author: JENSEN, P.J.

text:
    AMERICAN FAMILY INSURANCE, Appellee v. James PHILLIPS, et al., Appellants
    No. OT-17-004
    Court of Appeals of Ohio, Sixth District, Ottawa County.
    Decided: November 22, 2017
    Donald P. Wiley and Tonya J. Rogers, North Canton, for appellee.
    David Rodman Cooper, Toledo, for appellants Jim Phillips Excavating, Inc., Jim Phillips and Jake Phillips.
    Peter C. Munger and Marshall A. Kupresanin, Toledo, for appellant Woodville Mutual Insurance Company.
    Andrew C. Stebbins, Cleveland, for appellant Erie Insurance Exchange.
    DECISION AND JUDGMENT
   JENSEN, P.J.

{¶ 1} Defendants-appellants, Woodville Mutual Insurance Company ("Woodville"), Erie Insurance Exchange ("Erie'), Jim Phillips ("Jim"), Jake Phillips ("Jake"), and Jim Phillips Excavating, Inc. (collectively, "the Phillips defendants"), appeal the December 30, 2016 judgment of the Ottawa County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, American Family Insurance Company ("American Family"), and denying summary judgment in favor of Woodville and Erie. For the reasons that follow, we affirm the trial court judgment.

I. Background

{¶ 2} Walter Apling hired Jake Phillips to demolish his barn for $3,000. Jake presented Apling with two methods for accomplishing the demolition. The method Apling selected-the less expensive of the two options-required Jake to dig a pit about 25-30 feet deep, knock down the barn, gather debris from the barn into the pit, and burn the debris. Jake, who worked for his father's company, Jim Phillips Excavating, had performed this type of job approximately ten times.

{¶ 3} Jake began the project on April 3, 2013. He hauled his father's excavator to the property that day and dug the pit. Jake returned around 7:00 the next morning and knocked down the barn. He put the roofing material in the pit and ignited it with a propane torch. Using the excavator, he began gathering debris from the barn to be dumped into the pit. At approximately 7:30 a.m., Jake noticed that the wind had picked up, so he decided to stop working. He allowed the fire to burn out, and about an hour later, when he saw no sign of fire, he left the Apling property.

{¶ 4} On his way home, Jake stopped at NAPA Auto Parts to buy oil for the excavator. While at NAPA, he received a call from a friend who works for the Carroll Township fire department. He told Jake that a fire had been reported at the Apling property. Jake returned to find the barn demolition engulfed in flames. The fire spread to Apling's granary, and then to his home and garage. Experts opined that the fire was caused by Jake's failure to properly extinguish the fire before leaving the Apling property.

{¶ 5} Losses to Apling's real and personal property, and for living expenses incurred for substitute housing, totaled $313,553.55. Apling's insurer, Woodville, compensated him for his losses, and Erie issued payment to Apling's brother, Charles Apling, who resided with him and incurred separately-insured losses of his own. Woodland and Erie pursued claims for indemnification against Jake Phillips, Jake's father, Jim Phillips, and Jake's employer, Jim Phillips Excavating, Inc., in Ottawa County case No. 2013-CV-435H.

{¶ 6} The Phillips defendants sought coverage under Jim's farm/ranch policy maintained with American Family. Jake is an "insured" under that policy. American Family retained counsel for the Phillips defendants and provided a defense in the indemnification action subject to a reservation of rights. It filed the present action for declaratory judgment on June 29, 2015, against the Phillips defendants, Woodville, Erie, and Hanover and Progressive Insurance Companies, which were believed to insure tractors owned by Jim Phillips Excavating, Inc. American Family sought a declaration that it owed no duty to defend or indemnify the Phillips defendants because (1) the Phillips defendants failed to notify American Family of the claim until November 11, 2014, thereby violating the policy's prompt-notice provision; and (2) coverage was precluded under the policy's business-pursuit exclusion.

{¶ 7} A consent judgment was reached in Ottawa County case No. 2013-CV-435H, pursuant to which the Phillips defendants consented to a judgment in favor of Woodville and Erie in the amounts of $209,488.66 and $40,260.34, respectively. Woodville and Erie counterclaimed against American Family in the present case, seeking to require American Family to satisfy the consent judgment.

{¶ 8} Following a period of discovery, American Family, Woodville, and Erie filed cross-motions for summary judgment. The bases for American Family's motion essentially mirrored the allegations in its complaint for declaratory judgment: the Phillips defendants breached the timely notice provision in the policy, and coverage was excluded because Jake was engaged in a business pursuit at the time of the loss.

{¶ 9} In a judgment dated December 30, 2016, the trial court found that American Family was not prejudiced by the Phillips defendants' failure to provide prompt notice of the loss, but it granted summary judgment to American Family based on the business pursuit exclusion contained in the policy. The court denied Woodville and Erie's motions for summary judgment. Woodville, Erie, and the Phillips defendants appealed this judgment and assign the following errors for our review:

FIRST ASSIGNMENT OF ERROR
The Trial Court erred when it misapplied the American Family Business Activity Exclusion given the uncontested evidence which demonstrated the transaction concerned was not a business activity nor was it profit motivated.
SECOND ASSIGNMENT OF ERROR
The Trial Court erred when it denied Woodville Mutual Insurance Company Summary Judgment.
THIRD ASSIGNMENT OF ERROR
The Trial Court erred when it ignored and failed to even address the related request for Summary Judgment filed by Defendants Jim Phillips, Jake Phillips, and Phillips Excavating Company.

II. Standard of Review

{¶ 10} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that 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. , 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 11} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E) ; Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999) ; Needham v. Provident Bank , 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Law and Argument

{¶ 12} Woodville, Erie, and the Phillips defendants all appealed the trial court judgment. Woodville filed an initial brief and a reply brief setting forth arguments in support of its challenge to the trial court judgment; Erie and the Phillips defendants filed "joinders" adopting Woodville's position.

{¶ 13} Appellants contend in their first assignment of error that the trial court misapplied the business-pursuit exclusion. They contend in their second assignment of error that the trial court erred in denying Woodville and Erie's motions for summary judgment. And in their third assignment of error, they contend that the trial court erred in failing to address the Phillips defendants' motion for summary judgment.

A. The "Business Pursuit" Exclusion

{¶ 14} In granting summary judgment in favor of American Family, the trial court concluded that the business-pursuit exclusion of the American Family farm/ranch policy precluded coverage. That exclusion provides:

Business. We will not pay for damages due to bodily injury or property damage arising out of business pursuits of any insured, except:
a. Activities normally considered non-business; or
b. The occasional or part-time business activities of any self-employed insured under 19 years of age.

The policy defines "business" as "[a]ny profit motivated full or part time employment, trade, profession or occupation, and including the use of any part of the premises for such purposes."

{¶ 15} The trial court concluded that Jake's business activity gave rise to the fire, thus coverage was excluded under the American Family policy. Appellants argue that the trial court's decision was wrong because (1) Jake did not perform the barn demolition on behalf of Phillips Excavating business; (2) the barn demolition was not "profit motivated" and was not a business activity of Phillips Excavating; and (3)

Jake's conduct in leaving the property without properly extinguishing the fire was a "non-business" activity.

{¶ 16} Insurance contracts are construed using the same rules as other written contracts. Universal Underwriters Ins. Co. v. Shuff , 67 Ohio St.2d 172, 173, 423 N.E.2d 417 (1981). Where the policy's language is clear and unambiguous, its interpretation is a matter of law and the court may not "resort to construction of that language." Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd. , 64 Ohio St.3d 657, 665, 597 N.E.2d 1096 (1992), citing Karabin v. State Auto. Mut. Ins. Co. , 10 Ohio St.3d 163, 167, 462 N.E.2d 403 (1984). The words and phrases used in the policy must be given their natural and commonly accepted meaning. Id. Ambiguous provisions-particularly provisions purporting to exclude or limit coverage-must be construed strictly against the insurer and liberally in favor of the insured. Westfield Ins. Co. v. Hunter , 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 11. "However, the rule of strict construction does not permit a court to change the obvious intent of a provision just to impose coverage." Hybud Equip. at 665, 597 N.E.2d 1096.

B. Business Pursuit

{¶ 17} American Family claims that for an activity to constitute a "business pursuit," as the phrase is used in the exclusion, two elements must be established: (1) continuity and (2) profit motive. "Continuity" requires " 'a customary engagement or a stated occupation.' " Lenart v. Doversberger , 8th Dist. Cuyahoga Nos. 65372, 65373, 1994 WL 189433, *7 (May 12, 1994), quoting Asbury v. Indiana Union Mut. Ins. Co. , 441 N.E.2d 232, 237 (Ind.App.1982). "Profit motive" requires that the activity be performed as " 'a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.' " Id.

{¶ 18} American Family contends that the barn demolition project satisfies both elements. As to "continuity," it maintains that Jake earns a living by performing the type of work at issue here. While it notes that Phillips Excavating performs this type of work, that Phillips Excavating had completed projects for Apling in the past, and that Jake used his father's excavator for the project, it insists that for purposes of the business pursuit exclusion, it makes no difference whether Jake was acting on behalf of his father's company or whether he was simply acting in his individual capacity.

{¶ 19} As to the "profit motive element," American Family relies on Jake's deposition testimony. It urges that Jake admitted that he took the job with the intent to take money, and Jake's profit motivation is demonstrated by the fact that he and Apling negotiated as to the method and the price for performing the work. American Family insists that in determining whether there was a "profit motive," it is of no matter whether a profit was actually earned.

