[Cite as State v. Lawless, 2018-Ohio-1471.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 17-COA-17 & 17-COA-20
RICHARD LAWLESS,                               :
DAVID WERTMAN TRUST                            :
                                               :       OPINION
                   Defendant-Appellants




CHARACTER OF PROCEEDING:                           Civil appeal from the Ashland County Court
                                                   of Common Pleas, Case Nos. 15-CRI-181;
                                                   15-CRI-178


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            April 13, 2018


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPHER R. TUNNELL                             WILLIAM VASILIOU II
Ashland County Prosecutor                          54 E. Mill Street, Ste. 400
JOSHUA ASPIN                                       Akron, OH 44308-1736
Assistant Prosecuting Attorney
110 Cottage Street, 3rd Floor
Ashland, OH 44805
[Cite as State v. Lawless, 2018-Ohio-1471.]


Gwin, P.J.

        {¶1}      Appellant-petitioner The David Wertman Trust [“Trust”] appeals the June 6,

2017 Judgment Entry of the Ashland County Court of Common Pleas. Appellee is The

State of Ohio.

                                         Facts and Procedural History

        {¶2}      On January 15, 2016, Defendant David Mickey Wertman [“Wertman"] pled

guilty in Ashland County Court of Common Pleas, Case Number 15-CRI-181, to one

count of Attempted Engaging in a Pattern of Corrupt Activity, a felony of the fourth degree,

and to the Forfeiture Specification.

        {¶3}      Defendant Richard J. Lawless [“Lawless”]1 pled no contest to thirty-nine

counts in Ashland County Court of Common Pleas, Case Number 15-CRI-178. Those

charges included, Engaging in a Pattern of Corrupt Activity, a felony of the first degree;

Complicity to Trafficking in Heroin, a felony of the first degree; Complicity to Trafficking in

Cocaine, a felony of the first degree; Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs, a felony of the third degree; Trafficking in Heroin, a felony of the

fifth degree; Aggravated Burglary, a felony of the first degree; Felonious Assault, a felony

of the second degree; Abduction, a felony of the third degree; Having Weapons While

Under Disability, a felony of the third degree. Lawless further pled to a Forfeiture

Specification.

        {¶4}      On July 5, 2016, Lawless was sentenced to prison and the trial court

ordered the forfeiture of real and personal property as listed in the forfeiture specification.

On July 18, 2016, the Court sentenced Wertman to Community Control and ordered that,



        1   Lawless is the co-defendant of Wertman, as well as his former father-in-law.
Ashland County, Case No. 17-COA-17 & 17-COA-20                                               3


                 The Defendant's entire interest in and to the following property, if

       any, is hereby forfeited to the State of Ohio:

                                                 ***

                 2008      Dodge        Challenger,       VIN      2B3LJ74W98H301456,

       Title#0300479594

                                                 ***

Judgment Entry, Sentencing, filed in Case Number 15-CRI-181 July 22, 2015 at 5.

       {¶5}      Wertman's mother Connie Lawless as trustee refused to surrender the

2008 Dodge Challenger ["Challenger"] to law enforcement claiming that the automobile

was titled in the name of the Trust. The Trust, with Connie Lawless as trustee, then filed

a third-party petition seeking to invalidate the forfeiture of the Challenger.

       {¶6}      On April 6, 2017, the trial court held a hearing on the Trust's assertion of a

legal interest in the vehicle. At the hearing the parties stipulated that: 1). The irrevocable

trust at issue, The David Wertman Trust, dated October 1, 2010, is a valid and

enforceable trust; 2). The transfer of the 2008 Dodge Challenger was proper and legal,

and vested title of the vehicle to the trust; and 3). David M. Wertman, the Defendant in

case 15-CRI-181 is the sole beneficiary of the trust. Additionally, the parties stipulated to

the admission of six (6) Exhibits: Exhibit 1, Original Certificate of Title to David D.

