[Cite as Sheridan v. Sheridan, 2012-Ohio-4271.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 97325



                       CHRISTINE SHERIDAN, ET AL.
                                                  PLAINTIFFS-APPELLEES

                                                   vs.

                         KEVIN M. SHERIDAN, ET AL.
                                                  DEFENDANTS-APPELLANTS




                    JUDGMENT:
 AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-690440

        BEFORE:           Sweeney, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                        September 20, 2012
ATTORNEYS FOR APPELLANTS

John J. Wargo, Jr., Esq.
Jack P. Mills, Jr., Esq.
Wargo & Wargo
30 Park Drive
P.O. Box 332
Berea, Ohio 44017

ATTORNEYS FOR APPELLEES

James M. Hungerford, Esq.
James M. Hungerford Co., L.P.A.
2424 Broadview Road
Cleveland, Ohio 44109

John G. Farnan, Esq.
Shawn W. Maestle, Esq.
Amy K. Schermer, Esq.
Weston Hurd
1301 East Ninth Street
Suite 1900
Cleveland, Ohio 44114

Gregory B. Rowinski, Esq.
Assistant County Prosecutor
Ninth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

Donn D. Rosenblum, Esq.
Ohio Attorney General’s Office
Collections Enforcement Section
150 East Gay Street, 21st Floor
Columbus, Ohio 43215

                                  (Continued)
ATTORNEYS FOR APPELLEES

Scott E. Collister, Esq.
Pamela S. Petas, Esq.
Gerner & Kearns Co., L.P.A.
215 West Ninth Street
Cincinnati, Ohio 45202

John F. Hersch, Esq.
8536 Crow Drive, Suite 240
Macedonia, Ohio 44056

Matthew H. Hallett, Esq.
Smith & Smith
110 Moore Road
P.O. Box 210
Avon Lake, Ohio 44012-0210

Christopher J. Shellito, Esq.
5510 Pearl Road, Suite 300
Parma, Ohio 44129
JAMES J. SWEENEY, P.J.:

      {¶1} This dispute involves real property located in Parma, Ohio 1 and, in part,

seeks the resolution of title and mortgage issues. Plaintiff-Appellee-Cross-Appellant

Christine M. Sheridan2 commenced the action against her spouse and now ex-husband,

Kevin Sheridan, among several other defendants. Christine Sheridan filed an action to

quiet title and sought an order canceling an open-ended mortgage held by defendant

Equity Trust Company Custodian FBO Eric Lundberg 3 IRA. 4              The Equity Trust

Mortgage, dated February 2, 2007, was secured by the Property and bears signatures of

both “Kevin Sheridan” and “Christine Sheridan”; which were notarized by “Denise M.

Roldan” of defendant Land Title Group, LLC.

      {¶2} Defendant, Eric Lundberg, asserted a counterclaim on behalf of defendant

Equity Trust against defendant Kevin M. Sheridan, in Kevin’s individual capacity and in

his capacity as “Co-Trustee of the Sheridan Family Trust Dated August 1, 2002.” The

counterclaim sought an order of foreclosure on the Equity Trust Mortgage, as well as a

Promissory Note executed by Kevin Sheridan on February 2, 2007, in favor of Equity

      1
     Specifically, 7777 East Linden Lane, Parma, Ohio 44130, permanent parcel
number 457-18-068 (referred to in this opinion as the “Property”).

      2
      Both in her individual capacity and in her capacity as “Co-Trustee” of the
Sheridan      Family        Trust       dated       August        1,       2002.

      3
          Eric Lundberg and his wife Ericka Lundberg are also parties in this case.

      4
           Referred   to   in   this   opinion   as   the   “Equity   Trust   Mortgage.”
Trust Company Custodian FBO Eric Lundberg IRA (the “Note”) in the amount of

$204,000.00, plus interest and penalties. The counterclaim also advanced claims for

unjust enrichment and fraud against both Kevin and Christine Sheridan, which claims are

not at issue in this appeal.

       {¶3} In July 2009, Christine Sheridan, individually and as Co-Trustee, filed an

amended complaint. In response, Eric Lundberg filed a counterclaim and cross-claims

for foreclosure, unjust enrichment, and fraud.

       {¶4} In December 2009, Eric Lundberg filed a Third Party Complaint against Land

Title Group, LLC asserting claims of negligence and fraud related to its alleged failure to

provide proper proof of title in preparation of the Note and Equity Trust Mortgage. In

responding, Land Title asserted a counterclaim against Christine Sheridan and Kevin

Sheridan for indemnification.

       {¶5} On March 22, 2010, Christine Sheridan filed various motions, including one

for default judgment against Equity Trust and another for judgment on the pleadings or

for summary judgment.

       {¶6} Defendants-appellants Eric and Ericka Lundberg appeal various interlocutory

rulings of the trial court as does plaintiff-appellee-cross-appellant, Christine Sheridan,

which the trial court certified as being final, with no just reason for delay.5 For the

reasons that follow, we affirm in part and reverse in part.


       5
       The cross-appeal filed by Michael A. Robusto and UAW-GM Legal Services
Plan has been dismissed by voluntary agreement among Christine Sheridan,
individually and as Trustee, Michael Robusto, and the UAW-GM Legal Services
Plan. Accordingly, the Robusto/UAW cross-appeal is moot as these parties agree
       {¶7} There are multiple parties and multiple claims in this case, some of which are

still pending before the trial court. Accordingly, our jurisdiction is limited to deciding

only those issues that involve final, appealable orders. The only orders that the trial court

has certified as being final, with “no just reason for delay,” pertain to its disposition of the

parties’ summary judgment motions.

       A. Lundberg’s Appeal.

       {¶8} Lundberg identifies four assignments of error for review as follows:

              1.      The trial court erred in granting the subject motion for
                      summary judgment of Land Title Group, LLC.

              2.      The trial court erred in granting the subject motion for
                      summary judgment of Michael A. Robusto and UAW-GM
                      Legal Services Plan.

              3.      The trial court erred in finding that “Lundberg acted [sic] an
                      agent for Equity Trust with apparent authority to execute the
                      release.”

              4.      The trial court erred in finding that “the Lundberg lien was
                      validly released, and the mortgage on the property recorded as
                      instrument number 200702201238 is cancelled.”

       {¶9} However, the substance of Lundberg’s brief presents the following arguments

in this order: (A) Lundberg did not have apparent authority to release the Equity Trust



that the trial court properly awarded Robusto/UAW summary judgment on
Christine Sheridan’s legal malpractice claim against them because it was barred by
expiration of the statute of limitations. Correspondingly, Christine Sheridan’s
cross-appeal, which challenged that particular ruling, is also moot. Christine
Sheridan, however, reserved her right to challenge another aspect of the trial
court’s order, specifically with reference to the validity of certain documents
purporting to release a mortgage lien, as is addressed more fully in the body of the
opinion.
Mortgage on the Property; (B) the alleged release lacked the necessary consideration

required to make it a valid contract; and (C) Land Title should be found liable for its acts

or omissions relating to an alleged fraudulent notarization on the Equity Trust Mortgage.

       B. Christine Sheridan’s Cross-Appeal.

       {¶10} Christine Sheridan’s cross-appeal identifies six assignments of error;

however, assignment of error five was rendered moot by the voluntary agreement

between      her     and      the     Robusto/UAW-GM           Legal     Services      Plan

Defendants/Appellees/Cross-Appellants. Her remaining assignments of error allege:

       1.     The trial court erred in its journal entry of May 25, 2010 in denying
              Christine E. Sheridan, Co-Trustee of the Sheridan Family Trust and
              Christine E. Sheridan a.k.a. Christine Sheridan’s Motion for Judgment on
              the Pleadings or for Summary Judgment.

       2.     The trial court erred in its journal entry of May 25, 2010 granting Eric
              Lundberg and Ericka Lundberg [sic] Motion for Summary Judgment.

       3.     The trial court erred in its journal entry of August 24, 2011 denying
              Christine E. Sheridan, Co-Trustee of the Sheridan Family Trust and
              Christine E. Sheridan a.k.a. Christine Sheridan’s Motion for
              Reconsideration of Summary Judgment.

       4.     The trial court erred in its journal entry of August 24, 2011 in granting the
              Motion of Land Title Group, LLC to Strike the Affidavits of Christine E.
              Sheridan a.k.a. Christine Sheridan, including the affidavit attached in
              support of Christine E. Sheridan, Co-Trustee of the Sheridan Family Trust
              and Christine E. Sheridan a.k.a. Christine Sheridan’s Brief in Opposition to
              Land Title Group, LLC’s Motion for Summary Judgment, along with the
              associated portions of Christine E. Sheridan, Co-Trustee of the Sheridan
              Family Trust and Christine E. Sheridan a.k.a. Christine Sheridan’s Briefs
              relying upon these affidavits and/or portions thereof.

       6.     The trial court erred in its journal entry of September 7, 2011 in granting
              Land Title Group, LLC’s Motion for Summary Judgment but excluding that
              portion thereof which held Land Title’s Motion for Summary Judgment on
              its counterclaim for indemnification against Christine Sheridan and Kevin
              Sheridan is moot and that it is not applicable.

       {¶11} The substance of Christine Sheridan’s cross-appeal presents these issues:

(A) whether the trial court correctly found that Lundberg released the lien and Equity

Trust Mortgage on the Property, thereby extinguishing Lundberg’s counterclaims for

foreclosure; (B) whether the trial court erred by finding Kevin Sheridan owns a

half-interest in the Sheridan Property as a matter of law and that the unrecorded trust is

ineffective to defeat Lundberg’s lien as a subsequent bona fide purchaser who took an

interest in the property with no knowledge of the trust instrument; and (C) whether the

trial court erred by striking Christine Sheridan’s entire affidavit and by granting summary

judgment in favor of Land Title on her claims against it.

       C. Kevin Sheridan.

       {¶12} Kevin Sheridan filed a responsive brief to Lundberg’s appellate brief and

maintains that the trial court correctly dismissed Lundberg’s foreclosure claims because,

Kevin asserts, Lundberg released any interest he had in Equity Trust’s Mortgage on the

Sheridan property.    Alternatively, Kevin argues that the release was an enforceable

contract between Lundberg and him.          Specifically, he argues that the release was

supported by valid consideration, that being “maintaining the business relationship

between the parties and avoiding interferences of that relationship by [Christine

Sheridan].”

       {¶13} In addition to responding to Kevin’s contentions, Lundberg asserts that

Kevin is precluded from raising new errors for the first time at the appellate level, which

could have been, but were not, presented to the trial court for disposition.
       D. Land Title.

       {¶14} Land Title responded to both Lundberg’s appeal and Christine Sheridan’s

cross-appeal.

       {¶15} With regard to Lundberg’s appeal, it is Land Title’s position that Lundberg

cannot claim to have the authority/standing in his individual capacity to enforce the

Equity Trust Mortgage and at the same time claim he lacks the authority to release it. In

either case, Land Title submits Lundberg’s claims against it fail based upon the following

rationale: (a) If Lundberg can pursue and enforce the Equity Trust Mortgage, then his

release of it should be upheld as being valid; or (b) If he has no authority to release the

Equity Trust Mortgage and the release is invalid, then he does not have the standing or

authority to foreclose on it. Based on that reasoning, Land Title argues that the claims

against it fail for lack of proximate cause.

       {¶16} With regard to Christine Sheridan, it is Land Title’s position that she failed

to present any admissible evidence in opposition to its motion for summary judgment on

her claims against it.     Land Title argues that the trial court properly exercised its

discretion by striking her entire affidavit that she relied upon in opposition. Land Title

further argues that the trial court properly found that Lundberg’s release was valid and

negated Christine Sheridan’s ability to establish that the alleged fraudulent notarization

proximately caused any injury. Land Title also indicates it was entitled to summary

judgment as a matter of law on its counterclaim for indemnification pursuant to the

“Accommodation Filing Agreement.”

I.     Summary Judgment Standard.
         {¶17} Summary judgment is appropriate where it appears that: (1) there is no

genuine issue as to any material fact; (2) the moving party is entitled to judgment as a

matter of law; and (3) reasonable minds can come to but one conclusion, and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his favor. Harless

v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R.

56(C).

         {¶18} The burden is on the movant to show that no genuine issue of material fact

exists. Id. Conclusory assertions that the nonmovant has no evidence to prove its case

are insufficient; the movant must specifically point to evidence contained within the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc.,

which affirmatively demonstrate that the nonmovant has no evidence to support his

claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264;

Civ.R. 56(C). Unless the nonmovant then sets forth specific facts showing there is a

genuine issue of material fact for trial, summary judgment will be granted to the movant.

         {¶19} An appellate court reviews a trial court’s grant of summary judgment de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d

241.

