IN THE SUPREME COURT OF OHIO

Transcription

1 . 't...^inal IN THE SUPREME COURT OF OHIO Edward F. Whipps, Trustee, 500 South High Street Case No On Appeal from the Franklin Plaintiff-Appellee, County Court of Appeals, Tenth Appellate District v James M. Ryan, 3165 Dale Avenue Columbus Ohio Defendant-Appellant. James M. Ryan Trustee Court of Appeals 3165 Dale Avenue Case No.'s 11AP-1138 Columbus Ohio Defendant-Appellee, Sky Bank 41 South High Street Court of Appeals Plaintiff -Appellee, Case No. 11AP Huntington National Bank dl Qn,vth Ainh Straat T..,...^_...b...,...,... Plaintiff-Appellee DB Midwest LLC 412 E. Parkcenter Blvd. Suite 300 Boise, Id Plaintiff-Appellee Mr. Reg Martin Martin Management Inc. 180 E. Broad Street Receiver-Appellee MAR CLERK OF COURT SUPREME COURT OF OHIO

2 Boca Environmantal Inc Birdnest Terrace Boca Raton, Fl Intervenor-Appellee Franklin County Treasure 373 S. High Street The State of Ohio Department of Taxation % Melanie Cornelius 150 E. Gay Street, 21st floor v Michael F. Colley 4200 Dublin Road Hilliard Ohio Defendant-Appellee James M. Ryan 3165 Dale Avenue Defendant -Appellant. AMENDED MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JAMES M. RYAN James M. Ryan Pro se 3165 Dale Avenue Columbus Ohio (614) (614) fax jimryanbroker2gmail.com Appellant

3 Matthew G. Burg # Weltman Weinburg & Reis, Co. L.P.A. 323 West Lakeside Ave. Suite 200 Cleveland, Ohio (216) (216) fax mburgaweltman.com Attorney for Appellee D.B. Midwest LLC, Huntington National Bank, Sky Bank Tina F. Woods # Weltman Weinburg & Reia Co. L.P.A. 525 Vine Street Suite 800 Cincinnati, Ohio (614) (614) fax twoods@weltman.com Attomey for Appellee DB Midwest LLC, Huntington National Bank, Sky Bank Larry F. Shafer 55 South Main Street, Suite G P.O. Box 356 Johnstown Ohio (740) Attorney for Appellee Edward F. Whipps Trustee Edward F. Whipps 500 South High Street, Suite 860 Attroney for Appellee Michael F. Colley Melanis Cornelius Sr. Asst. Attorney General Collection Enforcement 150 E. Gay St. 21 st floor (614) Attorney for Appellee Ohio State Department Of Taxation Adria L. Fields Franklin County Prosecutor 373 S. High Street Attorney for Appellee Franklin County Treasure

4 Aron C Firstenberger Strip, Hoppers, Leithart, McGrath & Terlecky Co. LPA 575 South High Street ACFgcolumbuslaw e^ Attorney for Appellee Receiver Larry R. Rothenberg Weltman, Weinberg & Reise Co. LPA 323 West Lakeside Avenue, Suite 200 Cleveland Ohio (216) (216) fax lrothenberg2weltman.com Attroney for Appellee Boca Environmental Inc. TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR 1 GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION. STATEMENT OF THE CASE & FACTS 5. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law # CONCLUSION 13. CERTIFICATE OF SERVICE 15. APPENDIX Journal Entry of Dismissal, Tenth Appellate District Franklin County, Ohio Appx. Page A

5 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... In this day of pro se litigants it certainly is of public and great general interest that the Appellate Civil Rules be written in such a manner that the common reading of these Rules be understandable by anyone relying on their procedural requirements, whether they be an attorney or pro se. Interpretation and implementation of these rules by the Courts also must be consistent with the intent of the rule and the procedure set forth therein, in order to provide litigants with proper due process under the law.. It should be undisputed in this day of extraordinary costs of civil litigation that to be represented by an attorney is a rich persons remedy as the normal cost of civil litigation far exceeds the financial ability of the middle or lower income citizens of this State. As a result of this extraordinary cost of litigation, the only legal representation available to this group of less privileged citizen is to venture into the world of pro se representation While pro se representation may be offensive to most attorney's as well as many of the courts in this State, the fact is that many pro se's exist in today's legal system out of a necessity for their survival. Without question there is an explosion of pro se representation and absent an adjustment in the cost of litigation which is doubtful, this self representation is here to stay in numbers unheard of in the past. Therefore, one can understand the importance of clear and succinct Rules, both Civil and Appellate, which will facilitate a level playing field in the Court system process for all litigants whether they be represented by counsel or pro se. Failure to provide these clear and succinct Rules, whether it be by the written Rule or its interpretation by the P.1

