[Cite as Fragola v. Graham, 2016-Ohio-8281.]


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

FREDERICK FRAGOLA                                     C.A. No.       27872

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DIANNE L. GRAHAM                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   CV 2014 02 0685

                                DECISION AND JOURNAL ENTRY

Dated: December 21, 2016



        SCHAFER, Judge.

        {¶1}    Plaintiff-Appellant, Frederick Fragola, appeals the judgment of the Summit

County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee,

Dianne Graham, on Fragola’s claims to quiet title and for declaratory judgment, constructive

trust, and equitable partition. For the reasons that follow, we affirm in part, reverse in part, and

remand.

                                                 I.

        {¶2}    This matter relates to a property dispute involving Mr. Fragola and his adopted

sister, Ms. Graham. The subject property was owned by their mother, Monica Fragola, who

lived on the property with Mr. Fragola. Ms. Graham also occasionally lived on the property. In

2000, Ms. Fragola recorded a survivorship deed transferring ownership of the property to her and

Mr. Fragola jointly. In 2002, Mr. Fragola executed a quitclaim deed in favor of Ms. Fragola,
                                                 2


who then executed a transfer on death deed (“TOD deed”) that named herself as the sole owner

and Mr. Fragola as the transfer on death beneficiary (“the 2002 Deed”).

       {¶3}    In 2006, a new TOD deed was recorded that named Ms. Fragola as the sole owner

of the property and Ms. Graham as the transfer on death beneficiary (the “2006 Deed”).

Although Ms. Fragola’s name is listed at the top of the deed as the grantor, her name is not typed

below the signature block for the grantor. Additionally, the section above the grantor’s signature

block does not list the date on which the deed was executed. Instead, the 2006 Deed states,

“Witness hand(s) this ___ day of ___ Year of _____.” Two witnesses signed the 2006 Deed, as

did a notary public. But, the acknowledgment portion of the deed lacked both the date and the

name of the grantor.

       {¶4}    After Ms. Fragola’s death in 2014, Ms. Graham executed an affidavit to transfer

title to the subject property based on the 2006 Deed. Ms. Graham then recorded an affidavit

relating to title executed by the notary who attempted to acknowledge the 2006 Deed. The

notary attested that she was duly-commissioned on the day of the deed’s execution and that she

personally witnessed Ms. Fragola sign the deed on October 24, 2006. Ms. Graham sent Mr.

Fragola a letter ordering him to vacate the subject property, but he refused to comply on the basis

that he held an ownership interest in the property.

       {¶5}    Mr. Fragola filed a quiet title action requesting a declaratory judgment that he has

an interest in the property as the transfer on death beneficiary of the 2002 Deed. He alternatively

asked for the creation of a constructive trust or an equitable partition. The parties filed cross-

motions for summary judgment and the trial court granted Ms. Graham’s motion. The court

reasoned that the 2006 Deed is valid despite any defects in the notary acknowledgment because

there was no indication that there was fraud in its execution or recordation. As a result, the trial
                                                  3


court concluded that Ms. Graham was the owner of the subject property by virtue of the 2006

Deed and Mr. Fragola was not entitled to a declaratory judgment, quiet title relief, or the creation

of a constructive trust or equitable partition.

        {¶6}    Mr. Fragola filed this timely appeal, which presents two assignments of error for

our review. Since both assignments of error implicate similar issues, we elect to address them

together.

                                                  II.

                                       Assignment of Error I

        The trial court erred as a matter of law in determining that the defective
        deed [was] effective to complete a valid transfer.

                                    Assignment of Error II

        The trial court erred as a matter of law in determining that Appellant did not
        have an interest in the property.

        {¶7}    In his assignments of error, Mr. Fragola argues that the trial court erred by finding

that the 2006 Deed was valid and by determining that he lacked any interest in the subject

property.

                                        A. Standard of Review

        {¶8}    We review a trial court’s award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is only appropriate where (1) no

genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law;

and (3) the evidence can only produce a finding that is contrary to the non-moving party. Civ.R.

