State ex rel. Midwest Pride IV, Inc. v. Pontious

[This decision has been published in Ohio Official Reports at 

75 Ohio St.3d 565

.]




    THE STATE EX REL. MIDWEST PRIDE IV, INC., APPELLANT, v. PONTIOUS,
                                    JUDGE, APPELLEE.
   [Cite as State ex rel. Midwest Pride IV, Inc., v. Pontious, 

1996-Ohio-459

.]
Mandamus to compel common pleas court judge to vacate his order setting aside
          sheriff’s sale of real property successfully bid on by relator—Complaint
          dismissed, when.
          (No. 95-1297—Submitted April 15, 1996—Decided June 5, 1996.)
    APPEAL from the Court of Appeals for Fayette County, No. CA94-09-008.
                                  __________________
          {¶ 1} According to its complaint, Midwest Pride IV, Inc. (“M.P.”),
appellant, was the successful bidder for real property at a sheriff’s sale in Fayette
County. Fayette County Common Pleas Judge Victor D. Pontious, Jr., appellee,
ordered the sheriff’s sale in Jean Palmer, Treasurer of Fayette County v. Bobby
Ward et al., case No. CIV930138, due to Bobby and Betty Ward’s failure to pay
delinquent real estate taxes. The other defendants in the foreclosure action were
Roger’s Roadside Inns of America, Inc., a mortgagee, and Ohio Motor Inns, Inc.,
which did not pursue any claim in the premises.
          {¶ 2} Prior to the sheriff’s sale, three different appraisers estimated the
value of the property at $50,000 pursuant to R.C. 2329.17. Notice of the sale was
published pursuant to R.C. 2329.26 and 2329.27. M.P. bid $65,000, or more than
two-thirds of the appraised value of the property that R.C. 2329.20 requires for a
sale. M.P. also secured its bid with a deposit of ten percent of the bid price, or
$6,500.
          {¶ 3} On August 2, 1994, before confirmation of the sale pursuant to R.C.
2329.31 (deed of property goes to purchaser if no irregularity in proceedings at
sheriff’s sale), the Fayette County Treasurer moved to set the sale aside. The
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treasurer represented, without evidentiary basis, that appraisals of the property had
been based on erroneous information, that this information had been announced at
the sale, and that the announcement had “stifled” the bidding process. M.P. was
not named a party in the underlying foreclosure proceeding, but it was served notice
of the treasurer’s motion and the September 2, 1994 hearing date scheduled for the
motion. M.P. did not respond to the motion within fourteen days as required by
Rule 5.01 of the Rules of Practice of the Fayette County Common Pleas Court.
       {¶ 4} On August 29, 1994, several days before the scheduled hearing, Judge
Pontious granted the treasurer’s motion and set aside the sale, finding that
“statements made to the appraisers prior to the taking of bids may have prejudiced
the bidding.” The judge granted the motion by an entry approved and filed by
attorneys for the treasurer and Ward. The day after this filing, M.P. filed a motion
to intervene and a “proposed” complaint seeking confirmation of the sale. Judge
Pontious denied the motion to intervene by entry filed on October 19, 1994, noting
that M.P. had not timely responded to the set-aside motion.
       {¶ 5} On September 26, 1994, M.P. sought a writ of mandamus to compel
Judge Pontious to vacate the order setting aside the sale and to conduct a hearing
on the treasurer’s motion. M.P. claimed it could prove the appraisers had not been
influenced by erroneous information and that erroneous information had not been
announced at the sale. Judge Pontious answered the complaint, admitting the
proceedings in the underlying foreclosure action, and later filed combined motions
for summary judgment, judgment on the pleadings, and dismissal. The Court of
Appeals for Fayette County granted the motion for dismissal, finding that M.P. had
no right to a hearing under R.C. 2329.31 and Ohio Savings Bank v. Ambrose (1990),

56 Ohio St.3d 53

, 

563 N.E.2d 1388

.
       {¶ 6} The cause is now before this court upon an appeal as of right.
                              __________________




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                                  January Term, 1996




          Berkman, Gordon, Murray & DeVan, J. Michael Murray, Lorraine R.
Baumgardner and Jeremy A. Rosenbaum, for appellant.
          John H. Wead, for appellee.
                                 __________________
          Per Curiam.
          {¶ 7} For a writ of mandamus to issue, the relator must possess a clear legal
right to the respondent’s performance of a clear legal duty and have no adequate
remedy in the ordinary course of law. State ex rel. Scripps Howard Broadcasting
Co. v. Cuyahoga Cty. Court of Common Pleas (1995), 