6 Courts', would certainly violate the rights of due process guaranteed by the United States and the State of Ohio Constitution. Apnellate Rule 4 ( CLpnears to this pro se clear and succinct. The Modern Court Amendment, Section 5 (B) Article IV of the Ohio Constitution, empowers this Court to create rules of practice and procedures for the courts of this State. see Havel v Villa St. Joseph, Slip 12. While Appellate Courts receive their authority to review lower court cases from Article IV Section 3(B) (2) Ohio Constitution, this authority is limited by the practice and procedure Rules promulgated by this Court and their own Local Appellate Rules. Appellate Rule 4( C) is such a procedural Rule and review of this procedural Rule is a question of Law. Wedemeyer v USSFDR ( CV-42) Reunion Assn Ohio-1502 As an exception to App. Rule 4 (A), App. Rule 4 (C) clearly states that if an appeal is filed after the announcement of a decision, order or sentence but before the entry of the judgment or order, the appeal is treated as filed immediately after the entry. To Appellant this procedural Rule states that if one files a premature appeal in accordance with App. Rule 4( C), the appeal would be treated as actually filed immediately after the anticipated entry is docketed by the Trial Court. Yet, there are Courts' that disagree with this interpretation of App. Rule 4( C ) which is the issue Appellant has brought before this Court for a determination of exactly what App. Rule 4( C) says, in a common person's English. In Appellant's case the Tenth District Court of Appeals, Franklin County, Ohio has denied his due process rights by ignoring the actual language and directive contained in P.2

7 App. Rule 4 ( C) by dismissing Appellant's appeal for lack of a final appealable order, assessing costs against him, thereby charging him a fee for filing a premature appeal. One only has to go to the Tenth District Court of Appeals Local App. Rule 3( A) to discover that Appellant's premature appeal filing was procedurally provided for within these Rules as Local App. Rule 3 (A) clearly sets forth the procedures for a premature appeal directing the Clerk of the Trial Court to retain the premature appeal until such time as the anticipated final entry is docketed. Appellant's premature appeal was properly filed and time stamped in with the Trial Court Clerk. The same Clerk automatically proceeded to file and time stamp the premature appeal into the Tenth District Court of Appeals designating a Tenth District appeal case number 11APE & I lape ( Appellant's premature appeal states on the face of the document that it is filed as an appeal pursuant to App. Rule 4( C)) It appears it was at this stage of the filing process that an error occurred by the Clerk of the Trial Court, who also is the Clerk of the Tenth District Court of Appeals. In accordance with Local App. Rule 3(A) Appellant argues that it was the duty of the Trial Court Clerk to stop the process, advise Appellant that his appeal is premature, and to retain the appeal until the Trial Court docketed its final appealable entry or order. In accordance with Local App. Rule 3 (A), jurisdiction remained in the trial court enabling it to complete its anticipated Final Appealable Entry. State ex rel Everhart v McIntosh, 115 Ohio St. 3d 195, 2007-Ohio Realizing the error, Appellant filed a Motion for Stay with the Clerk of the Tenth District Court of Appeals in order to stay proceedings until such time as the Trial Court issued its Entry. Ignoring App. Rule 4( C ) and its own Local Appellate Rule 3 (A), the Appeals Court P.3

