[Cite as Yeckley v. Yeckley, 2020-Ohio-5432.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

THOMAS D. YECKLEY, : 

 Plaintiff, : 

 No. 109275 

 v. : 

 

THOMAS D. YECKLEY, ET AL., : 

 

 Defendants-Appellants. : 

[Appeal by Richard Yeckley] 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 25, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-07-611861 

 

Appearances: 

Barry L. Sweet, for appellee Dennis Yeckley. 

Reimer Law Co., Mike L. Wiery, and Katherine D. 

Carpenter, for appellee Keybank, N.A. 

Edwin V. Hargate, for appellant Richard Yeckley. 

LARRY A. JONES, SR., J.: 

This case involves a dispute among four siblings over the family 

house. In the instant appeal, defendant-appellant Richard Yeckley (“Richard”) 
appeals various trial court orders imposed in a partition lawsuit filed by his brother 

plaintiff-appellee Thomas Yeckley (“Thomas”). For the reasons that follow, we 

affirm the trial court’s judgment. 

In 2001, the siblings’ mother, Lena Yeckley (“Lena”), and defendantappellee and sibling Linda Scott (“Linda”) executed a promissory note in the 

amount of $60,000 plus interest at a variable rate to defendant-appellee KeyBank 

National Association (“KeyBank”). Lena executed a mortgage granting KeyBank 

first and best lien on real property located at 271 East 270th Street in Euclid, Ohio. 

The mortgage was recorded in the Cuyahoga County Recorder’s Office on 

November 7, 2001. 

Lena died in 2006 and Linda lived in the house until 2009. In 2007, 

Thomas filed a complaint for partition. In 2009, defendant-appellee and sibling 

Dennis Yeckley (“Dennis”) moved into the house. 

Thomas moved for summary judgment, which the trial court 

granted, finding that the four siblings were coparceners of the property and 

entitled to a proportional share of the property. The litigation among the siblings 

continued, with parties filing motions for various setoffs for improvements, 

investments, and rent. In 2015, the trial court determined that the reasonable 

rental value of the property was $800 a month and Linda “enjoyed exclusive 

possession of the premises from April 2006 through March 2009, a period of 36 

months, for a total of $28,800.00.” The trial court further held that Dennis 
“enjoyed exclusive possession of the premises from April 2009 through the time of 

the [2014] hearing, a period of 75 months, for a total value of $60,000.00.” 

Thomas and Richard filed a joint motion for accounting and rents. 

In October 2016, a magistrate denied the motion; Thomas and Richard filed 

untimely objections and the trial court overruled their objections. Thomas and 

Richard filed a motion for reconsideration, which the trial court also denied. 

Linda defaulted under the terms of the note and mortgage. KeyBank 

accelerated the loan balance and filed a complaint for foreclosure in June 2018. 

In October 2019, the magistrate entered an order granting the 

foreclosure and sale of the property. Thomas and Richard filed objections that 

were denied by the trial court in its entry adopting the magistrate’s decision. 

Richard filed a notice of appeal on December 5, 2019. 

Richard raises four assignments of error for our review: 

I. The trial court erred and abused its discretion in denying on 

October 19, 2016 plaintiff and defendant-appellant’s joint motion for 

an accounting and rents filed August 28, 2015 and filed two months 

after the magistrate’s decision on set-offs (partial); since a motion for 

an accounting and rents pursuant to O.R.C. 5307.21 is a separate 

cause of action or claim, and payment is not limited to a motion for 

set-offs from improvements investments and rents received from 

third parties, which is commonly filed in a partition action, and the 

action is considered an action in law Warner v. Matthews, 79 Ohio 

App. 111 (1946); the plaintiff and defendant-appellant are entitled to a 

judgment for their respective share of the reasonable rental value of 

the property. 

II. The trial court erred and abused its discretion in denying plaintiff 

and defendant-appellant’s motion for reconsideration; since the 

motion calls to the trial court’s attention an obvious error in its 

decision. 
III. The trial court erred and abused its discretion in denying plaintiff 

and appellant’s objections to foreclosure and order of sale decision of 

October 4, 2019. 

IV. The trial court erred and abused its discretion in denying plaintiff 

and appellant’s request for findings of fact and conclusions of law 

regarding the denial of their motion for an accounting and rents filed 

August 28, 2015 in an entry date November 21, 2016. 

Final Appealable Order 

As an initial matter, we first determine whether this is a final, 

appealable order. Dennis filed a motion to dismiss, arguing that the November 7, 

2019 judgment entry of foreclosure was not a final, appealable order because it did 

not dispose of all claims against all parties. He also requested sanctions and 

attorney fees. 

Article IV, Section 3(B)(2) of the Ohio Constitution grants 

jurisdiction to courts of appeals “to review and affirm, modify, or reverse 

judgments or final orders of the courts of record inferior to the court of appeals 

within the district.” Consequently, this court does not have jurisdiction over 

nonfinal orders. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio1984, 11 N.E.3d 1140, ¶ 10, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio 

St.3d 17, 20, 540 N.E.2d 266 (1989). ‘“An order of a court is a final appealable 

order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 

54(B), are met.”’ Roznowski at id., quoting State ex rel. Scruggs v. Sadler, 97 Ohio 

St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 5. 

In order for a judgment decree in foreclosure to constitute a final 

order, it must address the rights of all lienholders and responsibilities of the 
mortgagor. Roznowski at ¶ 20. Dennis claims that the trial court’s foreclosure 

order is not a final, appealable order because it did not reference or dispose of 

Thomas’s and Richard’s second motion for accounting and rents, filed August 28, 

2015. We disagree. 

On October 19, 2016, the magistrate denied Thomas’s and Richard’s 

August 28, 2015 motion, finding: 

The Magistrate finds that the relative interests of the cotenants in the 

partition action, Thomas D. Yeckley, Linda L. Scott, Dennis G. 

Yeckley, and Richard A. Yeckley were determined by the Court’s 

orders of 8/14/15 and 5/26/16, but that those orders have become 

partially stale as a result of subsequent events, most notably the 

redemption of the tax certificates * * * and the non-payment of the 

KeyBank’s mortgage. Paragraphs eight and nine (regarding the tax 

certificates and selling the property subject to KeyBank’s mortgage) of 

the order of 8/14/15 are vacated. The order of distribution in the 

order of 5/26/16 is superseded by the order of distribution below. Any 

further adjustments of the relative interests of the cotenants, and any 

further distributions of sale proceeds, after the third distribution 

paragraph below, are continued until further order. 

The court continued in a footnote, as follows: 

The findings in the 8/14/15 order, with respect to set-offs and the 

cotenants’ relative interests will be, final, and appealable (if this 

Magistrate’s decision is adopted), but they are also still subject to 

being amended due to future events. If one of the cotenants were to 

exercise their right of redemption prior to a confirmation of a sale, 

they would properly seek an adjustment to the set-offs determined in 

the 8/14/15 order by motion, filed post-Decree of Foreclosure. 
In addition, the trial court’s November 7, 2019 order of foreclosure 

stated that, “The objections of Plaintiff, Thomas Yeckley and Defendant, Richard 

Yeckley are overruled.”1 

When the court’s orders are read together, it is apparent that the 

trial court disposed of Richard’s and Thomas’s first and second motions for 

accounting and rents. 

Civ.R. 54(B) provides that when there are multiple claims and 

parties, a trial 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 accordance with Civ.R. 54(B), the trial court’s judgment entry 

stated: “There is no just reason for delay.” 

In light of the above, we find that we have a final, appealable order 

and deny Dennis’s motion to dismiss this appeal in its entirety. We now proceed to 

the merits of this appeal. 

Motion for Accounting and Rents 

In his first assignment of error, Richard argues that the trial court 

erred in denying his and Thomas’s August 2015 joint motion for an accounting and 

rents. 

 

1Even if the trial court had not expressly overruled Thomas’s and Richard’s August 28, 

2015 motion, an appellate court ordinarily presumes that a trial court overruled a motion 

when the trial court fails to explicitly rule on the motion. State ex rel. The V Cos. v. 

Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). 
As mentioned, Richard and Thomas filed two joint motions for 

accounting and rents. Richard argues that, pursuant to R.C. 5307.21, Dennis and 

Linda should be required to pay the fair rental value of the property because they 

seized the exclusive possession of the family home following their mother’s 2006 

death for their own benefit and without Richard’s and Thomas’s consent. Richard 

and Thomas requested a judgment against Dennis and Linda for “the reasonable 

rental value of the property since 2006.” 

The magistrate overseeing the case held a hearing on the motion, 

took testimony, and the parties submitted evidence. On June 30, 2015, the 

magistrate issued a “Decision on Set-offs” with findings of fact and conclusions of 

law, finding in part: (1) the house was properly valued at $105,000; (2) the parties’ 

fifth sibling, Nena Yeckley, previously transferred her interest to Linda making 

Linda’s ownership interest, prior to setoff, 40 percent; (3) Thomas, Dennis, and 

Linda’s ownership interest, prior to setoff, was 20 percent each; and (4) various 

setoffs modified the siblings’ interests to 36.439 percent (Richard), 35.94 percent 

(Linda), 19.252 percent (Thomas), and 8.096 percent (Dennis). 

On July 13, 2015, Richard and Thomas filed a motion for an 

extension of time in which to file objections to this decision and filed their 

objections on August 11, 2015. Dennis filed pro se objections on July 28, 2015. 

On August 14, 2015, the trial court adopted the magistrate’s 

decision, expressly issuing a nonfinal order. The court gave the parties 30 days to 

file a “Notice of Election” if a party wished to purchase the property for $105,000 
and denied Richard’s and Thomas’s prior motion for an extension of time in which 

to file objections to the magistrate’s decision. The trial court also overruled the 

motion for an extension of time to object to the magistrate’s decision. 

On appeal, Richard contends that “the central issue in this appeal is 

the trial court’s denial of [his] statutory Motion for an Accounting and Rents.” 

Civ.R. 53(D)(3)(b)(i) states as follows: 

A party may file written objections to a magistrate’s decision within 

fourteen days of the filing of the decision, whether or not the court has 

adopted the decision during that fourteen-day period as permitted by 

Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other 

party may also file objections not later than ten days after the first 

objections are filed. 

In accordance with Civ.R. 53(D), Richard and Thomas had 14 days 

to object from the date when the magistrate filed its decision. The magistrate 

issued its decision, including findings of fact and conclusions of law, on June 30, 

2016. On July 13, 2016, Richard and Thomas filed a joint motion requesting an 

extension of time; they did not, however, file objections to the magistrate’s 

decision at that time. Instead, they waited until August 11, 2015, to file their 

objections; therefore, their objections were untimely. 

Because Richard’s and Thomas’s objections were untimely filed, 

Richard has waived all but plain error. A review of the magistrate’s decision shows 

that the magistrate thoroughly reviewed the testimony and evidence submitted at 

the hearings on the motion as well as all pertinent pleadings. The magistrate 

determined that each of the four siblings was entitled to a proportionate share of 
the house to be adjusted by setoffs for certain expenditures spent to upkeep the 

house, and, in the case of Dennis and Linda, for having exclusive possession of the 

premises at various times after their mother’s death. 

Although Richard argues that the trial court erred in denying the 

motion for an extension of time in which to file objections and argues against the 

substance of the magistrate’s decision, he does not advance a plain error argument 

on appeal and we decline to construct such a claim for him. See State v. White, 9th 

Dist. Summit Nos. 23955 and 23959, 2008-Ohio-2432, ¶ 33 (“[T]his Court will not 

construct a claim of plain error on behalf of an appellant who fails to raise such an 

argument in her [or his] brief.”). 

In light of the above, the first assignment of error is overruled. 

Motion for Reconsideration 

In the second assignment of error, Richard contends that the trial 

court erred in denying his motion for reconsideration. In his fourth assignment of 

error, Richard claims that the trial court erred in denying his motion for findings of 

fact and conclusions of law. We consider these assignments of error together. 

As mentioned, Richard and Thomas filed a second motion for 

accounting and rents on August 28, 2015, after the trial court had already issued its 

decision on their first motion. The magistrate held the motion in abeyance and the 

trial court subsequently denied the motion. Richard and Thomas filed a motion 

for findings of fact and conclusions of law and a subsequent motion for 

reconsideration, both of which the trial court denied in a November 21, 2016 
journal entry, stating that the parties’ evidence and arguments on setoffs, including 

any claims for rent, had been previously heard and determined by the magistrate 

in the magistrate’s June 30, 2015 order, as well as any objections to that decision, 

were untimely filed. 

Richard claims that the August 28, 2015 motion for accounting and 

rents differs from the first motion for accounting and rents, and the court erred in 

denying his motion to reconsider. Specifically, he claims that the first motion 

concerned common law setoffs “and other matters” while the second motion was 

made pursuant to R.C. 5307.21; therefore, they are separate and distinct motions 

that the court erred in considering as one. 

We review a trial court’s ruling on a motion for reconsideration 

under an abuse of discretion standard. Maddox Defense, Inc. v. GeoData Sys. 

Mgmt., 2019-Ohio-1778, 135 N.E.3d 1212, ¶ 74 (8th Dist.), citing Vanest v. 

Pillsbury Co., 124 Ohio App.3d 525, 535, 706 N.E.2d 825 (4th Dist.1997). “The 

term ‘abuse of discretion’ connotes more than an error of law or of judgment; it 

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” 

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

We have reviewed the first and second joint motions for accounting 

and rents and agree with the trial court that the arguments with regard to setoffs 

and claims for rent were decided by the June 30, 2015 magistrate’s decision, to 

which Richard and Thomas failed to file timely objections. Richard and Thomas 

were merely attempting to “cure” their untimely filing with a successive motion for 
accounting and rents. The trial court did not abuse its discretion when it denied 

their motion for reconsideration. 

The trial court also did not err when it overruled Richard’s motion 

for findings of fact and conclusions of law. Richard and Thomas requested 

findings of fact and conclusions of law for the magistrate’s October 19, 2016 

decision that denied their second motion for accounting and rents. The trial court 

denied their motion for findings of fact in its November 21, 2016 journal entry. 

Because both motions for accounting and rents set forth the same arguments and 

requested the same relief, the trial court did not err in determining that the 

magistrate’s initial order disposing of the first motion for accounting and rents also 

disposed of the second motion. Thus, there was no requirement for the court to 

issue findings of fact and conclusions of law; the magistrate issued thorough 

findings of fact and conclusions of law in its June 30, 2015 order. 

The second and fourth assignments of error are overruled. 

Objections to Foreclosure 

In the third assignment of error, Richard claims that the trial court 

erred in overruling his and Thomas’s objections to the magistrate’s October 4, 

2019 foreclosure and order of sale. 

On October 4, 2019, the magistrate issued its foreclosure and order 

of sale decision. Richard and Thomas filed timely objections. On November 7, 

2019, the trial court issued an order, adopting the magistrate’s decision and 

overruling the objections. 
The November 7, 2019 judgment entry adopting the magistrate’s 

foreclosure order granted appellee KeyBank’s motion for summary judgment and 

motion for default judgment, granted a money judgment in favor of KeyBank, and 

granted KeyBank foreclosure of the property. 

Richard contends that the trial court abused its discretion in 

overruling their objections for the same reasons that the trial court erred in 

overruling previous objections to court order’s regarding the first and second 

motions for accounting and rents ─ namely that Richard and Thomas filed joint 

motions for accounting and rents under two separate theories of recovery and the 

court erred in finding that the magistrate’s August 14, 2015 decision disposed of 

both motions. 

Richard fails to advance any arguments separate from those made 

under the previous assignments of error and does not contest KeyBank’s 

foreclosure of the property. 

In light of the above, the trial court did not abuse its discretion in 

denying Richard’s and Thomas’s objections to the magistrate’s October 4, 2019 

order. 

The third assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

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

27 of the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

MARY EILEEN KILBANE, J., CONCUR