[Cite as Brannan v. Easter, 2012-Ohio-2045.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
ROGER BRANNAN, JR., et al., : Plaintiffs-Appellants, Case No. 11CA3428 : vs. : DAVID E. EASTER, et al., DECISION AND JUDGMENT ENTRY : Defendants-Appellees.
_________________________________________________________________
APPEARANCES: COUNSEL FOR APPELLANTS: Marie Moraleja Hoover, and R. Tracy Hoover, 621 Seventh Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEES: James Scott Smith, 538 Sixth Street, Portsmouth, Ohio 45662 _________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 4-30-12
ABELE, P.J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that
dismissed the complaint filed by Roger Brannan and Tammy Lou Musick, n/k/a Tammy Lou
Brannan, plaintiffs below and appellants herein. Appellant assigns the following error for
review:
“THE TRIAL COURT ERRED BY GRANTING DEFENDANTS/APPELLEES MOTION TO DISMISS.”
{¶ 2} On June 4, 2007, Appellant Roger Brannan executed a general warranty deed that
transferred “Inlot Number Forty Three” in the Village of Lucasville to the appellees. The precise SCIOTO, 11CA3428 2
interest that was transferred is the center of the dispute. The instrument recites that appellees
received “a joint life estate with remainder over in fee simple to the survivor of them.”
However, after stating the property’s tax mailing address, the deed specified “transfers on death
to ROGER BRANNAN JR. and TAMMY LOU MUSICK, beneficiaries, a joint life estate with
remainder over in fee simple to the survivor of them.” The instrument was then recorded.
{¶ 3} Appellants commenced the instant action on February 11, 2011 and asserted that
they had an interest in the property, but appellees were attempting to sell the land. Appellant
asked for a declaratory judgment that spelled out their interest in the real estate as well as
injunctive relief to prevent appellees from conveying the land. Subsequently, appellees filed a
Civ.R. 12(B)(6) motion to dismiss for failing to state a claim upon which relief can be granted.
The trial court concluded that the 2007 deed granted a fee simple interest in the land to appellees
and ordered the action dismissed. This appeal followed.1
{¶ 4} Appellants assert in their sole assignment of error that the trial court erred by
dismissing their complaint. We disagree. Before a trial court may grant a Civ.R. 12(B)(6)
motion to dismiss, it must determine that the non-moving party can prove no set of facts that
entitle them to recovery. Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 816 N.E.2d 1061,
2004–Ohio–5717, at ¶11. Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 280,
649 N.E.2d 182. Generally, a Civ.R. 12(B) (6) dismissal is subject to de novo review on appeal.
See Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 814 N.E.2d 44, 2004-Ohio-4362, at ¶5;
Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 768 N.E.2d 1136, 2002-Ohio-2480, at
1 At the same time appellees filed their Civ.R. 12(B)(6) motion, they also filed a counterclaim. The trial court dismissed that counterclaim, thus we have a final appealable order here. SCIOTO, 11CA3428 3
¶4-5.
{¶ 5} In the case sub judice, the trial court dismissed the case after it had concluded that
the deed conveyed a fee simple interest to the appellees. It is axiomatic that the construction of
written instruments, which includes deeds, is a question of law. See e.g. Long Beach Assn., Inc.
v. Jones (1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208; DeRosa v. Parker, Mahoning App. No.
10MA84, 2011-Ohio-6024, at ¶8. A de novo standard of review applies to that determination.
Salyer v. Newman, Highland App. No. 11CA4, 2011-Ohio-6676, at ¶16; Sickles v. Jackson Cty.
Hwy. Dept., Jackson App. No. 11CA7, 2011-Ohio-6102, at ¶18.
{¶ 6} Although we afford no deference to the trial court under this standard of review,
we nevertheless reach the same conclusion as the trial court. The granting clause states that
Roger Brannan, Jr., “grants with covenants, to DAVID E. EASTER and DORIS J. EASTER
(husband and wife) a joint life estate with remainder over in fee simple to the survivor of them . .
.” (Emphasis added.) If the deed only conveyed a “joint life estate,” it would be clear that
appellant did not convey a fee simple title. However, the deed conveyed “a remainder over in
fee simple.” This additional language indicates, as appellees argue in their brief, that a fee
simple title was conveyed.