8 entered a Journal Entry of Dismissal dismissing Appellant's premature Appeal's for lack of a final appealable order on February 7, While Appellant realizes that in a imperfect world these type of errors do occur he also argues that it is not the job of any other litigant, pro se or otherwise, to oversee the errors of the Court system, let alone pay its bills for making these errors. The dismissal of Appellant's premature appeal by the Tenth District Court of Appeals was clearly in violation of its own Local App. Rule 3( A), of App. Rule 4( C), and a denial of Appellant's Procedural Due Process Rights guaranteed by Section 16 Article I of the Ohio Constitution and the Sixth Amendment of the United States Constitution made applicable to the States through the Fourteenth Amendment of the United States Constitution. This Dismissal clearly prejudiced Appellant. But more importantly, this error exposes a flaw in the court system process that only confuses pro se litigants ( possibly lawyers too) and indicates a lack of oversight on the part of Courts' to maintain their dockets in accordance with the Ohio Statutes, and the Civil and Appellate Rules of this State. Again, if the pro se can not rely on the common English interpretation of the Statutes and Civil & Appellate Rules, then there is no due process afforded him or her in this State. Obviously due process is an important part of a need for the judicial process. Without it, the Rule of Law is obsolete and eventually there will be no need for the judiciary or the court system or pro se representation. The facts to be presented by Appellant in this case will fully support that in the Tenth District Court of Appeals Appellate Rule 4 (C) does not exist as a procedural remedy thereby violating the procedural due process rights of those filing appeals in that district. P.4

9 Appellant respectfully requests this Court to accept jurisdiction of this appeal as he argues it is a case of public and great general interest of the citizens of the State of Ohio and involves a substantial Constitutional question of the rights of the people to due process under the United States and Ohio Constitution. The Case: STATEMENT OF THE CASE AND THE FACTS This case involves a dismissal by the Tenth District Court of Appeals of Franklin County, Ohio of two consolidated premature appeals filed pursuant to App. Rule 4( C) for the reason that the trial court had not journalized a final appealable order. Appellant argues in this Memorandum that App. Rule 4 ( C ) does not require that a final Appealable order must exist at the time of filing of a premature appeal, so long as the notice of appeal is filed after the announcement of a decision, order or sentence but before the entry of the judgment or order. Appellant argues that the Tenth District Court of Appeals Local App. Rule 3 ( A )clearly set forth the procedural requirements for a premature appeal by instructing the Clerk of the Trail Court to retain the premature appeal until the docketing of the anticipated final appealable entry or order, after which docketing the premature appeal shall be considered filed. Appellant argues that in this case the Trial Court Entry Denying Motion to Stay dated December 23, 2011 clearly expresses its intention to finalize the ancillary portion of the case, forthwith, by permitting the sale of the subject foreclosed property scheduled for the morning of December 23, 2011 and that a confirmation order should be anticipated within a reasonable time after a successful sale, supported by the Trial P.5

10 Court's statement that " all issues have been adjudicated to finality "thereby eliminating the question of a interlocutory Order.(see pg 2 Entry Denying Motion to Stay.) Appellant argues that App. Rule 4( C ) provides for a premature appeal and the dismissal of Appellant's premature appeal by the Tenth District Court of Appeals for lack of a final appealable order denies Appellant his Rights to Due Process as guaranteed by the Sixth Amendment of the United States Constitution brought to the States through the Fourteenth Amendment, as well as Section 16 Article 1 of the Ohio Constitution and is contrary to Appellate Rule 4( C ) and is contrary to applicable law. Further, Appellant argues that the Tenth District Court of Appeals, its Clerk and the Clerk of the Trial Court violated Appellate Rule 4( C ) and Local Appellate Rule 3 ( A) by ignoring specific instructions as to handling these types of appeals. Appellant argues that a final appealable order is not required in order to file a premature appeal and the absence of such an order is not a sufficient reason to dismiss a premature appeal. Appellant also argues that the Clerk of the Tenth District Court of Appeals is unjustly enriching it self by charging a fee for the filing of a premature appeal, then retaining a portion of said fee after the Appeals Court wrongfully rules that the premature appeal was improperly filed due to the lack of a final appealable order. It is for these reasons and the reasons further set forth herein that the Journal Entry of Dismissal Journalized by the Tenth District Court of Appeals must be vacated, that his premature appeal be reinstated and that this case be remanded for further proceeding consistent with Appellate Rule 4 (C ) and Local Appellate Rule 3 (A). P.6

