text:
    STATE of Ohio, EX REL. HABER POLK KABAT, L.L.P. et al., Relators v. The Honorable John D. SUTULA, Respondent
    No. 106808
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASE DATE: June 6, 2018
   Andrew A. Kabat, Richard C. Haber, Shannon J. Polk, Haber Polk & Kabat, L.L.P., 1330 W. 78th Street, Suite 305, Cleveland, Ohio 44102, For Haber Polk Kabat, L.L.P.

Frank R. DeSantis, Thompson Hine, L.L.P., 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114, For Frank R. DeSantis

Thomas L. Feher, Thompson Hine, L.L.P., 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114, For Thompson Hine, L.L.P.

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Charles E. Hannan, Assistant County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR RESPONDENT

Robert T. Glickman, Charles A. Nemer, Nicholas R. Oleski, McCarthy Lebit Crystal & Liffman Co., 191 W. Prospect Avenue, Suite 1800, Cleveland, Ohio 44115, For Mark Dottore

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, A.J.:

{¶ 1} Relators Haber Polk Kabat, L.L.P. ("Haber Polk"), Thompson Hine, L.L.P. ("Thompson"), Andrew A. Kabat, Richard C. Haber and Frank DeSantis seek a writ of procedendo to compel respondent judge to vacate an order staying proceedings in the Cuyahoga C.P. No. CV-16-861346. Relators argue that the trial court has unreasonably stayed the matter pending actions of an appointed receiver to undertake repairs of several condominium units and sell them. We find that a stay of proceedings for an indeterminate time is unreasonable in this case. We grant relators' motion for summary judgment, deny respondent's motion for summary judgment, grant the writ of procedendo, and direct the respondent to proceed to judgment in this case without delay.

Factual Background and Procedural History

{¶ 2} The underlying case involves a dispute over legal fees. Relators agreed to represent a condominium association on a contingency fee basis in a lawsuit against a construction/development company that built the condominium complex. The association was ultimately successful in its suit against the company and won a multimillion dollar judgment. The judgment included the transfer of 46 condominium units and parking spaces from the company to the association. A dispute arose about how to apply the 40 percent contingency fee agreement to the real property and how to value the real property.

{¶ 3} After no satisfactory resolution could be reached, relators filed suit against the association on April 1, 2016. In the midst of this litigation, the trial court appointed a receiver to manage the property awarded to the association. Relators unsuccessfully challenged the appointment in an appeal to this court. Haber Polk Kabat, L.L.P. v. Condominiums at Stonebridge Owners' Assn. , 8th Dist., 2017-Ohio-8069, 98 N.E.3d 1172. While the appeal was pending, the condominium association sought a stay of the litigation until the receivership was complete. Ruling on that motion was held in abeyance pending appeal.

{¶ 4} After the case was remanded to the trial court by this court, the receiver moved for an indefinite stay so that repairs to the condominium units could be effectuated and those units could be marketed and sold. The respondent judge granted the stay on December 4, 2017. Relators filed a motion to lift the stay, which was denied on February 6, 2018.

{¶ 5} Relators then filed the instant complaint for a writ of procedendo, seeking an order to vacate the stay and direct the respondent judge to proceed to judgment. Relators and respondent judge filed motions for summary judgment.

Law and Analysis

Writ of Procedendo

{¶ 6} A writ of procedendo is the appropriate mechanism to prod a trial court to proceed to final judgment where that disposition has been improperly delayed or withheld. State ex rel. Watkins v. Eighth Dist. Court of Appeals , 82 Ohio St.3d 532, 535, 696 N.E.2d 1079 (1998), citing State ex rel. Miley v. Parrott , 77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996). Therefore, a writ of procedendo will issue to require a court to proceed to final judgment if the court has erroneously stayed the proceeding. Id. , citing State ex rel. Crandall, Pheils & Wisniewski v. DeCessna , 73 Ohio St.3d 180, 184, 652 N.E.2d 742 (1995).

{¶ 7} The requirements necessary to demonstrate that relief in procedendo is warranted are: (1) a clear legal right to proceed in the underlying matter, and (2) the lack of an adequate remedy in the ordinary course of the law. See, e.g., State ex rel. Charvat v. Frye , 114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 13. However, where a judge erroneously stays proceedings, the relator is not required to demonstrate that it lacks an adequate remedy at law. Watkins at 535, 696 N.E.2d 1079.

{¶ 8} A court has broad discretion to control the flow of its docket and the judicial resources entrusted to it. That discretion, however, is not unlimited. A court abuses its discretion when it acts in an unreasonable, arbitrary or unconscionable manner. State ex rel. Worrell v. Ohio Police & Fire Pension Fund , 112 Ohio St.3d 116, 2006-Ohio-6513, 858 N.E.2d 380, ¶ 10.

Indefinite Stay for Ancillary Proceedings

{¶ 9} Writs of procedendo have been issued or denied where a court stayed a case based on some concomitant proceeding. These cases tend to turn on whether the resolution of the ancillary proceeding would impact the jurisdiction of the court or where a legal question common to both proceedings would resolve that question for the parties. See State ex rel. Cleveland v. Corrigan , 8th Dist. Cuyahoga No. 93940, 2009-Ohio-6655, 2009 WL 4863445, ¶¶ 10-12 (collecting cases). See also State ex rel. Miley v. Parrott , 77 Ohio St.3d 64, 671 N.E.2d 24 (1996) ; State ex rel. Cleveland v. State Bd. of Tax Appeals , 10th Dist. Franklin No. 13AP-308, 2014-Ohio-3736, 2014 WL 4243779. The issue presented here, whether an indefinite stay of proceedings in order to allow for the maximization of the assets of a receivership estate, has not been squarely addressed. In most cases a receiver would undertake such a sale post judgment, which is why a dirth of case law exists on the issue of prejudgment stays in this context.

{¶ 10} In the present case, respondent judge argues that he has a significant interest in protecting the receivership estate and has validly exercised his discretion in furtherance of that goal. He also asserts that the stay will decrease the costs of litigation. Respondent judge also argues he has discretion to control his docket.

{¶ 11} In PNC Bank, N.A. v. J & J Slyman, L.L.C. , 8th Dist. Cuyahoga No. 101777, 2015-Ohio-2951, 2015 WL 4506915, this court recognized the significant interests a court had in controlling litigation against a receiver or the property under receivership.

[T]he receivership court has a valid interest in both the value of the claims themselves and the costs of defending any suit as a drain on receivership assets. See SEC v. Universal Fin. , 760 F.2d 1034, 1038 (9th Cir.1985). To this extent, the receivership court may issue a blanket injunction, staying litigation against the named receiver and the entities under his control unless leave of that court is first obtained. Barton v. Barbour , 104 U.S. 126, 128, 26 L.Ed. 672 (1881).