{¶ 7} In 2007, when this deed was drafted and executed, R.C. 5302.22 provided, inter
alia, as follows:
“(A) A deed conveying any interest in real property, and in substance following the form set forth in this division, when duly executed in accordance with Chapter 5301. of the Revised Code and recorded in the office of the county recorder, creates a present interest as sole owner or as a tenant in common in the grantee and creates a transfer on death interest in the beneficiary or beneficiaries. * * *The deed described in this division shall in substance conform to the following form: SCIOTO, 11CA3428 4
‘Transfer on Death Deed
_______(marital status), of _______ County, _______ (for valuable consideration paid, if any), grant(s) (with covenants, if any), to _______ whose tax mailing address is _______, transfer on death to _______, beneficiary(s), the following real property:
(Description of land or interest in land and encumbrances, reservations, and exceptions, if any.)”2
{¶ 8} Had the deed followed that format, the grantor would not have transferred what
amounts to a fee simple interest to appellees, but, instead, the deed was drafted to include a
provision for “remainder over in fee simple to the survivor of them [appellees].” Thus, the
surviving spouse will have a fee simple after the death of the first spouse.
{¶ 9} The question now arises about the language in the deed concerning “transfers on
death to ROGER BRANNAN JR. and TAMMY LOU MUSICK” for purposes of another joint
life estate. We believe that this language is ineffectual in view of the fee simple interest already
transferred to the appellees. Moreover, when a conflict exists between language in a granting
clause and language in an habendum clause, the former takes precedence over the latter. Stocker
& Sitler, Inc. v. Metzger (1969), 19 Ohio App. 2d 135, 145, 250 N.E.2d 269; Siferd v. Stambor
(1966) 5 Ohio App.2d 79, 86, 214 N.E.2d 106; Anderson v. Pryor (1935), 51 Ohio App.35, 37,
199 N.E. 364.3 We would not apply this principle had appellants followed the statutory form,
but, again, they did not and cannot claim its benefits. Furthermore, the “transfers on death”
2 Effective December 2009, the statute was amended to create a transfer on death “affidavit” rather than deed. See Am.S.B. No. 124. 3 Admittedly, characterizing that portion of the deed that conveys a life estate to appellants as a “habendum clause” is arguable. However, we opt for a definition of “habendum clause” as one that follows the granting clause. Black’s Law Dictionary (5th Ed. 1979) 639.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Brannan v. Easter, 2012-Ohio-2045.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
ROGER BRANNAN, JR., et al., : Plaintiffs-Appellants, Case No. 11CA3428 : vs. : DAVID E. EASTER, et al., DECISION AND JUDGMENT ENTRY : Defendants-Appellees.
_________________________________________________________________
APPEARANCES: COUNSEL FOR APPELLANTS: Marie Moraleja Hoover, and R. Tracy Hoover, 621 Seventh Street, Portsmouth, Ohio 45662
COUNSEL FOR APPELLEES: James Scott Smith, 538 Sixth Street, Portsmouth, Ohio 45662 _________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 4-30-12
ABELE, P.J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that
dismissed the complaint filed by Roger Brannan and Tammy Lou Musick, n/k/a Tammy Lou
Brannan, plaintiffs below and appellants herein. Appellant assigns the following error for
review:
“THE TRIAL COURT ERRED BY GRANTING DEFENDANTS/APPELLEES MOTION TO DISMISS.”
{¶ 2} On June 4, 2007, Appellant Roger Brannan executed a general warranty deed that
transferred “Inlot Number Forty Three” in the Village of Lucasville to the appellees. The precise SCIOTO, 11CA3428 2
interest that was transferred is the center of the dispute. The instrument recites that appellees
received “a joint life estate with remainder over in fee simple to the survivor of them.”
However, after stating the property’s tax mailing address, the deed specified “transfers on death
to ROGER BRANNAN JR. and TAMMY LOU MUSICK, beneficiaries, a joint life estate with
remainder over in fee simple to the survivor of them.” The instrument was then recorded.
{¶ 3} Appellants commenced the instant action on February 11, 2011 and asserted that
they had an interest in the property, but appellees were attempting to sell the land. Appellant
asked for a declaratory judgment that spelled out their interest in the real estate as well as
injunctive relief to prevent appellees from conveying the land. Subsequently, appellees filed a
Civ.R. 12(B)(6) motion to dismiss for failing to state a claim upon which relief can be granted.
The trial court concluded that the 2007 deed granted a fee simple interest in the land to appellees
and ordered the action dismissed. This appeal followed.1
{¶ 4} Appellants assert in their sole assignment of error that the trial court erred by
dismissing their complaint. We disagree. Before a trial court may grant a Civ.R. 12(B)(6)
motion to dismiss, it must determine that the non-moving party can prove no set of facts that
entitle them to recovery. Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 816 N.E.2d 1061,
2004–Ohio–5717, at ¶11. Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 280,
649 N.E.2d 182. Generally, a Civ.R. 12(B) (6) dismissal is subject to de novo review on appeal.
See Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 814 N.E.2d 44, 2004-Ohio-4362, at ¶5;
Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 768 N.E.2d 1136, 2002-Ohio-2480, at
1 At the same time appellees filed their Civ.R. 12(B)(6) motion, they also filed a counterclaim. The trial court dismissed that counterclaim, thus we have a final appealable order here. SCIOTO, 11CA3428 3
¶4-5.
{¶ 5} In the case sub judice, the trial court dismissed the case after it had concluded that
the deed conveyed a fee simple interest to the appellees. It is axiomatic that the construction of
written instruments, which includes deeds, is a question of law. See e.g. Long Beach Assn., Inc.
v. Jones (1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208; DeRosa v. Parker, Mahoning App. No.
10MA84, 2011-Ohio-6024, at ¶8. A de novo standard of review applies to that determination.
Salyer v. Newman, Highland App. No. 11CA4, 2011-Ohio-6676, at ¶16; Sickles v. Jackson Cty.
Hwy. Dept., Jackson App. No. 11CA7, 2011-Ohio-6102, at ¶18.
{¶ 6} Although we afford no deference to the trial court under this standard of review,
we nevertheless reach the same conclusion as the trial court. The granting clause states that
Roger Brannan, Jr., “grants with covenants, to DAVID E. EASTER and DORIS J. EASTER
(husband and wife) a joint life estate with remainder over in fee simple to the survivor of them . .
.” (Emphasis added.) If the deed only conveyed a “joint life estate,” it would be clear that
appellant did not convey a fee simple title. However, the deed conveyed “a remainder over in
fee simple.” This additional language indicates, as appellees argue in their brief, that a fee
simple title was conveyed.
{¶ 7} In 2007, when this deed was drafted and executed, R.C. 5302.22 provided, inter
alia, as follows:
“(A) A deed conveying any interest in real property, and in substance following the form set forth in this division, when duly executed in accordance with Chapter 5301. of the Revised Code and recorded in the office of the county recorder, creates a present interest as sole owner or as a tenant in common in the grantee and creates a transfer on death interest in the beneficiary or beneficiaries. * * *The deed described in this division shall in substance conform to the following form: SCIOTO, 11CA3428 4
‘Transfer on Death Deed
_______(marital status), of _______ County, _______ (for valuable consideration paid, if any), grant(s) (with covenants, if any), to _______ whose tax mailing address is _______, transfer on death to _______, beneficiary(s), the following real property:
(Description of land or interest in land and encumbrances, reservations, and exceptions, if any.)”2
{¶ 8} Had the deed followed that format, the grantor would not have transferred what
amounts to a fee simple interest to appellees, but, instead, the deed was drafted to include a
provision for “remainder over in fee simple to the survivor of them [appellees].” Thus, the
surviving spouse will have a fee simple after the death of the first spouse.
{¶ 9} The question now arises about the language in the deed concerning “transfers on
death to ROGER BRANNAN JR. and TAMMY LOU MUSICK” for purposes of another joint
life estate. We believe that this language is ineffectual in view of the fee simple interest already
transferred to the appellees. Moreover, when a conflict exists between language in a granting
clause and language in an habendum clause, the former takes precedence over the latter. Stocker
& Sitler, Inc. v. Metzger (1969), 19 Ohio App. 2d 135, 145, 250 N.E.2d 269; Siferd v. Stambor
(1966) 5 Ohio App.2d 79, 86, 214 N.E.2d 106; Anderson v. Pryor (1935), 51 Ohio App.35, 37,
199 N.E. 364.3 We would not apply this principle had appellants followed the statutory form,
but, again, they did not and cannot claim its benefits. Furthermore, the “transfers on death”
2 Effective December 2009, the statute was amended to create a transfer on death “affidavit” rather than deed. See Am.S.B. No. 124. 3 Admittedly, characterizing that portion of the deed that conveys a life estate to appellants as a “habendum clause” is arguable. However, we opt for a definition of “habendum clause” as one that follows the granting clause. Black’s Law Dictionary (5th Ed. 1979) 639. Because the tax mailing address separates these clauses, we believe SCIOTO, 11CA3428 5
language set forth late in the deed regarding appellants is superfluous. Nothing in appellants’
brief persuades us that the trial court ruled erroneously in this matter.
{¶ 10} For all these reasons, we agree with the trial court that a fee simple interest in the
subject real estate was transferred to appellees. Accordingly, appellants could prove no set of
facts that entitle them to relief.
{¶ 11} Consequently, the trial court correctly dismissed appellants’ complaint pursuant to
Civ.R. 12(B)(6) and appellants’ assignment of error is without merit and is hereby overruled.
Thus, we hereby affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellees recover of appellants costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
the granting clause ends before that address and the habendum picks up thereafter. SCIOTO, 11CA3428 6
BY: Peter B. Abele Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.