[Cite as Luper Neidenthal & Logan v. Albany Station, L.L.C., 2014-Ohio-2906.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Luper Neidenthal & Logan, A : 

Legal Professional Association, 

 : 

 Plaintiff-Appellee, 

 : 

v. No. 13AP-651 

 : (C.P.C. No. 12CVE-291) 

Albany Station, LLC et al., 

 : (REGULAR CALENDAR) 

 Defendants-Appellees, 

 : 

Tolliver & Curl Paving Contractors, Inc., 

 : 

 Defendant-Appellant. 

 : 

 

D E C I S I O N 

Rendered on June 30, 2014 

 

Luper Neidenthal & Logan, Melissa A. Izenson, and 

Frederick M. Luper, for plaintiff-appellee. 

Gallagher & Kavinsky, LPA, and Michael R. Szolosi, Jr., for 

defendant-appellee JCCN Investments, LP. 

Marc K. Fagin, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas. 

T. BRYANT, J. 

{¶ 1} Defendant-appellant, Tolliver & Curl Paving Contractors, Inc., appeals from 

a judgment of the Franklin County Court of Common Pleas in a foreclosure action 

brought by plaintiff-appellee, Luper Neidenthal & Logan, A Legal Professional 

Association. We previously denied a motion to dismiss the appeal for lack of a final 
No. 13AP-651 2 

appealable order, and the matter is now before us on the merits. Luper Neidenthal & 

Logan v. Albany Station, LLC, 10th Dist. No. 13AP-651 (Nov. 5, 2013) (memorandum 

decision). 

{¶ 2} Luper Neidenthal began this case with a complaint in foreclosure against 

Albany Station, LLC, an entity formed for the purpose of undertaking a never completed 

residential condominium project. The complaint alleged that, in order to secure an 

account owed for legal services, Luper Neidenthal obtained from Albany Station a 

mortgage lien on certain parcels of development property. The complaint also named as 

defendants several competing lienholders. Defendant-appellee JCCN Investments, LP, 

was an initial investor in the Albany Station project and held a judgment lien against the 

property based upon a cognovit note given by Albany Station. Defendant-appellee 

Lawrence J. Gross, an attorney, also held a judgment lien. Tolliver, which had performed 

paving work on the defunct project, held a judgment lien after pursuing collection of the 

unpaid paving contract. In addition, the Franklin County Treasurer held a presumed lien 

for unpaid taxes. 

{¶ 3} Albany Station did not file an answer. Tolliver filed an answer contesting 

the validity of the legal fees underlying the Luper Neidenthal lien and otherwise 

contesting the priority of liens on the subject property. On January 22, 2013, pursuant to 

a partial agreement between the parties, the trial court entered a decree of foreclosure 

granting default judgment against Albany Station in favor of Luper Neidenthal, ordering 

sale of the property, and reserving the order of priority of all liens for later determination. 

Litigation continued among the lienholders concerning the validity and priority of the 

parties' respective liens. On June 13, 2013, the trial court disposed of cross-motions for 

summary judgment. The court granted summary judgment in favor of Luper Neidenthal 

and JCCN, denied summary judgment sought by Tolliver, and set lien priority in strict 

compliance with the chronology of lien filings by the various parties: first in priority, the 

statutorily superior lien held by the Franklin County Treasurer for unpaid taxes, second in 

priority, Luper Neidenthal's recorded mortgage of December 10, 2008 with a principal 

amount of $20,000, third in priority, a certificate of judgment lien filed by JCCN in the 

amount of $185,356 plus interest, recorded on February 17, 2010, fourth in priority, 

Tolliver's certificate of judgment lien in the amount of $13,668.19 plus interest, filed on 
No. 13AP-651 3 

February 9, 2011, and finally, a certificate of judgment lien filed by Gross on December 15, 

2011 in the amount of $40,000 plus interest. 

{¶ 4} Tolliver has appealed and brings the following two assignments of error: 

[I.] THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT TO APPELLEES, LUPER NEIDENTHAL & 

LOGAN, LPA AND JCCN INVESTMENTS, LP. 

[II.] THE TRIAL COURT ERRED BY FAILING TO GRANT 

SUMMARY JUDGMENT TO APPELLANT, TOLLIVER & 

CURL PAVING CONTRACTORS, INC. 

