[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

FAHEY BANKING COMPANY ) CASE NO. 11 MA 178 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) O P I N I O N 

) 

CAROLE SQUIRE, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

 Case No. 10 CV 3723 

JUDGMENT: Affirmed. Summary Judgment 

Arguments Dismissed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Michael N. Schaeffer 

Atty. Scott N. Schaeffer 

Atty. Richard G. Murray, II 

Kemp, Schaeffer & Rowe Co., LPA 

88 West Mound Street 

Columbus, Ohio 43215 

For Defendants-Appellants: Percy Squire, Pro se 

Percy Squire Co., LLC 

341 S. Third Street, Suite 101 

Columbus, Ohio 43215 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: September 14, 2012
[Cite as Fahey Banking Co. v. Squire, 2012-Ohio-4211.]

VUKOVICH, J. 

{¶1} Defendant-appellant Percy Squire appeals the decision of the 

Mahoning County Common Pleas Court denying his Civ.R. 60(B) motion to vacate 

the grant of summary judgment for plaintiff-appellee Fahey Banking Company. 

Although Squire is appealing the trial court’s denial of his Civ.R. 60(B) motion, his 

assignment of error and arguments focus solely on the propriety of the summary 

judgment and decree of foreclosure order. Squire did not timely appeal that order, 

thus the arguments presented are not reviewable. Furthermore, as to the propriety of 

the trial court’s ruling on the Civ.R. 60(B) motion, the brief does not contain any 

arguments concerning the correctness or lack thereof of the denial of his Civ.R. 60(B) 

motion. Therefore, as there are no arguments before us concerning the denial of his 

Civ.R. 60(B) motion, we will uphold that determination. Consequently, for those 

reasons and the ones discussed below, the trial court’s Civ.R. 60(B) ruling is 

affirmed, however, the arguments regarding the trial court’s grant of summary 

judgment for Fahey Banking Company are dismissed as untimely. 

STATEMENT OF THE CASE

{¶2} On September 27, 2010, Fahey Banking Company filed a complaint in 

foreclosure on note and mortgage against Percy and Carole Squire. In the 

complaint, Fahey alleged that in August 1995, the Squires executed a promissory 

note for $115,00.00. As security for the payment of the note, the Squires executed 

and delivered to Fahey Banking Company a mortgage deed to the premises located 

at 3405 Kiwatha Road, Youngstown, Ohio. Complaint ¶8. It is alleged that the 

Squires have defaulted in the payment on the note. 
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{¶3} The Squires filed their answer and admitted that a loan had been 

secured on the property, but denied that they were in default. 

{¶4} Thereafter, Fahey Banking Company filed a motion for default judgment 

and summary judgment. It attached documentation showing that the Squires were in 

default on the loan and that it was exercising its option to accelerate the loan. 

{¶5} The Squires filed a Civ.R. 56(F) motion for an extension of time to file a 

memorandum in opposition to the Fahey Banking Company’s motion for summary 

judgment. In conjunction with that motion the Squires filed their first set of discovery 

requests. The trial court granted the Squires an extension of time and ordered them 

to file their memorandum in opposition within 30 days following Fahey Banking 

Company’s response to the discovery requests. 

{¶6} In May 2011, Fahey Banking Company filed a notice of service of 

responses to discovery and asked the trial court to make a ruling on its motion for 

summary judgment. In that motion it indicated that it had hand-delivered the Squires 

its responses to discovery on March 30, 2011. Thus, it concluded that the time for 

filing a motion in opposition to summary judgment expired on April 30, 2011. 

{¶7} An oral hearing on the summary judgment motions occurred at 1:30 

p.m. on June 22, 2011. The Squires failed to appear. The trial court granted 

summary judgment for Fahey Banking Company and entered a judgment entry and 

decree of foreclosure on the Kiwatha Road property. 6/22/11 J.E. (Summary 

judgment and decree of foreclosure order). 
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{¶8} After the hearing had concluded, the Squires faxed a motion requesting 

leave to file a response to Fahey Banking Company’s motion for summary judgment 

by June 27, 2011. The trial court denied that request. 6/23/11 J.E. 

