness of such earlier

judgnyent,"

(ff15} The Bank argues' that the trial court's entry in eh'is case specifically

cletermined the issue of priori.ty ty rec3ting that "[the Bank's:] rno#gage C*'* *} is

*] junior to the tr7echanics lieris filed for work and materials (and] the

mechanics liens fled for work and materials supplied in coianection -with the

improvements identified in the Original Notice of Commencement are prior in time

and have priority over the mortgage of plaintiff Bank of Ameiica ;'

1(1960), i7a ()hio St, 383,165 N.E.2d 633•a id. at syllabus

7

()Hltl PIRS"CDs8`FRIC7' COU1t'C OF APP

{1I6) Both the Bank and defendants-appellees acknowledge that since the

Ofxio Stxprexne Court issued. its holding ix) Queen City, Ohio 'appellate courts have

varied on the question whether an order determining the priority of liens, but not

ordering foreclosure and sale, is final arid appealable, even if the court has not yet

ordered foreclosure or sale of the property."s Defendants-appe7]ees have cited a

nurnber of cases that hold such orders to be 9nterlocutory by distinguishing Queen

City on its facts,^ while the Bank has cited other cases that hold that such orders are

final and appealable.s

{117} After reviewing that case law, we find the decisionin 7'CIF Reo GCM,

LLC v. National City Bank to be most instructive on the finality of the order before

this court. In that case, the Eighth Appellate District ctinsidered'whether an order in

a foreclosure action deterrniniug priority between two lenders, wh',ch expressly

stated that it was partial and which clearly contemplated itrrther'proceedings to

complete the foreclosure and sale of the property, was final and appealable.6 After

the Queen Citlj case, the Eighth Appellate District held that altihoup;h the

syllabtts in Queen G`ity was somewhat broader than the facts of the case required, and

that it could distinguish Queen Citj from the orrler before it on its i'acts, the syllatxus

in f4hteen, Citt/ was ttnequivocal, and "pursuant to Rule r.(A)(a) of the Supreme Court

Rules for Reporting of f7pinions, the syllsibus of the supreme court's opiniort in

3$ee 7'CTF12eo GCM, LLC v. National City Bank, 8th L7ist. No. 92447, ?oo9-Ohio-4o qn, at 9t$.

a$ee Mtge Eteoironie Regtsiralivn Sys„ }nc. v. Ateskin, gtb Dist, No, a$7 a3 aoU7°ohto-6aq5 at

^(g; Amenquest Mtge Co. v, Niiddiebrooks, 6th T3ist, No. L-ob-xapb, zaoq-O^io-93, at 11x9.

e See St Ciair Savings Assn. v. Janson (r974), Ao Ohio App.2r1 2tx, ^a5, 3x$ N.E.ad 3$> TCIF,

supra, at 11x^ and tq; Washington Mu#. Bank v. Loveland> ioth Dist. No. o4AP-92o, gzoo5-0hio-

ig4a; at ¶8; Bank L1ne v. Jude, rath 1)ist. Iao, o2P-xa 68 , 2 o o3-Ohio-3343> ^t 1 xb; Frey Roa3^i6;D Id

L

ardtnat&JrQd.pSai ngs ^anik v^Thomas 6r Thamas Constr^^Co^ (Ag¢lihra9 7), ^thxDts ^No,lerSC

x334§ 7Y;IF, supra, at 9xo.

8

0141t1 F't:R51' S}Ys'rltlt.i'CCS'iS:itTOl;'ri;iPl'EALS

Queen City is controlling over the text or footnotes, where there is disharmony."'r As

a result, the Eighth Appellate District held that the trial court's order determining

that National City I3ank`s mortgage had priority over TCIF"s rnortgage was a.final

appealable order.8

{¶r8} We agree with tlie reasoning of the Eighth Appellate District in TCf.t'.

And although this court has riot expressly cited Queen City's syllabus, we have

recently acted consistently with the explicit syllabus holding in C7ueen City by

exercising jurisdiction to review decisions on motions for partial summary judgtnent

that have determined only the priority of liens against real property.9 For these

reasons, we hold that the trial court's entry in this case is a final appealable order,

V. Analysis

(^1+Ij In its first assignment of error, the Bank argues thst the trial court

erred in granting the defendants-appellees' motions for summary judgment and.

denying its cross-motion for snmmary judgment on the issue of the priority of its

mortgage over the liens of the rnechanie's-lien claimants.

