ORIGINAL

IN TIHE SUPREME COURT OF OHIO

Ford Motor Credit Company

Plaintiff-Appellee,V

James M. Ryan et al.,

Defendants,

(James M. Ryan,

Defendant-Appellant),

CarolynP_ Ryan et al.,

Third Party Defendants,

(Carolyn P. Ryan

Third Rarty Defendant -Appellant),

(Automobile Recovery Services ofCincinnati Inc. ,

Third Party Defendant-, Appellee),

v

Bob-Boyd Lincoln Mercury, Inc.,

Third Party Defendant -Appellee.

On Appeal from the FranklinCounty Court of AppealsTenth Appellant District

Court of Appeals ConsolidatedCase No.'s 09 AP-501,

and1OAP-263

(C.P.C. No. 06CV05-6659)

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JAMES M. RYAN

James M. Ryan -Pro-Se3165 Dale AvenueColumbus Ohio 43209(614)670-4396Fax No. (614)732-5349

NOV 12 Z010

(aLP.RK OF COURTSUPR^.iViE t;QURT OF OHIO

Brett K. Bacon Esq.Gregory R. Farkas Esq.Timothy J. Richards Esq.Frantz & Ward LLP2500 Key Center127 Public SquareCleveland Ohio 44114Counsel for Ford Motor Credit Company

Michael J. Valentine Esq.Reminger & Reminger Co. LPA65 East State Street , 4a` floorColumbus Ohio 43215Counsel for Automotive Recovery Services of Cincinnati Inc

Carolyn P. Ryan3165 Dale AvenueColumbus Ohio

Ryan & Ryan Inc.3165 Dale AvenueColumbus Ohio 43209

The Attorney General of the State of Ohio30 East Broad StreetColumbus Ohio 43215

Stephen D. Brown Esq.Deana L. Stockamp Esq.David A. Brown Esq.Stockamp & Brown, LLC5100 Park Center Avenue, Suite 100Dublin Ohio 43017Counsel for Bob-Boyd Lincoln Mercury, Inc

14 ' d!2^V/,r v,J2^ TS f^^ fAs

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TABLE OF CONTENTSPage

Explanation of why this case is a case of public interest 1&2

or great general interest and involves a substantial interest

Statement of Facts and the Case 2 to 8

Argument in Support of Proposition of Law 1

There is no implied or specific authority grantedin Ohio Revised Code Section 1309.609 (A) (1)& Section 1309.609 (B) (2) to enter private property,a structure on private property, or the cutilage-of a home.

Argument in Support of Proposition of Law 2

^^i'oRevised Code Section 1309.609 (A) (1) &(^2) & Section (B) (2) as applied in the findingsOf the Tenth District Court of Appeals Franklin County OhioCase No.'s 09AP-501 & 10AP-263 creates aa "suspect classification" of persons that are deniedfundamental protection under the Fourteenth Amendmentto the UnitedStates Constitution and Article 1, Section 1&16of the Ohio Constitution.

Conclusion

Certificate of Service

Appendix

8 to13

13 to 15

15

(A) Decision of the tenth District Court of Appeals Franklin County Ohio

(B) Judgment Entry of the Tenth District Court of Appeals

Franklin County, Ohio

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

Appellant's appeal is governed by the requirements set forth in Pickaway Cty. Skilled

Gaming L.L.C. v Cordray, Slip Opinion No 2010-Ohio-4908.

In this appeal Appellant will argue that a person has a fundamental constitutional right

under the Fourteenth Amendment of the United States Constitution, Article 1, Section 1

of the Ohio Constitution to a "reasonable expectation of sanctity, privacy and safety in

his or her home ", and the right to due process of law as guaranteed by the Fourteenth

Amendment to the United States Constitution and Section 16,Article 1,Ohio Constitution

He will argue that through its decision in the case at bar, the Tenth District Court of

Appeals of Franklin County Ohio has found that Ohio Revised Code Section 1309.609

supersedes the trespass laws of the State of Ohio as it relates to debtors property and that

debtors shall be treated differently with respect to a creditor's rights to trespass when

entering the curtilage of a home andlor a structure to effect a repossession of collateral.

Appellant claims that the Appeals Court has created a "suspect classification" by

discriminating against debtors as compared to other Ohio residence which discrimination

is not related to a legitimate government interest Appellant also argues that the Appeals

Court's findings not only does not curtail violence which was the legislative purpose of

Section 1309.609 (B) (2) but in fact will increase the probability of violence, which also

does not serve a compelling State interest. Appellant claims that the Appeals Court

Decision eliminates the debtors constitutional right to a "reasonable expectation of

sanctity, privacy and safety in his or her home" and denies Appellant the right to due

process as it relates to protecting his property from trespassers. Appellant also argues thatp.1

the Appeals Court has interpreted Ohio Revised Code 1309.609 incorrectly and such

interpretation will greatly affect rights of all debtors and therefore it is of great general

interest to the citizens of Ohio to clarify this interpretation as there is little or no case law

in Ohio on the subject matter. Appellant respectfully request this Court take jurisdiction

of this case

STATEMENT OF CASE AND FACTS

The Facts.

This case arises from Appellee Ford Motor Credit Company ( Ford Credit) and its

independent Contractor Appellee Automobile Recovery Services of Cincinnati Inc.'s (

ARS ) illegal entry onto Appellant's private residential property at 3165 Dale Avenue,

Columbus Ohio to perform a repossession of Appellant's vehicles.

On January 4, 2006 Appellee Ford Motor Credit Company had their ARS enter upon

Appellant's residential property to perform a repossession. ARS banged on Appellant's

front door for an extended period of time until Appellant opened the door. .ARS

demanded to know where a 2001 Mercury Villager was located as they were there to

repossess the vehicle. Appellant instructed ARS that the vehicle belonged to Ryan &

Ryan Inc. whose offices were at 195 East Main Street Columbus Ohio. Appellant

informed ARS that they were trespassing upon Appellant's property, that they were to

leave immediately, and that they were not to return and trespass upon his property again.

On January 12, 2006 around 8:30 in the morning, ARS

again trespassed upon Appellant's residential property , entered the "curtilage" and a car

port structure to his residence which structure is attached to the home of Appellant ARS

then with a tow truck began to hook up Appellant's 2004 Mercury Mountaineer Premierp.2

(Premier). Appellant came out of his residence and informed the tow truck driver that he

was trespassing, to unhook the vehicle and he was to leave the premises . The tow truck

driver refused. Appellant then commenced to remove the tow truck chains that had been

attached to the Premier. The tow truck driver began to push, hit and shove Appellant

away from the chains, screaming and yelling at Appellant that his neighbors will see

what is going on and that he now had you, you rich bastard.

Appellant pushed and shoved the tow truck driver back and away and then continued to

remove the chains from his vehicle. At this time the tow truck driver became threatening

to Appellant, so Appellant retreated to his residence and called Ford Credit informing a

Ms. Dinkins that Ford Credit and ARS were trespassing upon his property and that they

were to unhook Appellant's vehicle and leave the premises Ms. Dinkins agreed that she

was in contact with ARS but refused to stop ARS's actions.

Upon returning to the car port, Appellant discovered that the ARS tow truck was towing

Appellant's vehicle down the driveway to the public street damaging Mrs. Ryan's

vehicle while leaving the car port. Appellant and his son Thomas Ryan, who had just

arrived, confronted the ARS tow truck driver in the public street and demanded that he

unhook Appellant's vehicle .The tow truck driver refused. Both Appellant and Thomas

then informed the tow truck driver that he had trespassed upon private property,

wrongfully removing a vehicle and that ARS or anyone connected with the company

were not to trespass upon any of Appellant's property again. Thomas also stated that they

were not to trespass on his residence property. ARS transferred Appellant's vehicle to

another ARS truck that had been waiting and drove away with the vehicle.

ARS then returned again to Appellants residence on January 17, 2006 at which time theyp.3

pounded and kicked at the residence front door for what Appellant's wife described as a

very long time. She was frightened and did not answer the door. ARS then came to

Appellant's office, where again they pounded and kicked at the office door.

When Appellant answered the portico door ARS tiied to force their way into Appellant's

building by placing a foot in the open door. Appellant forcibly removed the foot and

closed and locked the door. Appellant then went outside to inquire why the tow truck

driver had frightened his wife at their residence. The tow truck driver said they were there

to get the 2001 Mercury Villager. Appellant informed the driver and his assistance that

they were trespassing and to leave the premises.

On February 7`h & 8"' 2006, in the middle of the night, ARS returned to Appellant's

residence and again entered the car port, hooking up and towing away Mrs.Ryan's

vehicle. They then went a few blocks away, entered the private residential property

of Thomas Ryan and towed two additional vehicles from the "curtilage" to their home ,

the driveway directly adjacent to their garage. Thomas called the police to come to his

home to file a report on all the vehicles removed from his residence and Appellant's

residence. The police did arrive but refused to take the report informing Thomas that the

removal of the vehicles was a civil matter and a report was not permitted.

One of the vehicles taken at the Thomas Ryan's residence belonged in part to

Appellant. A fifth vehicle belonging to Appellant was towed from Appellant's office

property. Shortly there after, Appellant demanded return of personal items taken from

the vehicles including license plates for all the vehicles, which ARS refused to return.

Appellant's attorney, attorney Ira B. Sully, demanded return of all the vehicles from

Ford Credit which they refused to return.p.4

On or about May 15, 2009 the Trial Court issued its decisions granting summary

judgment to Ford Credit, ARS and Bob-Boyd Lincoln Mercury Inc.( Bob-Boyd)

Appellant filed his appeal on May 20, 2009.Due to a failure to incorporate the necessary

54 (B) language into the original decisions of Ford Credit and Bob-Boyd, the case was

remanded to the trial Court on November 12, 2009.

The Trial Court issued its Amended Judgment Entry Granting Summary Judgment to

Ford Credit on February 25, 2010, this time including the necessary 54(B) language as

well as making substantive changes to the decision The court also issued its Amended

Entry Granting Summary Judgment to Bob-Boyd Lincoln Mercury on February 25, 2010

including the necessary 54(B) language. The Trial Court did not enter a second entry

pertaining to ARS. Appellant again appealed to the Tenth District Court of Appeals

Franklin County, Ohio(Appeals Court )on March 23, 2010.The Appeals Court filed its

Decision in this case on September 28, 2010 and its Judgment Entry on September 29,

2010.

The Case.

This appeal stems from the findings of the Appeals Court in its Decision and Judgment

Entry in case No. 09 AP- 501 & IOAP-263 finding that Section 1309.609 of the Ohio

Revised Code (ORC) authorized Ford Credit and ARS to trespass into the "curtilage" ,

structure and the surrounding area of Appellant's home to which Appellant and his Wife

had a "reasonable expectation of the sanctity of their home and the privacies of life ".

The Appeals Court found that by their interpretation of Section 1309.609 ORC. the

statute does not violate a persons constitutional rights protected by the United States

Constitution and the Ohio Constitution.p.5

The Appeals Court held @35 o€their Decision :"Indeed, R.C. 1309.609 gives a

repossessor a privilege to enter another's land to effectuate a repossession , so long as the

repossessor does not breach the peace". The Appeals Court states @ 34: "Generally, no

breach of peace occurs merely because the repossessor enters on a person's driveway or

carport to retrieve a vehicle. (also citing Carter, Repossessions (6th ed.2005) 205,Section

6.4.4.2. ("When there is a limited entry onto the debtor's property such as the debtor's

driveway, carport, or open garage, the creditor is said to have an limited privilege to

trespass and take possession of the collateral , as long as the debtor does not object , and

no breach of the peace is committed on the land.")

The Appeals Court opinioned @ 44, that after ARS entered Appellant's carport on

January 12, 2006 and only after a physical confrontation between Appellant and the

ARS tow truck driver occurred, that the resulting assault on Appellant by ARS's tow

truck driver and the conversion of Appellant's vehicle by ARS , that then and only then a

reasonable finder of fact could conclude that a breach of the peace occurred and could

also find liability for conversion.. The Appeals Court found that absence the violence

that occurred to Appellant, his property and to his wife's vehicle ( Appellant's wife's

vehicle incurred $1,000 in damaged during the removal of Appellant's vehicle by ARS

from the car port) trespass by ARS was permitted to effect a repossession.

Notwithstanding the facts that the case record clearly supports that Ford Credit and

ARS were warned not to trespass upon Appellant's property on January 4, 12a` & 17tn

2006 or that of his son Thomas's property on January 12, 2006, the Appeals Court also

held that after a second late night of trespassing into the "curtilage" and structure of

Appellant's property and the "curtilage" of his son Thomas property on February 7a' &p.6

8s' 2006, were authorized by the court's interpretation of Section 1309.6090RC

The Appeal's Court held @36: " Here, ARS exercised its right under R.C. 1309.609 to

enter onto private property to repossess the three vehicles on February 7th and 8th ,

2006.This trespass, without more, does not constitute a breach of the peace. Accordingly,

no liability for conversion arose out of the repossessions of the three vehicles".

Appellant alleging trespass in his Eleventh Cause of Action in his Amended Complaint

against ARS for violating 2911.21 ORC. (Criminal Trespass)which claim still remain

pending before the Trial Court as a result of the Appeals Court's remand.

The Appeals Court in addressing the claim of trespassing by ARS the court held @ 26: "

Because ARS neither established the absence of a genuine issue of material fact

regarding the (appellant's ) trespass claims nor presented a legal reason why those claims

must fail, we conclude that the trial court erred in granting summary judgment to ARS on

appellant's trespass claims".

This remand presents a "conundrum" as the Appeals Court found that the ARS trespass

into the "curtilage" and structure was permitted pursuant to Section 1309.609 ORC. to

effect a repossession, while at the same time remanding to the trial court for trial the

issue of alleged criminal trespass pertaining to ARS's trespass into the cartilage and

structure and its actions against person and property of Appellant.

Appellant's rights to due process and equal protection under the law have been decimated

by this Decision. .

Appellant's opinion is that either the Appeals Court has misinterpreted Section

1309.609 as to providing a right of entry onto private property, the curtilage and structure

or the court has legitimized in this case criminal trespass as a means of facilitating ap.7

creditors right to repossess collateral. This holding as to Section 1309.609 ORC is

contrary to Appellant's constitutional rights as well as violating the prohibition against

altering a right of the people to enforce the "common law" of trespass, which

predates the United States & Ohio Constitution and Laws of this country.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No.1 :

There is no implied or specific authority granted in Ohio Revised Code Section

1309.609(A) (1) & 1309.609 (B) (2) to enter private property, a structure on private

property, or the "curtilage" of a home .

