[Cite as Fifth Third Bank, Natl. Assn. v. Audia , 2024
- Ohio
- 2127.]



## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY FIFTH THIRD BANK, NATIONAL ASSOCIATION,

Plaintiff,

- vs - CHALMETTE AUDIA, et al.,

Defendant

- Appellee, (SUMIT DAVRE,

Appellant). CASE NO. 2024 - P - 0026
Civil Appeal from the Court of Common Pleas

Trial Court No. 2023 CV 00456

M E M O R A N D U M O P I N I O N Decided: June 3, 2024 Judgment: Appeal dismissed
Jeffrey K. Krueger

, Krueger and Valente Law, LLC, 11925 Pearl Road, Suite 201, Strongsville, OH 44136 (For Appellant). Jason A. Whitacre , Flynn Keith & Flynn, LLC, 214 South Water Street, Kent, OH 44240 (For Defendant

- Appellee).

JOHN J. EKLUND, J. {¶1} Sumit Davre (“Davre”) filed an appeal on April 17, 2024 from a judgment of the Portage County Court of Common Pleas staying execution of the case. Fifth Third Bank, National Association (“FTB”) filed a complaint against Chalmette Audia (“Audia’) for failing to make payments on a note and mortgage. The trial court granted a default judgment, and the property was scheduled for sheriff’ s sale and sold to a third

- party2

Case No. 2024

- P

- 0026 purchaser, Davre. The trial court entered an order on February 23, 2024, confirming the sale of the property . Audia filed a motion for a stay of execution of the judgment pending appeal, which the trial court granted on March 20, 2024

. {¶2} Audia filed a motion to dismiss this appeal for lack of a final appealable order , and Davre opposed the motion. The appealability of the trial court’s March 20 stay is no w before this court. {¶3} Section 3(B)(2), Article IV of the Ohio Constitution states that a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a “ final order

. ” If a trial court’ s judgment satisfies any of the categories in R.C. 2505.02(B) , it will be considered a “ final order, ” which can be immediately appealed and reviewed by a court of appeals. In re Adoption of M.J.E.S. , 11th Dist. Trumbull No s . 20 22

- T

- 0055 and 2022

- T

- 0056 , 2 022

- Ohio

- 2 336 , ¶ 2

. {¶4} R.C. 2505.02(B) provides, in pertinent part: {¶5} “ An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, w hen it is one of the following: {¶6} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; {¶7} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment; * * * {¶8} “(4) An order that grants or denies a provisional remedy * * *.” {¶9} This court ha s repeatedly held that appeal ing an entry that stays a proceeding is not a final order. In re Adoption of M.J.E.S. , at ¶ 5; In re: K.S. , 11th Dist. Ashtabula No. 2015

- A

- 0023, 2015

- Ohio

- 1771, ¶ 5; Anderson v. Wojtasik, 11th Dist.3

Case No. 2024

- P

- 0026 Geauga No. 2011

- G

- 3039, 2012

- Ohio

- 2119, ¶ 16; see also Alexander v. Chandley , 113 Ohio App.3d 435, 437 (“a stay order is not a final and appealable order”)

. {¶10} Specifically, regarding R.C. 2505.02( B)(1) and (2), this court has explained that an order granting a stay does not affect a substantial right, but simply p lace s the case on hold. In re Adoption of M.J.E.S. , at ¶ 6

. The primary function of a final, appealable order is the termination of a case or controversy. Id . Placing a case “on hold” is not consistent with that purpose

. Id

. {¶11} As to R.C. 2505.02(B)(4), this court has stated that since a stay is not an ancillary proceeding, it is not a provisional remedy, and since it is not an offshoot of the main action; it is the main action postponed. Id. ; see also Community First Bank & Trust v. Dafoe , 108 Ohio St.3d 472, 476, 2006

- Ohio

- 1503. {¶12} Based upon the foregoing analysis, Audia’s motion to dismiss is hereby granted. This appeal i s dismissed due to lack of a final appealable order.

MARY JANE TRAPP, J. , ROBERT J. PATTON, J. ,
concur

.