PNC Bank at ¶ 18. Further, a court has discretion to control its own docket. However, that discretion and the interests embodied in the above principles must be balanced against the relators' right to a timely determination of the issues submitted to the court for adjudication.

{¶ 12} "The appointment of a receiver is an ancillary proceeding. Community First Bank & Trust v. Dafoe , 108 Ohio St.3d 472, 2006-Ohio-1503, 844 N.E.2d 825, ¶ 26. It is a 'separate procedure[ ] tied to a main action, acting in furtherance of the main action, but with [its] own li[fe].' " United States Bank, N.A. v. Courthouse Crossing Acquisitions, L.L.C. , 2d Dist. Montgomery No. 27331, 2017-Ohio-9232, 103 N.E.3d 300, ¶ 10, quoting Dafoe at ¶ 26. A receivership does not impact the jurisdiction of the court in this case. Therefore, we must look to the receivership proceedings to determine its impact on the adjudication on the issues raised.

{¶ 13} Relators point out that a future sale of rehabilitated condominiums would not moot litigation as claimed by the receiver in his motion requesting the stay. Relators also assert that the value of the condominium units must be determined as of the date of settlement-a date in December 2014-and in as-is condition at that time. Therefore, the sale price of refurbished condominiums in 2018 or beyond is not indicative of value for the purposes of the underlying case. While the receiver may derive a pool of money from the sale of rehabilitated units that could satisfy a judgment, that does not determine the amount that relators are owed as a result of the contingency fee agreement. The stay also does not impact the counterclaims filed by the condominium association.

{¶ 14} In the underlying action, the association asserted claims that the law firms breached their fiduciary duty to it by not explaining the impact of a contingency fee agreement on the real property involved in the case and committed legal malpractice. The actions of the receiver do not resolve or ameliorate these questions and, therefore, do not justify an indefinite stay of proceedings.

{¶ 15} In Corrigan , this court determined that an indefinite stay of proceedings while a federal appeal was pending constituted an abuse of discretion. Corrigan , 8th Dist. Cuyahoga No. 93940, 2009-Ohio-6655, at ¶ 15. There, the trial court stayed a suit against several financial institutions filed by the city of Cleveland regarding nuisance claims related to foreclosure and demolition expenses incurred by the city during the foreclosure crisis after 2008. The city had filed a similar suit in federal court against related but not identical parties. Id. at ¶¶ 2-5. That case examined the impact that the federal proceedings would have on the jurisdiction of the trial court and the impact on the legal questions involved in the subject case in deciding whether to issue a writ directing the trial court to proceed to judgment. We then determined that an indefinite stay impermissibly delayed adjudication of the issues submitted to the trial court to decide. Id. at ¶ 15. We found that the federal case did not impact the trial court's jurisdiction to proceed. Id. Finally, because the parties were not the same, a decision in one case would not be determinative of the issues presented in both cases. Id. at ¶ 14. This court also rejected one of the judge's justifications for the stay-that it would diminish the time and expense of litigation. Id. at ¶ 15.

{¶ 16} In Corrigan , the ancillary litigation did not impact the jurisdiction of the trial court to proceed to judgment or answer the legal questions put to the court for determination. In the present case, the rehabilitation and sale of condominium units do not affect the outcome of the litigation such that it answers the legal questions raised in the complaint and counterclaims.

{¶ 17} Respondent judge argues that relators have an adequate remedy at law. He indicates that relators could move to modify the stay or for a more definite stay.

{¶ 18} Relators have already asked respondent judge to lift the stay, which he denied. The case was initiated over two years ago. The result of the trial court's stay is an indeterminate hold on the litigation that could potentially last for years. Therefore, relators do not have an adequate remedy at law by way of appeal.

Corrigan , 8th Dist. Cuyahoga No. 93940, 2009-Ohio-6655, at ¶ 17, citing Community First Bank & Trust v. Dafoe , 108 Ohio St.3d 472, 2006-Ohio-1503, 844 N.E.2d 825.

{¶ 19} We must note that relators' specious claims of impropriety asserted against the respondent judge and receiver have no bearing on the decision of this court. Relators allege, without any real evidence, that the receiver and the trial court had inappropriate ex parte communications. Those unsubstantiated allegations provide nothing in the way of support for the issuance of a writ in this case. Further allegations that the trial court issued the stay in order to force relators to settle the dispute is, likewise, meritless and plays no part in the decision of this court.

Conclusion

{¶ 20} An indefinite stay in order for the receiver to effectuate repairs to a building structure, the entirety of which is not even currently under the control of the receiver and to market and sell condominium units could last for years. The actions of the receiver do not address the legal questions raised in the relators' complaint or counterclaim filed by the association, which, if successful, could greatly impact any recovery by relators and render the receivership unnecessary.

{¶ 21} The stay does not and will not resolve the issue of the valuation of the condominium units in question as it relates to the underlying litigation. The stay may have the practical effect of giving the association a pool of money with which to more easily satisfy any judgment that may be awarded against it but the same is true of postjudgment proceedings that could be used by the court and the receiver. Therefore, maximization of the assets of the receivership estate could be accomplished without indefinitely staying proceedings at this stage of the litigation. The respondent judge abused his discretion when issuing an indefinite stay of proceedings in this case.

{¶ 22} Respondent is ordered to vacate the stay of proceedings issued on December 4, 2017, and proceed to adjudicate the claims asserted in Cuyahoga C.P. No. CV-16-861346. Respondent to pay costs. Costs waived. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

{¶ 23} Writ granted.

MELODY J. STEWART, J., and

KATHLEEN ANN KEOUGH, J., CONCUR

      The receiver filed a motion to intervene in the action, claiming intervention as a matter of right and permissive intervention, which this court denied.

      We recognize that a portion of the delay experienced by relators is due to the unsuccessful appeal of the appointment of a receiver.


source: Caselaw Access Project

author: Cunningham, Judge.

license: Public Domain

text:
    FIRST WORLD ARCHITECTS STUDIO, PSC, Plaintiff-Appellant, v. Paul MCGHEE, d.b.a. Fire Protection Service, Ohio, and Theresa G. Alexander, d.b.a. Signature Beauty Lofts, Defendants-Appellees, and Dorothea A. Jones, d.b.a. Signature Beauty Lofts, Defendant.
    NO. C-170284
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: June 6, 2018
    William D. Bell, Sr., Cincinnati, for Plaintiff-Appellant,
    The Hill Law Office, Circleville, and Tracye T. Hill, Cincinnati, for Defendant-Appellee Paul McGhee, d.b.a. Fire Protection Service, Ohio.
    OPINION.
   Cunningham, Judge.

