[Cite as Sutton v. Douglas , 2015-Ohio-164.]

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

RODD SUTTON Appellant

v. ROSEMARY DOUGLAS, et al. Appellees C.A. No. 27308

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2013-03-1368

DECISION AND JOURNAL ENTRY Dated: January 21, 2015

BELFANCE, Presiding Judge. {¶1} Plaintiff-Appellant Rodd Sutton appeals fro m the dismissal of his complaint by the Summit County Court of Common Pleas. For the reasons set forth below, we reverse.

I. {¶2} Mr. Sutton filed the instant compla int (“2013 Complaint”) on March 7, 2013, seeking declaratory relief against Rosemary Douglas, Charles Douglas, Randi Richards, Brian Richards, Fairway Independent Mortgage Co rporation, Mortgage Electronic Registration Systems, and Summit County Child Support Enforcem ent Agency (collectively “Defendants”). Mr. Sutton alleged that, in 2006, he filed a complaint against Vict oria Sutton and that on March 12, 2008, he filed a third supplemental complaint in that lawsuit alleging that Ms. Sutton fraudulently transferred property at 3093 Ghent Ct. in Akron to Ms. Douglas. 1 He further alleged in the 2013 Complaint that Ms. Douglas transferred the Gh ent Ct. property to Randi and

1 The third supplemental complaint was filed as an exhibit to the complaint at issue.2

Brian Richards via a warranty deed recorded on April 11, 2008. 2 Additionally, Mr. Sutton alleged that he was granted a judgment ag ainst Ms. Douglas for $136,000 on February 4, 2010, and that he filed a certificate of judgment based upon that judgment on February 9, 2010. 3 He maintained that the judgment remained unsatisfied. He further asserted that, because the

Richards had notice of the fraudulent transfer claim involving the Ghent Ct. property, the certificate of judgment was a valid lien that attached to the Ghent Ct. property. Mr. Sutton asserted that a dispute existed with respect to whether his certificate of judgment attached to the Ghent Ct. property and with respect to the priority of his certificate of judgment as a lien on the Ghent Ct. property. Mr. Sutton sought a decl aratory judgment as to those disputes. {¶3} Randi and Brian Richards filed a motion to dismiss pursuant to Civ.R. 12(B)(6), essentially arguing that the 2013 Complaint set fo rth no cognizable claim because the certificate of judgment could not, as a matte r of law, attach to the Ghen t Ct. property. Subsequently, Mortgage Electronic Registration Systems, Inc. filed a similar motion to dismiss pursuant to Civ.R. 12(B)(6), arguing that the judgment lien did not attach to the property and that lis pendens did not apply. The trial court stayed the matter due to Mr. and Ms. Dougla s’ pending bankruptcy proceedings. When the case was returned to the active docket, the trial court dismissed Mr. Sutton’s 2013 Complaint with prejudice. {¶4} Mr. Sutton appealed, raising two assignments of error for our review. Subsequent to filing this appeal, Mr. Sutton withdr ew his second assignment of error.

2 Mr. Sutton filed a copy of the warranty deed as an exhibit to the current complaint. 3 Mr. Sutton filed a copy of the certificate of judgment as an exhibit to the complaint.3

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTSAPPELLEES, RANDI AND BRIAN RICHARDS’[] CIV.R. 12(B)(6) MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. {¶5} Mr. Sutton argues in his sole assignment of error that the trial court erred in dismissing his complaint pursuant to Civ.R. 12(B)(6 ). Based upon the trial court’s entry in this

matter, we agree. {¶6} “A complaint for declaratory relief may be dismissed for failure to state a claim upon which relief can be granted only if (1) no re al controversy or justiciable issue exists between the parties, or (2) the declaratory judgment will not terminate the uncertainty or controversy.” (Internal quota tions and citation omitted.) Mt. Eaton Community Church, Inc. v. Ladrach, 9th Dist. Wayne No. 07CA0092, 2009-Ohio-77, ¶ 7; see also Velasquez v. Ghee, 99 Ohio App.3d 52, 54 (9th Dist.1994). Here the trial c ourt did not determine that there was no real controversy or justiciable issue between the partie s or that a declaratory judgment would not end the dispute. See Mt. Eaton Community Church, Inc. at ¶ 8. The trial court’s entry states: “This matter coming before the Court on the Motion to Dismiss filed by the Defendant[s] Randi

Richards and Brian Richards. The Court finds said Motion to be well taken; and, it is, therefore, ordered, adjudged and decreed that the Plaintiff’s Complaint is hereby dismissed with prejudice.” As noted above, the Richards’ mo tion essentially asserted that Mr. Sutton could not obtain the declarations he sought. Thus, the Richards were advancing arguments concerning the merits of the declaratory judgment action and why such s hould be resolved in their favor. Given the language in the entry, which cites to the Richards’ Motion to Dismiss as a basis for dismissal, it does not appear the trial c ourt was dismissing the complaint for a permitted reason. See id. at ¶4

7. Moreover, this error is not harmless because the trial court did not determine the legal issue that Mr. Sutton sought to have resolved. See id. at ¶ 6, 8 (determining the dismissal was

harmless where the trial court deci ded the legal issue the plaintiff sought to have resolved upon the parties’ submission of stipulated facts); see also Velasquez at 54; Fioresi v. State Farm Mut. Auto. Ins. Co., 26 Ohio App.3d 203, 203-204 (1st Dist.1985). “Where the plaintiff has no right to the relief requested under the facts submitted, the trial court must so state in its judgment entry.” Velasquez at 54. {¶7} Accordingly, we sustain Mr. Sutton’s assignment of error to the extent that he maintains the trial court erred in dismissing the complaint pursuant to Civ.R. 12(B)(6). This Court takes no position on the merits of the dis pute; we only conclude that the trial court dismissed the 2013 Complaint pursuant to Civ.R . 12(B)(6) for a reason not permitted under the

law.

III. {¶8} In light of the foregoing, we reverse the judgment of the Summit County Court of Common Pleas and remand the matter for proc eedings consistent with this opinion. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.5

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees.

EVE V. BELFANCE FOR THE COURT

CARR, J. WHITMORE, J. CONCUR.

APPEARANCES: TIMOTHY H. HANNA, Attorney at Law, for Appellant. JAMES M. CAMPBELL and JULIET K. FALCONE, Attorneys at Law, for Appellant. BRADLEY P. TOMAN, Attorney at Law, for Appellees. KIMBERLY Y. SMITH RIVERA, Attorney at Law, for Appellee.