[Cite as La Gar Marketing, Inc. v. W. Fin. & Lease, Inc., 2012-Ohio-4800.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

LA GAR MARKETING, INC.                                     C.A. No.          25742

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
WESTERN FINANCE & LEASE, INC.                              COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellee                                           CASE No.   CV2010-02-0773

                                 DECISION AND JOURNAL ENTRY

Dated: October 17, 2012



        CARR, Judge.

        {¶1}     Appellant, La Gar Marketing, Inc., has appealed the judgment of the Summit

County Court of Common Pleas denying its motion for summary judgment and awarding

summary judgment to Western Finance and Lease, Inc. This Court affirms.

                                                      I.

        {¶2}     On August 20, 2007, Western Finance entered into an “Equipment Finance

Agreement” with Mark’s Akron and Medina Truck Sales, Inc. (“Mark’s Akron”). Pursuant to

the   agreement,      Mark’s     Akron      purchased      a   2000     Mack    Truck   with   VIN   of

1M1AA13Y4YW119803 and agreed to pay Western Finance $2117 per month for 24 months.

Several weeks later, on September 11, 2007, La Gar bought the same truck from Mark’s Akron.

La Gar paid Mark’s Akron $7000 upfront and agreed that it would pay an additional $970 per

month for 18 months. While La Gar was in possession of the vehicle for approximately nine

months, La Gar never received a certificate of title for the truck. While La Gar made its
                                                 2


payments to Mark’s Akron, Mark’s Akron apparently defaulted on its obligation to Western

Finance.

       {¶3}    After La Gar had made approximately nine of the monthly payments, Western

Finance repossessed the truck and subsequently sold it at auction. La Gar filed a complaint

against Western Finance seeking a declaratory judgment of its superior title, and damages for

conversion, trespass of chattel, and negligence.       Both parties filed motions for summary

judgment. In a judgment entry issued on December 3, 2010, the trial court concluded that La

Gar lacked standing to pursue its claims because it did not have a certificate of title. The trial

court then dismissed the action for failure to state a claim upon which relief could be granted.

       {¶4}    La Gar has appealed and raises three assignments of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS
       DETERMINATION THAT, PURSUANT TO THE OHIO CERTIFICATE OF
       TITLE ACT, THE PLAINTIFF HAD NO STANDING TO PURSUE ITS
       CLAIMS.

       {¶5}    In its first assignment of error, La Gar argues that it could assert an ownership

interest in the truck against a lienholder despite not having a certificate of title to the truck. We

disagree.

       {¶6}    In the underlying action La Gar filed a declaratory judgment action in which it

sought to have the court declare that its interest in the truck was superior to Western Finance’s

interest. The trial court stated that La Gar “must evince a cognizable interest in the truck in order

to litigate this matter,” and found that La Gar had “not evinced ownership, right, claim, or

interest by virtue of possessing a Certificate of Title to the truck at issue.” The trial court

ultimately concluded that under the plain language of R.C. 4505.04, it could not recognize La
                                               3


Gar’s claimed interest in the truck. On appeal, La Gar argues that it may assert ownership of the

truck against a lienholder despite that fact that it does not have a certificate of title. La Gar

argues that R.C. 4505.04 is inapplicable because this case does not involve a dispute between

two alleged owners of a vehicle asserting competing claims to the vehicle. Although La Gar also

filed a motion for summary judgment in the trial court, it does not argue in its assignment of

error that the trial court erroneously denied its motion. Accordingly, we confine our review to

whether the trial court erred in awarding summary judgment to Western Finance.

       {¶7}   R.C. 4505.04(B) provides that no court shall “recognize the right, title, claim, or

interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or

encumbered,” unless evidenced by a certificate of title, by admission in the pleadings, by

stipulation of the parties, or by an instrument showing a valid security interest. The Supreme

Court of Ohio has stated that R.C. 4505.04 applies where parties assert competing rights or

competing interests in a motor vehicle. State v. Rhodes, 2 Ohio St.3d 74, 75; see also Walther v.

Walther, 2d Dist. No. 20545, 2005-Ohio-907, ¶ 17; Grogan Chrysler-Plymouth, Inc. v. Gottfried,

59 Ohio App.2d 91, 94 (6th Dist.1978); and Rucker v. Alston, 2d Dist. No. 19959, 2004-Ohio-

2428, ¶ 9. “R.C. 4505.04 was intended to apply to litigation where the parties were rival

claimants to title, i.e., ownership of the automobile; to contests between the alleged owner and

lien claimants; to litigation between the owner holding the valid certificate of title and one

holding a stolen, forged or otherwise invalidly issued certificate of title; and to similar

situations.” Hughes v. Al Green, Inc., 65 Ohio St.2d 110, 115-116 (1981), quoting Grogan

Chrysler-Plymouth, Inc., 59 Ohio App.2d at 94-95. See also Saturn of Kings Automall, Inc. v.

Mike Albert Leasing, Inc., 92 Ohio St.3d 513, 518 (2001). Courts have further held that R.C.

4505.04 is “irrelevant to all issues of ownership except those regarding the importation of
                                                 4


vehicles, rights as between lien holders, rights of bona-fide purchasers, and instruments

evidencing title and ownership.” Stahl v. Neff, 3d Dist. No. 13-08-09, 2008-Ohio-5195, ¶ 6,

quoting Smith v. Nationwide Mut. Ins. Co., 37 Ohio St.3d 150, 153 (1998).

       {¶8}    As this case involves a dispute between the purchaser of an automobile, and the

creditor for the seller who alleges to have perfected a security interest, this is a contest “between

the alleged owner and lien claimant,” and R.C. 4505.04 applies. Stahl at ¶ 6. La Gar maintains

that R.C. 4505.04 is inapplicable because this case does not involve a dispute between two

alleged owners of a vehicle asserting competing claims to the vehicle. However, because the

precedent established in Ohio holds that R.C. 4505.04 applies in disputes “between the alleged

owner and lien claimant,” we are compelled to find R.C. 4505.04 applicable in this matter.

       {¶9}    The ultimate issue in this case is whether the provisions of Article 9 of the

Uniform Commercial Code (UCC) that protects buyers in the ordinary course prevail over the

certificate of title requirement in R.C. 4505.04. The Supreme Court of Ohio interpreted and

applied R.C. 4505.04 in Saturn of Kings, 92 Ohio St.3d at syllabus, and held that “[i]n

determining competing claims of ownership of a motor vehicle, R.C. 4505.04(A) controls over

the provisions of the Uniform Commercial Code.” In that case, a dealer sold a used car to a

second dealer and allowed it to take possession of the car, but the first dealer retained possession

of the certificate of title until it received payment. Meanwhile, the second dealer sold the car to a

third dealer who was potentially a buyer in ordinary course. The second dealer, however, never

paid the first dealer and therefore never received the certificate of title, so it could not pass the

certificate of title to the third dealer. The first dealer filed a complaint against the second and

third dealers for conversion. The third dealer filed a counterclaim, alleging that it lawfully

purchased the car, and requesting that the court order the first dealer to deliver the certificate of
                                                    5


title. The appellate court held that the issue of ownership should be determined by Article 2 of

the UCC because the first dealer “entrusted” the car to the second dealer. Id. at 514. The

Supreme Court of Ohio reversed, and applied R.C. 4505.04 to decide the case in favor of the first

dealer, who at all times had retained possession of the certificate of title. The Supreme Court

ultimately reasoned that under R.C. 4505.04, “title to and, thus, ownership of a motor vehicle in

this context does not pass without issuance or delivery of the certificate of title.” Id. at 520. It

concluded that the second dealer “was never the lawful owner” of the car, and therefore it “could

not lawfully pass title” to the car to the third dealer. Id.

        {¶10} We acknowledge that there are certain factual distinctions between this matter and

the circumstances the Supreme Court confronted in Saturn of Kings. While this case involves

the intersection of R.C. 4505.04 with Article 9 of the UCC, Saturn of Kings dealt with Article 2.

Furthermore, Mark’s Akron remained on the title, but Western Finance purported to have a

perfected security interest and had possession of the certificate of title, whereas the dealer in

Saturn of Kings had possession of a certificate of title in its own name. Even in light of these

factual distinctions, the legal reasoning espoused by the Supreme Court in Saturn of Kings

remains persuasive.

