Tauwab v. Huntington Bank

2012 Ohio 923

• Court: Ohio Court of Appeals
• Decided: March 8, 2012
• Docket: 96996
• Status: Published

Opinion

[Cite as Tauwab v. Huntington Bank, 2012-Ohio-923.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96996

AMIR JAMAL TAUWAB, ET AL.

PLAINTIFFS-APPELLANTS

vs.

HUNTINGTON BANK, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-732900

BEFORE: Stewart, P.J., Jones, J., and Rocco, J.

RELEASED AND JOURNALIZED: March 8, 2012 FOR APPELLANT AMIR JAMAL TAUWAB

Amir Jamal Tauwab, Pro Se 6075 Penfield Lane Solon, OH 44139

ATTORNEY FOR APPELLANT B. ANDREW BROWN & ASSOCIATES, LLC

Jason Ralls 11811 Shaker Boulevard, Suite 420 Cleveland, OH 44120

ATTORNEYS FOR APPELLEE HUNTINGTON BANK

Stephen M. Bales Douglas M. Eppler Ziegler Metzger LLP 925 Euclid Avenue, Suite 2020 Cleveland, OH 44115-1441

ATTORNEYS FOR APPELLEES PREMIER PROPERTIES OF CENTRAL OHIO, INC., CHAD J. LANE, AND JONATHAN L. LOZIER

Robert D. Warner Michelle J. Sheehan Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115-1093

ATTORNEY FOR SAFEGUARD PROPERTIES, INC.

Roy J. Schechter Lichko & Schechter 230 Bridge Building 18500 Lake Road Cleveland, OH 44116 MELODY J. STEWART, P.J.:

{¶1} Plaintiff-appellant Amir Jamal Tauwab, a.k.a. Bruce Andrew Brown, and his

solely-owned corporation B. Andrew Brown & Associates, appeal from a summary

judgment on all counts of their trespass and conversion complaints against

defendants-appellees Huntington Bancshares, Inc., Safeguard Properties, Premiere

Properties of Central Ohio, and individual defendants Chad Lane and Jonathan Lozier.

Tauwab alleged that Huntington wrongfully authorized Safeguard and its independent

contractor, Premiere, and its employees, Lane and Lozier, to enter his home to inspect

flood damage and that those who entered the house stole more than $150,000 in

possessions. In a written opinion, the trial court granted summary judgment to the

defendants on all counts of Tauwab’s complaint. The sole assignment of error contests

the summary judgments. Our review of the briefs and the record convinces us that the

court’s opinion fully addressed the relevant issues and law, and that the court did not err

by granting summary judgment. We therefore affirm the summary judgment for the

reasons stated in the court’s opinion, which we adopt and set forth as an appendix to this

opinion.1

It is ordered that appellees recover of appellants their costs herein taxed.

The court finds there were reasonable grounds for this appeal.

We have edited the trial court’s opinion for the sole purpose of correcting obvious 1

typographical errors. In all other respects, the trial court’s opinion remains in its original form. It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., CONCURS; LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY

APPENDIX

IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

AMIR JAMAL TAUWAB, et. al. , ) CASE NO. CV-10-732900 ) Plaintiffs, ) Judge Dick Ambrose ) -vs- ) ) JUDGMENT ENTRY HUNTINGTON BANK, et al., ) AND OPINION ) Defendants. )

Dick Ambrose, J.:

{¶ 1} This action comes before the court on the following motions: Defendant

Huntington Bank’s Motion for Summary Judgment; Defendant Safeguard Properties Motion for Summary Judgment; and, Defendants Premier Properties of Central Ohio,

Inc., Chad J. Lane and Jonathan L. Lozier’s Motion for Summary Judgment. The Court

finds all of the Defendants’ Motions for Summary Judgment to be well taken and they are

hereby granted.

{¶ 2} This action stems from an alleged Trespass of property located at 6075

Penfield Lane Solon, Ohio. The Plaintiffs in this action are Amir Jamal Tauwab and B.

Andrew Brown & Associates, LLC (“BAB & Associates”). Tauwab initiated this action

by filing a complaint on July 29, 2010. This Court subsequently granted Tauwab leave

to file a Second Amended Complaint on October 25, 2010. The Second Amended

Complaint sets forth causes of action for Trespass and Conversion against all of the

named Defendants. BAB & Associates was not a party to this action at the time of filing.

BAB & Associates filed a Motion for Leave for Joinder on January 24, 2011, which was

subsequently granted on February 17, 2011. BAB & Associates Joinder Complaint was

then filed on March 3, 2011. The Joinder Complaint asserts claims for Trespass against

all of the named Defendants. The Third Cause of Action asserted in the Joinder

Complaint could be interpreted as either a Trespass Claim or Conversion Claim against

Defendants Safeguard, Premier, Lane and Lozier.