{¶ 1} Plaintiff-appellant First World Architects Studio, PSC, ("First World") appeals from the trial court's dismissal of its complaint for lack of subject-matter jurisdiction after determining that First World's claims were preempted by federal copyright law. For the reasons that follow, we affirm.

{¶ 2} At issue is a complaint First World refiled in August 2016 against defendant-appellee Paul McGhee, d.b.a. Fire Protection Service, Ohio ("Fire Protection Service"), defendant-appellee Theresa G. Alexander, d.b.a. Signature Beauty Lofts, and defendant Dorothea A. Jones, d.b.a. Signature Beauty Lofts. First World alleged that Fire Protection Service and Signature Beauty Lofts, in seeking to obtain a building permit from the city of Cincinnati, had "improper[ly]" and without "authoriz[ation]" used "copyrighted" architectural drawings prepared by First World. First World also alleged that it had entered into a "contractual agreement" with Signature Beauty Lofts for "architectural services," and it attached that contract to the complaint. But First World made no claim against any defendant with respect to that contract.

{¶ 3} The trial court dismissed the complaint under Civ.R. 12(B)(1) on Fire Protection Service's motion, concluding that First World's claims fell within the ambit of the Copyright Act, 17 U.S.C. 101 et seq., and therefore, were within the exclusive jurisdiction of the federal courts.

{¶ 4} With respect to exclusive federal jurisdiction in copyright cases, 28 U.S.C. 1338(a) provides:

The [federal] district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to * * * copyrights * * *. No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to * * * copyrights.

Architectural drawings undisputedly are afforded copyright protection, as they fall within the subject matter of copyright. See Schuchart & Assocs., Professional Engineers, Inc. v. Solo Serve Corp. , 540 F.Supp. 928, 942 (W.D.Tex.1982).

{¶ 5} In its sole assignment of error, First World argues the trial court erred by finding that its claims fell within the subject matter of the Copyright Act, because the allegations involved a breach of a contract in addition to copyright infringement, and because the infringement claims involved unregistered architectural drawings.

{¶ 6} We review de novo a trial court's decision to dismiss a case pursuant to Civ.R. 12(B)(1). State ex rel. Ohio Civ. Serv. Emp. Assn. v. State , 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12, cited in Brown v. Cincinnati Pub. Schools , 1st Dist. Hamilton No. C-150345, 2016-Ohio-4675, 2016 WL 3569950, ¶ 5. Dismissal is appropriate when the plaintiff has failed to allege "any cause of action cognizable by the forum." State ex rel. Ohio Civ. Serv. Emp. Assn. at ¶ 12.

{¶ 7} Initially, we address First World's argument that its claims for copyright infringement could not be within the exclusive jurisdiction of the federal courts because it did not register the architectural drawings in accordance with the Copyright Act. According to First World, absent registration, a federal court lacks subject-matter jurisdiction over its infringement claims, and it suggests that a state court would then have subject-matter jurisdiction over the dispute.

{¶ 8} The Copyright Act, with a few exceptions not relevant here, requires copyright holders to register their works before suing for copyright infringement and obtaining certain remedies. See 17 U.S.C. 411(a) and 17 U.S.C. 412. Although First World contends that the Copyright Act's registration requirement restricts a federal court's subject-matter jurisdiction, the United State Supreme Court rejected that argument in Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 157, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010).

{¶ 9} Moreover, a copyright holder's failure to register has no bearing on the preemption of state-law claims. See Trandes Corp. v. Guy F. Atkinson Co. , 996 F.2d 655, 658 (4th Cir.1993). Thus, First World could not avoid the preemptive effect of the Copyright Act by failing to timely register its architectural drawings in accordance with the Copyright Act. Id. Consequently, we reject First World's argument that the dismissal was improper because the architectural drawings allegedly infringed were unregistered.

{¶ 10} First World's other argument focuses on whether it alleged a state-law claim for breach of contract that does not invoke federal copyright law and is not preempted. Under 17 U.S.C. 301(a), a state common-law or statutory claim is preempted if: "(1) the work is within the scope of the 'subject matter of copyright,' as specified in 17 U.S.C. §§ 102 and 103 ; and, (2) the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright law as set out in 17 U.S.C. § 106." Wrench LLC v. Taco Bell Corp. , 256 F.3d 446, 453 (6th Cir.2001) ; see State v. Perry , 83 Ohio St.3d 41, 42, 697 N.E.2d 624 (1998). Generally, Section 106 of the Copyright Act protects an owner's right to reproduce, distribute, perform, and display a copyrighted work, and to prepare derivative works based on a copyrighted work. 17 U.S.C. 106.

{¶ 11} Because we have already held that First World's unregistered architectural drawings fell within the subject matter of copyright law, the only issue is the equivalency prong of the analysis. "[T]o survive a preemption challenge based on equivalency of protected rights, the state law claim must contain an extra element" that "distinguish[es] the claim from a claim in copyright" and renders the state-law claim " 'qualitatively different from a copyright infringement claim.' " (Emphasis omitted.) Perry at 43, 697 N.E.2d 624, quoting United States ex rel. Berge v. Bd. of Trustees of Univ. of Alabama , 104 F.3d 1453, 1463 (4th Cir.1997) ; see Wrench at 456 ; N. Am. Software, Inc. v. James I. Black & Co. , 1st Dist. Hamilton No. C-100696, 2011-Ohio-3376, 2011 WL 2652326, ¶ 9 ; McCants v. Tolliver , 9th Dist. Summit No. 27253, 2014-Ohio-3478, 2014 WL 3936385, ¶ 11.

{¶ 12} Here, First World alleged that it had entered into a contract for architectural services with Signature Beauty Lofts, and it attached the contract to the complaint, but it made no further allegation concerning that contract in its complaint. Consequently, First World has failed to show that it presented a state-law based breach-of-contract claim containing an "extra element" that survives preemption.

{¶ 13} Upon our review, we hold that First World did not allege a breach-of-contract claim falling outside the subject matter of copyright law, and that First World's infringement claims fell within the exclusive jurisdiction of the federal courts and were preempted, even though First World did not register the architectural drawings. Thus, First World failed to demonstrate that it alleged any cause of action cognizable by an Ohio court, and that the trial court erred by dismissing the complaint for lack of subject-matter jurisdiction. Accordingly, we overrule the assignment of error and we affirm the trial court's judgment.

{¶ 14} Fire Protection Service has moved for attorney fees and costs pursuant to App.R. 23, Civ.R. 11, and R.C. 2323.51. This court will address that motion by separate entry.

Judgment affirmed.

Mock, P.J., and Deters, J., concur.

      The record demonstrates that First World never obtained service on this named defendant.


author: HENSAL, Judge.

text:
    IN RE: J.L.M., R.J.
    No. 28867
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: June 6, 2018
    CHRISTOPHER VANDEVERE, Attorney at Law, for Appellants.
    CHRISTINE D. FINAN, Attorney at Law, for Appellee.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
    R.J., pro se, Father.
    GINA D'AURELIO, Guardian ad Litem.
    DECISION AND JOURNAL ENTRY
   HENSAL, Judge.

{¶ 1} Appellants Maternal Great Grandparents ("Great Grandparents" or "Legal Custodians") appeal the judgment of the Summit County Court of Common Pleas, Juvenile Division, that allowed Maternal Grandmother ("Grandmother") to intervene and granted her visitation with the children J.L.M and R.J. For the following reasons, this Court affirms.

I.

{¶ 2} Mother and Father were not married when Mother gave birth to J.L.M (d.o.b. 2/19/13) and R.J. (d.o.b. 4/4/14). Based on concerns regarding neglect, physical abuse, and drug use in the parents' home, Summit County Children Services Board ("CSB") instituted a safety plan shortly after R.J.'s birth, whereby the children were placed with Great Grandparents. At the same time, Mother and Father had supervised visitation and agreed to participate in drug treatment services. When Mother and Father failed to follow through with drug treatment, thereby leaving the children at risk and preventing reunification, CSB filed complaints on October 16, 2014, alleging that J.L.M. was a dependent and neglected child, and that R.J. was a dependent and abused child.

{¶ 3} At the later adjudicatory and dispositional hearings, Mother and Father both agreed that J.L.M. was dependent and neglected, that R.J. was dependent and abused, and that the children would be placed in the temporary custody of Great Grandparents, while CSB would retain an order of protective supervision. The agency subsequently filed a motion for legal custody to Great Grandparents. After a hearing, the juvenile court granted CSB's motion, awarding legal custody to Great Grandparents and terminating the order of protective supervision. Mother and Father were both awarded visitation with the children as the parties might agree, but in no event fewer than three hours of supervised visitation per week. The juvenile court docketed the case as closed.

{¶ 4} Approximately six months later, Grandmother filed a motion for visitation solely with the older child. Legal Custodians filed a response captioned as and in the style of an answer to a complaint. Although the magistrate found that Grandmother had not properly served all the parties, he nevertheless ordered that she be allowed weekly visitation at a paid visitation center in the interim. The magistrate further appointed a guardian ad litem. Legal Custodians filed a motion to dismiss Grandmother's motion, to show cause, and to stay the visitation order. The magistrate stayed the visitation order and scheduled a show cause hearing, where Grandmother would be required to show cause why she had not paid the deposit for the guardian's fee. At a status hearing two weeks later, the magistrate learned that Mother had died that morning. The magistrate vacated his order staying Grandmother's visitation and reinstated her weekly supervised visitation. Legal Custodians immediately moved to set aside the magistrate's order, arguing inter alia that Grandmother was not a party and had not moved to intervene in the case, and that she had no standing to intervene after final disposition had been ordered. Legal Custodians also filed a motion to stay Grandmother's visitation, arguing that Grandmother lacked standing to move for visitation, that there was no statutory authority to grant Grandmother visitation, and that visitation was not in the best interest of the child.

{¶ 5} The juvenile court concluded that there was statutory authority to allow a grandparent to move for visitation, but it agreed that Grandmother was not a party and had not moved to intervene so that the court could consider her motion. The juvenile court stayed the order granting Grandmother visitation pending a hearing to determine her standing to intervene. In the meantime, Legal Custodians supplemented their motion to dismiss Grandmother's motion for visitation. The magistrate granted Legal Custodians' motion to dismiss, because Grandmother had not moved to intervene in the case. The juvenile court adopted the decision the same day.

{¶ 6} Three months later, Grandmother filed a motion to intervene and a motion for visitation with both children based on Mother's death. Legal Custodians renewed their motion to dismiss Grandmother's request for visitation. They raised multiple grounds, including the lack of juvenile court jurisdiction to consider third-party visitation after legal custody has been granted, the lack of statutory authority to allow Grandmother to intervene or obtain visitation rights, and res judicata. Grandmother responded in opposition.

{¶ 7} After a two-day hearing, the magistrate issued a decision granting Grandmother leave to intervene and ordering that she be allowed to visit with the children for two hours each month at a private visitation center at her expense. Legal Custodians filed timely objections. After its independent review, the juvenile court overruled Legal Custodians' objections and ordered that Grandmother be permitted to intervene in the action and, further, that she be allowed to have supervised visitation with the children. Legal Custodians filed a timely appeal in which they raise four assignments of error for review. Grandmother filed a brief in response, while CSB filed a notice that the agency would not be participating in the appeal.

II.

ASSIGNMENT OF ERROR I
THE COURT FAILED TO PROPERLY STATE A BASIS FOR ITS SUBJECT MATTER JURISDICTION TO HEAR A THIRD PARTY INTERVENTION AND REQUEST FOR VISITATION SUBSEQUENT TO THE GRANT OF LEGAL CUSTODY[.]

{¶ 8} Great Grandparents argue that the juvenile court lacked subject matter jurisdiction to consider Grandmother's motions to intervene and for visitation with the children. Specifically, Great Grandparents argue that the juvenile court lost jurisdiction to consider such motions, because its original exclusive jurisdiction had terminated as soon as CSB was awarded temporary custody of the children. Great Grandparents' argument is not persuasive.

{¶ 9} The juvenile court's determination regarding its subject matter jurisdiction implicates a question of law which this Court reviews de novo. Lorain Cty. Children Servs. v. Gossick , 9th Dist. Lorain No. 13CA010476, 2014-Ohio-3865, 2014 WL 4402077, ¶ 10. "A juvenile court may exercise jurisdiction only if expressly granted the authority to do so by statute." Rowell v. Smith , 133 Ohio St.3d 288, 2012-Ohio-4313, 978 N.E.2d 146, ¶ 13, citing Ohio Constitution, Article IV, Section 4 (B); In re Gibson , 61 Ohio St.3d 168, 172, 573 N.E.2d 1074 (1991) ; see also R.C. 2301.03(I)(2) (applicable to Summit County). Revised Code Section 2301.03(I)(2) provides, in relevant part:

Except in cases that are subject to the exclusive original jurisdiction of the juvenile court, the judge of the juvenile division shall not have jurisdiction or the power to hear, and shall not be assigned, any case pertaining to paternity, custody, visitation , child support, or the allocation of parental rights and responsibilities for the care of children or any post-decree proceeding arising from any case pertaining to any of those matters.

(Emphasis added.) The juvenile court has exclusive original jurisdiction under sixteen categories, including, in relevant part:

Concerning any child who on or about the date specified in the complaint * * * is alleged * * * to be a[n] * * * abused, neglected, or dependent child * * *[.]

R.C. 2151.23(A)(1).

