[Cite as Smith v. Warner,
2021-Ohio-4351.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DAVID SMITH C.A. No. 20CA011653
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROY WARNER, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 18 CV 196576
DECISION AND JOURNAL ENTRY
Dated: December 13, 2021
HENSAL, Presiding Judge.
{¶1} David Smith appeals a judgment of the Lorain County Court of Common Pleas
that granted summary judgment to Wells Fargo Bank, N.A. on his declaratory judgment and
quiet title action. For the following reasons, this Court grants Wells Fargo’s motion to dismiss
and dismisses the appeal as moot.
I.
{¶2} The husband of Mr. Smith’s stepdaughter stole $50,000 from Mr. Smith and used
it as the down payment for a house, financing the remainder with a bank loan. He has since been
convicted for the theft and ordered to pay restitution to Mr. Smith. In the meantime, Wells Fargo
obtained the mortgage on the property from the bank that originated the loan.
{¶3} Mr. Smith filed a complaint for declaratory judgment and to quiet title against the
husband of his stepdaughter and Wells Fargo. Following discovery, Wells Fargo moved for
summary judgment, arguing that Mr. Smith could not obtain the relief he requested because he
2
did not have title to the property at the time he filed his complaint. The trial court granted Wells
Fargo’s motion, concluding that Mr. Smith had not presented any evidence that he had an
interest in the property at the time he filed his complaint. Because Mr. Smith did not have an
interest in the property, the court also concluded that there was no real controversy between the
parties. Mr. Smith has appealed, assigning five errors.
II.
{¶4} As a preliminary matter, Wells Fargo has moved to dismiss Mr. Smith’s appeal,
arguing it is moot. According to Wells Fargo, after the trial court granted summary judgment to
it, Mr. Smith obtained title to the property. He subsequently sold the property, however, to third
parties. According to Wells Fargo, the proceeds of the sale have been distributed, the loan that
was taken out by the husband of Mr. Smith’s step-daughter was satisfied with those proceeds,
and it has discharged the mortgage that was encumbering the property. Wells Fargo argues the
case is moot, therefore, because Mr. Smith no longer has any interest or expectancy in the
property and it also no longer has any connection with the property.
{¶5} Mr. Smith argues that the appeal is not moot because lien priority has never been
established. According to Mr. Smith, the $50,000 that was stolen from him and used for a down
payment should have been paid from the sale proceeds before the loan on the property. Mr.
Smith also argues that, once it is established that he should have been paid first, he may recover
any over payments from Wells Fargo, which was also the holder of the note that was satisfied.
{¶6} “Ohio courts have long exercised judicial restraint in cases which are not actual
controversies.” Tschantz v. Ferguson, 57 Ohio St.3d 131, 133 (1991). “No actual controversy
exists where a case has been rendered moot by an outside event.”
Id. “It is not the duty of the
court to answer moot questions, and when, pending proceedings in error in this court, an event
3
occurs without the fault of either party, which renders it impossible for the court to grant any
relief, it will dismiss the petition in error.” Id., quoting Miner v. Witt,
82 Ohio St. 237 (1910),
syllabus. “Thus, an action must be dismissed as moot unless it appears that a live controversy
exists.” Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-
1333, ¶ 6.
{¶7} In his complaint, Mr. Smith alleged that he had filed an affidavit of title against
the property that created a lien in his favor. He also alleged that his liens and/or claims against
the property superseded all other liens on it. He prayed for a judgment “declaring that his
liens/claims upon the property … supersede any and all liens/claims including those held by
any mortgagee ….” He also prayed that “judgment shall issue quieting title and declaring
that the proceeds of any sale of the property … shall be first applied [to] satisfy any judgment
[Mr.] Smith obtains against [Mr.] Wagner ….” Thus, Mr. Smith requested three things in
his complaint: a declaration that his liens have priority, quiet title, and a declaration regarding
the proceeds of any sale of the property.
{¶8} The trial court granted summary judgment to Wells Fargo in June 2020.
According to the documents that Wells Fargo has attached to its motion to dismiss and its
supplement to its motion to dismiss, in December 2020 the common pleas court ordered the
property to be transferred to Mr. Smith free of all encumbrances except for Wells Fargo’s
mortgage. In May 2021, Mr. Smith granted the property in fee simple to third parties. Wells
Fargo also submitted a copy of the residential purchase agreement between Mr. Smith and the
third parties, a copy of the closing documents that showed how the proceeds of the sale were
going to be distributed, and a copy of its “Mortgage Release Satisfaction and Discharge” that
cancelled and released its mortgage over the property.
4
{¶9} The documents submitted by Wells Fargo establish that Mr. Smith has conveyed
any interest he had in the property to third parties. They also establish that Wells Fargo no
longer has any claim over the property. They further establish that any proceeds of Mr. Smith’s
sale of the property have been distributed as set out in the closing documents of that transaction.
{¶10} Upon review of the record, we conclude that Mr. Smith’s request for a declaration
addressing the priority of his liens/claims to the property is moot because he has conveyed all of
his rights or interests in the property to others. Mr. Smith’s request for quiet title is moot
because the common pleas court quieted title to the property in favor of Mr. Smith in the
criminal action of his stepdaughter’s husband. Although the court preserved Wells Fargo’s
mortgage interest, Wells Fargo has since released the mortgage. We further conclude that Mr.
Smith’s request for a declaration regarding the proceeds of any sale of the property is moot
because the property has already been sold and the proceeds of the sale have been distributed.
Mr. Smith argues that the common pleas court could still determine whether Wells Fargo’s
mortgage should have had priority over his interest in the property and that he could recover any
overpayments to Wells Fargo if he prevails. Such relief, however, is beyond the scope of Mr.
Smith’s complaint. We also note that Mr. Smith facilitated and agreed to the sale of the property
to third parties even though the priority of Wells Fargo’s lien was not settled.
{¶11} Mr. Smith and Wells Fargo no longer have any interest in the property purchased
with assets that were stolen from Mr. Smith. In addition, the proceeds of the sale of the property
to a third party have been distributed. We, therefore, conclude that there is no live controversy
between the parties and that the appeal must be dismissed as moot.
5
III.
{¶12} A live controversy does not exist between the parties. Wells Fargo’s motion to
dismiss is granted. Mr. Smith’s appeal is dismissed as moot.
Motion to dismiss granted
and appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.
DAVID VAN SLYKE, Attorney at Law, for Appellee.
