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Date: 10-03-2019

Case Style:

WBCMT 2007-C33 OFFICE 7870, LLC, vs. BREAKWATER EQUITY PARTNERS, LLC, THOMPSON NATIONAL PROPERTIES, LLC, TNPPM KEMPER POINTE, LLC, and ANTHONY W. THOMPSON

Case Number: C-180127

Judge: Pierre Bergeron

Court: COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Plaintiff's Attorney: If you need civil procedure Attorney in Ohio, call Kent Morlan at 888-354-4529.

Defendant's Attorney:

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Plaintiff-appellant WBCMT 2007-C33 Office 7870, LLC, (“WBCMT”)
initially filed a two-count lawsuit for breach of contract and foreclosure against 22
separate borrower entities (“Borrowers”), the Hamilton County Treasurer, and 100
OHIO FIRST DISTRICT COURT OF APPEALS
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John Doe defendants. In addition to the two counts, the complaint’s prayer for relief
sought “[j]udgment against Borrowers for all costs of collection of the debt, including
but not limited to, interest, attorneys’ fees, and other costs[.]” About six months
later, in January of 2014, the matter was largely settled with a “Partial Agreed
Judgment,” which entered final judgment in favor of WBCMT and against the
Borrowers on both counts of the complaint. It did not, however, finally determine
the costs of collection or resolve the question of attorney fees. WBCMT sold the
property at a sheriff’s sale and went on to secure an “Entry Confirming Sale &
Ordering Deed” (“Confirmation Order”).
{¶5} Subsequent to the Partial Agreed Judgment, WBCMT sought leave to
amend its complaint (without opposition) in mid-2014. The trial court entered the
order granting leave and the Confirmation Order on the same day. The amended
complaint substituted the Borrowers with Breakwater Equity Partners, LLC,
(“Breakwater”); Thompson National Properties, LLC, (“TNP”); TNPPM Kemper
Pointe, LLC, (“TNPPM”), and Anthony W. Thompson (president of TNP); and
substituted conversion, fraudulent conveyance, and unjust-enrichment claims for the
breach-of-contract and foreclosure claims. The latter three defendants have
responded as appellees in this appeal, and we refer to them, collectively, as “the
Thompson Defendants.” According to WBCMT’s allegations, the Borrowers had
engaged TNP, by and through TNPPM, to manage their collateral real estate. TNP
and TNPPM allegedly transferred significant sums generated from that real estate
(also its collateral) to Breakwater (thereby stripping assets from which debt service
payments could have been made), which WBCMT sought to recover via the amended
complaint. But to the untrained eye, the amended complaint bears little, if any,
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resemblance to the original complaint, begging the question of why WBCMT opted
for this path rather than simply commencing a new action.
{¶6} Although the procedure was novel, no one complained about the move.
The Thompson Defendants simply got on with the business of litigating the case, and
after the case lingered for a while, WBCMT moved for, and secured, summary
judgment on the amended complaint. The Thompson Defendants appealed, but we
dismissed that appeal by a Judgment Entry—noting that the judgment entered in
favor of WBCMT on the amended complaint did not determine punitive damages,
attorney fees, or certain indeterminate amounts payable under the loan documents.
Therefore, we dismissed the appeal for lack of a final order.
{¶7} Back in the trial court, WBCMT sought to render the judgment final by
filing a “Notice of Conditional Waiver of Claims” related to its summary judgment.
But the matter was assigned to a new judge in June of 2017, and the judge never
acted on that request. Instead, following its review of the case, the trial court sua
sponte ordered briefing on its continuing jurisdiction over the case—raising
numerous questions about the finality of the Partial Agreed Judgment; the finality of
the Confirmation Order, the effect of such finality (if any) on the amended complaint
and the trial court’s continuing jurisdiction; and the effect of the amended complaint
(if valid) on prior orders of the trial court. After briefing and argument, the trial
court concluded that it never had jurisdiction over the amended complaint because
the Partial Agreed Judgment and Confirmation Order were final, appealable orders.
It correspondingly vacated all orders and entries related to the amended complaint
and dismissed the amended complaint without prejudice. With the stroke of a pen,
the court erased three years of litigation. WBCMT now appeals the trial court’s
judgment.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶8} We pause, before proceeding with the analysis, to highlight the
jurisdictional concepts that animate this appeal. While the term “jurisdiction” is
frequently used in a generic sense, it refers more precisely to three, distinct concepts:
“jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction
over a particular case.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-
4275, 21 N.E.3d 1040, ¶ 18. Subject-matter jurisdiction is power conferred, by the
Constitution and other law, on the court over a particular type of case. Id. at ¶ 20.
Subject-matter jurisdiction requires no “regard to the rights of the individual parties
involved in a particular case.” Id. at ¶ 19.
{¶9} Jurisdiction over a particular case (also referred to as “jurisdiction
over the case”), by contrast, connotes “the court’s authority to proceed or rule on a
case that is within the court’s subject-matter jurisdiction.” Id., citing Pratts v.
Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 12. Put differently,
“an inquiry into a party’s ability to invoke a court’s jurisdiction speaks to jurisdiction
over a particular case, not subject-matter jurisdiction.” (Emphasis sic.) Id. at ¶ 22.
Errors in that invocation “cause[] a judgment to be voidable rather than void.” Id. at
19, citing Pratts at ¶ 12.
{¶10} The third strand, personal jurisdiction, refers to the principle that the
“Due Process Clause of the Fourteenth Amendment to the United States Constitution
requires that a valid judgment imposing a personal obligation or duty in favor of the
plaintiff may be entered only by a court having jurisdiction over the person of the
defendant.” Meadows v. Meadows, 73 Ohio App.3d 316, 319, 596 N.E.2d 1146 (3d
Dist.1992), citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), and Internatl.
Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Generally,
Ohio courts have personal jurisdiction over Ohio residents. Prouse, Dash & Crouch,
OHIO FIRST DISTRICT COURT OF APPEALS
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L.L.P. v. DiMarco, 116 Ohio St.3d 167, 2007-Ohio-5753, 876 N.E.2d 1226, ¶ 5. A
court’s personal jurisdiction over a nonresident requires a more complex inquiry
concerning the applicable long-arm statute, the civil rules, and/or relevant due
process considerations.
{¶11} Although the lines were blurred somewhat below, and to a certain
extent on appeal, the parties all now agree the asserted defect that we consider today
relates to jurisdiction over a particular case. That version of jurisdiction, however,
has generated perhaps the least case law, so we must consider authority proffered on
all three types of jurisdiction as we navigate the arguments of the parties and the
decision of the trial court below. While analogies may be appropriate in certain
respects, it is crucial to maintain appropriate distinctions between these legal
concepts in considering this appeal, lest we fall into the same trap about which we
have warned.
II.
{¶12} The jurisdictional questions raised by the trial court are rooted in the
premise that the trial court lacked jurisdiction to grant the motion to amend the
complaint, matters we review de novo. A threshold issue then, it seems to us, is
whether Civ.R. 15 permitted WBCMT’s amended complaint. Without controlling
authority on this particular application of Civ.R. 15, we turn as a guide to general
case law applying Civ.R. 15 in part A of this opinion. From there, in part B, we
proceed to discuss the jurisdictional questions implicated by the amended complaint.
We assess whether—regardless of propriety under Civ.R. 15—certain orders below
divested the trial court of its continuing jurisdiction over the amended complaint
(implicating WBCMT’s second, third, and fourth assignments of error). Finally, in
part C, we consider whether the assertion of jurisdiction over this particular case, if
OHIO FIRST DISTRICT COURT OF APPEALS
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error, could have been waived and whether the trial court could have raised it sua
sponte—encompassing WBCMT’s first assignment of error.
A.
{¶13} Under Civ.R. 15(A), regarding amendments other than those as a
matter of course: “[A] party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court shall freely give leave when justice so
requires.” Trial courts have discretion as to whether to grant leave. Turner v. Cent.
Local School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). The Supreme
Court of Ohio has emphasized that “the language of Civ.R. 15(A) favors a liberal
amendment policy and a motion for leave to amend should be granted absent a
finding of bad faith, undue delay or undue prejudice to the opposing party.” Hoover
v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984), modified on other grounds,
Jim’s Steak House, Inc. v. City of Cleveland, 81 Ohio St.3d 18, 688 N.E.2d 506
(1998). See Peterson v. Teodosio, 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973)
(“[W]here it is possible that the plaintiff, by an amended complaint, may set forth a
claim upon which relief can be granted, and it is tendered timely and in good faith
and no reason is apparent or disclosed for denying leave, the denial of leave * * * is
an abuse of discretion.”). We are all familiar with these principles, but the question
here really is one of timing.
{¶14} The rule also contemplates certain, specific situations in which tardy
amendments, even postjudgment, may be appropriate: “[A]mendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion * * * at any time, even after judgment.”
Civ.R. 15(B). We thus know that the rule allows for belated amendments, but the
language of subsection (B) fails to answer the question at hand.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶15} Considering the timeliness requirement under Civ.R. 15(A) relative to
amending a complaint to correct the name of the defendant, our Supreme Court
noted (albeit in dicta) that “Ohio law does not specify a time within which a motion
to amend must be filed[]”—citing to decisions from other jurisdictions allowing such
amendment at trial, after trial and before judgment, after judgment, and even after
an affirmance on appeal. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 589
N.E.2d 1306 (1992), fn. 1. It reiterated: “The timeliness of the motion is defined by
