[Cite as Goodman v. Schneider, 2012-Ohio-5412.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 96922

DAVID GOODMAN,1 DIRECTOR, OHIO 

DEPARTMENT OF COMMERCE, ET AL. 

PLAINTIFFS 

vs. 

JOANNE C. SCHNEIDER, ET AL. 

 DEFENDANTS

[APPEAL BY CITY OF PARMA HEIGHTS LAND 

 DEVELOPMENT, LLC]

JUDGMENT:

DISMISSED 

 1

The original caption of this case was Doug White, Director, Ohio Department of Commerce 

v. Joanne C. Schneider, et al. In accordance with App.R. 29(C), the court substitutes David 

Goodman, the present Director of the Ohio Department of Commerce, for Doug White. 
Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CV-548887, CV-555252, CV-555408, CV-555412, 

CV-558095, CV-559117, CV-559879, CV-560633, CV-564814, 

CV-569073, CV-571494, CV-572965, and CV-592402 

BEFORE: Stewart, P.J., Sweeney, J., and Rocco, J. 

RELEASED AND JOURNALIZED: November 21, 2012 

ATTORNEYS FOR INTERVENOR-DEFENDANT/APPELLANT CITY OF 

PARMA HEIGHTS LAND DEVELOPMENT, LLC 

Thomas J. Scanlon 

Tim L. Collins 

Harvey Labovitz 

Julie A. Perkins 

Collins & Scanlon LLP 

3300 Terminal Tower 

50 Public Square 

Cleveland, OH 44113 

ATTORNEYS FOR INTERVENOR-DEFENDANT/APPELLEE CITY OF PARMA 

HEIGHTS, OHIO

Michael D. Pokorney 

Director of Law 

City of Parma Heights, OH 

BY: Charles T. Riehl 

 Darrell A. Clay 

 Aimee W. Lane 

Walter & Haverfield, LLP 

3500 Tower at Erieview 

1301 E. 9th Street 

Cleveland, OH 44114 
ATTORNEYS FOR THE HOME SAVINGS AND LOAN COMPANY OF 

YOUNGSTOWN, OHIO 

Richard J. Thomas 

Jeremy R. Teaberry 

Joseph A. Pope 

Henderson, Covington, Messenger and Thomas Co., L.P.A. 

6 Federal Plaza Central, Suite 1300 

Youngstown, OH 44503 

Michael J. Sikora, III 

Richard T. Craven 

Sikora Law LLC 

8532 Mentor Avenue 

Mentor, OH 44060 

ATTORNEYS FOR PLAINTIFF MARY TAYLOR, LIEUTENANT 

GOVERNOR/OHIO DEPARTMENT OF SECURITIES, DIVISION OF 

SECURITIES

Mike DeWine 

Ohio Attorney General 

BY: Michael J. Lampke 

Deputy Attorney General 

Executive Agencies Section 

30 E. Broad Street, Floor 26 

Columbus, OH 43215 

Michael R. Stavnicky 

Singerman, Mills, Desberg & Kauntz Co., LPA 

3333 Richmond Road, Suite 370 

Beachwood, OH 44122 

ATTORNEY FOR DEFENDANT R.W. SIDLEY, INC.

John J. Hurley 

Nelson, Sweet & Hurley 

8 North State Street, Suite 201 

Painesville, OH 44077 

ATTORNEYS FOR RECEIVER
M. Colette Gibbons 

Robert M. Stefancin 

Ice Miller, LLP 

Fifth Third Center 

600 Superior Avenue, East, Suite 1701 

Cleveland, OH 44114 

Jonathon M. Yarger 

Victor D. Radel 

Yarger, Radel & Pentz, LLC 

1111 Superior Avenue, Suite 530 

Cleveland, OH 44114 

ATTORNEYS FOR McGILL PROPERTY GROUP, LLC AND JOHN McGILL

Dale H. Markowitz 

David M. Ondrey 

Thrasher, Dinsmore & Dolan 

100 7th Avenue, Suite 150 

Chardon, OH 44024 

Robert J. Dubyak 

Dubyak, Connick, Sammong, Thompson & Bloom, LLC 

3401 Enterprise Parkway, Suite 205 

Cleveland, OH 44122 

Timothy J. Weyls, Jr. 

