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Date: 09-12-2018

Case Style:


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Case Number: 106008



Plaintiff's Attorney: Marc E. Dann
William C. Behrens
Grace Mary Doberdruk

Defendant's Attorney: Lindsey A. Wrubel
Steven M. Ott

Description: On June 2, 2015, Sanctuary filed a complaint against Castro in the Garfield
Heights Municipal Court seeking a personal judgment for $8,577.45 for the post-petition
Sanctuary Assessments and legal fees. Sanctuary claimed that there were no proceeds
available for distribution from the foreclosure sale of the Castro Unit to satisfy the
{¶3} On October 21, 2015, the trial court denied Castro’s motion to dismiss for
failure to state a claim pursuant to Civ.R. 12(B)(6). Castro argued the action was barred
by res judicata because Sanctuary waived its right to recover a personal judgment in the

Sanctuary Condominium Assn. v. Castro, Cuyahoga C.P. No. CV-12-796999.
underlying foreclosure case. The case proceeded to a trial before the magistrate on May
2, 2016.
{¶4} On October 25, 2016, the magistrate rejected Castro’s arguments that
Sanctuary’s claims were barred by the doctrines of res judicata, judicial estoppel, and
collateral estoppel. A decision was rendered in favor of Sanctuary for $5,467.45 in
post-petition for the Sanctuary Assessments, costs, and interest, but the court rejected
Sanctuary’s claim for $3,110.00 in attorney fees, finding them to be excessive.
{¶5} Castro filed objections on March 10, 2017, and in the body of the objection,
requested leave to file supplemental objections upon issuance of the transcript. Without
ruling on the motion for leave to supplement the objections, the trial court overruled the
objections on March 24, 2017, cancelled a scheduled hearing, and adopted the
magistrate’s decision.
{¶6} On March 28, 2017, Castro filed a renewed motion for leave to supplement
the objections, attaching the supplemental objections and trial transcript. The trial court
granted the motion on March 29, 2017, and directed Sanctuary to respond within 14 days
of the entry.
{¶7} Castro filed a notice of appeal with the Garfield Heights Municipal Court
appealing the March 24, 2017 judgment entry overruling the objections and adopting the
magistrate’s decision. Castro argues the filing was taken as a precautionary measure to
preserve her appellate rights because the entry had not been reversed or vacated in spite
of the March 29, 2017 entry allowing the supplemental objections. The appeal was
electronically filed on April 25, 2017 with the Garfield Heights court, but was received by
this court on May 12, 2017 and dismissed sua sponte for failure to timely appeal pursuant
to App.R. 4(A). Sanctuary Condominium Assoc. Inc. v. Castro, Cuyahoga C.P.
No. CA-17-105772.2
{¶8} On June 13, 2017, Castro requested that the trial court issue a final ruling
on the supplemental objections. Castro argued that a ruling was required to create a
final appealable order and because execution on the judgment was automatically stayed
pending a final judgment pursuant to Civ.R. 53(D)(4)(e)(I). Sanctuary filed a motion to
strike Castro’s request or, in the alternative, opposing the request. Sanctuary argued that
it had not been served with the motion for leave to file the supplemental objections or the
notice of appeal and that it only discovered the filings during a random review of the
{¶9} On June 20, 2017, the trial court issued an entry overruling the supplementary
objections, and agreed to issue a separate entry setting a hearing on the request for
sanctions filed by Sanctuary. On July 6, 2017, Castro appealed the June 20, 2017
decision. The trial court cancelled any future hearings including regarding Sanctuary’s
request for sanctions and recused itself from further proceedings, citing an inability to be
fair and impartial.