 

{¶ 5} Both of Tolliver's assignments of error consider the grant or denial of the 

parties' cross-motions for summary judgment in the trial court. We consider the 

assignments of error together under the standard of review in such cases. Civ.R. 56(C) 

provides that summary judgment may be granted only when there remains no genuine 

issue of material fact, the moving party is entitled to judgment as a matter of law, and 

reasonable minds can come to but one conclusion, that conclusion being adverse to the 

party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 

621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978). 

Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by 

making conclusory assertions that the non-moving party has no evidence to prove its case. 

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Rather, the moving party must point to 

some evidence that affirmatively demonstrates that the non-moving party has no evidence 

to support each element of the stated claims. Id. An appellate court's review of summary 

judgment is de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th 

Dist.1994); Bard v. Soc. Natl. Bank, 10th Dist. No. 97APE11-1497 (Sept. 10, 1998). Thus, 

we conduct an independent review of the record and stand in the shoes of the trial court. 

Jones v. Shelly Co., 106 Ohio App.3d 440, 445 (5th Dist.1995). As such, we have the 

authority to overrule a trial court's judgment if the record does not support any of the 

grounds raised by the movant, even if the trial court failed to consider those grounds. 

Bard. 

{¶ 6} Tolliver's first argument with respect to both assignments of error is that the 

trial court failed to issue a written opinion presenting the legal analysis and undisputed 
No. 13AP-651 4 

material facts of the case and that we must, at a minimum, reverse and remand with a 

mandate for the trial court to issue an explanatory decision providing the rationale for 

summary judgment. However, since our review is de novo, the absence of an explanatory 

decision from the trial court neither impedes our review nor precludes affirmance of the 

trial court because we may ultimately do so on grounds other than those relied on by the 

court. See, generally, Fred Sigel Co., L.P.A. v. Arter & Hadden, 8th Dist. No. 71440 

(July 31, 1997), citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th 

Dist.1993). 

{¶ 7} Tolliver next argues that it may invoke the doctrine of equitable subrogation 

in order to improve its standing among the competing lienholders. While the doctrine of 

equitable subrogation does serve under some circumstances to reshuffle the relative 

priority of lienholders, it is not applicable on the present facts. 

{¶ 8} Pursuant to R.C. 5301.23(A), the general rule of priority among lienholders 

is that of "first in time, first in right." The first mortgage recorded, therefore, shall have 

preference over subsequently recorded mortgages in chronological order. Under this rule, 

Tolliver stands third in line among recorded liens and fourth when considering the 

statutorily superior tax lien. Equitable subrogation stands as a narrow exception to the 

strict chronological precedence imposed by statute. 

{¶ 9} The doctrine of equitable subrogation " 'arises by operation of law when one 

having a liability or right * * * in the premises pays a debt due by another under such 

circumstances that he is in equity entitled to the security or obligation held by the creditor 

whom he has paid.' " State Dept. of Taxation v. Jones, 61 Ohio St.2d 99, 102 (1980), 

quoting Fed. Union Life Ins. Co. v. Deitsch, 127 Ohio St. 505, 510 (1934). The doctrine 

typically applies to improve the lien precedence of a subsequent lender who paid off an 

existing first mortgage and, thus, can equitably step into the shoes of that original primary 

lender. See, generally, Washington Mut. Bank v. Loveland, 10th Dist. No. 04AP-920, 

2005-Ohio-1542; Bank One Columbus, NA v. Jude, 10th Dist. No. 02AP-1266, 2003-

Ohio-3343. 

{¶ 10} The present facts do not allow application of the doctrine of equitable 

subrogation. There is no assertion or evidence that Tolliver paid a debt initially owed to a 
No. 13AP-651 5 

lienholder with higher precedence and could equitably step into such a lienholder's shoes. 

This is not an equitable subrogation case. 