Facts

{¶ 3} Tauwab signed a promissory note dated January 16, 2008 in the principal

face amount of $417,000.00 in favor of Real Estate Mortgage Corp. Ex. A to Affidavit of Mary Cline. The Note is secured by a mortgage also dated January 16, 2008 and signed

by Tauwab in favor of Real Estate Mortgage Corp., as lender, and Mortgage Electronic

Registration Systems, Inc. (“MERS”) as mortgagee and nominee for the lender. Ex. B to

Affidavit of Mary Cline. The Mortgage encumbers 6075 Penfield Lane Solon, Ohio.

The Mortgage and Note were subsequently assigned to The Huntington National Bank on

August 26, 2009. Ex. 3 to the Deposition of Bret Pemoller. Tauwab failed to pay on the

Note according to its terms and thereby defaulted on said Note beginning on March 1,

2008. Affidavit of Bret Pemoller ¶ 8.

{¶ 4} Huntington Bank hired Safeguard Properties, Inc. to perform multiple

visual exterior inspections of the property between February 20, 2010 and June 17, 2010

in order to determine if it appeared occupied. Affidavit of Lisa Viliborghi at ¶ 3.

Safeguard reported back to Huntington that the premises appeared vacant and Huntington

instructed Safeguard to enter the property located at 6075 Penfield Lane Solon, Ohio to

secure the premises. Id. at ¶ 5. The premises was entered on June 17, 2010 by Premier,

acting as Safeguards subcontractor. Id. at ¶ 7. There is a dispute as to what happened

on June 17, 2010 while Premier was at the property. Plaintiff Tauwab alleges that his

personal property was stolen. Defendants deny such allegations. The allegedly

converted property includes custom suits, custom shirts, sport coats, shoes, coats, other

clothing and six rolex watches (Tauwab values the watches at a total of $150,000) See

Ex. I to Plaintiffs’ Opposition to Defendant Huntington National Bank’s Motion for

Summary Judgment. Applicable Law

{¶ 5} Summary Judgment may be granted if the Court determines that no genuine

issues of fact remain to be litigated, the moving party is entitled to judgment as a matter

of law, and if it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the party against whom

the motion for summary judgment is made, that conclusion is adverse to that party. Ohio

Civ. R. 56; see Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317.

Defendant Huntington Bank’s Motion for Summary Judgment

{¶ 6} Plaintiff Tauwab and Plaintiff BAB & Associates Complaints appear to

assert claims for Trespass against the Defendant Huntington Bank. In addition, although

it is not clear from the Complaint, Plaintiff Tauwab1 asserts a Conversion claim against

Defendant Huntington under agency principles. The Court finds that no genuine issues

of material fact remain to be tried on said claims and that Defendant Huntington is

entitled to judgment as a matter of law.

BAB & Associates does not assert a conversion claim in this action. Plaintiff Tauwab’s 1

Brief in Opposition to Defendant Huntington’s Motion for Summary Judgment makes clear that Tauwab also intended to make a claim for conversion against Defendant Huntington. The Complaint does not make any specific references to Huntington Bank in the context of the Conversion Claim, but does include generic allegations against all “defendants” which this Court can interpret to include Huntington Bank. Second Amended Complaint at ¶ 32 – 34. {¶ 7} Defendant is entitled to judgment as a matter of law on Plaintiff’s claim for

Trespass. The elements of a Trespass Claim include; “(1) an unauthorized intentional

act, and (2) entry upon land in the possession of another.” Lally v. BP Products North

America (N. Dist. Ohio 2009), 615 F.Supp.2d 654. Defendant Huntington was

authorized by contract, specifically through a property protection provision, to enter the

Plaintiff’s premises. Therefore, the first element of a Trespass Claim — unauthorized

act — has not been met and Huntington cannot be found to have committed a trespass.

The Mortgage Property Protection Provision allows the Lender to do “whatever is

reasonable or appropriate to protect the Lender’s interest in the Property and rights under

this Security Instrument, including . . . securing and/or repairing the property” in the event

of Plaintiff defaulting on the Mortgage. Ex. B to Affidavit of Mary Cline. To succeed on

summary judgment with respect to the Trespass claim Defendant Huntington must both

show that Plaintiff was in default under the Mortgage and further that it was reasonable or

appropriate to order Safeguard to enter and secure the property.

