NORMAN R. CROWE, JR. v. FIRSTENERGY CORP., ET AL.
Case No. 10CA023
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 29, 2011
2011-Ohio-5092
Hon. Sheila G. Farmer, P.J.; Hon. Julie A. Edwards, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No. 09 CV 144. JUDGMENT: AFFIRMED.
For Appellant-Norman R. Crowe, Jr.: CHARLES A. KENNEDY, 558 N. Market St., Wooster, OH 44691
For Appellee-FirstEnergy Corp.: PAUL W. LOMBARDI, 222 S. Main St., Suite 400, Akron, OH 44308
For Appellee-Mary Lou Crowe: ROBERT P. DESANTO, 432 Center St., Ashland, OH 44805
Delaney, J.
{¶1} Plaintiff-Appellant, Norman R. Crowe, Jr. appeals the November 16, 2010 decision of the Holmes County Court of Common Pleas that granted summary judgment to Defendants-Appellees FirstEnergy Corp. and Mary Lou Crowe on plaintiff‘s claim for conversion of FirstEnergy Corp. stоcks.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant, Norman R. Crowe, Jr. and Appellee, Mary Lou Crowe were divorced on July 28, 2008. Per the terms of the parties’ Separation Agreement, Mr. Crowe agreed to transfer 50% of his shares of common stock in FirstEnergy Corp. to Ms. Crowe. At the time of the divorce, Mr. Crowe owned 844.137 shares of common stock in FirstEnergy Corp.
{¶3} FirstEnergy‘s Shareholder Services Department received from Mr. Crowe a stock power dated August 28, 2008, requesting FirstEnergy to transfer one-half of Mr. Crowe‘s FirstEnergy shares of common stock to Ms. Crowe. Given that а dividend reinvestment was due to be made on or about September 1, 2008, FirstEnergy waited to transfer the shares of the stock until September 13, 2008, after the reinvested shares were purchased and posted to all accounts. On September 13, 2008, FirstEnergy mistakenly permitted the transfer of all of Mr. Crowe‘s shares of stock to Ms. Crowe (850.558 shares at that time). At the time of transfer, the transfer price of the stock was $69.42 per share.
{¶4} Ms. Crowe was unaware that FirstEnergy had mistakenly transferred 100% of Mr. Crowe‘s shares of FirstEnergy stock to her. On September 26, 2008, Ms. Crоwe‘s broker took all 850 whole shares into a brokerage account through a direct
{¶5} On April 29, 2009, Mr. Crowe became aware that FirstEnergy had transferred 100% of his FirstEnergy stock to Ms. Crowe. Mr. Crowe notified Ms. Crowe‘s attorney of the error and demanded that Ms. Crowe transfer ownership of 50% of the shares back to Mr. Crowe.
{¶6} Mr. Crowe contacted FirstEnergy on May 1, 2009 and informed it that it had mistakenly transferred all of his FirstEnergy shares of stock to Ms. Crowe. On May 1, 2009, FirstEnergy‘s stock closed at $42.38 per share.
{¶7} Mr. Crowe submitted a letter to Ms. Crowe on May 1, 2009 demanding Ms. Crowe pay him $30,749.80 immediately or he would sue her for wrоngful conversion. Thereafter, FirstEnergy and Ms. Crowe worked together to transfer the shares of stock back to Mr. Crowe and on August 7, 2009, Ms. Crowe‘s broker delivered to FirstEnergy‘s transfer agent 425 shares of FirstEnergy stock, which were placed in a new account for Mr. Crowe. FirstEnergy‘s stock closed on August 7, 2009 at $42.87 per share.
{¶8} Because of the mistaken transfer, FirstEnergy told Mr. Crowe that it would reimburse him for quarterly dividends issued by FirstEnergy to shareholders during the period that the shares of stock were not in his account. Mr. Crowe declined FirstEnergy‘s offer and did not accept a September 1, 2009 dividend check from FirstEnergy.
{¶10} On July 9, 2010, Mr. Crowe filed a motion to reconsider the trial court‘s January 19, 2010 judgment entry granting Ms. Crowe‘s motion for summary judgment. During the pendency of the case, the matter was assigned to a visiting judge.
{¶11} The trial court held an oral hearing on the motion for reconsideration on November 2, 2010. There is no transcript of the hearing in the record. On November 16, 2010, the trial court ruled on Mr. Crowe‘s motion for reconsideration. The trial court determined that based on Mr. Crowe‘s motion for reconsideration, the trial court sua sponte reviewed both decisions issued on Jаnuary 19, 2010. The trial court denied Mr. Crowe‘s motion for reconsideration as to Ms. Crowe‘s motion for summary judgment. However, the trial court reconsidered the denial of FirstEnergy‘s motion for summary judgment and found that pursuant to
{¶12} It is from this decision Mr. Crowe now appeals.
{¶13} Appellant raises three Assignments of Error:
{¶14} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING SUMMARY JUDGMENT TO FIRST ENERGY.
{¶15} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING SUMMARY JUDGMENT TO NORMAN.
{¶16} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING SUMMARY JUDGMENT TO MARY LOU, AND DENYING NORMAN‘S MOTION FOR RECONSIDERATION, FOR THE REASON THERE EXISTS QUESTIONS OF MATERIAL FACT TO BE DETERMINED AT TRIAL.”