{¶ 11} Tolliver next argues that it may contest the validity of debts owed by Albany 

Station that underlie the liens held by the two senior lienholders, JCCN and Luper 

Neidenthal, and that there remains a genuine issue of material fact as to the validity of 

those debts and the liens they support. The trial court in effect abrogated the discussion 

on this question when it held that Tolliver lacked any standing whatsoever to challenge 

the validity of these debts because Tolliver was not a party to the financial transactions or 

instruments that formed the basis for these, and Albany Station had through default 

conceded the validity of the debts. For this proposition, the court cited our decision in 

LSF6 Mercury REO Invests. Trust Series 2008-1 v. Locke, 10th Dist. No. 11AP-757, 2012-

Ohio-4499, appeal not accepted, 134 Ohio St.3d 1470, 2013-Ohio-553. 

{¶ 12} Locke is in fact not applicable to the present facts, both on its face and 

because we subsequently took the opportunity to severely limit the impact of the holding 

in that case. See Bank of Am. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795. 

{¶ 13} Locke concerned an attempt by a mortgage borrower to contest the 

assignment of his note from the original lender to a successor creditor, who then brought 

a foreclosure action against the borrower. We held that "because the debtor is not a party 

to the assignment of the mortgage, [the debtor] lacks standing to challenge its validity." 

(Emphasis added.) Id. at ¶ 28; see also Deutsche Bank Natl. Trust. Co. v. Whiteman, 10th 

Dist. No. 12AP-536, 2013-Ohio-1636; JPMorgan Chase Bank, N.A. v. Romine, 10th Dist. 

No. 13AP-58, 2013-Ohio-4212, ¶ 13. On its face, therefore, Locke does not concern a 

challenge to the validity of an underlying debt, but only the debtor's standing to attack the 

validity of a subsequent assignment of the creditor's rights. Moreover, in Pasqualone, we 

explicitly limited Locke and held that when defending a mortgage foreclosure action "a 

debtor may challenge the assignment of a note (by negotiation or transfer) if such 

challenge fits the criteria of a denial, defense or claim in recoupment as outlined in R.C. 

1303.36 or 1303.35." Pasqualone at ¶ 35. Even when broadly read, Locke would not 

apply to the present facts and even less so in light of the limited reading of Locke imposed 

in Pasqualone. 
No. 13AP-651 6 

{¶ 14} Even in the absence of an absolute bar, pursuant to Locke, against any 

attempted attack on the validity of the competing liens, Ohio law places severe restrictions 

upon Tolliver's efforts to do so. Because the liens of the two superior lienholders are 

founded upon obligations of somewhat differing nature, we will address the law governing 

each in turn.

{¶ 15} Tolliver's attack on the validity of JCCN's lien represents a collateral attack 

upon the cognovit note judgment underlying the lien. A collateral attack is an attempt to 

defeat the operation of a prior judgment brought in a later proceeding where some new 

right derived from the judgment is involved. Black v. Aristech Chem. Co., 4th Dist. No. 

07CA3155, 2008-Ohio-7038, ¶ 14. The law of Ohio strongly disfavors collateral attacks 

upon a final judgment; collateral attack is not inherently improper, but is strongly 

disfavored, as direct appeals are the primary way to challenge a judgment. Ohio Pyro, Inc. 

v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶ 23; Coe v. Erb, 59 

Ohio St. 259, 271 (1898); Deutsche Bank Natl. Trust Co. v. Boswell, 192 Ohio App.3d 374, 

2011-Ohio-673, ¶ 24 (1st Dist.) "[T]here is a firm and longstanding principle that final 

judgments are meant to be just that—final." Ohio Pyro at ¶ 22, citing Kingsborough v. 

Tousley, 56 Ohio St. 450, 458 (1897). "[A] judgment is considered 'valid' (even if it might 

perhaps have been flawed in its resolution of the merits of the case) and is generally not 

subject to collateral attack" if the judgment was not procured by fraud and the issuing 

court had jurisdiction. Id. at ¶ 25. "[A] collateral attack on a judgment is really an attack 

on the integrity of the judgment rather than its merits." Mickey v. Rokakis, 8th Dist. No. 

97053, 2012-Ohio-273, ¶ 9, citing Ohio Pyro. 

