2019 Ohio 4825
Ohio Ct. App.2019Background
- Daniel Hellmuth and his wife owned a Trenton, Ohio residence; their daughter Leanne Hood and her husband Herbert lived in the basement and agreed to pay taxes/utilities.
- On Sept. 1, 2015 Hellmuth and his wife executed a quitclaim conveying an undivided one-half interest to the Hoods and a Transfer on Death affidavit for the remaining half; both were notarized in Texas and recorded.
- On May 31, 2016 they executed a survivorship deed conveying the entire property to the Hoods; that deed was notarized in Ohio by Shelley Meehan and later recorded.
- In Sept. 2016 Hellmuth and his wife recorded an affidavit alleging the 2016 deed was fraudulently executed and notarized out of their presence.
- Hellmuth sued pro se; the Hoods counterclaimed to quiet title and moved for summary judgment. The trial court granted summary judgment quieting title in the Hoods. Hellmuth appealed.
- The court of appeals reversed and remanded, concluding there are genuine issues of material fact about whether the 2016 deed was properly notarized and thus whether title passed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/notarization of the May 31, 2016 deed | Hellmuth: deed was not acknowledged before a notary, was notarized out of his presence, and was executed under duress (per his Sept. 2016 affidavit) | Hoods: deeds are unambiguous, recorded, and convey title; Hellmuth offered no admissible evidence to defeat SJ | Court: Genuine issues of material fact exist about notarization and fraud; reversed SJ and remanded |
| Use of unauthenticated documents in ruling on summary judgment | Hellmuth: deeds and fraud affidavit were attached/incorporated in pleadings and relied on in opposition | Hoods/trial court: considered unauthenticated deed copies; trial court excluded the 2016 fraud affidavit as unauthenticated or unused | Court: Parties may rely on unauthenticated pleadings' exhibits when no objection; the 2016 fraud affidavit was incorporated and should have been considered; exclusion was error |
| Effect of Hellmuth’s voluntary dismissal under Civ.R. 41(A)(1)(a) | Hellmuth: sought dismissal without prejudice to refile and later tried to withdraw dismissal and press motions | Hoods: dismissal terminated Hellmuth's claims leaving only counterclaims for adjudication | Court: voluntary dismissal is self-executing and divests the court of jurisdiction over dismissed claims; related assignments were overruled |
| Appropriateness of summary judgment on quiet title counterclaim | Hellmuth: factual dispute (notarization/fraud) precludes summary judgment | Hoods: no Civ.R.56(C) evidence in opposition; deeds control | Court: Considering all incorporated documents, reasonable minds could differ; summary judgment improper; reversed and remanded |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (summary judgment standard and requirements)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant's initial burden and nonmovant's reciprocal burden in Civ.R. 56)
- Basil v. Vincello, 50 Ohio St.3d 185 (1990) (defectively executed deed is valid between parties absent fraud but does not pass legal title)
- Citizens Natl. Bank v. Denison, 165 Ohio St. 89 (1956) (principle that defective execution affects passing of legal title)
- Naso v. Daniels, 8 Ohio App.2d 42 (1966) (same rule regarding formalities and title)
- State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St.3d 260 (2009) (courts may consider unsworn/unauthenticated exhibits attached to pleadings when no objection is lodged)
- State ex rel. Spencer v. E. Liverpool Planning Comm., 80 Ohio St.3d 297 (1997) (treatment of materials incorporated into the record)
- State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250 (2011) (Civ.R. 41(A)(1)(a) voluntary dismissal is self-executing and terminates further action on the merits)