Mace v. Mace , 2023 Ohio 2761 ( 2023 )

[Cite as Mace v. Mace, 2023-Ohio-2761.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
TOMMY JOE MACE, et al., :
Plaintiffs-Appellees, : CASE
NO. 23CA700
v. :
JAMES EUGENE MACE, et al., :
Defendants-Appellees, :
vs. :
DECISION & JUDGMENT
ENTRY
JACOB MCNICHOLS, :
Intervenor-Appellant. :
________________________________________________________________
APPEARANCES:
Lucas A. Thompson and Brian S. Stewart, Circleville, Ohio, for
intervenor-appellant.
Trecia Kimes-Brown, Hamden, Ohio, for appellee James Eugene
Mace.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-27-23
ABELE, J.
{¶1} This is an appeal from a Vinton County Common Pleas
Court judgment that distributed the proceeds of a partition-
election sale. Jacob McNichols, intervenor below and appellant
herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
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“THE TRIAL COURT ERRED IN VACATING THE
SHERIFF’S SALE OF THE SUBJECT PROPERTY TO
APPELLANT JACOB MCNICHOLS BECAUSE THERE WAS
NO ‘IRREGULARITY’ IN THE SALE AND BECAUSE
DEFENDANT-APPELLEE JAMES MACE WAIVED HIS
RIGHTS TO CONTEST IT.”
SECOND ASSIGNMENT OF ERROR:
“IN THE ALTERNATIVE, THE TRIAL COURT ERRED
BY ALLOWING DEFENDANT-APPELLEE JAMES MACE TO
PURCHASE THE SUBJECT PROPERTY IN PARTITION
FOR AN AMOUNT BELOW THE STATUTORILY REQUIRED
PRICE.”
{¶2} The present appeal arises out of a complaint to
partition property. On October 7, 2020, Tommy Joe Mace,
Christie Pierce, and Tommy Joe Mace, as administrator for the
estate of Nancy Marie Morris (plaintiffs), filed a complaint to
partition real estate against, among others, James Eugene Mace,
defendant below and appellee herein. The complaint alleged that
the plaintiffs own three-fourths of the interest in a parcel of
real estate and that appellee claims a one-fourth interest in
the property. The plaintiffs asked the trial court to partition
the real estate and to order it sold if it cannot be
partitioned.
{¶3} On September 24, 2021, the trial court granted the
request for a partition, issued a writ of partition, and
appointed a commissioner. The commissioner’s return stated that
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the property could not be partitioned. The commissioner also
appraised the property at $90,000.
{¶4} On December 15, 2021, the trial court approved the
commissioner’s return and ordered any party who wished to elect
to take the estate at the appraised value do so before December
31, 2021.
{¶5} On January 24, 2022, the trial court noted that,
because none of the parties elected to take the property, the
court ordered the Vinton County Sheriff to sell the property at
public auction. At this point, the Sheriff asked three Vinton
County freeholders to appraise the property.1 The freeholders
appraised the property at $22,500. At auction, appellant made a
winning bid in the amount of $26,000.
{¶6} On July 7, 2022, appellee filed a motion to vacate the
sheriff’s sale. Appellee asserted that the order of sale
mistakenly stated that a judgment had been issued against him in
the amount of $90,000, rather than state that $90,000 is the
appraised value of the property. Appellee pointed out that R.C.
5307.12 provides that the property shall not be “sold for less
We observe that when property subject to partition under
R.C. Chapter 5307 must be sold at a sheriff’s sale, an
additional appraisal is unnecessary. See 5307.12(A)(1) (“[t]he
sale shall be conducted as upon execution, except that it is
unnecessary to appraise the estate”).
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than two thirds of the value returned by the commissioner” and
asserted that he should have been provided the opportunity to
buy the property for $22,500 before the public auction, or the
sheriff should have used the $90,000 value with an opening bid
of $60,000.
{¶7} On October 5, 2022, the trial court vacated the
sheriff’s sale and held a status conference with the partition
parties (the plaintiffs and appellee). The parties agreed that
“a material irregularity occurred because the bidding at the
Sheriff’s sale began at a level significantly lower than the
Return of Commissioner previously filed with the Court.” The
court stated that because it would “not confirm the Sheriff’s
sale,” it vacated the sale and ordered the case to proceed as if
the sale had not occurred. The court then allowed the partition
parties to elect to take the property with the lower value as
the opening bid. Appellee and plaintiff Christie Pierce elected
and appellee placed the higher bid of $25,250. The court
approved appellee’s election, ordered him to pay the amount due,
and directed the Vinton County Sheriff to execute and deliver a
deed to appellee. The court stated that it would hold a
separate hearing to decide how to distribute the sales proceeds.
