Wilson Court 2, L.L.C. v. Suarez

2020 Ohio 5074

Opinion

[Cite as Wilson Court 2, L.L.C. v. Suarez, 2020-Ohio-5074.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

WILSON COURT 2, LLC JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 0003 JOSHUA SUAREZ, et al.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2019CV00052

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 26, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

ERIC J. WITTENBERG JAMES R. HAVENS COOK, SLADOJE & WITTENBERG ADAM M. SCHWARTZ 5131 Post Road, Suite 100 WESLEY W. GILLILAND Dublin, Ohio 43017 HAVENS LIMITED 141 East Town Street MICHAEL C. COHAN Suite 200 ERIC J. WEISS Columbus, Ohio 43215 CAVITCH, FAMILO & DURKIN 1300 East Ninth Street, 20th Floor Cleveland, Ohio 44114 Morrow County, Case No. 2020 CA 0003 2

Wise, John, P. J.

{¶1} Appellants Joshua Suarez, Jasmine Plummer, and Lindsay Bertrand appeal

decisions of the Court of Common Pleas, Morrow County, granting judgment in favor of

Appellee Wilson Court 2, LLC on Appellants quiet title cause of action and granting the

forcible entry and detainer action against them.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts leading to this appeal are as follows.

{¶3} On October 23, 2018, Plaintiff-Appellee Wilson Court 2, LLC purchased the

subject property located at 7456 County Road 183, Fredericktown, Ohio, 43019, from

Joshua Fichtelman for $50,000.00.

{¶4} Joshua Fichtelman had previously purchased the subject property on

October 20, 2016, for $35,000.00.

{¶5} Defendants-Appellants Joshua Suarez, Jasmine Plummer, and Lindsay

Bertrand lived with Joshua Fichtelman at the subject property and made improvements

from 10/20/2016 to 10/23/2018, when it was sold.

{¶6} Defendants-Appellants assert that Joshua Fichtelman made oral

representations to them that they would have an ownership interest in the subject

property. There was no agreement in writing between Defendants-Appellants and Joshua

Fichtelman.

{¶7} Defendants-Appellants did not appear in the chain of title for the subject

property as having an interest in it prior to the time that Wilson Court 2, LLC purchased it

on 10/23/2018. Morrow County, Case No. 2020 CA 0003 3

{¶8} On December 14, 2018, Plaintiff-Appellee Wilson Court 2, LLC filed a

Forcible Entry and Detainer action against Defendants-Appellants, Joshua Suarez,

Jasmine Plummer and Lindsey Bertrand in the Morrow County Municipal Court

{¶9} On December 28, 2018, Defendants-Appellants filed an Answer and

Counterclaim, asserting that they have an equitable interest in the subject real estate in

their Counterclaim.

{¶10} On January 28, 2019, by agreement of the parties, the case was transferred

to the Morrow County Court of Common Pleas.

{¶11} Plaintiff-Appellee replied to the Counterclaim and also filed a Motion for

Judgment on the Pleadings. Defendants-Appellants timely responded, and a reply was

filed.

{¶12} On May 2, 2019, the trial court granted the judgment in favor of Plaintiff-

Appellee on Defendants-Appellants’ Counterclaim sounding in quiet title.

{¶13} Defendants-Appellants then filed a pro se Notice of Appeal of the trial

court’s May 2, 2019, Judgment Entry.

{¶14} Plaintiff-Appellee filed two different Motions to Dismiss: one on the grounds

that the Notice of Appeal was not timely filed, and the other on the grounds that the May

2, 2019, Judgment Entry is not a final, appealable order.

{¶15} This Court dismissed the appeal as being untimely filed, and the case was

remanded to the trial court for the eviction hearing.

{¶16} Defendants-Appellants retained new counsel, who then filed a motion for

summary judgment that sought the same relief as the dismissed Counterclaim. Morrow County, Case No. 2020 CA 0003 4

{¶17} On January 31, 2020, after full briefing, the trial court denied said Motion for

Summary Judgment, finding that the doctrine of res judicata barred the motion, and that

even if it did not, Defendants-Appellants were not entitled to an entry of summary

judgment in their favor as a matter of law.

{¶18} On February 20, 2020, the trial court conducted a hearing on the Forcible

Entry and Detainer action. All parties appeared, and after granting a Motion in Limine filed

by Plaintiff-Appellee to prevent the introduction of testimony regarding any alleged

ownership interest in the property by Defendants-Appellants, the trial court found that

Plaintiff-Appellee holds the lawful title and right of possession to said property, and found

that Defendants-Appellants were wrongfully detaining said property. The trial court then

granted the eviction.

{¶19} Defendants-Appellants now appeal. The writ of restitution for the premises

was stayed when Defendants-Appellants posted a supersedeas bond.

{¶20} Defendants-Appellants raise the following two Assignments of Error:

ASSIGNMENTS OF ERROR

{¶21} “I. THE TRIAL COURT IMPROPERLY GRANTED PLAINTIFF SUMMARY

JUDGMENT ON DEFENDANTS' QUIET TITLE CLAIM.

{¶22} “II. THE TRIAL COURT IMPROPERLY EVICTED THE DEFENDANTS.”

I.

{¶23} In their First Assignment of Error, Appellants contend the trial court erred in

granting summary judgment in favor of Appellee on Appellants’ quiet title claim. We

disagree. Morrow County, Case No. 2020 CA 0003 5

{¶24} Appellants herein argue that the trial court improperly converted Appellee’s

Civ.R. 12(C) Motion for Judgment on the Pleadings to a Civ.R. 56(B) Motion for Summary

Judgment without prior notice to the parties.

{¶25} Upon review, we find that in the first paragraph of its Judgment Entry, the

trial court states “[t]his matter comes before the Court on upon [sic] the Motion for

Summary Judgment filed by Plaintiff, Wilson Court 2, LLC, on January 16, 2019. The

Defendants filed a Memorandum Contra to Defendant’s [sic] Motion on January 29, 2019.

Plaintiff filed a Reply Memorandum on January 31, 2019. …”

{¶26} A review of the record reveals that the motion filed by Plaintiffs-Appellees

on January 16, 2019, was a Civ.R. 12(C) Motion for Judgment on the Pleadings as to All

Allegations Set Forth in the Defendants’ Counterclaim. Likewise, Defendants-Appellants

Opposition and Plaintiff-Appellee’s Reply Memorandum in Support all reference and

address Civ.R. 12(C).

{¶27} In paragraphs 14 and 15 of the Judgment Entry, the trial court then goes on

to cite Civ.R. 12(C):

14. Civ.R. 12(C) states: “Motion for judgment on the pleadings. After

the pleadings are closed but within such time as to not delay the trial, any

party may move for judgment on the pleadings.”

15. Civ.R. 12(C) motions are specifically for resolving questions of

law. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d

565, 570, 664 N.E.2d 931; State ex rel. Montgomery v. Purchase Plus

Buyer's Group, Inc. (Apr. 25, 2002), 10th Dist. No. 01AP1073, 2002 WL

723707. In deciding a Civ.R. 12(C) motion, the court "must construe as true Morrow County, Case No. 2020 CA 0003 6

all of the material allegations in the complaint, with all reasonable inferences

to be drawn therefrom, in favor of the nonmoving party." Montgomery at *2,

citing Whaley v. Franklin Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 574,

581, 752 N.E.2d 267. A court may grant the motion if it finds beyond doubt

that the plaintiff can prove no set of facts in support of the claims that would

entitle him or her to relief. Pontious at 570, 664 N.E.2d 931; Montgomery at

*2.

{¶28} In paragraph 16, the trial court provides its findings of fact as follows:

16. The Defendants have failed to provide any facts in support of

their claim that they have an interest in the subject real estate superior to

the right of the Plaintiff. The Defendants have no argument of partial

performance or promissory estoppel against the Plaintiff. The Defendant's

claim that they had an oral understanding with Joshua Fichtelman that they

had an interest in the subject real estate is barred by the Statute of

Limitations. The Plaintiff holds marketable title to the subject premises.

{¶29} In paragraphs 18 and 19, the trial court then concludes by stating:

18. There are no genuine issues of law or fact in this matter.

19. Summary Judgment pursuant to Civ. Rule 56 for the Plaintiff,

Wilson Court 2, LLC, is appropriate in that reasonable minds can come to

but one conclusion and that conclusion is adverse to the Defendants.

{¶30} As set forth above, it appears that despite the trial court’s erroneous

reference to the Plaintiff having filed a Motion for Summary Judgment when it was in fact

a Civ.R. 12(C) Motion for Judgment on the Pleadings, the trial court then went on to Morrow County, Case No. 2020 CA 0003 7

reference Civ.R. 12(C) and set forth the standard for Civ.R. 12(C). Further, the trial court’s

Judgment Entry does not reference anything outside of the pleadings was considered in

determining the merits of the motion.

{¶31} Pursuant to Civ.R. 61, “no error or defect in any ruling or order * * * is ground

for * * * disturbing a judgment or order, unless refusal to take such action appears to the

court inconsistent with substantial justice. The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does not affect the substantial rights

of the parties.” See also R.C. 2309.59 (“the [reviewing] court shall disregard any error or

defect in the pleadings or proceedings which does not affect the substantial rights of the

adverse party”).

{¶32} “The critical inquiry * * * is whether the trial court's erroneous statement

materially prejudiced the appellants.” Fada v. Information Sys. & Networks Corp., 98 Ohio

App.3d 785, 792 (2d Dist.1994). “When avoidance of the error would not have changed

the outcome of the proceedings, then the error neither materially prejudices the

complaining party nor affects a substantial right of the complaining party.” Theobald v.

Univ. of Cincinnati, 10th Dist. Franklin No. 02AP–560, 2005–Ohio–1510, ¶ 17, citing

Fada, supra, at 792.

{¶33} As this matter initially arose out of a motion for judgment on the pleadings

under Civ.R. 12(C), we must conduct a de novo review of all legal issues without

deference to the determination of the trial court. A motion for judgment on the pleadings

pursuant to Civ.R. 12(C) presents only questions of law. Compton v. 7-Up Bottling

Co./Brooks Beverage Mgt. (1997), 119 Ohio App.3d 490, 492, 695 N.E.2d 818, 819-820.

Determination of a motion for judgment on the pleadings is restricted solely to the Morrow County, Case No. 2020 CA 0003 8

allegations in the pleadings and any writings attached to the complaint. Peterson v.

Teodosio (1973), 34 Ohio St.2d 161, 165, 297 N.E.2d 113, 116-117. Dismissal is

appropriate under Civ.R. 12(C) when, after construing all material allegations in the

complaint, along with all reasonable inferences drawn therefrom in favor of the nonmoving

party, the court finds that the plaintiff can prove no set of facts in support of its claim that

would entitle it to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio

St.3d 565, 570, 664 N.E.2d 931, 936. Thus, giving full deference to Appellants, we must

review the claims contained in their counterclaim in order to decide whether they were

entitled to any relief.

{¶34} As stated by the trial court, Defendants-Appellants failed to provide any

facts in support of their claim that they have an interest in the subject real estate superior

to the right of Plaintiff-Appellee. Appellants averred that their agreement with Joshua

Fichtelman was oral. Any oral understanding Appellants may have had with Mr.

Fichtelman with regard to an interest in the subject real estate is barred by the Statute of

Frauds.

{¶35} R.C. §1305.05 states (Statute of Frauds):

No action shall be brought whereby to charge the defendant ... upon

a contract or sale of lands, tenements, or hereditaments, or interest in or

concerning them, or upon an agreement that is not to be performed within

one year from the making thereof; unless the agreement upon which such

action is brought, or some memorandum or note thereof, is in writing and

signed by the party to be charged therewith or some other person thereunto

by him or her lawfully authorized. Morrow County, Case No. 2020 CA 0003 9

{¶36} We further find that Appellee holds marketable title to the property.

{¶37} R.C. §5301.25 Recording of instruments for conveyance or encumbrance

of lands, requires:

(A) All deeds, land contracts referred to in division (A)(21) of section

317.08 of the Revised Code, and instruments of writing properly executed

for the conveyance or encumbrance of lands, tenements, or hereditaments,

other than as provided in division (C) of this section and section 5301.23 of

the Revised Code, shall be recorded in the office of the county recorder of

the county in which the premises are situated. Until so recorded or filed for

record, they are fraudulent insofar as they relate to a subsequent bona fide

purchaser having, at the time of purchase, no knowledge of the existence

of that former deed, land contract, or instrument.

{¶38} Recordation gives constructive notice to all persons dealing with the land of

properly recorded instruments in the chain of title. Option One Mtge. Corp. v. Boyd (June

15, 2001), Montgomery App. No. 18715, citing Thames v. Asia's Janitorial Serv., Inc.