Argument:

Section 1309.609 ORC is titled: Secured Party's right to take Possession after default-

UCC9-609. Section 1309.609 states the following:

Section 1309.609 (A) : "After default , a secured party"

Section 1309.609 (A)(1): "May take possession of the collateral and:

Section 1309.609 (A)(2) in part : "without removal" may render equipment unusable and

dispose of collateral on a debtor's premises (emPhasis added )

Section 1309.609 (B): A secured party may act under division (A) of this section:

Section 1309.609 (B) (1): Pursuant to judicial process; or

Section 1309.609 (B) (2): Without judicial process if it acts without breach of the peace.

Section 1309.609 ( C ) is not applicable to this argument and therefore omitted.

Appellant argues that it is impossible to read any portion of Section 1309.609 ORC and

glean authority to trespass into a debtor's premises , enter its "curtilage " , structure and

remove collateral to the public street.p.8

It is axiomatic in statutory construction that words are not inserted into an act without

some purpose. Cheap Escape Co., Inc. v Haddox L.L.C.,120 Ohio St.3d 493, 2008-Ohio-

6323. State ex rel Carmean v Hardin Cty. Bd. of Edn. (1960) 170 Ohio St. 415 ,422.

If a statute conveys a clear, unequivocal and definite meaning, interpretation comes to an

end and the statute must be applied according to its terms. Columbia Gas Transmission

Corp. v Levin,117 Ohio St.3d 122, Recovery Mgt. Sys.,Ltd.v Coburn, 2008-Ohio-571

This Court has held: "In ascertaining the legislative intent of a statute, it is the duty of the

court to give effect to the words used in the statute and not to delete words used , or to

inset words that are not used. Columbus-Suburban Coach Lines v Pub. Utilities

Comm.(1969) 20 Ohio St. 2d 125.

Appellant argues that there is no authority to enter a debtor's premises granted in Section

1309.609 (B)(2)ORC and reliance on this Section must be read in pari materia with

Section 1309.609 (A) (1) & (2 )ORC , where also there is no authority granted to enter

onto private property, a structure attached to the home or into the "curtilage" of a home

and remove collateral, with one exception.

Appellant does point to Section 1309.609 (A) (2) which does grant a limited authority for

a creditor to enter a debtor's premises and conditioned on the prohibition of "Without

removal" may render equipment unusable. This Section was not included in the Appeals

Court's opinion. While Appellant argues that this Section should have been considered

by the court he also argues that the authority to enter private property should be

conditioned only on a debtor's grant of authority to enter his private property, as opposed

to a trespass which the Appeals Court has adopted as legal method of entry onto private

property to achieve repossession .p.9

The Legislature amended Section 1309.46 ORC in 2001to incorporate a different

Phraseology which is now set forth in Section 1309.609 ORC. The two statutes are

similar

but not the same. The current statute clearly expresses that the Legislature's intent is

conditioned on the collateral remaining on the premises as set forth in Section 1309.609

(A)(2)ORC. This provides for "constructive possession" of the collateral by the creditor

The court has interpreted " to take possession" as permitting taking actual possession of

collateral @ 27 and has extended this authority to encompass entering private property

with out consent to facilitate the repossession even if a criminal trespass may have

occurred .

Numerous Untied States Supreme Court cases, Federal Court of Appeals cases, and Ohio

Courts upheld resident's rights founded in the Fourth Amendment to the United States

Constitution and Article 1, Section 14 of the Ohio Constitution. These rights consist of a

constitutional protected reasonable expectation of the sanctity of a man's (and women's )

home and the privacies of life which can not be invaded by the police power of the State.

Oliver v United States, 466 U. S. 170 (1984) )quoting Boyd v United States, 116 U.S.

616, (1986) United States v Dunn, 480 U.S. 294, State v Peterson, 173 Ohio App. 3d

575, 2007-Ohio-5667State v Vondenhuevel, LoganCty.App.No.8-04-15,2004-Ohio-5348

In Oliver v United States, 466 U.B. 170, 180 the Court states: The curtilage is the

area to which extends the intimate activity associated with the "sanctity of a man's home

and the privacies of life" and therefore has been considered part of home itself for Fourth

Amendment purposes." The Court went on to state: " In Oliver we recognize that the

Fourth Amendment protects the curtilage of a house and that the extent of the curtilage ofp.10

a house and the extent of the curtilage is determined by factors that bear upon whether

individual reasonably may expect that the area in question should be treated as the home

itself'. " There is no disputing that the Court considers the curtilage to stand on the same

footing as the home itself for purposes of the Fourth Amendment".

While these rights apply to State action, it would certainly be discriminatory to permit

the Appeals Court to find creditors may enter these areas where the police are prohibited

from entering without a warrant. This Appeals Court finding permits the statute to create

a "suspect classification" of debtors for the for the purpose of facilitating creditors,

which classification is not rationally related to a legitimate government interest and

clearly violates the Fourteenth Amendment to the United States Constitution and Article

1, Section 1,16 & 19 of the Ohio Constitution. Fuentes v Shevin, 407 U.S. 67, Soldal v

Cook County Ill. 506 U.S. 56, Note 11 & 12 for applicability of Fourth Amendment to

civil contex, also see Spect v Jenson, 832 F. 2d 1516.

To hold that a statute provides that debtors do not have the same "sanctity of a man's

(women's) home and the privacies of life" that are guaranteed by the Fourth Amendment

of the United States Constitution and Article 1, Section 14 of the Ohio Constitution to

as the remaining citizen population serves no legitimate government interest.

Section 2911.21 ORC in its amendment in 2004, H B 12, 125a Assembly, Eff. 4-8-04,

Section 6, notes (B), states: The fact that the right described in division (A) of this section

predates the adoption of the United States Constitution, the adoption of the Ohio

Constitution, and the enactment of all statutory laws by the General Assembly and may

not be infringed by any enactment of the General Assembly. Section (A) states in part:p.11

No-Person , without privilege to do so, shall do any of the following: (1). Knowing enter

or remain on the land of another; (3). Recklessly enter or remain on the land or premises

of another, as to which notice against unauthorized access or presence is given by actual

communication to the offended, or in a manner prescribed by law, or by posting in a

manner reasonable calculated to come to the attention of potential intruders, or by fencing

or other enclosure manifestly designed to restrict access. (4), Being on the land or

premises of another, negligently fail or refuse to leave upon being notified by signage

posted in a conspicuous place or otherwise being notified to do so by the owner or

occupant or the agent or servant of either.

ARS repeated entry into Appellant's property constitute a "continuing trespass" as their

activity was ongoing, perpetually creating fresh violations of Appellant's property rights

The Appeals Court has presented another Conundrum. A creditor or its independent

contractor may trespass on to private property but the police may not. It appears that the

Appeals Court has permitted creditors and their independent contractors to be able to

circumvent the criminal trespass statutes by their interpretation of Section 1309.609 as

applied to the facts of this case . This of course is prohibited by the fundamentals of

"common law".

The Appeals Court findings beg the question of " Are debtors to sit on the bumper of

their vehicle and ask a trespasser for his authority to enter the debtors property and

vehicle or out of self defense of his possessions and residence , is the debtor simply to

be aggressive with the trespasser and ask questions later "?The so called "Castle

Doctrine", Ohio Revised Code Section 2901.05, seems to support the second option of

taking aggressive action to protect one's residence or vehicle. (Also see Section 2305.40.)p.12

As stated in the facts herein, Appellant clearly demanded at least three times that ARS

leave his premises and not return as they were trespassing and harassing his family His

son Thomas made the same demand to ARS regarding his property. Yet the Appeals

Court has ruled that ARS could ignore Appellant's and his son's demands not to trespass

as Section 1309.609 ORC permits entry onto private property whether it constitutes

trespass or not.

Appellant's conclusion to this Proposition of Law is the Appeals Court erred in

interpreting Ohio Revised Code 1309.609 in such a way as to permit entry onto private

property, into the cartilage and car port structure of the home by a creditor or its

independent contractor to effect a repossession as well as permitting them to remove

collateral to the public street.

Pronosition of Law No. 2: Ohio Revised Code Section 1309.609 (A) (1 ) & (2)&

Section (B) ( 2) as applied in the findings of the Tenth District Court of Appeals ,

Franlclin, County Ohio case No.'s 09 AP-501 & 10 AP-263 creates a "suspect

classification" of persons that are denied fundamental protection under the Fourteenth

Amendment to the United States Constitution and Article 1. Section 1&16 of the Ohio

Constitution .Argument•

Breach of the peace has been settled law to exclude trespassing onto a debtors residence

property . In Morris v First Nat. Bk.& Trust Co., 21 Ohio St. 2d 25 this Court held:

Research of Ohio cases involving the question of what constitutes a breach of the peace

discloses that our courts have previously dealt with this subject in instances where a

statute or ordnances was violated..." The Court goes on to hold: "In general terms, a

breach of the peace is a violation of public order, a disturbance of the public p.13

tranquility, by any act or conduct inciting to violence or tending to provoke or excite

others to break the peace, or as in some times said, it includes any violation ofany law

enacted to preserve peace and good order".

The Appeals Court's decision states that the property rights of Ohio debtor's are

subservient to the property rights of Ohio's general public and that the debtor should be

subjected to Criminal Trespass to satisfy the State's interest to uphold the bankers

reliance on the Universal Commercial Code. ( UCC ). This finding by the Appeals Court

establishes a "suspect classification" that violates the equal-protection that debtors are

entitled to under both the United States and the State of Ohio Constitutions

Debtor's are entitled to the same protection against trespassers as the non debtor's .

The Appeals Court has determined that the trespass laws of the State of Ohio do

not apply to creditors or their independent contractor's when acting under the authority of

Section 1309.609 ORC. Article 1, Section 1 of the Ohio Constitution clearly gives

citizens of the State of Ohio the fundainental right of "acquiring, possessing, and

protecting property , and seeking and obtaining happiness and safety". Considering the

Appeals Court's findings, the State has not narrowly tailored Section 1309.609 ORC to

serve a compelling State interest by curtailing the risk of violent response to the invasion

of the curtilage and structures of a home by a creditor or its independent contractor, but

has actually increased the possibility for violence given the current laws permitting self

defense. See Section 2901.05 ORC.

The debtor is entitled to the protection afforded under the Ohio criminal trespass statutes.

If the debtor demands a creditor or its independent contractor not to trespass, he or she is

entitled to take defensive action against that same trespasses . The trespass p.14

that occurred in the stealth of night on February 7th & 8th 2006 on Appellant's property

and that of his son, has been found to be authorized by Section 1309.609 ORC as applied

by the Appeals Court Decision. @36.The Appeals Court decision is in direct conflict with

Morris and Pic Walsh Freight, supra. Appellant argues that the "suspect classification"

of debtors created by the Appeals Court findings denies Appellant protections provided

under the Fourteenth Amendment of theUnited States Constitution as well as Article 1,

Section 1,16, & 19 of the Ohio Constitution. Appellant also argues that Section 1309.609

, as applied to the Appeals Court decision, fails the rational-basis test related to the

legitimate government interest . Cleburne v Cleburne Living Ctr. 473 U. S. 432, Justice

Stevens concurring at footnote 2-5, 2-6, &2-7. Pickaway Cty. Skilled Gaming L.L.C.,

supra, State v Thompson, 95 Ohio St. 3d 264, 2002-Ohio-2124.

Conclusion:

Appellant James M. Ryan respectfully requests to take Jurisdiction of this case and accept

his propositions of Law 1& 2 for argument before the Court.

p.15

CERTIFICATE OF SERVICE

I hdreby certify that a copy of this Memorandum in Support of Jurisdiction was sent via

U.S. Mail, Postage pre paid, on this 12 day of November, 2010 upon:

Brett K. Bacon Esq.Gregory R. Farkas Esq.Timothy J. Richards Esq.Frantz & Ward LLP2500 Key Center127 Public SquareCleveland Ohio 44114

Michael J. Valentine Esq.Reminger & Reminger65 East State Street, 4th floorColumbus Ohio 43215

^q^fJ ^' DAY ^s

(^qIu44 GUS ®ti^ ^3dJ5

-M11,1AS `T I?yo--^^&S'0o5^116,0r'<Wesl^-Y ekw^f t rl. -33syi

The Attorney General of the State of Ohio30 east Broad StreetColumbus Ohio 43215

Carolyn P. Ryan3165 Dale AvenueColumbus Ohio 43209

Ryan & Ryan Inc.3165 Dale AvenueColumbus Ohio 43209

Stephen D. Brown Esq.Deanna L Stockamp Esq.David A. Brown Esq.Stockamp & Brown5100 Parkcenter Avenue Suite 100Dublin Ohio 43017

3165 aIT--venueColumbus Ohio 43209(614)670-4396Fax-(614)732-5349

E0436 - A44 t:^7tl.?i UJLEL7Fn.NNFit.l a^^F^LS

IN THE COURT OF APPEALS OF OHIO ^ y ^0• ONia

TENTH APPELLATE DISTRICT

Ford Motor Credit Company,

Plaintiff-Appellee,

V.

James M. Ryan et at.,

Defendants,

(James M. Ryan,

Defendant-Appellant),

Carolyn P. Ryan et al.,

Third Party Defendants,

(Carolyn P. Ryan,

OSEp28 ph 1r33CtERK OF CQURrg

Nos. 09AP-50109AP-55510AP-263and10AP-274

(C.P.C. Plo. ^CV0S6659)

(REGULAR CALENDAR)

Third Party Defendant-Appellant),

(Automobile Recovery Services of

r^r-IT7

xi

0ci

^:.

Cincinnati, Inc., C-> ±L'

Third Party Defendant-Appellee),

V.

ob-Boyd Lincoln Mercury, Inc.,

c]

C•rL-Ji

i

rn..V

J

^

C a

Third Party Defendant-Appellee.

D E C I S I O N

Rendered on September 28, 2010

54P

;0436 - A45Nos. 09AP-501, 09AP-555,10AP-263 & 10AP-274

?: FrantzWard LLP, Brett K. Bacon and Timothy J. Richards, forappelLee Ford Motor Credit Company.

Reminger & Reminger Co., L.P.A., and Michael J. Valentine,for appellee Automobile Recovery Service of Cincinnati, Inc.

Stockamp & Brown, LLC, David A. Brown, Deanna L.Stockamp and Stephen D. Brown, for appellee Bob-BoydLinooln Mercury, Inc.

Carolyn P. Ryan, pro se.

James M. Ryan, pro se.

APPEAL from the Franklin County Court of Common Pleas

2

KLATT, J.

(11) Defendant-appellant, James M. Ryan ("James"), and third party defendant-

appellant, Carolyn P. Ryan ("Carolyn"), appeal multiple decisions of the Franklin County

Court of Common Pleas. For the foilowing reasons, we affirm in part and reverse in part.

{92} On August 10, 2005, plaintiff-appellee, Ford Motor Credit Company

("Ford"), brought a breach of. contract action against James and Ryan and Ryan, Inc.

("RRI") in the Franklin County Municipal Court. Ford alleged that James and RRI had

failed to pay amounts due under a motor vehicle lease agreement that James and RRI

had entered into when they co-leased a 2002 Ford Windstar. James and RRI answered

the complaint, and James filed a counterclaim. Because the damages sought in the

counterclaim exceeded the municipal court's monetary jurisdiction, the municipal court

transferred the case to the common pleas court.

(93) In the common pleas court, Ford sought and received leave to file an

amended complaint and a third party complaint. In the amended complaint, Ford

E0436 - A46 3Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

asserted three more breach of contract claims against James and RRI. These claims

alleged that James and RRI failed to pay amounts due under: (1) a retail installment

contract that James and Ryan and Ryan Real Estate Company ("R&R")' had entered into

when co-purchasing a 2004 Mercury Monterey, (2) a retail installment contract that

James and R&R had entered into when co-purchasing a 2004 Mercury Mountaineer, and

(3) a retail installment contract that James and R&R had entered into when co-purchasing

a 2004 Mercury Mountaineer Premier ("Premier')?

{114} In its third party complaint, Ford asserted a breach of contract claim against

James' wife, Carolyn. Ford alleged that Carolyn had failed to pay amounts due under a

retail installment contract that she had entered into when she purchased a 2004 Mercury

Grand MarquiS.3

{q5} At the time Ford filed its amended complaint and third party complaint, it

had already repossessed the vehicles at issue in those pleadings. Ford had hired

Automobile Recovery Services of Cincinnati, Inc. ("ARS") to accomplish each of the

repossessions. Ford and ARS had a contractual arrangement whereby ARS provided

Ford with repossession services. In the contract, ARS agreed to: (1) forgo any

repossession that would involve a breach of peace, and (2) indemnify Ford for all

' At this stage in the proceedings, Ford did not appreciate that RRI and R&R are two different cbrporations.ARhough Ford later sought to add R&R as a defendant, it never achieved service of R&R. Accordingiy,

R&R is not a party to this aCtion.

2 Ford also brought a counterciaim against RRI solely for breach of a retafi instailment contract for thepurchase of a 2004 Mercury Grand Marquis that R&R co-purchased with Thomas J. Ryan, James andCarolyn's son.

3 Ford also brought a third party complaint against Thomas J. Ryan alleging that he failed pay as heagreed in the retaii installment contract that he entered into when co-purchasing the Grand Marquis withR&R.

30436 - A47Nos. 09AP-501, 09AP-555, tOAP-263 & 10AP-274 4

expenses incurred in connection with legal claims that related to ARS' performance of its

contractual obligations.

(16) ARS repossessed four of the Ryans' vehicles without incident. However,

during the repossession of the Premier, James and the ARS agent engaged in a verbal

and physical altercation. James' counterclaim had asserted multiple tort claims against

Ford based on the actions of ARS' agent. Therefore, in addition to naming Carolyn,

Ford's third party complaint also named ARS as a third party defendant. Ford alleged

breach of contract and indemnity claims against ARS.

117} In response to Ford's amended and third party complaints, James and

Carolyn each filed an answer and counterclaim.4 James and Carolyn asserted claims

against Ford for. (1) conversion, (2) trespass, (3) assault, (4) breach of peace, (5)

intentional infliction of emotional distress, (6) invasion of privacy, (7) violation of 42

U.S.C.1983 ("Section 1983"), (8) breach of contract, (9) violation of the Fair Debt

Collection Practices Act, 15 U.S.C. 1692, et seq. ("FDCPA"), (10) violation of the Ohio

Consumer Sales Practices Act, R.C. 1345.01, et seq. ("CSPA"), and (11) violation of the

Ohio Retail Installment Sales Act, R.C. 1317.01, et seq. ("RISK). James alone also

asserted a claim for negligence against Ford.

{18} Both James and Carolyn brought a cross-claim against ARS. The cross-

daims stated claims for: (1) conversion, (2) trespass, (3) assault, (4) breach of peace, (5)

intentfonal infliction of emotional distress, (6) invasion of privacy, (7) violation of Section

1983, (8) violation of the FDCPA, and (9) violation of the RiSA.

4 RRI also filed a counterclaim against Ford. This counterclaim remairw pending before the trial court.

E0436 - A48Nos. 09AP-501, 09AP-555, 10AP-263 &10AP-274 5

194} Additionally, both James and Carolyn named Bob-Boyd Lincoln Mercury,

Inc. ("Bob-Boyd") as a third party defendant. The Ryans had leased or purchased each

of the vehicles at issue in the instant case from Bob-Boyd. James and Carolyn asserted

claims against Bob-Boyd for. (1) breach of contract. (2) violation of the CSPA, and (3)

estoppel.

;¶10} Ford, ARS, and Bob-Boyd moved for summary judgment on all the claims

that James and Carolyn had asserted against them. Ford also moved for summary

judgment as to its breach of contract daim against Carolyn, as well as its four breach of

contract claims against both James and RRI. In three different judgment entries, the t(al

court granted all of the summary judgment motions. James and Carolyn separately

appealed the three judgments to this court.

{911} On appeal, James and Carolyn pointed out to this court that the trial courts

grant of summary judgment had not resolved all of the claims pending before the court.

Despite the existence of unresolved claims, two of the judgments-those granting Ford

and Bob-Boyd's summary judgment motions--iid not oontain Civ.R. 54(B) language.

James and Carolyn argued that, absent Civ.R. 54(B) language, those two judgments did

not constitute final appealable orders.

{112} This court stayed the two appeals, and remanded the matter to the trial

court so that it could address the remaining claims. The trial court responded by again

entering judgment in Ford and Bob-Boyd's favor on their summary judgment motions, but

this time, including Civ.R. 54(B) language in the judgment entries. Both James and

Carolyn then filed additional appeals from the amended judgment entries. We have

consolidated all the appeals.

^0436 - A49Nos. 09AP-501, 09AP-555, 10AP-263 & IOAP-274 6

{q13) In their first appeals (designated as appeal Nos. 09AP-501 and 09AP-555),

James and Carolyn assign the foilowing errors:5

[1] The Triat Court Erred in terminating the case for thereason that the Trial Courts Journal Entries do not delineatethe parties responsibilities and/or their obiigations and furtherthat the Trial Courts Orders do not meet the requirements ofSection 2505.02 Ohio Revised Code and Civ. Rule 54 ( B)with the exception of the judgment Entry Granting Third PartyDefendant Automobile Recovery Services of Cincinnati Inc.Motion for Summary Judgment , dated May 15, 2009.

[2.] The Trial Court erred as a matter of law and fact ingranting summary judgment to ARS and by dismissingDefendant/PlaintifPs claims for trespass, breach of peace ,conversion, assault, seizure , invasion of privacy, viotation of42 U.S.C. 1983, violation of the Fair Debt Coliection Act ,violation of the Ohio Retail Installment Act, and the OhioConsumer Sales Practices Act, by the Court finding that OhioLaw grants authority to independent contractors such as ARSthe authority to enter private property against the objections ofits owners and to remove property from the cartitage of thehome to the public street for the purpose of repossession.These actions taken by ARS and the finding of the TrialCourts Order permitting such actions violatesDefendant/PlaintifPs rights under existing Ohio Law, , the OhioConstitution and the United States Constitution and contraryto the Trial Courts findings there are genuine issues ofmaterial fact in the record as set forth herein that aregenuinely disputed that should be set for triat. ARS is notentitled to Summary Judgment as a matter of law and viewingthe evidence in the light most favorable to the non movingpa?ty , reasonable minds could not come to one conclusionadverse to the party against whom the motion is made.Fuentes v Shevin, 407 U.S. 67, Sodal v Cook County ILL. 506U.S. 56, Lungar v Edmondson Oil Co. 457 U.S 922. The Trial

Court tacked jurisdiction over ARS for those actions that areunder the exclusive jurisdiction of the Public UtilitiesCommission. Olympic Holding Co. L.L.C. v Aoe Ltd. 122 OhioSt 3d 89.

5 We quote aU thhe assignments of error verbatim, without carrecting the grammatlcal. spelling, Punctuation,or citation errors.

E0436 - A50Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

[3] The Trial Court erred as a matter of law and fact ingranting Summary Judgment to ARS by finding thatDefendant Ryan did not have any. evidence of outrageous orextreme conduct and that Defendants did not have anyevidence of extreme emotional distress and did not have anyform of expert testimony and that Appellant was not entitled topunitive damages.

[4] The Trial Court erred in failing to dismiss Ford MotorCredit Company's September 19, 2006 Amended Complaintand by granting Summary Judgment to Ford Motor CreditCompany on Counts I and I ll-V of the Amended Complaint forthe reason that the Amended Complaint fails to state a claimupon which relief can be granted , for the reason that theamended Complaint did seek and receive a declaratoryjudgment that all Defendants be jointly and severally liable forsums claimed due for which defendants are not contractuallyobligated to be, for the reason that FMCC has failed to joinand commence an action against an indispensable party,Ryan and Ryan real Estate Co. without which party completerelief cannot be accorder Defendant and such failure to namea indispensable necessary party is a jurisdictional defect thatprecludes judgment and renders any declaration by the Trial

Court Void, and for the reason that the Amended Complaintfails to claim default by the buyers in their contractualobligations all of which are genuine issues of material factsthat are in dispute which precludes a judgment in this matter.

[5] The Trial Court erred in Granting Summary judgmentin favor of FMCC and Bob Boyd in its findings that theevidence conclusiveiy demonstrates the vehicles werepurchased primarily for business purposes and that theConsumer Sales Protection Act does not apply.

M14} James alone (in appeal No. 09AP-501) assigns the final error:

[6] The Trail Court erred by granting Ford Motor CreditCompany's Emergency Motion for an Order ExercisingJurisdiction Over and Denying Retum of MercuryMountaineer. (@ch 350) Judge Lynch's Order violates theFourth, Fifth, and Fourteenth Amendment of the U.S.Constitution . The Order seizes the Premier denying a"substantial right" of possession and use to Appellant, deniesAppellants rights to due process of a post deprivation hearingand legitimizes the illegal actions of trespass, wrongful

7

30436 - A51Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 8

removal and conversion of property by combination of FMCC& ARS.

{1l5} In his second appeal (designated as appeal No. 10AP-263), James assigns

the foilowing errors:

[1.] The Trial Court erred in Granting its Amended EntryGranting Summary Judgment In Favor Of Bob-Boyd LincolnMercury Inc. dated February 24, 2010.

[2.] The Trial Court Erred in dismissing DefendantslfhirdParty claims against Automobile ReoDvery Services OfCincinnati Inc.

[3.] The Trial Court erred in granting Automobile RecoveryServices of Cincinnati Inc's Motion for Summary Judgment,asagent of Ford Motor Credit Company and as vwell as on itsown behalf , the issue of assaulting James M. Ryan creatinga breach of the peace wrongful conversion and !or stealing a2004 Mercury Mountaineer "Premier' from the car portcurtllage of the James and Carolyn Ryan residence at 3165Dale Avenue Columbus Ohio 43209 on January 12, 2006eliminated any sight of entry on to the Ryan's private propertythat may have existed under of color of state law as set forthin James M. Ryan's counterclaim to Plaintifi's AmendedComplaint , crossclaim , and third party complaint againstthird party defendant Automobile Recovery Services ofCincinnati Inc this entry onto private property and the removalof the vehicle was therefore an illegal act . The Trial Courterred in dismissing Defendants/Third party Counterclaims.

14.1 Sections 1309.609 (A) (1)& (2) & Section 1390.609 (B)(2) Ohio Revised Code are unconsfitutional as they violate theDue Process right Defendant James M. Ryan , a citizen of theState of Ohio , they viotate Article I Section 1.01, 1.16 and1.19 of the Ohio Constitution, they violate the Fourth andFourteenth Amendment of the United States Constitution.

[5.] The Trial Court Erred in denying appellant's motion forcontinuance pursuant to Civil Rule 56 (F).

[6.) The Trial Court erred by granting Ford Motor CreditCompany's Emergency Motion for an Order ExercisingJurisdiction Over and Denying Retum of MercuryMountaineer. Judge Lynch's Order violates the Fourth, Fifth

E0436 - A52Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

and Fourteen[th Amendment of the United States Constitutionand Article 1.16 & 1.19 of the Ohio Constitution. The Orderseizes the vehicle known as the Premier denying a"substantial RighY' of possession and use to Appellant, deniesAppellants rights to due process , of a post deprivationhearing and legitimizes the illegal actions of trespass ,wrongful removal and conversion of property by both FordMotor Credit Company and Automobile Recovery Services ofCincinnati Inc.

[7.1 The Triai Court Erred in issuing its Amended JudgmentEntry dated February 25, 2010 by granting plaintiff Ford MotorCredit Company's Motion for Summary Judgment anddismissing with prejudice the claims in their entirety, and byentering judgment against James M. Ryan in the amount of$2,742.65, by granting judgment against James M. Ryan inthe amounts of $1,612.37, $1,740.89 and $4,392.20 asJames M. Ryan was not in default of his Contracts and anysums that may be due under the Contracts are subject to offset and that the Motions do not meet the requirements of CivilRule 56 (C).

[8.} The Trial Court Erred in its Decision and EntryGranting Plaintiffs Motion For an Order Granting it Leave toSell Collateral Filed September 19, 2006.

9

{116} Carolyn's assignments of error are identical6 except she omits the fourth

and sixth assignments of error and substitutes the following in place of James' seventh

assignment of error:

The Trial Court Erred in issuing its Amended Judgment Entrydated February 25, 2010 by granting ptaintiff Ford MotorCredit Company's Motion for Summary Judgment anddismissing with prejudice the claims in their entirety, and byentering judgment in the amount of $8,635.24 as Carolyn P.Ryan was not in default of her Contract, that the motions donot meet the requirements of Civil Rule 56 (C).

{117} Before considering the merits of appellants' assignments of error, we must

address ARS' motion to strike. In its motion, ARS requests that this court strike from the

5 Carolyn's secorid appeal is designated appeal No. 10AP-274.

's0436 - A53Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 10

second appeals the assignments of error and arguments related to it. ARS points out that

the judgment entry granting it summary judgment included Civ.R. 54(B) language, making

it a final appealable order. Appellants appealed that judgment.in appeal Nos. 09AP-501

and 09AP-555, and they both fsied briefs in support of their appeals. ARS contends that

once the briefing in appeal Nos. 09AP-501 and 09AP-555 concluded, appellants could

not, without leave of court, submit additional assignments of error and argument directed

toward ARS. We agree.

{l18} The trial court's rulings on Ford and Bob-Boyd's summary judgment

motions did not become final appealable orders until the trial court issued the amended

judgment entries. Thus, in their second appeals, appellants could, and did, assign and

argue error arising from those amended judgments. However, because the judgment

granting ARS summary judgment was a final appealable order, appeUants' appeals from

that judgment presented their only opportunity to assign and argue error as to that

judgment.

{119} Moreover, the appeal from the judgment granting ARS summary judgment

gave appellants their only chance to appeal those interlocutory orders related to that

judgment. When a final judgment does not terminate the entire case, but only terminates

the case as to certain claims or parties, only prior interlocutory orders which relate to the

final judgment will merge into the final judgment. Davis v. Galia, 6th Dist. No. L-08-1 149,

2008-Ohio-3501, ¶5-6. See also Haley v. Reisinger, 9th Dist. No. 24376, 2009-Ohio-447,

T11-12; Norcold, fnc. v. Gateway Supply Co., 3d Dist No. 17-05-11, 2006-Ohio-6919,

¶25-36 (holding that an interlocutory order unrelated to the final judgment that terminated

E0436 - A54Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 11

the case as to one party did not become appealable until the final disposi6on of the case).

Thus:

For example, if a trial court judge makes an interlocutoryruling that certain documents will not be considered in makingits decision on a summary judgment moUon andsubsequently, finding that there is no just reason for delay, thejudge grants the summary judgment motion as to one of thedefendants, then an appeal from the grant of summaryjudgment may include an appeal from the interlocutory rulingconcerning the consideration of documents. The "documentsruling" will merge into the final order granting summaryjudgment.

Davis at ¶6.

{120) In the case at bar, prior to ruling on ARS' motion for summary judgment, the

trial c:ourt denied appellants' Civ.R. 56(F) motion for a continuance to respond to ARS'

motion. The judgment denying the Civ.R. 56(F) motion was an interlocutory order related

to the judgment granting ARS summary judgment Consequently, the judgment denying

the Civ.R. 56(F) motion merged into the final judgment disposing of the claims brought

against ARS. Appellants, therefore, had to assert and argue any errors arising from the

denial of the Civ.R. 56(F) motion in their first set of appeals.

1121) App.R. 16 allows an appellant to file an initial brief and a reply brief, and an

appellee to file a response brief. "No further briefs may be filed except with leave of

court." App.R. 16(C). Here, appellants did not seek leave to file additional briefing,as to

ARS. Accordingly. we strike the second and third assignments of error from appeal Nos.

10AP-263 and 10AP-274. To the extent that they relate to ARS, we also strike the fifth

assignment of error from appeal No. 10AP-263 and the fourth assignment of error from

appeal No. 10AP-274.

;0436 - A55Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 12

{122} We will address appeal Nos. 09AP-501 and 09AP-555 first. By the first

assignments of error in those appeals, appellants argue that the triai court did not render

final appealable orders when it ruled on Ford and Bob-Boyd's summary judgment

motions. These assignments of error became moot once the triai court issued the

amended judgment entries. Accordingly, we need not decide appeilants' first

assignments of error.

{123) By appellants' second assignments of ertor, they argue that the triai court

erred in granting ARS summary judgment on all their claims against it. Although these

assignments of error challenge the trial court's ruling on appellants' ctaims for invasion of

privacy, seizure, and violation of the FDCA, RISA, and CSPA, appellants do not advance

any argument in support this challenge. Likewise, the assignments of error contest the

trial courts jurisdiction over ARS, but appellants fail to assert an argument on this point.

An appellant must demonstrate each assigned error through an argument supported by

citations to legal authority and facts in the record. App.R. 16(A)(7); Cross v. Ohio Adult

Parole Auth. Chief, 10th Dist. No. 09AP-364, 2009-Ohio-5027, ¶3. If an appellant

neglects to advance such an argument, a court of appeals may disregard the assignment

of error. App.R. 12(A)(2); Bond v. Canal Winchester, 10th Dist. No. 07AP-556, 2008-

Ohio-945, ¶16-17. Accordingly, we will disregard. those portions of the second

assignments of error that appellants fail to separately argue.

{124} We now tum to the merits of appellants' argument that their claims against

ARS for trespass, conversion, assault, and violation of Section 1983 should have

E0436 - A56 13Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

survived summary judgment" Appellate review of summary judgment motions is de

novo. Andersen v. Highland House Co., 93 Ohio St.3d 547, 548, 2001-Ohio-1607.

"'When reviewing a trial court's ruling on summary judgment, the court of appeals

conducts an independent review of the record and stands in the shoes of the trial court' "

Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, ¶11 (quoting Mergenthal

v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103). Civ.R. 56(C) provides that a trial

court must grant summary judgment when the moving party demonstrates that: (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶6.

{1125} When seeking summary judgment on the ground that the nonmoving party

cannot prove its case, the moving party bears the initial burden of informing the trial court

of the basis for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on an essential element of the nonmoving

party's claims. Dresher v. Burt (1996), 75 Ohio St3d 280, 293. The moving party does

not discharge this initial burden under Civ.R. 56 by simply making a condusory allegation

that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party

must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that

the nonmoving party has no evidence to support its claims. Id. If the moving party meets

this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R.

In making this argument. James presumes that he can pursue claims arising from the repossession of theMercury Grand Marquis co-purahased by Thomas J. Ryan and R&R. Because James neither purchasednor had any personal ownership interest in the Grand Marquis, he cannot assert any clalms related to itThus, we do not address the Grand Marquis in our consideration of James' arguments.

30436 - A57Nos. 09AP-501, 09AP-555, 10AP-283 & 10AP-274 14

56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the

nonmoving party does not so respond, summary judgment, if appropriate, shall be

entered against the nonmoving party. Id.

(126) Initially, we note that although ARS sought summary judgment on all

appellants' claims, it failed to explain in its mo6on why the trial court should grant

summary judgment on appellants' trespass claims. In fact, the motion does not mention

the trespass claims at all, other than listing "trespass" in its recitation of all the claims

appellants asserted.8 Likewise, ARS' brief on appeal contains no argument regarding

appellants' trespass claims. Because ARS neither established the absence of a genuine

issue of material fact regarding the trespass claims nor presented a legal reason why

those claims must fail, we conclude that the trial court erred in granting summary

judgment to ARS on appellants' trespass claims.

{IR27} Appellants rtext contend that the existence of genuine issues of material

fact precluded summary judgment on their conversion claims. "'[C]onversion is 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 roghts.' " State ex

rel. Toma v. Corrigan, 92 Ohio St.3d 589, 592, 2001-Ohio-1289 (quoting Joyce v. Gen.

Motors Corp. (1990), 49 Ohio St.3d 93, 96). ARS argues that it did not wrongfully take

appellants' vehicles because Ford had a contractual right to repossess the vehicles, and

Ford hired ARS to exercise its contractual right. Section G of the retail installment

e ARS apparently recognized this deficiency, acknowledging in its reply brief that It "did not address [thetrespass claims] within its Motion." (ARS' reply in support of its motion for summary judgment, at 3.)Nevertheless, ARS stifi cfaimed riiat it was entitled to summaryjudgment on a11 appellants' claNns.

E0436 - A58Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 15

contracts states that if the obligor(s) default, Ford "may repossess (take back) the

vehide." In Ohio, this right to repossession is subject to R.C. 1309.609, which provides:

(A) After default, a secured party:

(1) May take possession of the collateral

(B) A secured party may act under division (A) of this section:

(1) Pursuant to judicial process; or

(2) Without judicial process ff it acts without breach of thepeace.

{128) R.C. 1309.609 is virtually identical to Section 9-609 of the Uniform

Commercial Code ("U.C.C."). The General Assembly incorporated U.C.C. provisions into

the Ohio Revised Code "[t]o make uniform the laws among the various jurisdictions."

R.C. 1301.02(B)(3). Accordingly, to supplement Ohio law, our analysis of R.C. 1309.609

relies upon precedent from other jurisdictions addressing U.C.C. 9-609 and similar state

statutes. Additionally, this court loaks to caselaw interpreting former R.C. 1309.46, which

preceded R.C. 1309.609 and duplicated former U.C.C. 9-503.8 Like U.C.C. 9-609, former

U.C.C. 9-503 also allowed the repossession of collateral upon default if the creditor

accomplished the repossession without a breach of the peace. Consequently, precedent

from otherjurisdictions interpreting former U.C.C. 9-503 and like state statutes also inform

our analysis.

{129) R.C. 1309.609 gives a secured party the right to attempt self-help

repossession if a debtor defaults. State v. LeFevre (May 4, 1995), 10th Dist. No. 94AP-

1376; Smith v. John Dee►e Co. (1993), 83 Ohio App.3d 398. 408. However, "[i]f the

° Former R.C. 1309.46 read, °[u]nless othervvise agreed a secured party has on default the right to takepossession of the collateral. In taking possession a secured party may proceed without judicial process ifthis can be done without breach of the peace." Former R.C. 1309.46 is identical to former U.C.C. 9-503.

30436 - A59Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 16

secured party, or a third party repossessing for the secured party, causes a breach of

peace while repossessing the collateral, the repossession will be wrongful, and the debtor

may sue the secured party in conversion for return of the collateral or damages." 9

Hawkland, Uniform Commercial Code Series (2001), Section 9-503:3. See also Bear v.

Colonial Fin. Co. (1932), 42 Ohio App. 482, 487-89 (holding that a secured party who

breaches the peace in repossessing collateral may be liabie for conversion under Ohio

common law); Clark v. Assoc. Commercial Corp. (D.Kan.1994), 877 F.Supp. 1439, 1450,

fn. 9("'GeneraBy, when the creditor, by self-help, repossesses the collateral by a breach

of peace, the creditor is liable for trespass and conversion.' ") (quoting 68A American

Jurisprudence 2d, Secured Transactions, Section 622): Ivy v. Gen. Motors Acceptance

Corp. (Miss. 1992), 612 So.2d 1108, 1117 (holding that a debtor may sue in conversion if

the secured party breaches the peace in repossessing the collateral); MBank El Paso,

N.A. v. Sanchez (Tex. 1992), 836 S.W.2d 151, 152 (holding that when a breach of peace

occurs, '^the secured parly may be held liable in tort'); Gen. Elec. Credit Corp. v.

Timbrook (1982), 170 W.Va. 143, 145 ("And,. of course, if repossessions result in

breaches of the peace, creditors are responsible for any torts they commit."); Northside

Motors of Fla., Inc. v. Brinkley (Fia.1973), 282 So.2d 617, 624 (holding that self-help

repossession methods that breach the peace "would expose the creditor to tort liability");

McCatl v. Owens (Tenn.App.1991), 820 S.W.2d 748, 752 ("When the repossessor uses

force and breaches the peace, the repossessor may be liable for trespass, conversion,

assault and battery and other torts"); 2 Anderson, Un'rforfn Commercial Code (3d ed.)

925, Section 9-609:7 ("Being unauthorized to repossess the collateral because of the

E0436 - A60Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 17

breach of the peace, the secured party will be liable to the debtor in conversion for having

wrongfully interfered with the debtor's possession of the collateral.").

{130} Normally, a oonversion occurs if a person takes another's vehicle without

the owners permission. See Toma at 592. R.C. 1309.609 provides a defense to such a

conversion claim because it permits a repossessor to take possession of the vehicle,

rendering the repossession lawful. This defense, however, depends on the absence of a

breach of the peace. If a breach of the peace occurs, the repossessor cannot rely on

R.C. 1309.609 to excuse its actions. Marcus v. McCollum (C.A.10, 2004), 394 F.3d 813,

820 ("If a breach of peace occurs, self-help repossession is statutorily precluded."). At

the point the peace is breached, the repossessors exercise of dominion over the vehicle

becomes wrongful, exposing the repossessor to liability for conversion.

(131) A breach of peace is:

"[A] violation of public order, a disturbance of the publictranquility, by any act or conduct inciting to violence or tendingto provoke or excite others to break the peace, or, as is sometimes said, it includes any violation of any law enacted topreserve peace and good order. It may consist of an act ofviolence or an act likely to produce violence."

Morris v. First Natl. Bank and Trust Co. (1970), 21 Ohio St.2d 25, 29 (quofing Akr+on v.

Mingo (1959), 169 Ohio St. 511, 513). A breach of peace includes " 'all violations of

public peace, order or decorum' " and "'breaking or disturbing the public peace by any

riotous, forceful or unlawful proceedings' " Makepeace v. Chrysier Motors Corp. (May 8,

1981), 2d Dist. No. L-80-187 (quoting Census Fed. Credit Union v. Wann (Ind.App.1980),

403 N.E.2d 348, 350).

{132} In the case at bar, ARS repossessed three vehicles co-purchased by

James and R&R, as well as Carolyn's vehicle. Three of the repossessions proceeded

;0436 - A61Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 18

uneventfully. On February 7, 2006, ARS towed the Mountaineer from the par(ing lot of

R&R's office building. Although James "saw it go away," he "didn't have any tfine to

respond." (July 25, 2008 Tr. 191.) ARS took the Monterey that James co-purchased

from his son's driveway sometime during the night of February 7 and 8, 2006. That same

night, ARS took Carolyn's vehicle from the carport of the Ryans' home. Neither James,

his wife, nor his son knew that the repossessions had occurred until they awoke the next

morning.

#133) Appellants acknowledge that the ARS agents did not threaten, incite, or

commit any act of violence when they repossessed the three vehicles on February 7

and 8, 2006. Appellants, however, argue that the ARS agents breached the peace when

they entered onto private property to repossess the vehicles.

1134) Generally, no breach of peace occurs merely because the repossessor

enters on a person's driveway or carport to retrieve a vehicle. Geeslin v. Nissan Motor

Acceptance Corp. (June 3, 1998), N.D.Miss. No. Civ. A. 1:97CV186-DA, affirmed (C.A.5,

2000) 228 F.3d 408 (table). See also 8utler v. Forrl Motor Credit Co. (C.A5, 1987), 829

F.2d 568, 570 (holding that the removal of a vehicle from a private driveway in the early

morning hours while the debtor was asleep did not constitute a breach of peace);

Oaklawn Bank v. Baldwin (1986), 289 Ark. 79, 81 (same); Gifes v. First Va. Credit Servs.,

fnc. (2002), 149 N.C.App. 89, 102 (same); Radge v. Peoples Bank (1989), 53 Wash.App.

173, 176-77 (same). "'(1]n general, a mere trespass, standing alone, does not

automatically constitute a breach of peace' " Pantoja-Cahue v. Ford Motor Credit Co.

(2007), 375 III.App.3d 49, 55 (quoting Chrysler Credit Corp. v. Koontz (1996), 277

III.App.3d 1078, 1083). See also Ivy at 1111 ("IE]ntering a private driveway to repossess

E0436 - A62Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 19

collateral without use of force does not constitute a breach of peace."); 2 Anderson,

Uniform Commercial Code (3d ed.) 924, Section 9-609:6 ("[T]aking property from a

driveway or other open area, even though technically trespassing, will not generally, by

itseff, make the repossession involve a breach of the peace.").