II.      The Validity of the Lundberg Release.

         {¶20} Lundberg asserts that the trial court erred by finding he had the apparent

authority to release the mortgage held by Equity Trust. The other parties maintain that the
trial court correctly found that the release was valid to cancel the mortgage and, therefore,

it properly entered summary judgment against Lundberg on his foreclosure claim.

       {¶21}     There is no dispute that Equity Trust Company Custodian FBO Eric

Lundberg, IRA was designated as the “lender” on the mortgage note and the “mortgagee”

on the open ended mortgage that was recorded with Cuyahoga County as document

number 200702201238.

       {¶22}     On March 1, 2007, Eric Lundberg signed a release and there is no

designation after his name or signature.        The body of the release provides “the

undersigned, Equity Trust Company Custodian FBO Eric Lundberg IRA #49550 * * *

holder of that certain note * * * instrument number 200702201238.” Although Eric

Lundberg is the account holder on the subject IRA, he is not an agent of Equity Trust.

       {¶23} As the account holder, Eric Lundberg directed Equity Trust, the custodian

of his IRA account, to invest his IRA funds by giving them to Kevin Sheridan in

exchange for the subject mortgage on the Sheridan’s Property. The record contains

evidence that other mortgages previously held by Equity Trust FBO Eric Lundberg were

released by agents of Equity Trust and not Eric Lundberg.

       {¶24}     Eric Lundberg is not the lienholder/mortgagee. Equity Trust has not

entered an appearance in this action. Christine Sheridan attempted to obtain a default

judgment against Equity Trust, which Eric Lundberg opposed arguing he was the real

party in interest.
      {¶25} Although the parties reference it, the trial court’s judgment that denied

Christine Sheridan’s motion for default judgment against Equity Trust is not before us in

this interlocutory appeal of summary judgment orders.6

      {¶26} The proper party to bring a foreclosure action is the party who holds the

interest in the mortgage, i.e., the mortgagee, when the complaint is filed. See Wells

Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶ 24 (holding that a

bank that acquired an interest in the mortgage by an assignment made after the

foreclosure complaint was filed lacked standing to maintain the action). 7 It logically

follows that the only party or entity that can effectively release a mortgage is the

mortgagee or someone acting as their agent.

      In order for a principal to be bound by the acts of his agent under the theory
      of apparent agency, evidence must affirmatively show: (1) that the principal
      held the agent out to the public as possessing sufficient authority to embrace
      the particular act in question, or knowingly permitted him to act as having
      such authority, and (2) that the person dealing with the agent knew of those
      facts and acting in good faith had reason to believe and did believe that the
      6
        Kevin Sheridan asserts that if Lundberg lacked authority to release the
mortgage, then he also lacked standing to pursue foreclosure claims in his personal
capacity. That issue was not raised or addressed by the trial court in the summary
judgment proceedings that are before us on review. We are mindful that claims
remain pending before the trial court and that this matter has not been entirely
resolved despite this appeal. Given the procedural posture of this matter, we find
it would be improvident to consider an error that could have been addressed and
decided by the trial court in the orders being appealed but was not raised by the
complaining party at that time. See State v. Glaros, 170 Ohio St. 471, 166 N.E.2d
379 (1966).
      7
       The Ohio Supreme Court has certified a conflict between Jordan and other
Ohio appellate court decisions on this issue in Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 129 Ohio St. 3d 1487, 2011-Ohio-5129, 954 N.E.2d 661, which has
not been decided. In the meantime, we continue to adhere to the precedent of
Jordan                     in                    this                   district.
       agent possessed the necessary authority.

Master Consol. Corp. v. BancOhio Natl. Bank, 61 Ohio St.3d 570, 575 N.E.2d 817,

syllabus (1991).

       {¶27} Christine Sheridan argues that because Equity Trust is a passive custodian

of a self-directed IRA for Lundberg’s benefit, Eric Lundberg must be deemed to have

apparent authority to release the mortgage (that was obtained using his IRA funds) in his

individual capacity.   While this argument makes logical sense, it glosses over the

formalities of contract law. It cannot be ignored that the mortgage holder is Equity

Trust, a distinct entity.   By the clear terms of the contractual arrangement between

Lundberg and Equity Trust, Lundberg only has the authority to direct Equity Trust as to

investment directions concerning his IRA account. There has been no evidence offered

that Eric Lundberg, acting in his individual capacity, could unilaterally invest or release

liens secured from his IRA account without any involvement or knowledge of Equity

Trust. There is no evidence presented that Equity Trust, the principal and holder of the

mortgage, had any involvement whatsoever in the release of the subject mortgage or

designated anyone to act as its agent in releasing it.       Further, there are no written

instructions from Lundberg to Equity Trust directing it to release the mortgage. Without

evidence to support the first element necessary to establish the existence of apparent

authority, the second element cannot be met.

       {¶28} Additionally, Lundberg maintains the release is invalid because there was no

consideration given for it. “It is axiomatic that courts, as a general rule, will not inquire

into the adequacy of consideration once consideration is said to exist.”          Rogers v.
Runfola & Assoc., Inc., 57 Ohio St.3d 5, 565 N.E.2d 540 (1990), citing Judy v.

Louderman, 48 Ohio St. 562, 29 N.E. 181 (1891). However, the existence of some

consideration is an essential element of establishing a valid contract. Williams v. Ormsby,

131 Ohio St. 3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14 (holding “that merely moving

into a home with another while engaging in a romantic relationship is not consideration

for the formation of a contract.”); see also, Gaudio v. Harrington, 8th Dist. No. 43814,

1982 LEXIS 13512 (July 29, 1982).

       {¶29} No one disputes that Kevin Sheridan received money from Eric Lundberg’s

IRA account and that Kevin executed the mortgage in exchange for it. There is evidence

in the record, including Kevin Sheridan’s testimony, that he never paid off the mortgage;

nor did he provide anything else of value in exchange for a release of the mortgage lien

except perhaps the possibility of an ongoing business relationship. On appeal, Kevin

Sheridan maintains that the consideration consisted of maintaining a business relationship

and avoiding interference of that relationship by Christine Sheridan. Kevin Sheridan

testified that he and Lundberg were trying to work something out. He also testified that

before they could, Christine Sheridan filed the quiet title action, which caused Eric to file

his claims in an effort to protect his interests. Eric Lundberg denies that he received any

consideration. There is just not enough evidence in this record to establish as a matter of

law that there was consideration exchanged for the release.

       {¶30} Based on this record, there are genuine issues of material fact as to the

validity of the release for the reasons stated. Summary judgment on Lundberg’s claims

for foreclosure should not have been granted on the basis that the release was valid.
II. The Accommodation Filing by Land Title.

      {¶31}    Claims were advanced against Land Title asserting that their agent

fraudulently or negligently notarized the Equity Trust Mortgage. Specifically, Christine

Sheridan claims she never signed the Equity Trust Mortgage, nor gave Kevin permission

to do so on her behalf. Kevin Sheridan admits that he signed her name but alleges to

have done so, as he did on numerous other occasions, with her express permission.

Christine Sheridan’s testimony is inconsistent in some respects but she consistently

testified that she signed some documents in this record but not others. In any case, it is

clearly established that the Sheridans operated a real estate investment business that

required them to sign a number of legal documents.           They developed a business

relationship with Land Title and the company’s agents were familiar with the couple.

      {¶32} Christine Sheridan eventually turned the operation of the real estate business

over to Kevin Sheridan entirely because she no longer wanted to have anything to do with

it. The record contains a limited power of attorney from Christine Sheridan authorizing

Kevin to act as her attorney in fact with regard to real estate matters, dated January 1,

2007.8 Land Title’s representative testified that she did not recall relying on the limited

power of attorney and had witnessed Christine’s signature on the subject mortgage.

      {¶33} Before granting summary judgment in Land Title’s favor on Christine

Sheridan’s claims against it, the trial court granted Land Title’s motion to strike her


      8
        Christine initially testified that she did sign the limited power of attorney.
At a later deposition, Christine changed her testimony and proposed her theory that
someone       had      “grafted”      her     signature      on     the    document.
affidavit that was attached to her brief in opposition and the portions of her brief that

relied upon it. Christine asserts, as part of her appeal, that the trial court erred by striking

the entire affidavit when it should have only stricken parts of it.

       {¶34} We review the court’s decision to strike Christine’s affidavit by applying

the abuse of discretion standard. Cleveland Clinic Found. v. Commerce Group Benefits,

Inc., 8th Dist. No. 79907, 2002-Ohio-1414.