the reasonable diligence of the moving party and any prejudice to defendant’s ability
to defend, and those are questions of law to be determined by the court.” Id., citing
Garay v. The Star Ledger, 251 N.J.Super. 289, 598 A.2d 22 (1991). This passage
thus seems to grant the trial court discretion on the timeliness determination, even
at very late hours during the course of a case.
{¶16} We do not see, nor have the Thompson Defendants directed our
attention to, any line in the sand under the Civil Rules for purposes of when a
complaint may be amended. Rather, flexibility informed by the trial court’s
discretion seems to rule the day. See Birmingham Fire Ins. Co. v. River Downs Race
Track, 26 Ohio App.3d 139, 141, 499 N.E.2d 18 (1st Dist.1985) (upholding
amendment to add claims more than four years after filing). Guidance from the Ohio
Supreme Court suggests that, when weighing the propriety of a belatedly-amended
pleading, courts should consider whether it is the product of bad faith, results in
undue delay, or inflicts undue prejudice. See Hoover, 12 Ohio St.3d at 6, 465 N.E.2d
377; Peterson, 34 Ohio St.2d at 175, 297 N.E.2d 113; Patterson, 63 Ohio St.3d at fn. 1,
589 N.E.2d 1306. On the record at hand, none of those considerations apply.
{¶17} We see no evidence—let alone any allegation—of bad faith against
WBCMT. Nor have the Thompson Defendants articulated any undue prejudice
OHIO FIRST DISTRICT COURT OF APPEALS
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flowing from the amendment—they had to defend the lawsuit, to be sure, but that is
not the type of prejudice that bars an amended complaint.1 The Thompson
Defendants also cannot show undue delay given that their involvement in the lawsuit
did not predate the amendment. And in response to why it amended to add the
Thompson Defendants, WBCMT insists that collection issues, only brought to light
after the appointment and initial work of the receiver, revealed the necessity to
pursue the Thompson Defendants. Consideration of these factors suggests that the
trial court appropriately exercised its discretion to allow the amended complaint.
(We hasten to point out that the court certainly was not obligated to allow the
amendment if it felt the requisite factors pointed the other way—but that is not the
record before us.). As far as the Civil Rules go, therefore, we see nothing that would
bar the amended complaint before us.
B.
{¶18} Rather than mounting a rule-based defense, the Thompson
Defendants frame the operative timing question slightly differently—asking whether
a final judgment in the original action preceded the amended complaint and
accordingly divested the trial court of jurisdiction. The second trial court judge
concluded that the presence of final judgments, both the Partial Agreed Judgment
and Confirmation Order, stripped the court of further jurisdiction.2 For the reasons
discussed below, we reach a different conclusion. 1 The dissent criticizes our Civ.R. 15 analysis but offers no controlling authority to show that a trial court acts outside the breadth of its broad discretion to grant an amendment on the facts at hand here. And the dissent’s concerns about sharp practices by litigants (¶ 50) is answered readily enough by the delay/prejudice/bad faith standard that allows courts to reject amendments when the applicant is engaged in shenanigans. 2 The trial court and the Thompson Defendants cite to In re Burton S., 136 Ohio App.3d 386, 391, 736 N.E.2d 928 (6th Dist.1999), for the broad proposition that “[o]nce a court of competent jurisdiction acquires jurisdiction over an action, its authority continues until a final judgment on the merits of the dispute before it has been issued.” (Citation omitted.) But Burton did not address jurisdiction over the case—instead, it considered a challenge to personal jurisdiction, which it ultimately found waived (which militates in favor of finding waiver here, as we will discuss below).
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{¶19} The Partial Agreed Judgment invoked Civ.R. 54(B)’s “no just reason
for delay” language, suggesting the intent for the judgment to be final
notwithstanding the persistence of certain remaining claims. As explained by Miller
v. First Internatl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866
N.E.2d 1059, ¶ 10: “It is only in cases in which fewer than all the claims or fewer than
all the parties are disposed of in the entry that the phrase ‘no just reason for delay’
has meaning.” While it contained some internal inconsistency as far as the total
amount of damages, one could search the Partial Agreed Judgment in vain for any
determination of the amount of collection costs, including attorney fees, sought by
the original complaint. But it did resolve both counts in the complaint, so what
remained?
{¶20} WBCMT answers by pointing to Chatfield and Woods Sack Co., Inc. v.
Nusekabel, 1st Dist. Hamilton No. C-980315, 1999 WL 960782 (Oct. 22, 1999), for
the proposition that the number of formal counts of a complaint does not necessarily
equate to the number of claims subject to disposition when considering finality for
purposes of appeal. In Chatfield, the underlying complaint brought counts for a
money judgment under a promissory note and for foreclosure on the mortgage. Id.
at *2. Given the context of the complaint as a whole, however, this court concluded
that the complaint set forth two additional claims for legal fees and protection costs.
Id. It found that, given the presence of Civ.R. 54(B) language, “as to the money
damages and foreclosure claims, the entry from which this appeal was taken [did]
contain a final appealable order.” Id. at *3. But as to protection costs and legal fees,
“the entry [was] not a ‘final order.’ ” Id.
{¶21} The Thompson Defendants say not so fast, endeavoring to limit the
applicability of Chatfield by noting that it held that the foreclosure judgment aspect
OHIO FIRST DISTRICT COURT OF APPEALS
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of the order remained final. But we do not find that distinction helpful to their
position. Where the question is whether the trial court retained jurisdiction over the
case, Chatfield suggests an affirmative answer. The fact that the court found another
aspect of the judgment final for purposes of appeal does not compel the trial court’s
loss of jurisdiction over nonfinal issues. We thus find that Chatfield supports the
conclusion that the trial court retained jurisdiction over the case.3
{¶22} The trial court’s opinion did not address Chatfield and instead
primarily relied on CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio
1984, 11 N.E.3d 1140, in finding that the Partial Agreed Judgment constituted a final
order. Roznowski held: “[A] judgment decree in foreclosure that includes as part of
the recoverable damages amounts advanced by the mortgagee for inspections,
appraisals, property protection, and maintenance but does not include specific
itemization of those amounts in the judgment is a final, appealable order pursuant to
R.C. 2505.02(B)(1).” Id. at ¶ 19. The court elaborated: “Liability is fully and finally
established when the court issues the foreclosure decree and all that remains is
mathematics, with the court plugging in final amounts due after the property has
been sold at a sheriff's sale.” (Emphasis added.) Id. at ¶ 25. See Farmers State
Bank v. Sponaugle, Slip Opinion No. 2019-Ohio-2518, ¶ 29-30 (“Sponaugle II”)
(holding that the outstanding calculations of a tax lien and certificate of judgment
lien did not prevent a final judgment; as both amounts were subject to routine,
formulaic determination, all that remained was the “ministerial task of calculating
the final amount due after sale of the property.”). This characterization is instructive
for our purposes—as the determination of attorney fees goes well beyond the rote 3 The dissent dismisses Chatfield as irrelevant, highlighting language from WBCMT’s filings below as ostensibly conceding the finality of the Partial Agreed Judgment. But none of the language quoted includes the word “final”—for purposes of jurisdiction or otherwise. And even if it had, a party cannot render a judgment final by declaration—it remains incumbent upon us to assess finality.
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application of mathematics or ministerial calculations. See Miller, 113 Ohio St.3d
474, 2007-Ohio-2457, 866 N.E.2d 1059, at ¶ 7 (orders that defer damages or leave
open a noneasily-computed/nonministerial cost are generally not final under R.C.
2505.02). Another way of saying this is just because an order might be final for
purposes of appellate review does not mean that it necessarily bars the trial court
from conducting further proceedings—real work may be left to be done.
{¶23} Perhaps anticipating this comeback, the Thompson Defendants are
adamant that, if the Partial Agreed Judgment was not final, then WBCMT’s
subsequent execution upon it was not appropriate, featuring Marion Prod. Credit
Assn. v. Cochran, 40 Ohio St.3d 265, 533 N.E.2d 325 (1988), in this regard. But that
case concerned the propriety of foreclosure and sale where the mortgagees’
counterclaim remained outstanding: “It is reasonably well-settled in Ohio that a
court which has before it both a claim and a counterclaim cannot enter a final
judgment in favor of either party until both claims have been determined.” Id. at
270. That is not the case here—indeed, we consider a negotiated and agreed
judgment without a counterclaim. We are not persuaded that Marion controls given
the facts at hand.
{¶24} Moreover, in the Second District’s opinion in Farmers State Bank v.
Sponaugle, 2017-Ohio-4322, 92 N.E.3d 355 (2d Dist.) (“Sponaugle I”), modified on
reconsideration, 2d Dist. Darke No. 2016-CA-4, 2017-Ohio-7744, cause dismissed,
152 Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876, appeal allowed in part, 152
Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 878, rev’d on other grounds, Slip
Opinion No. 2019-Ohio-2518, cited favorably by the Thompson Defendants for the
proposition that execution on nonfinal judgments is improper, the court made a
point that underscores the insignificance of any error in the sale to this appeal. It
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observed that allowing execution pursuant to a nonfinal order may constitute error,
but “[a]lthough it may be error for a trial court to execute on a non-final order, in
neither Roach [v. Roach, 164 Ohio St. 587, 132 N.E.2d 742 (1956)] nor Marion did
the Ohio Supreme Court hold that a trial court lacks jurisdiction to do so. Not all
error is jurisdictional * * *.” (Citation omitted.) Sponaugle I at fn. 2. Compare
Mulby v. Poptic, 8th Dist. Cuyahoga No. 98324, 2012-Ohio-5731, ¶ 15 (“Whether an
order is appealable merely relates to this court’s jurisdiction to review it at that time;
the fact that the order was not appealable does not render it a nullity.”); State ex rel.
Zein v. Calabrese, 2017-Ohio-8325, 99 N.E.3d 900, ¶ 15 (8th Dist.) (following
Mulby). No one has challenged the sale of the property in this appeal. Even if the
execution accomplished here was improper, we cannot see how it would create an
error of jurisdictional dimension. Compare Falls Sav. Bank, F.S.B. v. Cadwell, 9th
Dist. Summit No. 14644, 1991 WL 11372, *3 (Jan. 31, 1991) (“A ‘final judgment’
against all parties or a judgment employing Civ.R. 54(B) language is not a
prerequisite to these [execution and sale] procedures.”). Rather, this strikes us as
more of a “procedural irregularity” (described below in subsection C) that would
trigger the obligation of some party to cry foul.
{¶25} Relatedly, we point out that the Supreme Court nearly (but did not)
decide a similar issue recently—the appellant therein presenting as an issue of law in
the latest iteration of the Sponaugle case, Songaugle II, Slip Opinion No. 2019-Ohio
2518, at ¶ 17: “A sheriff’s sale can be confirmed even if the underlying foreclosure
decree was a non-final order.” The court decided the case on different grounds
(concluding the underlying foreclosure had been, contrary to what the Second
District had determined, a final order), leaving the question open for another day.
The concurring opinion, however, analyzed this point and concluded: “[N]othing in
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R.C. 2329.31 requires an appealable foreclosure order as a prerequisite to confirming
the sale.” Id. at ¶ 49 (DeWine, J., concurring in judgment only). Justice DeWine
favorably cites Mulby and Falls Sav. and distinguishes Marion: “There, we
concluded that the trial court erred by allowing the foreclosure and sale of mortgaged
property prior to the disposition of all pending counterclaims. * * * . [I]n this case,
there were no counterclaims pending when the trial court ordered the sale of the
property.” Id. at ¶ 53. While that is only a concurring opinion, it represents the most
recent pronouncement from the Ohio Supreme Court and aligns with our analysis
above.
{¶26} Unpersuaded that the Partial Agreed Judgment constituted a final
order that would terminate further jurisdiction over the case, we shift to
consideration of the Confirmation Order to see whether that changes the
jurisdictional calculus. As the Supreme Court recently explained, “[t]he confirmation
of sale is an ancillary proceeding limited to whether the sheriff’s sale conformed to
law.” Sponaugle II at ¶ 19. The trial court and the Thompson Defendants point to
the Confirmation Order as a separate and independent basis that divested the court
of jurisdiction. But their arguments miss the forest for the trees. Although we need
not expound upon the nuances of confirmation orders and finality, suffice it to say
that not every sale confirmation order is necessarily final for purposes of appeal. See
JP Morgan Chase Bank v. Dewine, 3d Dist. Logan No. 8-08-20, 2009-Ohio-87
(dismissing appeal of confirmation of sheriff sale where such order was not a final
order); Brake v. Keegan, 6th Dist. Sandusky No. S-17-034, 2018-Ohio-3979, ¶ 9
(“[W]here claims are still pending in the trial court after the order confirming the
sale, the order must have a Civ.R. 54(B) certification to be appealed.”); Whipps v.
Ryan, 10th Dist. Franklin No. 12AP-509, 2013-Ohio-4334, ¶ 32 (“Although the
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confirmation orders and order terminating the receiver were final orders, because a
claim remains pending in the action, and the final orders do not contain Civ.R. 54(B)
language, they are not final, appealable orders.”). This makes intuitive sense; taking
the argument—that confirmation orders are always final in the sense that they divest
a trial court of further jurisdiction—to its logical extreme yields an illogical result:
foreclosure cases could not practically contain nonforeclosure claims, lest the trial
court automatically forfeit its jurisdiction upon the sale.
{¶27} While a confirmation order certainly could be final (depending on the
circumstances), the specific Confirmation Order here did not wrap up any of the
loose ends left open by the Partial Agreed Judgment (nor did it contain Civ.R. 54(B)
language). In other words, given the premise that the Partial Agreed Judgment did
not divest the court of further jurisdiction, the Confirmation Order does nothing to
alter that analysis because it fails to address the unresolved issues (such as attorney’s
fees).
{¶28} Buttressing our analysis that neither the Partial Agreed Judgment nor
the Confirmation Order were sufficiently final to terminate further jurisdiction over
the case is our prior Judgment Entry in this case, which we view as more relevant
than the Thompson Defendants or the trial court appreciated. In that entry, we
dismissed the Thompson Defendants’ appeal of the grant of summary judgment to
WBCMT on its amended complaint—explaining that the appealed entry did not
determine punitive damages, amounts payable under the loan documents, or
attorneys fees. Therefore, and consistent with cases like Roznowski, 139 Ohio St.3d
299, 2014-Ohio-1984, 11 N.E.3d 1140, and Miller, 113 Ohio St.3d 474, 2007-Ohio
2457, 866 N.E.2d 1059, discussed above, we held: “Because the trial court’s order did
not determine the action and prevent a judgment, it is not a final order.” While we
OHIO FIRST DISTRICT COURT OF APPEALS
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did not there consider the Partial Agreed Judgment or the Confirmation Order, the
legal issue appears to us identical and not affected by differences in the case’s
posture at the time of the respective orders. Given that the summary-judgment
order did not generate a final, appealable order, a fortiori, it did not strip the trial
court of jurisdiction. The same principles ring true when applied to the Partial
Agreed Judgment and the Confirmation Order.
{¶29} Accordingly, for the reasons discussed above, we hold that the
amended complaint was proper notwithstanding the Partial Agreed Judgment,
Confirmation Order, and the execution thereon; the trial court properly continued to
exercise jurisdiction over the case. We therefore sustain WBCMT’s second, third,
and fourth assignments of error. In any event, as we shall see below, any procedural
irregularities or errors above relating to jurisdiction over the case ultimately fall
victim to waiver.
C.
{¶30} Even if our journey through Civ.R. 15 and the trial court’s continuing
jurisdiction over the case above did not convince us that the trial court retained
jurisdiction over the amended complaint, we are confident that any defect in the
court’s exercise of jurisdiction over the case has long since been waived and was not
subject to sua sponte resurrection consistent with WBCMT’s first assignment of
error. In three years of postamendment litigation, the Thompson Defendants never
broached any challenge to the trial court’s jurisdiction over the case. The perceived
issue did not arise until the trial court clued them in to it in 2017.
{¶31} At oral argument, however, the Thompson Defendants maintained, for
the first time, that WBCMT waived its waiver argument. Waiver constituted
WBCMT’s lead argument on appeal, and the Thompson Defendants never countered
OHIO FIRST DISTRICT COURT OF APPEALS
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that the argument had been waived in their brief. Ordinarily, we will not consider
arguments raised for the first time at oral argument, particularly when the party had
ample opportunity to explore such issues in its brief. Andrekyo v. Cincinnati, 153
Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20 (1st Dist.) (“An issue
raised during oral argument for the first time and not assigned as error in an
appellate brief is waived.”); App.R. 16(B) (applying App.R. 16(A) appellant brief
requirements to appellee briefs). We have no occasion to break from that principle
today. Nevertheless, upon a review of the record below, keeping in mind the
somewhat unusual procedural posture (with the trial court directing specific
questions for the parties to answer), we are comfortable that WBCMT raised this
point by explaining that the Thompson Defendants had sought dismissal based on
personal jurisdiction but no other jurisdictional grounds, and that they failed to
claim prejudice by proceeding before the trial court (i.e., submitting to the trial
court’s jurisdiction over the case).
{¶32} Having concluded that WBCMT did not waive its waiver argument, we
turn to it now. It requires a study of the nature and characteristics of jurisdiction
over the case—as the briefing, history below, and extant case law all suggest that this
subject is prone to confusion and conflation. We hope—notwithstanding the
convoluted path winding its way to this appeal—to elucidate this issue.
{¶33} As previewed at the outset of this opinion, “jurisdiction” may connote
different things depending on the context. In Pratts, 102 Ohio St.3d 81, 2004-Ohio
1980, 806 N.E.2d 992, the Supreme Court of Ohio drew the distinction, in particular,
between subject-matter jurisdiction and jurisdiction over the case:
“Jurisdiction” means “the courts’ statutory or constitutional power to
adjudicate the case.” (Emphasis omitted.) Steel Co. v. Citizens for a
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Better Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140
L.Ed.2d 210 * * *. The term encompasses jurisdiction over the subject
matter and over the person. * * * Because subject-matter jurisdiction
goes to the power of the court to adjudicate the merits of a case, it can
never be waived and may be challenged at any time. * * * It is a
“condition precedent to the court’s ability to hear the case. If a court
acts without jurisdiction, then any proclamation by that court is void.”
[State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d
1002 (1998).]
* * *
The term “jurisdiction” is also used when referring to a court's exercise
of its jurisdiction over a particular case. * * * “ ‘The third category of
jurisdiction [i.e., jurisdiction over the particular case] encompasses the
trial court’s authority to determine a specific case within that class of
cases that is within its subject matter jurisdiction. It is only when the
trial court lacks subject matter jurisdiction that its judgment is void;
lack of jurisdiction over the particular case merely renders the
judgment voidable.’ ” [State v. Parker, 95 Ohio St.3d 524, 2002-Ohio
2833, 769 N.E.2d 846, ¶ 22 (Cook, J., dissenting.)], quoting [State v.
Swiger, 125 Ohio App.3d 456, 462, 708 N.E.2d 1033 (9th Dist.1998)].
“Once a tribunal has jurisdiction over both the subject matter of an
action and the parties to it, ‘* * * the right to hear and determine is
perfect; and the decision of every question thereafter arising is but the
exercise of the jurisdiction thus conferred * * *.’ ” State ex rel. Pizza v.
OHIO FIRST DISTRICT COURT OF APPEALS
19

Rayford (1992), 62 Ohio St.3d 382, 384, 582 N.E.2d 992, quoting
Sheldon's Lessee v. Newton (1854), 3 Ohio St. 494, 499.

(Citations omitted.) Pratts at ¶ 11-12. Succinctly, the Pratts court concluded:
“Subject-matter jurisdiction is a court’s power over a type of case. * * * [O]nce
conferred, it remains.” Id. at ¶ 34.
{¶34} Subsequent Supreme Court cases have returned to this analysis and
built upon it. In In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, the
court determined whether the improper referral of an evidentiary panel to a visiting
judge rendered a judgment void. The court characterized this improper referral as a
“procedural irregularity” that impacts jurisdiction over the case rather than subject
matter jurisdiction. Id. at ¶ 15. Consistent with the distinction between the two
doctrines, it held that failure “to preserve the error at the trial level * * * waive[s] all
but plain error.” Id. at ¶ 13. The court even went so far as to enunciate a “duty of a
complaining party seeking review [of jurisdiction over the case] to object in the trial
court and timely preserve the error for appeal * * *.” Id. at ¶ 15.
{¶35} In Barnes v. Univ. Hosps. of Cleveland, 119 Ohio St.3d 173, 2008
Ohio-3344, 893 N.E.2d 142, the court considered whether a retired, appointed judge
had authority to hear the case in issue. Like in J.J., the Supreme Court rejected the
premise that the appellant challenged the court’s subject-matter jurisdiction;
therefore, it analyzed the exercise of jurisdiction over the case and concluded that the
appellant “had a duty to object in the trial court * * *. Since [appellant] did not
object, the error, if any, has been waived.” Id. at ¶ 27.
{¶36} State ex rel. Bell v. Pfeiffer, 10th Dist. Franklin No. 10AP-490, 2011
Ohio-2539, aff’d, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, concerned the
propriety of a transfer of a case from one judge to another. Again, the court
OHIO FIRST DISTRICT COURT OF APPEALS
20