73 Ohio St.3d 19, 20

, 

652 N.E.2d 179, 181

. The court of appeals dismissed this cause on the grounds that
M.P. could not establish its clear legal right to a hearing on the motion to set aside
the sheriff’s sale or Judge Pontious’s clear legal duty to conduct such a hearing.
For the reasons that follow, we affirm.
          {¶ 8} In authorizing the transfer of property upon confirmation of a sheriff’s
sale, R.C. 2329.31 provides:
          {¶ 9} “Upon the return of any writ of execution for the satisfaction of which
lands and tenements have been sold, on careful examination of the proceedings of
the officer making the sale, if the court of common pleas finds that the sale was
made, in all respects, in conformity with sections 2329.01 to 2329.61, inclusive, of
the Revised Code, it shall direct the clerk of the common pleas court to make an
entry on the journal that the court is satisfied of the legality of such sale and that
the officer make to the purchaser a deed for the lands and tenements.” (Emphasis
added.)
          {¶ 10} M.P. argues that the emphasized language confers a statutory right
to a hearing on the successful bidder at a sheriff’s sale. We disagree. In Union
Bank Co. v. Brumbaugh (1982), 

69 Ohio St.2d 202, 208

, 

23 O.O.3d 219

, 223, 

431 N.E.2d 1020, 1025

, we recognized that “[t]here is no statutory dictate that a hearing




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be held [after a sheriff’s sale].” Thus, the court of appeals correctly concluded that
R.C. 2329.31 does not confer the clear legal right or clear legal duty M.P. asserts.
       {¶ 11} M.P. also seems to assert a due process right to a hearing prior to
confirmation or vacation of a sheriff’s sale. M.P. provides no authority or analysis
as to whether its successful bid was a property interest protected by the Fourteenth
Amendment to the United States Constitution. We, however, need not decide this
issue because M.P. received all that due process requires -- notice and an
opportunity for some kind of hearing prior to deprivation of a protected interest.
Mullane v. Cent. Hanover Bank & Trust Co. (1950), 

339 U.S. 306

, 

70 S.Ct. 652

,
94 L.Ed.865; Bd. of Regents of State Colleges v. Roth (1972), 

408 U.S. 564

, 

92 S.Ct. 2701

, 

33 L.Ed.2d 548

. M.P. admittedly received notice of the treasurer’s
motion to set the sheriff’s sale aside, but failed to respond within fourteen days as
required by local rule. This opportunity was sufficient due process under the
circumstances, regardless of whether M.P. was entitled to it.
       {¶ 12} M.P. mainly relies on Reed v. Radigan (1884), 

42 Ohio St. 292

, as
authority for its right as the successful bidder or “purchaser” to participate in
proceedings to confirm or vacate a sheriff’s sale. Reed, at 294, quoted the statement
in Ohio Life Ins. & Trust Co. v. Goodin (1860), 

10 Ohio St. 557

, 566, that “parties
[to a foreclosure action]—the plaintiff, the defendant and the purchaser—may be
heard” at the confirmation or vacation of a sheriff’s sale, and these cases have been
cited to establish the successful bidder’s “right” to be heard on the issue of
confirmation. See, e.g., Citizen’s Loan & Savings Co. v. Stone (1965), 

1 Ohio App.2d 551, 553

, 

30 O.O.2d 584, 585

, 

206 N.E.2d 17, 19

; Ohio Savings Bank v.
Ambrose (1990), 

56 Ohio St.3d 53, 57

, 

563 N.E.2d 1388, 1391

 (Herbert R. Brown,
J., dissenting).   M.P. maintains that this “right” was acknowledged and left
undisturbed by 

Ambrose , supra.

 The court of appeals correctly disagreed.
       {¶ 13} Ambrose cited Reed for the premise that purchasers at a sheriff’s sale
generally possess “some type of interest in the proceedings prior to confirmation.”




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                                January Term, 1996

Id. at 54

, 

563 N.E.2d at 1389

. This interest, however, was not enough to give the
purchaser standing to appeal if the defendant-mortgagor later redeemed the
property and a court set the sale aside. Rather, we held that “purchasers have no
rights until the sale is confirmed.” 