{¶ 16} Nonetheless, strangers to a judgment may collaterally attack that judgment 

based upon fraud or want of jurisdiction. Ohio Pyro at ¶ 19, 23. In a proceeding where a 

new right is based upon operation of the former judgment, not only the parties to the 

original action but others affected by application of the judgment have standing to bring a 

collateral attack on these very limited grounds. Black at ¶ 15, citing Horn v. Childers, 116 

Ohio App. 175, 179 (4th Dist.1959). In the present case, Tolliver's rights as a lienholder 

are affected by the judgment invoked by JCCN, and Tolliver has standing to collaterally 

attack that judgment.
No. 13AP-651 7 

{¶ 17} Tolliver asserts that, as an initial investor in the development project, JCCN 

should be treated as an equity holder rather than holder of a note because otherwise 

Albany Station would have been almost entirely uncapitalized. For this proposition, 

Tolliver relies on bankruptcy cases addressing the relative standing of creditors to a 

bankruptcy estate. See, e.g., In re Shubh Hotels Pittsburgh LLC, 476 B.R. 181 (Bankr. 

W.D.Pa.2012) (analyzing factors under which lenders may be reclassified as equity 

investors and subordinated to other creditors). While we do not reject out of hand the 

possibility that such bankruptcy rules might be applied by analogy to reorder competing 

mortgage liens, we find that in the present case Tolliver presents no evidence that 

supports the existence of fraud on the part of JCCN in obtaining its judgment, nor that the 

investment structure of Albany Station amounted to fraud. The collateral attack upon 

JCCN's judgment therefore fails, and the trial court did not err in finding that there 

remained no genuine issue of material fact as to the validity of JCCN's lien priority. 

{¶ 18} With respect to Luper Neidenthal's lien based upon a statement of account, 

Tolliver asserts that summary judgment was improper because Tolliver pointed to, inter 

alia, evidence of billing practices that indicated that much of the legal work underlying 

Luper Neidenthal's bills was performed not on behalf of Albany Station but on behalf of 

that company's two principals personally. Moreover, Tolliver asserts some of this work 

was performed either prior to the time when Albany Station became a de jure entity or 

after the time when Albany Station ceased commercial activity and had any need for legal 

services. 

{¶ 19} In an action to marshal liens, the creditor bears the burden of 

demonstrating that the account is owed and has not been paid. Zukerman, Daiker & Lear 

Co., L.P.A. v. Signer, 186 Ohio App.3d 686, 2009-Ohio-968, ¶ 34 (8th Dist.). Other 

creditors are thereby given the opportunity to contest competing liens and assert their 

superior rights to the collateral even where the primary obligor does not contest a 

particular debt in order to favor that creditor. Id. In Zukerman, for example, a mortgage 

lien was based on a debt owed to a family member, and competing lienholders disputed 

that it was valid or unpaid. While the present case is not a statutory action to marshal 

liens, as was the case in Zukerman, the same considerations apply to allow lienholders to 
No. 13AP-651 8 

contest the primacy of a superior lien that is allegedly the result of a collusive or 

fraudulent obligation. 

{¶ 20} With its initial motion for summary judgment, Luper Neidenthal submitted 

a statement of account showing that by 2010 Luper Neidenthal had written off legal fees 

in excess of the $20,000 amount secured by the mortgage. Frederick M. Luper, a 

principal with the firm, submitted an affidavit regarding the nature of the services 

provided to Albany Station. Subsequently, the trial court permitted Luper Neidenthal to 

supplement the evidence considered in support of summary judgment with certain 

redacted client invoices and the affidavit of Melissa A. Izenson, an attorney employed by 

the firm, authenticating the account records. Tolliver could answer only with speculative 

assertions regarding the timing of the legal services at issue and the extent to which they 

might not have benefitted a moribund enterprise. Tolliver is not entitled to the inference 

that an insolvent company has no need for legal counsel, nor that pre-incorporation fees 

incurred by the promoters of a business entity may never be attributed to the entity once 

it is formally created. The trial court, therefore, did not err in granting summary 

judgment in favor of Luper Niedenthal. 

{¶ 21} In accordance with the foregoing, the trial court did not err in granting 

summary judgment in favor of appellees Luper Neidenthal and JCCN. Appellant Tolliver 

& Curl Paving Contractors, Inc.'s two assignments of error are overruled, and the 

judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

KLATT and CONNOR, JJ., concur. 

T. BRYANT, J., retired of the Third Appellate District, 

assigned to active duty under authority of the Ohio 

Constitution, Article IV, Section 6(C). 

_______________________