        {¶11} The Third District confronted facts very similar to the facts before us in First

Merit Bank, N.A. v. Angelini, 159 Ohio App.3d 179. 2004-Ohio-6045 (3d Dist.), which involved

a dispute between an automobile dealer’s creditor and buyers’ creditor. The dealer’s creditor

possessed the certificates of title to the two automobiles in question, and a notation of its security

interest was made on each certificate. The dealer sold the cars to purportedly innocent buyers,

and the buyers financed the purchase price. Although the dealer was paid in full for the cars, it

did not pay the proceeds to its creditor. The dealer’s creditor refused to surrender the certificates
                                                  6


of title for the cars, which resulted in the buyers’ creditor being unable to perfect its purchase-

money security interests in the cars. The buyers’ creditor filed a complaint requesting an order

terminating the dealer’s creditor’s interest in the cars, and an injunction requiring transfer of the

certificates of title. After the trial court found that Article 9 of the UCC applied because the cars

were inventory, the Third District concluded on appeal that the case involved “competing claims

of ownership” and held that R.C. 4505.04 was controlling. Angelini at ¶ 17. The court reached

this conclusion by applying the Supreme Court precedent established in Saturn of Kings and held

that R.C. 4505.04 governs over the UCC. Thus, the Third District concluded that the retention

and possession of the certificates of title made the dealer’s creditor’s security interests in the

vehicle “superior” to the security interests of the buyers’ creditor. Id. at ¶ 18.

       {¶12} We note that the appellant in Angelini advanced arguments similar to those made

by La Gar here, namely that “as a matter of public policy the creditors of bona fide purchaser for

value must be protected in these situations.”         Id. at ¶ 24.   The Third District disagreed,

concluding:

       [T]he Certificate of Title Act [codified in R.C. 4505.04] was created to protect
       bona fide purchasers, because motor vehicles are a distinct and different type of
       goods. To equate the sale of motor vehicles to that of a refrigerator or other
       household appliance would be to render the Certificate of Title Act meaningless.
       The act was created to protect Ohio’s bona fide purchaser, but that does not mean
       that a dealer’s creditor who has done everything within the Certificate of Title Act
       should be left without recourse. Accordingly, while R.C. 4505.04(A) may require
       some extra steps for dealers and purchasers in vehicle sales, we find those steps to
       be necessary to protect purchasers.

Id.

       {¶13} In this case, La Gar brought an action for declaratory judgment against Western

Finance seeking to have the court declare that its interest in the truck was superior to Western

Finance’s interest. Thus, this case involves a dispute between an alleged owner and a lien
                                                  7


claimant, and R.C. 4505.04 is controlling. While it may seem unjust that a buyer is unable to

benefit from the Article 9 provisions protecting a buyer in the ordinary course, that is a matter

left to the discretion of the legislature. There is no dispute that La Gar does not possess a

certificate of title to the truck. As the clear language of R.C. 4505.04 mandates that a court may

not recognize a “right, title, claim, or interest of any person in or to any motor vehicle” unless

evidenced by a certificate of title, the trial court properly concluded that it was unable to litigate

this matter and awarded summary judgment to Western Finance.

       {¶14} Accordingly, La Gar’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS
       DETERMINATION THAT WESTERN FINANCE’S CLAIM WAS NOT
       BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS
       DETERMINATION THAT WESTERN FINANCE HAD NO DUTY TO
       PURCHASERS OF VEHICLES FROM MARK’S AKRON.

       {¶15} In its second assignment of error, La Gar argues that the trial court erred when it

rejected La Gar’s claims of collateral estoppel on the issue of Western Finance’s lien. In its third

assignment of error, La Gar argues the trial court incorrectly determined that Western Finance

did not owe La Gar a duty. Because our conclusion that La Gar does not have standing to pursue

its claims is dispositive of this appeal, this Court declines to address La Gar’s second and third

assignments of error as they are rendered moot. See App.R. 12(A)(1)(c).
                                                 8


                                                III.

       {¶16} La Gar’s first assignment of error is overruled. This Court’s resolution of the first

assignment of error renders the second and third assignments of error moot. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



MOORE, J.
CONCURS.
                                                  9


BELFANCE, P. J.
DISSENTING.

