[Cite as Bennett v. Montgomery Cty. Clerk of Court, 2015-Ohio-4108.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 EUGENE D. BENNETT                                    :
                                                      :    Appellate Case No. 26675
       Plaintiff-Appellant                            :
                                                      :    Trial Court Case No. 15-CV-883
 v.                                                   :
                                                      :    (Civil Appeal from
 MONTGOMERY COUNTY                                    :     Common Pleas Court)
 CLERK OF COURT                                       :
                                                      :
       Defendant-Appellee                             :

                                              ...........
                                              OPINION
                           Rendered on the 2nd day of October, 2015.
                                              ...........

EUGENE D. BENNETT, Post Office Box 181077, Fairfield, Ohio 45018
    Plaintiff-Appellant, pro se

MARY E. MONTGOMERY, Atty. Reg. No. 0069694, 301 W. Third Street, 5th Floor,
Dayton, Ohio 45422
      Attorney for Defendant-Appellee


                                            .............

HALL, J.

        {¶ 1} Eugene D. Bennett appeals pro se from the trial court’s Civ.R. 12(B)(6)

dismissal of his petition for an order directing the Montgomery County Clerk of Courts to
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issue him a car title.

       {¶ 2} Bennett filed his February 17, 2015 petition pursuant to R.C. 4505.10(A),

which authorizes the issuance of a motor vehicle certificate of title when ownership has

transferred to the applicant by operation of law. Accompanying his petition, he provided

the following notarized statement: “Loretta Walters (single was married) was living with

me and she had her cars here. And then she past [sic] away 2 years later, which was 2-

27-14.” (Doc. #1). Bennettt stated that the car, a 1991 Pontiac Sunbird, was still at his

house and that he had no knowledge of any liens. (Id.). In a section of the standard form

petition for “supporting documentation,” Bennett wrote: “Tape-recorder from Germantown

Police Lt. Brown about the 1991 Pontiac Sunbird.” (Id.).

       {¶ 3} The Montgomery County Clerk of Courts moved to dismiss the petition

pursuant to Civ.R. 12(B)(6). In relevant part, the Clerk of Courts argued:

              Under R.C. 4505.04, no court is permitted to recognize title to a

       motor vehicle unless evidenced by a certificate of title, by admission in the

       pleadings or stipulation of the parties, or, in an action by a secured party,

       by an instrument showing a valid security interest. R.C. 4505.04(B)(1), (2),

       and (3). The only exception is found in R.C. 4505.10, which deals with the

       transfer of ownership of a motor vehicle by operation of law (i.e., by

       inheritance, bankruptcy, replevin, executor sale, or default in performance

       of the terms of a security agreement).

              In this case, Plaintiff has failed to allege any legal basis under R.C.

       4505.04 or 4505.10 as to why he should obtain a title to the 1991 Pontiac

       Sunbird. First, the Plaintiff resides in Fairfield, Ohio – not Montgomery
                                                                                             -3-


       County, Ohio. As such, the defendant would argue that this Court is without

       jurisdiction to Order the Montgomery County Clerk of Courts to issue a car

       title to a vehicle physically located in another county. Second, if this car

       belongs to Ms. Walters, then the probate case should be reopened in order

       to determine how best to dispose of this car.

              Therefore, at this point in time, this Court and the Clerk of Courts lack

       the statutory authority to issue a title to Plaintiff under the circumstances

       alleged in his Petition. Therefore, when considering all of the factual

       allegations in Plaintiff’s Complaint as true, and considering all reasonable

       inferences in favor of Plaintiff, it is clear Plaintiff has failed to state a claim

       upon which relief can be granted, as there is no set of facts upon which he

       can prevail.

(Doc. #9 at 2-3).

       {¶ 4} Bennett responded to the motion with his own letter to the trial court. Therein,

he stated that he and the decedent had planned to marry and that her 1991 Pontiac had

been parked at his house for several years. He explained that he had waited until the

probate proceedings had finished and that none of the decedent’s family members had

“claimed” her cars. He also asserted that the decedent had wanted him to have the 1991

Pontiac. (Doc. #11).

       {¶ 5} On April 6, 2015, the trial court filed a decision, entry, and order sustaining

the Clerk of Courts’ motion to dismiss. The trial court noted that Bennett had filed his

petition under R.C. 4505.10(A). It then reasoned: “O.R.C. §4505.10, upon review of its

language, does not speak to the presented facts. There is simply no indication from the
                                                                                              -4-


facts set forth in Mr. Bennett’s petition that ownership of the 1991 Sunbird was transferred

to Mr. Bennett by operation of law.” (Doc. #12 at 2-3). In a footnote, the trial court stressed

that it was “not unsympathetic to Mr. Bennett’s situation.” (Id. at 3, fn.1). In dicta, it added:

“It appears, based upon probate court documents attached to the Clerk’s motion to

dismiss (though these documents were not considered when reaching the motion to

dismiss decision) that Fiduciary Stacy West reported to Montgomery County Probate

Court that Ms. Walters had no probate assets. It seems, given this, that O.R.C.

§[4]505.04(B)(2) provides a potential mechanism to accomplish Mr. Bennett’s desired

transfer of title. If Mr. Bennett and Ms. West, as the representative for Ms. Walters’ estate,

would stipulate to the vehicle’s transfer, this court could sanction the transfer under

O.R.C. 4505.10.” (Id.).