{¶ 20} Appellants maintain that there is "zero" evidence of continuity and profit motive. They deny that the work was performed on behalf of Phillips Excavating or that Jake undertook the project for profit. Rather, they claim, Jake agreed to perform the work because Apling was a "country neighbor" with whom he had "more not a business relationship than a business relationship." They claim that "there was no evidence or testimony providing Jake Phillips' activity was profit motivated nor did he factor profit into the price." And they remark that the fee for the job was ultimately waived.

{¶ 21} Jake was deposed by Woodville in case No. 13-CV-435H on June 6, 2014. He testified that he has been working for his father's company all his life and is paid weekly at an hourly rate. His younger brother also works for the company, and his mother calculates payroll and prepares tax documents.

{¶ 22} Jake explained that about a week before the fire, Apling contacted him about the barn demolition project. Jake had known Apling for some years because they live in a small town where "you kind of know everybody," but he did not know him well. Apling asked Jake to come over to his property so they could discuss the project.

{¶ 23} Jake went to the property by himself and Apling showed him the area. Apling showed Jake where the barn was and where he wanted him to dig the hole to bury it. This was a job Jake had done many times in the past. The plan was for Jake to dig a hole, take the barn down, burn the barn, and cover the hole with rocks. Jake would provide any necessary equipment or materials. They agreed on a price of $3,000.

{¶ 24} Jake told Jim that he had accepted the work. Jake testified:

Q: Before moving the equipment over there that day, did you tell your dad you had made the arrangements for this job to take place?
A: Yes, I did.
Q: That was with his consent?
A: Yes.

{¶ 25} Jake set the price for the work. While Jim was not consulted about the price, Jake told him the figure that he and Apling agreed upon:

Q: Did [your dad] have any say in what you charged, in what you were being paid because you said Mr. Apling gave you that figure?
A: I gave Mr. Apling the figure.
Q: You told him what it was going to be, is that okay?
A: Yes.
Q: Your dad didn't have any trouble with that?
A: No, he did not.
Q: He was aware of it.
A: Yeah.
Q: Did you involve your dad in pricing the job?
A: No, I did not.

{¶ 26} Jake set a price that would cover the cost of the materials and compensate him for his own labor:

Q: What were you factoring in-how did you come up with [$]3,000?
A: Just on the time I estimated to take.
Q: Which was what?
A: All day. And all day, and then another day to come out with the dozer and grade everything out.
Q: So that was the plan?
A: Yes.
Q: You wanted to allow enough money to be charged to cover the expense associated with that?
A: Yes.
Q: To cover labor, material, equipment, fuel, all the stuff you need, right?
A: Yes.

{¶ 27} Jake was re-deposed in the present case on June 27, 2016. In response to questions by American Family, Jake testified that he planned to get paid for the barn demolition, he took the job "to make money," and he ultimately waived the fee because of the fire:

Q: Were you planning on charging [Apling] money for this job?
A: I was going to.
Q: Okay. And I understand that because of the fire no money ever did change hands, correct?
A: Correct.
Q: But when you entered into this agreement, you were going-you were intending to get paid, correct?
A: Correct.
Q: And what was the amount that you had agreed with Mr. Apling would be the cost for this job.
A: Three or [$]3,500. I don't remember exactly now.
* * *
Q: How long did you expect the job to take from start to finish when you entered into the agreement?
A: Two days.
Q: So about $3,000 to $3,500 for two days of work?
A: Correct.
Q: Would that be about 16 hours total?
A: Somewhere, roughly in there.
Q: Okay. And was the object of the exercise from your point of view to make money?
A: Well, yeah.
Q: Okay. You weren't expecting to lose money on this job?
A: No.
Q: Your hope was to make some sort of profit, correct?
A: Correct.
Q: And because the fire occurred and everything that occurred after that, you never ended up going back to Mr. Aplet-Apling, excuse me, and saying Where's my money?
A: No.

{¶ 28} Woodville cross-examined Jake and tried to tell a different story: one of a neighbor doing a project as a favor to another neighbor with no thought of profiting from the work.

Q: And the idea of these questions about profit, if I understand correctly. You and Mr. Apling talked about an exchange of money for what you were going to do, right?
A: Right.
* * *
Q: So the idea of whether it was, in fact, even gonna be profitable you can't say for sure because the fire happened before everything was done, right?
A: Correct.
Q: So it would not be accurate to refer to this as a for-profit transaction, correct?
A: Correct.
* * *
Q: Now, you knew Mr. Apling probably since you were a boy, right?
A: Yeah.
Q: I mean, he described to me meeting you as a youngster with your dad in prior years. So you've known him for a long, long time?
A: Correct.
Q: And this is sort of an agricultural rural area. And when you say neighbor, it's a country neighbor, right?
A: Correct.
Q: I mean lots of folks fit that definition, right?
A: Correct.
Q: All right. And so the deal you entered into with him was because of your relationship with Mr. Apling over the years, correct?
A: Correct.
Q: It wasn't just a business relationship?
A: No.
Q: In fact, it was more-it was more not a business relationship than a business relationship, right?
A: Correct.

{¶ 29} So despite Jake's acknowledgment that he took the job to make money and factored in compensation for his labor, Woodville tries to characterize the project as one not intended "for profit," but rather to assist a "country neighbor." In support of its position, Woodville also cites an affidavit from Apling indicating that "there was no discussion of the Jake Phillips' work being done as a business transaction [or] of the activity being done as a Phillips Excavating Company project."

{¶ 30} Regardless of whether anyone explicitly called the job a "business transaction," or whether Jake's relationship with Apling motivated him to take the job, appellants cannot avoid application of the business pursuit exclusion because Jake's testimony makes clear that the project was one performed as part of his usual trade, and his desire to earn a profit played some role in his decision to accept the job and in establishing the price.

{¶ 31} Other courts have reached the same conclusion based upon similar facts. For instance, in Lenart , 8th Dist. Cuyahoga Nos. 65372, 65373, 1994 WL 189433, the court examined a similar policy exclusion. There the insured, Craig, was remodeling a bathroom for a friend, Doversberger, who resided in a condominium complex. While Craig was performing work on the bathroom, a fire erupted and spread to the upstairs neighbor's unit. Craig sought coverage under his homeowners' insurance policy for the damages arising from his negligence. The policy included a clause much like the one at issue here excluding from coverage losses arising from "business pursuits."

{¶ 32} Craig maintained that he was not engaged in a business pursuit, but rather was remodeling the bathroom as a gratuitous gift for a friend. He admitted that his primary source of income for the last 14 years was derived from remodeling projects. He gave conflicting testimony about whether he intended to charge Doversberger for the cost of materials, denied discussing payment, but conceded that he never told Doversberger that the work would be performed for free. Doversberger, on the other hand, admitted that he hired Craig to do the work and he expected to pay Craig, but they had not yet determined the price because the scope of the work required had not yet been ascertained.

{¶ 33} The court adopted the two-prong approach for identifying what constitutes a "business pursuit," and discussed at length the "profit motive" element. It recognized several principles: (1) profit motive does not necessarily require that an actual profit be realized; (2) one may engage in a business activity with a profit motive even if actual profit is not the immediate or primary consideration; (3) employment will not be excluded from the classification of business merely because it results in a loss instead of a profit, but livelihood or profit must be at least one of the purposes for which the employment is pursued; (4) a pursuit may nonetheless constitute a business even if it is in addition to an insured's regular and customary occupation; and (5) an isolated activity may be a business pursuit depending on the unique facts of the case. Id. at *5-7.

{¶ 34} The court held that even if Craig demonstrated that he intended to remodel Doversberger's bathroom free of charge-despite the evidence to the contrary-the activity nonetheless constituted a business pursuit.

{¶ 35} We reach the same conclusion here. We find that despite the narrative that Woodville sought to advance when it deposed Jake in 2016, by his own admission, Jake undertook the Apling barn demolition-the type of work he customarily performs to earn a living-with a purpose of making a profit. Erie Ins. Exchange v. Bullock , 2015-Ohio-5406, 55 N.E.3d 460, ¶ 30 (5th Dist.) ("[A]ctual profit need not be an immediate or even primary consideration of a business pursuit. * * * The venture may be a side business or an activity that the insured pursues primarily for purposes other than pecuniary gain."); Watkins v. Brown , 97 Ohio App.3d 160, 165, 646 N.E.2d 485 (2d Dist.1994) (recognizing that "profit" includes gain produced by labor). Whether Jake performed the work on behalf of his employer or whether he did so individually is not relevant. See Bullock at ¶ 30 ; Zurcher v. Jones , 9th Dist. Wayne C.A. NO. 99CA0055, 2000 WL 1751281, *2 (Nov. 29, 2000) (holding that business exclusion applied even where insured was performing a side job apart from the roofing company for which he worked). Nor is it relevant whether he actually made a profit. See State Auto. Mut. Ins. Co. v. Dolosich , 135 Ohio App.3d 601, 608, 735 N.E.2d 38 (8th Dist.1999) (finding that horse farm was a business pursuit even though it generated income of only $500 per month which was used exclusively to pay expenses of maintaining the horses). That Jake testified in 2016, claiming to have undertaken the work because of his acquaintance with Apling, does not undermine our conclusion. See Lenart at *7-9 ; Watkins at 165, 646 N.E.2d 485.

{¶ 36} We find that the trial court properly applied the business pursuit exclusion.

