[Cite as Miller v. Stuckey, 2015-Ohio-3819.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




MARCENE K. MILLER, ET AL.,

        PLAINTIFFS-APPELLEES,                           CASE NO. 3-15-10

        v.

DEAN STUCKEY, ET AL.,                                   OPINION

        DEFENDANTS-APPELLANTS.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 13-CV-0176

                       Judgment Reversed and Cause Remanded

                          Date of Decision: September 21, 2015




APPEARANCES:

        Howard B. Hershman for Appellants

        Geoffrey L. Stoll for Appellees
Case No. 3-15-10


PRESTON, J.

       {¶1} Defendants-appellants, Dean Stuckey (“Dean”) and Jackie Stuckey

(collectively, the “Stuckeys”), appeal the May 1, 2015 judgment entry of the

Crawford County Court of Common Pleas granting partial summary judgment in

favor of plaintiffs-appellees, Marcene K. Miller (“Marcene”) and Marcene K.

Miller, Trustee of the Miller Family Trust (collectively, the “Plaintiffs”). For the

reasons that follow, we reverse.

       {¶2} On June 11, 2013, Marcene, in her individual capacity and as trustee

of the Miller Family Trust (the “Trust”), filed a complaint against the Stuckeys,

asserting seven counts:    Count One of conversion, Count Two of breach of

fiduciary duty, Count Three of “fraud/fraud in the inducement,” Count Four of

undue influence, Count Five of unjust enrichment, Count Six of punitive damages,

and Count Seven of invalidity of deed. (Doc. No. 1). In Count Seven, the

Plaintiffs allege that transfers of real property located in Seneca and Crawford

Counties, Ohio, from the Trust to Dean are invalid because the quit-claim deeds

(the “Deeds”) were executed in Florida and do not comply with the formal deed

requirements under Florida law. (Id. at ¶ 3, 29-30, 37, 58-63). The Trust contains

a Florida choice-of-law provision. (Doc. No. 42, Exs. A-1, A-2 at ¶ 7).

       {¶3} On June 26, 2013, the Stuckeys filed an answer to the Plaintiffs’

complaint. (Doc. No. 8).


                                        -2-
Case No. 3-15-10


      {¶4} Two related cases—Seneca County Common Pleas Court case No. 13-

CV-0154 and Crawford County Municipal Court case No. CVG 1300618—were

transferred to the Crawford County Court of Common Pleas, where the trial court

consolidated them with the case, discussed above, filed by the Plaintiffs on June

11, 2013, Crawford County Common Pleas Court case No. 13-CV-0176. (Doc.

Nos. 9, 10, 11). Seneca County Common Pleas Court case No. 13-CV-0154

originated with a June 13, 2013 complaint filed by Marcene, in her individual

capacity and as trustee of the Trust, against the Stuckeys, asserting the same

counts, in the same order, as her June 11, 2013 complaint, described above, filed

in Crawford County Common Pleas Court case No. 13-CV-0176. (Doc. No. 11).

Crawford County Municipal Court case No. CVG 1300618 originated with a

complaint in forcible entry and detainer filed by Dean against Marcene in her

individual capacity. (Doc. No. 10).

      {¶5} On August 27, 2013, with leave of court, the Stuckeys filed an

amended answer and counterclaim. (Doc. Nos. 14, 20, 21). Their counterclaim

contained two counts: Count One of quiet title and Count Two of declaratory

judgment. (Doc. No. 21).

      {¶6} On September 16, 2013, the Plaintiffs filed a reply to the Stuckeys’

counterclaim. (Doc. No. 25).




                                       -3-
Case No. 3-15-10


       {¶7} On January 28, 2014, the Stuckeys filed a motion for summary

judgment on the Plaintiffs’ counts and on Count One of the Stuckeys’

counterclaim. (Doc. No. 35).

       {¶8} On March 10, 2014, the Plaintiffs filed a combined motion for

summary judgment and memorandum in opposition to the Stuckeys’ motion for

summary judgment. (Doc. No. 42). Relying on the Trust’s Florida choice-of-law

provision, the Plaintiffs requested, among other things, “judgment in their favor,

declaring the quit claim deeds at issue to be void ab initio and set aside, with legal

title to the real estate being restored to Marcene K. Miller, Trustee of The Miller

Family Trust.” (Id. at 58).