       {¶35} “[S]tatements contained in affidavits must be based on personal knowledge

and cannot be legal conclusions.” Brannon v. Rinzler, 77 Ohio App.3d 749, 756, 603

N.E.2d 1049 (2d Dist. 1991), citing State v. Licsak, 41 Ohio App.2d 165, 169, 324 N.E.2d

589 (10th Dist. 1974). “Personal knowledge is defined as, ‘knowledge of the truth in

regard to a particular fact or allegation, which is original, and does not depend on

information or hearsay * * *.’” Gottlieb & Sons v. Hanover Ins. Co., 8th Dist. No.

64559, 1994 Ohio LEXIS 1682 (Apr. 21, 1994), quoting Brannon, 77 Ohio App.3d at 756

(other citations omitted).

       {¶36} Christine’s affidavit contains both legal conclusions and averments that are

not based on her personal knowledge. Therefore, the trial court did not err by striking

those portions. Even if the remaining portions are considered, Land Title was still

entitled to summary judgment in its favor.

       {¶37}    There is an undated document in the record from Land Title with

signatures of both Christine and Kevin Sheridan acknowledging that Land Title was

performing an “accommodation filing ” and no other service with regard to filing the

mortgage deed and, whereby, Kevin and Christine agreed to defend and indemnify Land
Title regarding any claims concerning the mortgage deed. There is no dispute that Kevin

Sheridan executed the mortgage that he personally delivered to Land Title. Further, no

one has asserted that Land Title improperly notarized his signature. Consequently, there

is no factual dispute concerning Kevin’s assumption of liability and agreement to

indemnify Land Title for any irregularities concerning the mortgage deed, including

whether he had Christine’s permission to sign her name on it.

       {¶38} There are questions of fact concerning the notarization of Christine’s

signature; however, the trial court correctly entered judgment in favor of Land Title on

the claims against it because there is no factual dispute that Kevin agreed to indemnify

Land Title from any claims related to the mortgage deed.

III.   Title to the Subject Property.

       {¶39} Christine Sheridan asserts that Sheridan Family Trust was the sole owner

of the Property at the time Kevin Sheridan executed the mortgage deed. The trial court,

however, found that Kevin Sheridan owned an individual half-interest as a matter of law.

       {¶40}   The plain language of the quitclaim deed transferred the Property to

“Kevin M. Sheridan and Christine E. Sheridan Trustee of the Sheridan Family Trust dated

August 1, 2002.” The quitclaim deed was recorded but the Trust was not.9

       {¶41} Christine asserts that notwithstanding the language of the quitclaim deed,

the record evidence establishes as a matter of law that she and Kevin intended to transfer

all of their interest in the Property into the Sheridan Family Trust. Kevin Sheridan’s



       Third parties who reviewed the quitclaim deed had no notice of the Trust
       9


terms that defined the co-Trustees as “Trustee” because the Trust was not filed.
testimony, considered as a whole, does not definitively concede this point. His testimony

establishes that he engaged in many transactions without fully comprehending or

understanding what he was doing, including his testimony concerning the execution of the

couple’s estate planning documents. Further, Christine Sheridan submitted into evidence

her expert witness’s opinion that Kevin M. Sheridan received an individual interest in the

real estate property because the quitclaim deed did not indicate that he is a Trustee. Her

expert opined that the percentage of Kevin’s individual interest is a question of fact.

Accordingly, the trial court did not err by finding that Kevin M. Sheridan holds at least

legal title to the Property in his individual capacity.

       {¶42} Where a deed is silent, there is a rebuttable presumption that the parties

took equal interests in the property. Bryan v. Looker, 94 Ohio App.3d 228, 231, 640

N.E.2d 590 (3d Dist.1994). Because there is a genuine issue of material fact as to

whether the parties intended for Kevin M. Sheridan to retain any individual interest in the

Property, the percentage of his ownership interest remains a question of fact. Christine

Sheridan can present evidence to rebut the presumption of his percentage of ownership

interest in the Property to the trier of fact.

       {¶43}       For the foregoing reasons, the trial court’s judgment dismissing

Lundberg’s claims based on its finding that the release was valid and its finding that

Kevin Sheridan owned a half-interest in the Property as a matter of law are reversed. The

judgments are affirmed in all other respects. This matter is remanded to the trial court for

further proceedings.
      It is ordered that appellees and appellants split the costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Common

Pleas Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