56(C). Before making such a contrary finding, however, a court must view the evidence “most

strongly in favor” of the non-moving party, id., and resolve all doubts in its favor, Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).
                                                 4


       {¶9}    Summary judgment proceedings create a burden-shifting paradigm. To prevail on

a motion for summary judgment, the movant has the initial burden to identify the portions of the

record demonstrating the lack of a genuine issue of material fact and the movant’s entitlement to

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In satisfying this

initial burden, the movant need not offer affirmative evidence, but it must identify those portions

of the record that support her argument. Id. Once the movant overcomes the initial burden, the

non-moving party is precluded from merely resting upon the allegations contained in the

pleadings to establish a genuine issue of material fact. Civ.R. 56(E).         Instead, it has the

reciprocal burden of responding and setting forth specific facts that demonstrate the existence of

a “genuine triable issue.” State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

               B. Execution and Acknowledgment Requirements for TOD Deeds

       {¶10} Former R.C. 5302.22(A)1 relevantly provides as follows:

       A deed conveying any interest in real property, and in substance following the
       form set forth in this division, when duly executed in accordance with Chapter
       5301. of the Revised Code and recorded in the office of the county recorder,
       creates a present interest as sole owner or as a tenant in common in the grantee
       and creates a transfer on death interest in the beneficiary or beneficiaries. Upon
       the death of the grantee, the deed vests the interest of the decedent in the
       beneficiary or beneficiaries.

(Emphasis added.) The provision further states that “[t]he deed described in this division shall in

substance conform to” the form outlined in the statute, which includes a section for the signature

of the grantor and the date of the deed’s execution.

       {¶11} Former R.C. 5302.22(A) cross-references former R.C. 5301.01(A)’s requirements

that “[a] deed * * * shall be signed by the grantor * * * [and t]he signing shall be acknowledged


       1
         S.B. 124, effective December 28, 2009, amended the Revised Code’s provisions
regarding TOD deeds. As a result, we rely on the provisions in force at the time of the 2006
Deed’s recording.
                                                5


by the grantor * * * before a * * * notary public, who shall certify the acknowledgment and

subscribe the official’s name to the certificate of the acknowledgment.”2 See also Campbell v.

Krupp, 195 Ohio App.3d 573, 2011-Ohio-2694, ¶ 39 (6th Dist.) (“R.C. 5301.01(A) contains four

requirements: (1) that the grantor sign the document, (2) that the grantor acknowledge the

document to the notary public, (3) that the notary public certify the acknowledgment, and (4) that

the notary public subscribe his name to the certificate of acknowledgment.”). R.C. 147.53

governs acknowledgments, Am. Gen. Fin. Servs., Inc. v. VanSickle, 5th Dist. Delaware No.

03CAE02009, 2003-Ohio-4374, ¶ 33, and it requires as follows:

       The person taking an acknowledgment shall certify that:

       (A)    The person acknowledging appeared before him and acknowledged he
       executed the instrument; [and]

       (B)    The person acknowledging was known to the person taking the
       acknowledgment, or that the person taking the acknowledgment had satisfactory
       evidence that the person acknowledging was the person described in and who
       executed the instrument.

                      C. Deeds Are Reviewed for Substantial Compliance

       {¶12} Ohio courts have long applied substantial compliance review when determining

whether a deed is defective as a result of its failure to adhere to statutory execution and

acknowledgment formalities.     E.g. In re Lacy, 483 B.R. 126, 133 (Bankr.S.D.Ohio 2012)

(applying Ohio law) (“It is equally well established that the standard for determining compliance

with the certification requirement is not perfection, but rather substantial compliance.”), citing

Dodd v. Bartholomew, 44 Ohio St. 171 (1886), paragraph one of the syllabus, and Smith’s Lessee

v. Hunt, 13 Ohio 260, 268 (1844). It is particularly critical to apply substantial compliance


       2
          S.B. 134, effective January 17, 2008, amended the provisions of R.C. 5301.01 regarding
execution formalities. As a result, we rely on the former provisions of the statute that were in
effect at the time of the 2006 Deed’s recording.
                                                 6


review when assessing TOD deeds because doing so effectuates former R.C. 5302.23(A)’s

command that “[a]ny deed containing language that shows a clear intent to designate a transfer

on death beneficiary shall be liberally construed to do so.”       Although liberal construction

requires that we construe TOD deeds “in favor of persons to be benefitted, [such] a liberal

construction should not result in the exercise of the legislative power of amendment under the

mask of so-called interpretation.” Adamski v. Bur. of Unemp. Comp., 108 Ohio App. 198, 204

(6th Dist.1959); see also State ex rel. Williams v. Colasurd, 71 Ohio St.3d 642, 644 (1995) (“A

liberal construction directive, however, does not empower us to read into a statute something that

cannot reasonably be implied from the statute’s language.”), citing Szekely v. Young, 174 Ohio

St. 213 (1963), paragraph two of the syllabus.

       {¶13} Although there is no exact definition of the substantial compliance standard, the

Sixth District has previously stated that “‘[w]here an error occurs in the name of a party to a

written instrument, apparent upon its face, and from its contents, susceptible of correction, so as

to identify the party with certainty, such error does not affect the validity of the instrument.’”

Mid-Am. Natl. Bank & Trust co. v. Gymnastics Internatl., Inc., 6 Ohio App.3d 11, 13 (6th

Dist.1982), quoting Dodd at paragraph one of the syllabus. Under this articulation of the

substantial compliance standard, courts have previously determined that the following execution

and acknowledgment defects have no effect on the validity of the subject deeds:

       (1) an erroneous listing of the incorrect middle initial for the grantor, Dodd at paragraph

       two of the syllabus; and

       (2) an erroneous statement in the acknowledgment that the corporate mortgagor itself

       appeared and signed the deed when in actuality the corporation’s officers signed it, Mid-

       Am. Natl. Bank & Trust at 13.
                                                 7


Conversely, Ohio courts and federal bankruptcy courts applying Ohio law have consistently

determined that blank acknowledgment clauses, which lack the grantor’s name, are not in

substantial compliance with the requisite execution formalities and consequently invalidate the

relevant deed. See In re Peed, 403 B.R. 525, 536 (Bnkr.S.D.Ohio 2009) (applying Ohio law)

(determining that blank acknowledgment clauses did not substantially comply with R.C.

5301.01); Smith’s Lessee at syllabus (“A mortgage in which the magistrate’s certificate does not

show by whom the instrument was acknowledged, vests no legal interest in the mortgagee.”);

Fifth Third Bank v. Farrell, 5th Dist. Licking No. 09 CAE 11 0095, 2010-Ohio-4839, ¶ 57 (“We

therefore find, pursuant to Smith’s Lessee, the certificate of acknowledgment in the present case

does not substantially comply with R.C. 5301.01 because it was left blank.”). In line with this

case law, the Sixth District has stated that “[a] close reading of the cases shows that certificates

of acknowledgment substantially comply when they in some way identify the person making the

acknowledgment.” Campbell at ¶ 44; see also Fifth Third Bank at ¶ 54 (“The case law * * *

‘requires identification of the mortgagor within the acknowledgment clause or sufficient

information within the acknowledgment clause so that the person whose signature was

acknowledged can be identified through a review of the remainder of the mortgage.’”), quoting

In re Burns, 435 B.R. 503, 517 (Bnkr.S.D.Ohio 2010) (applying Ohio law).                With these

principles in mind, we turn to a substantial compliance review of the 2006 Deed.

                                   D. The 2006 Deed Is Defective

       {¶14} The 2006 Deed lacks any indication of its date of execution either in the body of

the deed itself or in the acknowledgment clause. Moreover, the acknowledgment clause is

“blank” since it lists neither Ms. Fragola as the grantor nor the date of its acknowledgment. In

light of such significant defects in the execution and acknowledgment of the 2006 Deed, we must
                                                8


determine that this matter is within the ambit of Smith’s Lessee and that the deed is not in

substantial compliance with former R.C. 5301.01(A), former R.C. 5302.22(A), and R.C. 147.53.

Our conclusion on this point is further bolstered when the significant defects in the 2006 Deed

are compared to the relatively minor errors addressed in Dodd and Mid-Am. Natl. Bank & Trust.

       {¶15} On appeal, Ms. Graham attempts to overcome these defects with the notary’s

subsequent affidavit that addressed the omissions in the 2006 Deed. Preliminarily, we note that

the fact that Ms. Graham believed the notary’s affidavit was necessary to complete the blank

sections of the 2006 Deed further demonstrates that it was not substantially compliant with the

statutory requirements. Moreover, we are unable to rely on the affidavit to overcome the

significant defects implicated here. On this point, we find the Fifth District’s reasoning in Fifth

Third Bank to be persuasive. As in this matter, the acknowledgment clause there was left blank

and the grantee attempted to overcome that defect by relying on the notary public’s subsequent

affidavit, which stated that the omissions were inadvertent. The court rejected the grantee’s

argument and reasoned as follows:

       While the doctrine of substantial compliance allows the court to consider the
       totality of the mortgage documents to determine if the acknowledgment was valid,
       including an affidavit from the notary public, the cases cited show that there was
       some information about the mortgagor, albeit incorrect, within the
       acknowledgment clause itself to allow the finding of “substantial compliance.” In
       the present case, there is no such information relating to [the grantor] in the
       acknowledgment clause. It is blank. As such, we find that the affidavit of the
       notary public does not create a genuine issue of material fact so as to abrogate our
       finding that Smith’s Lessee controls the disposition of this matter.

(Footnote omitted.) Fifth Third Bank at ¶ 56. Compare Admr. of Veterans Affairs v. City Loan,

3d Dist. Shelby No. 17-83-12, 1985 WL 9128, * 3 (May 7, 1985) (relying on evidence, including

affidavits, to conclude that acknowledgment clause’s reference to mortgagee instead of

mortgagor was a clerical mistake). Based on these similarities between Fifth Third Bank and this
                                                  9


matter, we must reach the same conclusion and reject Ms. Graham’s argument that the affidavit

of the notary overcomes the defects in the 2006 Deed.

                                  E. The Validity of the 2006 Deed

       {¶16} Our determination that the 2006 Deed is defective under the substantial

compliance standard does not end our inquiry. Ms. Graham argues that even if the 2006 Deed is

defective, it is still valid as between her and Ms. Fragola. In doing so, she relies on the Ohio

Supreme Court’s decision in Citizens Natl. Bank in Zanesville v. Denison, 165 Ohio St. 89

(1956). There, the Court declared as follows:

       The acknowledgment of a deed is required by statute chiefly for the purpose of
       affording proof of the due execution of the deed by the grantor, sufficient to
       authorize the register of deeds to record it.        * * * A deed without
       acknowledgment, or defectively acknowledged, passes the title equally with one
       acknowledged as against the grantor and his heirs[.] * * * Acknowledgment has
       reference, therefore, to the proof of execution, and not to the force, effect, or
       validity of the instrument.

Id. at 94. The Court further stated that “[a] defectively executed conveyance of an interest in

land is valid as between the parties thereto, in the absence of fraud.” Id. at 95.

       {¶17} We agree with Ms. Graham’s contention that Citizens Natl. Bank controls the

resolution of this matter. Although the facts in Citizens Natl. Bank related to a defectively-

executed mortgage deed, this Court, like the Supreme Court of Ohio, has applied Citizens Natl.

Bank in a variety of contexts outside of the area of mortgages, including cases involving the

conveyance of land. See Akron Pregnancy Servs. v. Mayer Invest. Co., 9th Dist. Summit No.

27141, 2014-Ohio-4779, ¶ 12. Nonetheless, our decision that Citizens Natl. Bank applies to the

instant matter does not necessarily lead to the conclusion that Ms. Graham is the only party with

an interest in the property. Assuming the defective 2006 Deed gave Ms. Graham an equitable

interest in the property, legal title would not have passed to her. See Church at Warren v.
                                                10


Natale, 11th Dist. Trumbull No. 96-T-5472, 1997 WL 286098, *2 (May 16, 1997), citing Basil v.

Vincello, 50 Ohio St.3d 185 (1990) (“The [Basil] court concluded that although legal title did not

pass, an equitable interest could pass.”). As such, a question still remains as to what effect Ms.

Graham’s equitable interest would have on the 2002 Deed. From its judgment entry, the trial

court appears to have presumed that the validity of the 2006 Deed as between the parties

required the conclusion that the 2002 Deed was revoked and Mr. Fragola therefore had no

interest whatsoever in the property. However, since the trial court did not take into consideration

that an equitable interest is not equivalent to having legal title, see Basil at 189, we remand the

matter to the trial court for it to consider in the first instance the effect that Ms. Graham’s

equitable interest had, if any, on the 2002 Deed and Mr. Fragola’s interest.

        {¶18} Accordingly, we sustain Mr. Fragola’s assignments of error to the extent that the

trial court erred by determining that he lacked any interest in the subject property without first

considering the effect that Ms. Graham’s equitable interest had on both his interest and the 2002

Deed.

                                                III.

        {¶19} Mr. Fragola’s assignments of error are sustained to the extent discussed within the

body of this opinion. The judgment of the Summit County Court of Common Pleas is affirmed

in part, reversed in part, and this matter is remanded for further proceedings consistent with this

opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.
                                                11


       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 equally to both parties.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JAMES R. RUSSELL, JR., Attorney at Law, for Appellant.

KEITH R. HOFER, Attorney at Law, for Appellee.