{VQ} "Suntrnary juc3.gnaent is appropriate where there is no genuine issue of

material fact, the rnoving party is intitled to judgment as a matter of law, and the

evidence ciemonstrates that reasonable niinds can corx,e to but one con lusiun, anrl

that conclusion is adverse to the party opposing the motiun. We revieNa the entry of

sutnnzary judgment as a matter of law under a de novo standard.",

7 Id, at Ix2 and rq..e Id, at 114.s More uit^ Inc. v. Fij•th•171ird Nati. Bank, ast Dist. No. 4o8o82q, 2oog-C7hio-2735, at il7°9; Old

Repub2^ic N^ati.lYtle Ins, Co. v, Fiftli 1'hird Bank, lst ]^ist. No. C-o7o567, 2006-Ohio-2054, at i19-

ro. ohio 7a2^. at 1,5.10 Morton v. Contintental Cas. Co., ist I>ist. Nos. C-ogo77^. and. C-e3e7o,q,9 oo4

9

01{10 FTIi.ST I"lI^aTR]fCT COURT t!Y' A.llp1?.A.T..̂3

{1f21 e priority rlispute in this case revolves arouncl R.C, 13xx.04, which

he owner of property on which work is to be performed to file a notiee of

commencement prior to the performance of any labor or work or the furnishing of

materials. The notice of commencement establishes the priority date of liens for any

subcontractors or materialmen on the project ideritified in the notice. R.G.

1311.ig(,h)(2) provides that all mechanic's liens are effective from the date of the

recording of the notice of commencement.r' Thus, once a project has commenced,

those who perform work or provide materials are entitled to rely upon the

commencement date to fix the priority of their liens.

R.G. t3xr.o4(A) adopts that policy in unequivocal terms for only one

notice: "Only one notice of commencement is required to be filed for a single

improvement and if more than one notice of commencement is filed for a single

improvement, all notices filed after the original notice shall be deemed to be

amenrlments to the original notice ***,'The date of the filing of the amended notice

is the date of the filing of the^origin¢al notice of commencement.°'^

case that the statute does not explicitlyliank argues in this

pxohibit an °Afifidavit of'.fermination ofl+lotice of Cammencernent." i3ut it is not the

"Affidavit of "1'erinination" itself that crentes the problein in this case. Ra:the^ir, it is

the use of an aff'triavit of termination, followed immediately by.the filing af a second

notice of commeneement for eiactly the same improvernent, that runs afoul of the

statute, If the project had actually been terminated, the owner could have filed an

affidavit of termination. If the project was at an end, and contractors were no longer

furnishing materials or labor, the existence or nonexistence of a notice of,

1, R.C. x3zas3(A){2).4 ft.C. 1311.04{A7(2).

10

01210 FIRB'r 77TS'1'ILiC'1' CO'C7YCT UIi A'C'Pr3Ail

ould have beenbe meaningless, But that is not what happened in

The real violation of the statute was the 13ank's attempt to restart the lien

clock by terminating the original notice, filing its mortgage, and then refiling the

notice of conimencement as an express means of gaining lien priority for the

mortgagee.

{124} An explicit prohibition on the owner terminating the original notice is

u:nnecessary when the very operation of the statute is inconsistent with the

canceAation and refiling of a notice of commencement as a means of circumventing

the statute. Ii the General Assembly had intended to permit such an artifice, it would

bave stated that any subsequent amendment would be effective from the date

specified in the amendment, or that the notice was effective until cancelled and re-

filed. instead, the legislature worded the statute to provide for only one notice, for

all subsequent notices to be amendments, and for all amendments to relate back to

andThe contents of the notice of c.ommencernent can be changed by

a,mendment, but the effective date of the notice remains the date

faling.