Id. at 55

, 

563 N.E.2d at 1389

. We based this
holding on another observation in Reed—that a purchaser has no vested rights in
property until confirmation of a sheriff’s sale, and if confirmation is refused, “the
rights of the purchaser fall to the ground.” Reed, 42 Ohio St. at 294. In effect, we
found that a purchaser’s interest evaporated upon denial of confirmation, such that
the purchaser could not establish the “aggrieved” status necessary for standing.

Ambrose at 56

, 

563 N.E.2d at 1390, fn. 3

. Thus, far from an absolute right to
participate in proceedings to vacate a sheriff’s sale, Ambrose recognized only that,
absent confirmation, a purchaser had no actionable interest by virtue of the
successful bid alone.
       {¶ 14} M.P., however, insists that since Ambrose, courts have continued to
recognize the “right” of potential purchasers to participate in hearings prior to
vacation or confirmation. M.P. cites one relevant case -- Federal Home Loan Mtge
Corp. v. Slagle (Dec. 4, 1992), Lake App. Nos. 92-L-022 and 92-L-035, unreported.
In Slagle, two bidders each asserted that their bid had been accepted by the deputy
sheriff conducting the sale, and both bidders were permitted to intervene, one of
whom successfully moved to have the sale set aside. The Slagle court followed
Ambrose as to the unavailability of any appeal for the purchasers, holding that this
rule applied even though these purchasers had intervened and the purchasers in
Ambrose had not. The court later found a right to participate in the confirmation
proceedings that stemmed from Ambrose and Reed.
       {¶ 15} But Slagle does not support M.P.’s right to a hearing under the facts
alleged here. The purchasers in Slagle were granted leave to intervene; M.P. was
not. Moreover, to read Slagle as recognizing a right to a hearing, irrespective of
intervention, elevates the purchaser’s interest to a level Ambrose did not intend.




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Again, in referring to the purchaser as having “some type of interest in the
proceedings prior to confirmation,” Ambrose hardly declared the purchaser’s
absolute right to be heard. 

Id. at 54

, 

563 N.E.2d at 1389

. Moreover, Ambrose
affirmed the dismissal of an appeal from the vacation of a sheriff’s sale on the
grounds that (1) the purchasers had “no interest in the property prior to
confirmation,” 

id. at 55

, 

563 N.E.2d at 1390

, and (2) “their failure to intervene as
parties divested them of their capacity to appeal the decision of the trial court,” 

id. at 54

, 

563 N.E.2d at 1389-1390

. Thus, Ambrose is consistent with a finding that
the purchaser’s ability to participate in confirmation proceedings as a party, for any
purpose, depends on the purchaser’s intervention.
         {¶ 16} M.P.’s final argument on the issues of clear right and clear duty is
essentially that Judge Pontious erred or abused his discretion by setting aside the
sheriff’s sale ex parte and without evidence of irregularities. M.P. complains that
the treasurer submitted no evidence with the set-aside motion and that only two of
at least three named defendants in the foreclosure action agreed to the entry setting
aside the sale.
         {¶ 17} Mandamus does not lie to control judicial discretion, R.C. 2731.03,
or to correct judgments manifesting an abuse of discretion. State ex rel. Keenan v.
Calabrese (1994), 

69 Ohio St.3d 176, 180

, 

631 N.E.2d 119, 122

. Moreover, the
allegations in M.P.’s complaint, as well as the incorporated exhibits,1 do not
establish an abuse of discretion.
         {¶ 18} The record before Judge Pontious contained the agreed entry of the
treasurer and Ward that irregularities had occurred in the sheriff’s sale and had
“prejudiced the bidding.” True, the unincluded parties to the foreclosure action
might have objected to the entry; however, the entry still had evidentiary value.


1. Incorporated material may be considered as part of the complaint. State ex rel. Edwards v. Toledo
City School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 106, 109

, 

647 N.E.2d 799

, 802.




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                                January Term, 1996




Judge Pontious thus permissibly relied on the agreed entry identifying irregularities
in the sheriff’s sale. See, e.g., Merkle v. Merkle (1961), 

116 Ohio App. 370

, 

22 O.O.2d 202

, 

188 N.E.2d 170

 (court did not abuse its discretion in setting aside
judicial sale by relying on disputed testimony of plaintiff that he intended to offer
a more competitive bid).
       {¶ 19} M.P. also assails the court of appeals’ procedural disposition,
arguing that its complaint stated a cause of action sufficient to withstand a Civ.R.
12(B)(6) motion to dismiss. We disagree with M.P.’s characterization of the court
of appeals’ ruling, as well as with M.P.’s claim of procedural error.
       {¶ 20} A reviewing court must examine the entire journal entry and the
proceedings below where necessary to ascertain the precise basis of a lower court’s
judgment. Joyce v. Gen. Motors Corp. (1990), 

49 Ohio St.3d 93, 95

, 

551 N.E.2d 172, 174

. Here, the parties concur that the court of appeals reviewed Judge
Pontious’s “Motion for Summary Judgment for the Respondent; Motion for
Judgment for Respondent on Pleadings; Motion to Dismiss” as a Civ.R. 12(B)(6)
request for dismissal of the complaint. Upon review of the entire record, however,
we view the court’s ruling as having granted the Civ.R. 12(C) motion for judgment
on the pleadings.
       {¶ 21} We draw our conclusion first from the fact that Judge Pontious filed
his tripartite motion after having answered the complaint. “[A] motion to dismiss
filed after the pleadings have closed * * * is appropriately considered a motion for
judgment on the pleadings pursuant to Civ.R. 12(C).” Lin v. Gatehouse Constr.
Co. (1992), 

84 Ohio App.3d 96, 99

, 

616 N.E.2d 519, 520

. Second, the court of
appeals obviously considered Judge Pontious’s answer, if only for the allegation
that he had recently overruled M.P.’s motion to intervene. Civ. R. 12(C) permits
consideration of the complaint and answer, but a Civ.R. 12(B)(6) motion must be
judged on the face of the complaint alone. Burnside v. Leimbach (1991), 

71 Ohio App.3d 399, 402-403

, 

594 N.E.2d 60, 62

. Third, the standards for Civ. R. 12(B)(6)




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and (C) motions are similar,2 but Civ.R. 12(C) motions are specifically for resolving
questions of law, Peterson v. Teodosio (1973), 

34 Ohio St.2d 161, 166

, 

63 O.O.2d 262, 264

, 

297 N.E.2d 113, 117

. Under Civ. R. 12(C), dismissal is appropriate where
a court (1) construes the material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2)
finds beyond doubt, that the plaintiff could prove no set of facts in support of his
claim that would entitle him to relief. 

Lin, supra,

84 Ohio App.3d at 99

, 

616 N.E.2d at 521

. Thus, Civ.R. 12(C) requires a determination that no material factual issues
exist and that the movant is entitled to judgment as a matter of law. 

Burnside, supra,

71 Ohio App.3d at 403

, 

594 N.E.2d at 62

.
         {¶ 22} In the main, M.P. argues that the court of appeals did not comply
with these standards by accepting its allegations as true and construing in its favor
all reasonable inferences. M.P. cites only one example—the appellate court’s
finding that “the parties in the underlying foreclosure action agreed to set aside the
sale.” M.P. claims this finding contradicts the allegation that M.P. and Roger’s
Roadside Inns of America, Inc. (a named defendant) did not sign the agreed entry
of August 29, 1994.
         {¶ 23} The absence of M.P.’s consent to the August 29, 1994 entry,
however, was not material to the court of appeals’ conclusion that, after Ambrose,
this successful bidder had no right to participate in the underlying foreclosure
action. The allegation indicates that M.P. did not participate as a party, not that it
was entitled to do so. Similarly, Judge Pontious’s failure to require a named
defendant’s consent has no bearing on M.P.’s legal capacity to be heard.




2. Under Civ.R. 12(B)(6), a complaint may be dismissed only if the court (1) accepts all factual
allegations as true, (2) draws all reasonable inferences in favor of the nonmoving party, and (3) still
concludes beyond doubt from the complaint that no provable set of facts warrants relief. State ex
rel. Edwards, supra, 

72 Ohio St.3d at 108

, 647 N.E.2d at 802; State ex rel. Williams Ford Sales,
Inc. v. Connor (1995), 

72 Ohio St.3d 111, 113

, 

647 N.E.2d 804, 806

.




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                                January Term, 1996




       {¶ 24} The court of appeals correctly determined that M.P., as the
successful bidder at a sheriff’s sale, was not entitled to be heard prior to vacation
of the sale. This legal conclusion is permissible under Civ.R. l2(C). Accordingly,
the court of appeals did not err in dismissing this cause on the basis of Judge
Pontius’s motion for judgment on the pleadings.
       {¶ 25} The court of appeals’ judgment, therefore, is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                            __________________




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