Commonwealth Land Title Ins. Co. v. Choice Title Agency, Inc.Commonwealth Land Title Ins. Co. v. Choice Title Agency, Inc.
Dated: June 25, 2012
MOORE, Judge.
{¶1} Appellant, Commonwealth Land Title Insurance Company, appeals orders from the Lorain County Court of Common Pleas. This Court reverses.
I
{¶2} Sandra Maruna was the principal of Choice Title Agency which, in turn, served as title agent for Commonwealth Land Title Insurance Company with respect to certain real estate transactions. In 2008, a check tendered by Choice Title in connection with a real estate closing was dishonored for insufficient funds. Commonwealth, from whom the purchasers had obtained title insurance, paid $116,060.26 to the seller of the property when the check was dishonоred. Commonwealth’s subsequent investigation led to the discovery that Ms. Maruna had misappropriated funds from Choice Title as a result of questionable business deals with a man named Moclanail Rodgers.
{¶4} Commonwealth sued Choice Title Agency and Sandra Maruna to recover the money that it spent when Choice Title’s check was dishonored. Commonwealth alleged claims against Choice Title and Ms. Maruna for civil conspiracy and fraudulent conveyance, sought civil damages for theft, as permitted by
{¶5} Commonwealth moved for summary judgment on its claims against Mr. Maruna, and Mr. Maruna filed a cross-motion for summary judgment. The trial court denied Commonwealth’s motion, but granted Mr. Maruna’s. Commonwealth alsо moved for summary judgment against Ms. Maruna and Choice Title on each of the claims alleged against them. They did not respond, and the trial court granted Commonwealth’s motion for summary judgment on
{¶6} On June 23, 2010, the trial court ordered Ms. Maruna and Choice Title to pay $32,125.82 in attorney’s fees. Commonwealth appealed, but we dismissed that appeal, concluding that because the June 23, 2010, order did not address attorney’s fees with respect to Mr. Rodgers or Affordable Real Estate Solutions, it was not final and appealable. Commonwealth Land Title Ins. Co. v. Choice Title Agency, Inc., 9th Dist. No. 10CA009848, 2011-Ohio-396. On March 23, 2011, the trial court combined the substance of its May 27, 2010, orders into one order and awarded attorney’s fees from Ms. Maruna, Choice Title, Mr. Rodgers, and Affordable Real Estate Solutions, jointly and severally. Commonwealth appealed that order and the May 27, 2010, оrders in two separate appeals, which this Court consolidated.
II
{¶7} Commonwealth has raised eight assignments of error in support of its appeal. The first six challenge various aspects of the trial court’s May 27, 2010, order with respect to its claims against Mr. Maruna. The final two assignments of error relate to the March 23, 2011, order with respect to its claims against Ms. Maruna and Choice Title. We have rearranged the assignments of error for purposes of discussion.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER
R.C. §1336.04(A)(1) . [MS. MARUNA] TRANSFERRED THE MARUNA PROPERTIES TO [MR. MARUNA] WITH THE ACTUAL INTENT TO HINDER, DELAY OR DEFRAUD COMMONWEALTH.
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER
R.C. §1336.04(A)(2) . [MS. MARUNA] TRANSFERRED HER INTEREST IN THE MARUNA PROPERTIES WITHOUT RECEIVING A REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR THE TRANSFER AND SHE KNEW, AT THAT TIME, THAT SHE WOULD INCUR DEBTS BEYOND HER ABILITY TO PAY AS THEY BECAME DUE.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER
R.C. §1336.05 . [MS. MARUNA] TRANSFERRED HER INTEREST IN THE MARUNA PROPERTIES WITHOUT RECEIVING A REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR THE TRANSFER AND SHE BECAME INSOLVENT AS A RESULT OF THE TRANSFER.
{¶8} In Commonwealth’s second, third, and fourth assignments of error it argued that Commonwealth, not Mr. Maruna, was entitled to summary judgment on its fraudulent conveyance claim. In other words, Commonwealth has arguеd that the trial court should have granted summary judgment to it or, in the alternative, not at all.
{¶9} Under
{¶10} When a creditor’s claim arises before the transfer of property, a fraudulent conveyance as to that creditor may exist in four situations: (1) if the debtor transferred property with actual intent to defraud the crеditor, (2) if the debtor did not receive reasonably equivalent value for the transfer under the circumstances described in
{¶11} A creditor does not need to prove intent on the part of the transferee to establish a claim for fraudulent conveyance, but transferees may prove defenses to the claim and assert their rights as described in
{¶12} Commonwealth’s motion for summary judgment argued that the transfеr of property from Ms. Maruna to Mr. Maruna was fraudulent under
{¶13}
{¶14} Since the conveyances at issue were “transfers,” and since Mr. Maruna did not argue that any of the defenses available under
{¶15} Under
{¶16} Commonwealth was granted summary judgment against Ms. Maruna based, in part, on her admissions by default under
{¶17} Commonwealth also supported its motion for summary judgment against Mr. Maruna with these writtеn admissions. See generally
ASSIGNMENT OF ERROR I
IT WAS IMPROPER FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT TO [MR. MARUNA] AFTER IT FOUND THAT THERE WERE GENUINE ISSUES OF MATERIAL FACT IN THIS CASE.
IF THE TRIAL COURT’S DECISION TO GRANT SUMMARY JUDGMENT TO [MR. MARUNA] WAS BASED, IN ANY WAY, ON ITS BELIEF THAT THE DIVORCE DECREE PREVENTED COMMONWEALTH FROM PURSUING A CLAIM FOR FRAUDULENT CONVEYANCE THEN THIS WAS AN ERROR AS A MATTER OF LAW.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO COMMONWEALTH ON ITS FRAUDULENT CONVEYANCE CLAIM AGAINST [MS. MARUNA], THE TRANSFEROR, BUT DENIED COMMONWEALTH[’S] SUMMARY JUDGMENT CLAIM AGAINST [MR. MARUNA], THE TRANSFEREE.
{¶18} In light of our disposition of Commonwealth’s second assignment of error, its first, fifth, and six assignments of error are also moot. See
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED WHEN IT FAILED TO DECLARE THE TRANSFER OF THE MARUNA PROPERTIES VOID AND FAILED TO ALLOW COMMONWEALTH TO EXECUTE ON ITS JUDGMENT THROUGH A FORECLOSURE ON THE MARUNA PROPERTIES.
{¶19} Commonwealth’s seventh assignment of error argues that, having entered summary judgment against Ms. Maruna on its fraudulent conveyance claim, the trial court erred by awarding only the remedy of a money judgment. In light of our conclusion that the trial court erred by entering summary judgment in favor of Mr. Maruna on the fraudulent conveyance claim against him and, conversely, by failing to enter summary judgment in Commonwealth’s favor on that claim, we agree in part.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD COMMONWEALTH TREBLE DAMAGES PURSUANT TO
R.C. §2307.61 AGAINST [MS. MARUNA] AND [CHOICE TITLE].
{¶20} Commonwealth’s final assignment of error is that the trial court erred by failing to award treble damages despite granting summary judgment to Commonwealth under
{¶21} Under
{¶22} Instead, our decision is controlled by the language of the statute itself.
{¶23} The trial court granted summary judgment to Commonwealth on its claims against Ms. Maruna and Choice Title, including its claim for civil liability arising from the theft offense of passing bad checks. Although not specified in thе Amended Complaint, Commonwealth’s motion for summary judgment also explained that it sought treble damages under
III
{¶24} Commonwealth’s second assignment of error is sustained. The trial court’s order granting summary judgment tо Mr. Maruna is therefore reversed with respect to the fraudulent conveyance claim, and judgment is entered in favor of Commonwealth on that claim. Commonwealth’s first, third, fourth, fifth, and sixth assignments of error are moot. The seventh and eighth assignments of error are sustained and, with respect to those assignments of error, the
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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellees.
CARLA MOORE
FOR THE COURT
WHITMORE, P.J.
DICKINSON, J.
CONCUR
DONALD P. MCFADDEN and MONICA E. RUSSELL, Attorneys at Law, for Appellant.
KENNETH P. FRANKEL, Attorney at Law, for Appellees.
JAMES V. BARILLA, Attorney at Law, for Appellee.