[Cite as Columbus Mun. Corp. v. Wiltshire Capital Partners, LP, 2024-Ohio-2180.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

City of Columbus, Ohio, a municipal :

corporation,

:

Petitioner-Appellee, No. 23AP-513

: (C.P.C. No. 21CV-5236)

v.

: (REGULAR CALENDAR)

Ohio Wholesale Auto Sales, LLC et al.,

:

Respondents-Appellees,

:

Wiltshire Capital Partners, LP,

:

Respondent-Appellant.

:

D E C I S I O N

Rendered on June 6, 2024

On brief: Haynes, Kessler, Myers & Postalakis, and

Christopher T. Cline, for Ohio Wholesale Auto Sales, LLC. 

Argued: Christopher T. Cline. 

On brief: Wells Law Office, and Joquetta S. Wells, for 

appellant. Argued: Joquetta S. Wells.

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.

{¶ 1} Respondent-appellant, Wiltshire Capital Partners, LP, (“Wiltshire”)appeals 

from a decision and entry of the Franklin County Court of Common Pleas determining 

Wiltshire is barred from presenting any claims based on the mortgage and promissory note 

at issue in the matter. For the following reasons, we dismiss the appeal.
No. 23AP-513 2

I. Facts and Procedural History

{¶ 2} On August 17, 2021, petitioner-appellee, city of Columbus, filed a petition for 

appropriation of real property declaring its intention to use eminent domain to appropriate 

a fee simple interest and a temporary easement for a 0.082-acre parcel of land in Clinton 

Township and to appropriate a temporary construction easement for a 0.016-acre parcel of 

land in Clinton Township. The city initiated the eminent domain proceedings “for the 

purposes of making, constructing, repairing or improving a state, U.S. or interstate highway 

which shall be open to the public, without charge” as part of the Hudson Street Sidewalks 

Project. (Petition for Appropriation at ¶ 7.) In its appropriation petition, the city named 

nine entities who have, claim to have, or may have, the following estate, interest or right in 

the real property: (1) respondent-appellee, Ohio Wholesale Auto Sales, LLC, fee simple 

interest; (2) Doug Davis and Marilyn Bernard, mortgage of record; (3) William L. 

Bowersock, mortgage of record; (4) Florence Odita, mortgage of record; (5) Wiltshire, 

mortgage of record; (6) State of Ohio, Department of Taxation, judgment of record; 

(7) Don’s Garage, Inc., judgment of record; (8) city of Columbus, notice of lis pendens; and 

(9) Franklin County Treasurer, property taxes and assessments. As the action progressed, 

the city dismissed the State of Ohio, Department of Taxation, and Don’s Garage from the 

action, and the trial court entered default judgment against Davis and Bernard, Odita, and 

Bowersock. Thus, as of April 18, 2022, only three respondents remained: Wiltshire, Ohio 

Wholesale Auto Sales, and the Franklin County Treasurer. Ohio Wholesale Auto Sales is 

the title holder of the property and Wiltshire claims a mortgage interest in the property. 

{¶ 3} On August 2, 2022, the matter came before the trial court for a status 

conference. Based on the parties’ representations at the status conference, the trial court 

set the matter for an evidentiary hearing “to determine Defendant Wiltshire Capital 

Partners LP’s standing in this matter.” (Aug. 3, 2022 Order.) Prior to the scheduled 

hearing, the trial court issued an August 11, 2022 order vacating the order for the hearing 

and directing the parties to submit briefing and any evidence regarding Wiltshire’s 

“standing,” stating the trial court would “rule on the issue without oral arguments.” 

(Aug. 11, 2022 Order.) The trial court ordered the parties to submit briefing by August 26, 

2022. Ohio Wholesale Auto Sales submitted a brief and evidence to the trial court. Ohio 

Wholesale Auto Sales stated in its brief that Wiltshire had filed a complaint for foreclosure 
No. 23AP-513 3

in 2017, under Franklin C.P. No. 17CV007723, involving Wiltshire’s same mortgage interest 

at issue in the current eminent domain action. Wiltshire submitted an untimely brief on 

September 1, 2022 along with a motion for leave to file its untimely brief. However, the 

trial court denied Wiltshire’s motion for leave and did not consider Wiltshire’s brief. 

Neither the city nor the Franklin County Treasurer submitted briefs on the matter. 