{¶8} On October 6, 2022, appellant filed a motion to ask
the trial court to allow him to intervene before the court
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issued a decision regarding appellee’s motion to vacate the
sheriff’s sale. The certificate of service indicates that
appellant sent this motion on October 3, 2022, but it was not
docketed until October 6, 2022, the day after the trial court
approved appellant’s election to take the property.
{¶9} On November 2, 2022, the trial court granted
appellant’s motion to intervene and sua sponte set the matter
for a hearing to reconsider its decision “vacating sheriff’s
sale of October 5, 2022.” Although the court apparently
intended to reconsider its decision to vacate the sheriff’s
sale, it did not make any mention of its October 5, 2022
decision to approve appellee’s election to take the property and
directed the Vinton County Sheriff to execute and deliver a deed
to appellee. Thus, appellee purchased the property. On
December 12, 2022, the trial court denied its own sua sponte
motion to reconsider and distributed the sale proceeds. This
appeal followed.
{¶10} In his two assignments of error, appellant asserts
that the trial court erred by vacating the sheriff’s sale and by
allowing appellee to purchase the property for $22,250. He asks
that we reverse and remand the trial court’s judgment so that he
can purchase the property for the amount of his original bid,
$26,000.
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{¶11} We initially observe that in a partition action, an
order that confirms an election or partitions property is
similar to an order of sale in a foreclosure action and, hence,
constitutes a final order. See Hack v. Keller, 9th Dist. Medina
No. 14CA0036-M, 2015-Ohio-4128, ¶ 11, quoting Mitchell v. Crain,
108 Ohio App. 143, 149 (6th Dist.1958) (“‘the final order from
which appeals may be had in partition are limited to the order
of partition and the order confirming the sale’”); Schrader v.
Schrader, 4th Dist. Hocking No. 03CA20, 2004-Ohio-4104, ¶ 14,
fn. 3 (“the final orders in a partition action are the order of
sale and the confirmation”); Malone v. Malone, 119 Ohio App.
503, 505, 199 N.E.2d 405 (4th Dist.1963) (“order permitting the
bank to file an election to purchase at the appraised value was
a final order”). And an order that distributes the proceeds
following an election is similar to an order confirming a sale
in a foreclosure action and, thus, constitutes a final order.
See Hack at ¶ 11; Schrader at ¶ 14, fn. 3. In the case sub
judice, one of the October 5, 2022 orders confirmed appellee’s
election and the December 12, 2022 order distributed the
proceeds.
{¶12} If the other October 5, 2022 order – the order that
“vacated” the sheriff’s sale – is a final order, then the motion
to reconsider that order is a nullity. See Pitts v. Dept. of
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Transportation, 67 Ohio St.2d 378, 379–381, 423 N.E.2d 1105(1981) (motion to reconsider a final judgment “a nullity” and “a
legal fiction”). Moreover, if either the October 5, 2022 order
that approved appellee’s election or the order that vacated the
sheriff’s sale constitutes a final order, any appeal should have
been filed within 30 days of the order. Thus, a question arises
whether we should dismiss this appeal on the basis that it is
untimely. See Hack v. Keller, 9th Dist. Medina No. 14CA0036-M,
2015-Ohio-4128, ¶ 11, fn.1 (case law regarding finality of
partition orders is unclear). Nevertheless, as we explain
below, we believe that we must dismiss this appeal because it is
moot.
{¶13} “The doctrine of mootness is rooted both in the ‘case’
or ‘controversy’ language of Section 2, Article III of the
United States Constitution and in the general notion of judicial
restraint.” James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d
788, 791, 600 N.E.2d 736 (10th Dist.1991), citing 1 Rotunda,
Novak & Young, Treatise on Constitutional Law: Substance and
Procedure, 97, Section 2.13 (1986). “Ohio courts have long
exercised judicial restraint in cases which are not actual
controversies. No actual controversy exists where a case has
been rendered moot by an outside event.” Tschantz v. Ferguson,
57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). Thus, absent an
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exception, courts ordinarily may not consider an appeal that has
become moot. Cincinnati Gas & Elec. Co. v. Pub. Util. Comm. of
Ohio, 103 Ohio St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 15
(“an appellate court need not consider an issue, and will
dismiss the appeal, when the court becomes aware of an event
that has rendered the issue moot”); State v. Berndt, 29 Ohio
St.3d 3, 4, 504 N.E.2d 712 (1987) (reversing appellate court
decision that considered moot appeal); Schwab v. Lattimore, 166
Ohio App.3d 12, 2006-Ohio-1372, 848 N.E.2d 912, ¶ 10 (1st Dist.)
