COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68000, 68395 : HIGH POINT ASSOCIATION : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DAVID POCHATEK, ET AL. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. CV-207990 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DAVID GRENDEL LAVONNE R. DYE 7111 Brecksville Road WELTMAN, WEINBERG & REIS CO. Suite #4 323 Lakeside Avenue W. Independence, Ohio 44013 Lakeside Place Cleveland, Ohio 44113 ALAN C. YARCUSKO PORTER, WRIGHT, MORRIS & ARTHUR 1700 Huntington Building 925 Euclid Avenue - 2 - Cleveland, Ohio 44115-1483 - 3 - KARPINSKI, J.: These two consolidated appeals arise from an action by a child support judgment lien creditor to foreclose a lien on the residence of her former spouse and his second wife. For simplicity, the parties shall be referred to by their proper names. The record demonstrates that this foreclosure case was commenced in the trial court on March 26, 1991, by a homeowner's association to recover unpaid expenses attributable to the property. The foreclosure complaint alleged that David Pochatek and his second wife, Virginia Pochatek, owned the property and joined five other creditors. David and Virginia Pochatek represented themselves pro se. David Pochatek's first wife, Patricia Pochatek, filed a motion to intervene in the foreclosure case based on an unpaid child support judgment against David Pochatek which she had previously filed as a lien against the property. The trial court granted Patricia Pochatek's motion to intervene in the foreclosure case in an order journalized September 10, 1992. The homeowner's association subsequently settled its claim in the foreclosure case. The trial court ordered the remaining parties to file statements concerning their intent to prosecute their claims. The trial court dismissed the foreclosure case in an order journalized on August 10, 1993, because no such notice was filed by any party. However, Patricia Pochatek subsequently - 4 - filed a motion to set aside the dismissal and reopen the foreclosure case based on her failure to receive notice of the order directing her to file her statement. In an order journalized October 13, 1993, the trial court granted Patricia Pochatek's motion and re-opened the foreclosure case to permit her to prosecute her claim. David Pochatek continued to represent himself pro se in the trial court and his second wife Virginia Pochatek retained licensed counsel. The record demonstrates that David and Virginia were also parties in a separate action in the domestic relations court. On May 24, 1994, Patricia Pochatek filed a two-page motion for summary judgment in the trial court on her claim against David Pochatek supported by her own affidavit stating that she obtained a child support judgment lien against him. David and Virginia Pochatek filed separate stipulations for leave to respond to the motion for summary judgment. David Pochatek did not oppose the motion for summary judgment in the trial court. On July 21, 1994, Virginia Pochatek filed a brief in opposition to the motion for summary judgment. Her brief was supported by the following documents, viz.: (1) a July 5, 1994, judgment entry of the domestic relations court finding that the residence constituted Virginia Pochatek's separate property and that David Pochatek never had any interest in the property; (2) a July 7, 1994, quit-claim deed for the property from David Pochatek to Virginia Pochatek; and (3) an affidavit of Virginia Pochatek stating that she purchased the residence after her marriage to - 5 - David Pochatek. Virginia Pochatek also filed a motion for leave to file an amended answer and counterclaim the same day. The trial court scheduled a hearing on the pending motion for summary judgment and denied Virginia Pochatek's motion to amend her pleadings. Following the hearing, the trial court granted, in an order journalized September 7, 1994, Patricia Pochatek's motion for summary judgment and denied Virginia Pochatek's motion to amend her pleadings. Virginia Pochatek thereafter filed a motion for reconsideration with additional evidentiary materials in the trial court and a notice of appeal in Court of Appeals Case No. 68000 from the September 7, 1994, order. The trial court denied Virginia Pochatek's motion for reconsideration and subsequently journalized the following order divesting her of sole title to the property on December 13, 1994: THE COURT FINDS that Patricia Pochatek's Motion for Summary Judgment on her Amended Cross-Claim against Defendant David Pochatek was granted on September 2, 1994 and journalized on September 7, 1994 in Volume 1772, Page 0696. THE COURT FURTHER FINDS that Defendant Virginia Pochatek's reliance upon her uncontested divorce decree dated July 5, 1994 was misplaced and had no effect on Patricia Pochatek's Motion for Summary Judgment. THE COURT FURTHER FINDS that David Pochatek's Quit-Claim Deed of real estate known as 18250 Wellington Court, Strongsville, Ohio 44136 to his ex- wife Virginia Pochatek filed on July 7, 1994 with the Cuyahoga County Recorder's office (Volume 94-06622, Page 47-48) was invalid and hereby orders title to the aforementioned real estate to be returned to David Pochatek and Virginia Pochatek. The legal description of the real estate appears on page three of this Order. - 6 - THE COURT FURTHER FINDS that a certified copy of this ORDER shall be filed with the Cuyahoga County Recorder's office immediately and the clerk is directed to certify so much as is necessary of this Order to the County Auditor and County Recorder to effectuate the transfer of title back to David Pochatek. Virginia Pochatek filed a notice of appeal from the trial court's December 13, 1994, order in Court of Appeals Case No. 68395. This court of appeals consolidated the two appeals for hearing and disposition. I. Virginia Pochatek's first assignment of error in Court of Appeals Case No. 68000 follows: THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DAVID'S SEPARATE JUDGMENT CREDITOR IN THE FORECLOSURE ACTION BECAUSE DAVID HAD NO ATTACHABLE INTEREST IN THE STRONGSVILLE HOME. Virginia Pochatek's first assignment of error is well taken. Virginia Pochatek argues the trial court improperly granted summary judgment for Patricia Pochatek to foreclose on her lien against the property based on her child support judgment against David Pochatek. Virginia Pochatek argues David Pochatek never had any interest in the property to which his former wife's child support judgment lien could attach. The resolution of this issue depends upon David Pochatek's interest in the property. Patricia Pochatek's two-page motion for summary judgment argued that her child support judgment lien attached to David Pochatek's interest in the property. Patricia Pochatek did not support her motion with any evidence to demonstrate what interest, if any, David Pochatek had in the - 7 - property. However, the record contains evidence indicating that both David Pochatek and Virginia Pochatek were listed as the owners of the property when the residence was purchased in 1987. Virginia Pochatek's brief in opposition to the motion for summary judgment argued to the contrary that she alone purchased the property and that David Pochatek had no interest in the property. Virginia Pochatek's brief was supported by a copy of the domestic relations court's July 5, 1994, judgment finding that David Pochatek did not own and never had any interest in the property. Virginia Pochatek also presented a quit claim deed executed by David Pochatek on July 7, 1994, in accordance with the order of the domestic relations court. The record demonstrates that Virginia Pochatek's brief was also supported by an affidavit which stating that she purchased the residence after her marriage to David Pochatek. Virginia Pochatek argues the trial court improperly granted summary judgment for Patricia Pochatek because the trial court was bound by the domestic relations court's determination that David Pochatek did not own or ever have any interest in the property. However, the Ohio Supreme Court has recognized that only the first court to obtain jurisdiction over a matter has authority to resolve the issue: As between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties. - 8 - Knowlton Co. v. Knowlton (1992), 63 Ohio St.3d 677, 680-681; see also Huntington Mortgage Co. v. Shanker (1993), 92 Ohio App.3d 144, 152-154. The Tenth District Court of Appeals followed this reasoning in Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, 67, to support its holding that when a foreclosure action is pending as in this case, no other action (such as the subsequent divorce action) may be commenced concerning the same real property. The record demonstrates that, based on the filing of the foreclosure action, the trial court first obtained exclusive jurisdiction over the residential property involved in this case. As a result, when the domestic relations court in the subsequent divorce action found that David Pochatek had no interest in the property, Patricia Pochatek's claims were not resolved, because the domestic relations court lacked jurisdiction over the property and Patricia Pochatek was not a party to the proceedings. Nevertheless, based on our review of the record, we are compelled to reverse the order of the trial court granting summary judgment for Patricia Pochatek. The record demonstrates there is a genuine issue of material fact concerning the extent of David Pochatek's interest, if any, in the property. Virginia Pochatek's affidavit in opposition to the motion for summary judgment stated that Virginia Pochatek purchased the property after her marriage to David Pochatek. This evidence, when viewed in the light most favorable to Virginia Pochatek, indicates that - 9 - David Pochatek had no ownership interest in the property. The record demonstrates that David Pochatek's ownership of the property, or other interest in the property incident to marriage, if any, is a question of fact for the jury. As a result, the trial court erred by granting summary judgment for Patricia Pochatek. Accordingly, Virginia Pochatek's first assignment of error in Court of Appeals Case No. 68000 is well taken. Virginia Pochatek's second assignment of error in Court of Appeals Case No. 68000 follows: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE MOTION FOR LEAVE TO FILE AN