{135} Indeed, R.C. 1309.609 gives a repossessor a privilege to enter another's

land to effectuate a repossession, so long as the repossessor does not breach the peace.

LeFevre (holding that because former R.C. 1309.46 gave the secured party the right to

take possession of the collateral upon defauit, the repossessor "had the right to enter [the

debtor's] property to repossess the car upon his default if such could be done without a

breach of the peace")• See also Caltaway v. Whittenton (AIa.2004), 892 So.2d 852, 858

(holding that the Alabama repossession statue based on U.C.C. 9-609 "gives a secured

creditor the right to enter a debtor's land for the purpose of repossession"); Pantofa-

Cahue at 56 (holding that the secured creditor enjoyed a "'limited privilege " to enter the

debtors property "'for the sole and exclusive purpose of effectuating the repossession' ");

Thompson v. First State Bank of Fertite (Minn.App.2006), 709 N.W.2d 307, 312 ("[A]

secured party's authority to take possession of collateral after default carries with it the

privilege to enter anothers land for the purpose of taking possession of the collateral if the

entry is reasonably necessary in order to take possession."); Sperry v. ITT Commercial

Fin. Corp. (Mo.App.1990), 799 S.W.2d 871, 877-78 (holding that the secured party "had

an absolute legal privilege to enter [the debtors] property to peacefully repossess all

collateral in the event of default"); Marfne Midland Bank Cent. v. Cote (Fla.App.1977),

351 So.2d 750, 752 (holding that the right to self-help repossession in Ffo(da's version of

former U.C.C. 9-503 implied "a limited privilege to enter on the debtoi's land");

;0436 - A63Nos. 09AP-501, 09AP-555, 10AP-263 &10AP-274 20

Restatement (Second) of Torts (1965), Entry Pursuant to Legislative Duty or Authority,

Section 211 ("A duty or autho(ty imposed or created by legislative enactment carries with

it the privilege to enter land in the possession of another for the purpose of performing or

exercising such duty or authority in so far as the entry is reasonably necessary to such

performance or exercise, if, but onty if, all the requirements of the enactment are

fulfilled."); Carter, Repossessions (6th ed.2005) 205, Section 6.4.4.2 ("When there is a

limited entry onto the debtor's property, such as the debtors driveway, carport, or open

garage, the creditor is said to have an implied limited privilege peacefully to trespass and

take possession of the collateral, as long as the debtor does not object and no breach of

the peace is committed whiie on the land.").

{136} Here, ARS exercised its right under R.C. 1309.609 to enter onto private

property to repossess the three vehicles on February 7 and 8, 2006. This trespass,

without more, does not cons6tute a breach of peace. Accordingly, no liability for

oonversion arose out of the repossessions of the three vehicles.

{¶37) Appellants, however, argue that ARS did not have the right to enter onto

their property because R.C. 1309.609 only extends that authority to the "secured party."

Because ARS is not the "secured party," appellants contend that it cannot rely on R.C.

1309.609. We find this argument unavailing. Just because R.C. 1309.609 confers the

dght of repossession on the "secured party," does not mean that the secured party must

personally repossess the collateral. 10 Anderson, Unifarm Commercial Code (3d ed.)

381, Section 9-503:137. The secured party may hire another to make the repossession,

and the right of repossession accrues to the hired entity. Id. See also AkerJund v. TCF

NafL Bank of Minn. (Jun. 11, 2001), D.Minn. No. CIV. 99-1537(MJD/JGL) (holding that an

E0436 - A64Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 21

independent contractor operating on behalf of a secured party was govemed by the

standards of conduct set farth in the Minnesota statute premised on former U.C.C. 9-503).

Here, Ford, the "secured party," hired ARS to repossess the vehicles, and thus, ARS

operated under the auspices of R.C. 1309.609.

{938} Appellants also argue that ARS cannot rely on R.C. 1309.609 to escape

liability for conversion because that statute violates the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution and Section 14, Article I of the Ohio

Constitution.10

{139} Our analysis of the constitutionality of R.C. 1309.609 is guided by the strong

presumption of constitutionality that all statutes enjoy. Kaminski v. Metal & Wire Ps'oducts

Co., 125 Ohio St.3d 250, 2010-Ohio-1027, ¶58. "Before a court may declare

unconstitutional an enactment of the legislative branch, 'it must appear beyond a

reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.'" Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶25

(quoting State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one

of the syllabus).

{140} As an initial matter, we find that the Fifth Amendment is irrelevant to the

instant matter. The due process clause of the Fifth Amendment applies to the federal

government, not state government. Dusenbery v. United States (2002), 534 U.S. 161,

10 Appellants faAed to argue before the trial court that R.C. 1309.609 violated Section 14, Article I of theOhio Constilution. Normally, this failure vlould resuR in forfeiture of the argumem, and we would refuse to

consider iL State ex rel. Ohio Civ. Serv. Emp. Assn., AFSCME, Loc. 11, AFL-CIO v. State Emp. Relations

t3d., 104 Ohio SL3d 122. 2004-Ohio-6363, 710. We will, however, address appellants' argument because

the language of Section 14, Article I of the Ohio Constitution is virtually Identlcat to the language of theFourth Amendment to the United States Constitu0on. Appellants' argument before the tdal court included

the assertion that R.C. 1309.609 violated the Fourth Amendment.

30436 - A65Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 22

167, 122 S.Ct. 694, 699. Appellant, therefore, cannot rely on the Fifth Amendment as a

basis for arguing that a state statute is unconstitutionaL

114t} The Fourth Amendment, as applied to the states through the Fourteenth

Amendment, and Section 14, Article I of the Ohio Constitution, prohibit the government

from conducting unreasonable searches and seizures of persons or their property. The

Fourteenth Amendment precludes state govemment from depriving any person of Iife,

liberty, or property without due process of law. Notably, both the Fourth and Fourteenth

Amendments provide protecfion against govemmental-not private-action. Unfted

States v. Jacobsen (1984), 466 U.S. 109, 113, 104 S.Ct. 1652, 1656 (holding that the

Fourth Amendment's protection against unlawful searches and seizures "proscribe[s] only

govemmental action"); Blum v. Yarestsky (1982), 457 U.S. 991, 1002, 102 S.Ct. 2777,

2785 (holding that "'the action inhibited by the first section of the Fourteenth Amendment

is only such action as may fairty be said to be that of the States' " and that "'[t]hat

Amendment erects no shield against mereiy private conduct, however discriminatory or

wrongful' ") (quoking Shelley v. Kraemer (1948), 334 U.S. 1, 13, 68 S.Ct. 836, 842);

Burdeau v. McDowelV (1921), 256 U.S. 465, 475, 41 S.Ct. 574, 576 (holding that the

Fourth Amendment'tivas intended as a restraint upon the activities of sovereign authority,

and was not intended to be a limitation upon other than governmental agencies").

(142) Enactment of a statute that permits self-help repossession does not amount

to the significant state involvement necessary for the Fourth and Fourteenth Amendments

to appty, tMnfield v. Soc. Natl. Bank (C.A.6, 1988), 845 F.2d 328 (table) (finding former

R.C. 1309.46, the predecessor to R.C. 1309.609, constitutional). See also Gary v.

Darnef! (C.A.6, 1974), 505 F.2d 741, 741-42; Tumer v. Impala Motors (C.A.6, 1974), 503

E0436 - A66Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 23

F.2d 607, 611-12; Gibbs v. Titelman (C.A:3, 1974), 502 F.2d 1107, 1113; James v. Pinnix

(C.A.5, 1974), 495 F.2d 206, 209; Nowlin v. Professional Auto Sales, Inc. (C.A.B, 1974),

496 F.2d 16, 17; Adams v. S. Cat. First Natl. Bank (C.A.9, 1974), 492 F.2d 324, 329;

Shirley v. State Natl Bank of Conn. (C.A.2, 1974). 493 F.2d 739, 743-45." State

statutes, like R.C. 1309.609, which authorize but do not compel private conduct, do not

satisfy the state action requirement Penney v. First Nati. Bank of Boston (1982), 385

Mass. 715, 719; Helfinstine v. Martin (Okla.1977), 561 P.2d 951, 956; Teeter Motor Co.,

tnc. v. First Natt. Bank of Hot SA►ings (1976), 260 Ark. 764, 767-68; Faimtoth v. Old Natl.

Bank of Wash. (1976), 86 Wash.2d 1, 4; Benschoter v. First NatJ. Bank of Lawrence

(1975), 218 Kan. 144, 150-51; Brown v. United States Natl. Bank of Or. (1973), 265 Or.

234, 238. Thus, we conGude that R.C. 1309.609 does not violate the Fourth or

Fourteenth Amendments.

(943} Having addressed the repossessions that occurred on February 7 and 8,

2006, we now examine the final repossession to determine if a question of fact exists as

to whether ARS breached the peace. Unlike the February 7 and 8, 2006 repossessions,

the January 12, 2006 repossession of the Premier occurred over James' objection. On

January 12, 2006, at approximately 8:15 a.m., James was dressing when his wife told

him that someone with a tow truck was in their carport. James went out to the carport

and found an ARS agent hooking the Premier to his tow truck. James told the ARS agent

to stop, unhook the Premier, and to leave the premises because he was trespassing.

James then reached down to unhook the Premier, and the ARS agent grabbed his hands,

" Many of these cases actually address whether passage of the self-help repossession statute at issuequaTifled as action °under color of state IavJ' for Section 1983 purposes. However, conduct that sa0sfies the"color of state tavV' test also constitutes state action. erentwood Academy v. Tenn. Secondary SchoolAthletic Assn. (2001), 531 U.S. 288, 295, 121 S.Ct. 924, 930, fi. 2.

E0436 - A67Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 24

pushed him, and began screaming at him. According to James, the ARS agent screamed

that, "I'm going to make your neighbors know about what you're doing[;l you rich bastard,

I got you." (Aug. 23, 2006 Tr. 91.) At that point, James began pushing back and yelling.

James eventually backed away, and the ARS agent towed the Premier away.

(144} Based upon this evidence, a reasonable finder of fact could conclude that a

breach of the peace occurred. If the finder of fact reached such a condusion, then it

could also find ARS liable for conversion. Accordingly, we conclude that the trial court

erred in granting ARS summary judgment on James' claim for conversion of the Premier.

{¶45} Next, we consider whether the trial court erred in granting ARS summary

judgment on appellants' claims that an ARS agent assaulted them during the January 12,

2006 repossession. A plaintiff establishes the tort of assault by showing that the

defendant w(illfuily threatened or attempted to harm or offensively touch the piaintiff, and

that the threat or attempt reasonably placed the plaintiff in fear of such contact. Stafford

v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, ¶15.

{146} Although Carolyn entered the carport briefly during the repossession, she

went back inside the house after seeing her husband reach down to unhook the Premier.

Based on Carolyn's recounting of the events of January 12, 2006, the ARS agent never

threatened or attempted to contact her. Consequently, reasonable minds could only

conclude that the ARS agent did not assauit Carolyn, and thus, the trial court properly

granted ARS summary judgment on Carolyn's assault claim.

{147} The situation is different as to James. The ARS agent physically prevented

James from unhooking the Premier from the tow truck. James testified that he backed

away because the ARS agent was "about 30 years younger than I am and about another

E0436 - A68Nos. 09AP-501, 09AP-555, 10AP-263 & IOAP-274 25

150 pounds heavier than I was." (Aug. 23, 2006 Tr. 91.) In his July 25, 2008 deposition,

James stated repeatedly that he had felt threatened by the ARS agent. Despite this

evidence, ARS argues that James' actions demonstrated frustration or anger-not fear.

We believe that reasonable minds could disagree regarding how to interpret Jarnes'

actions and whether he reasonably feared that the ARS agerit would strike him. We

therefore conclude that the trial court erred in granting ARS summary judgment on

James' assault claim.

{148} Next, we must determine whether summary judgment was appropriate on

appellants' claims for violation of Section 1983. Section 1983 "provides a remedy for

deprivations of rights secured by the Constitution and laws of the United States when that

deprivation takes place 'under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory.' " Lugar v. Edmor+dson Oil Co., Inc. (1982), 457 U.S.

922, 924, 102 S.Ct 2744, 2747 (quoting Section 1983). A person is acting under the

color of state law if "the conduct allegedly causing the deprivation of a federal right [can]

be fairty attribut[ed] to the State." Id., 457 U.S. at 937, 102 S.Ct. at 2753. For fair

attribution to the state to exist, the person charged with committing the deprivation "must

be a person who may fairly be said to be a state actor." Id., 457 U.S. at 937, 102 S.Ct. at

2754. "This may be because he is a state official, because he has acted together with or

has obtained significant aid from state officials, or because his conduct is otherwise

chargeable to the State." Id.

{949] In the case at bar, appellants argue that ARS is a state actor because the

Public Utilities Commission of Ohio regulates it. Appellants neither asserted nor

presented any evidence to support this argument in the trial court. Moreover, we note

740436 - A69Nos. 09AP-501, 09AP-555, IOAP-263 & 10AP-274 26

that " '[t]he mere fact that a business is subject to state regulation does not by itself

convert its action into that of the State' " Am. Manufacturers Mut. tns. Co. v. Suliivan

(1999), 526 U.S. 40, 52, 119 S.Ct 977, 986 (quoting Jackson v. Metro. Edison Co.

(1974), 419 U.S. 345, 350,95 5.Ct. 449, 463).

1150) Appellants also claim that ARS is a state actor because it repossessed the

vehicles with the authorization of R.C. 1309.609. However, "the existence of [a] self-help

repossession provision in state law, and [a party's] use of the same to effectuate [a]

repossession, is not enough, on its own," to convert a private repossessor into a state

actor. Albertorfo-Santiago v. Reliable Fin. Servs. (C.P.R.2009), 612 F.Supp.2d 159, 166.

See also Elliott v. Chrysler Fin. (C.A.10, 2005), 149 Fed.Appx. 766, 768 ("Merely

following a procedure established by state law does not transform a private party's activity

into state action."); Pahis v. Kesselring (C.A.6, 2000), 230 F.3d 1359 (table) ("[S]imply

invoking the authority of a valid state law does not amount to state action for § 1983

purposes."). As both appeltants' arguments fail, we conclude that ARS is not a state

actor, and thus, the trial court property granted ARS summary judgment on appeflants'

Section 1983 claims.

{151) We next tum to the trial courys grant of summary judgment on James' claim

against ARS for the conversion of personal property that was in the Premier when ARS

repossessed that vehicle on May 9, 2005. To clarify, ARS repossessed the Premier

twice-first on May 9, 2005 and, after James redeemed the Premier, then again on

January 12, 2006. James asserted a claim against ARS for conversion of multiple items

of personal property that were in the Premier when ARS repossessed it the first time.

