[Cite as Greenbriar at River Valley Phase Homeowners Assn., Inc. v. Powermark Homes, Inc., 2011-Ohio-2157.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96007

GREENBRIAR AT RIVER VALLEY PHASE 

HOMEOWNERS ASSOCIATION, INC., ET AL.

PLAINTIFFS-APPELLEES 

vs. 

POWERMARK HOMES, INC.

DEFENDANT-APPELLANT 

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-676267 

BEFORE: Celebrezze, P.J., Cooney, J., and Rocco, J. 

RELEASED AND JOURNALIZED: May 5, 2011 
ATTORNEY FOR APPELLANT

Bruce W. McClain 

28218 Knickerbocker 

Bay Village, Ohio 44140 

ATTORNEYS FOR APPELLEES

For Greenbriar at River Valley Phase 

Homeowners Association, Inc. 

Kimberly L. Strauss 

M. Katherine Bushey 

Kevin M. Fields 

Darcy Mehling Good 

Robert E. Kmiecik 

Kaman & Cusimano, L.L.C. 

50 Public Square 

Suite 2000 

Cleveland, Ohio 44113 

Shawn W. Schlesinger 

Koeth, Rice & Leo Co., L.P.A. 

1280 West Third Street 

Cleveland, Ohio 44113 

For Homes Savings and Loan Co. 

of Youngstown Ohio 

Thomas M. Gacse 

P.O. Box 1111 

Youngstown, Ohio 44501 

For Interstate Kitchen Supply 

Ronald A. Annotico 

O’Shea & Associates Co., L.P.A. 

Beachcliff Market Square 

19300 Detroit Road 

Suite 202 

Rocky River, Ohio 44116 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶ 1} This cause came to be heard upon the accelerated calendar 

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of 

counsel. 

{¶ 2} Defendant-appellant, Powermark Homes, Inc. (“Powermark”), 

appeals from the grant of summary judgment in favor of plaintiff-appellee, 

Greenbriar at River Valley Phase Homeowners, Inc. (“Greenbriar”), in a 

foreclosure action. Because the order granting summary judgment does not 

address the magistrate’s decision, dispose of Powermark’s related claims 

raised in a counterclaim against Greenbriar, set forth the liabilities and 

priorities of the parties, and does not evidence that there is no just reason for 

delay, the appeal must be dismissed. 

{¶ 3} Powermark purchased several lots within a new housing 

development project governed by a homeowners association in Avon, Ohio. 

Powermark acquired deeds and entered into a homeowners association 

agreement with Greenbriar. Powermark sold most of the lots prior to 2007 

and only had four lots remaining. Powermark’s account with Greenbriar for 

homeowners association dues was delinquent, and in 2007 and 2008, 

Greenbriar filed liens against Powermark’s four remaining lots in the housing 

development. 
{¶ 4} On November 12, 2008, Greenbriar filed a foreclosure action, and 

Powermark answered. On August 10, 2009, Greenbriar filed its motion for 

summary judgment, and Powermark filed its response. Then, on October 8, 

2009, Powermark sought leave to file an amended answer and counterclaim 

with attached pleadings, which was granted on January 14, 2010. The 

counterclaim asserted claims for breach of contract, conversion, fraud, unjust 

enrichment, and punitive damages. It alleged that after commencement of 

suit, Greenbriar demanded exorbitant payoff amounts when Powermark tried 

to sell the lots subject to Greenbriar’s foreclosure action. Powermark 

asserted a breach of contract claim alleging that Greenbriar failed to provide 

services under the homeowners association agreement causing Powermark to 

incur additional expenses for services that should have been provided by 

Greenbriar. Finally, Powermark also alleged that the regular homeowners 

association dues it was charged were in excess of those required under the 

contract for undeveloped lots, and the amounts of the liens were not accurate 

as a result. 

{¶ 5} On October 15, 2010, the trial court granted Greenbriar’s motion 

for summary judgment; however, the journal entry granting the motion failed 

to adopt the decision of the magistrate, 1 failed to address Powermark’s 

 1

 The trial court instructed Greenbriar to submit a proposed magistrate’s decision, which 

Greenbriar did, but the court never adopted it. 
counterclaim, failed to set forth any amount due and owing to Greenbriar or 

any other party, and did not include Civ.R. 54(B) language. 

Law and Analysis

{¶ 6} “Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, 

this court’s appellate jurisdiction is limited to the review of final orders of 

lower courts. A trial court’s order is final and appealable only if it meets the 

requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” Whipps v. 

Ryan, Franklin App. Nos. 07AP-231 and 07AP-232, 2008-Ohio-1216, ¶18, 

citing In re Adoption of M.P., Franklin App. No. 07AP-278, 2007-Ohio-5660, 

¶15, citing Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 1999-Ohio-128, 

716 N.E.2d 184. 

{¶ 7} R.C. 2505.02(B) lists the categories of orders that are final and 

appealable, and in pertinent part, states, “[a]n order is a final order that may 

be reviewed, affirmed, modified, or reversed, with or without retrial, when it 

[is] * * * [a]n order that affects a substantial right in an action that in effect 

determines the action and prevents a judgment.” 

{¶ 8} “For an order to determine the action and prevent a judgment for 

the party appealing, it must dispose of the whole merits of the cause or some 

separate and distinct branch thereof and leave nothing for the determination 

of the court.” Natl. City Commercial Capital Corp. v. AAAA At Your Serv., 

Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, 868 N.E.2d 663, ¶7. “Generally, a 
judgment entry ordering the foreclosure of property and the distribution of 

the proceeds to the various claimants is a final, appealable order.” First 

Collateral Serv. v. Russell, Meigs App. No. 03CA8, 2005-Ohio-4908, ¶8, citing 

Third Natl. Bank of Circleville v. Speakman (1985), 18 Ohio St.3d 119, 120, 

480 N.E.2d 411; Oberlin Sav. Bank Co. v. Fairchild (1963), 175 Ohio St. 311, 

312-313, 194 N.E.2d 580. But here, the trial court’s order does not set forth 

the amounts of judgment and priorities of the claimants. The proposed 

magistrate’s decision submitted by Greenbriar does set forth priorities and 

amounts, but the trial court never adopted it. Further, the order does not 

address the counterclaim of Powermark and does not evidence that the trial 

court undertook an analysis under Civ.R. 54(B).2

{¶ 9} For these reasons, the order is not final and appealable. Noble v. 

Colwell (1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381. Accordingly, this 

appeal must be dismissed. 

Appeal dismissed. 

 2

 This rule states, “[w]hen more than one claim for relief is presented in an action whether as 

a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or 

separate transactions, or when multiple parties are involved, the court may enter final judgment as to 

one or more but fewer than all of the claims or parties only upon express determination that there is 

no just reason for delay. In the absence of a determination that there is no just reason for delay, any 

order or other form of decision, however designated, which adjudicates fewer than all the claims or 

the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the 

claims or parties, and the order or other form of decision is subject to revision at any time before the 

entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
It is ordered that appellees recover of appellant costs herein taxed. 

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

Rule 27 of the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

COLLEEN CONWAY COONEY, J., and 

KENNETH A. ROCCO, J., CONCUR