Dayton, Ohio - Agricultural lawyer represented defendant with appealing from a judgment finding him liable for a promissory note.

The facts relevant to this matter were previously set forth by this court in

Harvest Land Co-Op, Inc. v. Hora, 2d Dist. Montgomery No. 25068, 2012-Ohio-5915

(Hora I), wherein we stated:

Plaintiff Harvest Land Co–Op, Inc. ("Harvest Land”) is an agricultural

cooperative. 1 Defendant Frankie J. Hora is a farmer and has been a

member of the Harvest Land cooperative since 2006. Hora purchased

agricultural products and services from Harvest Land during that time, and

he maintained an account with Harvest Land for that purpose. Sometime in

2009, Hora fell into arrears in paying the account. In March of 2009, Frankie

Hora paid Harvest Land $21,089.91 on the account. Hora and his wife, Mary

D. Hora, also gave Harvest Land a promissory note for $100,000.00.

On March 16, 2010, Plaintiff Harvest Land filed a complaint alleging

1 Following a January 2021 merger, Co-Alliance Cooperative, Inc. became the

succeeding legal entity of Harvest Land Co-Op, Inc. For the sake of clarity, we will

continue to refer to the plaintiff-appellee as "Harvest Land.”

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that the Horas had defaulted on the promissory note in the amount of

$100,000.00 made payable to Harvest Land, and that the sum of

$100,787.26, plus interest, was due, owing, and unpaid. Harvest Land also

alleged that the promissory note "memorialized” a delinquent debt on an

account the Horas previously owed.

A copy of the alleged promissory note was attached to Harvest

Land's complaint. The note requires the Horas to pay the face amount of

$100,000.00, plus interest at the rate of eight percent per annum, in monthly

payments of $3,133.64, beginning May 1, 2009. The note further provides

that interest charges at the rate of 21 percent per annum will accrue after

the date of maturity until the amounts due and owing are paid in full, plus

attorney's fees and costs of collection.

After obtaining leave of court, the Horas filed an amended answer

and counterclaim. After denying certain allegations on Harvest Land's

complaint, the Horas admitted Harvest Land's allegation that their

promissory note memorialized a delinquent debt and that they failed to

make all payments due on the note, alleging that their failure was due to

Harvest Land's wrongful conduct. The Horas also admitted that Harvest

Land expected to be paid for agricultural products it sold to the Horas that

were not defective. The Horas also admitted that they failed to pay for

certain agricultural products which failed to perform as represented by

Harvest Land, but denied that they owed $100,000.00 plus interest on the

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note.

The Horas' counterclaim alleged breaches of their contracts by

Harvest Land in five separate causes of action and claims for unjust

enrichment in two causes of action. The Horas also asked for an accounting

of payments they made and services they provided Harvest Land.

The matter was referred to a magistrate. Following hearings, the

magistrate filed a decision on November 15, 2010, granting Harvest Land

summary judgment on its claim for relief on the promissory note. The

magistrate rejected the Horas' claim that their promissory note is

unenforceable for lack of consideration. The magistrate held that the

promissory note is an instrument for value, and therefore does not lack

consideration, because it was issued by the Horas as payment of, or as

security for, an antecedent claim against Frank Hora for the balance due on

his account with Harvest Land. R.C. 1303.33(A)(3). The magistrate further

found that the Horas failed to bear their burden to rebut the presumption of

the existence of consideration for a promissory note. Accordingly, the

magistrate granted judgment for Harvest Land in the amount of

$106,876.15, plus per diem interest. The magistrate further held that the

summary judgment for Harvest Land rendered moot the Horas' claims for

unjust enrichment and breach of contract.

The Horas filed objections to the magistrate's decision. Before those

objections were ruled upon by the trial court, the magistrate filed a second

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decision on January 14, 2011, granting summary judgment for Harvest Land

on the Horas' counterclaims for breach of contract and unjust enrichment.

No objections were filed to that decision, which on July 7, 2011 was adopted

by the trial court as its own order.

On August 1, 2011, the magistrate filed a third decision, awarding

Harvest Land a judgment for $25,062.50 on its claim for attorney's fees.

