VanDeGrift v. Miller
| Decision Date | 22 October 2021 |
| Docket Number | 2021-CA-16 |
| Citation | 2021 Ohio 3758 |
| Parties | MICHAEL VANDEGRIFT Plaintiff-Appellant v. PATRICK A. MILLER Defendant-Appellee |
| Court | Ohio Court of Appeals |
2021-Ohio-3758
MICHAEL VANDEGRIFT Plaintiff-Appellant
v.
PATRICK A. MILLER Defendant-Appellee
No. 2021-CA-16
Court of Appeals of Ohio, Second District, Miami
October 22, 2021
Civil Appeal from Common Pleas Court Trial Court Case No. 2020-CV-145
DAVID L. VAN SLYKE, Atty. Reg. No. 0077721, Attorney for Plaintiff-Appellant
PATRICK A. MILLER, Defendant-Appellee, Pro Se
OPINION
DONOVAN, J.
{¶ 1} Michael VanDeGrift[1] appeals from the trial court's April 7, 2021 judgment, which overruled his motion for default judgment or, in the alternative, for summary judgment, on his action for a declaratory judgment and to quiet title. The trial court also dismissed the action for lack of subject matter jurisdiction. The trial court erred in concluding that it lacked jurisdiction over VanDeGrift's complaint, and it erred in overruling his motion for default judgment and/or summary judgment. The judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
{¶ 2} On May 14, 2020, VanDeGrift filed his complaint for declaratory judgment. The complaint alleged that VanDeGrift was the owner, in fee simple, of real property at 442 Brook Street, Piqua, Ohio ("the property") pursuant to general warranty deeds filed by six people, who had previously shared ownership of the property. (Instrument Nos. 201OR-11278 (Thomas E. Smith), 2011OR-11279 (Thomas E. Smith Jr.), 2011OR-11280 (Erin [A.] Boroff Guardian), 2011OR-11281 (Erin A. Boroff), 2011OR-11282 (Nicholas A. Miller) and 2011OR-11283 (Timothy D. Miller) of Miami County Records, filed on September 27, 2011.) The general warranty deeds were attached as exhibits. The complaint further alleged that defendant Patrick A. Miller had purported to convey his interest in the property to VanDeGrift through Erin A. Boroff, his guardian, pursuant to Miami County Probate Court Case No. 84915. Exhibit C was the deed by which Boroff purportedly transferred Miller's ownership interest to VanDeGrift.
{¶ 3} The complaint stated that, at the time Exhibit C was executed by Boroff as
Miller's guardian, Boroff was acting as the guardian of the Miller's person but not as guardian of Miller's estate. In Count I, for "Declaratory Judgment/Conveyance of Property," VanDeGrift alleged that Boroff had filed an application for appointment of emergency guardian of the person of Patrick A. Miller on August 26, 2011 ("the first application"). Miller was served with the first application on August 29, 2011. An emergency order for guardianship of Miller's person was granted, and letters of guardianship of the person only were issued to Boroff. The emergency order was twice extended. Case No. 84915 was closed in November 2011.
{¶ 4} The complaint further alleged that, on September 20, 2011, Boroff filed an application for appointment of guardian of alleged incompetent seeking a non-limited guardianship over Miller ("the second application") in Probate Court Case No. 84915-1. According to the complaint, a hearing was scheduled in Case No. 84915-1 for October 24, 2011, but the hearing was again set for the appointment of a guardian of the person of Patrick A. Miller, not his estate. According to the complaint, Miller "was served with the second application and notice of hearing on October 4, 2011, but the second application was withdrawn on November 22, 2011, and the guardianship was terminated on November 30, 2011. Exhibits documenting these events were attached to the complaint. Finally, the complaint alleged that, on September 22, 2011, Boroff executed Exhibit C, the deed purporting to convey Miller's interest in the property to VanDeGrift.
{¶ 5} In support of the request for declaratory judgment, the complaint alleged: Pursuant to R.C. § 2721.03, this Court is empowered to determine the rights, duties and interests of Plaintiff Michael VanDeGrift and Defendant Patrick A. Miller as those rights duties and interests pertain or relate to
Exhibit C, a Deed of Executor, Administrator, Trustee, Guardian, Receiver or Commissioner [from] Erin A. Boroff, Guardian under the Guardianship of Patrick A. Miller by the power conferred by the Guardianship Probate Case # 84915, to Michael VanDeGrift which deed is recorded in Instrument No. 2011OR-11280 of Miami County Records ("Deed").
VanDeGrift's complaint also asserted that R.C. 5301.07(C)[2] "creates a conclusive presumption that an instrument of record for more than four years is valid," and by "operation of law, the Deed conveyed the interest of Patrick A. Miller in the Property" to him.
{¶ 6} In Count II, seeking to quiet title, VanDeGrift alleged that he was in possession of the property, and that Miller "has or may claim to have an interest in the Property that is superior" to VanDeGrift's interest. The complaint alleged that the guardian signed the deed conveying Miller's interest in the property to VanDeGrift on September 22, 2011, and that Miller had not asserted a claim to the property since that date. According to VanDeGrift, he was entitled to an order quieting Miller's interest in the property.
{¶ 7} The record reflects that service upon Miller via certified mail at a Wayne Street address was unsuccessful on June 9, 2020. On August 10, 2020, Affidavits of Special Process Server were filed in which the affiant averred that she had been unable
to perfect service upon Miller at a Wayne Street address or at a Broadway address in Piqua. Counsel for VanDeGrift then requested residential service by Firefly Legal, Inc. at the Wayne Street address and an affidavit for service by publication.
{¶ 8} On August 18, 2020, counsel for VanDeGrift filed a "Notice of Filing Proof of Publication," to which was attached a notarized affidavit of publication and a copy of the legal notice that appeared on July 10, 17, 24, 31, and August 7 and 14, 2020, in "Miami Valley Today," a daily newspaper of general circulation. The notice provided:
Patrick A. Miller, whose last known address cannot be ascertained, will take notice that on May 14, 2020, Michael VanDeGrift filed his Complaint for Declaratory Judgment, for the Conveyance of Title and to Quiet Title in the Common Pleas Court of Miami County, Ohio in Case No. 20-145, the object and demand for relief of which seeks, in part, to quiet Patrick A. Miller's interest, if any, in property commonly known as 442 Brook Street, Piqua, Ohio; the conveyance of which, through a Guardian, was part of Miami County Probate Court Case No. 84915. Patrick A. Miller is required to answer within 28 days after the last publication, which shall be published once a week for six consecutive weeks, or they may be denied a hearing in this case.
{¶ 9} On September 15, 2020, VanDeGrift filed a motion for default judgment, but he withdrew the motion on October 22, 2020. On October 23, 2020, substitute counsel for VanDeGrift entered an appearance.
{¶ 10} On December 4, 2020, VanDeGrift filed a renewed motion for default judgment or, in the alternative, a motion for summary judgment on his declaratory
judgment and quiet title actions. The motion repeated the allegations in the complaint. VanDeGrift asserted that he was entitled to default judgment pursuant to Civ.R. 55 and/or to summary judgment pursuant to Civ.R. 56, and to declaratory relief pursuant to R.C. 2721.02 and 2721.03. According to VanDeGrift, clouds "on title that may be removed via a quiet title action...
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