{¶ 4} On July 24, 2023, the trial court issued a “Decision and Entry Regarding 

Status of Defendant Wiltshire Capital Partners LP.” In the decision and entry, the trial 

court determined because Wiltshire had its claim decided adversely against it in a separate 

foreclosure action involving the same mortgage interest it has in the property here, res 

judicata applied and Wiltshire “no longer has a stake in any matter relating to the mortgage 

and cannot claim some real interest in the subject matter of the action to fulfill its 

jurisdictional requirement.” (Decision & Entry at 5.) Thus, the trial court determined 

Wiltshire “has no standing and its claim is barred by res judicata,” and further ordered 

Wiltshire “is barred from presenting any claims based on the mortgage and promissory 

note which it first advanced in the 2017 Foreclosure.” (Decision & Entry at 5.) 

{¶ 5} Wiltshire timely appeals. We note that while Ohio Wholesale Auto Sales filed 

a brief positioning itself as “defendant-appellee,” neither the city nor the Franklin County 

Treasurer have appeared in the appeal.

II. Assignments of Error

{¶ 6} Wiltshire assigns the following three assignments of error for our review:

I. The trial court erred by ruling, contrary to law, that a Civil 

Rule 41(B)(1) dismissal for failure to prosecute a foreclosure 

action in which service of process on the defendant(s) has not 

been obtained, constitutes an adjudication on the merits and, 

therefore, (a) bars the plaintiff from refiling the foreclosure 

action and (b), by vitiation of the mortgage related to the 

foreclosure action, precludes a mortgagee from the status of 

“owner” within the meaning of RC § 163.01(E) and from the 

status of Defendant/Respondent in an appropriation 

proceeding brought pursuant to Chapter 163 of the Ohio 

Revised Code.

II. The trial court erred in ruling that Appellant Wiltshire does 

not have standing to participate in any manner in an eminent 

domain proceeding that seeks to appropriate property that is 

encumbered by a mortgage lien held by Wiltshire. 
No. 23AP-513 4

III. The trial court abused its discretion to Wiltshire’s 

substantial prejudice by denying Appellant Wiltshire, the 

Mortgagee of specific property sought for appropriation, leave 

to file its brief and thereby be meaningfully heard during the 

trial court’s evidentiary proceeding on the issue of Wiltshire’s 

status in the proceeding for appropriation of the mortgaged 

property and further abused its discretion by also denying 

Appellant Wiltshire’s Motion For Reconsideration, made on 

the grounds of excusable neglect. 

III. Discussion

{¶ 7} Before we can reach the merits of Wiltshire’s assignments of error, we must 

address our subject-matter jurisdiction. Although neither party has raised the issue of 

whether the trial court’s July 24, 2023 decision and entry is a final appealable order, an 

appellate court may raise that jurisdictional issue sua sponte and must dismiss an appeal 

that is not taken from a final appealable order. Oakley v. Ohio State Univ. Wexner Med. 

Ctr., 10th Dist. No. 18AP-843, 2019-Ohio-3557, ¶ 9, citing Riverside v. State, 190 Ohio 

App.3d 765, 2010-Ohio-5868, ¶ 8 (10th Dist.).

{¶ 8} Ohio appellate courts have jurisdiction to review only final appealable orders 

of lower courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 

2505.03. If an order is not a final appealable order, the appellate court lacks jurisdiction 

and must dismiss the appeal. Tassone v. Tassone, 10th Dist. No. 18AP-475, 2019-Ohio683, ¶ 7, citing K.B. v. Columbus, 10th Dist. No. 14AP-315, 2014-Ohio-4027, ¶ 8. Final 

orders are those that “dispos[e] of the whole case or some separate and distinct branch 

thereof.” Lantsberry v. Tilley Lamp Co., Ltd., 27 Ohio St.2d 303, 306 (1971). A trial court 

order is final and appealable only if it satisfies the requirements in R.C. 2505.02 and, if 

applicable, Civ.R. 54(B). Eng. Excellence, Inc. v. Northland Assocs., L.L.C., 10th Dist. No. 

10AP-402, 2010-Ohio-6535, ¶ 10. A trial court’s labeling of an entry as a “final appealable 

order” is not dispositive of the issue. In re Murray, 52 Ohio St.3d 155, 157 (1990).

{¶ 9} R.C. 2505.02(B) defines final orders and provides, in pertinent part:

An order is a final order that may be reviewed, affirmed, 

modified, or reversed, with or without retrial, when it is one of 

the following:

(1) An order that affects a substantial right in an action that in 

effect determines the action and prevents a judgment; 
No. 23AP-513 5

(2) An order that affects a substantial right made in a special 

proceeding or upon a summary application in an action after 

judgment;

(3) An order that vacates or sets aside a judgment or grants a 

new trial;

(4) An order that grants or denies a provisional remedy and to 

which both of the following apply:

(a) The order in effect determines the action with respect to the 

provisional remedy and prevents a judgment in the action in 

favor of the appealing party with respect to the provisional 

remedy.

(b) The appealing party would not be afforded a meaningful or 

effective remedy by an appeal following final judgment as to all 

proceedings, issues, claims, and parties in the action.