This personal property included clothing, prescription eyeglasses, boating paraphemalia,

E0436 - A70Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 27

CDs, and cash. After the repossession, James contacted ARS and requested the return

of the personal property in the Premier and the vehicle's license plates. ARS only

retumed the license plates.

{152} Although R.C. 1309.609 permits a repossessor to lawfully take possession

of another's vehicle, that permission does not extend to the personal items inside the

vehicle. Consequently, even though a lawful repossession leaves the debtor with no

claim for conversion of his vehicle, he may assert a conversion claim against the

repossessor for any personal property taken with the vehide and not returned. Perkins v.

City Mati. Bank & Trust Co. (Mar. 22, 1977). 10th Dist. No. 764P-730 (holding that the

plainfiff could recover for the conversion of personal items that "the defendant bank had

no right, by virtue of the contractual arrangements of the parties on the secuiity

agreement, to repossess along with the motor home"). See also McGrady v. Nissan

Motor Acceptance Corp. (M.D.Ala.1998), 40 F.Supp.2d 1323, 1330 ("Conversion may

occur when, during a repossession, personal property located in the repossessed vehicle

is taken. [A]lthough the taking of the vehide was lawful, the taking of PlaintifPs

personal property * .. was not lawful."); Billings, Handling Automobile Warranty &

Repossession Cases (2d ed.2003), Section 11:47 ("Conversion may occur during an

othenerise lawful repossession if the debtor's personal property is taken along with the

automobile. The financier's security interest is in the automobile alone, and not in items

located in it at the time of possession.").

{153) Here, ARS does not dispute that when it repossessed the Premier in May

2005, the Premier contained personal items that it did not return to James. Accordingly,

;0436 - A71Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 28

we conciude that the trial court erred in granting ARS summary judgment on James' claim

for conversion of his personal property.

{154} In sum, we conclude that the trial court erred in granting ARS summary

judgment on appellants' claims for trespass, James' claim for conversion of the Premier,

James' claim for assault, and James' ciaim for conversion of personal property in the

Premier. Consequently, we sustain appe0ants' second assignments of error to the extent

that they challenge those rulings. In all other respects, we overrule appellants' second

assignments of error.

1155) By their third assignments of error, appellants argue that the triat court erred

in granting ARS summary judgment on their claims for intentional infliction of emotional

distress. The third assignments of error also include a challenge to the trial courCs

determinafion that appellants could not recover punitive damages. Appellants, however,

do not separately argue that point. We therefore decline to address it. App.R. 12(A)(2);

Bond at ¶16-17.

1156) A defendant is liable for irrtentional infliction of emotional distress if his

"extreme and outsageous conduct intentionally or reclclessly causes serious emotsonal

distress to another." Yeager v. Loc. Union 20, Teamsters, Chauffeurs, Warehousemen &

Helpers of Am. (1983), 6 Ohio St3d 369, syllabus, abrogated on other grounds, Wetting

v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451. "Serious emotional distress" goes

beyond merely trrfling disturbance, mere upset, or hurt feelings. Paugh v. Hanks (1983),

6 Ohio St.3d 72, 78. The emotional injury must be so severe and debilitating that "a

reasonable person, normally constituted, would be unable to cope adequately with the

mental distress engendered by the circumstances of the case." Id. Serious emotional

E0436 - A72Nos. 09AR501, 09AP-555, 10AP-263 & 10AP-274 29

distress includes traumatically induced neurosis, psychosis, chronic depression, and

phobia. Id.

{157} A plaintiff claiming serious emotional distress must present some

"guarantee of genuineness" in support of his claim to prevent summary judgment in favor

of the defendant. Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443, ¶15

(quoting Paugh at 76). In most instanoes, a plaintiff can supply that genuineness with

expert medical tesbmony. Schultz v. Barberton Glass Co. (1983), 4 Ohio St3d 131, 135.

Such testimony, however, is not always necessary. Powell at ¶16. In lieu of expert

testimony, a plaintiff may submit testimony of lay witnesses who "testify as to any marked

changes in the emotional or habitual makeup that they discem in the plaintiff." Paugh at

80. See also Buckman-Peirson v. Brannon, 159 Ohio App.3d 12, 2004-Ohio-6074, 141;

Powell at ¶16. A court may decide whether the emotional injury alleged constitutes

"serious emotional distress" as a matter of law. Powell at ¶16.

{158} In the case at bar, James testified that his interactions with the ARS agents

have "shaken [him] up mentally," and that he "wake[s] up probably at least two times a

night' '' to see if they've come to tow any cars "(July 25, 2008 Tr. 147, 160.) Carolyn

stated that she was "truly frightened" by ARS agents' behavior. (Sept. 12, 2008 Tr. 67.)

Neither James nor Carolyn sought the treatment of a psychologist, psychiatrist, or any

other mental health provider as a result of their experiences with ARS. No expert medical

witness testified regarding the Ryans' mental states, and no lay witness acquainted with

the Ryans testified as to a marked change in their mental states.

{159} Given the state of the evidence, we conclude that no reasonable finder of

fact could find that the Ryans have incurred the type of severe and debititafing emotional

-:!10436 - A73Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 30

injury necessary for them to prevail on their claims for intentional infliction of emotional

distress. Although the Ryans have felt emotional discomfort, as a matter of law, their

suffering did not rfse to the level of serious emotional distress. See Oglesby v. Columbus,

10th Dist. No. 01AP-12&9, 2002-Ohio-3784, 129 (upholding summary judgment because

reasonable minds could not conclude that the plaintiff had suffered severe emotional

distress where the evidence established that the plaintiff feN humiliated, became

emotional at times, and was unable to eat or sleep, but never sought medical treatment

for his distress).

{160} Appellants, however, assert that they had identified a physician who would

have testified as to their extreme emotional stress. Appellants failed to introduce into the

record any testimony from this physician in response to ARS' summary judgment motion.

Consequently, the physician's alleged opinion cannot factor into our review of the trial

court's summary judgment ruling.

{161} Because the evidence in the record does not establish serious emotional

distress, the trial c+ourt properly granted ARS summary judgment on appellants' claims far

intentional inflid9on of emotional distress. Accordingly, we overrule appellants' third

assignments of error.

{162} By their fourth assignments of error, appellants attack the trial court's award

of summary judgment to Ford on its claims. First, James argues that the trial court erred

in declaring that the lease agreement and retail installment contracts specified that the co-

obligors to those contracts were jointly and severally responsible for making the required.

payments. In making this argument, James misinterprets both the amended complaint

and the trial courrs summary judgment ruling. Ford never sought a dedaratory judgment

E0436 - A74 31Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

as to the character of the co-obligors' liability under the relevant contracts. Ford, instead,

filed four breach of contract claims. Consequentty, in granting summary judgment to

Ford, the trial court did not declare that James and RRI were joinfly and severaliy liable

under the lease agreement, or that James and R&R were jointiy and severally liable

under the retail installment contracts.

(163) Moreover, in the amended judgment entry deciding Ford's summary

judgment motions, the trial court awarded damages consistent with Ford's concession

that the co-obligors were only jointly liable under the contracts. The trial court specified

that James and RRI were jointly liable for the $2,742.65 owed under the lease

agreement, and it awarded Ford only half of the amounts due under the retail installment

contracts.'2

{164) Second, James argues that summary judgment was inappropriate because

Ford failed to state any claims for relief in its amended complaint Specifically, James

claims that Ford did not allege in the amended complaint that he and his co-obligors

defaulted on the contracts. James also claims that Ford neglected to comply with Civ.R.

10(D)(1). The record belies both claims. Ford alleged that James and his co-obligors

had defaulted on their payment obligations when it stated that those obligations were

"past due," and it specified the amounts owing under each contract. Also, pursuant to the

dictates of Civ.R. 10(D)(1), Ford attached the lease agreement to its original complaint,

and it attached the retail installment contracts to its amended complaint Consequently,

'z Because Ford neglected to join R&R, James' co-obligor, as a party, the trial court only awarded Ford thepoRion of damages attributabie to James for the tueach of the retail installment contracts.

;0436 - A75Nos. 09AP-501, 09AP-555, IOAP-263 & 10AP-274 32

we conclude that Ford appropriately pleaded the breach of contract claims for which it

later sought summary judgment.

{165} Third, James argues that the trial court erred in granting summary judgment

on Ford's claims for breach of the retail installment contracts because Ford never made

R&R a party to the action. As we explained above, James co-purchased three vehicles

with R&R, and thus, both James and R&R are liable for the debt to Ford. Although Ford

sued James for breach of the retail installment contracts arising from the purchase of

those three vehicles, it did not also sue R&R. James argues that R.C. 2721.12(A)

required Ford to join R&R, and Ford's failure to do so rendered the trial courYs judgment

void. In relevant part, R.C. 2721.12(A) states that "when declaratory relief is sought

under [R.C. Chapter 27211 in an action or proceeding, all persons who have or claim any

interest that would be affected by the declaration shall be made parties to the action or

proceeding." This statute is inapplicable here because Ford did not seek declaratory

reiief.

{966} James also argues that Civ.R. 10(A) necessitated the joinder of R&R.

Civ.R. 10(A) merely requires that the title of a complaint "include the names and

addresses of all the parties." It does not list cnteria for determining what parties are

necessary to an action.

{167} Although James never cites it, Civ.R. 19 is the applicable authority. State

ex rel. GiH v. Winters (1990), 68 Ohio App.3d 497, 503 ( holding that Civ.R. 19 "describes

persons whose presence is needed for a just adjudica6on of the ac6on"). Civ.R. 19(A)

provides:

A person who is subject to service of process shall be joinedas a party in the action if (1) in his absenoe complete rerief

E0436 - A76Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274

cannot be accorded among those already parties, or (2) hedaims an interest relating to the subject of the action and isso situated that the disposidon of the action in his absencemay (a) as a practical matter impair or impede his ability to

protect that interest or (b) leave any of the persons alreadyparties subject to a substantial risk of incurring double,multiple, or othenaise inconsistent obligations by reason of hisclaimed interest * * *.

33

An appellate court reviews a trial courYs decision as to whether a person is a necessary

party under an abuse of discretion standard. Hambleton v. R.G. Barry Corp. (1984), 12

Ohio St.3d 179, 184.

{168) Here, R&R is not a necessary party under Civ.R. 19(A)(1) because a court

can accord complete relief among Ford and James. A creditor who sues a co-obligor for

his portion of the debt can receive from that obligor the complete relief it requests (i.e.,

half of the debt). Davis v. Middleton (May 28, 1985), 12th Dist. No. CA84-08-054.

Consequently, the other co-obligor is not a necessary party to the suit. Id.

{%69] R&R also fails to qualify as a necessary party under Civ.R. 19(A)(2). R&R's

absence from the instant case does not "as a practical matter impair or impede [its] ability

to protect" its interest in the repossessed vehicles. Civ.R. 19(A)(2)(a). James is a party

to this case and, as the 100 percent shareholder in R&R, James' interests are completely

aligned with R&R's interests. Thus, James can fully protect R&R's interests. Moreover,

James is not "subject to a substantial risk of incurring double, multiple, or otherwise

inconsistent obligations." Civ.R. 19(A)(2)(b). As we explained above, the trial court

entered judgment against James for only the portion of the debt that he owed.

Acoordingly, we conclude that the trial court did not abuse its discretion in refusing to join

R&R as a party. James, therefore, cannot use the lack of joinder as a reason to overtum

the trial courts award of summary judgment to Ford on its breach of contract claims.

;0436 - A77Nos. 09AP-501, 09AP-555, 10AP-283 & 10AP-274 34

{170} As James does not prevail on any of his arguments, we overrule his fourth

assignment of error. Likewise, we overrule Carolyn's fourth assignment of error. Carolyn

merely adopted James' arguments in support of her fourth assignment of error, and none

of those arguments challenge the grant of summary judgment on Ford's breach of

contract claim against her.

{¶71 } By their fifth assignments of error, appellants argue that the trial court erred

in granting summary judgment to Ford and Bob-Boyd on appellants' CSPA claims. While

we agree with appellants that Carolyn's CSPA claim against Bob-Boyd should have

survived summary judgment, we find that the trial court appropriately awarded summary

judgment on James' CSPA ctaims and Carolyn's CSPA claim against Ford.

{172} R.C. 1345.02 and 1345.03 prohibit suppliers from engaging in unfair,

deceptive, or unconscionable practices "in connection with a consumer transaction." A

"consumer transaction" means "a sale, lease, assignment, award by chance, or other

transfer of an item of goods, a service, a franchise, or an intangible, to an individual for

purposes that are primarily personal, family, or household." R.C. 1345.01(A). The

definition of "consumer transaction" does not include "transactions between persons,

defined in sections 4905.03 and 5725.01 of the Revised Code, and their customers

'03 Id. The "persons" listed in R.C. 5725.01 include "dealers in intangibles," which

R.C. 5725.01(B)(1) defines as:

[E]very person who keeps an office or other place of businessin this state and engages at such office or other place in abusiness that consists primarily of lending money, ordiscounting, buying, or selling bills of exchange, drafts,

'$ R.C. 1345.01(A) exempts certain types of transactions from this exception to the definition of "consumertransaction' None of those exemptions are applicable here.

E0436 - A78Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 35

aoceptances, notes, mortlqages, or other evidences ofindebtedness • •'

19731 In the case at bar, Ford claims that appellants cannot sue it for violation of

the CSPA because it is a "dealer in intangibles." Ford attached to its motion for summary

judgment the affidavit of Randall E. Goiliher, a territory sales manager for Ford, in which

Golliher testified that Ford maintained an office in Ohio from 2003 through 2006. Goiliher

also stated that, at that office, Ford engaged in a business that primarily consisted of

lending money, or discounting, buying, or selling bills of exchange, drafts, acceptances,

notes, mortgages, or other evidences of indebtedness. Appellants offer no evidence to

rebut Golliher's affidavit Accordingly, as Ford presented uncontradicted evidenoe that it

qualifies as a"deaier in intangibles," appellants' CSPA claims against Ford must fail. See

Reagans v. MountainHigh Coachworics, Inc., 117 Ohio St.3d 22, 2008-Ohio-271, 133 ("As

a general matter, transactions between financial institutions and their customers are

exempted from the definition of a 'consumer transaction' subject to the Consumer Sales

Practices Act."); Columbus Mtge., Inc. v. Morton, 10th Dist. No. 06AP-723, 2007-Ohio-

3057, ¶53-59 (affirming the grant of summary judgment on a CSPA claim because the

transaction at issue involved a dealer in intangibles).

