Fragola v. Graham

• Decision Date: 21 December 2016
• Docket Number: No. 27872.,27872.
• Parties: Frederick FRAGOLA, Appellant v. Dianne L. GRAHAM, Appellee.
• Court: Ohio Court of Appeals

78 N.E.3d 277

2016 Ohio 8281

Frederick FRAGOLA, Appellant

v.Dianne L. GRAHAM, Appellee.

No. 27872.

Court of Appeals of Ohio, Ninth District, Summit County.

Dec. 21, 2016.

James R. Russell, Jr., Attorney at Law, for appellant.

Keith R. Hofer, Attorney at Law, for appellee.

SCHAFER, Judge.

{¶ 1} Plaintiff–Appellant, Frederick Fragola, appeals the judgment of the Summit County Court of Common Pleas granting summary judgment in favor of Defendant–Appellee, Dianne Graham, on Fragola's claims to quiet title and for declaratory judgment, constructive trust, and equitable partition. For the reasons that follow, we affirm in part, reverse in part, and remand.

I.

{¶ 2} This matter relates to a property dispute involving Mr. Fragola and his adopted sister, Ms. Graham. The subject property was owned by their mother, Monica Fragola, who lived on the property with Mr. Fragola. Ms. Graham also occasionally lived on the property. In 2000, Ms. Fragola recorded a survivorship deed transferring ownership of the property to her and Mr. Fragola jointly. In 2002, Mr. Fragola executed a quitclaim deed in favor of Ms. Fragola, who then executed a transfer on death deed ("TOD deed") that named herself as the sole owner and Mr. Fragola as the transfer on death beneficiary ("the 2002 Deed").

{¶ 3} In 2006, a new TOD deed was recorded that named Ms. Fragola as the sole owner of the property and Ms. Graham as the transfer on death beneficiary (the "2006 Deed"). Although Ms. Fragola's name is listed at the top of the deed as the grantor, her name is not typed below the signature block for the grantor. Additionally, the section above the grantor's signature block does not list the date on which the deed was executed. Instead, the 2006 Deed states, "Witness hand(s) this ___ day of ____ Year of ____." Two witnesses signed the 2006 Deed, as did a notary public. But, the acknowledgment portion of the deed lacked both the date and the name of the grantor.

{¶ 4} After Ms. Fragola's death in 2014, Ms. Graham executed an affidavit to transfer title to the subject property based on the 2006 Deed. Ms. Graham then recorded an affidavit relating to title executed by the notary who attempted to acknowledge the 2006 Deed. The notary attested that she was duly-commissioned on the day of the deed's execution and that she personally witnessed Ms. Fragola sign the deed on October 24, 2006. Ms. Graham sent Mr. Fragola a letter ordering him to vacate the subject property, but he refused to comply on the basis that he held an ownership interest in the property.

{¶ 5} Mr. Fragola filed a quiet title action requesting a declaratory judgment that he has an interest in the property as the transfer on death beneficiary of the 2002 Deed. He alternatively asked for the creation of a constructive trust or an equitable partition. The parties filed cross-motions for summary judgment and the trial court granted Ms. Graham's motion. The court reasoned that the 2006 Deed is valid despite any defects in the notary acknowledgment because there was no indication that there was fraud in its execution or recordation. As a result, the trial court concluded that Ms. Graham was the owner of the subject property by virtue of the 2006 Deed and Mr. Fragola was not entitled to a declaratory judgment, quiet title relief, or the creation of a constructive trust or equitable partition.

{¶ 6} Mr. Fragola filed this timely appeal, which presents two assignments of error for our review. Since both assignments of error implicate similar issues, we elect to address them together.

II.Assignment of Error I

The trial court erred as a matter of law in determining that the defective deed [was] effective to complete a valid transfer.

Assignment of Error II

The trial court erred as a matter of law in determining that Appellant did not have an interest in the property.

{¶ 7} In his assignments of error, Mr. Fragola argues that the trial court erred by finding that the 2006 Deed was valid and by determining that he lacked any interest in the subject property.

A. Standard of Review

{¶ 8} We review a trial court's award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is only appropriate where (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party.Civ.R. 56(C). Before making such a contrary finding, however, a court must view the evidence "most strongly in favor" of the non-moving party, id., and resolve all doubts in its favor, Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358–359, 604 N.E.2d 138 (1992).