{¶ 8} Defendant satisfied the first requirement of the Property Protection

Provision by presenting evidence showing that Tauwab defaulted on the note by failing to

pay beginning on March 1, 2008. Affidavit of Bret Pemoller at ¶ 8. Plaintiff does not

present any evidence to the Court that Plaintiff was not in default, and instead argues that

Huntington was not a proper holder of the Note/Mortgage and therefore cannot enter the

property pursuant to said Mortgage. The evidence before the Court proves that the Note

and Mortgage were assigned to Huntington Bank through the signature of a MERS Employee on August 26, 2009. Ex. 3 to the Deposition of Bret Pemoller. Tauwab’s

argument that only Real Estate Mortgage Corp. and not MERS can assign the mortgage is

misplaced. MERS as the mortgagee and nominee under the Mortgage has authority to

assign said Mortgage and Note and properly exercised that authority on August 26, 2009.

See Mortgage Electronic Registration Systems, Inc. v. Tracie Mosley (Cuyahoga County,

June 24, 2010), 2010 Ohio 2886; See also Countrywide Home Loans Servicing L.P. v.

Shifflet, et al. (Marion County, March 29, 2010), 2010 Ohio 1266. Huntington Bank was

the proper holder of the Mortgage and Note and the only evidence presented to this Court

shows that Plaintiff defaulted on said Note. Defendant Huntington Bank was therefore

empowered through the Mortgage Protection Provision to do “whatever is reasonable and

appropriate to protect the Lender’s interest in the property.” Ex. B to Affidavit of Mary

Cline.

{¶ 9} This Court finds that it was “reasonable and appropriate” for Huntington

Bank to order Safeguard to secure the subject premises. Plaintiff Tauwab admitted at

deposition that the property in question was vacant from December of 2009 through June

6, 2010 while the Plaintiff was incarcerated. Depo. of Amir Jamal Tauwab at 29.

Plaintiff further admitted that the gas was off in the home and that the pipes inside the

home froze causing damage to the home on February 2, 2010. Id. at 30. The Defendant

Huntington hired Safeguard during this time period to determine if the house was vacant.

Safeguard inspected the premises on multiple occasions between February 20, 2010 and

June 17, 2010, reporting on each occasion that the house appeared vacant. Affidavit of Lisa Viliborghi at ¶ 4. Defendant Huntington, based on the representations of Safeguard,

ordered Safeguard to enter and secure the premises. Id. at ¶ 5. The Court finds based

on the testimony of Tauwab and Lisa Viliborghi, that Huntington Bank’s directive to

Safeguard to secure the premises was a proper exercise of authority pursuant to the

Property Protection Provision in the Mortgage. The Court further finds that Tauwab’s

testimony that the property was not vacant from June 11th to June 14th does not raise an

issue of material fact as to whether Huntington legally entered the property. Affidavit of

Amir Jamal Tauwab at ¶ 8. As Huntington was authorized to enter the subject property it

cannot be found liable for Trespass and therefore the Court grants Summary Judgment in

favor of Huntington as to Plaintiffs’ Trespass claims.

{¶ 10} Defendant Huntington is also entitled to judgment as a matter of law on

Plaintiff’s Conversion Claims. Plaintiff alleges that employees of Premier converted

Plaintiff’s property on June 17, 2010 and that Huntington Bank is liable under agency

principles. It is undisputed that Safeguard was hired as an independent contractor of

Huntington Bank. Generally, a principal, such as Huntington Bank, is not liable for the

acts of an independent contractor, such as Safeguard, or the independent contractor’s

servants (Premier, Lane and Lozier). See Kemelhar v. Kohn (Cuyahoga County 1959),

110 Ohio App. 248. In his opposition, Plaintiff Tauwab agrees with the general rule

against liability of a principal for the acts of an independent contractor, but argues that a

Trespass exception applies to the case at hand and Huntington Bank can therefore still be

liable for the alleged Conversion. Hughes v. Cincinnati & S.R. Co. (1883), 39 Ohio St. 461. This Court, having found that Huntington did not commit a trespass, hereby finds

that the Trespass exception outlined by the Plaintiff does not apply to this action. The

General Rule against liability set forth in Kemelhar applies to this case and Defendant

Huntington Bank is entitled to judgment as a matter of law on Plaintiff’s Conversion

claim. Defendant Huntington Bank’s Motion for Summary Judgment on Plaintiff’s

Conversion Claim is hereby granted as no genuine issues of fact remain to be litigated.

Defendant Safeguard’s Motion for Summary Judgment

{¶ 11} Plaintiff Tauwab asserts claims for Trespass and Conversion against the

Defendant Safeguard. Plaintiff BAB & Associates asserts a claim for Trespass only

against the Defendant Safeguard. The Court finds that no genuine issues of material fact

remain to be tried with respect to the Plaintiffs’ Trespass claims and hereby grants

Safeguard Summary Judgment on said claims. The Court also finds that no genuine

issues of material fact remain to be tried on Plaintiff Tauwab’s Conversion Claim and

therefore grants summary judgment as to the Conversion Claim.