* * * 

(7) An order in an appropriation proceeding that may be 

appealed pursuant to division (B)(3) of section 163.09 of the 

Revised Code.

{¶ 10} Civ.R. 54(B) provides, as follows:

When more than one claim for relief is presented in an action 

whether as a claim, counterclaim, cross-claim, or third-party 

claim, and whether arising out of the same or separate 

transactions, or when multiple parties are involved, the court 

may enter final judgment as to one or more but fewer than all 

of the claims or parties only upon an express determination 

that there is no just reason for delay. In the absence of a 

determination that there is no just reason for delay, any order 

or other form of decision, however designated, which 

adjudicates fewer than all the claims or the rights and liabilities 

of fewer than all the parties, shall not terminate the action as to 

any of the claims or parties, and the order or other form of 

decision is subject to revision at any time before the entry of 

judgment adjudicating all the claims and the rights and 

liabilities of all the parties.

{¶ 11} If a trial court enters judgment on some but not all of the claims in a multiclaim action or with respect to some but not all of the parties in a multi-party action, in the 
No. 23AP-513 6

absence of express Civ.R. 54(B) language, an appellate court has no jurisdiction to review 

the judgment. In re the Estate of Endt, 10th Dist. No. 13AP-956, 2014-Ohio-1749, ¶ 10, 

citing Moore v. Gross, 10th Dist. No. 09AP-1077, 2010-Ohio-3328, ¶ 12.

{¶ 12} To be a final appealable order subject to review on appeal, the trial court’s 

July 24, 2023 decision and entry must satisfy the requirements of R.C. 2505.02. At the 

outset, we must note that it is difficult to categorize the trial court’s July 24, 2023 decision 

and entry. Given the framework of the underlying action is an appropriation action, the 

only subsections of R.C. 2505.02(B) arguably applicable here are R.C. 2505.02(B)(1), (2), 

and (7).

{¶ 13} R.C. 2505.02(B)(7) provides an order in an appropriation action may be 

appealed under R.C. 163.09(B)(3). R.C. 163.09(B)(3) provides:

An owner has a right to an immediate appeal if the order of the 

court is in favor of the agency in any of the matters the owner 

denied in the answer, unless the agency is appropriating 

property in time of war or other public exigency imperatively 

requiring its immediate seizure, for the purpose of making or 

repairing roads which shall be open to the public without 

charge, for the purpose of implementing rail service under 

Chapter 4981. of the Revised Code, or under section 307.08, 

504.19, 6101.181, 6115.221, 6117.39, or 6119.11 of the Revised 

Code or by a public utility owned and operated by a municipal 

corporation as the result of a public exigency.

{¶ 14} Because the city named Wiltshire as a defendant in the appropriation action 

as a party with a mortgage interest in the property, Wiltshire is considered an “owner” for 

purposes of the applicability of R.C. 163.09, even though Ohio Wholesale Auto Sales 

challenges the extent of Wiltshire’s mortgage interest in the property. R.C. 163.01(E) 

(“[o]wner means any individual, partnership, association, or corporation having any estate, 

title, or interest in any real property sought to be appropriated”). However, based on the 

plain language of R.C. 163.09(B)(3), the immediate right to appeal applies only where “the 

order of the court is in favor of the agency in any of the matters the owner denied in the 

answer.” Although Wiltshire filed an answer objecting to the city’s taking of the real 

property, the trial court’s July 24, 2023 decision and entry is not “an order in favor of the 

agency” and instead relates to a question raised during a status conference by another 

named defendant. The city did not file a brief in the trial court related to this matter, and 
No. 23AP-513 7

nothing in the decision and entry relates to the city’s right to appropriate the property. See

Mill Creek Metro. Park Dist. Bd. of Commrs. v. Less, 172 Ohio St.3d 24, 2023-Ohio-2332, 

¶ 14, quoting R.C. 163.09(B)(3) (the right to immediately appeal contained in R.C. 

163.09(B)(3) does not apply to every ruling in an appropriation case and instead applies 

only to orders “ ‘in favor of the agency in any of the matters the owner denied in the 

answer[s]’ ”). 

{¶ 15} Additionally, the immediate right to appeal contained in R.C. 163.09(B)(3)

does not apply where “the agency is appropriating property * * * for the purpose of making 

or repairing roads which shall be open to the public without charge.” R.C. 163.09(B)(3). 

Here, the city filed the appropriation action “for the purposes of making, constructing, 

repairing or improving a state, U.S. or interstate highway which shall be open to the public, 

without charge.” (Petition for Appropriation at ¶ 7.) Thus, the trial court’s July 24, 2023 

decision and entry is not immediately appealable under R.C. 163.09(B)(3). See Dublin v. 