       {¶9} On April 1, 2014, the Stuckeys filed a combined reply memorandum

in support of their motion for summary judgment and memorandum in opposition

to the Plaintiffs’ motion for summary judgment. (Doc. No. 44).

       {¶10} On April 17, 2014, the Plaintiffs filed a reply memorandum in

support of their motion for summary judgment. (Doc. No. 46).

       {¶11} On May 19, 2014, the trial court denied the Stuckeys’ motion for

summary judgment and the Plaintiffs’ motion for summary judgment. (Doc. Nos.

47, 48).

       {¶12} On June 2, 2014, the Stuckeys filed a “motion for reconsideration of

defendants’ motion for summary judgment only as to the issue of the legal validity


                                         -4-
Case No. 3-15-10


of the two deeds by which property was transferred to defendant Dean Stuckey.”

(Doc. No. 49).

       {¶13} On June 6, 2014, the Plaintiffs filed a response to the Stuckeys’

motion for reconsideration, concurring with the Stuckeys that the validity of the

Deeds is a purely legal question to be determined by the trial court and requesting

that the trial court reconsider that issue. (Doc. No. 50).

       {¶14} On July 31, 2014, the trial court denied the Stuckeys’ motion for

reconsideration. (Doc. No. 51).

       {¶15} On February 10 and 17, 2015, after a new judge took office, the

Plaintiffs and the Stuckeys, respectively, moved for reconsideration of the trial

court’s denial of their motions for summary judgment concerning the issue of the

validity of the Deeds. (Doc. Nos. 63, 64).

       {¶16} On April 3, 2015, the trial court filed an entry concluding that the

Trust’s Florida choice-of-law provision is enforceable and that the Deeds are

invalid because they do not comply with Florida’s formal requirements for deeds,

which requires two subscribing witnesses. (Doc. No. 67).

       {¶17} On April 9, 2015, the Stuckeys filed a motion for reconsideration of

the trial court’s April 3, 2015 decision granting summary judgment in the

Plaintiffs’ favor concerning the validity of the Deeds. (Doc. No. 68).




                                          -5-
Case No. 3-15-10


       {¶18} On April 20, 2015, the Plaintiffs filed a response to the Stuckeys’

motion for reconsideration. (Doc. No. 69).

       {¶19} On April 22, 2015, the Stuckeys filed a reply memorandum in

support of their motion for reconsideration. (Doc. No. 70).

       {¶20} On May 1, 2015, the trial court filed an entry declaring the Deeds

transferring the Seneca County and Crawford County properties void ab initio,

restoring legal title to the Seneca County and Crawford County real properties to

Marcene as trustee of the Trust, dismissing Dean’s forcible entry and detainer

action against Marcene, and dismissing Count One of quiet title of the Stuckeys’

counterclaim. (Doc. No. 71). In that entry, the trial court determined that there

was no just reason for delay. (Id.).

       {¶21} The Stuckeys filed their notice of appeal on May 15, 2015. (Doc.

No. 74). They raise one assignment of error for our review.

                               Assignment of Error

       The court below erred when it found that the two quit claim
       deeds in question were fatally defective because they did not
       have subscribing witnesses as prescribed by Florida law for a
       Florida conveyance.

       {¶22} In their assignment of error, the Stuckeys offer two reasons why the

trial court erred in declaring the Deeds invalid and void ab initio: (1) “the

constitutional limitations on the ability of a state to direct or control how real

property is transferred within another state has led Florida to acknowledge and

                                        -6-
Case No. 3-15-10


direct that the law of the State where the real estate is located controls with regard

to questions of formalities in the conveyance of property in that state”; and (2)

“the trust agreement must be construed so as to allow the purposes of the settlor to

be achieved rather than frustrated.” (Appellants’ Brief at 8). The crux of the

Stuckeys’ argument is based on the doctrine that, “[i]n general, real property is

subject to the laws of the state in which it is situated,” or the “situs” of the

property. (Id. at 9). The Plaintiffs argue that the doctrine of situs is archaic and

that the Trust’s Florida choice-of-law provision trumps the doctrine of situs, such

that the Deeds, which transferred real properties in Ohio, are required to comply

with Florida’s formal requirements for deeds.