Objections to that decision were filed by both Harvest Land and the Horas.

On February 6, 2012, the trial court overruled the objections the

Horas filed to the summary judgment for Harvest Land in the amount of

$106,876.15, plus interest, and the court adopted the magistrate's decision

on that matter as the court's order. The court also overruled the objections

the parties filed to the magistrate's decision with respect to attorneys' fees

for lack of a transcript.2

On March 9, 2012, the Horas filed a notice of appeal from the trial

court's final order of February 6, 2012. Harvest Land filed a notice of crossappeal from that same final order.

(Footnotes added.) Id. at ¶ 2-11.

{¶ 3} On December 14, 2012, we reversed the trial court's decision denying the

Horas' counterclaim for an accounting. The matter was remanded solely for further

proceedings on the claim for an accounting. The trial court's decision was affirmed in all

2 Of relevance hereto, but not mentioned in Hora I, following the filing of the judgment in

its favor, Harvest Land caused an R.C. 2329.02 certificate of judgment lien to be filed with

the Clerk of Courts of Montgomery County, Ohio. See 2012 CJ 183311.

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other respects. Id. at ¶ 96.

{¶ 4} On remand, the Horas filed a motion for leave to amend their counterclaim

to assert a claim for fraud. The motion was overruled on August 20, 2013. A trial on

the accounting was conducted in September 2013. On December 2, 2013, the

magistrate entered a decision in which it reduced the amount due on the promissory note

to $89,307.15 due to a mistake in the account charges as well as an error related to the

interest charged on the account. The magistrate also noted that the Horas were entitled

to a credit of $3,433.64 for payments made on the promissory note.

{¶ 5} Hora filed objections to the magistrate's decision. They also filed a Civ.R.

60(B) motion for relief from the magistrate's original 2010 decision. On April 11, 2014,

the trial court overruled the objections to the magistrate's decision. On April 15, 2014,

the trial court overruled the motion for Civ.R. 60(B) relief from judgment. Thereafter, the

previously filed certificate of judgment was amended to reflect the reduction in the

judgment amount.

{¶ 6} Hora filed separate, timely notices of appeal from each decision. The

appeals were consolidated in July 2014. In August 2014, Hora, acting pro se, filed his

appellate brief. Harvest Land then filed its brief. Thereafter, Hora retained counsel who

filed a motion seeking to amend Hora's previously-filed brief. In the motion, counsel

indicated it was necessary to properly format the brief and that the arguments required

clarification and consolidation. The motion was granted, and an amended brief was filed

on December 17, 2014.

{¶ 7} In March 2015, Hora and his wife filed for bankruptcy protection. Thereafter,

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this court filed an order staying the appeal pending the completion of the bankruptcy

action. The stay was lifted on September 8, 2021, following notification that the

bankruptcy action had been resolved. On October 14, 2021, we ordered the parties to

file supplemental briefing regarding the sole issue of whether the discharge in the

bankruptcy case rendered this appeal moot.

{¶ 8} On November 15, 2021, Hora filed a document entitled "Amended Brief of

Appellant Frankie J. Hora.” At the beginning of the document, Hora set forth a one-page

statement of his basis for claiming this appeal is not moot. However, the remaining 34

pages of the document appear to be a restatement of the appellate brief filed by Hora in

August 2014 prior to retaining counsel.

{¶ 9} On February 24, 2022, this court entered an order requiring Harvest Land to

file its supplemental brief addressing the issue of mootness. Hora filed an objection to

that order which was subsequently overruled. In the interim, it was discovered that

counsel for Harvest Land had passed away during the bankruptcy stay, but all postbankruptcy filings had continued to be mailed to counsel. It was further discovered that

Harvest Land had merged with another company. Notice was provided to the new

corporate entity. On March 10, 2022, Harvest Land, through new counsel, filed a motion

for enlargement of time in which to file its supplemental brief. The motion was granted,

and Harvest Land filed a supplemental brief on April 5, 2022. Hora filed a motion to strike

the brief. The motion was overruled, but Hora was permitted to file a responsive brief,

which he filed on April 20, 2022. This matter is now ripe for review.