{¶ 10} CSB initiated the underlying case pursuant to Revised Code Section 2151.23(A)(1), when it filed its complaints alleging that the children were abused, neglected, and/or dependent. The Ohio Supreme Court has clarified that the juvenile court operates pursuant to its exclusive original jurisdiction when it holds an adjudicatory hearing, and, if it adjudicates the child abused, neglected, or dependent, when it issues its initial dispositional order pursuant to Revised Code Section 2151.353(A). State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court , 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 21. Those dispositions include protective supervision, temporary custody, legal custody, permanent custody, planned permanent living arrangement, and removing the child from the home and issuing a no contact order. R.C. 2151.353(A)(1)-(6). Thereafter, the juvenile court's exclusive jurisdiction terminates and it continues to address ongoing issues in the case pursuant to its exercise of "continuing jurisdiction over the child." State ex rel. Allen Cty. Children Servs. Bd. at ¶ 23. Furthermore, Revised Code Section 2151.353(F)(1) provides in relevant part: "The [juvenile] court shall retain jurisdiction over any child for whom the court issues an order of disposition pursuant to division (A) of this section * * * until the child attains the age of eighteen years * * *." Only age or adoption terminates the continuing jurisdiction of the juvenile court. Id.

{¶ 11} In this case, the juvenile court adjudicated the children and placed them in the temporary custody of CSB. Exercising its continuing jurisdiction over the children, the court awarded legal custody to Great Grandparents and closed the case on its docket, "subject to [the juvenile] court's continuing jurisdiction over the Children pursuant to R.C. 2151.353(F)(1)." Admittedly, the juvenile court has no jurisdiction to consider a grandparent's complaint solely for visitation brought pursuant to Revised Code Section 2151.23(A)(2), which grants it exclusive original jurisdiction "to determine custody of any child not a ward of another court of this state[.]" See In re Gibson , 61 Ohio St.3d at 171-173, 573 N.E.2d 1074. The juvenile court, however, was exercising its continuing jurisdiction pursuant to Revised Code Section 2151.23(A)(1). As a parent of a child placed in the legal custody of another person may move to modify his or her visitation with the child pursuant to the juvenile court's continuing jurisdiction, it is axiomatic that any other person who would otherwise have the right to pursue visitation with the child could also seek to do so pursuant to the court's continuing jurisdiction. Accordingly, as long as Grandmother had a right to seek visitation with the children, the juvenile court had the jurisdiction to consider her request through the exercise of its continuing jurisdiction over these children for whom it previously issued an order of disposition pursuant to Revised Code Section 2151.353(A), arising out of its exclusive original jurisdiction pursuant to Revised Code Section 2151.23(A)(1).

{¶ 12} Revised Code Sections 3109.11 and 3109.12(A) respectively give any relative, including grandparents, standing to seek visitation with a child whose parent is deceased or whose mother was unmarried at the time of the child's birth. Here, Mother is deceased. Moreover, Mother gave birth to both children while she was unmarried. There is no dispute that Grandmother is the mother, i.e., a relative, of Mother. Because Grandmother has a statutory right to seek visitation with the children, and the juvenile court retains continuing jurisdiction to issue orders regarding them, the juvenile court did not err by determining that it had jurisdiction to consider Grandmother's motions to intervene and for visitation. Great Grandparents' first assignment of error is overruled.

ASSIGNMENT OF ERROR II
THE COURT ABUSED ITS DISCRETION IN PERMITTING [GRANDMOTHER] TO INTERVENE AND PROCEED ON HER MOTION FOR VISITATION[.]

{¶ 13} Great Grandparents argue that the juvenile court erred when it permitted Grandmother to intervene for the purpose of prosecuting her motion for visitation. Great Grandparents discuss both intervention of right and permissive intervention. Because the juvenile court concluded that Grandmother had a right to intervene, this Court constrains its discussion to that issue.

{¶ 14} Civil Rule 24(A), addressing intervention of right, states:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

This Court reviews a lower court's determination regarding intervention of right de novo, as it implicates a question of law. In re M.N. , 9th Dist. Wayne No. 07CA0088, 2008-Ohio-3049, 2008 WL 2485097, ¶ 5.

{¶ 15} Revised Code Section 3109.11 addresses visitation rights where a parent is deceased, and provides in relevant part:

If either the father or mother of an unmarried minor child is deceased, the court of common pleas in the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable companionship or visitation rights and if the court determines that the granting of the companionship or visitation rights is in the best interest of the minor child.

{¶ 16} Revised Code Section 3109.12 addresses visitation rights where a mother is unmarried, and provides in relevant part:

(A) If a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting the court of common pleas of the county in which the child resides to grant them reasonable companionship or visitation rights with the child.

{¶ 17} Great Grandparents argue that this Court's prior opinion in In re M.N. , 2008-Ohio-3049, is controlling. In that case, we affirmed the juvenile court's denial of the grandparents' motion to intervene to seek visitation and custody, because there was no evidence that the grandparents had ever acted in loco parentis to the child or assumed any aspect of parental duties for the benefit of the child. Id. at ¶ 17. In re M.N. is distinguishable from the instant matter, however, by its plain language. The majority expressly noted that there exist statutory mechanisms by which grandparents can "obtain a legal right of access to their grandchildren outside the juvenile custody situation." Id. at ¶ 20. This Court then specifically identified Revised Code Sections 3109.11 and 3109.12, which had not been invoked in the case of In re M.N. Id. Significantly, too, this Court adopted the test in In re Schmidt , 25 Ohio St.3d 331, 336, 496 N.E.2d 952 (1986), that a person seeking visitation with a child must present a "colorable" claim of a right to visitation. In re M.N. at ¶ 11.

{¶ 18} In this case, Grandmother moved to intervene to pursue visitation with the children on the bases that Mother, her daughter, was deceased; and to a lesser extent, because Mother had given birth to both children while unmarried. Accordingly, she claimed a statutory right to visitation pursuant to Revised Code Sections 3109.11 and 3109.12. The parties stipulated that Mother was deceased and that she was never married. As the evidence demonstrated that Grandmother had a colorable claim of a right to visitation pursuant to statute, the juvenile court did not err by granting Grandmother's motion to intervene in order to prosecute her motion for visitation with the children. Great Grandparents' second assignment of error is overruled.

ASSIGNMENT OF ERROR III
THE COURT IMPROPERLY FAILED TO GRANT [LEGAL CUSTODIANS'] MOTION TO DISMISS [GRANDMOTHER'S] MOTION FOR VISITATION ON THE GROUNDS THAT THE CLAIM AND ISSUE INVOLVED THEREIN ARE BARRED BY THE EQUITABLE DOCTRINE OF RES JUDICATA[.]