C. Activities Normally Considered Non-business

{¶ 37} Relying on the exception to the business pursuit exclusion-for "activities normally considered non-business"-appellants claim that the barn demolition was not a business pursuit because "failing to extinguish a fire and/or leaving it unattended is not exclusively a business activity." In essence, appellants argue that by performing the barn demolition negligently, it can no longer be deemed a business activity.

{¶ 38} A similar argument was rejected in Titterington v. Portman , 11th Dist. Geauga No. 95-G-1933, 1996 WL 200597, *3 (Mar. 29, 1996). In Titterington, a child was attacked by her babysitter's dog. Coverage under the babysitter's insurance policy was denied under a business-pursuit exclusion similar to the one here. Appellants argued that the dog attack was not related to the business of babysitting, thus the exception to the exclusion should apply. The court held that the "failure to provide a safe location for the children to stay did not remove this incident from the business activity exclusion, as keeping children in a safe place is a part of the business of babysitting." Id. at *3. See also State Farm Fire & Cas. Co. v. Straw, 9th Dist. Medina No. 2849-M, 2000 WL 141077, *4 (Feb. 2, 2000).

{¶ 39} As in Titterington, where keeping the child safe-including safe from the babysitter's dog-was a part of the business of babysitting, properly controlling the fire was a part of the barn demolition business in which Jake was engaged. It was incumbent on Jake to ensure that the fire was contained and properly extinguished, and his failure to do so does not render the activity "non-business."

{¶ 40} Because the barn demolition constituted a business pursuit, and no exception applied to render it otherwise, we find appellants' first assignment of error not well-taken. Moreover, because the trial court correctly concluded that this exclusion applied to bar coverage, it properly denied Woodville and Erie's motions for summary judgment. Thus, we also find appellants' second assignment of error not well-taken.

D. The Phillips Defendants' "Motion"

{¶ 41} In their third assignment of error, appellants contend that the trial court erred in failing to rule on the Phillips defendants' motion for summary judgment. While the Phillips defendants filed a "Reply in Support of Defendant Woodville Insurance Company and Erie Insurance Exchange's Motions for Summary Judgment," they did not file their own motion for summary judgment. We find no error in the trial court's failure to rule on a non-existent motion.

{¶ 42} We find appellants' third assignment of error not well-taken.

IV. Conclusion

{¶ 43} We find that the business pursuit exclusion contained in the American Family insurance policy precluded coverage for the losses sustained as a result of the barn demolition project. No exception to the exclusion applied. We, therefore, find appellants' three assignments of error not well-taken and affirm the December 30, 2016 judgment of the Ottawa County Court of Common Pleas. Appellants are ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    Cynthia S. ISKE, Plaintiff-Appellee, v. Randy G. ISKE, Defendant-Appellant.
    No. 17AP-215
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on November 28, 2017
    On brief: Harry Lewis Co., LPA, and Gregg R. Lewis, Columbus, for appellee. Argued: Gregg R. Lewis.
    On brief: Kokensparger Ryan Legal Group, Steven J. Kokensparger, and Corinne N. Ryan, Columbus, for appellant.
    DECISION
   BRUNNER, J.

{¶ 1} Defendant-appellant, Randy G. Iske, appeals from a February 22, 2017 judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, issuing a decree of divorce and dividing assets of the parties. The parties concede, and we agree, that the trial court erred in considering Randy's Oppenheimer Funds to be both a separate asset and a marital asset. Thus we sustain the second assignment of error. We also agree that the trial court's order that the parties "equalize[ ]" retirement accounts, including Social Security, is ambiguous. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 22.) However, we construe that statement as dictating that Social Security accounts are not to be divided and should only be considered for the purposes of dividing plaintiff-appellee's, Cynthia S. Iske, State Teachers Retirement System ("STRS") pension. Hence we sustain in part and overrule in part Randy's third assignment of error. We find no merit in Randy's remaining two assignments of error and overrule them. Based on our disposition of the assignments of error, we reverse the decree of the trial court in part and direct that the trial court modify its decree to treat Randy's Oppenheimer Funds as a separate asset and enforce its decree in regard to retirement accounts with the understanding that Social Security accounts are not to be divided and may only be considered for the purposes of dividing a public pension. In all other respects, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 20, 2015, Cynthia filed a complaint for divorce against her husband, Randy. (Nov. 20, 2015 Compl.) The parties were able to resolve many of their differences by agreement and stipulation. Nearly a year later, on October 31, 2016, the trial court held a bench trial on unresolved issues. According to stipulations executed immediately prior to trial, the issues to be resolved by trial were the value of a family farm property in Iowa, the relative separate property interests of each party in the marital residence on Kul Circle, and the termination date of the marriage (which would affect the division of bank accounts and retirement accounts).

(Oct. 31, 2016 Pretrial Stip. at 4-5, filed Nov. 1, 2016.)

{¶ 3} Three witnesses testified at the October trial; Cynthia, Randy, and their son, Nicholas Iske. (Tr., filed Apr. 25, 2017.) In addition to the live testimony, the parties submitted the deposition testimony of two stipulated experts on the likely value of the farmland owned jointly by the parties. (Van Zee Dep., filed Oct. 24, 2016; Smith Dep., filed Oct. 28, 2016.) We review the testimony of these witnesses as is relevant to the issues contested in this appeal.

{¶ 4} Cynthia testified first. She testified that she and Randy were married on June 24, 1995. (Tr. at 8.) She moved out of the marital residence on May 8, 2016 and rented an apartment. (Tr. at 12-13.) She testified that moving out and ending the marriage was entirely her decision and that there were no attempts at reconciliation. (Tr. at 17-19, 27.) She admitted that she and her husband had discussed counseling and that each party had offered to engage in counseling at one point in time. (Tr. at 28.) However, the offers took place at different times and, in each instance, when one of them was ready to engage in counseling, the other was not. Id. She testified that she was not seeing anyone else but had stopped socializing with her husband by fall 2015. (Tr. at 17, 19.)

{¶ 5} On the topic of finances, she testified consistent with the pretrial stipulation that she had her own retirement that was funded from her own earnings. (Tr. at 26-27; Pretrial Stip. at 4.) Neither her testimony nor the stipulation expressly indicated whether she could expect to receive Social Security distributions in retirement. She testified that the Iowa farm property deed indicates that she and Randy owned it as joint tenants. (Tr. at 21; see also Smith Dep., Ex. 6, filed Oct. 28, 2016.) In her testimony she agreed that although she owned a house on Maidens Larne Drive prior to the marriage, that Randy paid the mortgage on the property once they moved in together and that they both invested money in the house in the form of renovations. (Tr. at 23-24.) She therefore admitted that the $16,782.60 proceeds from the sale of the Maidens Larne house (which were used to buy their current marital residence on Kul Circle) were marital property. (Tr. at 24-25; Pl. Ex. 3.)

{¶ 6} Randy confirmed that he and Cynthia were married on June 24, 1995. (Tr. at 38.) He testified that he considered his marriage over the day his wife told him it was, at the end of August 2015. (Tr. at 93.) He said that he offered to do counseling with her, but she told him she had already made up her mind that it was over. (Tr. at 93-94.)

{¶ 7} Randy testified that when he and Cynthia bought a house on Kul Circle, he took $22,731.38 from his premarital account with Oppenheimer Funds, and contributed that to the down payment. (Tr. at 42; Def. Ex. C.) He testified that after his wife moved out, he paid off the mortgage on the Kul Circle property. (Tr. at 70-72.) He testified that the money used to pay off the mortgage came entirely from his work earnings. (Tr. at 91.)

{¶ 8} With respect to the Iowa property, Randy explained that his father had owned 320 acres of farmland in Iowa. (Tr. at 49.) His father divided it up into four parcels of approximately 80 acres and gave one parcel to Cynthia and Randy jointly and one parcel apiece to each of Randy's three brothers. (Tr. at 50.) The parties stipulated that if their 80 acres were sold, $30,000 would go to Randy's brother, Michael, because that brother had taken on the responsibility of working the farmland in order to satisfy certain loans originally obtained by Randy's father. (Tr. at 54.) Randy also testified that a sum of money would have to be paid to his mother to pay her for the remainder of her life estate in the property. (Tr. at 53-54.) When one of Randy's other brothers, Alfred, sold his 80 acres, he was compelled to fund an annuity to pay his mother $700 per month for 10 years. (Tr. at 53-55.) Randy stated that if the property were sold, he would have to compensate his mother according to the same terms. (Tr. at 58.) In addition, he explained (and his son, Nicholas Iske, confirmed) that Randy agreed to pay his sister $50,000 from the proceeds of any sale as a matter of fairness, since she had been left out of the original gift of farmland. (Tr. at 63-64, 77-79.) Randy and Nicholas also testified that Cynthia was aware of this agreement and had not evinced disagreement with it. (Tr. at 61-62, 80.)

{¶ 9} The first expert to testify, by way of deposition, was John Van Zee, a real estate sales associate with Farmers National Company. (Van Zee Dep. at 7.) He testified that he did a market analysis with comparable sales in order to arrive at an appropriate price per acre per Corn Suitability Rating point (CSR1). Id. at 13-14; see also Van Zee Dep., Ex. 1, filed Oct. 24, 2016. Comparable sales for a market analysis consisted of nearby recent actual sales of cropland, discounted where appropriate to avoid counting proceeds related to non-crop land or buildings. (Van Zee Dep. at 16-18; Van Zee Dep., Ex. 1 at 1.) Using this analysis, Van Zee calculated an average price of $100.52 per CSR1 point per acre. (Van Zee Dep., Ex. 1 at 1.) He multiplied this by the 71.1 tillable acres contained within Randy and Cynthia's property and the CSR1 rating for the land (65.1) to obtain a value of $465,278. Id. at 2. To this he also added a figure for the 6.9 acres of timbered land included within the property at an estimated value of $2,000 per acre. Id. Thus his total forecasted market value for the land was $479,078. Id. The market value estimate did not include any value for buildings on the land. Id. He testified that the estimate was not an appraisal (which would have also included an income and cost approach) but solely an opinion as to the likely market price the land would fetch. (Van Zee Dep. at 21; Van Zee Dep., Ex. 1 at 2.)