characterized the alleged error as a “procedural irregularity” and not an error of
subject-matter jurisdiction. Id. at ¶ 18-19. Of particular note, the opinion remarked
that “consideration of the procedural posture of the Franklin County action is
relevant to determine when, if ever, the realtor objected to [the alleged improper
jurisdiction over the case].” Id. at ¶ 18. See Cosgrove v. Omni Manor, 2016-Ohio
8481, 78 N.E.3d 223, ¶ 53 (7th Dist.) (employer argued that court did not have
jurisdiction to consider a particular medical condition not raised before the
administrative system; court held employer had forfeited nonsubject-matter
jurisdictional argument by not raising). In affirming the Tenth District’s decision,
the Supreme Court specifically distinguished the procedural irregularities asserted in
that case from a subject-matter-jurisdictional problem. State ex rel. Bell v. Pfeiffer,
131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 19-20. These cases help flesh
out the distinction between jurisdiction over the case and subject-matter jurisdiction,
and determine that objections to the former must be timely raised to be preserved.
Our own court has recently touched on this issue in a different context—highlighting
the distinction between the power to hear a custody case (subject-matter
jurisdiction) and the exercise of such power where the judgments of another state’s
courts and applicable federal law affected the rights of the particular parties
(jurisdiction over the case). In re N.D., 1st Dist. Hamilton No. C-180441, 2019-Ohio
3635, ¶ 16-17.
{¶37} The term “procedural irregularity,” employed by the authority above,
seems uniquely appropriate to the situation we encounter. Indeed, the Thompson
Defendants even described the situation below in their appellate brief as a
“procedural irregularity.” Supreme Court authority on procedural irregularities
affecting jurisdiction over the case confirms that not only does such an irregularly
OHIO FIRST DISTRICT COURT OF APPEALS
21