Weyls Peters, L.L.C. 

6505 Rockside Road, Suite 300 

Independence, OH 44131 

ATTORNEYS FOR DEFENDANT RICHARD SENSENBRENNER, CUYAHOGA 

COUNTY TREASURER 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Colleen Majeski 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 
Cleveland, OH 44113 

ATTORNEY FOR SKY BANK, AS SUCCESSOR

Jerry M. Bryan 

Henderson, Covington, Messenger and Thomas Co., L.P.A. 

6 Federal Plaza Central, Suite 1300 

Youngstown, OH 44503 

ATTORNEY FOR DEFENDANT TYCOR ROOFING, INC.

R. Clint Zollinger 

Day Ketterer 

Millennium Centre 

200 Market Avenue North, Suite 300 

P.O. Box 24213 

Canton, OH 44701 

ATTORNEYS FOR DEFENDANT HARRINGTON ELECTRIC CO.

Audra J. Zarlenga 

Daniel M. Haymond 

Mark A. Smith 

Robert S. Lewis 

Thompson Hine LLP 

127 Public Square 

3900 Key Center 

Cleveland, OH 44114 

ATTORNEYS FOR DEFENDANT DONLEY’S INC.

Allison E. Taller 

Barry J. Miller 

Jean Kerr Korman 

Benesch, Friedlander, Coplan & Aronoff, LLP 

200 Public Square 

2300 BP Tower 

Cleveland, OH 44114 

ATTORNEYS FOR DEFENDANTS TOMKO METAL FABRICATING, INC. AND 

NORTHERN VALLEY CONTRACTORS COMPANY, INC.
Erin K. Walsh 

Jerome W. Cook 

Richard W. Cline 

McDonald Hopkins Co., LLC 

600 Superior Avenue East, Suite 2100 

Cleveland, OH 44114 

ATTORNEY FOR DEFENDANT NORTHERN VALLEY CONTRACTORS 

COMPANY, INC.

Joseph N. Isabella 

921 Literary Road 

Cleveland, OH 44113 

ATTORNEYS FOR CLEVELAND CONSTRUCTION, INC. 

David Honig 

Daniel R. Wireman 

James D. Ludwig 

Cleveland Construction, Inc. 

5390 Courseview Drive 

Mason, OH 45040 

ATTORNEYS FOR GQ CONTRACTING CO., LLC

Timothy J. Duff 

Gary F. Werner 

Berns, Ockner & Greenberger 

3733 Park East Drive, Suite 200 

Beachwood, OH 44122 

ATTORNEY FOR TIMOTHY KREUZER

Sara M. Donnersbach 

Weltman, Weinberg, Reis & Co., LPA 

323 W. Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

ATTORNEY FOR LORAIN GLASS CO., INC.

James W. Moennich 

Wickens, Herzer, Panza, Cook & Batista 

35765 Chester Road 
Avon, OH 440111 

ATTORNEY FOR STEINGASS MECHANICAL CONTRACTING

Michael L. Fortney 

Fortney & Klingshirn 

4040 Embassy Parkway, Suite 280 

Akron, OH 44333 

FOR DEFENDANT

Joanne C. Schneider 

P.O. Box 30279 

Middleburg Heights, OH 44130

MELODY J. STEWART, P.J.:

{¶1} Intervenor-appellant Parma Heights Land Development, LLC (“PHLD”) 

appeals from an order denying its motion for summary judgment on its request that the 

court extinguish a lien claimed by appellee city of Parma Heights against property owned 

by PHLD.2

 The court held that there were “questions of law and fact” on the issue. 

PHLD’s two assignments of error collectively challenge the court’s refusal to grant 

summary judgment. 