1174) James, however, argues that Ford has derivative liability for Bob-Boyd's

misconduct because the retail installment contracts contain the notice mandated by 16

C.F.R. 433.2, a Federal Trade Commission ("FTC") regulation.'" Inclusion of the FTC-

mandated notice in a consumer credit contract subjects a creditor to the claims the

" in compliance with 16 C.F.R. 433.2, the notice in the retail Installment contracts reads, "NOTICE - ANYHOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSESWHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVECES OBTAINEDPURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THEDEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER '

30436 - A79Nos. 09AP-501, 09AP-555, IOAP-263 & 10AP-274 36

consumer debtor has against the seller of the goods financed by the credit contract.

Reagans at ¶22. See also Milchen v. Bob Morrr`s Pontiac-GMC Truck (1996), 113 Ohio

App.3d 190, 195-97 (holding that although a financial institution could not be directly liable

under the CSPA, it could be derivatively liable for the se0er's violations of the CSPA due

to the inclusion of the FTC-mandated notice). Thus, James argues that he can assert a

CSPA claim against Ford despite its being a "dealer in intangibles."

{175} James acknowledges that he raises this argument for the first time before

this court. Ordinarily, such a belated asser6on of an argument results in its forfeiture.

State ex ret. Ohio Civ. Serv. Emp. Assn. at ¶10. James contends that he did not forfeit

this argument because Ford did not attach the page of the retail installment contracts that

contained the FTC-mandated notice to its summary judgment motion. James is

mistaken. Ford included that page in the copies of the retail installment contracts

reproduced in the appendix to its motion. Thus, we decline to consider James' argument.

{q76} Unlike Ford, Bob-Boyd does not claim to be a "dealer in intangibles."

Rather, Bob-Boyd argues that summary judgment was warranted on appellants' CSPA

claims against it because appellants did not purchase their vehides for primarily personal,

family, or household purposes.

{4177} A consumer cannot recover under the CSPA unless he entered into a

"consumer transaction," i.e., a purchase made for primarily personal, family, or household

purposes. R.C. 1345.01(A); Giffin v. Crestview Cadillac, 10th Dist. No. 09AP-278, 2009-

Ohio,6569, ¶21. Purchases of goods for primarily business purposes are not "consumer

transactions," and thus, cannot support a CSPA claim. Giffin at ¶21. When deciding

whether a"consumer transaction" occurred, "courts look to 'the point in time when the

E0436 - A80Nos. 09AP-501, 09AP-555, 10AP-263 8 10AP-274 37

parties have entered a binding agreement.' "!d. at ¶22 (quoting Tomes v. George P.

8allas Leasing, Inc. (Sept. 30, 1986), 6th Dist. No. L-85-359). Courts then examine the

"objective manifestations" that the purchaser made at that time regarding how he

intended to use the purchased item. Id. If the purchasers intentions are unclear, then

courts apply the principal use test. Id. at ¶26. The outcome of the principal use test

depends on how the owner of the item uses that item after its purchase. Id. at ¶25.

"Factors include the 'total time used for business versus total time used for personal

activities, evidence of compensation for business use either from an employer or by way

of deduction, as well as relative mileage.' " 1d. at ¶25 (quoting Jackson v. Krieger Ford,

Inc. (Mar. 28, 1989), 10th Dist. No. 88AP-1030).

1178) Here, as to the Premier, James made no objective manifestaCions

regarding how he intended to use the vehicle. Although the retail installment contract

contained a section in which the purchaser could indicate the "Use For Which

Purchased," that section is blank. As to the Monterey and Mountaineer, James made

conflicting objective manifestations regarding his purpose. James checked the "personal"

box in the section of the retail installment contracts entitled "Use For Which Purchased."

However, James purchased each vehicle jointly with a corporation-R&R. By definition,

a corporation only purchases goods for business purposes.

{4079} Ford recognized the inconsistency created by the representation that a

corporation purchased the vehicles for personal use. Upon review of the retail installment

contracts for the purchases of the Monterey and Mountaineer, Ford sent letters to R&R

indicating that "[t]he Personal Use box is checked incorrectly;" and "(t]he correct use for

which [the vehicle was] purchased is Commercial."

-!A0436 - A81Nos. 09AP-501, 08AP-555, iOAP-263 &10AP-274 38

{184} Based upon the totality of the evidence, we conclude that the objec6ve

manifestations regarding the intended use were either nonexistent or ambiguous. Thus,

we turn to the prindpa{ use test to determine whether the vehides were purchased for

personal or business purposes.

(981) After purchase, the vehicles were titled in the name of R&R. Additionally,

R&R depreciated the vehicles as business assets on its 2004 federal tax retum. That tax

return indicates that, in 2004, 90 percent of the Monterey's use was for business

purposes, 85 percent of the Mountaineer's use was for business purposes, and 95

percent of the Premier's use was for business purposes. Accordingly, we conclude that

James purchased the vehicles for primarily business, not personal, use. Because the

purchases do not qualify as "consumer transactions," James' CSPA claims against Bob-

Boyd must fail.

{1182} We reach the opposite conclusion on Carolyn's CSPA claim against Bob-

Boyd. Unlike James, Carolyrn did not co-purchase her vehide with a corporation. The

only objective manifestation as to Carolyn's purpose is that she checked the "personal"

box when designating the purpose for which she purchased the car. Therefore, we

conclude that Carolyn engaged in a "consumer transaction;' and thus, the trial court erred

in granting summary judgment on her CSPA claim against Bob-Boyd.

{183} In sum, we overrule James' fifth assignment of error. We overrule Carolyn's

fifth assignment of error to the extent it challenges the trial court's summary judgment

ruling as to Ford, but we sustain that assignment of error to the extent it challenges the

trial court's ruling as to Bob-Boyd.

E0436 - A82 39Nos. O9AP-501, 09AP-555, 10AP-263 & 10AP-274

{184) By his sixth assignment of error, James argues that the trial court erred in

granting Ford's motion for an order exercising jurisdiction over and denying the return of

the Premier to him. The decision at issue arose due to a mix-up that occurred when ARS

repossessed the Premier on January 12, 2006. Originally, the ARS agent went to the

Ryans' home to repossess a 2001 Mercury Villager ('Villager"), but instead, he mistakenly

hooked the Premier to his tow truck. After a physical confrontation with James, the ARS

agent towed away the Premier. Ford later sued James for breach of contract for his

failure to make payments on the Viilager, and that case was assigned to Judge

Schneider. James moved Judge Schneider for an order directing Ford to return the

Premier to him. Ford responded that because James had defaulted on his obligation to

pay for the Premier, the repossession of the Premier was lawful. Ford informed Judge

Schneider that a breach of contract claim as to the Premier was pending in front of Judge

Lynch. In his December 28, 2005 decision granting James' motion, Judge Schneider

ruled:

[Tjhe present case does not concem the 2004 MercuryMountaineer Premier vehicle, and so plaintifPs retainingpossession of this vehicle through proceedings in the present

case is unwarranted. However, the effective date of thisdecision shall be delayed ten (10) days to give plaintiff anopportunity to obtain a determina6on as to possession of thisvehicle from Judge Lynch, if desired.

{185} Ford then filed a motion before Judge Lynch requesting that she exercise

jurisdiction over the Premier and deny the return of the Premier to James. Eventually,

Judge Lynch granted that motion.

(186) The decision at issue is interlocutory and unrelated to the final judgments

that resolved the claims of and against Ford, ARS, and Bob-Boyd. Consequently, this

's0436 - A83Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 40

judgment is not yet ripe for appeal. Haley at 111-12; Davis at ¶6. Once the trial court

enters a final order that disposes of the entirety of the instant case, James, if he chooses,

may appeal this decision. We thus dismiss James' sixth assignment of error.

(187) Having addressed appellants' first appeals, we now tum to their second

appeals. By their first assignments of error, appellants argue that the trial court erred in

granting summary judgment to Bob-Boyd on appeilants' claims for breach of contract,

estoppel, and violation of the CSPA.tS We have addressed the CSPA claims above, so

we need only consider whether summary judgment was appropriate on appellants' claims

for breach of contract and estoppel.

(18S) Appellants claim that Bob-Boyd breached the retail installment contracts by

repossessing the vehicles that secured the debt in the absence of any default. Bob-Boyd

responds that, although it initially executed the retail installment contracts, it subsequently

assigned those contracts to Ford. Pointing to those assignments, Bob-Boyd argues that it

is no longer a party to the contracts, and thus, it cannot be liable for any breach of the

contracts.

{189) An assignment is a transfer of property or of some right or interest from one

person to another that causes the property, right, or interest to vest in the other person.

Siebeit v. Columbus and Franklin Cty. Metro. Park Dist. (Dec. 28, 2000), 10th Dist. No.

OOAP-583; Leber v. Buckeye Union Ins. Co. (1997), 125 Ohio App.3d 321, 332.

Generally, an assignment extinguishes the right in the assignor and transfers it to the

assignee. Griffin v. Porco (Apr. 24, 1996), 1 st Dist. No. G941013. The assignee "stands

'5 Appellants also ciaim that the trial court erred in granting summary ptdgment to Bob-Boyd on their clatmsfor negligent misrepresentation and violation of the RISA. Appellants did not assert either of these claimsagainst Bob-Boyd in their counterctaims. As these daims are not part of this case, we wiA not consider

them.

E0436 - A84Nos. 09AP-501, 09AP-555. 10AP-263 & 10AP-274 41

in the shoes of the assignor' and "succeeds to all the rights and remedies of the latter."

Inter Ins. Exchange of Chicago Motor Club v. Wagstaff (1945), 144 Ohio St. 457, 460.

{190} In the case at bar, Bob-Boyd relied on the affidavit of William L. Dawes,

Bob-Boyd's dealer-operator, president, and co-owner, to prove its entitlement to summary

judgment on the breach of contract claim. Dawes testified that after entering into the

retail installment contracts, Bob-Boyd assigned them to Ford. Faced with this evidence,

appellants concede that Bob-Boyd assigned the retail installment contracts to Ford.

Appellants, however, argue that Bob-Boyd has "probable remaining interests" under the

contracts. (Appellants brief, at 3.) Because appellants offer nothing but speculation to

support this argument, we reject it.

1191} Appellants also argue that Bob-Boyd did not assign the purchase orders for

the vehicles to Ford. While this may be true, it is inconsequential. Appellants did not

assert a claim against Bob-Boyd for a breach of the purchase orders.

1992} By assigning the retail installment contracts, Bob-Boyd transferted its

interest in the contracts and does not retain any interest in them. We thus conclude that

the trial court properly granted Bob-Boyd summary judgment on appellants' breach of

contract claims.

{¶931 Next, appellants contend that their estoppel claims should have survived

Bob-Boyd's summary judgment motion. Appellants claim that Bob-Boyd informed them

that the contract extensions that Ford granted them were valid and enforceable.

Appellants maintain that they relied on this representation to their detrtment, and thus,

Bob-Boyd should be estopped from denying that it made the representation.

;0436 - A85Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 42

[194) Bob-Boyd presents two arguments in response. First, Bob-Boyd argues

that appellants are seeking equitable estoppel, which is an affirmative defense and not a

cause of action. Equitable estoppet precludes recovery " 'when one party induces

another to believe certain facts exist and the other party changes his position in

reasonable reliance on those facts to his detriment' " Doe v. Archdiocese of Cincinna6,

116 Ohio St.3d 538, 2008-Ohio-67, ¶7 (quoting State ex rel. Chavis v. Sycamore City

School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 34). Promissory estoppel allows

recovery of damages when a defendant makes " '[a] promise which the [defendant]

should reasonably expect to induce action or forbearance on the part of the [plaintiff] '"'

and which does induce such action or forbearance' " Hortman v. Miamisburg, 110 Ohio

St.3d 194, 2006-Ohio14251, ¶23 (quo6ng Restatement (Second) of Contracts (1981),

Promise Reasonably Inducing Action or Forbearance, Section 90). The key distinction

between the two doctrines is that equitable estoppel arises from a misrepresentation of

fact, while promissory estoppel arises from a promise. Ho►trnan at 124. Moreover,

equitable estoppel is a defense to a legal or equitable claim, while promissory estoppel is

a cause of action. Stem v. Shainker, 8th Dist No. 92301, 2009-Ohio-2731, ¶11-12;

Callander v. Callander, 10th Dist. No. 07AP-746, 2008-Ohio-2305, ¶31; Holt Co. of Ohio

v. Ohio Machinery Co., 10th Dist. No. 06AP-911, ¶28. Equitable estoppel is a shield;

promissory estoppel is a sword. Stem at ¶12; Callander at ¶31; Holt Co. at ¶28; First

Fed. Sav. & Loan Assn. of Toledo v. Peny's Landing, tnc. (1983), 11 Ohio App.3d 135,

144.

{195) We agree with Bob-Boyd that appellants appear to be seeking recovery for

equitable estoppet. Appellants allege that Bob-Boyd made a misrepresentation, not a

E0436 - A86Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 43

promise, which they detrimentally relied upon. Because equitable estoppel does not

constitute a cause of ac6on, appellants cannot prevail on such a "claim"

{996} Additionally, even if we construe appellants' claims as claims for promissory

estoppel, Bob-Boyd presents a persuasive argument preventing appellants' recovery. In

order to prove a daim for promissory estoppel, a plaintiff must establish: (1) a dear,

unambiguous promise, (2) the person to whom the promise was made relied on the

promise, (3) reliance on the promise was reasonable and foreseeable, and (4) the person

claiming reliance was injured as a resuk of reliance on the promise. Pappas v. Ippolito,

177 Ohio App.3d 625, 2008-Ohio-3976, ¶55. Bob-Boyd contends that appellants cannot

prove that they reasonably relied on Bob-Boyd's "promise" because they knew that Ford

was the party to whom they owed payment for the vehicles. Thus, Bob-Boyd posits,

appeflants understood that Ford-not Bob-Boyd-controlted whether they would receive

extensions on their payment obligations. The evidence supports Bob-Boyd's argument.

James testified that he arranged payment extensions with Ford. James understood that

Ford was the creditor who had provided the financing for the vehicles, and that Ford

instrumented the repossessions. Therefore, we conclude that no reasonable finder of

fact could find that appellants reasonably relied on anything Bob-Boyd "promised"

regarding payments appellants owed Ford.

(197} In sum, we conclude that the trial court properly granted summary judgment

to Bob-Boyd on appellants' claims for breach of contract and estoppel, and on James'

claim for violation of the CSPA. The trial courk, however, erred in granting Bob-Boyd

summary judgment on Carolyn's claim for violation of the CSPA. We thus sustain the first

Z0436 - A87Nos. 09AP-501, 09AP-555, 10AP-263 &10AP-274 44

assignments of error as to Carolyn's CSPA claim only. In all other respects, we overrule

the first assignments of error.