       {¶17} I respectfully dissent because I do not agree that R.C. 4505.04 bars La Gar from

asserting a claim against Western Finance.

       {¶18} In granting summary judgment to Western Finance, the trial court concluded that

La Gar “lack[ed] standing to pursue its claims to the vehicle absent a Certificate of Title evincing

[its] rights or interests in the vehicle.” Paradoxically, Western Finance did not have title to the

vehicle that La Gar purchased either. Instead, the title owner was Mark’s Akron, a dealer that

sold used vehicles. In a variety of contexts, a certificate of title is not necessary to assert a claim

in a motor vehicle. See, e.g., Rucker v. Alston, 2d Dist. No. 19959, 2004-Ohio-2428, ¶ 10

(concluding that certificate of title unnecessary to bring conversion claim when defendant did not

have a perfected lien on the car and therefore could “[]not be said to have had a valid competing

interest in it[]”); Bobby Layman Chevrolet, Inc. v. Spire Motor Co., 157 Ohio App.3d 13, 2004-

Ohio-2025, ¶ 10 (4th Dist.) (concluding that R.C. 4505.04 did not prevent a court from ordering

transfer of title when the owner or the owner’s agent was obligated to do so). Thus, I would

conclude that the trial court erred in finding that La Gar could not bring any legal action against

an alleged lien holder to the vehicle simply because it did not yet possess legal title to the

vehicle.

       {¶19} In adopting Article 9 of the Uniformed Commercial Code codified in R.C.

Chapter 1309, the Ohio General Assembly saw fit to protect a buyer in the ordinary course of

business who purchases a vehicle from a dealer holding such vehicles as its inventory. In this

way, purchasers of vehicles who do not yet have a certificate of title, are not at risk of

repossession of their vehicle from a lienholder right after driving off the lot. Accordingly,
                                                 10


because Western Finance claims to have held a lien in the vehicle, this case turns upon the

application of R.C. 4505.13 and R.C. 1309.320(A). R.C. 4505.13 provides:

       (A)(1) Chapter 1309. and section 1701.66 of the Revised Code do not permit or
       require the deposit, filing, or other record of a security interest covering a motor
       vehicle, except as provided in division (A)(2) of this section.

       (2) Chapter 1309. of the Revised Code applies to a security interest in a motor
       vehicle held as inventory for sale by a dealer. The security interest has priority
       over creditors of the dealer as provided in Chapter 1309. of the Revised Code
       without notation of the security interest on a certificate of title, without entry of a
       notation of the security interest into the automated title processing system if a
       physical certificate of title for the motor vehicle has not been issued, or without
       the retention of a manufacturer’s or importer’s certificate.

       (B) Subject to division (A) of this section, any security agreement covering a
       security interest in a motor vehicle, if a notation of the agreement has been made
       by a clerk of a court of common pleas on the face of the certificate of title or the
       clerk has entered a notation of the agreement into the automated title processing
       system and a physical certificate of title for the motor vehicle has not been issued,
       is valid as against the creditors of the debtor, whether armed with process or not,
       and against subsequent purchasers, secured parties, and other lienholders or
       claimants.

R.C. 1309.320(A) provides:

       Except as otherwise provided in division (E) of this section, a buyer in the
       ordinary course of business * * * takes free of a security interest created by the
       buyer’s seller even if the security interest is perfected and the buyer knows of its
       existence.

       {¶20} R.C. Chapter 1309 governs secured transactions.            This chapter establishes a

uniform system of priority in many types of collateral. R.C. 1309.201(A) generally provides that

a security agreement will be effective not only against the party to the agreement but also against

purchasers of the collateral. See also R.C. 1309.317 (establishing priority of security interests).

Thus, a party holding a perfected security interest will often have priority over a subsequent

purchaser of the collateral. With respect to motor vehicles, that principle is reflected in R.C.

4505.13(B). However, there are numerous exceptions to this rule. One major exception is

contained in R.C. 1309.320(A), which provides that a buyer in the ordinary course of business
                                                  11


will take free of a security interest created by a seller, even if it is perfected and even if the buyer

knows of its existence. Thus, assuming that Western Finance held a perfected security interest in

the vehicle and Mark’s Akron held it as inventory for sale, La Gar would have taken free of the

security interest as a buyer in the ordinary course of business—even if La Gar was aware of the

existence of the lien. Accordingly, among the questions that must be resolved in this case is

whether the vehicle that La Gar purchased was inventory held for sale by Mark’s Akron.