{¶9} The Squires did not appeal the June 22, 2011 ruling. Instead, the 

Squires filed a Civ.R. 60(B) motion to vacate that judgment. 7/01/11 Motion. In the 

motion, they admitted to knowing about the hearing, but contended that due to their 

inadvertence they believed the hearing was a non-oral hearing. They also claimed 

that they have a meritorious defense because Fahey Banking Company did not 

comply with 12 U.S.C. 1701x(c)(5). Fahey Banking Company opposed the motion to 

vacate. 7/11/11 Motion. 

{¶10} The trial court denied the motion to vacate. The Squires filed a timely 

notice of appeal from that judgment. 

ASSIGNMENT OF ERROR

The trial court erred when it granted Appellee’s summary judgment 

motion. Despite Appellant failing to timely respond to Appellee’s Motion 

for Summary Judgment, Appellee was not entitled to judgment as a 

matter of law by reason of failure to comply with the provisions of 12 

U.S.C. §1701x(c)(5). 

{¶11} As aforementioned, Squire filed a timely notice of appeal from the trial 

court’s denial of his Civ.R. 60(B) motion to vacate the grant of Fahey Banking 

Company’s motion for summary judgment. Attached to the notice of appeal is the 

trial court’s judgment denying the Civ.R. 60(B) motion. However, in the appellate 
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brief, the only arguments made concern the correctness of the summary judgment 

and order of foreclosure ruling; there is no analysis or discussion, even in the 

slightest, regarding the Civ.R. 60(B) ruling. Nowhere in Squire’s argument does he 

state that the trial court abused its discretion in denying the Civ.R. 60(B) ruling. 

Instead, he discusses the standard of review for summary judgment, which is de 

novo. He does not list the three requirements which must be shown to entitle a party 

to Civ.R. 60(B) relief that were espoused by the Ohio Supreme Court in GTE 

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 

(1976). Instead, he discusses whether there is a genuine issue of material fact, 

which is the Civ.R 56 summary judgment test. Thus, while the denial of the Civ.R. 

60(B) motion was timely appealed, the only issues raised to this court concern the 

propriety of the summary judgment ruling. 

{¶12} However, we lack jurisdiction to review these arguments because a 

timely notice of appeal was not filed from the grant of summary judgment and decree 

of foreclosure. The grant of summary judgment and decree of foreclosure disposed 

of all claims and thus, constituted a final appealable order which Squire could have 

appealed from. See PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio3370, ¶18; Second Nat. Bank of Warren v. Walling, 7th Dist. No. 01CA62, 2002-

Ohio-3852. The record clearly indicates that Squire filed the notice of appeal 105 

days after the summary judgment and decree of foreclosure order. As such, it was 

filed outside the 30-day time limit prescribed by the App.R. 4(A). An appellant's 

failure to file a timely notice of appeal renders the court of appeals without jurisdiction 
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and authority to entertain the appeal. State v. Bell, 8th Dist. No. 87727, 2007–Ohio–

3276, ¶24. 

{¶13} Squire cannot use the order denying his motion to vacate as a means 

to extend the time for filing an appeal from the grant of summary judgment and 

decree of foreclosure order. The filing of a Civ.R. 60(B) motion for relief from 

judgment does not extend the time for perfecting an appeal from the original 

judgment. Key v. Mitchell, 81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998). Any claims 

or arguments that could have been raised in a timely appeal are precluded from 

being raised in a subsequent Civ.R. 60(B) motion, because it is the function of the 

appellate court to correct legal errors committed by the trial court. Id. See also

Burgess v. Safe Auto, 2d Dist. No. 20941, 2005-Ohio-6829, ¶32 (arguments 

regarding the propriety of a trial court's summary judgment motion have no place in a 

Civ. R. 60(B) motion). 

{¶14} Therefore, since the notice of appeal was not timely as to the summary 

judgment and decree of foreclosure order, we are without jurisdiction to consider 

issues that are raised in this appeal regarding that order. See State ex rel. Pendell v. 

Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988). 

Consequently, those arguments are dismissed as untimely. 

{¶15} As to the propriety of the trial court’s denial of the Civ.R. 60(B) motion 

to vacate, as aforementioned that decision was timely appealed. However, Squire 

does not present any arguments to this court as to why this decision was not correct. 
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It is not this court’s function to create arguments for an appellant. Accordingly, we 

affirm the trial court’s decision. 

{¶16} In conclusion, the trial court’s Civ.R. 60(B) ruling is affirmed, however, 

the arguments regarding the trial court’s grant of summary judgment for Fahey 

Banking Company are dismissed since this court lacks jurisdiction to due to the 

untimely appeal. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.