(“The duty of a court of appeals is to decide controversies
between parties by a judgment that can be carried into effect”).
{¶14} In general, a “‘case is moot when the issues presented
are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” Los Angeles Cty. v. Davis, 440 U.S.
625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), quoting Powell
v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491(1969). Moreover, a case is moot when an event occurs that
“renders it impossible for the court to grant any relief.”
Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21, syllabus (1910);
accord State ex rel. Maxwell v. Brice, 167 Ohio St.3d 137, 2021-
Ohio-4333, 189 N.E.3d 771, ¶ 18. “Conversely, if an actual
controversy exists because it is possible for a court to grant
the requested relief, the case is not moot, and a consideration
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of the merits is warranted.” State ex rel. Gaylor v. Goodenow,
125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 11; State
v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d
1167, ¶ 7.
{¶15} In the case sub judice, it appears that we cannot
grant appellant any relief. Thus, this appeal is moot. On
October 5, 2022, appellee elected to purchase the property, and
the trial court ordered the sheriff to execute a deed to
appellee. The next day, appellant filed a motion to intervene.
Appellant did not, however, seek a stay of the trial court’s
October 5, 2022 decision to approve appellant’s election and
order the sheriff to execute a deed to appellant. As a
consequence, appellee purchased the property. Later, on
December 12, 2022, the trial court distributed the proceeds from
appellant’s purchase of the property.
{¶16} Despite the property being transferred to appellee and
the proceeds distributed, appellant asks this court to reverse
and remand the trial court’s decision so that he may purchase
the property for the amount of his bid at the sheriff’s sale.
However, appellant does not cite authority to authorize this
court to order the trial court to direct appellee to divest
himself of the property and to sell it to appellant for $26,000.
Unlike a foreclosure case, the partition statutes do not contain
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any provisions that authorize restitution. See Governors Place
Condominium Owners Assn., Inc. v. Unknown Heirs of Polson, 11th
Dist. Lake No. 2016-L-070, 2017-Ohio-885, ¶ 29, citing R.C.
2329.45. Therefore, it appears that we cannot grant appellant
any effective relief. Consequently, this appeal is moot. In re
Appropriation for Hwy. Purposes, 169 Ohio St. 314, 316, 8 O.O.2d
315, 159 N.E.2d 451, 453 (1959) (case moot when judgment paid to
landowner by court order); accord DeMeter v. Castle Bail Bonds,
Inc., 10th Dist. Franklin No. 14AP-918, 2015-Ohio-2540, ¶ 7-8
(judgment satisfied in full rendering appeal moot after trial
court disbursed garnished funds to appellee); Ohio Power Co. v.
Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶¶ 13-14
(appeal regarding distribution of damages moot when clerk
already had distributed damage award to appellants); Atlantic
Veneer Corp. v. Robbins, 4th Dist. No. 03CA719, 2004-Ohio-3710,
¶ 8 and 17 (appeal moot when party satisfied judgment and did
not seek a stay of execution pending appeal); Slovak v.
University Off–Campus Housing, 4th Dist. No. 99CA50, 2000 WL
680479, *1 (May 19, 2000) (declined to address merits of claim
when record indicated judgment had been satisfied).
{¶17} Furthermore, it appears that none of the exceptions to
the mootness doctrine apply. See Danis Clarkco Landfill Co. v.
Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 598, 653
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N.E.2d 646 (1995) (“even where appeals to this court might be
deemed technically moot, this court may nevertheless hear them
where, as here, the appeal contains issues of great public or
general interest”). The case at bar involves a partition of
real property between private parties and a third party’s desire
to purchase the property. None of the issues concerns “issues
of great public or general interest.” McCarthy v. Lippitt, 7th
Dist. Monroe No. 04-MO-1, 2004-Ohio-5367, ¶ 38 (“[t]he
distribution of proceeds from the severance of a joint tenancy
is private and contains no matters of great public interest”).
{¶18} Accordingly, based upon the foregoing reasons, we
dismiss this appeal.
APPEAL DISMISSED.
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JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that
appellees recover of appellants costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Vinton County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________
Peter B. Abele, Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.