Wertman2; Exhibit 2, Certificate of Title transferring vehicle to The David Wertman Trust;

Exhibit 3, Duplicate Copy of Exhibit 2; Exhibit 4, The David Wertman Trust Document;

Exhibit 5, David M. Wertman's Indictment, Waiver of Rights and Plea Document, and

Sentencing Entry; Exhibit 6, October 21, 2015 Letter from David D. Wertman- Original



       2   David D. Wertman is the grandfather of defendant David M. Wertman.
Ashland County, Case No. 17-COA-17 & 17-COA-20                                             4


owner and the grandfather of David M. Wertman. T., Apr 6, 2017 at 28-30; Judgment

Entry, Ashland County Court of Common Pleas, Case No. 15-CRI-181, June 6, 2017 at

1-2. At the conclusion of the hearing, the Court ordered the parties to submit memorandums

in support of their positions.

       {¶7}    By Judgment Entry filed June 6, 2017, the trial court found for the state

and ordered the surrender of the Challenger to law enforcement for disposition based

on its prior forfeiture order.

       {¶8}    The Trust filed its Notice of Appeal from the trial court's opinion on June

9, 2017 in case number 15 CRI 181, and another notice of appeal was filed shortly

thereafter in case 15 CRI 178.

       {¶9}    By Judgment Entry filed July 12, 2017, this Court granted the Trust’s

motion and consolidated the two cases for appeal.

                                       Assignment of Error

       {¶10} The Trust raises one assignment of error,

       {¶11} “I.    THE    TRIAL   ERRORED       BY    OVERRULING        THE    PLAINTIFF-

APPELLANT'S PROPERLY FILED PETITION UNDER R.C. 2981.04(E) (1) TO RECLAIM

ITS PROPERTY, TO WIT: 2008 DODGE CHALLENGER; VIN #2B3LJ74W98H301456.”

                                        Law and Analysis

       {¶12} The Trust contends that the stipulated facts demonstrate by a

preponderance of the evidence that the Trust was lawfully created, it properly procured

the title to the Challenger, and it lawfully owns the Challenger. [Appellant’s Brief at 6-7].

The Trust argues that the court must return the property subject to forfeiture because it

established that the Trust had a vested legal interest in the property. In sum, the Trust

contends the trial court should have returned the Challenger to the Trust. [Id.].
Ashland County, Case No. 17-COA-17 & 17-COA-20                                           5


      STANDARD OF APPELLATE REVIEW.

      {¶13} In Arnott v. Arnott, the Ohio Supreme Court articulated an appellate courts

standard of review,

             “A court’s purpose in interpreting a trust is to effectuate, within the

      legal parameters established by a court or by statute, the settlor’s intent.”

      Domo v. McCarthy, 66 Ohio St.3d 312, 612 N.E.2d 706 (1993), paragraph

      one of the syllabus. Interpreting a trust is akin to interpreting a contract; as

      with trusts, the role of courts in interpreting contracts is “to ascertain and

      give effect to the intent of the parties.” Saunders v. Mortensen, 101 Ohio

      St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 9. This court has held that “[t]he

      construction of a written contract is a matter of law that we review de novo.”

      Id. The same is true of the construction of a written trust; in both In re Trust

      of Brooke, 82 Ohio St.3d 553, 697 N.E.2d 191 (1998), and Natl. City Bank

      v. Beyer, 89 Ohio St.3d 152, 729 N.E.2d 711 (2000), this court applied a de

      novo standard of review in interpreting trust language in appeals of

      declaratory judgments.

132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶14.

      {¶14} In the case at bar, the parties stipulated that the Trust was created October

1, 2010 and is a valid and enforceable irrevocable trust. The parties further agreed that

the Challenger’s title is vested in the name of the Trust. The parties also agreed that

defendant Wertman is the sole beneficiary of the trust. The parties stipulated to a copy

of the Trust document as Exhibit 5 during the April 6, 2017 hearing. The Trust document

provides as follows,
Ashland County, Case No. 17-COA-17 & 17-COA-20                                              6


              THE DAVID WERTMAN TRUST Created this 1st day of October in

       the year 2010, for the purpose of managing the assets of minor child DAVID

       MICHAEL WERTMAN herein called beneficiary, until his 21st birthday on

       the 10th day of February, 2018.