        {¶21} Western Finance did not dispute that La Gar purchased the truck and had a bill of

sale evidencing its purchase. Nonetheless, relying upon Saturn of Kings Automall, Inc. v. Mike

Albert Leasing, Inc., 92 Ohio St.3d 513 (2001), it argued that La Gar could not assert a superior

possessory interest in the vehicle simply because La Gar did not yet possess the title. In Saturn

of Kings the Ohio Supreme Court considered Article 2 of the Uniform Commercial Code and

under what circumstances title and ownership of vehicles could pass between merchants who

claimed superior ownership rights to some vehicles. Id. at 513-515. The court determined that

“title to and, thus ownership of a motor vehicle in this context does not pass without issuance or

delivery of the certificate of title.” (Emphasis added.) Id. at 520, citing R.C. 4505.04(A).

Significantly, the Saturn of Kings court was careful to qualify its holding as applicable in the

context of sales transactions between merchants. Thus, I would conclude that reliance upon

Saturn of Kings is misplaced. This case does not involve competing claims of ownership

between merchants. Unlike the merchants in Saturn of Kings, Western Finance does not claim

ownership of the vehicle, nor did it hold title to the vehicle. Rather, this dispute is between an

alleged buyer in the ordinary course and a secured party asserting that its alleged perfected

security interest in a vehicle is superior to any interest of the buyer.
                                                12


       {¶22} Nonetheless, the majority relies on the statement in Saturn of Kings that “‘“R.C.

4505.04 was intended to apply to litigation where the parties were rival claimants to title, i.e.,

ownership of the automobile; to contests between the alleged owner and lien claimants[.]””’ Id.

at 518, quoting Hughes v. Al Green, Inc., 65 Ohio St.2d 110, 115-116 (1981), quoting Grogan

Chrysler-Plymouth Inc. v. Gottfried, 59 Ohio App.2d 91, 94-95 (1978).          However, when the

Supreme Court decided Hughes, R.C. 4505.13 read, in pertinent part,

       Sections 1309.01 to 1309.50, inclusive, and section 1701.66 of the Revised Code,
       do not permit or require the deposit, filing, or other record of a security interest
       covering a motor vehicle. Any security agreement covering a security interest in
       a motor vehicle, if such instrument is accompanied by delivery of a
       manufacturer’s or importer’s certificate and followed by actual and continued
       possession of such certificate by the holder of said instrument, or, in the case of a
       certificate of title, if a notation of such instrument has been made * * * on the face
       of such certificate, shall be valid as against the creditors of the debtor * * * and
       against subsequent purchasers, secured parties, and other lienholders or claimants.

(Empahsis omitted.). In other words, when Hughes was decided, the way to perfect a security

interest in a motor vehicle was by noting the interest on the certificate of title, and, thus, there

was never a need to look beyond the certificate of title because a security interest noted on it was

valid against all subsequent purchasers. See former R.C. 4505.13.

       {¶23} In 1984, the General Assembly amended R.C. 4505.13, making R.C. Chapter

1309 applicable to vehicles held as inventory for sale by a dealer. See R.C. 4505.13(A)(2); see

also Heartland Bank v. Nat’l City Bank, 171 Ohio App.3d 132, 2007-Ohio-1940, ¶ 35 (10th

Dist.) (concluding that R.C. 4505.14(B) is “subject to” R.C. 4505.13(A)(2)’s specific designation

of R.C. Chapter 1309 as applying to security interests in motor vehicles held as inventory for sale

by dealers, a finding that is consistent with the cross-reference within R.C. Chapter 1309 citing

R.C. Chapter 4505 as governing the perfection of security interests in vehicles that are not held

as inventory for sale by a dealer). But see First Merit Bank v. Angelini, 159 Ohio App.3d 179,
                                                  13


2004-Ohio-6045, ¶ 19-23 (3d Dist).1 Thus, a court may have to look beyond the certificate of

title to determine if a lien is valid, and, furthermore, a buyer in the ordinary course of a vehicle

held as inventory by a dealer takes the vehicle free and clear of a lien. See R.C. 4505.13(A)(2),

(B); R.C. 1309.320(A). Therefore, unlike when Hughes was decided, the certificate of title is not

dispositive of whether Western Finance had a valid lien. Thus, because the dispute in Saturn of

Kings was between alleged owners and did not involve a lienholder and the Supreme Court did

not examine the import of the amendment to R.C. 4505.13, I do not believe Saturn of Kings is

dispositive of this case.