{¶ 19} Great Grandparents argue that the juvenile court erred by failing to dismiss Grandmother's motion for visitation, because it was barred by the doctrine of res judicata. Specifically, Great Grandparents argue that Grandmother should have sought visitation during the pendency of the underlying dependency, neglect, abuse litigation, and that she is now precluded from pursuing her claim, as she sat on her rights.

Res judicata is a doctrine of judicial preclusion. Grava v. Parkman Twp. , 73 Ohio St.3d 379, 381 [653 N.E.2d 226] (1995). There are two theories on which res judicata operates: claim preclusion (estoppel by judgment) and issue preclusion (collateral estoppel). Id. "Under the doctrine of res judicata, '[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.' "
Kelm v. Kelm , 92 Ohio St.3d 223, 227 [749 N.E.2d 299] (2001), quoting Grava at syllabus. Furthermore, res judicata operates to bar litigation of "all claims which were or might have been litigated in a first lawsuit." (Emphasis omitted). Grava at 382 [653 N.E.2d 226], quoting Natl. Amusements, Inc. v. Springdale , 53 Ohio St.3d 60, 62 [558 N.E.2d 1178] (1990).
" 'Proper application of the doctrine of res judicata requires that the identical cause of action shall have been previously adjudicated in a proceeding with the same parties, in which the party against whom the doctrine is sought to be imposed shall have had a full and fair opportunity to litigate the claim.' " SunTrust Bank v. Wagshul , 2d Dist. Montgomery No. 25567, 2013-Ohio-3931, 2013 WL 5178714, ¶ 8, quoting Brown v. Vaniman , 2d Dist. Montgomery No. 17503, 1999 WL 957721, *4 (Aug. 20, 1999).

J.P. v. T.H. , 9th Dist. Lorain No. 15CA010897, 2017-Ohio-233, 2017 WL 277518, ¶ 25-26.

{¶ 20} As noted above, the juvenile court retains continuing jurisdiction to issue orders regarding the children pursuant to Revised Code Section 2151.23(F)(1). See also R.C. 2151.353(F)(1). Accordingly, the juvenile court has the authority to revisit issues regarding the children's custody, visitation, and support in their best interest.

{¶ 21} Great Grandparents misconstrue the bases for Grandmother's request for visitation, asserting that her claim arises solely based on her argument that she had acted in loco parentis to the children at the time of their removal. In fact, Grandmother premised her request on statutory grounds primarily pursuant to Revised Code Section 3109.11 that Mother, her daughter, was deceased. Grandmother could not have raised that claim during the pendency of the dependency, neglect, abuse case prior to the court's award of legal custody to Great Grandparents, because Mother had not yet passed away at that time. Under the circumstances, Grandmother's request for visitation with the children was not barred by the doctrine of res judicata, and the juvenile court did not err by failing to dismiss her motion. Great Grandparents' third assignment of error is overruled.

ASSIGNMENT OF ERROR IV
THE COURT'S GRANT OF CLOSELY SUPERVISED VISITATION WITH [GRANDMOTHER] AS IN THE BEST INTEREST OF THE CHILDREN IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶ 22} Great Grandparents argue that the juvenile court's award of closely supervised visitation between Grandmother and the children is against the manifest weight of the evidence.

{¶ 23} In considering whether the juvenile court's judgment is against the manifest weight of the evidence, this Court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing] ordered." Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. When weighing the evidence, this Court "must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21.

{¶ 24} In cases where a parent is deceased, the juvenile court shall consider whether visitation is in the best interest of the children, as well as "all relevant factors, including, but not limited to, the factors set forth in division (D) of section 3109.051 of the Revised Code."

R.C. 3109.11. The juvenile court may award visitation regarding children born to an unmarried woman based on the same considerations. R.C. 3109.12(B). Revised Code Section 3109.051(D) factors include:

(1) The prior interaction and interrelationships of the child with the child's parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person's residence and the distance between the person's residence and the child's residence;
(3) The child's and parents' available time, including, but not limited to, each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting time and to facilitate the other parent's parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to [domestic violence] involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused or a neglected child;
(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's rights to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child' parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.

{¶ 25} As an initial matter, this Court notes that, while the juvenile court addressed its express consideration of the relevant factors, Great Grandparents make no reference to the factors enumerated in Revised Code Section 3109.051(D). In addition, except for one citation to a finding (which they challenge) by the juvenile court in its judgment, Great Grandparents have failed to cite to the record in support of their argument, as required by Appellate Rule 16(A)(7). Instead, they construe Mother's and Father's visitation orders arising out of the legal custody judgment as a restriction on Grandmother's ability to see the children; they pose unanswered questions for this Court requiring our speculation; and they note their ongoing "concern for the children based on their personal knowledge and experience of [Grandmother's] past behavior[.]" Under these circumstances, and bearing in mind the presumption in favor of the finder of fact, Great Grandparents have failed to demonstrate that the juvenile court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new hearing ordered. See Eastley at ¶ 21.

{¶ 26} To the extent that the juvenile court acknowledged any concerns regarding Grandmother's ability to influence the children or their exposure to her, those concerns were outweighed by the benefit of having a relationship with their deceased mother's family in a strictly limited and controlled environment. The juvenile court limited Grandmother's visitation with the children to one two-hour supervised visit each month in a structured, commercial visitation center, for which Grandmother must bear the cost. Because the visitation supervisor would have the authority to deny Grandmother the ability to visit with the children on the center's premises if she appeared to be under the influence of drugs or alcohol, or if she violated the juvenile court's restrictions on certain topics of conversation with the children, any grave concerns for the safety and well-being of the children are alleviated. Accordingly, the juvenile court's highly restricted visitation award for Grandmother was not against the manifest weight of the evidence. Great Grandparents' fourth assignment of error is overruled.

III.

{¶ 27} Great Grandparents' assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

CARR, P.J.

CALLAHAN, J.

CONCUR.

      Grandmother identified the child by a different last name than the name evidenced in the case file.


author: SEAN C. GALLAGHER, J.:

text:
    U.S. BANK TRUST NATIONAL ASSOCIATION, Plaintiff-Appellee v. Ferenc JANOSSY, et al., Defendants-Appellants
    No. 106361
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    A. Clifford Thornton, PDC Building, # 305, 3659 Green Road, Beachwood, Ohio 44122, ATTORNEY FOR APPELLANTS
    Rick D. Deblasis, Lerner, Sampson & Rothfuss, 120 East Fourth Street, Suite 800, Bill L. Purtell, Lerner, Sampson & Rothfuss, P.O. Box 5480, Cincinnati, Ohio 45202, Ellen L. Fornash, 1771 W. Diehl, Suite 120, Naperville, Illinois 60563, State of Ohio Department of Taxation c/o Attorney General Michael DeWine, 150 East Gay Street, 21st Floor, Ohio Homeowner Assistance L.L.C. c/o John F. Kukura, III, 88 East Broad Street, Suite 1800, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., Kilbane, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Ferenc and Agnes Janossy appeal the decree of foreclosure entered against their interest in a property located in Cleveland Heights, Ohio. We dismiss the appeal.

