[Cite as Steiner v. Piero-Silagy, 2017-Ohio-7669.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



VICKI A. STEINER                                     :   JUDGES:
                                                     :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                          :   Hon. William B. Hoffman, J.
                                                     :   Hon. Earle E. Wise, Jr., J.
-vs-                                                 :
                                                     :
ANNE PIERO-SILAGY, ESQ.,                             :
GUARDIAN OF THE ESTATE                               :
OF DELORES A. HOUCHIN                                :   Case No. 2017CA00050
UNDER STARK COUNTY PROBATE                           :
CASE NO. 224336                                      :
                                                     :
        Defendant-Appellee                           :   OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Court of Common
                                                         Pleas, Case No. 2016CV00371



JUDGMENT:                                                Affirmed




DATE OF JUDGMENT:                                        September 18, 2017




APPEARANCES:

For Plaintiff-Appellant                                  For Defendant-Appellee

JOHN V. BOGGINS                                          JOHN J. RAMBACHER
1428 Market Avenue North                                 MICHAEL J. KAHLENBERG
Canton, OH 44714-2616                                    825 South Main Street
                                                         North Canton, OH 44720
Stark County, Case No. 2017CA00050                                                    2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, Vicki Steiner, appeals the March 27, 2017 judgment

entry of the Court of Common Pleas of Stark County, Ohio finding in favor of Defendant-

Appellee, Anne Piero-Silagy, Esq., Guardian of the Estate of Delores A. Houchin, on her

action in quiet title.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} In 1985, appellant and her former husband purchased a 12.09 acre parcel

of vacant land in Nimishillen Township. In 1988, they refinanced and constructed a

home on the property. In 1992, the marriage was dissolved and appellant refinanced

the property to pay her former husband in exchange for a quitclaim deed for his interest

in the property.

       {¶ 3} In 2011, appellant sought to refinance the property and obtain a separate

equity line of credit and made application with American First Bancorp, Inc. American

First required a cosigner. Appellant's mother, Delores Houchin, agreed to cosign. At

the closing on August 16, 2011, American First presented a quitclaim deed to appellant

and Ms. Houchin for both of them to sign which they did, placing both of their names on

the deed to the property. The deed was recorded on August 22, 2011. Appellant and

her mother received a loan of $90,000.00 from American First and an equity line of

credit loan in the amount of $78,000.00 from U.S. Bank National Association N.D.

       {¶ 4} On February 7, 2013, the Stark County Probate Court found Ms. Houchin

incompetent by reason of mental and physical disabilities resulting in impairment and

appointed a guardian for her. On September 1, 2015, the Probate Court appointed
Stark County, Case No. 2017CA00050                                                     3


appellee as Ms. Houchin's guardian. Appellee, on behalf of Ms. Houchin, claimed an

equity in the property.

       {¶ 5} On February 16, 2016, appellant filed an action in quiet title, claiming the

quitclaim conveyance was an accommodation only and the parties intended appellant

alone remain the equitable and legal owner of the property.

       {¶ 6} On November 15, 2016, appellee filed a motion for judgment on the

pleadings and/or to dismiss, claiming appellant failed to file requisite title evidence,

failed to furnish a summary report of her expert, failed to join necessary and

indispensable parties, and failed to state a claim upon which relief can be granted. On

December 2, 2016, appellant filed a motion for summary judgment, claiming genuine

issues of material fact did not exist. By judgment entry filed December 14, 2016, the

trial court denied appellee's motion. By judgment entry filed January 30, 2017, the trial

court denied appellant's motion.

       {¶ 7} A bench trial was held on March 7, 2017. Findings of fact and conclusions

of law were filed on March 22, 2017. By judgment entry filed March 27, 2017, the trial

court ruled in favor of appellee, finding appellant did not meet her burden under her

quiet title claim.

       {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶ 9} "THE LOWER COURT ERRED AS A MATTER OF LAW IN DENYING

THE     APPELLANT'S       MOTION    FOR    SUMMARY       JUDGMENT,       WHERE      THE

DEFENDANT/APPELLEE, IN HER REPLY TO THE PLAINTIFF'S/APPELLANT'S
Stark County, Case No. 2017CA00050                                                   4


MOTION,   SUBMITTED       NO    ADMISSIBLE       EVIDENCE      IN   OPPOSITION     TO

PLAINTIFF'S/APPELLANT'S EVIDENCE AS REQUIRED BY CIV.R. 56.                   BECAUSE

THE ONLY ADMISSIBLE EVIDENCE BEFORE THE COURT WAS THAT OF THE

PLAINTIFF/APPELLANT VICKI STEINER, SHE WAS ENTITLED TO JUDGMENT AS A

MATTER OF LAW."

                                          II

     {¶ 10} "THE LOWER COURT'S DECISION IS AN ABUSE OF DISCRETION

AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AS THE COURT

DREW AN IMPROPER INFERENCE THAT DOLORES HOUCHIN EXPECTED TO BE

JOINED IN TITLE BECAUSE SHE CONTRIBUTED FINANCIALLY TO HER

DAUGHTER VICKI, WHERE THE ONLY EVIDENCE BEFORE THE COURT WAS

THAT THERE WAS NO AGREEMENT BETWEEN VICKI STEINER AND HER

MOTHER TO CONVEY A ONE-HALF INTEREST IN VICKI'S HOME IN EXCHANGE

FOR HER MOTHER'S FINANCIAL ASSISTANCE."

                                          III

     {¶ 11} "THE LOWER COURT ERRED AS A MATTER OF LAW BY BASING ITS

DECISION UPON THE INFERENCE THAT DOLORES HOUCHIN WISHED TO BE

JOINED IN TITLE BECAUSE THERE WAS NO EVIDENCE TO THE CONTRARY, AND

UPON THIS INFERENCE THEN CONCLUDING DOLORES WISHED TO BE NAMED

CO-GRANTEE      IN    EXCHANGE        FOR       PAST   AND     FUTURE        FINANCIAL

CONTRIBUTIONS TO HER DAUGHTER VICKI."

     {¶ 12} Appellee filed a cross-appeal and assigns the following error:
Stark County, Case No. 2017CA00050                                                       5


                          CROSS-ASSIGNMENT OF ERROR I

       {¶ 13} "THE TRIAL COURT ERRED IN DENYING APPELLEE/CROSS-

APPELLANT'S MOTION FOR JUDGMENT ON THE PLEADINGS."

                                              I

       {¶ 14} In Assignment of Error I, appellant claims the trial court erred in denying

her motion for summary judgment. We disagree.

       {¶ 15} As stated by the Supreme Court of Ohio in Continental Insurance Co. v.

Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615 (1994), syllabus: "Any error by a trial

court in denying a motion for summary judgment is rendered moot or harmless if a

subsequent trial on the same issues raised in the motion demonstrates that there were

genuine issues of material fact supporting a judgment in favor of the party against whom

the motion was made."

       {¶ 16} Based on our review of the record, as further set forth infra, we find

genuine issues of material fact favoring appellee were presented at trial; therefore, we

find the Continental holding to be applicable in this case.

       {¶ 17} Assignment of Error I is denied.

                                            II, III

       {¶ 18} In Assignments of Error II and III, appellant claims the trial court erred in

ruling in favor of appellee. We disagree.

       {¶ 19} Specifically, appellant argues the trial court abused its discretion, the

decision was against the manifest weight of the evidence, and the trial court based its

decision on the improper inference that Ms. Houchin intended to be joined in title

because there was no evidence to the contrary.
Stark County, Case No. 2017CA00050                                                       6


       {¶ 20} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary, or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 21} On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the

Supreme Court of Ohio explained the following:



              Weight of the evidence concerns "the inclination of the greater

       amount of credible evidence, offered in a trial, to support one side of the

       issue rather than the other. It indicates clearly to the jury that the party

       having the burden of proof will be entitled to their verdict, if, on weighing

       the evidence in their minds, they shall find the greater amount of credible

       evidence sustains the issue which is to be established before them.

       Weight is not a question of mathematics, but depends on its effect in

       inducing belief." (Emphasis sic.)
Stark County, Case No. 2017CA00050                                                        7


       {¶ 22} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio

St .3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

       {¶ 23} R.C. 5303.01 governs action to quiet title and states the following:



              An action may be brought by a person in possession of real

       property, by himself or tenant, against any person who claims an interest

       therein adverse to him, for the purpose of determining such adverse

       interest. Such action may be brought also by a person out of possession,

       having, or claiming to have, an interest in remainder or reversion in real

       property, against any person who claims to have an interest therein,

       adverse to him, for the purpose of determining the interests of the parties

       therein.



       {¶ 24} Appellant's position was that the quitclaim deed was executed at the

behest of American First to complete the loan transaction and in no way did the parties

intend for Ms. Houchin to have an ownership interest in the property; therefore,

appellant is entitled to quiet title. In her March 6, 2017 trial brief at 4, appellant noted

the trial court "most certainly has the authority to impose a constructive trust" for her

benefit.

       {¶ 25} Appellee argues by virtue of the quitclaim deed voluntarily signed by

appellant, Ms. Houchin and appellant became tenants in common and Ms. Houchin is a

one-half owner of the property under R.C. 5302.19 which states in pertinent part: "if any
Stark County, Case No. 2017CA00050                                                        8


interest in real property is conveyed or devised to two or more persons, such persons

hold title as tenants in common and the joint interest created is a tenancy in common."

      {¶ 26} It is undisputed appellant voluntarily signed the quitclaim deed, adding her

mother as a record owner of the property. What is disputed is that appellant was

"forced" by American First to sign the deed and it was not the parties' intention to have

Ms. Houchin be a one-half owner of the property.

      {¶ 27} Appellant testified American First required a cosigner on the refinance and

the equity line of credit because her debt to income ratio was too high. T. at 15. Her

mother agreed to be the cosigner. T. at 16. During the closing on the loan, American

First presented appellant with a quitclaim deed to add Ms. Houchin on the title. T. at 17-

18; Plaintiff's Exhibit H. The deed was prepared by Attorney John Wargo from Berea.

T. at 18. Appellant did not know this attorney and never had any dealings with him. Id.

Although appellant testified she wanted to "get up and walk" and she should have, she

signed the deed because obtaining the loan cut her house payment nearly in half. T. at

14, 18-19. She felt she did not have any choice but to sign the deed. T. at 24-25. She

acknowledged she had gone to another bank, but she thought the closing costs were

excessive. T. at 19, 65. Appellant testified at no time was there an understanding

between her and her mother that she was giving half of the property to her in exchange

for anything she did. T. at 22-23, 66. Appellant never intended that her mother would

"be an actual owner of this property and have an interest in it." T. at 25. Appellant was

aware of what quitclaim deeds were, as she executed one after her divorce. T. at 11-

12, 41; Plaintiff's Exhibit D. Appellant testified she never took any action to remove her

mother from the title afterwards because "family chaos ensued and it went to the back
Stark County, Case No. 2017CA00050                                                        9


of the burner with my dad." T. at 41-42. She then explained she did attempt to remove

her mother from the deed and went to another attorney, accompanied by her sister, but

those efforts were unsuccessful because the situation was "this big legal mess." T. at

42-43.

           {¶ 28} Unfortunately, due to her incompetence, Ms. Houchin was unable to

testify.     Appellant did not present any evidence or testimony from anyone from

American First that it required Ms. Houchin be placed on the title. T. at 61.

           {¶ 29} William Sparks, an attorney called by appellant, testified on cross-

examination the deed identified the record owners of the property as appellant and her

mother, as tenants in common, giving each party an undivided half interest in the

property. T. at 68, 75-76. Mr. Sparks agreed the stated consideration of ten dollars in

the deed for the transfer was legally sufficient consideration. T. at 81.

           {¶ 30} On cross-examination, appellant admitted that after the appointment of a

guardian, she took her mother to the bank and $9,059.50 was withdrawn from Ms.

Houchin's account. T. at 52-53, 55. Also, Ms. Houchin helped appellant financially, with

appellant receiving monthly payments from her mother pretty consistently between 2008

and 2011 varying from $200.00 to $600.00. T. at 58-60. The deed was executed on

August 16, 2011. T. at 17.

           {¶ 31} In its findings filed May 22, 2017, the trial court found the following in

pertinent part:
Stark County, Case No. 2017CA00050                                                10


           6) Steiner claims that American would not grant the loan unless

     Houchin's name was listed on the title.       The loan officers presented

     Steiner with a quit claim deed with both names as grantees.

           7) Steiner testified she was furious, but signed the document

     anyway, feeling she had no other option.

           8) On or about August 16, 2011, Steiner executed a quit claim

     deed, transferring the record title to the property to herself and also to

     Houchin as tenants in common.

           9) The deed is devoid of any conditions and/or restrictions relating

     to and/or otherwise encumbering Houchin's ownership interest into the

     property as tenant in common with Steiner.

           11) The mortgage loans are unpaid and outstanding, and the

     mortgagee securing the mortgage loans are presenting valid, subsisting

     liens encumbering the record title of Steiner and Houchin to the property.

     In order to obtain the mortgage loans and benefits therefrom, Steiner

     needed Houchin to provide good credit and become a co-obligor with

     Steiner, jointly and severally liable under/upon the mortgage loans.

           12) Prior to the deed to Houchin, Steiner had sole, full and

     complete possession of [the] property.

           15) No testimony, nor evidence, was presented as to Houchin's

     intentions relating to the loan or deed and Houchin is presently

     incompetent.
Stark County, Case No. 2017CA00050                                                   11


            17) From August 16, 2011 until the present action, Plaintiff took no

     steps to remove Houchin from the deed.



     {¶ 32} The trial court then concluded the following in part:



            From this Court's viewpoint, by virtue of Steiner taking the action of

     listing her mother Houchin's name on the deed and the conveyance, she

     has now made Houchin a tenant in common and record holder of the

     property. Although Steiner feels that she was forced into this decision by

     American, there was no testimony from American representative that

     Steiner was required to take this action or was under duress.

            Due to the unavailability of Steiner's mother Houchin, there is no

     testimony that Houchin agreed to be listed on the mortgage and note with

     her daughter with no expectation of being listed on the deed.

            The Court considers the fact that Steiner received thousands of

     dollars over a three-year period from Houchin, which would indicate to this

     Court that Houchin may have had a reasonable expectation to be named

     on the deed in return for the payment that she had been providing to

     Steiner.   Steiner did receive a benefit by Houchin cosigning on the

     documents.    It was Houchin's good credit that convinced American to

     provide the two loans to Steiner.

            The Court cannot equitably divest Houchin of/from Houchin's record

     interest (as a co-tenant) in the property which, a) Houchin provided and
Stark County, Case No. 2017CA00050                                                    12


      exposed personal credit for the new mortgage loans; b) Houchin

      periodically provided personal funds to the Plaintiff and/or Plaintiff

      unilaterally obtained Houchin's funds for Plaintiff's personal benefit (both

      before and/or after the date of the deed and new mortgage loans; and c)

      Houchin cosigned the new mortgage loans (in and of itself constituting

      consideration for Plaintiff's conveyance to Houchin of an interest in the

      property), and Houchin became (and remains) jointly and severally liable

      upon for the new mortgage loans.

             Wherefore, since Houchin's name is on the deed and Houchin has

      now become a tenant in common with equal and co-existing rights,

      Houchin and/or her Estate are entitled to record title to the property under

      R.C. 5302 and 5303. The Plaintiff has not met her burden under the quiet

      title claim. In addition, the Plaintiff has not presented sufficient evidence

      that would require this Court to impose a constructive trust.



      {¶ 33} No testimony or evidence was presented from American First or the

attorney who prepared the deed surrounding the circumstances of the deed and

substantiating appellant's claim that she was "forced" to sign it. Appellant admitted she

could have received financing elsewhere, but the terms were not as favorable compared

to what American First was offering. We do not find any evidence to establish that

appellant was "forced" to sign the quitclaim deed.

      {¶ 34} The gravamen of this case is what did the parties intend in signing the

quitclaim deed?
Stark County, Case No. 2017CA00050                                                     13


       {¶ 35} "The principles of deed construction dictate that a court presumes that a

deed expresses the intentions of the grantor and grantee at the time of execution. * * * A

court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous

language of the deed. * * * " American Energy Corp. v. Datkuliak, 174 Ohio App.3d 398,

2007-Ohio-7199, 882 N.E.2d 463, ¶ 50 (7th Dist.). (Citations omitted.) What evidence

is in the record to rebut this presumption and substantiate appellant's claim of the

parties' intentions?

       {¶ 36} There is a quitclaim deed with no conditions and/or restrictions relating to

Ms. Houchin's ownership interest in the property. The quitclaim deed named appellant

and her mother as tenants in common, with each party having an equal interest in the

property. Appellant was aware of the effect of a quitclaim deed, and did nothing after

the signing to rectify the matter. There was one and one-half years between the signing

of the deed and the appointment of a guardian wherein appellant did not attempt to

change the deed while her mother was still competent. We do not find any evidence to

support appellant's claimed intention that her mother was not to have an equal interest

in the property.

       {¶ 37} We find the trial court's "inference" (as argued by appellant) regarding

monies to appellant from her mother and the conclusion in "(b)" cited above in ¶ 32 not

to be relevant or material to the issue.

       {¶ 38} As for a constructive trust, appellant "bears the burden of producing clear

and convincing evidence justifying it." University Hospitals of Cleveland, Inc. v. Lynch,

96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, paragraph three of the syllabus. "

'A constructive trust is the formula through which the conscience of equity finds
Stark County, Case No. 2017CA00050                                                     14


expression. When property has been acquired in such circumstances that the holder of

the legal title may not in good conscience retain the beneficial interest, equity converts

him into a trustee.' " Ferguson v. Owens, 9 Ohio St.3d 223, 225-226, 459 N.E.2d 1293

(1984), quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E.

378 (1919). We do not find any clear and convincing evidence in the record to support

the creation of a constructive trust.    Ms. Houchin is jointly liable on the note and

financially obligated to pay the note in the event appellant defaults on the loans.

        {¶ 39} Upon review of the evidence presented, we are unable to conclude that

the trial court abused its discretion or created a manifest miscarriage of justice in this

case.

        {¶ 40} Assignments of Error II and III are denied. Cross-Assignment of Error I is

moot.
Stark County, Case No. 2017CA00050                                          15


      {¶ 41} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, J. and

Hoffman, J. concur.




EEW/sg 809