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II. Discharge in Bankruptcy Renders Appeal Moot

{¶ 10} Before we address the merits of the arguments raised in Hora's appellate

brief, we must determine whether this matter has been rendered moot by the discharge

in the bankruptcy action.

{¶ 11} The doctrine of mootness is founded upon the "long and well established

[premise] that it is the duty of every judicial tribunal to decide actual controversies between

parties legitimately affected by specific facts and to render judgments which can be

carried into effect.” State v. Muwwakkil, 2d Dist. Clark No. 2018-CA-37, 2018-Ohio4443, ¶ 6, quoting Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970).

Courts have no duty "to decide purely academic or abstract questions.” James A. Keller,

Inc. v. Flaherty, 74 Ohio App.3d 788, 791, 600 N.E.2d 736 (10th Dist.1991), citing Miner

v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910). Thus, a court "will not decide * * * cases in

which there is no longer any actual controversy.” Heartland of Urbana, OH, L.L.C. v.

McHugh Fuller Law Group, P.L.L.C., 2016-Ohio-6959, 72 N.E.3d 23, ¶ 36, citing In re

A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37, quoting Black's Law

Dictionary 1100 (9th Ed.2009).

{¶ 12} Hora filed for bankruptcy protection under the auspices of Chapter 12 of the

United States Bankruptcy Code, which "was enacted in November 26, 1986 to provide

family farmers with regular annual income to stay in possession of the farm while

obtaining court approval of a debt readjustment plan. Chapter 12 combines elements of

Chapter 11 reorganizations and Chapter 13 Wage Earner Plans with a number of

provisions unique to farm bankruptcies.” Mercer Sav. Bank v. Fullenkamp, 116 Ohio

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App.3d 647, 649, 688 N.E.2d 1111, fn. 6 (3d Dist.1996). There is no dispute that Harvest

Land filed a timely proof of claim in which it asserted that it held secured creditor status

based upon the lien created by the certificate of judgment filed with the Montgomery

County Clerk of Court. In its filings with the bankruptcy court, Harvest Land claimed it

was owed $146,759.02. However, only $50,000, plus interest, was allowed under the

bankruptcy plan. Ultimately, the bankruptcy trustee paid Harvest Land $59,126. An

order of discharge was granted to the Horas and filed of record on May 13, 2021.

Harvest Land asserts that the order of discharge specifically states that the certificate of

judgment, recorded at 2012 CJ 183311, "shall be deemed satisfied and released of

record.”

{¶ 13} Hora does not dispute that the debt and certificate of judgment were

discharged in the bankruptcy action, and he does not dispute that he no longer owes any

monies to Harvest Land. Instead, he claims that this appeal is not moot and should be

decided under the exceptions to the mootness doctrine.

{¶ 14} We recognize that the mootness doctrine does have limited exceptions that,

when present, allow review. One such exception involves issues that are "capable of

repetition, yet evading review.” State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio

St.3d 165, 527 N.E.2d 807 (1988), paragraph one of the syllabus. "This exception

applies only in exceptional circumstances in which the following two factors are both

present: (1) the challenged action is too short in its duration to be fully litigated before its

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again.” Lund v. Portsmouth Local

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Air Agency, 10th Dist. Franklin No. 14AP-60, 2014-Ohio-2741, ¶ 8, quoting State ex rel.

Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000). "[T]here

must be more than a theoretical possibility that the action will arise again.” Id., citing

Robinson v. Indus. Comm., 10th Dist. Franklin No. 04AP-1010, 2005-Ohio-2290, ¶ 8,

quoting James A. Keller, Inc., 74 Ohio App.3d 788, 792, 600 N.E.2d 736. "An injury is

not deemed capable of repetition merely because someone, at sometime [sic], might

suffer the same harm; there must be a reasonable chance that it will happen again to the

complaining party.” Heartland of Urbana OH, L.L.C., 2016-Ohio-6959, 72 N.E.3d 23,