of the original notice, 1'he language of the statute preclndes cancellation

e original

{^(25} '1"hat is not to sa3r that an owner is prevented frorn filing a new notice

if there is a new and different improvement to real property. For exainple, if

Overlook had constructed a garage on the property after building the condorniniam

tower, that "single improvement'" would not have been the same as construction of

the condominium tower itself. A new notice of commencement could have been filed

for that new improvement, andl it would not have related baclz to the notice for the

condorniniurn tower itself. But,that is not what happened here. The °new" notice of

commencement listed the same improvement specified in the original notice-

xt

OHIO PtiisT owrtzrc,°r Covxr or

constructir;ts of a x3µstoty condonxinium tower. Tlxe averznents of the affidavit

purporting to cancel the original notice of commencement were simply untruey the

work on the improvement was riot and could not have been completed. lloth notices

related to the same improvernent, and the second was, therefore, by law an

amendment to the original notice that was effective as of the original filing date.

(T26} "The first rule of 'statutory construction is that a statute which is clear

is to be applied, not construed, `There is no authority under any rule of statutory

construction to add to, enlarge, supply, expand, extend, or improve the provisions of

the statute to meet a situation not provided for.' [T'he court'sj obligation is to apply

the statute as written."'3

('¶27) `<ln construing a statute, courts have an obligation to give effect to the

ion of the general assembly. In determining legislative inteint, courts must first

look to the language of the statute. If the language conveys a meaning that ic clear

and unequivocal, interpretation is at an end, and the^ statute must be applied

accordingly,"14

1',l2ii) The reqairerraeatt that there can be only one notice of c.o7nanencement

for an improvement on real property and that any subsequent notices for that

improvement are deenred anrendmettts is clear and unecluivocal. Given the

unaanbiguous language of R.C. 1311.04(A)(2), we conclude that the only possible

effective date of the notice of coramencement for the Overlook project••-and hence

the eflective date of the mechanic's liens for improvements on the property-was

when the original notice of cotnrnencement was flled on September 1, 2005. The

+a Vought Industries, Inc. v. Tracy, 72 Ohio St.gd 261, 265-66, r995-Ohio-i8, 64B N.E.2d 1364,

quoting Stat€ ex re], Foster u. Evntt (i944), yA-0 Ohio St,65, 56 N.E.2d 265, paragraph eit;ht of the

syllabus.xa Basic Distrib, Corp. v. Ohio Dept` of Ttcxcttion, 94 Ohio Si.3d 287, 291, 2oo2•Ohio-794, 762

N.E.2d 979.

12

•affidavit purporting to cancel tltat nokice of commencement was nzeaningless. The

notice of commencement filed in September 2oo6 related to the same improWernent

speci6ed in the original notice andzn.ust be treated as an amendment that related

back to the original notice.

(V9) The Bank argues, nonetheless, that Ohio lien law is to be strictly

construed against the mechan'ic's-lien claimants. But the cases it cites for that

principle address compliance of the lienholders themselves with the requirements of

the statutes. For example, Crock Constr. Co. v. Stanley Miller Constr. C0.'5 and C.C.

Constance Fr S'ons v. Lay'b denied relief based upon deficiencies in the mechanic's-

lien affidavits. Manpou.^er, fnc. v. Phiitips+% and Robert V. Ciapp Co, v. Fox's held

that the clairnants ivere not proper suppliers and were therefore not entitled to file

liens iri the first place. None of those eases allow owners or lenders to subordinate

mechanic's liens by unilaterally cltanging the attachnteut date of the liens. None of

those cases grant owtiraers carte blanche to engage in unauthorized filings as a rneans

(1(3Q) Ohio courts havd stated that strict compliance v+dt.fx the statute

requ3red for a lien to attach, but "once a lien has attached, the procedural and

retnedial provisions should be liberally construed:'19 •1'he rule of liberal construction

in favor of the mechanic's-lien claitnants is embodied in the legislative mandate that

the lien statutes "are to be construed.liberally to secure the beneficial results, intents,

is 66 Ohio St,3d 588, i993-Ohfo-2xa, 613 N.E.2d 1027.1e (1930),122 Ohio St. 468,172 N.E.sd 283,37 (x96z), x73 Oh9o St. 45,179 N.E,2d 922,,s {i9̂3i), 124 Ohio St. 331,178 N:E.^d 586. 1 8th Dist. No, 49433•1vrilirtlnnd-East Sales Corp, u. Adarns Sewer, Inc. (Oct. 3, 985),

13

UIiXiS FIRST DYNat"RiCI' COURT OF A'PPL^:A.I.S

and purposes thereof; and a substa.ntial coinp]iance with those sections is su

' * * * "gpe validity of the liens turder those sections .

The holdings cit6d by the Bank neither require nor pern3it the courts

to rewrite statutes to allow an ovnaer to stop and start the lien clock at wi13. Basic

rules of statutory construction still apply, as attested by the holding in one of the

cases upon which the Bank itself relies: "Tt is a general rule that coints, in the

interpretation of a statute, may not take, strike, or read anything orzt of a. statute, or

delete, srrbtraet, or omit anything therefronl. To the contrary, it is a cardinal rule of

statutory construction that significance and effect should if possible be accorded

every word, phrase, sentence, and part of an act."2'

{¶32j To adopt the Bank's interpretation of the statute, this court would

have to delete everything after the first clause af lt.C, 1311.04(A)(2). Doing so would

allow an owner (most lWely under compulsion by a lender) to nullify,the lien riglrts of

contractors and retroactively make those rights junior to the rights of a mortgagee.

The legislature took specific steps to prohibit that, and those prola `ibitions cannot be

judicially repealed.

(¶33) Moreover, the Ilanlc's contention that a notice of cornmencenlent

exists for "eternity" is an overwrought objection to the plain framework of the x9ga

I:f the irnproveanent described in the notice of corntnencrment has been

finished or abandoned, the notice ceases to have nzeanillg. A supplier ar contractor

cannot file a legitimate lien foi a project that does not exist. If a new pro}eot is

undertaken for the same real estate, it would cause the owner to file a new notice of

commencernent for,a new and different improvement to the real est.ate.

so R.C. 1311.22. $ N.^.2^r Wachendorf v. Shauer (r.948), xA4 Ohio St. 231, z37, 7 70.

' 14

O11IO Fi1LS'r'ISISTR.IC'1" COURT OFAI'k*EA:

(¶34) By specifying just one effective date for the notice^^af comrnencement

on a given intprovement, the General Assembly sought to insure certainty for

everyone involvecl in a given project. It did so by tying key events to the notice of

commencement. The General Asserttbly avoided the risk of confusion by providing

in R.C. 1311.13(A)(2) that mechanic's liens "for labor or work performecl or materials

furnished after the recording of a notice of commencement pursuant to section

1311,04 of the I2et*ised Code are effective from the date of recording of the notice of

encement," The statute refers to the "notice of commencement" in the

singular, not the plural. A reading of R.G. Chapter 1311 in its entirety makes it

apparent that the legislature intended R.C. 1311.04 to be the linchpin for establishing

the rights, duties, remedies, ancl. safeguards for both owners and mechanic's-lien

,ants. 1"hat i's why the normal practice for a construction lender is to insure that

recorded prior to the recording of the notice of comnlencesnent to

,1voSd any priority i ssues.

{135) h'inally, the Bank argues that the legislature amended the lien law in

2007~--after the relevant events in this case-to signal what it meant to say in '1991.

The new provision did not change R.C. 1111.04(A); instead, it added an entirely new

8), which states, "A notice of commencesnent filed as provided herein

expires six years after its filing date unless the notice of comrz1e11eeznent or

amendments made to the no,t3ce of commencement specify otherwise." The

provision does not state that a new notice of commencement may then be filed for

the same improvement, or that one can "amend" a notice to revoke it retroactively.

(1136} Nonetheless, thelBank argues that this new provision is proof that in

iqqi the General Assembly intended to allow the type of artifice forced upon the

owner in this case. Of course, if the Bank's interpretation of R.C. 1311.04(A) were

15

0}[10 FIRST DISTRICT CoUlt'r {7F .El.'t'i'L'A.I.S

the amend7nent of the statrite in 2+ao7 would have been unnecessary.

anything, the atnendment of the statute after the relevant filings in this case con

that prior to March 2007 there was no statutozy sunset, on a notice of

commencement for a specific improvemen#. But even under the new section, there is

no provision for niultiple notices of conranencement or affidavits of termination.