{¶ 12} Defendant Safeguard is entitled to judgment as a matter of law as to the

Plaintiffs’ Trespass Claims as this Court previously found that Huntington Bank was

authorized to enter the Plaintiff’s property pursuant to the Property Protection Provision

contained in the Mortgage and thus Huntington could not be held liable on a Trespass

Claim. Huntington’s authorization to enter the property extends to their Independent

Contractor Safeguard and therefore Safeguard cannot be held liable on Plaintiffs’ Trespass Claims. Defendant Safeguard’s Motion for Summary Judgment is hereby

granted with respect to the Trespass Claims.

{¶ 13} Defendant Safeguard moves for summary judgment on Plaintiff Tauwab’s

Conversion Claim on the basis that Tauwab failed to present any evidence that the

property at issue was converted by the Defendants. In support, Defendant presents the

testimony of the Premier Employees Chad Lane and Jonathan Lozier who both testified

that they did not remove one piece of personal property from the residence. See Depo. of

Chad Lane at p. 10–16, See also Affidavit of Jonathan Lozier at ¶ 6. In opposition, Amir

Tauwab testified that he resided at the property from June 11 to June 14th, the personal

property that was allegedly converted was present at the residence on June 17th and when

Tauwab returned to the residence on June 19th the personal property was gone. Affidavit

of Amir Jamal Tauwab at ¶ 3–4; See also Ex. I to Plaintiff’s Opposition to Defendant

Huntington National Bank’s Motion for Summary Judgment. Tauwab’s testimony does

not contain any direct allegations against Mr. Lane or Mr. Lozier, and at best raises an

inference that either Lane or Lozier converted the personal property at issue. However, a

claim based solely upon an inference supported only by Plaintiff’s self-serving affidavit is

insufficient to establish a “genuine” issue of material fact. For an issue of material fact

to be “genuine,” the evidence must be such that a reasonable jury could return a verdict in

favor of the non-moving party. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242;

See also First National Bank of Arizona v. Cities Service Co. (1968) 391 U.S. 253. The

Court finds that a reasonable jury could not return a verdict in favor of the Plaintiff based solely on the inference that because Defendants Lane and Lozier were on Plaintiff’s

property, for Premier and on behalf of Safeguard, they must have converted his personal

possessions. Plaintiff’s testimony that the property was present on June 14th and gone

on June 19th, without any thing else is insufficient to demonstrate that the Defendants

herein converted his property. The Court finds that no “genuine” issues of material fact

remain to be tried on Plaintiff’s Conversion Claim and therefore grants Safeguard’s

Motion for Summary Judgment with respect to that claim.

Defendants Premier Properties of Central Ohio, Inc., Chad J. Lane and Jonathan L.

Lozier’s Motion for Summary Judgment

{¶ 14} Plaintiff Tauwab asserts claims for Trespass and Conversion against the

Defendants Premier Properties, Chad Lane and Jonathan Lozier (“Premier Defendants”).

Plaintiff BAB & Associates asserts a claim for Trespass only against said Defendants.

The Court finds that no genuine issues of material fact remain to be tried with respect to

the Plaintiffs’ Trespass claims and hereby grants Safeguard Summary Judgment on said

claims. The Court also finds that no genuine issues of material fact remain to be tried on

Plaintiff Tauwab’s Conversion Claim and therefore grants summary judgment as to the

Conversion Claim.

{¶ 15} For the same reasons stated for Huntington and Safeguard, the Premier

Defendants are entitled to judgment as a matter of law as to the Plaintiffs’ Trespass

Claims. The Court finds that like Safeguard, the Premier Defendants were acting pursuant to Huntington’s authorization to enter the property and therefore cannot be held

liable under a claim for Trespass. The Premier Defendants Motion for Summary

Judgment is hereby granted with respect to the Trespass Claim.

{¶ 16} The Premier Defendants move for summary judgment on Plaintiff

Tauwab’s Conversion Claim on the basis that Tauwab failed to present any evidence that

the property at issue was converted. The Court’s rationale with respect to Safeguard on

this issue also applies to Premier. In accordance with that rationale this Court hereby

grants the Premier Defendants’ Motion for Summary Judgment on Plaintiff’s Conversion

Claim.

Conclusion

{¶ 17} This Court having granted Summary Judgment to the Defendants on all

claims hereby removes this action from the Court’s active docket. Court costs shall be

paid by the Plaintiff. Final. There is no just reason for delay.

DATE: June ____ , 2011 ______________________________ Dick Ambrose, Judge