11 The Facts: This case was initiated by Edward F. Whipps Trustee as a partition action on October 21, 2005 in the Franklin County Common Pleas Court partitioning the subject property at E. Main Street Columbus Ohio.The case number is 05 CVH On January 27, 2006 Sky Bank filed an action in the Franklin County Common Pleas Court seeking money damages for an alleged default on a promissory note by Appellant and Michael F. Colley.. This case number is 06 CV On February 7, 2006 Sky Bank moved to intervened and to add additional parties in case No. 05CVH seeking foreclosure of the subject property. The Trial Court granted Sky Bank's Motion. On August 3, 2006 Sky Bank moved to consolidate the partition /foreclosure action case No. 05CVH with its action for money case No. 06CV1244, which consolidation motion the trial Court granted. Sky Bank moved for Summary Judgment on its foreclosure action and judgment on the promissory note which were both granted by the Trial Court. The Trial Court issued its Decree of Foreclosure and Order of Sale on April 19, The Decree of Foreclosure and Order of Sale was appealed to the Tenth District Court of Appeals, Franklin County, Ohio. The Appeals Court on May 12, 2009 upheld the Judgment of the Trial Court. (see Whipps v Ryan, 10`" Dist Ohio-1216) On August 28, 2008 the Trial Court appointed a receiver at the request of Sky Bank, which through a merger now was Huntington National Bank. Sky Bank filed a motion to substitute DB Midwest LLC as the party in interest as they allegedly purchased the subject loans and received an assignment of the Mortgage on the P.7

12 subject property from Huntington National Bank. DB Midwest was not a holder in due course of the Note as they came into alleged possession of the note after default was declared by the note holder, Huntington National Bank.( aka Sky Bank) After many other filings and another appeal to the Tenth District Court of Appeals case No. 08 AP-838 & 839, Whipps v Ryan, 2009-Ohio-2228, (which was appealed to this Court case No jurisdiction denied ) and the acceptance of a new intervener,, Boca Environmental Inc., a third Praecipe of Sale of the foreclosed property was issued and a sale of the property was scheduled for December 23, Appellant filed a Motion to Stay Sheriff's Sale and to Vacate Praecipe of Sale on December 20, The Trial Court docketed its Entry Denying Motion to Stay on December 23, 9:13 A.M., presumably prior to the sale taking place. This Entry to date has not been served on Appellant or to any other party to the best of his knowledge. It was made available on the Franklin County Common Pleas Clerk's web site. On December 29, 2011 the Sheriff of Franklin County, Ohio returned a Sheriff s Order of Sale reporting that the property was sold on December 23, 2011 for an amount of $400,000 to a Mr. Joe Hakin. A deposit of $ 103,000 was received by the Sheriff of Franklin County. On December 27, 2011 Appellant filed two appeals with the Tenth District Court of Appeals Clerk, one for case No. 05CVH and one for case No. 06CV1244. On January 19, 2012 The Tenth District Court of Appeals, sua sponte, consolidated both appeals'. On or about January 12, 2012 Appellee DB Midwest LLC filed a Expedited Motion to Dismiss Appellant's appeals. Appellant filed a Memorandum Contra. On February 7, 2012 the Tenth District Court of Appeals entered its Journal Entry of P. 8

13 Dismissal granting Appellee's Motion to Dismiss, dismissing both of Appellant's appeals. It is from this Entry Appellant appeals to this Court. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law # 1: A premature appeal filed pursuant to Appellate Rule 4( C) and the Tenth Appellate District Court's Local Appellate Rule 3( A) does not divest the Trial Court of jurisdiction to docket its entry or order of an announced decision, order or sentence and the premature appeal shall not be dismissed until such time as that entry or order is determined not to be a final appealable order by the Appellate Court. Argument: A premature appeal is not jurisdictional in nature as it is a procedural law not substantive law. It is an Appellate Rule that permits the filing of a premature appeal after the announcement of a decision, order or sentence but before entry of the judgment or order. In the Tenth District of Franklin County Ohio, the Appeals Court has provided for such an appeal by adopting its Local Appellate Rule 3( A ) which with specificity directs the Clerk of the Trial Court from which the appeal is taken to treat the appeal as filed on the day the anticipated entry is docketed by the Trial Court. The Tenth District Court of Appeals through its Local Appellate Rules has determined that after a premature appeal is filed, jurisdiction still lye's in the Trial Court until such anticipated entry, in accordance with the subject decision, order or sentence, is finalized and entered upon the Trial Court's docket. Continuing Trial Court jurisdiction is consistent with existing law. State ex rel Everhart v McIntosh, 14, Hartman v Eggar, 61 Appellate Rule 4 ( C) supersedes all other appellate procedures when considering a premature appeal. In support of this argument, Ohio Revised Code Section ( B) clarifies the authority set forth in Appellate Rule 4( C ) by stating : P.9

14 "Unless, in the case of an administrative appeal, Chapter 119 or other Section of the Revised Code apply, such an appeal is governed by this chapter and, to the extent this chapter does not contain a relevant provision, the Rules of Appellate Procedure." Ohio Revised Code Section 2505 does not contain a provision dealing with premature appeals nor can a relevant provision be found else where in the Ohio Revised Code or Appellate Rules. The case at bar is not an administrative appeal or an appeal filed pursuant to Chapter 119 O.R.C. Therefore, Appellant argues Appellate Rule 4( C ) is the exclusive directive for premature appeals and in the Tenth District of Ohio Local Appellate Rule 3 A) is controlling, as it does not conflict with Appellate Rule 4 ( C). Appellate Rule 4 C) states as follows: "A notice of appeal filed after the announcement of a decision, order, or sentence but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after entry." Local Appellate Rule 3( A) of the Tenth Appellate District, Franklin County Ohio states as follows: (A)Premature Notice of Appeal "Pursuant to App.R 4, a notice of appeal prematurely filed before actual entry of the judgment or order appealed from shall be treated as filed after such entry and on the day thereof. When notice of appeal is so prematurely filed, it shall be retained by the clerk of the trial court, and the copy thereof, together with a copy of the docket entries, shall not be forwarded to the clerk of this Court pursuant to App. 3 (D), until after such entry. The clerk of the Trial Court shall notify appellant, or his counsel, that the notice of appeal was prematurely filed. " Appellant argues that a reasonable argument does not exist as to why the Tenth District Court of Appeals dismissed Appellant's premature appeal contrary to the directives found in Appellate Rule 4 ( C) and Local Appellate Rule 3 (A). One must wonder how often these summary proceedings are decided through out the State with out explanation other than stating that a final appealable does not exist. P.10

15 In the case at bar, the only explanation given by the Appellate Court for its Journal Entry of Dismissal was that Appellant had conceded in his Memo Contra Motion to Dismiss that the Trial Court has not joumalized an appealable order, therefore the appeals were dismissed for lack of a final appealable order. The Trial Court's Entry Denying Motion to Stay of December 23, 2012 states that " all issues have been adjudicated to finality... " leaving no question that the special proceeding of the sale of the property will go forward with in minuets of the docketing of the Entry and a confirmation order would issue. There is no question that as an owner of the subject property, Appellant has a substantial right in that ownership and therefore has a right of appeal of the forth coming confirmation order. Citizens Loan & Sav. Co, v Stone (1965) 1 Ohio App. 2d 552, Metropolitan Bank Trust Co. v Roth, 2003-Ohio There is was no question that the subject property sold prior to Appellant filing his premature appeal with the Trial Court. While Appellant does not wish to be flippant, given all the above facts of this case, one must inquire as to what is a premature appeal filed pursuant to Appellant Rule 4( C) and Local Appellate Rule 3( A) if it is not an appeal made prior to a final appealable order or entry, but made in anticipation of said order or entry in accordance with these Appellate Rules, which in this case is the anticipated confirmation order confirming the sale of the subject property. Certainly other Appellate Courts' follow the premature appeal directive set forth in Appellate Rule 4 (C). see Bennington Creative Investors v Thomas L. Robinson, February 7, 2000, Stark App. No CA P.11