{¶ 10} The second expert to testify by deposition was Ken Smith, an attorney who assists in farmland transactions and owns one-third interest in a 7,413-acre farming operation in Ukraine. (Smith Dep. at 5-6, 42, 50.) Smith also testified as a fact witness because he was one of the attorneys who was involved in the negotiation of Randy's mother's life estate and the sale of part of the original 320 acres by Randy's brother, Alfred. Id. at 6-30. Smith explained that the farm was transferred in four parcels to the four brothers due to debt trouble incurred by the parents but that the parents had intended to reserve a life estate for themselves. Id. at 6-14. Due to an error by another attorney however, the life estate was not properly reserved. Id. at 12-14. Thus there was some litigation and negotiation after Randy's father died when the first brother sought to sell his 80 acres. Id. at 14-16. Smith confirmed that Randy's brother Michael had farmed the land and helped pay off the debt on the farm and that Michael had received payment from Alfred on the sale of Alfred's land. Id. at 20-21. Smith also confirmed that an annuity was created from Alfred's sale of his parcel in favor of Randy's mother in exchange for a quit-claim of her interest in Alfred's 80 acres. (Smith Dep. at 41; Smith Dep., Exs. 4-5.) He opined that a similar claim would be made if Randy and Cynthia were to sell their parcel. (Smith Dep. at 41.) Smith also confirmed that some of the brothers have agreed to make a payout to their sister on sale of the land due to the fact that she was otherwise left out of the original land gift. (Smith Dep. at 48-49.)

{¶ 11} On the topic of estimated value, Smith testified that the Iske farm is worth $280,000. Id. at 40; Smith Dep., Ex. 7. He explained that it is a "rolling" farm, the contours and borders of which make it less valuable to potential mega farm purchasers. (Smith Dep. at 32-41.) Smith testified, moreover, that based on sales he had recently participated in, he thought prices had lately dropped. Id. at 43-44; see also Smith Dep., Ex. 7. But he could not recall any specifics of the sales that he had participated in that led him to believe prices had fallen in the area. (Smith Dep. at 54-56.) He was also not definite about whether his $280,000 figure took account of the life estate and other debts and agreements related to the property. Compare Id. at 40-41 with Smith Dep., Ex. 7.

{¶ 12} Following closing briefs by the parties, the trial court, on January 6, 2017, issued a divorce decree and entry. (Jan. 6, 2017 Decree, Decision, & Entry.) Randy moved for a new trial based on a number of alleged errors in the trial court's decision. (Feb. 3, 2017 Mot. for New Trial.) The trial court declined to grant a new trial, but, due to the presence of a number of clerical errors, the trial court issued an amended decree and entry on February 22, 2017. (Feb. 22, 2017 Am. Decree, Decision, & Entry; Feb. 22, 2017 Decision & Entry Denying Mot. for New Trial.)

{¶ 13} In the amended decree the trial court made a number of rulings relevant to this appeal. It decided that the termination date of the marriage would be the date of the final hearing in the case. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 5-8.) It found that there was insufficient evidence from which to conclude that Randy's payoff of the Kul Circle mortgage was accomplished solely with his separate property. Id. at 11. It stated that the Oppenheimer Fund moneys were Randy's separate property but also not his separate property. Id. at 10, 21. It listed all the retirement accounts (an unknown amount for Randy's accrued Social Security value, $8,778.34 for Cynthia's STRS accrued value, nothing for Cynthia's Social Security accrued value, and various accrued value account totals for the privately-held accounts) and then directed that, "the plans shall be equalized between the parties." Id. at 22. It found Van Zee's analysis more credible than Smith's and adopted his CSR1 valuation of $479,078. Id. at 16. The trial court also decided that Randy's brother (Michael) and his sister were due $30,000 and $50,000, respectively, from any proceeds. Id. at 16-19. Finally, the trial court concluded that Randy's mother had a life estate interest in the property similar to the interest recognized when Alfred sold his 80 acres and that, of the 10 years estimated for her life estate when Alfred sold his property, 53 months remained on the farm property owned by Randy and Cynthia. Id. The trial court found the obligation owed to Randy's mother to buy her interest in the property to be $700 per month for 53 months, or $37,100. Id. The trial court calculated the remaining marital value of the Iowa farmland to be $361,978, and it ordered Randy to pay the sum of $180,989 to Cynthia within 18 months or on the sale of the property, whichever occurred first. Id. at 19-20.

{¶ 14} Randy now appeals.

II. ASSIGNMENTS OF ERROR

{¶ 15} Randy asserts four assignments of error for review:

[1.] THE TRIAL COURT ERRED IN ITS DETERMINATION OF THE DE FACTO DATE OF DIVORCE FOR PURPOSES OF PROPERTY DIVISION.
[2.] THE TRIAL COURT ERRED IN TREATING APPELLANT'S PRE-MARITAL ACCOUNTS AS MARITAL EVEN AFTER THE COURT HAD DETERMINED THE VERY SAME ACCOUNTS TO BE THE SEPARATE PROPERTY OF THE APPELLANT IN OTHER SECTIONS OF THE DECREE.
[3.] THE TRIAL COURT ERRED IN INCLUDING APPELLANT'S SOCIAL SECURITY RETIREMENT CONTRIBUTIONS IN THE RETIREMENT ACCOUNTS WHICH WERE TO BE "NETTED OUT".
[4.] THE TRIAL COURT ERRED IN ADOPTING ITS OWN FORMULA FOR DETERMINING THE LEGAL AND ECONOMIC VULNERABILITY OF THE PARTIES IN THE POTENTIAL SALE OF THE IOWA PROPERTY RATHER THAN RELYING UPON THE TESTIMONY OF THE EXPERT WITNESSES.

(Emphasis sic.)

III. DISCUSSION

A. Standard of Review

{¶ 16} We have previously explained the standard for reviewing a trial court's disposition of marital property:

A domestic relations court enjoys broad discretion in fashioning a division of marital property, and its decision will not be reversed absent an abuse of that discretion. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95, 518 N.E.2d 1197. The term "abuse of discretion" connotes more than an error of law or judgment; rather, it implies that the court's attitude was unreasonable, arbitrary or capricious. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140. A reviewing court may not substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597. A court should not review discrete aspects of a property division out of the context of the entire award. Baker v. Baker (1992), 83 Ohio App.3d 700, 702, 615 N.E.2d 699. Rather, a court should consider whether the trial court's disposition of marital property as a whole resulted in a property division which was an abuse of discretion. Id.

Hamad v. Hamad , 10th Dist. No. 06AP-516, 2007-Ohio-2239, 2007 WL 1377552, ¶ 54.

{¶ 17} Notwithstanding the overarching standard of review, previous decisions of this Court support the view that it is legitimate for an appellate court to review factual determinations of the trial court for manifest weight and sufficiency. Hamad at ¶ 56, 61 ; Mantle v. Sterry , 10th Dist. No. 02AP-286, 2003-Ohio-6058, 2003 WL 22681343, ¶ 31 ; see also Irvin v. Eichenberger , 10th Dist. No. 16AP-657, 2017-Ohio-5601, 2017 WL 2813998, ¶ 40, fn. 5. Furthermore, this Court has frequently remarked that " 'no court has the authority, within its discretion, to commit an error of law.' " JPMorgan Chase Bank, N.A. v. Liggins , 10th Dist. No. 15AP-242, 2016-Ohio-3528, 2016 WL 3405431, ¶ 18, quoting State v. Akbari , 10th Dist. No. 13AP-319, 2013-Ohio-5709, 2013 WL 6843620, ¶ 7. Thus, we review the distribution of assets for abuse of discretion, we review individual factual determinations for manifest weight and sufficiency, and we review questions of law de novo.

B. First Assignment of Error-Whether the Trial Court Erred in Refusing to Find a De Facto Termination Date

{¶ 18} Ohio statute defines the period of a marriage as follows:

(2) "During the marriage" means whichever of the following is applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, "during the marriage" means the period of time between those dates selected and specified by the court.

R.C. 3105.171(A)(2)(a) and (b).

{¶ 19} Neither party contests the fact that the marriage began on June 24, 1995, nor is there dispute as to the date of the "final hearing" in this matter. Rather, Randy argues that the court erred and abused its discretion when it failed to find an earlier de facto termination date with the result that he was deprived of 50 percent of the benefit of the Kul Circle mortgage payoff. (Randy's Brief at 15-25.) That is, because he paid off the mortgage after his wife moved out and he believed the marriage to be over (but before the final hearing) Randy argues that such portion of the home's value should be considered his separate property. Id.

{¶ 20} The Supreme Court of Ohio has instructed courts that the law for determining the duration of marriage for the purpose of asset division must stand the test of fairness on review:

The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. The public policy giving rise to equitable distribution is at least in part an acknowledgment that marriage is a shared enterprise or joint undertaking. While marriage is literally a partnership, it is a partnership in which the contributions and equities of the partners do differ from individual case to individual case. Assets acquired by the joint efforts of the parties should be, on termination, eligible for distribution. But the precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. It is the equitableness of the result reached that must stand the test of fairness on review.

Berish v. Berish , 69 Ohio St.2d 318, 319-20, 432 N.E.2d 183 (1982). Additionally, we have focused on a variety of factors to consider on a case-by-case basis. Rogers v. Rogers , 10th Dist. No. 96APF10-1333, 1997 WL 559479, *4-7 (Sept. 2, 1997) (describing cases). One factor is that the de facto termination of a marriage should be mutual; this avoids the inequitable result of one party unilaterally engineering an advantageous termination date for the division of assets. Farley v. Farley , 10th Dist. No. 99AP-1103, 2000 WL 1231091, *6 (Aug. 31, 2000).

{¶ 21} Here the trial court recognized evidence from which it could determine a de facto termination date:

1. The parties separated on May 8, 2016.
2. Neither party has or is presently cohabitating since separation.
3. The parties have ceased intimate relations.
4. [Cynthia] retained counsel to proceed with a divorce in September, 2015.
5. The divorce was filed on November 1, 2015.
6. The parties did not discuss terms for a separation prior to [Cynthia] filing.
7. The parties essentially maintain[ed] separate finances throughout the marriage with each party's income going to specific obligations.
8. There have been no meaningful attempts at reconciliation prior to the filing of the divorce. Both parties considered counseling, but no counseling ever took place.
9. Neither party is having an extramarital affair.
10. Neither party has taken a vacation with a member of the opposite sex.
11. Neither party has been a host for any joint social get together.
12. The parties finally separated all financial matters as of August, 2016.
13. The parties have similar incomes.
14. The initial commencement of the divorce was a unilateral decision made by [Cynthia] without [Randy's] knowledge or agreement.

(Feb. 22, 2017 Am. Decree, Decision, & Entry at 7-8.) Among those findings, the trial court made observations indicating it would be fair to consider the final hearing date the end date of the marriage pursuant to R.C. 3105.171(A)(2)(a) rather than to name a de facto date. In doing so, the trial court observed that the parties maintained separate finances throughout the marriage and that they have similar incomes. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 7.)

{¶ 22} Upon review, the trial court observed the instruction of Berish , that "[i]t is the equitableness of the result reached that must stand the test of fairness on review." Berish at 320, 432 N.E.2d 183. And while there was ample evidence in this case to suggest that the marriage was irretrievably on the path to ending before the final hearing, fixing an exact date for de facto termination is (as the Berish court noted) "extremely difficult." Id. In this case, there was no need to undertake that difficult task because there was no proof that either party would disproportionately suffer (since incomes were relatively equal and the parties kept their assets separate throughout the marriage) if the termination date remained the final hearing date. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 7.)

{¶ 23} Although Randy argues as he did at trial, that his payoff of the Kul Circle house came solely from his earnings and not at all from joint property, his testimony on this matter was somewhat ambiguous. (Randy's Brief at 15-25; Nov. 15, 2016 Randy's Closing Argument at 2-4.) He testified, for example, that the Huntington account (from which the payoff of the Kul Circle house mortgage came) was funded at least in part from joint accounts that he "managed." (Tr. at 65-72; Pl. Exs. 9, 11, 28.) And it is not clear from Randy's testimony or the bank records that the approximately $20,000 transferred from the Huntington account to pay off the Kul Circle mortgage came entirely from wages earned by Randy after a point where the marriage had broken-down irretrievably.

{¶ 24} The trial court's factual findings were supported by the evidence and not manifestly against its weight. In applying Berish to the trial court's findings, we find the trial court fairly reached an equitable result for the parties in determining the marriage termination date pursuant to R.C. 3105.171(A)(2)(a), and thus, we find no abuse of discretion. Randy's first assignment of error is overruled.

C. Second Assignment of Error-Whether the Trial Court Erred in Treating Randy's Oppenheimer Funds as Both Separate and Marital Property

{¶ 25} On page 10 of its amended decree and entry, the trial court referred to Randy's Oppenheimer accounts as separate property. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 10.) On page 21 it found, based on a disputed balance sheet filed with the parties' pretrial stipulations, that the parties had a balance in the Oppenheimer account ending in 4609 of $26,648.30 of which $4,372.00 was Randy's separate property. Id. at 21; Pretrial Stip. Randy argues, and Cynthia concedes, that this was error, that the balance sheet was disputed, and that the Oppenheimer accounts were Randy's separate property. (Cynthia's Brief at 17.)

{¶ 26} Randy's second assignment of error is sustained.

D. Third Assignment of Error-Whether the Trial Court Erred in Considering Randy's Social Security but not Cynthia's in Making Division of Assets

{¶ 27} An Ohio common pleas court is not empowered to order the division of Social Security assets but, "[i]n making an equitable distribution of marital property in a divorce proceeding, a trial court may consider the parties' future Social Security benefits in relation to all marital assets." Neville v. Neville , 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, ¶ 6-11, syllabus; accord Irvin at ¶ 41. An Ohio statute, enacted several years after Neville , provides that a court may consider, "[a]ny retirement benefits of the spouses, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension." R.C. 3105.171(F)(9) (division (F)(9) first effective April 7, 2009).

{¶ 28} Randy now argues that the trial court erred in considering his Social Security retirement when it did not also consider Cynthia's, and asks that we order the trial court to only consider his Social Security contributions for the years in which Cynthia was not also contributing to Social Security and was instead accumulating a public pension. (Randy's Brief at 29.) But, although Cynthia apparently worked for some time in a job (Nationwide Children's Hospital) in which she likely would have contributed to the Social Security system, we do not find in the record any evidence of her contributions to Social Security or some indication that is entitled to receive benefits at some future date. This apparent deficiency of the record is corroborated by the trial court's statement in denying Randy's motion for a new trial:

[Cynthia's] social security benefits were not provided in evidence. However, [Randy's] Social Security Benefits were included on the Balance Sheet filed November 1, 2016. [T]he Court cannot consider information that is not provided to the Court at the time of trial.

(Feb. 22, 2017 Decision & Entry on Motion for New Trial at 3.)

{¶ 29} "Appellate review is limited to the record as it existed at the time the trial court rendered its judgment." Wiltz v. Clark Schaefer Hackett & Co. , 10th Dist. No. 11AP-64, 2011-Ohio-5616, 2011 WL 5184443, ¶ 13 (collecting cases). The trial court could only consider evidence before it in reaching its conclusions in a trial based on the evidence. The trial court did not abuse its discretion in failing to consider evidence that was not presented.

{¶ 30} Randy also argues that the trial court erred when it ordered the parties to "equalize[ ]" all the retirement plans because that might be understood to require division of his Social Security or the use of it for a purpose other than "dividing a public pension." (Randy's Brief at 29; Randy's Reply Brief at 5-6); R.C. 3105.171(F)(9). That is, the trial court listed all the retirement accounts-an unknown amount for Randy's Social Security, $8,778.34 for Cynthia's STRS, nothing for Cynthia's Social Security, and various account totals for all the privately held accounts in each of their names. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 22.) Then the trial court directed that "the plans shall be equalized between the parties." Id. We recognize that there may exist ambiguity in the trial court's directive to the extent it could be construed to imply that Randy's Social Security is to be divided or considered other than for the purpose of dividing Cynthia's STRS. R.C. 3105.171(F)(9).

{¶ 31} Sometimes court judgments require interpretation by the same or another court.

If the words and language in a judgment or decree are free of ambiguity, and appear to express clearly and plainly the sense intended, there is no need to resort to other means of interpretation. Rohr v. Williams , 7th Dist. No. 06 MA 171, 2007-Ohio-7207 [2007 WL 4696807], ¶ 21. "An ambiguous order is one that is unclear or indefinite and is subject to more than one rational interpretation." Id. at ¶ 22. "If the language is ambiguous, then the trial court has broad discretion when clarifying that ambiguous language." Id. If a judgment is susceptible to two possible interpretations, we must adopt the interpretation which gives effect to the judgment in its entirety without eliminating part of the judgment. Ward v. Ward , 13 Ohio App.3d 302, 303, 13 Ohio B. 368, 468 N.E.2d 1132 (10th Dist.1983).

Murphy v. Murphy , 10th Dist. No. 12AP-1079, 2013-Ohio-5776, 2013 WL 6858952, ¶ 37 ; see accord Scheel v. Rock Ohio Caesars Cleveland, L.L.C. , 8th Dist. No. 105037, 2017-Ohio-7174, 2017 WL 3432672, ¶ 17. Although the court's directive could be construed broadly and as being inapposite to the proscription of dividing Social Security assets expressed in Neville and in R.C. 3105.171(F)(9), we interpret it to be that Randy's Social Security is to be considered solely for the purpose of dividing Cynthia's STRS.

{¶ 32} Randy's third assignment of error is overruled in part and sustained in part so as to give full effect to the trial court's judgment.

E. Fourth Assignment of Error-Whether the Trial Court Erred in its Valuation of the Iowa Farm Property

{¶ 33} The trial court made the factual finding that Van Zee's analysis was more credible than Smith's and adopted Van Zee's valuation of the Iowa farmland, subject to the court's factual findings concerning deductions necessary for debts or payments owed to Randy's brother, mother, and sister. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 16-20.) Randy argues that the trial court erred in not finding Smith more credible than Van Zee because Smith was familiar with the land in question and was not biased in favor of high values. (Randy's Brief at 32.) Randy argues that because Smith is an attorney who earns most of his income from practice and Ukrainian farm ownership, Smith has little incentive to inflate estimates, as opposed to Van Zee who earns his income from sales of Iowa farmland. Id. Randy also argues Van Zee did not take into account debts and payments to Randy's brother, mother, and sister that diminish the overall value of the property.

