Ameriquest Mtge. Co. v. Stone, 89899 (8-7-2008) , 2008 Ohio 3984 ( 2008 )

{¶ 1} Defendant Antoinette M. Stone (appellant) appeals the court's granting summary judgment to Ameriquest Mortgage Company in this foreclosure case. After reviewing the facts of the case and pertinent law, we dismiss for lack of a final appealable order.

I. {¶ 2} On September 22, 2003, Ameriquest filed a foreclosure complaint against appellant for failure to make timely mortgage payments. On February 15, 2007, a magistrate granted Ameriquest's unopposed summary judgment motion and decree for foreclosure. On April 24, 2007, the trial court summarily adopted the magistrate's decision.

{¶ 3} Sua sponte, we dismiss the instant appeal for lack of a final appealable order. The trial court merely adopted the magistrate's decision without separately stating its own judgment, in violation of Civ. R. 53(E)(5). See In re Zinni, Cuyahoga App. No. 89599,2008-Ohio-581; Plymouth Park Tax Servs., LLC, et al., v. Margaret A.Frazier, et al., Cuyahoga App. Nos. 90343, 90352, 90353, 90354, 90356, 90357, 90464, 90525, and 90526, 2008-Ohio-3348. "To constitute a final appealable order, a court's entry reflecting action on a magistrate's decision must be a separate and distinct instrument from the decision and must grant relief on the issues originally submitted to the court." Id.

Appeal dismissed.

It is ordered that appellee recover from appellants costs herein taxed.

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.

PATRICIA ANN BLACKMON, J., CONCURS;

MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION