Mace v. Mace

2023 Ohio 2761

• Court: Ohio Court of Appeals
• Decided: July 27, 2023
• Docket: 23CA700
• Status: Published

Opinion

[Cite as Mace v. Mace, 2023-Ohio-2761.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY

TOMMY JOE MACE, et al., :

Plaintiffs-Appellees, : CASE NO. 23CA700

v. :

JAMES EUGENE MACE, et al., :

Defendants-Appellees, :

vs. : DECISION & JUDGMENT ENTRY

JACOB MCNICHOLS, :

Intervenor-Appellant. : ________________________________________________________________

APPEARANCES:

Lucas A. Thompson and Brian S. Stewart, Circleville, Ohio, for intervenor-appellant.

Trecia Kimes-Brown, Hamden, Ohio, for appellee James Eugene Mace. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-27-23 ABELE, J.

{¶1} This is an appeal from a Vinton County Common Pleas

Court judgment that distributed the proceeds of a partition-

election sale. Jacob McNichols, intervenor below and appellant

herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR: VINTON, 23CA700 2

“THE TRIAL COURT ERRED IN VACATING THE SHERIFF’S SALE OF THE SUBJECT PROPERTY TO APPELLANT JACOB MCNICHOLS BECAUSE THERE WAS NO ‘IRREGULARITY’ IN THE SALE AND BECAUSE DEFENDANT-APPELLEE JAMES MACE WAIVED HIS RIGHTS TO CONTEST IT.”

SECOND ASSIGNMENT OF ERROR:

“IN THE ALTERNATIVE, THE TRIAL COURT ERRED BY ALLOWING DEFENDANT-APPELLEE JAMES MACE TO PURCHASE THE SUBJECT PROPERTY IN PARTITION FOR AN AMOUNT BELOW THE STATUTORILY REQUIRED PRICE.”

{¶2} The present appeal arises out of a complaint to

partition property. On October 7, 2020, Tommy Joe Mace,

Christie Pierce, and Tommy Joe Mace, as administrator for the

estate of Nancy Marie Morris (plaintiffs), filed a complaint to

partition real estate against, among others, James Eugene Mace,

defendant below and appellee herein. The complaint alleged that

the plaintiffs own three-fourths of the interest in a parcel of

real estate and that appellee claims a one-fourth interest in

the property. The plaintiffs asked the trial court to partition

the real estate and to order it sold if it cannot be

partitioned.

{¶3} On September 24, 2021, the trial court granted the

request for a partition, issued a writ of partition, and

appointed a commissioner. The commissioner’s return stated that VINTON, 23CA700 3

the property could not be partitioned. The commissioner also

appraised the property at $90,000.

{¶4} On December 15, 2021, the trial court approved the

commissioner’s return and ordered any party who wished to elect

to take the estate at the appraised value do so before December

31, 2021.

{¶5} On January 24, 2022, the trial court noted that,

because none of the parties elected to take the property, the

court ordered the Vinton County Sheriff to sell the property at

public auction. At this point, the Sheriff asked three Vinton

County freeholders to appraise the property.1 The freeholders

appraised the property at $22,500. At auction, appellant made a

winning bid in the amount of $26,000.

{¶6} On July 7, 2022, appellee filed a motion to vacate the

sheriff’s sale. Appellee asserted that the order of sale

mistakenly stated that a judgment had been issued against him in

the amount of $90,000, rather than state that $90,000 is the

appraised value of the property. Appellee pointed out that R.C.

5307.12 provides that the property shall not be “sold for less

We observe that when property subject to partition under R.C. Chapter 5307 must be sold at a sheriff’s sale, an additional appraisal is unnecessary. See 5307.12(A)(1) (“[t]he sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate”). VINTON, 23CA700 4

than two thirds of the value returned by the commissioner” and

asserted that he should have been provided the opportunity to

buy the property for $22,500 before the public auction, or the

sheriff should have used the $90,000 value with an opening bid

of $60,000.

{¶7} On October 5, 2022, the trial court vacated the

sheriff’s sale and held a status conference with the partition

parties (the plaintiffs and appellee). The parties agreed that

“a material irregularity occurred because the bidding at the

Sheriff’s sale began at a level significantly lower than the

Return of Commissioner previously filed with the Court.” The

court stated that because it would “not confirm the Sheriff’s

sale,” it vacated the sale and ordered the case to proceed as if

the sale had not occurred. The court then allowed the partition

parties to elect to take the property with the lower value as

the opening bid. Appellee and plaintiff Christie Pierce elected

and appellee placed the higher bid of $25,250. The court

approved appellee’s election, ordered him to pay the amount due,

and directed the Vinton County Sheriff to execute and deliver a

deed to appellee. The court stated that it would hold a

separate hearing to decide how to distribute the sales proceeds.

{¶8} On October 6, 2022, appellant filed a motion to ask

the trial court to allow him to intervene before the court VINTON, 23CA700 5

issued a decision regarding appellee’s motion to vacate the

sheriff’s sale. The certificate of service indicates that

appellant sent this motion on October 3, 2022, but it was not

docketed until October 6, 2022, the day after the trial court

approved appellant’s election to take the property.

{¶9} On November 2, 2022, the trial court granted

appellant’s motion to intervene and sua sponte set the matter

for a hearing to reconsider its decision “vacating sheriff’s

sale of October 5, 2022.” Although the court apparently

intended to reconsider its decision to vacate the sheriff’s

sale, it did not make any mention of its October 5, 2022

decision to approve appellee’s election to take the property and

directed the Vinton County Sheriff to execute and deliver a deed

to appellee. Thus, appellee purchased the property. On

December 12, 2022, the trial court denied its own sua sponte

motion to reconsider and distributed the sale proceeds. This

appeal followed.

{¶10} In his two assignments of error, appellant asserts

that the trial court erred by vacating the sheriff’s sale and by

allowing appellee to purchase the property for $22,250. He asks

that we reverse and remand the trial court’s judgment so that he

can purchase the property for the amount of his original bid,

$26,000. VINTON, 23CA700 6

{¶11} We initially observe that in a partition action, an

order that confirms an election or partitions property is

similar to an order of sale in a foreclosure action and, hence,

constitutes a final order. See Hack v. Keller, 9th Dist. Medina

No. 14CA0036-M, 2015-Ohio-4128, ¶ 11, quoting Mitchell v. Crain,

108 Ohio App. 143, 149 (6th Dist.1958) (“‘the final order from

which appeals may be had in partition are limited to the order

of partition and the order confirming the sale’”); Schrader v.

Schrader, 4th Dist. Hocking No. 03CA20, 2004-Ohio-4104, ¶ 14,

fn. 3 (“the final orders in a partition action are the order of

sale and the confirmation”); Malone v. Malone, 119 Ohio App.

503, 505, 199 N.E.2d 405 (4th Dist.1963) (“order permitting the

bank to file an election to purchase at the appraised value was

a final order”). And an order that distributes the proceeds

following an election is similar to an order confirming a sale

in a foreclosure action and, thus, constitutes a final order.

See Hack at ¶ 11; Schrader at ¶ 14, fn. 3. In the case sub

judice, one of the October 5, 2022 orders confirmed appellee’s

election and the December 12, 2022 order distributed the

proceeds.

{¶12} If the other October 5, 2022 order – the order that

“vacated” the sheriff’s sale – is a final order, then the motion

to reconsider that order is a nullity. See Pitts v. Dept. of VINTON, 23CA700 7

Transportation, 67 Ohio St.2d 378, 379–381, 423 N.E.2d 1105

(1981) (motion to reconsider a final judgment “a nullity” and “a

legal fiction”). Moreover, if either the October 5, 2022 order

that approved appellee’s election or the order that vacated the

sheriff’s sale constitutes a final order, any appeal should have

been filed within 30 days of the order. Thus, a question arises

whether we should dismiss this appeal on the basis that it is

untimely. See Hack v. Keller, 9th Dist. Medina No. 14CA0036-M,

2015-Ohio-4128, ¶ 11, fn.1 (case law regarding finality of

partition orders is unclear). Nevertheless, as we explain

below, we believe that we must dismiss this appeal because it is

moot.

{¶13} “The doctrine of mootness is rooted both in the ‘case’

or ‘controversy’ language of Section 2, Article III of the

United States Constitution and in the general notion of judicial

restraint.” James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d

788, 791, 600 N.E.2d 736 (10th Dist.1991), citing 1 Rotunda,

Novak & Young, Treatise on Constitutional Law: Substance and

Procedure, 97, Section 2.13 (1986). “Ohio courts have long

exercised judicial restraint in cases which are not actual

controversies. No actual controversy exists where a case has

been rendered moot by an outside event.” Tschantz v. Ferguson,

57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). Thus, absent an VINTON, 23CA700 8

exception, courts ordinarily may not consider an appeal that has

become moot. Cincinnati Gas & Elec. Co. v. Pub. Util. Comm. of

Ohio, 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 15

(“an appellate court need not consider an issue, and will

dismiss the appeal, when the court becomes aware of an event

that has rendered the issue moot”); State v. Berndt, 29 Ohio

St.3d 3, 4, 504 N.E.2d 712 (1987) (reversing appellate court

decision that considered moot appeal); Schwab v. Lattimore, 166

Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 10 (1st Dist.)

(“The duty of a court of appeals is to decide controversies

between parties by a judgment that can be carried into effect”).

{¶14} In general, a “‘case is moot when the issues presented

are no longer “live” or the parties lack a legally cognizable

interest in the outcome.’” Los Angeles Cty. v. Davis, 440 U.S.

625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), quoting Powell

v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491

(1969). Moreover, a case is moot when an event occurs that

“renders it impossible for the court to grant any relief.”

Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21, syllabus (1910);

accord State ex rel. Maxwell v. Brice, 167 Ohio St.3d 137, 2021-

Ohio-4333, 189 N.E.3d 771, ¶ 18. “Conversely, if an actual

controversy exists because it is possible for a court to grant

the requested relief, the case is not moot, and a consideration VINTON, 23CA700 9

of the merits is warranted.” State ex rel. Gaylor v. Goodenow,

125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 11; State

v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d

1167, ¶ 7.

{¶15} In the case sub judice, it appears that we cannot

grant appellant any relief. Thus, this appeal is moot. On

October 5, 2022, appellee elected to purchase the property, and

the trial court ordered the sheriff to execute a deed to

appellee. The next day, appellant filed a motion to intervene.

Appellant did not, however, seek a stay of the trial court’s

October 5, 2022 decision to approve appellant’s election and

order the sheriff to execute a deed to appellant. As a

consequence, appellee purchased the property. Later, on

December 12, 2022, the trial court distributed the proceeds from

appellant’s purchase of the property.

{¶16} Despite the property being transferred to appellee and

the proceeds distributed, appellant asks this court to reverse

and remand the trial court’s decision so that he may purchase

the property for the amount of his bid at the sheriff’s sale.

However, appellant does not cite authority to authorize this

court to order the trial court to direct appellee to divest

himself of the property and to sell it to appellant for $26,000.

Unlike a foreclosure case, the partition statutes do not contain VINTON, 23CA700 10

any provisions that authorize restitution. See Governors Place

Condominium Owners Assn., Inc. v. Unknown Heirs of Polson, 11th

Dist. Lake No. 2016-L-070, 2017-Ohio-885, ¶ 29, citing R.C.

2329.45. Therefore, it appears that we cannot grant appellant

any effective relief. Consequently, this appeal is moot. In re

Appropriation for Hwy. Purposes, 169 Ohio St. 314, 316, 8 O.O.2d

315, 159 N.E.2d 451, 453 (1959) (case moot when judgment paid to

landowner by court order); accord DeMeter v. Castle Bail Bonds,

Inc., 10th Dist. Franklin No. 14AP-918, 2015-Ohio-2540, ¶ 7-8

(judgment satisfied in full rendering appeal moot after trial

court disbursed garnished funds to appellee); Ohio Power Co. v.

Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶¶ 13-14

(appeal regarding distribution of damages moot when clerk

already had distributed damage award to appellants); Atlantic

Veneer Corp. v. Robbins, 4th Dist. No. 03CA719, 2004-Ohio-3710,

¶ 8 and 17 (appeal moot when party satisfied judgment and did

not seek a stay of execution pending appeal); Slovak v.

University Off–Campus Housing, 4th Dist. No. 99CA50, 2000 WL

680479, *1 (May 19, 2000) (declined to address merits of claim

when record indicated judgment had been satisfied).

{¶17} Furthermore, it appears that none of the exceptions to

the mootness doctrine apply. See Danis Clarkco Landfill Co. v.

Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 598, 653 VINTON, 23CA700 11

N.E.2d 646 (1995) (“even where appeals to this court might be

deemed technically moot, this court may nevertheless hear them

where, as here, the appeal contains issues of great public or

general interest”). The case at bar involves a partition of

real property between private parties and a third party’s desire

to purchase the property. None of the issues concerns “issues

of great public or general interest.” McCarthy v. Lippitt, 7th

Dist. Monroe No. 04-MO-1, 2004-Ohio-5367, ¶ 38 (“[t]he

distribution of proceeds from the severance of a joint tenancy

is private and contains no matters of great public interest”).

{¶18} Accordingly, based upon the foregoing reasons, we

dismiss this appeal.

APPEAL DISMISSED. VINTON, 23CA700 12

JUDGMENT ENTRY

It is ordered that the appeal be dismissed and that 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 Vinton 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.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________ Peter B. Abele, Judge VINTON, 23CA700 13

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.