       {¶23} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing

the evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

       {¶24} Article IX, Paragraph 3 of the Trust contains the following choice-of-

law provision:




                                         -7-
Case No. 3-15-10


            Applicable Law

            This instrument has been prepared and was executed in the

      State of Florida where Grantor(s) are residents.           All questions

      concerning the meaning and intention of terms of this instrument or

      its validity, and all questions relating to any performance under it,

      shall be resolved in accordance with laws of this State.

(Doc. No. 42, Exs. A-1, A-2 at ¶ 7). Marcene, as trustee of the Trust, executed the

Deeds in Brevard County, Florida on January 30, 2013. (See Doc. No. 71, Exs. A,

B). A Florida notary public notarized the Deeds, but the Deeds do not bear

signatures of two subscribing witnesses. (Id.). The parties do not dispute that the

Deeds are valid under Ohio law, which does not require any subscribing witnesses

to a deed, or that the Deeds are invalid under Florida law, which requires two

subscribing witnesses to a deed.     Compare R.C. 5301.01 with Fla.Stat.Ann.

689.01. The issue in this case is whether Ohio law or Florida law governs the

execution and formal requirements of the Deeds.

      {¶25} The Supreme Court of Ohio adopted the Restatement of the Law 2d,

Conflict of Laws, to govern choice-of-law issues. Am. Interstate Ins. Co. v. G &

H Serv. Ctr., Inc., 165 Ohio App.3d 104, 2005-Ohio-5753, ¶ 9 (3d Dist.), citing

Morgan v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 341-342 (1984). See also Lewis

v. Steinreich, 73 Ohio St.3d 299, 303 (1995) (“In making choice-of-law


                                        -8-
Case No. 3-15-10


determinations, this court has adopted the theories stated in the Restatement of the

Law 2d, Conflict of Laws.”), citing Morgan at 341-342.

         Restatement of the Law 2d, Conflict of Laws, Section 223 (1971) provides:

         (1) Whether a conveyance transfers an interest in land and the

         nature of the interest transferred are determined by the law that

         would be applied by the courts of the situs.

         (2) These courts would usually apply their own local law in

         determining such questions.

Comment e to Section 223 provides, “In the absence of statute, the courts of the

situs would usually apply their own local law to determine questions involving the

formalities necessary for the validity of a conveyance of an interest in land.”

Restatement of the Law 2d, Conflict of Laws, Section 223, Comment e (1971).

See also Restatement of the Law 2d, Conflict of Laws, Section 278, Comment c

(1971) (“Where the owner makes a conveyance of land in trust the validity of the

conveyance is determined by the law that would be applied by the courts of the

situs.   Usually these courts would apply their local law.       Thus the owner’s

capacity, the formal requirements for a conveyance, and the substantial validity of

the conveyance would usually be determined by the local law of the situs (see §

223).”). “[T]he term ‘formalities’ applies to such requirements as those of a




                                          -9-
Case No. 3-15-10


writing, of a seal, of witnesses and of acknowledgment.” Restatement of the Law

2d, Conflict of Laws, Section 223, Comment e (1971).

       {¶26} A transfer of an interest in land is governed by the laws selected by

application of the rule in Restatement of the Law 2d, Conflict of Laws, Section

223 (1971), notwithstanding a choice-of-law provision in a contract governing that

contract’s interpretation, validity, and performance. See S.E.C. v. Mgt. Solutions,

Inc., D.Utah No. 2:11-CV-01165-BSJ, 2014 WL 6085666, *2-5 (Nov. 13, 2014),

appeal filed, 10th Cir. No. 14-4157.       Indeed, “‘not all claims in a case are

necessarily governed by a choice-of-law provision that expressly governs only

contractual matters.’” Id., quoting Fairmont Supply Co. v. Hooks Indus., Inc., 177

S.W.3d 529, 534-535 (Tex.App.2005).

       {¶27} Restatement of the Law 2d, Conflict of Laws, Section 189 (1971)

and, more specifically, Comment a to that section illustrate this point. Section 189

provides:

       The validity of a contract for the transfer of an interest in land and

       the rights created thereby are determined, in the absence of an

       effective choice of law by the parties, by the local law of the state

       where the land is situated unless, with respect to the particular issue,

       some other state has a more significant relationship under the




                                        -10-
Case No. 3-15-10


       principles stated in § 6 to the transaction and the parties, in which

       event the local law of the other state will be applied.