Friedman, 10th Dist. No. 16AP-516, 2017-Ohio-9127, ¶ 33 (explaining R.C. 163.09(B)(3) 

“concerns the time at which a party may appeal a court’s ruling on the preliminary issues” 

and “reverts to the general rule of no immediate appeal when the agency is appropriating 

the property to make or repair a public road,” but “the court’s ruling on any preliminary 

issue is appealable after compensation has been assessed and the court disposes of the 

entire case”). For these reasons, the July 24, 2023 decision and entry does not satisfy R.C. 

2505.02(B)(7).

{¶ 16} The only remaining subsections with arguable applicability are R.C. 

2505.02(B)(1) and (2). Under both R.C. 2505.02(B)(1) and (2), a final order is one that 

must “affect a substantial right.” A “substantial right” is “a right that the United States 

Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure 

entitles a person to enforce or protect.” R.C. 2505.02(A)(1). “An order that affects a 

substantial right has been perceived to be one which, if not immediately appealable, would 

foreclose appropriate relief in the future.” DeAscentis v. Margello, 10th Dist. No. 04AP-4, 

2005-Ohio-1520, ¶ 19, citing Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63 (1993).

{¶ 17} It is difficult to categorize the trial court’s July 24, 2023 decision and entry 

for several reasons. First, the decision relates to an issue apparently raised at a status 

conference but not by any formal motion or pleading of a party. While the trial court asked 
No. 23AP-513 8

for briefing and issued a decision and entry, it did not rule on a claim or a distinct aspect of 

a claim. Second, the decision purports to determine the “standing” of Wiltshire in the 

action. An assertion of lack of standing is typically understood as a challenge to the capacity 

of party to bring an action. PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-

Ohio-5383, ¶ 22, citing State ex rel. Tubbs-Jones v. Suster, 84 Ohio St.3d 70, 77 (1998); 

Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41 

(“[i]t is fundamental that a party commencing litigation must have standing to sue in order 

to present a justiciable controversy”) (Emphasis added.). Here, the city brought the 

appropriation action, naming Wiltshire as a defendant. It is unclear how a trial court could 

rule on the lack of standing of a defendant, who, by definition did not commence the action,

or what, if any, effect that ruling has on the city’s appropriation action. Finally, the trial 

court’s July 24, 2023 decision and entry involves an issue raised by one named defendant, 

Ohio Wholesale Auto Sales, with regard to another named defendant, Wiltshire. The city 

did not participate in the briefing of this issue below. Though the trial court ruled on 

whether Wiltshire had “standing,” even if we were to construe the decision and entry as 

considering whether Wiltshire is an appropriate party in the appropriation action, the trial 

court did not dismiss Wiltshire as a defendant. Because Wiltshire remains a named 

defendant, Wiltshire can appeal when the court disposes of the entire case. Thus, we cannot 

conclude the trial court’s July 24, 2023 decision and entry, however we were to characterize 

it, affects a substantial right as it does not foreclose appropriate relief in the future. We 

find, therefore, that the decision and entry does not satisfy the requirements of either R.C. 

2505.02(B)(1) or (2). 

{¶ 18} Moreover, the trial court’s July 24, 2023 decision and entry does not contain 

language, pursuant to Civ.R. 54(B), that “there is no just reason for delay” of the appeal. 

Tonti Homes Corp. v. Siculan, 10th Dist. No. 22AP-162, 2022-Ohio-3067, ¶ 12 (“even if we 

were to consider that the trial court’s * * * decision and entry meets the requirements of 

R.C. 2505.02, we could not find the decision and entry is a final, appealable order pursuant 

to Civ.R. 54(B)”). As noted above, the trial court’s July 24, 2023 decision and entry does 

not dispose of all claims, and the action is a multi-party action. Thus, even if we could 

somehow construe the decision and entry as falling within one of the subsections of R.C. 

2505.02(B), because the trial court failed to include the express language of Civ.R. 54(B), 
No. 23AP-513 9

the order is not a final appealable order and this court may not review it. See Estate of Endt

at ¶ 10 (“[w]e need not consider whether the judgment entry before us is a final order under 

R.C. 2505.02 because the lack of Civ.R. 54(B) language is dispositive”).

{¶ 19} Because the trial court’s July 24, 2023 decision and entry was not a final 

appealable order, we lack jurisdiction to review Wiltshire’s assignments of error.

IV. Disposition 

{¶ 20} Based on the foregoing reasons, the decision and entry of the Franklin County 

Court of Common Pleas is not a final appealable order, and this court is without jurisdiction 

to consider the appeal. Accordingly, we sua sponte dismiss the appeal.

Appeal dismissed.

DORRIAN and BOGGS, JJ., concur.