        {¶24} Nor do I agree with the majority that Angelini is factually similar to this case.

The dealership in Angelini was apparently2 not the lawful owner of the vehicles, unlike in this

case where it undisputed that Mark’s Akron owned the vehicle in question. Angelini, 2004-

Ohio-6045, ¶ 18. In fact, the dealership not being the lawful owner would make Angelini more

similar to Saturn of Kings than to this case.          See Saturn of Kings, 92 Ohio St.3d at 520

(concluding that the dealer who had bought the vehicles from Saturn of Kings could not have




        1
            The Angelini court’s conclusion that R.C. 4505.13(B) controlled over R.C.
4505.13(A)(2) was dicta because it had concluded that the dealership “was never the lawful
owner of the vehicles, and, therefore, could not lawfully pass title * * *.” Id. at ¶ 18.
Furthermore, I believe that the Angelini court’s reasoning is flawed because R.C. 4505.13(A)(2)
is more specific and more recently enacted than R.C. 4505.13(B), and it ignores the legislature’s
directive that R.C. 4505.13(B) is “subject to” R.C. 4505.13(A). See Summerville v. Forest Park,
128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 32 (“[A] specific statute will prevail unless the general
statute can be shown to be the later adoption of the two and the manifest intent of the General
Assembly was to have the general provision control.”).
         2
           The majority’s summary of the facts as set forth in the Angelini opinion is accurate. See
id. at ¶ 1-4. However, the facts in ¶ 1-4 of Angelini do not coincide with the ultimate holding in
the case. Compare id. at ¶ 18 (concluding that the dealership “was never the lawful owner of the
vehicles * * *”) (Emphasis added.) with id. at ¶ 3 (The creditor took “physical possession of the
certificates of title” from the dealer, but there is no indication title was actually transferred to the
creditor.).
                                                 14


transferred title to Mike Albert Leasing because it “was never the lawful owner of the vehicles *

* *.”).

          {¶25} If La Gar was a buyer in the ordinary course and the vehicle was held as

inventory, Western Finance’s lien would not be valid against La Gar, and, therefore, Western

Finance could “[]not be said to have had a valid competing interest in it.” Rucker, 2004-Ohio-

2428, at ¶ 10.     Thus, I believe that a prerequisite to applying R.C. 4505.04 is to determine

whether the opposing party could “be said to have * * * a valid competing interest in [the

automobile].” See id. at ¶ 10. If Western Finance had no lien or if its alleged lien is invalid as

against La Gar, R.C. 4505.04 is simply not implicated. Accordingly, because the trial court

awarded summary judgment to Western Finance on the basis of standing, it never reached the

question of whether Western Finance satisfied its Dresher burden and demonstrated that there

was no genuine issue as to whether or not La Gar was a buyer in the ordinary course, or whether

the truck was held as equipment or inventory. Therefore, I would reverse and remand for the

court to do so in the first instance. See Yoder v. Blake, 9th Dist. No. 10CA0110-M, 2012-Ohio-

861, ¶ 24.

          {¶26} Additionally, because I believe La Gar’s claims should not have been dismissed

for lack of standing, I would conclude that La Gar’s remaining assignments of error are not

moot. I would overrule La Gar’s second assignment of error because the judgment submitted for

purposes of collateral estoppel does not appear to be final on its face, and, therefore, it would not

have preclusive effect on this litigation. However, I would sustain its third assignment of error

because Western Finance never moved for summary judgment on La Gar’s negligence claim.
                                          15


APPEARANCES:

COLIN G. SKINNER, Attorney at Law, for Appellant.

CHRISTOPHER J. NIEKAMP,           MICHAEL J. PALUMBO, and ANTHONY J. GINGO,
Attorneys at Law, for Appellee.