 2

Home Savings and Loan Company has filed an “appellee’s” brief in this appeal, but it has no 

standing to do so. The notice of appeal filed by PHLD challenges only that part of the court’s order 

that refused to grant summary judgment on legal issues relating to the city’s special assessment. 

Home Savings and Loan Company is involved in other aspects of this litigation, particularly with 

respect to lien priority, but it has no obvious interest in the outcome of the legal questions posed by 

the special assessment. 
{¶2} We find that the order denying summary judgment is not a final appealable 

order. 

 I 

{¶3} The subject matter of this case relates to the failure of the Cornerstone 

development project in the city of Parma Heights. Cornerstone was a residential/retail 

development project financed with a combination of private and public funds. The 

co-owners of the project, Joanne and Alan Schneider, recruited investors for the project, 

but those investments were used to support a Ponzi scheme that Joanne, who was also the 

project manager, was running. When the Ponzi scheme collapsed, so did the funding for 

Cornerstone. The development was cancelled, and Joanne Schneider eventually pleaded 

guilty to a number of criminal charges. Investors and contractors scrambled to recover 

what they could from Schneider’s assets, with the ensuing litigation centering on the 

priority of liens against her remaining assets. 

{¶4} The assets of the Cornerstone project consisted of three different entities 

owned by Schneider: Pearl Development Co., LLC, Ruby Development Co., LLC, and 

Garnet Development Co., LLC. These assets were put under the control of a 

court-appointed receiver who was to auction off those assets. In June 2006, the court set 

forth the auction procedures and, in doing so, precluded any claims on the property. The 

court stated: 

Without prior consent from the Court, all creditors, claimants, bodies 

politic, parties in interest, and their respective attorneys, servants, agents, 

and employees, and all other persons, firms and corporations be, they 

hereby are, jointly and severally, enjoined and stayed from (1) commencing 
or continuing any action at law or suit or proceeding in equity to foreclose 

any lien or enforce any claim against the Receivership Assets, or against the 

Receiver in any court, and (b) from executing or issuing or causing the 

execution or issuance out of any court of any writ, process, summons, 

attachment, subpoena, replevin, execution, or other process for the purpose 

of impounding or taking possession of or interfering with the Receiver in 

the discharge of his duties in this proceeding or with the exclusive 

jurisdiction of this Court over the Receivership Assets and the said 

Receiver. 

{¶5} The court also gave the receiver permission to sell the Cornerstone assets free 

and clear of any claims, stating: 

The Court further finds that the sales of the properties shall be free and 

clear of all liens, claims and encumbrances (for purposes hereof, easements, 

covenants and restrictions of record which do not secure the repayment of 

money shall not be included as a lien, claim or encumbrance subject hereto). 

 Accordingly, all such liens, claims and encumbrances which now exist or 

are hereafter placed of record prior to the date of sale on or against the 

properties shall be, and they hereby are, extinguished as liens, claims and 

encumbrances against the properties; rather, the liens, claims and 

encumbrances against a particular property will attach to the net proceeds of 

the sale of that property. All such net proceedings from the sale of a 

Property will be held in a separate interest bearing account until further 

order of the Court. 

{¶6} The Cornerstone properties were sold at auction in November 2006 to the 

McGill Property Group, LLC. The receiver asked the court to authorize the sale “free 

and clear of liens, claims, and encumbrances and to transfer the interests of lienholders to 

the proceeds of the sale.” The court confirmed the sale on January 2, 2007, and, 

consistent with the terms of the purchase agreement entered into at the auction, stated: 

4. The sale of the Properties to the Buyer shall be free and clear of any 

lien, claim, or encumbrance whether known or unknown, liquidated or 

unliquidated, contingent or otherwise, including but not limited to those 

liens and encumbrances expressly identified and included in the title 

commitment issued with respect to the Properties and incorporated by 
reference in this Order * * *. Sale of the Property shall be free and clear of 

any and all asserted or unasserted, known or unknown, statutory or 

contractual * * * assessments and governmental funded improvements 

whether assessed or not, including assessments that can be filed or certified 

for inclusion on the County Auditor’s tax duplicate now or in the future for 

any improvements already made to or for the benefit of the Properties. 