       {¶ 6} On appeal, Bennett has filed a one-page brief in which he asserts:

              I am request[ing] this appeal due to that the Judge Trucker [sic] did

       not have everything he needed in which I had and which is stated in other

       paperwork and also the division of civil legal also was talked to about all I

       had but I was not notified about a court date or anything. So the judge did

       not get to hear the voice-mail recording and hear the reason for Loretta

       Walters’ 91 Pontiac Sunbird, which has been at my house for many of years.

       I know if the judge did have a chance to hear what is on the voice mail

       recorded he would of signed the papers in my favor, and as in his remarks

       of statement on his findings it stated about what I have.

(Appellant’s brief at 1).

       {¶ 7} We begin our review with the standards applicable to a Civ.R. 12(B)(6)
                                                                                           -5-


motion. A motion to dismiss a complaint for failure to state a claim upon which relief can

be granted, pursuant to Civ.R.12(B)(6), tests the sufficiency of a complaint. For a

defendant to prevail, it must appear beyond doubt from the complaint that the plaintiff can

prove no set of facts entitling him to relief. O’Brien v. University Community Tenants

Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). A court must construe the

complaint in the light most favorable to the plaintiff, presume all of the factual allegations

to be true, and make all reasonable inferences in the plaintiff’s favor. Mitchell v. Lawson

Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). We conduct a de novo review

of a dismissal under Civ.R. 12(B)(6). Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-

6115, 866 N.E.2d 547, ¶ 16 (2d Dist.).

       {¶ 8} With the foregoing standards in mind, we see no error in the trial court’s

dismissal of Bennett’s petition. As noted above, he filed his petition under R.C.

4505.10(A), which provides:

              In the event of the transfer of ownership of a motor vehicle by

       operation of law, as upon inheritance, devise, bequest, order in bankruptcy,

       insolvency, replevin, or execution sale, a motor vehicle is sold to satisfy

       storage or repair charges, or repossession is had upon default in

       performance of the terms of a security agreement as provided in Chapter

       1309. of the Revised Code and the secured party has notified the debtor as

       required by division (B) of section 1309.611 of the Revised Code, a clerk of

       a court of common pleas, upon the surrender of the prior certificate of title

       or the manufacturer’s or importer’s certificate, or, when that is not possible,

       upon presentation of satisfactory proof to the clerk of ownership and rights
                                                                                           -6-


      of possession to the motor vehicle, and upon payment of the fee prescribed

      in section 4505.09 of the Revised Code and presentation of an application

      for certificate of title, may issue to the applicant a certificate of title to the

      motor vehicle. Only an affidavit by the person or agent of the person to

      whom possession of the motor vehicle has passed, setting forth the facts

      entitling the person to the possession and ownership, together with a copy

      of the journal entry, court order, or instrument upon which the claim of

      possession and ownership is founded, is satisfactory proof of ownership

      and right of possession. If the applicant cannot produce that proof of

      ownership, the applicant may apply directly to the registrar of motor vehicles

      and submit the evidence the applicant has, and the registrar, if the registrar

      finds the evidence sufficient, then may authorize a clerk to issue a certificate

      of title. If the registrar finds the evidence insufficient, the applicant may

      petition the court of common pleas for a court order ordering the clerk to

      issue a certificate of title. The court shall grant or deny the petition based

      on the sufficiency of the evidence presented to the court. If, from the records

      in the office of the clerk involved, there appears to be any lien on the motor

      vehicle, the certificate of title shall contain a statement of the lien unless the

      application is accompanied by proper evidence of its extinction.

      {¶ 9} The foregoing language makes clear that Bennett cannot obtain a certificate

of title pursuant to R.C. 4505.10(A) absent sufficient evidence of ownership of the vehicle

in question. Construing the allegations in Bennett’s petition most strongly in his favor,

along with all reasonable inferences, it appears beyond doubt that he cannot prove any
                                                                                          -7-


set of facts entitling him to relief. This is so because his petition is devoid of factual

allegations establishing or supporting an inference that he has a right to ownership of the

decedent’s 1991 Pontiac by operation of law. The petition establishes only that the

decedent lived with him and kept her cars at his house. The petition also references a

“[t]ape-recorder from Germantown Police Lt. Brown about the 1991 Pontiac Sunbird.” This

statement fails to support a reasonable inference that Bennett owns the vehicle.

Construing the petition most strongly in Bennett’s favor, we see nothing to indicate that

he has a right to ownership of the car. Finally, the trial court was not required to hold an

evidentiary hearing prior to sustaining the Clerk of Courts’ Civ.R. 12(B)(6) motion. As

explained above, such a motion tests the legal sufficiency of the complaint or petition. We

note too that Bennett’s April 2, 2015 written response to the Clerk’s motion neither

requested a hearing on the matter nor referred to the voicemail he now mentions on

appeal. (See Doc. #11).

       {¶ 10} Although we see no error in the trial court’s dismissal of Bennett’s complaint,

we also concur in the trial court’s assessment that he may be able to obtain a certificate

of title if he can obtain a stipulation from the representative of the decedent’s estate that

he is entitled to ownership of the 1991 Pontiac. In this regard, R.C. 4505.04(B)(2) allows

a court to recognize an ownership right in a vehicle by “stipulation of the parties.” That

issue is not before us, however, because Bennett’s petition does not indicate any right to

ownership of the vehicle by stipulation or otherwise.

       {¶ 11} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                      .............
                                     -8-



FAIN, J., and WELBAUM, J., concur.


Copies mailed to:

Eugene D. Bennett
Mary E. Montgomery
Hon. Michael Tucker