STANDARD OF REVIEW
{¶17} We will first address the standard of review applicable to Mr. Crowe‘s Assignments of Error. Summary judgment motions are to be resolved in light of the dictates of
{¶18} ”
{¶19} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and rеview summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35.
I., II.
{¶20} We review Mr. Crowe‘s first and second Assignments of Error together because they are interrelated. Mr. Crowe argues that the trial court erred in granting FirstEnergy‘s motion for summary judgment and denying his motion for summary judgmеnt.
{¶21} In Mr. Crowe‘s complaint, Mr. Crowe alleged against FirstEnergy:
{¶22} “9. On August 4, 2008, [FirstEnergy] negligently and beyond the authorization and consent of the Plaintiff and in violation of his instructions, transferred 100% of the shares of stock owned by Plaintiff * * * to the Defendant * * *.
{¶23} “* * *
{¶24} “12. [FirstEnergy] wrongfully transferred shares of stock of the Plаintiff * * * to the Defendant * * *”
{¶25} FirstEnergy responded to Mr. Crowe‘s complaint through summary judgment based on the theory of negligence. Mr. Crowe stated in his motion for summary judgment and opposition to FirstEnergy‘s motion for summary judgment that his complaint alleged a claim of conversion аgainst FirstEnergy, not negligence.
{¶26} The tort of conversion is defined as “the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights.” Heflin v. Ossman, Fairfield App .No. 05CA17, 2005-Ohio-6876, ¶ 20, quoting Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172.
{¶27} In order to prove the conversion of property, the owner must demonstrate (1) he or she demanded the return of the property from the possessor after the possessor exerted dominion or control over the property and (2) that the possessor refused to deliver the property to its rightful owner. Taber v. Charlie‘s Towing Service, Inc. (1994) 97 Ohio App.3d 423, 427, 646 N.E.2d 1132, citations omitted.
{¶28} “The measure of damages in a conversion action is the value of the converted property at thе time it was converted.” Congress Lake Club v. Witte, Stark App. No. 2007CA00191, 2008-Ohio-6799, ¶ 66. “The general rule as to value as the measure of damages in actions for conversion is not inflexible, but is governed by such special circumstances as are disclosed by the record. (Citation omitted). The general rule is subject tо exceptions as well established as the rule itself and founded upon the same equitable principle, namely, the recovery by the plaintiff of such damages as he has actually sustained, and no more. Thus, if the property has been retaken or returned, after taking, in whole or part, such fact is always regarded as an exception to the general rule that full value of the property should be regarded as the amount of
{¶29} Upon our de novo review of the parties’ motions for summary judgment and relatеd
{¶30} As stated above, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim.” Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Once the moving party meets its initial burden, the nonmovant must then produce competent evidence, as set forth in
{¶31} Compеtent evidence to be submitted in support of the nonmoving party‘s claim is described in
{¶32} FirstEnergy submitted affidavit testimony with its motion for summary judgment to support its contention that Mr. Crowe suffered no damages. FirstEnergy transferred 100% of his stocks to Ms. Crowe on September 13, 2008. It was not until May 1, 2009 that Mr. Crowe contacted FirstEnergy to inform them that the erroneous transfer had occurred. When FirstEnergy and Ms. Crowe learned of the error, FirstEnergy and Ms. Crowe attempted to rectify the error by returning 50% of the shares to Mr. Crowe and paying Mr. Crowe the dividends he was owed as if the stocks were in account during that period of time.
{¶33} Mr. Crowe‘s motion for summary judgment and response to FirstEnergy‘s motion for summary judgment makes a conclusory statement that Mr. Crowe is entitled to damages in his motion, but does not provide any
{¶34} We find our conclusion is supported by the trial court‘s statement granting FirstEnergy‘s motion for summary judgment and denying Mr. Crowe‘s motion for summary judgment:
{¶35} “Dеfendant First Energy Corporation is entitled to judgment as a matter of law and that Norman R. Crowe, Jr. has failed to produce a sufficient quantum of evidence on the issues postured for Summary Judgment, for which Norman R. Crowe Jr., bears the burden of production at Trial. More specifically, the undersigned concludes that Defendant First Energy Corporation did not proximately cause any damages to Norman R. Crowe, Jr. as a result of the mistaken transfer of shares of stock...” (Judgment Entry, November 16, 2010).
{¶36} Accordingly, we overrule Mr. Crowe‘s first and second Assignments of Error.
III.
{¶37} Mr. Crowe contends in his third Assignment of Error that the trial court erred when it granted Ms. Crowe‘s motion for summary judgment and denying his motion for reconsideration of the same. We disagree.
{¶38} Mr. Crowe also alleged the tort of conversion against Ms. Crowe. In this case, FirstEnergy transferred Mr. Crowe‘s stocks to Ms. Crowe upon Mr. Crowe‘s direction and FirstEnergy transferred the incorrect amount to Ms. Crowe.
{¶40} Upon our de novo review, we agree with the trial court‘s conclusion to grant Ms. Crowe‘s motion for summary judgment and deny Mr. Crowe‘s motion for reconsideration of the trial court‘s decision.
{¶41} Mr. Crowe‘s third Assignment of Error is overruled.
{¶42} The judgment of the Holmes County Court of Common Pleas is affirmed.
By: Delaney, J.
Farmer, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS
NORMAN R. CROWE, JR. v. FIRST ENERGY CORP., ET AL.
Case No. 10CA023
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-5092
For the reasons stated in our accompanying Opinion on file, the judgment of the Holmes County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS