IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO
THE
HUNTINGTON
BANK,
NATIONAL :
Plaintiff,
:
Case No. 11 CV 912
v.
:
Judge Berens
:
ENTRY Overruling Motion to
Reconsider
MICHAEL J. YOUNG, ET AL.,
Defendants.
:
This matter is before the Court upon Defendant Michael J. Young’s Motion to
Reconsider the Entry of May 17, 2012 Overruling Motion to Strike By Defendant Michael J.
Young, filed June 14, 2012.
STATEMENT OF THE CASE
This is a commercial foreclosure action. On February 28, 2012, the Court entered an
Order Adopting Stipulation of Interest, which found that Defendant Kilbarger Companies, Inc.
(“Kilbarger”) holds a valid interest in the subject premises of this action and that Kilbarger
Companies, Inc’s interest supercedes Plaintiff’s mortgage interest and will survive any sheriff’s
sale which may be ordered in this matter. Defendant Michael J. Young filed a motion to strike
that order, which was overruled on May 17, 2012. Defendant Young now moves for
reconsideration of that order on the grounds that Defendant Kilbarger’s lease is expired by its
own terms, that R.C. 1509.31(D) therefore does not apply, that neither Defendant Young, nor
Defendant Overlook Plaza, Inc. (“Overlook”)—which is the mortgagor under the mortgage upon
which Plaintiff’s claim is based—have admitted Defendant Kilbarger’s interest, that no motion
to stipulate was presented to the Court before the order adopting the stipulation was entered, and
that neither Defendant Young nor Defendant Overlook were properly served with any motion to
stipulate.
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LAW & ANALYSIS
As an initial matter, the Court must consider whether it has the authority to entertain
Defendant Young’s motion. Defendant Young asserts that his motion is made under Civ.R.
60(B)(1). As Defendant Kilbarger correctly points out, however, a motion under Civ.R. 60(B)(1)
may only be granted as to a “final judgment, order, or proceeding” and there has been no final
judgment entered in this matter. Therefore, the Court may not grant relief under Civ.R. 60(B)(1).
However, Civ.R. 54(B) states, “any order or other form of decision * * * which
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties * * *
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.” On that authority, the Ohio Supreme Court has noted that
a trial court has the authority to modify or reconsider any orders before the entry of final
judgment. Pitts v. Ohio Dept. of Trans., 67 Ohio St.2d 378, 379 fn. 1, 423 N.E.2d 1105 (1983).
Therefore, the Court has authority to consider Defendant Young’s motion.
However, even considering Defendant Young’s motion, the Court finds it not well taken.
Defendant Young argues that Defendant Kilbarger’s interest under the oil and gas lease has
expired. However, the Court notes that Defendant Young is not a party to that lease. Instead, the
lease attached to Defendant Young’s motion states that it is between Defendant Overlook and
Defendant Kilbarger. Although Defendant Young signed that lease, he signed it only in his
capacity as an officer of Defendant Overlook. That entity is also a party to this action and is
represented by counsel in these proceedings. As such, and under Ohio law, Defendant Young
may not press the interests of Defendant Overlook in these proceedings.
The Court further notes that Overlook is the mortgagor of the subject premises and there
is no indication that Defendant Young has any interest in those premises other than through
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Overlook. Because of that, it appears that Overlook, and not Defendant Young, is the proper
party to address any dispute over the type and extent of the parties’ relative interests in the
premises.
For all of those reasons, the Court OVERRULES Defendant’s motion to reconsider.
________________________
Judge Richard E. Berens
Copies to:
David W. Cliffe, 525 Vine St., Ste. 800, Cincinnati, Oh 45202
Edward W. Hastie, 1441 King Ave., Ste 101, Columbus, OH 43212
John M. Snider, Courthouse Mailbox
Michael J. Young, 5550 Wood Ridge Dr., Columbus, OH 43213
Belden & Blake Corp., c/o CT Corp. System, Inc., 1300 E. Ninth St., Cleveland, OH 44114
Fairfield County Treasurer, 210 E. Main St., Rm 206, Lancaster, OH 43130
John Doe, 4310 Crumley Rd. SW, Lancaster, OH 43130
Filed July 11, 2012
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