16 Appellate must argue that since Appellate Local Rule 3( A) is not a discretionary Rule as it mandates its compliance by the Clerk of the Trial Court by the phrase shall be retained by the clerk of the trial court, the Tenth District Court of Appeals is required to comply with its own set of Local Appellate Rules by treating Appellant's appeal as filed after the anticipated entry yet to be issued by the Trial Court. (as to shall see Eastlake v Fraternal Order of Police/Ohio Labor Counsel, 2011-Ohio-2201@ 45,State ex rel Bodkuns v Laws 1994, 69 Ohio St. 3d 383..Havel v Villa St. Joseph, slip Opinion No.2012-Ohio-552@ 3. Conclusion: The Tenth Appellate District's avoidance of its own Local Appellate Rule denies Appellant of his rights to due process guaranteed under the United States and Ohio Constitution and sets a precedent of eliminating a right to a premature appeal to all those litigants who wish to appeal through out the State of Ohio. And to add insult to injury, Appellant was charged a $ 90 fee by the Clerk for its obvious failure to comply with Local Appellate Rule 3( A), The February 7, 2012 Journal Entry of Dismissal issued by the Tenth Appeiiate District Court of Appeals dismissing Appellant's premature appeal was in error.. For the reasons discussed above, Appellant respectfully requests this Court to accept jurisdiction in this Case in order that the people of this State, especially the pro se litigants', may have a clear and succinct understanding of Appellate Rule 4 ( C ), that those appellant's in the Tenth Appellate District may not have to be subject to unreasonable dismissals of their premature appeals, while being charged for the privilege for filing such appeal and that Appellant's right to due process are upheld. P.12

17 3165 Dale Avenue Columbus Ohio P.13

18 CERTIFICATE OF SERVICE Thereby certify that a true copy of the Amended Memorandum in Support of Jurisdiction was sent by regular U.S. Mail, postage prepaid, on this^day of March, 2012 to the following counsel for Appellees' : Matthew G. Burg # Weltman Weinburg & Reis, Co. L.P.A. 323 West Lakeside Ave. Suite 200 Cleveland, Ohio (216) (216) fax mburggweltman.com Attorney for Appellee D.B. Midwest LLC, Huntington National Bank, Sky Bank, Tina F. Woods # Weltman Weinburg & Reia Co. L.P.A. 525 Vine Street Suite 800 Cincinnati, Ohio (614) (614) fax twoodskweltman.com Attorney for Appellee DB Midwest LLC, Huntington National Bank; Sky Bank Larry F. Shafer.55 South Main Street, Suite G P.O. Box 356 Johnstown Ohio (740) Attnrnev fnr Annellee F,dward F. Whinns Trustee I rr -_....-_rr_ ---- Edward F. Whipps 500 South High Street, Suite 860 Attroney for Appellee Michael F. Colley Melanis Cornelius Sr. Asst. Attorney General Collection Enforcement 150 E. Gay St. 21 st floor (614) Attomey for Appellee Ohio State Department Of Taxation

19 Adria L. Fields Franklin County Prosecutor 373 S. High Street Attorney for Appellee Franklin County Treasure Aron C Firstenberger Strip, Hoppers, Leithart, McGrath & Terlecky Co. LPA 575 South High Street ACFncolumbuslaw er.ne Attorney for Appellee Receiver Larry R. Rothenberg Weltman, Weinberg & Reise Co. LPA 323 West Lakeside Avenue, Suite 200 Cleveland Ohio (216) (216) fax lrothenber kweltman.com Attroney for Appellee Boca Environmental Inc LTale _Aven»e Columbus, Ohio

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21 IN THE COURT OF APPEALS OF OHIO TENTH APPEL L ATE D[STRir.r Edward F. Whipps, Trustee, Plaintiff-Appellee, 2^I2 FE6-7 ^,^, tr. 23 r icii7 UF COURTS No. 11 AP-1138 James M. Ryan, (REGULAR CALENDAR) Sky Bank et al., Defendant-Appellant. PlaintiffS-Appei lees V. No. 11AP-1139 Michaei F. Colley, (REGULAR CALENDAR) James M. Ryan, Defendant-Appellee, Defendant-Appeilant. Appellant concedi^^, JOURNAL ENTRY OF DISMISSAL in his ^^ memo contra otio^ «{ ^,..E^m a^ irc ^L l the L, -^^5t court has not joumaiized an appealable order, appellee's January 10, 2012 motion to. n is granted _^_ dism isse d. _ a nd^ these iese a^jfleai3 are,ief"eby 015mISS@O TOr lack IaCK _ OT a nnai, final, appealable order. Costs.shali be assessed against appellant. Judge Lisa L. Sadler G-^-^--2 Judge John A. Connor