{¶ 2} The Janossys executed a promissory note in the amount of $96,224 in order to purchase a residential property. The property was encumbered by a recorded mortgage. Both the note and mortgage were assigned to various entities, ending with U.S. Bank Trust National Association ("U.S. Bank"). Sometime in 2015, the Janossys defaulted on the note; but before U.S. Bank initiated foreclosure proceedings, Agnes filed a breach of contract and quiet title action, claiming that U.S. Bank breached the terms of the promissory note and title to the property should be in the Janossys' name. Only Agnes, acting pro se, signed the complaint in that civil action, despite also naming Ferenc as a pro se plaintiff.

{¶ 3} U.S. Bank initiated the foreclosure proceeding, and the two cases were consolidated. The magistrate in the civil action granted U.S. Bank's motion to dismiss several months before the trial court entered a decision in the foreclosure proceeding.

{¶ 4} In the foreclosure proceeding, the trial court granted judgment on the note and mortgage in favor of U.S. Bank upon an unopposed motion filed under Civ.R. 56. Although the Janossys were granted a stay of execution from the decree of foreclosure, which was certified as final under Civ.R. 54(B) for the purposes of this appeal, no bond was posted in order to obtain the stay. The sale of the property proceeded, and the $48,000 purchase price was confirmed. The Janossys did not appeal the confirmation of the sale, the second of two judgments appealable in foreclosure actions-the first being the order of foreclosure. Blisswood Village Home Owners Assn. v. Genesis Real Estate Holdings Group, L.L.C. , 8th Dist. Cuyahoga No. 105861, 2018-Ohio-1092, 2018 WL 1445735, ¶ 8, citing CitiMortgage, Inc. v. Roznowski , 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. The proceeds of the sale were distributed following the confirmation.

{¶ 5} In the appellate briefing, the Janossys claim the trial court erred with respect to granting the decree of foreclosure on their property, which was used as indemnification to partially satisfy the judgment entered upon the note, and by dismissing the civil action. The Janossys, however, did not include the civil action, or the related dispositive order, in their notice of appeal. The notice of appeal filed in this case only involved and referenced the foreclosure action and the dispositive order in that case.

{¶ 6} Under Loc. App.R. 3(B)(2) of the Eighth District Court of Appeals, a party is required to file one notice of appeal from a judgment entered in cases consolidated in the trial court, but that notice of appeal must list all consolidated case numbers. The act of consolidating cases is a procedural tool advancing judicial efficiency, but consolidation does not merge the two cases. State ex rel. Shumaker v. Nichols , 137 Ohio St.3d 391, 2013-Ohio-4732, 999 N.E.2d 630, citing First Natl. Bank of Pulaski v. Curry , 301 F.3d 456, 467 (6th Cir.2002) ("Despite the consolidation of the two actions in the present case, * * * the actions did 'not merge * * * into a single cause.' "). In this case, the Janossys filed a notice of appeal from the decision entered in the foreclosure action. We cannot consider the assignment of error with respect to the unappealed civil action.

{¶ 7} With respect to the foreclosure action, it has generally been concluded that an appeal from a decree of foreclosure is moot in instances where the debtors fail to obtain a stay from the distribution of proceeds or the confirmation of sale by posting the required bond. Provident Funding Assocs., L.P. v. Turner , 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, 2014 WL 2611260, ¶ 6 ; Blisswood Village, 8th Dist. Cuyahoga No. 105861, 2018-Ohio-1092, at ¶ 11 ("Where a defendant in a foreclosure action fails to obtain a stay of the distribution of the proceeds, R.C. 2329.45 does not apply and any appeal therefrom is moot."). This conclusion stems from the mootness doctrine, which provides that

"Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment."

Blodgett v. Blodgett , 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990), quoting Rauch v. Noble , 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959), and Lynch v. Lakewood City School Dist. Bd. of Edn. , 116 Ohio St. 361, 156 N.E. 188 (1927), paragraph three of the syllabus. The distribution of proceeds from a sale of a foreclosed property is in satisfaction of the judgment upon the note, and unless a judgment debtor takes steps in furtherance of stalling the sale, the application of the proceeds to the debt satisfies the judgment. Turner.

{¶ 8} The Janossys were granted a stay of execution on the foreclosure decree, but failed to post the required bond to prevent the sale or the distribution of the proceeds, and therefore, their appeal is moot. Turner ; Blisswood Village ; Cooper v. Westerville , 5th Dist. Delaware No. 13 CAE 02 0011, 2013-Ohio-4652, 2013 WL 5745101, ¶ 17 (appeal moot because judgment debt satisfied through sale of the foreclosed property); see also Bankers Trust Co. of California, N.A. v. Tutin , 9th Dist. Summit No. 24329, 2009-Ohio-1333, 2009 WL 763994, ¶ 16 ; JPMorgan Chase Bank v. Ritchey , 11th Dist. Lake Nos. 2007-L-017 and 2007-L-018, 2007-Ohio-5913, 2007 WL 3243916, ¶ 7 ; Villas at the Pointe of Settlers Walk Condominium Assn. v. Coffman Dev. Co. , 12th Dist. Warren No. CA2009-12-165, 2010-Ohio-2822, 2010 WL 2499651, ¶ 18.

{¶ 9} In accordance with the weight of authority from this district, the appeal is dismissed. See, e.g., Wells Fargo Bank N.A. v. Cuevas , 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498, 2014 WL 718310 ; Beneficial Ohio, Inc. v. LaQuatra , 8th Dist. Cuyahoga No. 99860, 2014-Ohio-605, 2014 WL 688658 ; Bank of New York Mellon v. Adams , 8th Dist. Cuyahoga No. 99399, 2013-Ohio-5572, 2013 WL 6730792 ; and Third Fed. S. & L. Assn. of Cleveland v. Rains , 8th Dist. Cuyahoga No. 98592, 2012-Ohio-5708, 2012 WL 6061723, ¶ 13.

{¶ 10} Despite our disposition, we acknowledge that some courts have concluded that an appeal from the judgment of foreclosure is viable despite the failure to obtain a stay of the confirmation of the sale or the distribution of the proceeds by posting the required bond. See, e.g., Ditech Fin. L.L.C. v. McCurry, 8th Dist. Cuyahoga No. 105005, 2017-Ohio-7170, 2017 WL 3432668, ¶ 6 ; Green Tree Servicing L.L.C. v. Asterino-Starcher , 10th Dist., 2018-Ohio-977, 97 N.E.3d 525, ¶ 16-17. In McCurry , for example, the debtors had been granted a stay of execution over the foreclosure decree contingent on the posting of a bond, which never happened. The appeal was nonetheless considered on the merits. Id.

