[Cite as Art's Rental Equip., Inc. v. Bear Creek Constr., L.L.C., 2012-Ohio-5371.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

ART’S RENTAL EQUIPMENT, INC., et 

al., 

 Plaintiffs, 

 and 

BANK OF AMERICA, N.A., 

 Plaintiff-Appellee, 

 vs. 

BEAR CREEK CONSTRUCTION, LLC, 

et al., 

 Defendants, 

 and 

RIVERBEND COMMERCIAL TITLE 

AGENCY, L.P., 

 and 

PORT OF GREATER CINCINNATI 

DEVELOPMENT AUTHORITY, 

 Appellees, 

 and 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NOS. C-1105441

 C-110555 

 C-110558 

 C-110559 

 C-110564 

 C-110785 

 C-110792 

 C-110797 

 C-1107982

 C-110799 

 C-110800 

 C-110801 

 C-110808 

 C-1203093

 

TRIAL NOS. A-0902785 

 A-0903274 

 A-0903471 

 A-0904339 

 A-0904645 

 A-0904910 

 A-0905279 

 A-0905709 

 

 O P I N I O N.

 1

 Defendants-appellants Kraft Electrical Contracting, Inc., Hicon, Inc., Central Insulation Systems, Inc., LaForce, 

Inc., MBJ Consultants, Inc., The Mark Madison Company, Tepe Environmental Services, LTD, Universal Cleaning, 

LLC, d.b.a. Universal Cleaning, Security Fence Group, Inc., The Painting Contractor, LLC, Triumph Signs and 

Consulting, Inc., Spohn Associates, Inc., Kelley Bros. Roofing, Inc., and Jarvis Mechanical Constructors, Inc., 

dismissed their appeal in the case numbered C-110544. 

2

 Defendant-appellant Smith and Jolly Landscape and Design, Inc., dismissed its appeal in the case numbered C110798. 

3

 Defendant-appellant Kenwood Towne Place, LLC, dismissed its appeal in the case numbered C-120309. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

KRAFT ELECTRICAL CONTRACTING, 

INC., 

HICON, INC., 

CENTRAL INSULATION SYSTEMS, 

INC., 

LAFORCE, INC., 

MBJ CONSULTANTS, INC., 

THE MARK MADISON COMPANY, 

TEPE ENVIRONMENTAL SERVICES, 

LTD, 

UNIVERSAL CLEANING, 

SECURITY FENCE GROUP, INC., 

THE PAINTING CONTRACTOR, LLC, 

TRIUMPH SIGNS AND 

CONSULTING, INC., 

SPOHN ASSOCIATES, INC., 

KELLEY BROS. ROOFING, INC., 

JARVIS MECHANICAL 

CONSTRUCTORS, INC., 

ARCHITECTURAL GLASS & METAL 

CO., INC., 

BAKER CONCRETE CONSTRUCTION, 

INC., 

SOFCO ERECTORS, INC., 

KENWOOD TOWNE PLACE, LLC, 

J&B STEEL ERECTORS, INC., 

SBF ASSET ACQUISITION, LLC, 

SPECIALTY INTERIORS OF OHIO, 

INC., 

JOSTIN CONCRETE 

CONSTRUCTION, 

FORD DEVELOPMENT CORP., 

ALT & WITZIG ENGINEERING, INC., 

OK INTERIORS CORP., 

BARRETT PAVING MATERIALS, 

 

 and 

SMITH & JOLLY LANDSCAPE AND 

DESIGN, INC., 

 Defendants-Appellants. 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 
OHIO FIRST DISTRICT COURT OF APPEALS 

3

Civil Appeal From: Hamilton County Common Pleas Court 

 

Judgment Appealed From Is: Appeals Dismissed

Date of Judgment Entry on Appeal: November 21, 2012 

Roetzel & Andress, LPA, and David G. Kern, Mayer Brown LLP, Lori E. Lightfoot and Chad 

M. Clamage, for Plaintiff-Appellee Bank of America, N.A., 

James E. Arnold & Associates, LPA, James E. Arnold, Gerhardt A. Gosnell II and Scott J. 

Stitt, for Defendant-Appellee Riverbend Commercial Title Agency, LP, 

Squire Sanders (US) LLP, Scott A. Kane and Colter L. Paulson, Plunkett Cooney and 

Amelia A. Bower, for Defendant-Appellee The Port of Greater Cincinnati Development 

Authority, 

Benjamin, Yocum & Heather, LLC, Thomas R. Yocum and Patrick M. O’Neill, for 

Defendants-Appellants Kraft Electrical Contracting, Inc., Hicon, Inc., Central Insulation 

Systems, Inc., LaForce, Inc., MBJ Consultants, Inc., The Mark Madison Company, Tepe 

Environmental Services, Ltd., Universal Cleaning, Security Fence Group, Inc., The Painting 

Contractor, LLC, Triumph Signs and Consulting, Inc., Spohn Associates, Inc., Jarvis 

Mechanical Contractors, Inc., and Kelley Bros. Roofing, Inc., 

Frost Brown Todd LLC, John S. Higgins and Shannah J. Morris, for Defendants-Appellants 

Baker Concrete Construction, Inc., SOFCO Erectors, Inc., and Architectural Glass & Metal 

Company, Inc., 

The Drew Law Firm Co., LPA, Anthony G. Covatta, Stephen A. Bailey, Robert M. Smyth

and Joel M. Frederic, for Defendant-Appellant Kenwood Towne Place, LLC, 

Gregory R. Wilson Co., L.P.A., and Gregory R. Wilson, for Defendants-Appellants J&B 

Steel Erectors, Inc., and SBF Asset Acquisition, LLC., 

Kohnen & Patton, LLP, Kimberly A. Pramaggiore and Malinda L. Langston for DefendantAppellant Specialty Interiors of Ohio, Inc., 

Graydon Head & Ritchey LLP, and Michael C. Surrey, for Defendant-Appellant Jostin 

Concrete Construction, 

Robert W. Burns, Katzman, Logan, Halper & Bennett, LPA, and Kenneth B. Flacks, for 

Defendants-Appellants Ford Development Corp., and Ford Development Corp., assignee of 

Barrett Paving Materials, Inc., 

Finney, Stagnaro, Saba & Patterson, LPA, and Sean P. Donovan, for Defendant-Appellant 

Alt & Witzig Engineering, Inc., 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

Michael J. Bergmann, LLC, and Michael J. Bergmann, for Defendant-Appellant OK 

Interiors, Corp., 

Morgan Smith and Tracy A. Smith, for Defendant-Appellant Smith & Jolly Landscape and 

Design, Inc. 

Please note: This case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

Per Curiam. 

{¶1} Defendants-appellants, holders of liens against property owned by Kenwood 

Towne Place, LLC (“KTP”), appeal the trial court’s judgment in favor of plaintiff-appellee 

Bank of America (“the Bank”) on its foreclosure and priority lien claims. Because the 

judgment has been satisfied, we dismiss the appeals as moot. 

{¶2} On December 10, 2007, LaSalle Bank National Association, the predecessor in 

interest to the Bank, entered into a construction loan agreement with KTP to provide 

construction financing of up to $96,525,000 for a large, multi-use project consisting of 

prime retail and office space in Sycamore Township. KTP’s obligations under the loan were 

secured by a first priority mortgage lien and security interest in the property owned by KTP 

that comprised the project. 

{¶3} Construction began on the project, and the Bank provided funding of more 

than $79 million. By late 2008, the Bank discovered that KTP had concealed millions of 

dollars in cost overruns and that the loan was out of balance. Mechanic’s liens were filed 

against the KTP property, primarily by subcontractors and material suppliers on the project. 

The Bank declared KTP in default of its note and mortgage, and filed this foreclosure action. 

{¶4} The Bank filed a motion for summary judgment on its foreclosure and priority 

lien claims, and the trial court granted the motion. The court found that the Bank was the 

holder of a valid note and mortgage from KTP, and that KTP was in default of payment on 

the note and mortgage. 

{¶5} The defendants-appellants appealed. Some of them filed a motion for a stay 

pending appeal. The trial court ordered that the sale of the property be stayed conditioned 
OHIO FIRST DISTRICT COURT OF APPEALS 

6

upon the posting of a bond prior to the sale. No bond was posted. The property was sold 

and the proceeds of the sale distributed. 

{¶6} Following oral argument, this court ordered the parties to submit 

supplemental briefs addressing the issues of mootness and standing of the defendantsappellants to challenge the validity of the mortgage. 

Mootness 

{¶7} Satisfaction of a judgment renders an appeal from that judgment moot. See 

Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990); see also Fifth Third 

Bank v. The Wallace Group, 1st Dist. No. C-930699, 1994 Ohio App. LEXIS 4915 (Nov. 3, 

1994); Alexander v. MHL Ltd., 1st Dist. No. C-120063, 2012-Ohio-4046. The Ohio 

Supreme Court has explained: 

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 at 245, quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959). 

{¶8} A party has acted voluntarily in satisfying a judgment when the party fails to 

obtain a stay of the trial court’s judgment pending appeal. See Wiest v. Weigele, 170 Ohio 

App.3d 700, 2006-Ohio-5348, 868 N.E.2d 1040 (1st Dist.), citing Hagood v. Gail, 105 Ohio 

App.3d 780, 664 N.E.2d 1373 (11th Dist.1995). If the appellant fails to obtain a stay of the 

judgment, the nonappealing party has the right to attempt to satisfy its judgment, even 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

though the appeal is pending. See Wiest at ¶ 12. If the judgment is satisfied, the appeal 

must be dismissed because the issues in the case have become moot. Id., citing Hagood. 