       JURISDICTION.

       The “mootness doctrine”.

       {¶15} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” United States v. Alaska S.S. Co., 253

U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San Pablo &

Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Accord, North

Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 92, 30 L.Ed.2d 244(1971). Because

mootness is a jurisdictional question, the question of mootness is one that must be

addressed even if the parties do not raise it. North Carolina v. Rice, 404 U.S. at 246, 92

S.Ct. 92, 30 L.Ed.2d 244.

       {¶16} Ohio courts have long exercised judicial restraint in cases that are not actual

controversies. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372(1970). No

actual controversy exists where a case has been rendered moot by an outside event. “It

is not the duty of the court to answer moot questions, and when, pending proceedings in

error in this court, an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.

Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St.3d

131, 133, 566 N.E.2d 655(1991).
Ashland County, Case No. 17-COA-17 & 17-COA-20                                           7

      {¶17} In Bradley v. Ohio Dept. of Job and Family Services our brethren from the

Tenth Appellate District observed,

             “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’

      language of Section 2, Article III of the United States Constitution and in the

      general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991),

      74 Ohio App.3d 788, 791, 600 N.E.2d 736.                “While Ohio has no

      constitutional counterpart to Section 2, Article III, the courts of Ohio have

      long recognized that a court cannot entertain jurisdiction over a moot

      question.” Id. “It has been long and well established that it is the duty of

      every judicial tribunal to decide actual controversies between parties

      legitimately affected by specific facts and to render judgments which can be

      carried into effect. It has become settled judicial responsibility for courts to

      refrain from giving opinions on abstract propositions and to avoid the

      imposition by judgment of premature declarations or advice upon potential

      controversies.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 257 N.E.2d

      371. In other words, an issue is moot when it has no practical significance,

      being instead merely hypothetical or academic.

10th Dist. Franklin No. 10AP-567, 2011-Ohio-1388, ¶11; Accord, Boncek v. Stewart, 9th

Dist. Summit No. 21054, 2002-Ohio-5778, ¶10. Although the mootness doctrine has

exceptions, none apply in the case at bar. See, e.g., In re Appeal of Suspension of Huffer

from Circleville High School, 47 Ohio St.3d 12, 546 N.E.2d 1308 (1989), paragraph one

of the syllabus(noting the two exceptions to the mootness doctrine are when “the issues
Ashland County, Case No. 17-COA-17 & 17-COA-20                                              8


are capable of repetition, yet evading review” or the case “involves a matter of public or

great general interest”).

       {¶18} A court may take judicial notice of mootness. “In fact, ‘an event that causes

a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v.

Lorain Correctional Inst. (1992), 64 Ohio St.3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92,

94.” State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d

1181(2000). Accord, Miner v. Witt, 82 Ohio St. 237, 239, 92 N.E.2d 21(1910).

       {¶19} In the case at bar, the express terms of the Trust establish that the Trust

terminated on February 10, 2018.        The sole beneficiary of that Trust is Wertman.

Therefore, he is entitled to the sole legal title of the Challenger as of that date. Wertman’s

entered a plea to the forfeiture specification contained in his Indictment on January 15,

2016. Wertman’s interest in the Challenger was forfeited when he was sentenced by

Judgment Entry filed in Case Number 15-CRI-181 on July 22, 2016 at page 5.

       {¶20} Since the Trust has expired, this case is moot. The trust no longer has legal

standing to assert any interest in the Challenger. The capable-of-repetition-yet-evading-

review exception does not apply.
Ashland County, Case No. 17-COA-17 & 17-COA-20                                  9


      {¶21} The Trust’s sole assignment of error is overruled. The judgment of the

Ashland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