{¶ 9} Summary judgment proceedings create a burden-shifting paradigm. To prevail on a motion for summary judgment, the movant has the initial burden to identify the portions of the record demonstrating the lack of a genuine issue of material fact and the movant's entitlement to judgment as a matter of law. Dresher v. Burt,

75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). In satisfying this initial burden, the movant need not offer affirmative evidence, but it must identify those portions of the record that support her argument. Id. Once the movant overcomes the initial burden, the non-moving party is precluded from merely resting upon the allegations contained in the pleadings to establish a genuine issue of material fact. Civ.R. 56(E). Instead, it has the reciprocal burden of responding and setting forth specific facts that demonstrate the existence of a "genuine triable issue." State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).

B. Execution and Acknowledgment Requirements for TOD Deeds

{¶ 10} Former R.C. 5302.22(A)¹ relevantly provides as follows:

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. Upon the death of the grantee, the deed vests the interest of the decedent in the beneficiary or beneficiaries.

(Emphasis added.) The provision further states that "[t]he deed described in this division shall in substance conform to" the form outlined in the statute, which includes a section for the signature of the grantor and the date of the deed's execution.

{¶ 11} Former R.C. 5302.22(A) cross-references former R.C. 5301.01(A)'s requirements that "[a] deed * * * shall be signed by the grantor * * * [and t]he signing shall be acknowledged by the grantor * * * before a * * * notary public, who shall certify the acknowledgment and subscribe the official's name to the certificate of the acknowledgment."² See also Campbell v. Krupp, 195 Ohio App.3d 573, 2011-Ohio-2694, 961 N.E.2d 205, ¶ 39 (6th Dist.) ("R.C.5301.01(A) contains four requirements: (1) that the grantor sign the document, (2) that the grantor acknowledge the document to the notary public, (3) that the notary public certify the acknowledgment, and (4) that the notary public subscribe his name to the certificate of acknowledgment."). R.C. 147.53 governs acknowledgments, Am. Gen. Fin. Servs., Inc. v. VanSickle, 5th Dist. Delaware No. 03CAE02009, 2003-Ohio-4374, 2003 WL 21962530, ¶ 33, and it requires as follows:

The person taking an acknowledgment shall certify that:

(A) The person acknowledging appeared before him and acknowledged he executed the instrument; [and]

(B) The person acknowledging was known to the person taking the acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

C. Deeds Are Reviewed for Substantial Compliance

{¶ 12} Ohio courts have long applied substantial compliance review when determining whether a deed is defective as a result of its failure to adhere to statutory execution and acknowledgment formalities. E.g. In re Lacy, 483 B.R. 126, 133 (Bankr.S.D.Ohio 2012) (applying Ohio law) ("It is equally well established that the standard for determining compliance with the certification requirement is not perfection, but rather substantial compliance."), citing Dodd v. Bartholomew, 44 Ohio St. 171, 5 N.E. 866 (1886), paragraph one of the syllabus, and Smith's Lessee v. Hunt, 13 Ohio 260, 268 (1844). It is particularly critical to apply substantial compliance review when assessing TOD deeds because doing so effectuates former R.C. 5302.23(A)'s command that "[a]ny deed containing language that shows a clear intent to designate a transfer on death beneficiary shall be liberally construed to do so." Although liberal construction requires that we construe TOD deeds "in favor of persons to be benefitted, [such] a liberal construction should not result in the exercise of the legislative power of amendment under the mask of so-called interpretation." Adamski v. Bur. of Unemp. Comp., 108 Ohio App. 198, 204, 161 N.E.2d 907 (6th Dist.1959) ; see also State ex rel. Williams v. Colasurd, 71 Ohio St.3d 642, 644, 646 N.E.2d 830 (1995) ("A liberal construction directive, however, does not empower us to read into a statute something that cannot reasonably be implied from the statute's language."), citing Szekely v. Young, 174 Ohio St. 213, 188 N.E.2d 424 (1963), paragraph two of the syllabus.

{¶ 13} Although there is no exact definition of the substantial compliance standard, the Sixth District has previously stated that " ‘[w]here an error occurs in the name of a party to a written instrument, apparent upon its face, and from its contents, susceptible of correction, so as to identify the party with certainty, such error does not affect the validity of the instrument.’ " Mid–Am. Natl. Bank & Trust Co. v. Gymnastics Internatl., Inc., 6 Ohio App.3d 11, 13, 451 N.E.2d 1243 (6th Dist.1...