(1992), 81 Ohio App.3d 579, 587, 611 N.E.2d 948.

{¶39} In Blackstone v. Moore, 155 Ohio St.3d 448, 2018-Ohio-4959, 122 N.E.3d

132, the Ohio Supreme Court explained the Marketable Title Act as follows:

the act provides that a person “who has an unbroken chain of title of

record to any interest in land for forty years or more, has a marketable

record title to such interest.” R.C. §5301.48. The marketable record title

“operates to extinguish such interests and claims, existing prior to the

effective date of the root of title.” R.C. §5301.47(A). (A “root of title” is “that Morrow County, Case No. 2020 CA 0003 10

conveyance or other title transaction in the chain of title of a person * * *

which was the most recent to be recorded as of a date forty years prior to

the time when marketability is being determined.” R.C. 5301.47(E).) The act

facilitates title transactions, as the record marketable title “shall be taken by

any person dealing with the land free and clear of all interests, claims, or

charges whatsoever, the existence of which depends upon any act,

transaction, event, or omission that occurred prior to the effective date of

the root of title.” R.C. 5301.50.

Balanced against the desire to facilitate title transactions is the need

to protect interests that predate the root of title. To this end, the act provides

that the marketable record title is subject to interests inherent in the record

chain of title, “provided that a general reference * * * to * * * interests created

prior to the root of title shall not be sufficient to preserve them, unless

specific identification be made therein of a recorded title transaction which

creates such * * * interest.” R.C. §5301.49(A).

{¶40} Id. at ¶¶ 7-8.

{¶41} Effective as of 1961, the purpose of the Marketable Title Act is to “simplify

and facilitat[e] land title transactions by allowing persons to rely on a record chain of title

as described in Section 5301.48 of the Revised Code, subject only to such limitations as

appear in, section 5301.49 of the Revised Code.” R.C. §5301.55.

{¶42} Here, Appellants did not appear in the chain of title for the subject property

prior to Appellee’s purchase of the property. Morrow County, Case No. 2020 CA 0003 11

{¶43} Based on the foregoing, we find Appellee to be a bonafide purchaser who

took title free from any equity claims of the Appellants.

{¶44} Appellee’s motion for judgment on the pleadings is sustained after our de

novo review of Appellants’ counterclaim has established that they have presented no

claims which entitle them to relief pursuant to Civ.R. 12(C).

{¶45} Appellants’ First Assignment of Error is overruled.

II.

{¶46} In their Second Assignment of Error, Appellants argue the trial court erred

in evicting them. We disagree.

{¶47} Initially, we note that Appellants have failed to provide this Court with a

transcript of the forcible entry and detainer hearing held on February 20, 2020. When

portions of the transcript necessary for resolution of assigned errors are omitted from the

record, the reviewing court has nothing to pass upon and thus, as to those assigned

errors, the court has no choice but to presume the validity of the lower court's proceedings

and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).

{¶48} Upon review of the trial court’s Journal Entry, the trial court heard testimony

from the purchaser of the property, Jim Velio, owner of Wilson Court 2, LLC, who testified

that he purchased the property from Joshua Fichtelman, that he performed a title search

on the property prior to purchase, that he did not go to the property until after the

purchase, and that he provided Defendants-Appellants with a 30-day notice to leave the

property. Mr. Velio also introduced the Deeds to the property showing the transfer of

property to Joshua Fichtelman and then to Wilson Court 2, LLC. Morrow County, Case No. 2020 CA 0003 12

{¶49} The trial court also stated that Joshua Suarez testified that he occupied the

premises, but that he did not pay rent to Plaintiff-Appellee.

{¶50} The trial court found that Wilson Court 2, LLC/Jim Velio holds lawful title and

right to possession of the subject property, and that Appellants are in wrongful detention

of the property. The trial court ordered that a writ of possession be ordered to place

Appellee in possession of the real property.

{¶51} Based on our determination of Appellants’ First Assignment of Error and the

trial court’s findings in its Journal Entry following the eviction hearing, we must presume

the regularity of the proceedings and affirm the trial court’s decision. Knapp, supra.

{¶52} Appellants’ Second Assignment of Error is therefore overruled.

{¶53} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Morrow County, Ohio, is hereby affirmed.

By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.

JWW/kw 10/20