Any and all valid and enforceable liens, claims or encumbrances of the 

Properties, including but not limited to any liens or claims arising from any 

assessments, liens or taxes, or the provisions of any governmentally funded 

improvements, whether assessed or not, shall be transferred, fixed and 

attached to the net proceeds of the sale of the Properties, with the same 

validity, priority, force and effect as such liens and/or claims had upon the 

properties immediately prior to the closing. 

{¶7} Following the sale, McGill assigned its rights to Cornerstone properties to 

PHLD. 

{¶8} In November 2006, after the sale to McGill had been completed, McGill 

learned that the city had placed a special assessment on the property in order to recoup 

public funds it expended to improve the site for construction. That assessment was 

passed by Parma Heights Ordinance No. 2006-16 in May 2006. At the time the city 

passed the ordinance, Martin Zanotti, the mayor of Parma Heights, knew that the court 

had ordered the sale of the Cornerstone properties “free and clear” of liens and 

encumbrances. All told, the special assessment would raise $4,137,557.72. The 

ordinance was certified to the county auditor in October 2006. The city claimed that the 

special assessment was in essence a tax on the property; thus, giving the assessment 

“super” priority over all other liens and claims. 

{¶9} PHLD argued that the city’s special assessment was invalid because the court 

granted the receiver permission to sell the Cornerstone properties free and clear of any 
liens or encumbrances, either present or future. It also argued that the court erred by 

refusing to enforce its order that the Cornerstone properties be sold free and clear of any 

liens. The city argued that the court had no authority to authorize a receiver to sell 

receivership property free and clear of a lien for an unpaid municipal special assessment 

and that by doing so, the court essentially prohibited the city from imposing its special 

assessment. 

{¶10} When denying PHLD’s motion for summary judgment, the court stated that 

there were “questions of law and fact.” However, the court did not state what questions 

remained for resolution. 

 II 

{¶11} R.C. 2505.02 defines a final order as, among other things, an order that 

affects a substantial right in an action that in effect determines the action and prevents a 

judgment. 

{¶12} Ordinarily, an order denying a motion for summary judgment is not a final, 

appealable order because it does not determine the action. Nayman v. Kilbane, 1 Ohio 

St.3d 269, 271, 439 N.E.2d 888 (1982). We have held, however, that an order 

determining the priority of liens, but not ordering foreclosure and sale, is final and 

appealable, even if the court has not yet ordered foreclosure or sale of the property. 

TCIF Reo GCM, LLC v. Natl. City Bank, 8th Dist. No. 92447, 2009-Ohio-4040, ¶ 13; 

Bank of Am. NA v. Omega Design/Build Group, LLC, 1st Dist. No. C-100018, 

2011-Ohio-1650, ¶ 16. 
{¶13} Some of the companion appeals to this case do raise questions of lien 

priority, so they potentially fall within the rule set forth in TCIF Reo GCM. This case, 

however, does not. The question presented on summary judgment was whether the court 

should have declared that the Cornerstone properties were sold free and clear of any liens, 

including any special assessments levied by the city. This issue does not involve a 

priority dispute between lienholders, but whether the court-authorized conditions of sale 

allowed PHLD to take the properties free and clear of the city’s special assessment. This 

issue does not involve the priority of liens, so it falls outside the rule of appealability set 

forth in TCIF Reo GCM. 

{¶14} It follows that the order denying the motion for summary judgment was not 

final and appealable under R.C. 2505.02. We therefore lack jurisdiction to hear this 

appeal. 

{¶15} Appeal dismissed. 

It is ordered that appellee, City of Parma Heights, recover of appellant, PHLD, its 

costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, PRESIDING JUDGE 

JAMES J. SWEENEY, J., and 

KENNETH A. ROCCO, J., CONCUR