[Cite as Lomelino v. Lomelino, 2020-Ohio-1645.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 DAVID LOMELINO, EXECUTOR OF                      :
 THE ESTATE OF STANLEY R.                         :
 LOMELINO, DECEASED                               :   Appellate Case No. 28530
                                                  :
         Plaintiff-Appellant                      :   Trial Court Case No. 2018-CV-1646
                                                  :
 v.                                               :   (Civil Appeal from
                                                  :   Common Pleas Court)
 CHRISTINE LOMELINO, et al.                       :
                                                  :
         Defendants-Appellees


                                             ...........

                                             OPINION

                            Rendered on the 24th day of April, 2020.

                                             ...........

RICHARD A. BOUCHER, Atty. Reg. No. 0033614 and JULIA C. KOLBER, Atty. Reg. No.
0078855, 12 West Monument Avenue, Suite 200, Dayton, Ohio 45402
     Attorneys for Plaintiff-Appellant

DAVID D. BRANNON, Atty. Reg. No. 0079755, 130 West Second Street, Suite 900,
Dayton, Ohio 45402
      Attorney for Defendants-Appellees

                                            .............

HALL, J.
                                                                                           -2-




         {¶ 1} Plaintiff-Appellant, David Lomelino, executor of the estate of Stanley R.

Lomelino, appeals from a trial court judgment granting summary judgment for the

Defendant-Appellees, Christine Lomelino and Rachel Lomelino, on claims to quiet title

and for fraud and misrepresentation with regard to the transfer of a property owned by

Stanley.1 Appellant challenges only the trial court’s determination of the quiet title action.

Finding no error, we affirm.

                               I. Facts and Procedural History

         {¶ 2} In 2015, Stanley Lomelino was adjudicated a disabled adult by a court in

Illinois, where, it appears, all the parties were living. Stanley’s son David Lomelino and

David’s wife, Christine Lomelino, were named co-guardians of Stanley’s person and

estate. Later that year, Stanley, Christine, and Christine and David’s daughter Rachel

moved to Dayton, Ohio, to a house titled in Stanley’s and Christine’s names. David stayed

behind in Illinois.

         {¶ 3} In February 2016, the Ohio house was transferred into Stanley’s name alone.

Shortly after, Stanley met with an estate-planning attorney and told the attorney that,

when he died, he wanted the house to go to Christine and Rachel. The attorney suggested

that Stanley execute a transfer-on-death (TOD) designation affidavit naming his daughter-

in-law and granddaughter as beneficiaries. Stanley agreed, and the attorney drafted an

affidavit. Stanley executed it, and the affidavit was notarized. On March 29, 2016, the

TOD designation affidavit was recorded in Ohio with the Montgomery County Recorder.

Stanley did all of this without telling Christine or Rachel.


1
    Because the parties share a last name, we refer to them by their first names.
                                                                                            -3-


       {¶ 4} In December 2016, the Illinois court replaced David and Christine as co-

guardians of Stanley’s estate with an Illinois attorney, Aaron Bellm. (David and Christine

had filed for divorce earlier in the year. They remained co-guardians of Stanley’s person.)

In its order, the Illinois court stated, “Estate planning documents, including a will and trust

entered into during the guardianship, were executed without legal authority. The Guardian

of the Estate Bellm is authorized to take steps to invalidate and void all such estate

planning documents as soon as possible.” Wasting no time, Bellm almost immediately

executed and filed a document in the guardianship purporting to “revoke all prior wills,

codicils, trusts, and any other estate planning documents executed after July 29, 2015.”

       {¶ 5} Two months later, on February 24, 2017, Stanley, still an Ohio resident, died.

Rachel, having learned of the TOD designation affidavit, executed an “Affidavit of Transfer

on Death” attesting to Stanley’s death for the purpose of showing that she and Christine

were now the owners of the Ohio house. The affidavit was recorded on April 7, 2017, in

Montgomery County, Ohio. When Bellm learned of this, he executed his own affidavit

stating that the December 2016 Illinois revocation document had revoked Stanley’s TOD

designation affidavit. Bellm recorded his affidavit on June 9, 2017, in the Montgomery

County recorder’s office.

       {¶ 6} David Lomelino was appointed executor of Stanley’s estate by the

Montgomery County Probate Court. On April 13, 2018, David filed an action in the

Montgomery County Court of Common Pleas against Christine and Rachel to quiet title

to Stanley’s house. The complaint was captioned in the name of David as executor of the

estate, but it also alleged that “Plaintiff is the sole owner of the Real Estate,” making the

allegations unclear as to whether the estate or David was the designated plaintiff.
                                                                                              -4-


However, the appellant’s brief represents “[t]he Executor filed a Complaint against the

Defendants-Appellees.” (Emphasis added). The complaint further alleged that the

defendants claimed an interest in the property through a revoked TOD designation

affidavit, leaving them with no right, claim, or interest in the property. It also claimed fraud,

deceit, concealment, and/or misrepresentation. The complaint alleged that Christine and

Rachel knew that Stanley had been adjudicated a disabled adult and that they got him to

execute the TOD designation affidavit through “acts and omissions of false representation

and concealment.” According to the complaint, these acts and omissions were made with

the intent to mislead the county recorder and damaged the plaintiff.

       {¶ 7} Christine and Rachel moved for summary judgment, and David filed a cross-

motion for summary judgment. On August 20, 2019, the trial court granted Christine and

Rachel’s motion and denied David’s motion. The court concluded that David lacked

standing to bring the quiet-title action because he failed to show that he satisfied the

statutory requirements in R.C. 5303.01. The court found no evidence that David had

either of the statutory requirements: that he had possession of the house or had a

remainder or reversionary interest in it.

       {¶ 8} The trial court also concluded that David’s fraud and misrepresentation

claims failed. As an initial matter, the court acknowledged that there was a conflict-of-law

issue as to whether Illinois or Ohio law governed the TOD designation affidavit. The court

found that Ohio has a strong interest in the TOD designation affidavit, noting that Ohio

statutory law comprehensively addresses the requirements for a valid transfer on death.

The court further found that Ohio’s interest in upholding a transfer on death of Ohio real

property outweighed Illinois’s interest that its guardianship laws be enforced. Accordingly,
                                                                                        -5-


the court concluded that Ohio law should apply.

       {¶ 9} The trial court also concluded that, under Ohio law, the TOD designation

affidavit had not been vacated or voided by Bellm’s revocation document, pointing out

that the revocation was not final and determinative of the TOD affidavit, was not a court

judgment, and did not mention TOD designation affidavits. The court also concluded that

Bellm’s later recording of the revocation document in Montgomery County had not voided

or vacated the TOD designation affidavit either, because under Ohio law, a TOD

revocation must be recorded before death to be effective. See R.C. 5302.23(B)(5).

       {¶ 10} Lastly, the trial court concluded that the Ohio TOD designation affidavit was

valid. The court found that Stanley had the requisite mental capacity to execute the

affidavit, noting that all the evidence showed that, when Stanley executed the affidavit,

he was competent and lucid and knew what he was doing. Furthermore, the court found

that neither Christine nor Rachel knew anything about the affidavit beforehand. The court

found that the undisputed evidence showed that neither defendant knew at the time that

Stanley intended to or did execute the affidavit giving them the property. Indeed, each

signed an affidavit stating that she was ignorant of Stanley’s intentions. The court also

concluded that there was no allegation or evidence that the defendants had a duty to

disclose the Illinois guardianship to the county recorder. In sum, the court found no

evidence that the defendants participated in the preparation of the affidavit. Instead, the

evidence affirmatively showed that they had no role.

       {¶ 11} David, as executor, appeals.

                                       II. Analysis

       {¶ 12} The sole assignment of error alleges that the trial court erred by granting
                                                                                             -6-


the defendants’ motion for summary judgment and by overruling David’s motion for

summary judgment. The only challenge is to the trial court’s conclusion that David has no

standing to bring the quiet-title action.

          {¶ 13} “It is recognized in Ohio that actions to quiet title are permitted exclusively

pursuant to statute.” Holstein v. Crescent Communities, Inc., 10th Dist. Franklin No.

02AP-1241, 2003-Ohio-4760, ¶ 26, citing R.C. 5303.01; see also Ochsenbine v. Cadiz,

166 Ohio App.3d 719, 2005-Ohio-6781, 853 N.E.2d 314, ¶ 11 (7th Dist.) (“An action to

quiet title is a statutory cause of action under R.C. 5303.01.”). R.C. 5303.01 pertinently

states:

          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.

          {¶ 14} This statutory language is the same language that years ago was in Revised

Statute 5779. Because the language of R.C. 5303.01 is the same as it was in the earlier

statute, “it is generally recognized in Ohio that the Ohio Supreme Court’s interpretation of

that language also remains consistent.” Holstein at ¶ 28, citing Chef Italiano Corp. v. Kent

State Univ., 11th Dist. Portage No. 91-P-2308, 1992 WL 192005 (Feb. 21, 1992); Paden

v. Miller, 5th Dist. Guernsey No. 00CA29, 2001 WL 1782890 (Feb. 8, 2001). In Raymond

v. Toledo, 57 Ohio St. 271, 48 N.E. 1093 (1897), paragraph seven of the syllabus, the
                                                                                              -7-


Ohio Supreme Court stated that “Section 5779, [Revised Statutes], gives a right of action

to quiet title to one out of possession who claims an estate or interest in remainder or

reversion in real property. It does not give such right to one out of possession who claims

the entire estate.” So to bring an action to quiet title, one must meet the minimum statutory

requirements of “possession of real property” or “an interest in remainder or reversion in

real property.”

       {¶ 15} Here, there is no allegation in the complaint, nor is it anywhere claimed, that

David was in possession of Stanley’s house or that he or the estate had an interest in

remainder or reversion in the house. There was certainly no evidence of either. Therefore,

by law, the quiet-title action here could not be brought by David.

       {¶ 16} David argues that estate executors should be treated differently. He quotes

in support Mitchell v. Bridgeport, 8 Ohio App. 51, 56, 1917 WL 1031 (7th Dist.1917):

“Where a testator has directed his executor to sell the lands for the purpose of carrying

out the provisions of his will, such direction works a conversion of the property and carries

with it the title and possession necessary to enable him to maintain any action which may

be necessary to carry out the provisions of a will, including an action to quiet title.”

       {¶ 17} There are at least two problems with applying Mitchell here. First, the will in

Mitchell “directed [the executor] to sell the real estate of the testatrix and to make deeds

for the same and convey the title thereto to the purchaser.” (Emphasis added.) Mitchell

at 52. But in the present case, Stanley’s will, according to David’s brief (David did not

cause the will to be made part of the record), stated only that the executor had the power

“ ‘[t]o sell at public or private sale, to retain, to lease, to borrow money and for that purpose

to mortgage or to pledge all or part of the real or person [sic] property of my estate.’ ”
                                                                                             -8-


Unlike the will in Mitchell, there was no evidence that the will here directed the executor

to sell Stanley’s house, as opposed to granting the executor only a general power to sell

estate property. Second, in Mitchell the property was part of the decedent’s estate. A case

that the Mitchell court relied on “held that where a testator makes no other disposition of

his property except to direct that it shall be sold by his executors and the proceeds paid

to a trustee for the benefit of certain legatees, the right of possession passes with the will

to the executors to enable them to effect the object of the testator.” Id. at 54, citing Elstner

v. Fife, 32 Ohio St. 358, 1877 WL 128 (1877). But in the present case, the property was

transferred outside of the probate estate. A TOD designation affidavit “supersede[s] any

attempted testate or intestate transfer of that real property.” R.C. 5302.22(B)(9). Stanley

made “other disposition” of his house by executing a TOD designation affidavit. The

affidavit, by law, vested title to the house in Christine and Rachel on Stanley’s death. See

R.C. 5302.22(C)(1).

       {¶ 18} David’s quiet title action claim was not that he was actually in possession of

the property or had a remainder or reversionary interest in it. He claimed that he was the

owner who should be in possession. As such, an action to remove the occupants would

be an action for recovery of real property (ejectment) and arguably, or alternatively, would

be brought by David Lomelino individually. R.C. 5303.03 describes a “Petition in action

for land,” where “the plaintiff states in his petition that he has a legal estate therein and is

entitled to the possession thereof, * * * and that the defendant unlawfully keeps him out

of the possession.” Nonetheless, for the reasons stated, a quiet title action is not

supported.

       {¶ 19} In the end, even if there were standing, the quiet-title action would fail on its
                                                                                          -9-


merits, because the trial court also concluded that the TOD designation affidavit was

effective to transfer title of the property to Christine and Rachel. Given the evidence, we

do not believe that the trial court erred in reaching this conclusion. We also do not believe

that the court erred in concluding that, as between Illinois law and Ohio law, Ohio law

should prevail.

       {¶ 20} Under Ohio law, a guardianship ward is not automatically prohibited from

executing a will or otherwise making testamentary dispositions. To be sure there is a

presumption that a person under guardianship lacks testamentary capacity, but that

presumption is rebuttable. Taylor v. Garinger, 30 Ohio App.3d 184, 186, 507 N.E.2d 406

(12th Dist.1986). The degree of proof necessary to rebut this presumption is not high. Id.

at 186-187; it is the same as the relatively low threshold of proof necessary to

demonstrate testamentary capacity. Hutchison v. Kaforey, 2016-Ohio-3541, 67 N.E.3d

121, ¶ 20 (9th Dist.) citing the standard for testamentary capacity in Niemes v. Niemes,

97 Ohio St. 145, 119 N.E. 503 (1917), paragraph four of the syllabus. Here, Christine and

Rachel presented unchallenged evidence of Stanley’s testamentary capacity sufficient to

overcome the presumption of lack of capacity. David limited his challenge to the TOD

designation to one legal issue: whether the Illinois guardianship prohibited Stanley from

having capacity to execute the TOD designation. David did not assert that Stanley

factually lacked testamentary capacity.2

       {¶ 21} Given the trial court’s conclusion that Stanley had the requisite testamentary


2  We recognize that Illinois law is somewhat different than Ohio law. In Illinois, it is not
just a question of whether a ward has testamentary capacity. A ward must apply to the
court for authority “to execute a will or codicil.” Ill.Ann.Stat., Chapter 755 Section 5/11a-
18 (d-5). But to obtain such permission, application would have to have been made to the
Illinois court by an 89-year-old settled as a resident of Ohio.
                                                                                        -10-


capacity and that Ohio law should prevail in this instance upon Stanley’s death, the TOD

designation affidavit vested title to the property in Christine and Rachel. We conclude the

trial court’s decision on these issues was correct.

                                     III. Conclusion

       {¶ 22} There was no evidence that David had possession of or a requisite interest

in the subject property. Consequently, he could not bring a quiet-title action. The

assignment of error is overruled. The trial court’s judgment is affirmed.

                                     .............



TUCKER, P.J. and WELBAUM, J., concur.


Copies sent to:

Richard A. Boucher
Julia C. Kolber
David D. Brannon
Michele Phipps
Hon. Richard Skelton