{¶ 11} Asterino-Starcher concluded that posting the required bond was unnecessary for the purposes of determining whether the debtor was voluntarily satisfying the judgment under the mootness doctrine. Id. at ¶ 16, citing U.S. Bank Natl. Assn. v. Mobile Assocs. Natl. Network Sys., Inc. , 195 Ohio App.3d 699, 2011-Ohio-5284, 961 N.E.2d 715 (10th Dist.), and Governors Place Condominium Owners Assoc. v. Unknown Heirs , 11th Dist. Lake No. 2016-L-070, 2017-Ohio-885, 2017 WL 1042392, ¶ 29-30. According to that court, by seeking a stay, and whether or not the stay was obtained, the debtor was not voluntarily satisfying the money judgment, and therefore, the mootness doctrine did not apply. Id. Thus, according to Asterino-Starcher , it is the granting of the motion to stay that demonstrates the involuntary nature of the sale for the purposes of the mootness doctrine rather than the posting of the bond to obtain the stay as required in Turner and Blisswood Village .

{¶ 12} Further, Asterino-Starcher reiterated the Tenth District's conclusion that R.C. 2329.45 fashions a remedy for debtors following the irrevocable sale of the property irrespective of the stay issue. " R.C. 2329.45 expressly provides for recovery in restitution in the event of reversal of the foreclosure judgment" following the distribution of proceeds of the sale. Id. ; Everhome Mtge. Co. v. Baker , 10th Dist. Franklin No. 10AP-534, 2011-Ohio-3303, 2011 WL 2586751, ¶ 16. In other words, the sale of the property and the distribution of the proceeds do not end the controversy because there exists a statutory right of restitution from the judgment creditor in favor of all persons who lost an interest in the property.

{¶ 13} In Turner , this same principle was recognized, but with the added caveat that a stay of the distribution of proceeds must first be obtained for a defendant to avail himself of R.C. 2329.45. Turner , 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, at ¶ 6. We need not resolve the difference between the unrestrained reading of the statute provided in Baker and the more narrow application provided in Turner . The Janossys have not preserved this issue for our review.

{¶ 14} In addition, and despite the similarities, we cannot read McCurry in accordance with Asterino-Starcher . McCurry is a narrow exception to the general concept applied in Turner and Blisswood Village, 8th Dist. Cuyahoga Nos. 105312 and 105575, 2018-Ohio-1080, 2018 WL 1445732. It is important to note that McCurry is silent with respect to whether the proceeds of the sale were distributed at the time of the appeal. McCurry, 8th Dist. Cuyahoga No. 105005, 2017-Ohio-7170, at ¶ 3. It was merely noted that the sale had been confirmed.

Id. Distributing the proceeds is the act in satisfaction of the judgment on the note, and it is for that reason that courts deem the foreclosure appeal moot when no stay is obtained. Blodgett , 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990) ("It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot."); Tutin , 9th Dist. Summit No. 24329, 2009-Ohio-1333, at ¶ 11.

{¶ 15} If the distribution of the proceeds following the sale of the property has not occurred, in other words, the judgment creditor has not successfully collected on the money judgment, there is no satisfaction of the judgment for the purposes of the mootness doctrine. Thus, the situation in which the proceeds of sale have not been distributed at the time of the foreclosure appeal ( McCurry ), is no different from the situation in which the debtor obtains a stay to prevent the distribution ( Turner and Blisswood Village ) . In both cases, the mootness doctrine would not apply because there was no voluntary satisfaction of the judgment debt.

{¶ 16} In this case, the distribution of the proceeds has occurred, and therefore, the limited exception from McCurry is inapplicable. Further, the Janossys have not challenged U.S. Bank's contention that the appeal is moot, nor have they provided any analysis for us to conclude otherwise. App.R. 16(A)(7) ; Cooper , 5th Dist. Delaware No. 13 CAE 02 0011, 2013-Ohio-4652, at ¶ 17.

{¶ 17} We also acknowledge division among Ohio courts on whether R.C. 2329.45 authorizes a remedy after the property has been sold and the proceeds have been distributed for the purposes of resolving the mootness inquiry. Turner , 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, at ¶ 5 ; Baker , 10th Dist. Franklin No. 10AP-534, 2011-Ohio-3303, ¶ 16. Even if we broke ranks with the weight of authority in this district and followed Baker , the Janossys' debt is twice the sales price of the property after the taxes and fees were assessed. If restitution could be awarded to the debtor from the judgment creditor under R.C. 2329.45, that restitution to the Janossys would be offset by the debt owed. MSCI 2007-IQ16 Granville Retail, L.L.C. v. UHA Corp., L.L.C. , 660 Fed.Appx. 459, 462 (6th Cir.2016), citing Vegas Diamond Props., L.L.C. v. Fed. Deposit Ins. Corp. , 669 F.3d 933, 936-937 (9th Cir.2012) ; Christopher Village, Ltd. Partnership v. Retsinas , 190 F.3d 310, 314-315 (5th Cir.1999) ; Fed. Deposit Ins. Corp. v. Meyer , 781 F.2d 1260, 1263-1264 (7th Cir.1986).

{¶ 18} And finally, we are compelled to note the extremely limited nature of the arguments presented for appellate review. The judgment entered in favor of U.S. Bank under Civ.R. 56 was unopposed, and the Janossys failed to file objections to the magistrate's decision. Under Civ.R. 53(D)(3)(b)(iv), the Janossys waived all but plain error; but beyond that, appellate courts do not consider arguments raised for the first time on appeal because the trial court was never afforded the opportunity to consider the arguments. Roper v. Univ. of Cincinnati Med. Ctr. , 1st Dist. Hamilton No. C-170106, 2018 WL 1782751, *1 (Apr. 4, 2018), citing First Natl. Community Bank v. Garretson Firm Resolution Group , 1st Dist., 2017-Ohio-7582, 97 N.E.3d 747.

{¶ 19} In light of the foregoing, the issues presented for review with respect to the decree of foreclosure are moot. The appeal is dismissed.

MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      Janossy v. U.S. Bank Natl. Assoc. Individually & as alleged Owner Trustee for Queen's Park Oval Asset Holding Trust, Cuyahoga C.P. No. CV-16-864523.

      U.S. Bank's motion to supplement the record with the postdispositive proceedings in the underlying action is unopposed and granted.

      Mid Am. Mtge., Inc. v. Scott , 8th Dist. Cuyahoga No. 106099, 2018-Ohio-1403, 2018 WL 1779372, ¶ 15, citing U.S. Bank Natl. Assn. v. George , 2015-Ohio-4957, 50 N.E.3d 1049, ¶ 12 (10th Dist.).