There was a new decision out of the Ohio 8th Court of Appeals today which is a bit off the topic of Mr. Roper's thread above, but which is somewhat related. The decision was in the case Wells Fargo Bank, N.A. v. Allen:
Wells Fargo Bank, N.A. v. Allen, 2012-Ohio-175 (Ohio 8th Dist. 2012)
This decision is similar to the cases discussed in Mr. Roper's thread above in that the appellant's appeal was dismissed by the appellate court for want of a final appealable order. The case differs in that this dismissal is based upon failure to dispose of and ascertain all liens rather than due to unresolved counterclaims.
This decision ought to be a cautionary lesson for defendants anyway.
Very often, when a Judge makes a decision, he invites the prevailing party to draft a judgment to be circulated for approval as to form by other parties. Rather than writing his own order or judgment, the judge then merely signs the form judgment submitted.
This case should be a reminder that when a plaintiff prevails either in summary judgment or at trial that the defendant should take some care to study any proposed judgment to assure that it constitutes a final appealable judgment.
If it does not contain language disposing of all claims and all parties, then the defendant ought to be considering three avenues.
First, if the draft judgment has been presented to the defendant as to form and this language is omitted, the defendant ought to suggest inclusion of this language showing finality.
Second, if the court has already signed what purports to be a final judgment lacking the requisite language, then the defendant ought to carefully study the Rules and submit a timely motion to correct or alter the judgment.
Third, while it is probably a good idea in an abundance of caution to go ahead and file a notice of appeal (if the order turns out to be final, if the defendant FAILS TO FILE the notice of appeal, then the appellate court loses jurisdiction and the judgment becomes final), to any extent that a defendant is in doubt as to the finality of the judgment, he ought to seek an additional judicial order disposing of the remaining issues.
For example, in the case of unresolved counterclaims, the defendant would either seek a determination of such counterclaims of voluntarily dismiss these counterclaims. In the case of unresolved matters relating to other defendants or prior liens, the defendant would seek a judicial determination of these issues.
This can all be counter-intuitive and may even confuse many mediocre lawyers!
Since a defendant disagrees with the outcome of the case and the judge's decision, there is a tendency for the defendant not to want to help make the judgment better. But if the judgment is not final, it is not usually appealable. So even if one disagrees with the court's decision, it is critical to assure that the language of the judgment contain some language reflecting finality.
Some additional implications may not be obvious, but follow from this decision. If a trial court grants a non-final judgment, which includes an order of sale, while not disposing of ALL the issues, a sheriff's sale might go forward and the defendant might even be dispossessed in an ejectment action.
The order of sale might even be confirmed. The defendant is deprived of ownership and even deprived of possession, without an avenue of appeal UNTIL the final issues are resolved. The final issues in this case would be a determination of lien priority, etc.
This could be particularly treacherous for a pro se litigant. Sitting on one's hands would be the worst choice. By filing a timely notice of appeal and working proactively to assure the entry of a real final order, a defendant can avoid this appellate purgatory!