AMENDED ANSWER AND CROSS-CLAIM. Virginia Pochatek's second assignment of error lacks merit. Virginia Pochatek argues the trial court improperly denied her motion for leave to amend her pleadings during the pendency of the motion for summary judgment pursuant to Civ. R. 15(A). Civ. R. 15(A) governs the amendment of pleadings and provides in pertinent part as follows: A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or written consent of the adverse party. Leave of court shall be freely given when justice so requires. *** It is well established that a trial court's determination whether to permit the amendment of pleadings will not be reversed on appeal absent an abuse of discretion. Wilmington Steel - 10 - Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. An abuse of discretion in this context "connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Id. Based on our review of the record, Virginia Pochatek has failed to demonstrate the trial court abused its discretion or committed reversible error by denying her motion to amend her pleading in this case. The record demonstrates that Virginia Pochatek did not file her motion for leave to amend her pleadings until after filing her brief in opposition to Patricia Pochatek's motion for summary judgment. The proposed amendment merely sought to enter her own separate answer to supersede her prior joint answer with David Pochatek and to raise a cross claim for a declaration that Patricia Pochatek's lien was unenforceable against the property. However, the enforceability of the lien against the property was already at issue and the subject of the pending motion for summary judgment in the case. Virginia Pochatek's proposed cross-claim was based on the judgment of the domestic relations court and the quit-claim deed executed by David Pochatek conveying his interest in the property to Virginia Pochatek. However, as noted above, the trial court properly determined that these documents had no legal effect in this case because the trial court had exclusive jurisdiction over the property during the pendency of the foreclosure action. No - 11 - prejudice resulted from the trial court's denial of Virginia Pochatek's motion for leave to amend her pleadings in this case. Accordingly, Virginia Pochatek's second assignment of error is overruled. II. Virginia Pochatek's three assignments of error in the consolidated Court of Appeals Case No. 68395 challenge the trial court's subsequent December 13, 1994, order. The trial court's order divested Virginia Pochatek of sole title to the property and restored the parties to the status quo existing prior to the domestic relations court's determination concerning ownership of the property and David Pochatek's execution of the quit-claim as directed by the domestic relations court. Virginia Pochatek's first assignment of error in Case No. 68396 follows: THE TRIAL COURT ERRED AS A MATTER OF LAW BY ISSUING THE DECEMBER 1994 ORDER BECAUSE THAT ORDER RELIED ON THE ERRONEOUS SEPTEMBER 1994 ORDER. Virginia Pochatek's first assignment of error is well taken. Virginia Pochatek argues the trial court improperly divested her of sole title to the property following its order granting summary judgment for Patricia Pochatek. Based on our review of the record, we are compelled to agree. The record demonstrates that the trial court, sua sponte without notice or motion of any kind, entered the December 13, 1994, order divesting Virginia Pochatek of sole title to the property. As noted above, the first two paragraphs of the - 12 - December 13, 1994, order reiterated the trial court's prior September 7, 1994, order granting summary judgment. The record provides no basis for restoring title to the property to David Pochatek other than the trial court's prior erroneous ruling on the motion for summary judgment concerning his interest in the property. Since we find the trial court improperly granted summary judgment concerning David Pochatek's interest in the property, the trial court's subsequent order must likewise be reversed. Accordingly, Virginia Pochatek's first assignment of error in Case No. 68395 is well taken. Based on our resolution of Virginia Pochatek's first assignment of error in Case No. 68395, her remaining two 1/ assignments of error in Case No. 68395 are moot and we decline to address them pursuant to App. R. 12(A)(1)(c). Accordingly, Virginia Pochatek's second and third assignments of error in Case No. 68395 are overruled as moot. The judgment of the trial court is hereby reversed in its entirety and remanded for further proceedings. 1/ Virginia Pochatek's remaining two assignments of error in Court of Appeals Case No. 68395 follow: THE DECEMBER 1994 ORDER EXCEEDED THE TRIAL COURT'S JURISDICTION. THE TRIAL COURT VIOLATED VIRGINIA'S DUE PROCESS RIGHTS BY VACATING THE DOMESTIC RELATIONS COURT ORDER WITHOUT AFFORDING HER NOTICE OR AN OPPORTUNITY TO BE HEARD. - 13 - Judgment accordingly. - 14 - This cause is reversed. It is, therefore, ordered that appellant recover of appellee her 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. PORTER, P.J., CONCURS IN JUDGMENT ONLY; PRYATEL*, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and .