{^37} The real impact of the amendment is far more mundane. Under R.C.

igli.ag(C), a mechanic's lien expires six years after the date it is filed witli the county

recorder. The new provision makes the duration of the notice of commencement

consistent with the life of a mechanic's lien, i.e., the notice of commencement cannot

have a longer life than the mechanic's liens it spawns. Nothing in the legislative

history indicates that the General Assembly amended the statute to allow the type of

stratagem attempted by the Bank in this case, nor did the General Assembly voice

concern that R..C. i.3is.04(A) had been znisunderstood. zf that were the coizcern, the

obtiotis solution would have been to amend Tt.C'. 1311.04(A) itself, not to add a

sunset provi.sion to the enci af tlie statute.

Based itpon our review of the undisputed facts in this case tand the

plain language of l^..C. t3z.t,o*i, we cannot say tilat the trial court ea^red by granting

stzmtnary judgment to the defendants-appellees aiid t>y deziying the 13ank's cross-

motion for summary judgtnent. We, therefore, overrule the l3ank's first assignment

of error.{11391 In its second assignment of error, the Bank argues that the trial court

erred in deriying its Civ.R, 56(F)i motion for additional discovery.

t')H:Sa Fr'RST 171,^;Tr+..ZCT (,"t1t7RT t7'p t1.7[YPlf?.ASS

N40} `"I"he deci additional time under Civ.R. 56(p') is within

souncl discretion."92 "Thus, the trial court's decision to grant or deny

a motion for continuanee pursuant ta Civ.R. 56(F) wi1l not be disturbed on appeal

unless the court abused its discretion. *** The party seeking a continuance under

Civ,R. WF) bears the burden of demonstrating that it is warranted."23 When a party

fails to show that evidence sought by the motion would have precluded the entry of

summary judgnient, a trial court's denial of the motion should be upheld.24

{141} Here, the Bank's`Civ.R. 56(F) motion was premised on the need for

discovery from the defendants-appellees regarding the validity and amounts of their

individual mechanic's.liens, As a result, the defendants-appellees narrowed their

sumrnaryjudgment motions to focus exclusively on the issue that could be resolved

without further discovery: the effective date of the notice of commencement, with

any issues regarding lien validity reserved for further proceedin.gs. The trial court's

g addressed that narrowed issue, which could be resolved by reviewing the

>uted fa.lings with the county rer.order.

{ll42) Ttecsxuse t}tc trfaI coul-l's roling merely applied the plain lunguage of

the statttte to those uncontested filing dates, no other evidence was relevant to a

deterniination of that issue before the trial aourt. The trial court, furthermore,

ssly stated in its entry that it was not ruling upon the conduct of the parties or

the validity of any particular liens. Therefore, if Omega's canduct or that of some

other lienholder could possibly provide the Bank with defenses to enforcement of the

liens, those defenses can be raised when the trial court rules upon the validity and

22 Ramos u. Khawli, 181 Ohio ApP•3d 1* 2oo9-ohio-798, 9o8 NiE.2d4o95^hio^7 at x2 and

23 Cassner u. Bank One'Trust Co„ N.A., i.oth Dsst. No. C-ogAP- 4, 04- 3}S4, i

18." See State ex rel. Denton u, 8edinghaus, 98 Ohio St.3d a9$, 2oo3-dhio-861, 784 NX2d 99, at

131-32; see, also, Batl v. Hilton Hotels, Inn. (2972), 32 Ohio App.2d 293, 295, 29o N.E.zd 859.

17

TT.tTGx' Ci}'(7S2"r i7I" EL1PII"El+TS

amor.tnts of the liens. Because the discoVes'y sought by the Bank was xrot ►recessary

for the court's resolution of the issue before it, the trial court did not abuse its

discretion in denying the Tianlc's motion fcrr additional time to coriduct discovery. As

a result, we overrule its second assignment of error.

1y{43} Tn its third assignment of eiTor, the Bank argues that the trial court

erred in granting summary judginent to the de.fendants-appellees when they failed to

I

attach to their motion, or point to,_evidence that complied with CivEt. 56(C) and (E)..

{144} The only evidence germane to the issue before the court in the cross-

motions for summary judgment concerned the filing dates of the notices of

commencement, the Bank's affidavit to terminate the original notice, and the Bank's

mortgage. The filing dates for,the documents relevant to that determination were

uncontested. The Bank in its response and cross••motion for summary judgrssent did

not refute these facts, but based its argurnent upon the same sequence of filings, and

it attached an affidavit of its own expert attesting to the same documents upon which

the defendants-a,ppellees had relied.

