[Cite as Fifth Third Mtge., Co. v. Rankin,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

FIFTH THIRD MORTGAGE COMPANY, : Case No. 11CA18

Plaintiff-Appellee, :

v. : DECISION AND JOHN RANKIN, ET AL., : JUDGMENT ENTRY

Defendants-Appellants. : RELEASED 05/30/2012

APPEARANCES:

John Rankin, Williamsport, Ohio, pro se appellant.

Melissa N. Meinhart, Thomas G. Widman, and Andrew C. Clark, Manley Deas Kochalski LLC, Columbus, Ohio, for appellee. _____ FRENCH, J.

{¶1} Plaintiff-appellee, Fifth Third Mortgage Company ("Fifth Third"), moves for

dismissal of this appeal, filed by defendant-appellant, John Rankin ("Rankin"), for lack of

jurisdiction. For the following reasons, we grant Fifth Third's motion.

{¶2} Fifth Third initiated this action by filing a complaint for foreclosure against

Rankin and various other defendants in the Pickaway County Court of Common Pleas.

Fifth Third subsequently moved for summary judgment, and the trial court issued a

Judgment Entry and Decree of Foreclosure on December 6, 2010. Rankin immediately

appealed. See Fifth Third Mtge. Co. v. Rankin, 4th Dist. No. 10CA45,

("Rankin I"). Rankin also filed a motion to stay the judgment, which the trial court

denied after Rankin failed to file the required supersedeas bond. Pickaway App. No. 11CA18 2

{¶3} While Rankin I was pending in this court, Fifth Third requested that the

trial court issue an order for sheriff's sale. Rankin was the successful bidder at the

sheriff's sale, held March 1, 2011, and he submitted a deposit to the Pickaway County

Sheriff's office. The same day, Rankin filed a motion to vacate the sheriff's sale for

alleged non-compliance with the notice requirements in R.C. 2329.26(A)(1). On April 8,

2011, the trial court entered a Confirmation Entry of Sale and Distribution of Proceeds

("Confirmation Entry"), and, on April 14, 2011, the trial court denied Rankin's motion to

vacate the sheriff's sale. Rankin filed a Notice of Appeal from the Confirmation Entry.

See Fifth Third Mtge. Co. v. Rankin, 4th Dist. No. 11CA8 ("Rankin II").

{¶4} On June 3, 2011, in Rankin I, this court affirmed the entry of summary

judgment and decree of foreclosure in favor of Fifth Third.

{¶5} On August 5, 2011, Fifth Third moved the trial court for a finding of

contempt, to vacate the sheriff's sale and Confirmation Entry, for forfeiture of Rankin's

deposit, and to forbid Rankin from bidding at a future sale of the property. Fifth Third

contemporaneously moved this court, in Rankin II, to remand jurisdiction to the trial

court so the trial court could rule on Fifth Third's motion. Fifth Third brought its motion in

the trial court pursuant to R.C. 2329.30, based on Rankin's failure to remit the balance

owed on the purchase price. R.C. 2329.30 states as follows:

The court from which an execution or order of sale issues, upon notice and motion of the officer who makes the sale or of an interested party, may punish any purchaser of lands and tenements who fails to pay within thirty days of the confirmation of the sale the balance due on the purchase price of the lands and tenements by forfeiting the sale of the lands and tenements and returning any deposit paid in connection with the sale of the lands and tenements, by forfeiting any deposit paid in connection with the sale of the Pickaway App. No. 11CA18 3

lands and tenements, as for contempt, or in any other manner the court considers appropriate.

The trial court granted Fifth Third's August 5, 2011 motion the same day, prior to a

ruling on the motion to remand, which this court subsequently denied.

{¶6} In its August 5, 2011 order (the "order"), the trial court found Rankin in

contempt of court, vacated the sheriff's sale and Confirmation Entry, and ordered a

forfeiture of Rankin's $14,204 deposit. Although the caption of the order also includes

"FORBIDDING PURCHASER FROM BIDDING AT FURTHER SALES," the text of the

order contains nothing to that effect.

{¶7} Rankin filed a Notice of Appeal from the trial court's order, resulting in the

instant appeal ("Rankin III"). Rankin also filed an original action for a writ of prohibition

to bar the trial court from executing its order, arguing that the trial court lacked

jurisdiction to issue the order. See Rankin v. Common Pleas Court Pickaway Cty.,

Ohio, 4th Dist. No. 11CA19. Rankin II also remains pending in this court.

{¶8} Fifth Third now moves this court to dismiss the instant appeal. Fifth Third

asserts that the trial court's order is void and unenforceable because the trial court

lacked jurisdiction to act while Rankin II was pending. Fifth Third also argues that the

order is not final and appealable and that Rankin lacks standing to bring this appeal.

Rankin opposes each of Fifth Third's arguments in support of dismissal, although he

concedes that the trial court acted without jurisdiction in issuing its order.

{¶9} Because it is dispositive, we first address Fifth Third's argument that the

order is void and unenforceable because the trial court lacked jurisdiction to issue the

order and vacate the Confirmation Entry. Where a trial court issues an order without

jurisdiction to do so, the court of appeals may properly vacate the order and dismiss an Pickaway App. No. 11CA18 4

appeal from that order. See Ormandy v. Dudzinski, 9th Dist. No. 09CA009713, 2010-

Ohio-2017 (dismissing an appeal from a void order, which the trial court entered without

jurisdiction while an appeal was pending); Chuparkoff v. Kapron, 9th Dist. No. 24234,

(dismissing an appeal from a void order, filed after the plaintiff filed a

notice of voluntary dismissal); E.-W. Constr. Co., Inc. v. Ohio Dept. of Natural

Resources, 10th Dist. No. 99AP-480 (Dec. 30, 1999); Eggert v. Puleo, 8th Dist. No.

58381 (Sept. 27, 1990) (dismissing an appeal where the trial court lacked jurisdiction,

due to the absence of a necessary party).

{¶10} Generally, a trial court loses jurisdiction to act in a case after an appeal

has been taken. State ex rel. Special Prosecutors v. Judges,

(1978). Nevertheless, a trial court "retain[s] jurisdiction over issues not inconsistent with

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

[including] collateral issues like contempt, appointment of a receiver and injunction."

When an appeal is filed, the trial court loses jurisdiction to consider a motion to vacate,

pursuant to Civ.R. 60(B), unless the appellate court remands the case and grants the

trial court jurisdiction to decide the motion. State ex rel. Rogers v. Marshall, 4th Dist.

No. 05CA3004,

, citing Howard v. Catholic Social Servs. of

Cuyahoga Cty., Inc.,

(1994).

{¶11} The parties do not dispute that the trial court retained jurisdiction to order

a sheriff's sale despite Rankin's appeal of the judgment entry and decree of foreclosure

in Rankin I. Once a trial court files a final judgment or order, a party has a legal right to

initiate proceedings to aid in the execution of that judgment, even after a notice of

appeal is filed, unless a valid stay order has been issued and a supersedeas bond has Pickaway App. No. 11CA18 5

been posted. Triple F Invests., Inc. v. Pacific Fin. Servs., Inc., 11th Dist. No. 2000-P-

0090 (June 2, 2001). In a foreclosure action, the appraisal of the property, sale, and

confirmation are special proceedings to enforce the order of sale and decree of

foreclosure.

"Once an order of sale and decree of foreclosure is filed, a creditor

may file a praecipe for an order directing the sheriff to sell the property. This second

phase of the proceedings is viewed as a separate and distinct action seeking

enforcement of an order of sale and decree of foreclosure."

Because Rankin did not

successfully obtain a stay from the trial court's judgment entry and decree of

foreclosure, the trial court retained jurisdiction to enforce its judgment by ordering a

sheriff's sale and by subsequently confirming the sale.

{¶12} An order confirming a sheriff's sale is a second, separate, final, appealable

order. Sky Bank v. Mamone,

,

(8th Dist.),

citing Smith v. Najjar,

,

(5th Dist.). An order of

confirmation is dispositive as to the propriety of the sale and the confirmation

procedures unless the trial court properly vacates the confirmation pursuant to Civ.R.

60(B).

, citing Triple F Invests. Rankin timely appealed the

Confirmation Entry and contends, in Rankin II, that the trial court erred by confirming the

sheriff's sale because the notice requirements of R.C. 2329.26(A)(1) were not satisfied.

{¶13} Despite his opposition to Fifth Third's motion to dismiss, Rankin agrees

that the trial court lacked jurisdiction to vacate the confirmation of sale. In fact, Rankin

premises his pending prohibition action on the trial court's "total lack of jurisdiction" to

vacate the confirmation of sale. The trial court would have lacked jurisdiction, upon the

perfection of the appeal in Rankin II, to vacate its Confirmation Entry pursuant to Civ.R. Pickaway App. No. 11CA18 6

60(B) unless this court remanded the case for a decision. See

. Here,

the trial court vacated the Confirmation Entry in response to Fifth Third's motion for

contempt, but we conclude that distinction does not affect the trial court's lack of

jurisdiction to vacate an order from which an appeal is pending.

{¶14} Generally, in the absence of a stay pending appeal, a trial court retains

jurisdiction "over issues not inconsistent with that of the appellate court to review, affirm,

modify or reverse the appealed judgment," including collateral issues, like contempt.

. See also Mason v. Mason, 3d Dist. No. 14-98-36 (Mar. 31,

1999), citing Cardone v. Cardone, 9th Dist. No. 18349 (May 6, 1998) (trial court retained

jurisdiction to conduct contempt proceedings during the pendency of an appeal). The

trial court, however, did not merely find Rankin in contempt of court. Instead, as a

purported punishment for the contempt, the court ordered the vacation of the sheriff's

sale and the Confirmation Entry. Although a finding of contempt is not inconsistent with

this court's ability to review, affirm, modify or reverse the Confirmation Entry in Rankin II,

the vacation of that entry is inconsistent with the pending appeal. See Pisani v. Pisani,

8th Dist. No. 69795 (July 18, 1996) (holding that a notice of appeal deprived the trial

court of jurisdiction to vacate the order challenged on appeal); Ford Consumer Fin. Co.,

Inc. v. Johnson, 2d Dist. No. 20767,

(holding that, during the

pendency of an appeal from a confirmation of sale, the trial court lacked jurisdiction to

rule upon a motion to vacate the confirmation). Accordingly, we conclude that the trial

court lacked jurisdiction to vacate the Confirmation Entry as a result of the pending

appeal in Rankin II. Pickaway App. No. 11CA18 7

{¶15} An order issued without jurisdiction is a nullity; it is void and without legal

effect. State v. Hall, 4th Dist. No. 06CA17,

, citing Patton v.

Diemer,

, paragraph three of the syllabus. This court has no

jurisdiction over appeals from void orders. State v. Corder, 4th Dist. No. 10CA3, 2010-

Ohio-5652, ¶ 5, citing State ex rel. Carnail v. McCormick,

, 2010-

Ohio-2671, ¶ 36. Moreover, Ohio courts possess inherent authority to vacate a void

judgment. Hall at ¶ 11, citing Patton at paragraph four of the syllabus.

{¶16} In his memorandum in opposition to Fifth Third's motion to dismiss,

despite admitting that the trial court lacked jurisdiction to set aside the Confirmation

Entry, Rankin argues that the doctrine of invited error precludes Fifth Third from

asserting error in the trial court's vacation of the Confirmation Entry, which Fifth Third,

itself, requested. Under the invited-error doctrine, a party may not take advantage of an

error that the party invited or induced the trial court to make. State ex rel. Fowler v.

Smith,

(1994). The doctrine of invited error, however, does not

apply to a question of subject-matter jurisdiction, as subject-matter jurisdiction cannot

be waived and can, therefore, be raised at any time. Davis v. Wolfe,

(2001). Invited error is merely a branch of the waiver doctrine and cannot preclude

the argument that the trial court lacked subject-matter jurisdiction.

Accordingly, Fifth

Third may raise the trial court's lack of jurisdiction to vacate the Confirmation Entry

through its motion to dismiss.

{¶17} Because the trial court lacked jurisdiction to vacate the sheriff's sale and

its Confirmation Entry, the August 5, 2011 order is void and unenforceable. Therefore,

we grant Fifth Third's motion to dismiss this appeal. Moreover, pursuant to this court's Pickaway App. No. 11CA18 8

inherent authority to vacate void judgments, we vacate the trial court's August 5, 2011

order.

JUDGMENT VACATED, MOTION GRANTED; APPEAL DISMISSED. Pickaway App. No. 11CA18 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS VACATED, MOTION GRANTED and that the APPEAL IS DISMISSED. Appellants shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

* Brown, P.J. & Tyack, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________ Judith L. French, Judge *

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

* Susan D. Brown, P.J., Judith L. French, J., and G. Gary Tyack, J., of the Tenth Appellate District, sitting by assignment in the Fourth Appellate District.