¶ 39, quoting Village of W. Unity ex rel. Beltz v. Merillat, 6th Dist. Williams No. WM-03-

016, 2004-Ohio-2682, ¶ 16, citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347,

46 L.Ed.2d 350 (1975).

{¶ 15} Hora does not suggest that this type of action -- a complaint to enforce a

promissory note -- is by its nature too short in duration to be fully litigated before its

cessation. Indeed, notwithstanding the time on appeal and the bankruptcy stay, this

action was pending in the trial court for over four years. Thus, we cannot conclude this

debt collection action has been of too short a duration to fully litigate the issues raised

therein. Also, there is no evidence, and Hora has not demonstrated, that there is any

reasonable expectation that he will be subject to the same action again. There is no

evidence that Hora remains a member or utilizes the services of Harvest Land. And

there is no evidence that Harvest Land maintains the same business practices it had

before it merged with another company. Thus, we cannot say there is a reasonable

chance that the same sequence of events that occurred in this case will occur again.

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Therefore, we find no merit in Hora's claim that the "capable of repetition yet evading

review” exception is applicable.

{¶ 16} In reference to other exceptions to the mootness doctrine, we note that "[an

appellate] court may hear the appeal where there remains a debatable constitutional

question to resolve, or where the matter appealed is one of great public or general

interest.” State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775

N.E.2d 508, ¶ 16, quoting from Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d

28, 505 N.E.2d 966 (1987). However, this record is devoid of anything to suggest either

of these exceptions are applicable to this case.

{¶ 17} Finally, Hora argues that the appeal is not moot because the failure to

determine the merits of the case will result in secondary legal consequences. In support,

he claims that Harvest Land will continue to make fraudulent charges and impose

improper interest rates if this appeal is not decided on the merits.

{¶ 18} We presume that Hora refers to the "collateral consequences” exception,

which the Supreme Court of Ohio has recognized as existing in civil and criminal cases

where "the collateral consequence is imposed as a matter of law.” Cyran v. Cyran, 152

Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9. However, the court also stated in

Cyran that "[s]peculation is insufficient to establish a legally cognizable interest for which

a court can order relief using the collateral-consequences exception to the mootness

doctrine.” Id. at ¶ 11. Likewise, this court has stated, "[a] collateral disability must be a

substantial, individualized impairment, and a purely hypothetical statement, about what

might occur in the future is not sufficient to give viability to an otherwise moot appeal.”

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Cyran v. Cyran, 2016-Ohio-7323, 63 N.E.3d 187, ¶ 7-8 (2d Dist.), aff'd, 152 Ohio St.3d

484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 7-8. Hora fails to identify any collateral

consequences which will occur by operation of law. Further, the claims that the company

will make future fraudulent charges and/or impose improper interest charges are purely

speculative, and thus insufficient to overcome the mootness doctrine.

{¶ 19} Finally, although not raised in the context of collateral legal consequences,

Hora claims he was denied a loan due to the existence of the certificate of judgment lien.

However, he has submitted no evidence to support a finding that the lien was the basis

for the denial of the loan. It is just as likely the loan was denied due to the bankruptcy

filing or to a lack of sufficient collateral. In any event, we will not speculate as to the

possibility that the certificate of judgment may result in the denial of future loan requests.

Further, given the resolution of the bankruptcy case, Hora has the ability to petition the

trial court for a notice of satisfaction and release regarding the certificate of judgment. In

other words, any claim that the certificate of judgment will cause collateral consequences

is without merit as Hora has a mechanism for voiding the lien.

{¶ 20} We conclude that any issues of whether the trial court properly denied

Hora's motion for Civ.R. 60(B) relief and whether it correctly determined the issue of the

accounting on the subject promissory note have been rendered moot because Hora's

debt, memorialized by the promissory note, was discharged in the federal bankruptcy

court proceedings. Hora has failed to dispute that discharge and has failed to

demonstrate the applicability of any of the exceptions to the mootness doctrine.

Therefore, we need not address the issues raised in his appellate brief.

Because Hora’s claims on appeal are moot, this appeal is dismissed.