Restatement of the Law 2d, Conflict of Laws, Section 189 (1971). Comment a

explains the distinction between a contract for the transfer of an interest in land

and the actual transfer of that interest:

       A distinction must here be drawn between a contract for the transfer

       of an interest in land and the actual transfer of such an interest. The

       validity of a contract for the transfer of an interest in land, and the

       rights created thereby, are determined by the local law of the state

       selected by application of the rule of this Section. On the other

       hand, whether the contract operates as an actual transfer of an

       interest in the land depends upon the law selected by application of

       the rule of § 223. A contract to transfer an interest in land may be

       valid as a contract but inoperative as a transfer, or, in the alternative,

       it may be invalid as a contract but operative as a transfer.

(Emphasis added.) Restatement of the Law 2d, Conflict of Laws, Section 189,

Comment a (1971). As we explained above, Section 223 states that whether a

conveyance transfers an interest in land is determined by the law that would be

applied by the courts of the situs and that the situs courts usually apply their own




                                            -11-
Case No. 3-15-10


local law. Mgt. Solutions, Inc. at *2-3, citing Restatement of the Law 2d, Conflict

of Laws, Section 223 (1971).

       {¶28} Here, the Trust’s choice-of-law provision governs the Trust’s

interpretation, validity, and performance. The Trust’s choice-of-law provision

does not, however, govern the formalities necessary for the validity of a

conveyance of an interest in real property held in the Trust. See Restatement of

the Law 2d, Conflict of Laws, Section 223 (1971); Mgt. Solutions, Inc. at *2-4.

Rather, under the Restatement, “the law that would be applied by the courts of the

situs” of the real property, Ohio, governs the formal, or technical, requirements of

the Deeds. See Restatement of the Law 2d, Conflict of Laws, Section 223 (1971).

Although this appears to be a case of first impression in Ohio and informative case

law is scarce, we can find no Ohio statute requiring or allowing application of

Florida law in this case, and the Plaintiffs have directed us to none. See Warwick

v. Warwick, 4th Dist. Ross No. 98CA2403, 2000 WL 228608, *4 (Feb. 25, 2000)

(“[T]he trial court determined that the marriage contract did not apply to the

property because the issue of dower is governed by the law of the site of the

property, i.e., the lex rei sitae. We find that the trial court correctly determined

that Ohio law applies to the property situated in Ohio.”).         See also In re

Cunningham, Bankr.N.D.Ohio No. 06-14882, 2008 WL 2746023, *3, fn. 2 (July

11, 2008) (citing Restatement of the Law 2d, Conflict of Laws, Section 223 (1971)


                                       -12-
Case No. 3-15-10


and concluding that “because the real property in question is located in Ohio, the

Court will apply Ohio law in determining whether a resulting trust exists for the

benefit of the estate”).1

         {¶29} Therefore, notwithstanding the Trust’s Florida choice-of-law

provision, because the real property conveyed by the Deeds is located in Ohio, and

because no statute requires or allows application of Florida law to the formal

requirements of the Deeds, Ohio law governs the execution and formal

requirements of the Deeds.                 There are no genuine issues of material fact

concerning this issue. The parties do not dispute that the Deeds—which are

signed by Marcene as Trustee and notarized—are valid under Ohio law, which,

unlike Florida law, does not require two subscribing witnesses. Accordingly, the

Deeds are not invalid for failure to bear the signatures of two subscribing

witnesses, and the trial court erred as a matter of law by holding them to be invalid

and void ab initio for this reason. We reverse and remand for resolution of the

parties’ remaining claims.

         {¶30} The Stuckeys’ assignment of error is sustained.


1
  Although it does not control our determination of this case, we note that Florida law similarly applies the
law of the situs of real property:

         When an instrument purports to convey title or an interest in real property which has its
         situs within a state, the formal validity and requirements of the document which seeks to
         affect the title to such property are governed by the lex rei sitae–the law of the state
         wherein the property is located.

Kyle v. Kyle, 128 So.2d 427, 429 (Fla.App.1961).

                                                   -13-
Case No. 3-15-10


       {¶31} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                       -14-