Id. at 33-35. Randy argues the trial court's valuation was speculative. Id.

{¶ 34} The parties stipulated that both Van Zee and Smith were experts. (Pretrial Stip. at 5.) Van Zee was transparent about the method of his valuation, stating that he determined the value of the land by calculating the average cost per acre per CSR1 point for five comparable nearby recent sales. (Van Zee Dep. at 16-18.) He provided detailed information about the recent sales including what was sold, for how much, when, and by what means. Id. ; Van Zee Dep., Ex. 1 at 1. He determined the value of the subject property by multiplying CSR1 score by tillable acres by average regional price per acre and added an estimated amount for each acre of timbered land to arrive at a value of $479,078. Id. at 2. By contrast, Smith testified generally that the Iske farm was a "rolling" farm and not attractive to mega farm purchasers. (Smith Dep. at 32-41.) His opinion affidavit was based on the sales of two neighboring parcels, extrapolating that the price per acre should be only approximately 60 percent of what Van Zee had calculated. (Smith Dep., Ex. 7.) But Smith was unable to recall any specifics of the two sales which led him to opine on the price per acre. (Smith Dep. at 54-56.) Nor was he definite about whether or not his $280,000 valuation included the life estate and other debts related to the property. Id. at 40-41; Smith Dep., Ex. 7. Given this evidence, we cannot find that the trial court lost its way in determining the credibility of these two expert witnesses such that its finding was manifestly against the weight of the evidence.

{¶ 35} The trial court likewise did not err in crediting the parties' stipulation that $30,000 was owed to Randy's brother, Michael. (Tr. at 54.) Based on the consistent testimony of Randy and Nicholas, we do not find that the trial court erred in deducting from its value $50,000 to pay to Randy's sister. (Tr. at 61-64, 77-80.) Nor was it against the manifest weight of the evidence for the trial court to have concluded, based on the deposition testimony of Smith, corroborated by Randy's testimony and exhibits to Smith's deposition that Randy's mother had a life estate in Randy and Cynthia's 80 acres similar to that which was determined when Alfred sold his 80 acres. (Smith Dep., Exs. 3-4; Smith Dep. at 15-22, 41; Tr. at 58.) Although Randy argues on appeal that his mother's life estate could have changed in value, he testified at trial that, if the Iowa property were sold, he would be required to compensate his mother according to the same terms as his brother, Alfred. (Tr. at 58.) Based on the evidence before the trial court, it was not an abuse of discretion to have multiplied the months left in Randy's mother's ten-year, annuity-based life estate remainder, based on the sale of Alfred's land, by $700 per month and also to have deducted that from the overall value of Randy and Cynthia's farm property. (Feb. 22, 2017 Am. Decree, Decision, & Entry at 19-20.)

{¶ 36} The trial court's findings regarding the Iowa property were supported by sufficient evidence. Its evidentiary findings were not against the manifest weight of the evidence before it. Once the trial court made its factual findings, it fairly adjudged how to divide the parties' assets and did not abuse its discretion under the law. See Id. at 16-20. We overrule Randy's fourth assignment of error.

IV. CONCLUSION

{¶ 37} The trial court followed the law in finding that the parties' marriage ended on the date of the final hearing before it. It did not abuse its discretion in failing to find a de facto termination date for the marriage. As the finder of fact, the trial court's valuation of the Iowa farm property, reliant on the testimony of one expert over the other, was within the court's discretion. Having determined the facts important to valuing the farmland for the purposes of dividing its value between the parties, the trial court fairly determined its value. We interpret the trial court's judgment to give it full effect such that Randy's Social Security assets may be used to offset the distribution from Cynthia's STRS pension. But the trial court's simultaneous consideration of a retirement account in Randy's name as both separate property and marital property must be reversed and remanded to the trial court for correction.

{¶ 38} We therefore sustain Randy's second assignment of error, sustain in part and overrule in part his third assignment of error, overrule his first and fourth assignments of error, and remand the judgment for the Franklin County Court of Common Pleas, Division of Domestic Relation, for further consideration. On remand, we instruct the trial court to modify its decree to treat Randy's Oppenheimer Funds as a separate asset and to enforce its decree on retirement accounts with the understanding that Randy's Social Security account is not to be divided and should only be considered as may be relevant for purposes of dividing Cynthia's STRS.

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

DORRIAN and HORTON, JJ., concur.

      Because the parties share the same last name, for ease of reference we refer to them by first name.

      Van Zee admitted that, effective in January 2016, CSR1 was replaced by CSR2, which takes into account improvements in land production due to improved tilling, terracing, seed technology, herbicides, and other technology. (Van Zee Dep. at 19.) He testified, however, that CSR2 values are higher, and thus, if anything, his price forecast would be heightened by the use of CSR2 figures. Id. at 19-20, 48-49.


author: BROWN, J.

text:
    CENTRAL MORTGAGE COMPANY, Plaintiff-Appellee, v. Mamadou SEYE et al., Defendants-Appellants.
    No. 16AP-323
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on November 28, 2017
    On brief: Lerner, Sampson & Rothfuss, Adam J. Turer, Cincinnati,; Sikora Law LLC, Michael J. Sikora, III, Richard T. Craven, and C. Richley Raley, Jr., Mentor, for appellee. Argued: Adam J. Turer and C. Richley Raley, Jr.
    On brief: The Dann Law Firm, Brian D. Flick, and Marc E. Dann, Cleveland, for appellants. Argued: Brian D. Flick.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by defendants-appellants, Mamadou Seye and Fatou Babacar Kebe (collectively "appellants"), from entries of the Franklin County Court of Common Pleas granting summary judgment and a decree in foreclosure in favor of plaintiff-appellee, Central Mortgage Company ("Central Mortgage").

{¶ 2} In September 2004, Mamadou Seye (individually "Seye") and Mohamad Kebe (individually "Kebe") purchased residential real estate located on Sowers Drive in Canal Winchester. In order to purchase the property, Seye and Kebe (collectively "defendants") executed a promissory note to Washtenaw Mortgage Company ("Washtenaw Mortgage") in the amount of $152,000. The loan was secured by a mortgage in which Mortgage Electronic Registration Systems, Inc. ("MERS") acted as the nominee on behalf of the lender, Washtenaw Mortgage. Washtenaw Mortgage retained Pillar Title Agency, LTD ("Pillar Title") to serve as the title, escrow, and closing agent for the purchase transaction.

{¶ 3} On August 22, 2014, Central Mortgage filed a complaint in foreclosure alleging defendants were in default on a promissory note held by Central Mortgage and secured by a mortgage assigned to it by Washtenaw Mortgage. The complaint alleged a balance due in the amount of $137,512.53, plus interest from July 1, 2011.

{¶ 4} On October 10, 2014, defendants filed an answer, counterclaim, and third-party complaint against Pillar Title and Stewart Title Company ("Stewart Title"). In the counterclaim, defendants alleged a cause of action for breach of contract against Central Mortgage, while defendants' third-party complaint alleged causes of action against Pillar Title and Stewart Title for breach of contract, negligence, and unjust enrichment. On November 6, 2014, Central Mortgage filed a reply to defendants' counterclaim.

{¶ 5} On November 14, 2014, Central Mortgage filed a motion for leave to file an amended complaint in foreclosure and for reformation of deed and mortgage, declaratory judgment, and equitable lien. By entry filed December 10, 2014, the trial court granted Central Mortgage's motion for leave to file an amended complaint. On December 15, 2014, defendants filed an answer to the amended complaint. On February 17, 2015, Seye filed a motion for leave to file an amended answer and counterclaim, which the trial court subsequently granted.

{¶ 6} On September 28, 2015, Central Mortgage filed a motion for summary judgment against defendants. On October 26, 2015, defendants filed a response in opposition to the motion for summary judgment. On November 2, 2015, Central Mortgage filed a reply in support of its motion for summary judgment.

{¶ 7} By decision and entry filed March 29, 2016, the trial court granted Central Mortgage's motion for summary judgment against defendants and dismissed defendants' counterclaims. On April 20, 2016, the trial court filed a judgment entry and decree in foreclosure in favor of Central Mortgage. In its entry, the trial court found scrivener's error and mutual mistake and granted reformation of the mortgage to include the names of Kebe and Seye in the acknowledgement clause of the mortgage; the court's entry also included a determination there was no just reason for delay in entering judgment.

{¶ 8} On appeal, appellants set forth the following three assignments of error for this court's review:

[I.] The Trial Court erred as a matter of law in finding two different versions of the Note do not create a factual issue under Lackey and George .
[II.] The Trial Court improperly found that the Plaintiff had satisfied all conditions precedent to foreclosure.
[III.] The Trial Court erred in granting reformation of the mortgage to the Plaintiff.

{¶ 9} At issue on appeal is the propriety of the trial court's decisions granting summary judgment and a decree of foreclosure in favor of Central Mortgage. In order to obtain summary judgment, a movant is required to show that "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This court's review of a trial court's decision on summary judgment is de novo. New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24.

{¶ 10} In order to support a motion for summary judgment in a foreclosure action, a plaintiff is required to set forth evidentiary materials establishing: " '(1) that the plaintiff is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met; and (5) the amount of principal and interest due.' " Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, 2014 WL 117410, ¶ 19, quoting Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 17.