}145) On appeal, the Bank bas cited the sarne history of tilings and has

argued based ripon thrase filing that it, not the defendants-appellees, was entitled to

judgment as a matter of law. So even if the defendants-appellees had failed in their

initial filings to tetider an af.f'idavit with certified copies of the documents, the Bank

has effectively waived any objection to the court's consideration of the uncontested

facts represented in those docutnents-the dates and sequence of filing of the original

notice of commencemertt, the affidavit of termination, the mortgage, and the second

notice of commencement.'s

2s See, e.g., R.obinson v. Gonsiteirner, 2007-Ohio-3845, at912-13 (no error to considerunauthenticated records where appellant filed cross-motion for summary judgment, reciting facts

i8

O1110 F1Ss'T' 7)TBTttitCT Gf>TJ3tT t'Jr At,*Pk.

the only issr.7e decided by the trial court was the effective date

of the notice of commencement in comparison to the effective date of the mot-rgage,

ttatd beeause those filing dates were uncontested, there was no need for t3ae

defenda.nts-appellee:s to introduce additional evidence in support of their motions for

summary judgment. Because the defendants-appellees fulfilled their Civ.R. 56

burden as to the narrow issue on which sunimary judgtnent was granted, the burden

was on the Bank to demonstrate a disputed issue of material fact, which it could not

do because it had admitted the only facts relevant to the motions and cross-motion?a

As a result, we overrule the Banik's third assignment of error,

1147j In its fourth and fifth assignments of error, the liank argues that the

trial court'erred by granting sutnmary judgment sua sponte in favor of parties that

had not filed motions for summaty judgment and by decidittg issues that had not

been raised or briefed by the parties.

(^48) In its entry, the trial court stated that it wvas only detertnining priority

based upon which notice of commencement was effeative. The trial court, furthermore,

expressly stated thstt it was "reserv[ing] [aj ruling on the validity of specific mechanics

liens pending further proceedings." The Tla,tik additionally surrendered its right to

cotnplain aboui: an adverse tuling'when it Ned its cross-motion for sumrnary,judgment.

0 'While Civ.R. 56 does not ordinarily authorize courts to enter summ.ary juclgment in

favor of a non-moving party an entry of summary judgtnent against the moving

patly does not prejuClice his due process rights where all the relevant evidence is before

consistent with contenis of uncertified eapies); 7nternnti. Bhd. ofElea. Ytrorkers o, Smith (t9g2),76 Ohio ppp.3d 652, bbo, 602 N.E.2d 782 (barrnless error to oonsider unveztified exhibits whenappeAant did not ehalle authentidty).

19reslte3v. Burt (:t99b),ng e 75 ohio St.3d 280, z9r°662 N.E.2d 261 (' Movant must be able topoint to evidentiary material in the record, but there ts no requirement in Cio,R. ,̂6 that the

u

uf

s

ilap aterials produded by the movanZi'^ (E phas sn^n a yt girt I,]j eeatdence, i.e.,

nla

m

Cdav^itsor syiin

i9

()T^TYU 1~[T{S'r L?YS1"R3CT G"'O'IJR"r OP A;.PS>EAI:.."z

the court, no genuine issue as to.:a.ny material fact exists, and the non-moving party is

entitled to judgmexrt as a nnsatter of law; "2^

(^49} Here, i17e 13anlc argued the legal issue from an nncozitested set of facts.

It cannot now protest that other par4ies will have benefatted from the fact that it was

wrong. As a result, we overrule the fourth and fifth assignments of error,

vIT, Conolusion

(¶50} Having found nizrie of the Banlt's assignments of error to be meritorious,

we affirm the judgme'nt of the trial court.

Judgment affirmed.

:HnNnt►ta,J., concurs.CC7NN72+rG1IAM, VJ,, C1TSSe:

CT3JvNINGCLaNT., ]'J., dlsse'.

{li) I respecttfully dissent. Unlike my colleagues, i cannot reach the merits of

ttYe I3an..k's assignments of error on appeal, because the entry from which it has appealed

is not a final appealable order.

'11-As court's jurisdiction is litnlted to the review er[sJ,

ent[s), or decree(sl:'28 Wliere, as here, the ackion invnlves rnt.lltiple pa

multiple claims, this court mvst engage tep analysis by first determining if the

is final within the requirements of R.C. 2505.02. If the order crnuplies with R.C.

2505.02 and is in fact, final, the court n-•tust fihen deterrnine if Civ.12. 54(B) langtrage is

•ed?s

^7 Todd Deu. Co. v. Morgan, n6 Ohio St•.3d 461, 2oo8-0hio-8,, 88o N,E.2d 88, af'px6, quoting

Stute ex re1. Cuyahoga Cty. Hosp. u, Ohio.Bureou of Workers Cornp. (1986), 27 Ohio 8t.3d 25,

28, yoo N.E.2d 137o; but, see, Lawtess u. lndus. Comm. of Ohio (Mar. 26,1997), ist Dist. No. C-

96ogao.'e A.C. 250,5.03; Section 3 (B}(2}, Article IV Ohio Gonstitution.^ J€nham u. New Car?zsle, 86 Ohio SY.g^ ^g4, 596, i99-Ohio-z28, 716 N.1;.2d 184; Sullivan u.

Anderson 7'wp., 122 Ohio St.3d 83, 26o9-Ohlo-797i, 9o9 N.E•2d 88, at tlio.

20

0I110 I'TPST .I?1S712TCT G'CYTJ1iT OF Al''T']^^A.1F±3

The order being appealed fram in this case provides, #n pertinmzt part, as

s: "The court theref"ore, fintis that tneehanics' liens filed for work and tnatezials

supplied in connection with th^ improvements identa!'ied in the prigirial Notice of

Commencement are ptior in time and. have priority over the mottgage of the plaintiff the

Bank of America, and to that extent the DefendanCs' motions are GRFaN'I'CT), and

T'laintiff's motion is O'VE3tRUl.EI7. Tlis Court reserues ruling on the validity of specific

rnechanics'tfens pending {urtherproceedings.° (Emphasis added.)

('¶4} In holding that the entzy is final, the majority relies solely upon the

syllabus paragraphs in Queen City Savings and Loan Co. v, Foley, which provide that a

court's order or judgment that determines the priority of liens is a final and appealable

order, The majority reasons thai because the order in this case stated that the Bank's

mortgage was junior to the mechanic's liens filed for work and matens}s supplied in

connection with the improvements identified in the original notice of cornmencement,

determined the pxiority of the lieus and, tlrercfore, is iiritnedi.itely

appealai}le.

{¶5^ "1'ha majority's reliance on Qua.eya CYty is tnisplaced. Queen 01y does aaot

apply because any determination of priority in this case MInot occur until the court

rules on the validity of the rszra:iianie s liens. Until the trial c:otzrt rtrles lhat the

meclianic's-lien claimants have valid liens under the original notice of conrmencernent,

no relief has been af'Eorded to any party. "i'he trial coure itself anticipated further

proceedings by ac;knowledging that its order did not determine the validity and

enforceability of the niechanic's liens of the appellees and the other, defendants in this

case.

21

O;fTIO FIRST UI5':l`P.ICT COURT t>F t1i''f'W

{1(61 Because the trial aourt's order arenrains an xnteriocutory order: an

interim or tetnporary order that is `tentative, informal, or incornplete,'30 that is

subject to change or reconsidezetion upon the trial court's own znotion or titat of a

party, and that does not determine the action and prevent a,judgment,"3, it is not a

final appealable order, and this court is without jurisdiction to entertain the Bank's

assignments of error on appeal. For that reason, I would distniss the Banlc's appeal.

Please Note:

The court has recorded its own entry this date.

9d Yantek v. Coach Builders Ine., ist bist, No. C-o6o6oi, 2oo7-t)hio-5126, at1z4, quoting Cohen

v. Beneficiat Indus. Loan Corp. (1.q4g), 337 U.S. 541,546,69 S.Ct. 1221.s,* Id, at'px4, citing R.C. 25o5.oa(B){i) and Pitts u. Dept. o,fTransp. (xg$x), 67 Ohio St.2d 378, 423

NX.2r1 iio5, fn, i.

22