result in entries that are voidable as opposed to void; the irregularity is also waivable.
See J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, at ¶ 17 (“A party may
timely object to [the procedural irregularity], but failure to timely enter such an
objection waives the procedural error.”). Perhaps cognizant of their waiver
problems, the Thompson Defendants insist that jurisdiction over the case is of the
same ilk as subject-matter jurisdiction, and thus its defects can never be waived. But
this proposition cannot be squared with the Supreme Court’s repeated clarifications
of the distinction between the two concepts. J.J. and Barnes both directly refuted
that principle, and the Thompson Defendants prove unable to reconcile their
argument with those cases. Consistent with that authority, we hold that jurisdiction
over the case can be waived if not timely raised by the parties.
{¶38} In addition to being mandated by the Supreme Court, this rule makes
practical sense. Otherwise, if a party harbored doubts about the court’s jurisdiction
over the case, it could lie in wait—and see how the litigation unfolds before making a
call on whether to challenge jurisdiction. If it prevailed in the case, it could then tuck
the jurisdictional objection in its pocket and congratulate itself for the wisdom of
proceeding in court. But if it lost, it could effectively try to secure a mulligan and
litigate the entire case over again in the hopes of obtaining a more favorable
outcome. Needless to say, we cannot countenance such a result.
{¶39} We need not decide today the precise contours of what it means to
“timely” raise the defense of lack of jurisdiction over the case (but in most cases, we
would expect that to be an affirmative defense in an answer and/or the subject of a
motion to dismiss, or raised at the point in the proceedings at which the “procedural
irregularity” arose), because the Thompson Defendants do not claim that they
preserved the point. See J.J. at ¶ 15 (“These cases establish the duty of a complaining
OHIO FIRST DISTRICT COURT OF APPEALS
22

party seeking review to object in the trial court and timely preserve the error for
appeal * * *.”). They never raised this at any point prior to their initial appeal, and
thus they have waived the defense. See Paulus v. Beck Energy Corp., 2017-Ohio
5716, 94 N.E.3d 73, ¶ 29 (7th Dist.) (“This court has ruled a lack of jurisdiction over a
particular case (as opposed to subject matter jurisdiction) cannot be raised on the
appeal if the defendant did not proceed on such a defense before or during trial after
raising it in the answer.”); Donovan v. Templeton, 2d Dist. Montgomery No. 16204,
1997 WL 337657, *3 (May 19, 1997) (“The irregularity which Vanessa Lynn
Templeton now claims * * * could have been raised in a motion to dismiss or in a
responsive pleading filed in that divorce proceeding. Civ.R. 12(B)(1). Vanessa Lynn
Templeton failed to do so. Therefore, she is deemed to have waived the
irregularity.”); Cosgrove, 2016-Ohio-8481, 78 N.E.3d 223, at ¶ 45-52 (holding that a
jurisdiction-over-the-case argument, even where raised in the answer, was waived
when it was not otherwise prosecuted).
{¶40} The only loose end remaining, therefore, is whether—notwithstanding
the Thompson Defendants’ waiver—the trial court could sua sponte raise the point
three years after the “procedural irregularity” occurred. Looking at Ohio case law on
personal jurisdiction as a guide, we answer that question in the negative.
{¶41} Jurisdiction over the case is similar to personal jurisdiction because
defects in either type of jurisdiction result in voidable—not void—judgments and are
waivable. And it is well-settled that personal jurisdiction should not be raised sua
sponte when the parties have waived the point. See, e.g., Brislin v. Albert, 9th Dist.
Summit No. 27052, 2014-Ohio-3406 (reversing trial court’s sua sponte dismissal for
lack of personal jurisdiction because the defendant waived the objection); Snyder
Computer Sys., Inc. v. Stives, 175 Ohio App.3d 653, 2008-Ohio-1192, 888 N.E.2d
OHIO FIRST DISTRICT COURT OF APPEALS
23

1117, ¶ 16 (7th Dist.) (“[O]nce Stives waived personal jurisdiction, it was procedurally
incorrect for the trial court to raise it on its own motion.”); D’Amore v. Matthews,
193 Ohio App.3d 575, 2011-Ohio-2853, 952 N.E.2d 1212, ¶ 34 (12th Dist.) (“[O]nce
the lack of personal jurisdiction was waived, the trial court could not sua sponte
address the issue of personal jurisdiction in its judgment entry.”); Weiss, Inc. v.
Pascal, 8th Dist. Cuyahoga No. 82565, 2003-Ohio-5824. The reason for this
restriction is consistent with its character: “While Rule 12(h)(3) preserves and
recognizes the court’s time-honored obligation, even sua sponte, to dismiss any
action over which it has no subject-matter jurisdiction, the rule does not accord
similar authority where the court’s personal jurisdiction over a party has not been
challenged.” Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir.1978)
(Ohio’s Civ.R. 12(H)(3) contains a parallel directive relative to subject-matter
jurisdiction.).
{¶42} We see no reason to fashion a different result here. While we did not
locate controlling authority on this point relative to jurisdiction over the case, the
characteristics that it shares with personal jurisdiction satisfy us that it is the duty of
the affected party to raise it, and it should not be raised by the court sua sponte after
waiver by the parties. It is beyond question that a court has inherent authority—even
responsibility—to raise subject-matter jurisdiction sua sponte. But subject-matter
jurisdiction is in a class of its own; as noted in Pratts, it “is a court’s power over a
type of case.” (Emphasis added.) Pratts, 102 Ohio St.3d 81, 2004-Ohio-1980, 806
N.E.2d 992, at ¶ 34. The trial court unquestionably had the power to hear the type of
case presented by the amended complaint; the issue, instead, relates instead to an
alleged “improp[er] exercise[]” of subject-matter jurisdiction “once conferred” and
the procedural mechanism by which it arrived at bar. Id. at ¶ 10.
OHIO FIRST DISTRICT COURT OF APPEALS
24

{¶43} Although no Ohio appellate court has specifically addressed this point,
our colleagues across the river at the Kentucky Court of Appeals—applying similar
jurisdictional principles as recognized in Ohio—rejected an attempt to sua sponte
raise the issue of a lack of jurisdiction over the case. See Basin Energy Co. v.
Howard, 447 S.W.3d 179 (Ky.App.2014). That court held as follows on this point:
“[W]here the parties have failed to timely raise particular-case jurisdictional
challenges, a reviewing administrative body or court must refrain from interjecting
itself into the litigation by belatedly asserting those issues sua sponte. Harrison v.
Leach, 323 S.W.3d 702, 703 (Ky.2010).” Id. at 187. We find this authority
persuasive and consistent with the Ohio cases on personal jurisdiction cited above.
{¶44} The reasons for requiring the timely raising of a jurisdictional defense
like this are manifold, and this case illustrates the point. We obligate parties to raise
these defenses to avoid the untold wastes concomitant with eleventh-hour
jurisdictional epiphanies. See Detroit, Toledo & Ironton Ry. Co. v. Maxine’s Potato
Service, Inc., 13 Ohio App.3d 157, 161, 468 N.E.2d 361 (2d Dist.1983) (holding lack
of-personal-jurisdiction defense was waived “[i]n accordance with the policy of
encouraging diligence in challenging personal jurisdiction”); T.S. Expediting Servs.,
Inc. v. Mexican Industries, Inc., 6th Dist. Wood No. WD-01-060, 2002-Ohio-2268, ¶
24 (favorably citing Detroit, Toledo & Ironton Ry. Co.). Here, the trial court’s
decision would have erased three years of litigation, which could have been avoided if
the Thompson Defendants had timely sounded the jurisdictional alarm.
{¶45} We also point out that this rule does not operate to diminish the
authority of trial courts to police their proceedings. The trial court here could have
rejected the effort to amend the complaint if it found, in its discretion, the belated
amendment improper. In other words, courts can and should take appropriate
OHIO FIRST DISTRICT COURT OF APPEALS
25

measures to avoid “procedural irregularities.” But when they transpire, it is
incumbent upon the parties to timely raise the issue to avoid forfeiture. To hold
otherwise would risk a tremendous waste of judicial and party resources, as well as
open the doors for collateral attacks down the road once someone realizes that they
hold the thread to unravel an adverse result.

Outcome: For the reasons explained above, we sustain each of WBCMT’s
assignments of error, reverse the decision of the trial court, and remand for further proceedings consistent with this opinion.


Judgment reversed and cause remanded.

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