{¶9} In Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. No. 24329, 2009-

Ohio-1333, the Ninth Appellate District held that “[i]n foreclosure cases, as in all other civil 

actions, after the matter has been extinguished through satisfaction of the judgment, the 

individual subject matter of the case is no longer under the control of the court and the 

court cannot afford relief to the parties to the action.” Id. at ¶ 16; see also Villas at the 

Pointe of Settlers Walk Condominium Assn., Inc. v. Coffman Dev. Co., Inc., 12th Dist. No. 

CA2009-12-165, 2010-Ohio-2822, ¶ 11; Capitol Communications, Inc. v. GBS Corp., 1oth 

Dist. Nos. 10AP-08 and 10AP-09, 2010-Ohio-5964, ¶ 13; Akron Dev. Fund I, Ltd. v. 

Advanced Coatings Internatl., Inc., 9th Dist. No. 25375, 2011-Ohio-3277, ¶ 29; Dietl v. 

Sipka, 185 Ohio App.3d 218, 2009-Ohio-6225, 923 N.E.2d 692, ¶ 21 (11th Dist.); Aurora 

Loan Servs. v. Kahook, 9th Dist. No. 24415, 2009-Ohio-2997, ¶ 7; Bank One, N.A. v. Lent, 

5th Dist. No. 06CA000008, 2007-Ohio-1753, ¶ 11-12; Atlantic Veneer Corp. v. Robbins, 4th 

Dist. No. 03CA719, 2004-Ohio-3710, ¶ 17-18; Meadow Wind Health Care Ctr., Inc. v. 

McInnes, 5th Dist. No. 2002CA00319, 2003-Ohio-979, ¶ 6-8. 

{¶10} The defendants-appellants contend that this matter is not moot because R.C. 

2329.45 provides restitution as a remedy even after the foreclosed property is sold at a 

sheriff’s sale. R.C. 2329.45 states: 

If a judgment in satisfaction of which lands, or tenements are sold, is 

reversed, such reversal shall not defeat or affect the title of the purchaser. In 

such case restitution must be made by the judgment creditor of the money for 

which such lands or tenements were sold, with interest from the day of sale. 
OHIO FIRST DISTRICT COURT OF APPEALS 

8

{¶11} In support of their argument, the defendants-appellants cite several cases 

where courts have refused to dismiss as moot an appeal of a foreclosure action where the 

judgment had already been satisfied by sale of the property and distribution of the proceeds. 

See, e.g., Chase Manhattan Mtge. Corp. v. Locker, 2d Dist. No. 19904, 2003-Ohio-6665; 

LaSalle Bank Natl. Assn. v. Murray, 179 Ohio App.3d 432, 2008-Ohio-6097, 902 N.E.2d 

88; Ameriquest Mtge. Co. v. Wilson, 11th Dist. No. 2006-A-0032, 2007-Ohio-2576; but see 

Dietl, supra, (a lienholder’s interest in foreclosed property had been “extinguished and 

mooted” where the proceeds of the sale had been distributed.) But as the Ninth District 

pointed out in Tutin, “[t]hese courts have essentially interpreted R.C. 2329.45 as creating an 

exception to the mootness doctrine in foreclosure cases.” Tutin at ¶ 11. We are not 

persuaded that the statute provides such an exception. 

{¶12} The plain language of R.C. 2329.45 clearly contemplates its application to 

situations where the property has been sold and title has been transferred to a purchaser. 

Id. at ¶ 15. Nowhere does R.C. 2329.45 suggest that an appealing party has a remedy after 

the proceeds of the foreclosure sale have been distributed. Rather, the statute 

 can only be construed to address appeals that have been taken from the 

confirmation of sale and the appealing party sought and obtained a stay of the 

distribution of proceeds pursuant to Civ.R. 62(B) and App.R. 7(A). In those 

situations, although the property has been sold and the sale confirmed, a 

successful appellant will have the remedy of restitution because the proceeds 

of the sale are still held under the jurisdiction and control of the court. 

 Id. 

{¶13} In this case, the property was sold at sheriff’s sale, the trial court confirmed 

the sale, and the proceeds have been distributed. The defendants-appellants failed to obtain 
OHIO FIRST DISTRICT COURT OF APPEALS 

9

a stay of the trial court’s judgment, and they did not post an appeal bond. The judgment has 

been satisfied, and the proceeds of the sale are no longer under the jurisdiction and control 

of the court. Therefore, the appeals must be dismissed as moot. 

{¶14} We sua sponte dismiss the appeals in the cases numbered C-110558 and C110800 pursuant to App.R. 18(C) as no briefs have been filed. 

 Appeals dismissed. 

HILDEBRANDT, P.J., SUNDERMANN and HENDON, JJ.

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.