{¶ 11} Under the first assignment of error, appellants argue the trial court had two different photocopied versions of the promissory note to consider in ruling on the motion for summary judgment. Specifically, appellants note that Central Mortgage, in its complaint for foreclosure and motion for summary judgment, presented a version of the promissory note that contained a blank indorsement on the signature page executed by the supervisor for Washtenaw Mortgage and authenticated as the business record of Central Mortgage by Natalie Kenny. Appellants argue they offered a competing version of the note (attached as exhibit No. 2 to their reply to Central Mortgage's motion for summary judgment) that contained no indorsement. Appellants maintain the existence of multiple versions of the note presents a genuine issue of material fact regarding Central Mortgage's entitlement to enforce the note.

{¶ 12} In support, appellants cite this court's decisions in FV-I, Inc. v. Lackey, 10th Dist. No. 13AP-983, 2014-Ohio-4944, 2014 WL 5768578, and U.S. Bank N.A. v. George, 2015-Ohio-4957, 50 N.E.3d 1049. In Lackey , this court found a genuine issue of material fact precluded summary judgment where the plaintiff-appellee submitted two different versions of a promissory note in which "each version of the Note * * * contain[ed] endorsements, but the endorsements [were] different between the two versions." Id. at ¶ 18. Specifically, in Lackey, the version of the note attached to the original complaint included "an allonge bearing an undated endorsement from PNC Bank, National Association, as successor by merger to First Franklin (the original lender) to appellee," while the second version, filed as an amended exhibit to the original complaint, contained on the left side "an undated endorsement from First Franklin to First Franklin Financial Corporation," and on the right side "an undated endorsement from First Franklin Financial Corporation to appellee." Id. at ¶ 15. In George at ¶ 23, this court found genuine issues of material fact precluded summary judgment where the appellee-bank submitted two different copies of the promissory note in which one of the copies did not include allonges and an indorsement (contained in the other copy), and which "did not establish appellee as the holder.

{¶ 13} In response, Central Mortgage argues the only copies of the promissory note that are part of the record in the instant action contain the same blank indorsement. Specifically, Central Mortgage contends the copies of the original note attached to both its amended complaint and affidavit are identical. Central Mortgage asserts that appellants have attempted to introduce copies of promissory notes filed in a 2008 foreclosure action against appellants and in a 2009 bankruptcy case involving Kebe. Central Mortgage maintains that copies of a promissory note introduced in a prior foreclosure action six years earlier or from a bankruptcy case five years earlier are immaterial to the issues of the instant action.

{¶ 14} We begin with an overview of the summary judgment evidence. In support of its motion for summary judgment, Central Mortgage submitted the affidavit of its officer, Natalie Kenny, who averred she has "personal knowledge of the operation of and the circumstances surrounding the maintenance and retrieval of business records in Central's record keeping systems." (Kenny Aff. at ¶ 2.) According to the affidavit, Washtenaw Mortgage retained Pillar Title "to serve as the title, escrow, and closing agent for the purchase transaction in the amount of $152,000.00 that [Washtenaw Mortgage] loaned to Mamadou Seye and Mohamad Kebe." (Kenny Aff. at ¶ 4.)

{¶ 15} Kenny averred that Kebe executed a limited specific power of attorney on September 18, 2004, in which Kebe nominated and appointed Seye as his attorney-in-fact to perform certain actions with respect to the purchase and sale of the property on behalf of Kebe; the power of attorney was recorded in the Franklin County Recorder's Office on September 24, 2004.

{¶ 16} The affidavit averred that Kebe and Seye applied for and received a loan in the amount of $152,000 through Washtenaw Mortgage's agent to purchase the real property located on Sowers Drive in Canal Winchester. The closing for the transaction occurred on September 20, 2004. Seye and Kebe executed and delivered to Washtenaw Mortgage a note, dated September 20, 2004, in the original amount of $152,000; Seye executed the note on behalf of Kebe as his attorney-in-fact.

{¶ 17} According to Kenny, the note "has been indorsed in blank by Washtenaw [Mortgage]." Kenny further averred that "[a]t the time of the filing of the Complaint * * * and continuously since, Central [Mortgage] had and has possession of the original Note." (Kenny Aff. at ¶ 11.)

{¶ 18} As security for the promissory note, Seye and Kebe executed a mortgage, dated September 20, 2004, in favor of MERS "solely as nominee for Washtenaw [Mortgage], its successors and assigns." (Kenny Aff. at ¶ 12.) Seye executed the mortgage on behalf of Kebe as his attorney-in-fact. The mortgage was recorded in the Franklin County Recorder's Office on September 24, 2004.

{¶ 19} Kenny averred that, by an assignment dated November 7, 2008, MERS, as nominee for Washtenaw Mortgage, "assigned the Mortgage to Central Mortgage * * * its successors and assigns." (Kenny Aff. at ¶ 13.) The assignment was recorded in the Franklin County Recorder's Office on December 12, 2008.

{¶ 20} The affidavit further averred that "payments have not been made as required under the terms of the Note and Mortgage," and that "the account is due and owing for the August 1, 2011 payment with interest running from July 1, 2011." (Kenny Aff. at ¶ 15.) Central Mortgage, by correspondence dated May 21, 2014, "informed Kebe and Seye * * * that their loan was in default for failure to make payments due." (Kenny Aff. at ¶ 16.)

{¶ 21} In appellants' reply to Central Mortgage's motion for summary judgment, appellants submitted the affidavit of a paralegal who averred she had "searched the Franklin County Docket for various documents related to a 2008 foreclosure for Mamadou Seye." (Twyford Aff. at ¶ 5.) Attached to appellants' motion was a copy of an affidavit of Janice Davis, vice-president of Central Mortgage, dated December 26, 2008, in which Davis averred that Seye and Kebe were in default for failure to pay monthly installments of principal and interest pursuant to the note. Appellants also attached a copy of a promissory note with no indorsement and bearing the signatures of Seye and Kebe.

{¶ 22} In addressing appellants' claim that there were competing versions of the promissory note, the trial court found that Central Mortgage's "2008 foreclosure action is of little import in light of [appellants'] successive defaults." The trial court also cited Ohio law, i.e., Najar at ¶ 59, for the proposition that "it is well-established that '[t]he mere fact that there [are] two different copies of the note in the record-one with indorsement and one without-does not mandate a finding that one of the notes was "unauthentic" or otherwise precludes summary judgment.' " (Mar. 29, 2016 Decision & Entry at 4.)

{¶ 23} Based upon this court's de novo review, we find no error with the trial court's determination that there was no genuine issue of material fact that Central Mortgage was the holder of the note and assignee of the mortgage at the time it filed the amended complaint. The record on appeal indicates that both copies of the promissory note submitted by Central Mortgage with its amended complaint and its motion for summary judgment contain the same blank indorsement (i.e., endorsed by Washtenaw Mortgage in blank). Both copies of the note also contain the signatures of Kebe (by Seye as attorney-in-fact) and Seye. Kenny averred in the affidavit that the promissory note "has been indorsed in blank by Washtenaw [Mortgage]," and that Central Mortgage, "[a]t the time of the filing of the Complaint * * * and continuously since * * * had and has possession of the original Note." (Kenny Aff. at ¶ 11.) Kenny further averred that MERS, as nominee for Washtenaw Mortgage, assigned the mortgage to Central Mortgage, and that the assignment was recorded on December 12, 2008. Attached to Kenny's affidavit as exhibit E was a copy of the assignment from MERS to Central Mortgage. Also attached to the affidavit as exhibit C was a copy of the mortgage bearing the signatures of Kebe and Seye.

{¶ 24} In accordance with R.C. 1303.31(A), "a 'person entitled to enforce' an instrument means any of the following persons: (1) the holder of the instrument, (2) a non-holder in possession of the instrument who has the rights of the holder, or (3) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 1303.38 or division (D) of Section 1303.58 of the Revised Code." United States Bank Natl. Assn. v. 3076 Representation Terrace Trust, 10th Dist. No. 13AP-520, 2014-Ohio-2362, 2014 WL 2558923, ¶ 10.

{¶ 25} In 3076 Representation Terrace Trust, this court held that a plaintiff-bank was the holder of the note and entitled to enforce it, pursuant to R.C. 1303.31(A)(1), where the promissory note attached to the plaintiff's complaint was indorsed in blank and a representative of the servicing agent or bank submitted an affidavit that the plaintiff was in possession of the note at the time of the filing of the complaint. Id. See also Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, 2013 WL 6869954, ¶ 33 (finding appellee was holder of the promissory note and entitled to enforce it, pursuant to R.C. 1303.31(A)(1), where appellee submitted evidence, including affidavit, indicating it was in possession of promissory note containing a blank indorsement).

{¶ 26} In the present case, Central Mortgage presented evidentiary materials demonstrating it was the current holder of the promissory note (i.e., in possession of the note indorsed in blank), and assignee of the mortgage at the time the amended complaint was filed. Further, we find no error with the trial court's determination that materials submitted with respect to a previously dismissed 2008 foreclosure action (in which there was no judicial adjudication on the merits) were not germane to the issue whether Central Mortgage held the promissory note on December 10, 2014. Nonetheless, as noted by the trial court, the mere fact there may be differing copies of a note (i.e., one with indorsement and one without) does not, standing alone, create a genuine issue of material fact as to the authenticity of one of the notes. Najar at ¶ 59. See also Bank of N.Y. Mellon v. Putman, 12th Dist. No. CA2012-12-267, 2014-Ohio-1796, 2014 WL 1691825 ¶ 19 (difference in two documents in which only one contained indorsement in blank did not create an issue of fact as terms of note remained unchanged and borrower's initials and signature appeared on both documents). Accordingly, the trial court did not err in finding there was no genuine issue of material fact that Central Mortgage was entitled to enforce the note as holder.

{¶ 27} Based on the foregoing, appellants' first assignment of error is not well-taken and is overruled.

{¶ 28} Under the second assignment of error, appellants contend the trial court erred in finding Central Mortgage satisfied all conditions precedent to foreclosure. Specifically, asserting that any affidavit in support of summary judgment must have attached to it copies of all papers to which it refers, appellants argue that the affidavit of Kenny fails to contain specific business records to show when correspondence was mailed to Kebe and Seye regarding the notice of default. We disagree.

{¶ 29} Paragraph 6(C) of the promissory note provides for notice of default, and states as follows:

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means.

{¶ 30} The affidavit of Kenny averred in part that, according to Central Mortgage's business records and Kenny's review of such records, "correspondence dated May 21, 2014 was sent to Kebe and to Seye by First Class Mail, which correspondence informed Kebe and Seye * * * that their loan was in default for failure to make payments due," and that the "[f]ailure to cure the default by June 20, 2014 would result in acceleration of their loan account." (Kenny Aff. at ¶ 16.) Kenny further averred that "correspondence dated July 2, 2014 was sent to Kebe and Seye," informing them "that their loan account had been referred to counsel to begin foreclosure proceedings." (Kenny Aff. at ¶ 17.)

{¶ 31} Attached to the affidavit was exhibit F, a copy of the May 21, 2014 notices of default addressed to Kebe and Seye, as well as exhibit G, a copy of the July 2, 2014 correspondence to Kebe and Seye informing them that "[d]ue to the delinquency of the loan, the above captioned property has been referred to the following attorney to begin foreclosure proceedings." Also attached to the affidavit of Kenny was exhibit H, identified in the affidavit as "business records showing the generation of correspondence to Kebe and Seye." (Kenny Aff. at ¶ 20.) That exhibit contains various log entries regarding the loan, including a notation that demand letters were generated on May 20, 2014.

{¶ 32} On review of the affidavit and supporting materials attached thereto, including copies of the notice of default and business records indicating the date the demand letters were generated, the record on summary judgment supports the trial court's determination that Central Mortgage presented sufficient evidence to establish that the notice of default satisfied the notice requirements of the note and mortgage. See Seimer at ¶ 20 (affidavits submitted by bank averring that bank sent required notice of default and acceleration, along with "letter log" showing that it sent notice by first class mail on particular date, sufficient evidence on summary judgment that bank provided required notice); United States Bank Natl. Assn. v. Weber , 10th Dist. No. 12AP-107, 2012-Ohio-6024, 2012 WL 6669213, ¶ 13 (bank presented evidence it properly notified borrower of default under terms of note and mortgage where bank submitted affidavit of loan servicing agent who averred that breach letter, attached to affidavit, was a true copy of letter mailed to borrower); RBS Citizens, N.A. v. Adams , 3d Dist. No. 13-11-35, 2012-Ohio-1889, 2012 WL 1494138, ¶ 14 (bank's affidavit and attached copy of letter providing notice of default "were proper summary judgment evidence").

{¶ 33} Appellants' second assignment of error is overruled.

{¶ 34} Under the third assignment of error, appellants assert the trial court erred in granting reformation of the mortgage where the acknowledgement clause failed to contain the signatures of Kebe and Seye. Appellants contend that the evidence relied on by the trial court to grant reformation ignored the statutory requirement under R.C. 5301.01 that a notary must properly acknowledge a mortgage.

{¶ 35} In response, Central Mortgage argues the trial court properly granted reformation of the mortgage pursuant to R.C. 2719.01. Noting that Kebe and Seye both signed the mortgage, and that the loan funds were used by them to purchase the property, Central Mortgage argues that the omission of the names of Kebe and Seye in the acknowledgement clause constituted a scrivener's error, and that the mortgage was intended to secure the entire fee simple interest in the property.

{¶ 36} In addressing the issue of acknowledgment, the trial court found that "due to scrivener's error and mutual mistake of fact, the acknowledgement clause of the Mortgage does not contain the names of Kebe and Seye." The court determined that "[i]n order to conform to the parties' intent, the Mortgage is reformed to include the names of Kebe and Seye in the acknowledgement clause of the Mortgage," and that "[t]he reformed Mortgage is valid and enforceable against Kebe, Seye, and third parties."

{¶ 37} Under Ohio law, "[r]eformation is available where it is shown that a written instrument does not express the true agreement entered into between the contracting parties by reason of a mutual mistake." Wells Fargo Bank, N.A. v. Hammond, 2014-Ohio-5270, 22 N.E.3d 1140, ¶ 41, citing Wagner v. Natl. Fire Ins. Co., 132 Ohio St. 405, 412, 8 N.E.2d 144 (1937).

{¶ 38} R.C. 5301.01(A) states in part:

A deed, mortgage, land contract * * * or lease of any interest in real property * * * shall be signed by the grantor, mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract, or lease * * *. The signing shall be acknowledged by the grantor, mortgagor, vendor, or lessor * * * before a * * * notary public * * * who shall certify the acknowledgement and subscribe the official's name to the certificate of the acknowledgement.

{¶ 39} R.C. 2719.01 states in part: "When there is an omission, defect, or error in an instrument in writing * * * so that it is not in strict conformity with the laws of this state, the courts of this state may give full effect to such instrument or proceeding, according to the true, manifest intention of the parties thereto."

{¶ 40} Under Ohio law, the acknowledgement of an instrument "is not the same as the instrument itself." Seabrooke v. Garcia, 7 Ohio App.3d 167, 169, 454 N.E.2d 961 (9th Dist.1982). The Supreme Court of Ohio has noted that the acknowledgement required by R.C. 5301.01"is 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." Basil v. Vincello, 50 Ohio St.3d 185, 188, 553 N.E.2d 602 (1990). Further, " 'a defectively executed conveyance of an interest in land is valid as between the parties thereto, in the absence of fraud.' " Id. at 188-89, 553 N.E.2d 602, quoting Citizens Natl. Bank v. Denison , 165 Ohio St. 89, 95, 133 N.E.2d 329 (1956). It has been noted that "[t]he reasoning behind such a rule is to bind the parties to that which they intended." Seabrooke at 169, 454 N.E.2d 961. Thus, while "[t]he purpose of the acknowledgement statute ( R.C. 5301.01 ) is to provide evidence of execution and authority for recordation," it is not intended "to provide a way of escape for a party who later wishes to renege on his agreement." Id.

{¶ 41} Accordingly, in the absence of fraud, a defect resulting from the failure to include a notarized acknowledgment of a signature "does not render the terms of the mortgage unenforceable as between the parties." Everbank v. Fleming, 2d Dist. No. 2012-CA-10, 2013-Ohio-3030, 2013 WL 3776366, ¶ 5. Ohio courts have therefore upheld the validity of a mortgage despite a defect in the acknowledgement clause. See CitiMortgage, Inc. v. Kermeen , 2d Dist. No. 2011 CA 2, 2012-Ohio-1655, 2012 WL 1264488, ¶ 49 (finding that, although borrower's name was absent from acknowledgement clause, borrower's intent to convey entire fee simple interest in property was clear by express terms of mortgage as well as admitted facts, and therefore mortgage fully secured borrower's interest in the property); Seabrooke at 169, 454 N.E.2d 961 (finding mortgage valid between parties, even though not properly signed and acknowledged, where clear intent of borrower was to execute a valid mortgage).

{¶ 42} In the present case, according to averments in Kenny's affidavit, Seye and Kebe executed the mortgage, i.e., Seye signed the mortgage individually and as attorney-in-fact for Kebe, and appellants utilized the loan funds to purchase the subject property. In response to Central Mortgage's request for admission, Seye acknowledged signing the mortgage individually and in his capacity as attorney-in-fact for Kebe. Here, the evidence on summary judgment supports the trial court's determination that the intent of the parties was that the mortgage "secure the entire undivided fee simple interest in the property." (Decision & Entry Granting Pl.'s Mot. for Summ. Jgmt. at 4.) On review, the trial court did not err in granting, pursuant to R.C. 2719.01, reformation of the instrument to carry out the intention of the parties. See Seabrooke at 169, 454 N.E.2d 961 ("in Ohio a court may give full effect to a defective instrument in order to carry out the intentions of the parties").

{¶ 43} Appellants' third assignment of error is not well-taken and is overruled.

{¶ 44} Based on the foregoing, appellants' three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

TYACK, P.J., and DORRIAN, J., concur.

      On appeal, Central Mortgage acknowledges that, subsequent to the filing of the complaint, Mohamad Kebe filed a Chapter 7 bankruptcy petition. As a result, Central Mortgage does not seek a personal judgment against Kebe.

      Because the copies of the promissory note submitted by Central Mortgage are identical, and in light of our determination that the trial court did not err in addressing the import of the materials submitted as part of the dismissed 2008 foreclosure, we do not find dispositive appellants' reliance on Lackey and George .

      We note that the copy of the promissory note submitted by appellants as part of the 2009 bankruptcy proceeding contains a "special indorsement" in favor of Central Mortgage, i.e., the promissory note contained an indorsement by Washtenaw Mortgage made payable "to the order of Central Mortgage."

      Paragraph 22 of the mortgage sets forth a similar notice requirement.