Castro offers that the appeal was a nullity due to the March 29, 2017 journal entry granting leave to file the supplemental objections.
{¶10} The instant notice of appeal challenges the June 20, 2017 judgment entry
overruling the supplemental objections.3 We find that this court lacks jurisdiction to
entertain the appeal.
{¶11} The trial court issued a final judgment entry on March 24, 2017 granting
judgment to Sanctuary to this case. The judgment entry rejected the objections filed by
Castro on March 10, 2017 and adopted the magistrate’s decision. This is true
notwithstanding Castro’s request for leave to supplement the objections that was included
in the March 10, 2017 filing. The judgment entry renders contains the language “[t]here
is no just reason for delay” as mandated by Civ.R. 54(B).4 A notice of appeal was filed
on April 25, 2017. On May 22, 2017, this court sua sponte dismissed the appeal for
untimeliness pursuant to App.R. 4(A).
{¶12} Compliance with App.R. 4(A) is a jurisdictional requirement and where a
notice of appeal is not timely filed, the court of appeals has no jurisdiction to entertain the
appeal. Agee v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No. 103464, 2016-Ohio-2728, ¶ 3,
citing Wells Fargo Bank, N.A. v. Fields, 8th Dist. Cuyahoga Nos. 101814 and 101985,

Sanctuary offers that the notice of appeal in this case was untimely filed pursuant to App.R. 4(A) because the judgment in issue on appeal was rendered on March 24, 2017. We find that the appeal of the June 20, 2017 judgment entry that overruled the supplemental objections was timely filed. See App.R. 4(B)(2)(c) providing that the time for filing a notice of appeal begins to run after the objections have been resolved. See Selinsky Force, LLC v. Roseman Constr. LLC, 5th Dist. Stark No. 2012-CA-00160, 2013-Ohio-1231.
Failure to include the Civ.R. 54(B) certification deprives an appellate court of jurisdiction to entertain an appeal. Charter One Bank v. Tutin, 8th Dist. Cuyahoga No. 86556, 2006-Ohio-1361, ¶ 4.
2015-Ohio-4580, ¶ 14; Bounce Props., L.L.C. v. Rand, 8th Dist. Cuyahoga No. 92691,
2010-Ohio-511, ¶ 6.
{¶13} Castro’s argument that the trial court’s March 29, 2017 determination to
allow Castro to file supplemental objections effectively vacated the March 24, 2017 final
judgment is incorrect. Once the trial court adopted the magistrate’s decision and entered
a final judgment, jurisdiction ended. “The trial court did not regain jurisdiction to
consider the [supplemental] objections by virtue of [the appellate court’s] dismissal of
[appellant’s] appeal because the trial court’s judgment” from March 24, 2017 “was still
valid and controlling.” Napier v. Cieslak, 12th Dist. Butler No. CA2014-12-242,
2015-Ohio-2574, ¶ 8. In fact, Castro admitted during the oral arguments in this case to
filing the notice of appeal as a precaution because the trial court had not technically
vacated the March 24, 2017 judgment.
{¶14} Castro did not challenge the dismissal by seeking reconsideration, file an
appeal to the Ohio Supreme Court, or seek to vacate the judgment in the trial court via
Civ.R. 60(B). Thus, any ruling by the trial court following the March 24, 2017 judgment
was a nullity and may not be reviewed on appeal. Akin v. Bushong, 10th Dist. Franklin
No. 17AP-107, 2017-Ohio-7333, ¶ 8, citing Levy v. Ivie, 195 Ohio App.3d 251,
2011-Ohio-4055, 959 N.E.2d 588 (10th Dist.); In re L.J.G., 11th Dist. Trumbull No.
2012-T-0014, 2012-Ohio-5228, ¶ 11-12; Zaryki v. Breene, 9th Dist. Summit No. 27968,
2016-Ohio-7086, ¶ 20. Castro may not file post-dispositive motions in the trial court to
circumvent filing an untimely appeal. Rundle v. Rundle, 123 Ohio App.3d 304, 306, 704
N.E.2d 56 (8th Dist.1997).

Outcome: This court lacks jurisdiction to consider the appeal and it is hereby

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