{198} By James' fourth assignment of error, he argues that R.C. 1309.609

violates the Fourth and Fourteenth Amendments to the United States Constitution, as well

as Sections 1, 16, and 19, Article I of the Ohio Constitution. For the most part, we have

already considered and rejected this argument In this assignment of ercor, James relies

on additionai sections of the Ohio Constitut9on to bolster his earlier-asserted challenge to

R.C. 1309.609's constitutionality. James, however, has forFeited any argument based on

the Ohio Constitution because he failed to assert such an argument before the trial court.

State ex rel. Ohio Civ. Serv. Emp. Assn. at ¶10. Accordingly, we overrule James fourth

assignment of error.

{199} Next, we consider James' fifth and Carolyn's fourth assignments of error.

By those assignments of error, appellants argue that the ttial court erred in denying their

•Civ.R. 56(F) motions. For the reasons discussed above, we strike these assignments of

error to the extent that they pertain to ARS. We will, however, review whether the trial

court erred in denying the Civ.R. 56(F) motion that appellants filed seeking a continuance

to respond to Ford's motion for summary judgment

fl100} Pursuant to Civ.R. 56(F), a party may seek additional time in which to

develop the facts needed to adequately oppose a motion for summary judgment. Hatton

v. frtterim Health Care of Columbus, Inc., 10th Dist. No. 06AP-828, 2007-Ohio-1418, 110.

The party seeking the Civ.R. 56(F) continuance bears the burden of establishing why the

party cannot present sufficient facts to justify its opposition to a motion for summary

judgment without a continuance. Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgt., LLC,

E0436 - A88Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 45

10th Dist. No. 09AP-285, ¶13; Wavedy City School Dist. 8d. of Edn. v. Triad Architects,

Inc., 10th Dist. No. 08AP-329, 2008-Ohio-6917, ¶17. The moving party cannot meet this

burden with mere allegations; rather, the moving party must aver in an affidavit a

particularized factual basis that explains why further discovery is necessary. Morantz v.

Ortiz, 10th Dist. No. 07AP-597, 2008-Ohio-1046, ¶22; Hahn v. Groveport, 10th Dist. No.

07AP-27, 2007-Ohio-5559, ¶30. Absent an abuse of discretion, an appellate court will not

reverse a trial courts ruling on a Civ.R. 56(F) motion. State ex rel. Sawyer v. Cuyahoga

Cty. Dept. of Children and Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, ¶9.

{1101}Appellants expressed two motivations for filing their Civ.R. 56(F) motion.

First, appellants' attomey, Ira B. Sully, explained that his co-counsel had withdrawn from

the case approximately one week before Ford filed its motion for summary judgment.

Apparently, the co-counsel had maintained the case file. Although the co-counsel

claimed that he had delivered the entire case file to Sully, Sully believed that the file was

incomplete. Sully sought additional time to review the court filings and discovery.

Second, appellants wished to conduct additional discovery regarding whether ARS was

acting as an agent or an independent contractor for Ford.

;¶I02} Sully faced a difficuR task in assuming the role as appellants' primary

counsel immediately before an opposing party filed a motian for summary judgment.

However, as the trial court noted, Sully initially appeared in the case in May 2006-

approximately three years before Ford sought summary judgment. Sully, therefore, was

familiar with the facts and issues raised in Ford's motion. Additionally, although Sully

claimed that the case file appeared incomplete, he failed to explain in his affidavit what

documents were missing or how the absence of those documents adversely impacted his

!-A0436 - A89Nos. 09AP-501, 09AP-555, 1OAP-263 & 10AP-274 46

ability to respond to Ford's motion. Thus, the trial court was not persuaded by his plea for

additional Ume to prepare a response.

{¶'t03}The trial court also rejected appellants' bid for additional Ume to conduct

discovery, stating that the discovery deadline had passed and that triai was only weeks

away. ln an agreed scheduling order filed on October 27, 2008, the parties agreed to

April 13, 2009 as the discovery-cut-off date. Ford originally filed its motion for summary

judgment, in which it argued that ARS was an independent contractor, on September 30,

2008.16 Thus, at the Ume appellants' attomeys (including Sully) agreed to the April 13,

2009 discovery deadline, they were aware of the independent contractor issue.

Apparently, appellants neither sought discovery on the issue nor requested an extension

of the discovery deadline.

{1104} Given Su11y's previous involvement in the case and appeilants' lack of

diligence in conducting discovery, we cannot conclude that the trial court abused its

discretion in denying appellants' CIv.R. 56(F) motion. Accordingly, we overrule James'

fifth and Carolyn's fourth assignments of error.

(1105} By James' sixth assignment of error, he argues that the trial court erred in

granting Ford's motion for an order exercising jurisdiction over and denying the return of

the Premier. For the reasons discussed in response to James' sixth assignment of error

in his first appeal, we dismiss this assignment of error.

{1106} We next tum to James' seventh assignment of error and Carolyn's fifth

assignment of error. By these assignments of error, appellants argue that the trial court

15 Appellants objected to Ford's original summary judgment motion an the basis that they had yet toconduct discovery. The trial court did not rule on Ford's motion. On March 16, 2009, Ford frled a renewedmotion for summary judgment, asserting the same arguments made In the original motion. Appellants

moved for Civ.R. 56(F) relief in response to the renewed motion.

E0436 - A90Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 47

erred in granting Ford summary judgment on its breach of contract claims and appellants'

claims. First, appellants contend that Ford failed to produce any evidence proving that:

appellants had defaulted on their payment obligations. Appellants are wrong. Ford

presented the trial court with the affidavits of two of its employees to establish appellants'

defauks.

{1107} First, Stephen Barbato, the center operations manager in the loss

prevention department at Ford's Greenvilie Service Center testified that: (1) payment on

the Premier was 61 days past due when ARS repossessed it; (2) payment on the

Mountaineer was 55 days past due when ARS repossessed it; (3) payment on the

Monterey was 22 days past due when ARS repossessed it; and (4) payment on Carolyn's

Grand Marquis was 24 days past due when ARS repossessed it. Second, Barbara

Travis, a center operations manager at Ford's National Recovery Center in Mesa,

Arizona, testified that (1) the retail installment contract forthe purchase of the Premier

"has been and remains in default," with $3,481.79 due and owing on the aceount; (2) the

retail installment contract for the purchase of the Mountaineer "has been and remains in

default," with $8,784.40 due and owing on the account; (3) the retail installment contract

for the purchase of the Monterey "has been and remains in defauft," with $3,224.74 due

and owing on the account; (4) the retail installment contract for the purchase of Carotyn's

Grand Marquis "has been and remains in default," with $8,635.24 due and owing on the

account; and (5) the lease agreement for the lease of the Windstar "has been and

remains in default," with $2,742.65 due and owing on the account.

{1108} With these two affidavits, Ford established each contract at issue was in

default. Consequentty, to avoid summary judgment, appellants had to present evidence

,0436 - A91Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 48

creating a genuine issue of material fact as to the existence of the defaults or posit a legal

reason why Ford could not recover on its Gaims. Appellants pursued the latter option,

arguing that Ford waived the defaults by repeatedly accepting late payments from

appellants. Appellants rely on Sfusser v. Wyrfck (1986), 28 Ohio App.3d 96, 97, wherein

the Twelfth District held that, "[t)he acceptance of late payments by a creditor who has the

statutory or contractual right to repossess the collaterat estops the creditor from lawfully

repossessing said collateral without notice after subsequent late payment default."

Appellants assert, and Ford does not dispute, that Ford previously had accepted late

payments from appellants. Additionally, appellants assert, and Ford does not dispute,

that prior to initiating the nepossessions, Ford did not notify appellants that they would

have to stricdy comply with the payment deadlines to avert repossession. Thus,

appellants contend that, based on Slusser, Ford waived their defaults.

{1104} Although application of the rule pronounced in Slusser could have

conceivably precluded Ford from employing its contractual remedies for appellants'

default, it does not prevent Ford from pursuing a claim for breach of contract against

appellants. In other words, Ford's failure to notify appellants of its intent to strictly enforce

the retail installment contracts would, at best, estop Ford finm repossessing the vehicles.

Contrary to appellants' reading of Slusser, failure to notify does not excuse the default.

Thus, Sfusser does not provide a defense to Ford's breach of contract ciaims for

appellants' default on their payment obligations.

191101 In any event, Ford also contends that Slusser is inapplicable to the case at

bar because the retail installment contracts contain an anti-waiver provision. Unlike the

contract at issue in Slusser, the retail installment contracts include a provision intended ta

E0436 - A92Nos. 09AP-501, 09AP-555, 10AP-263 810AP-274 49

prevent waiver from arising from acceptance of late payments. Pursuant to Section E of

the retail installment contracts:

Acceptance of a late payment or late charge does not excuseyour default or mean that you can keep making paymentsafter they are due. The Creditor may take the steps set forthin this contract if there is any default

Section G of the retail installment contracts specifies that Ford can repossess the vehicle

that secures the debt if the debtor(s) defaults.

{1111}Typically, Ohio courts enforce anti-waiver clauses according to their terms.

Fields Excavating, Inc. v. McWane, Inc., 12th Dist. No. CA2008-12-114, 2009-Ohio-5925,

¶35. Consistent with that general rule, this court has already indicated that an anti-waiver

provision in a security agreement precludes the application of Slusser. Pizarro v. Credit

Acceptance Corp., 10th Dist. No. 01AP-392, 2001-Ohio•4116. As courts outside of Ohio

have held, if an anti-wa'rver clause preserves the secured party's right to demand strict

compliance with the contractual terms, and the debtor's failure to comply with the terms

would otherwise give rise to the right to repossession without notice, then the secured

party may repossess without providing the debtor notice. Minor v. Chase Auto Fin. Corp.,

2010 Ark. 246; Williamson v. Nissan MotorAcceptance Corp. (A1a.1993), 631 So.2d 241,

242; Van 8ibber v. Norris (1981), 275 Ind. 555, 563-65; Wade v. Ford Motor Credit Co.

(E.D.Mo.1978), 455 F.Supp. 147, 149-50. Such a rule adheres to the general principle

that "a security agreement is effective according to its terms between the parties." R.C.

1309.201(A).

{1112) Here, the retail installment contracts warned appellants that Ford's

acceptance of late payments did not prohibit Ford from repossessing the vehicles as a

consequence of subsequent late payments. Pursuant to this contractual term, Ford had a

;0436 - A93Nos. 09AP-501, 09AP-555, IOAP-263 810AP-274 50

right to repossess after any default on the payment obligation. Ford, therefore, did not

have to notify appellants before repossessing their vehicles. Acoordingly, we conclude

that the trial court did not err in granting Ford summary judgment on its breach of contract

claims against appellants.

{1113} Appellants next argue that Ford is derivatively liable for the torts that ARS

committed when it repossessed the vehicles. Ford contends that because ARS is an

independent contractor, it is not liable for ARS' actions.

(1114} Generally, an employer of an independent contractor is not liable for the

acts of the independent contractor. Pusey v. Bator, 94 Ohio St.3d 275, 278, 2002-Ohio-

795. Two exceptions to this general rule, each stemming from the nondelegable duty

doctrine, apply here. Nond6e9able duties arise from: (1) affirmatnre duties that are

imposed on the employer by statute, contract, franchise, charter, or common law, and (2)

duties imposed on the employer that arise out of the work itself because its performanoe

creates dangers to others, i.e., inherently dangerous work. Id. at 279. "If the work to be

perFormed fits into one of these two categories, the employer may delegate the work to an

independent contractor, but he cannot delegate the duty." Id. (Emphasis sic.) In other

words, the employer is not insulated from liability if the independent contractors actions

result in a breach of the duty. Id.

{¶115} R.C. 1309.609 allows a secured party to repossess its collateral only if the

secured party can accomplish the repossession without a breach of peace. Thus, the

secured party has a statutory duty to avoid breaching the peace. Leigbty v. Am. Can

Credit Union (Dec. 9, 1982), eth Dist No. 44496 ("Should a creditor seek to utilize the

statutorily conferred right to self-help in recovering its collateral, it is incumbent upon that

E0436 - A94Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 51

creditor to ensure that the means utilized do not constitute a breach of the peace."). See

also Clark at 1448 (holding that the Tennessee version of former U.C.C. 9-503 imposed

"a definite statutory obligation to take precautions against a breach of peace"); MBank El

Paso, N.A. at 153 ("[Former] section 9-503 of the UCC imposes a duty on secured

creditors pursuing non-judicial repossession to take precautions for public safety."); Gen.

Fin. Corp. v. Smith (Ala.1987), 505 So.2d 1045, 1048 ("By implication, [] a secured party

is under a duty to take those precautions which are necessary at the time to avoid a

breach of the peace."); Rand v. Porsche Fin. Servs. (Ariz.App.2007), 216 Ariz. 424, 433

(holding that Arizona's self-help repossession statute, based on U.C.C. 9-609, "impose[s]

the specific safeguard that a creditor not breach the peace if that creditor elects to forgo

judicial process when repossessing collateral."); Sammons v. Broward Bank

(FIa.App.1992), 599 So.2d 1018, 1020 ('The duty to repossess property in a peaceable

manner is specifically imposed on a 'secured party' by the uniform commercial code.");

Massengill v. Indiana Natl. Bank (Ind.App.1990), 550 N.E.2d 97, 99 (holding that the

Indiana reiteration of former U.C.C. 9-503 and common law "make it clear that

repossession of a secured chattel must be accomplished without breaching the peace. A

dear statutory duty is present."); Nichols v. Metro. Bank (Mo.App.1989), 435 N.W.2d 637,

640 ("The conditional nature of the secured party's sel# help remedies and the language

of the [self-help repossession statute] indicate that a secured party must ensure that there

is no risk of harm to the debtor and others if the secured party chooses to repossess the

collateral by self-help methods.").

11116) Because statutory duties are nondelegable, the secured party who must

meet the duty is responsible for the actions of the independent contractor hired to carry

;0436 - A95Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 52

out the duty. Clark at 1448; MBank EI Paso, N.A. at 153; Gen. Fin. Corp. at 1048; Rand

at 434; Massengill at 99; Robinson v. Citicorp Natt. Servs., Inc. (Mo.App.1996), 921

S.W.2d 52, 54-55; Fulton v: Anchor Sav. Bank, FSB (1994). 215 Ga.App. 456, 462-63;

Leighty; Sammons at 1020. Consequently, Ford is liable for ARS' actions.

{¶ t 17} Moreover, even if no statutory duty existed, the exoeption for inherently

dangerous work would also render Ford liable. Inherendy dangerous work is "work that

involves a risk, recognizable in advance, of physical harm to others, which is inherent in

the work itself." Pusey at 280. The work "must create a risk that is not a normal, routine

matter of customary human activity, such as driving an automobile, but is rather a special

danger to those in the vicinity arising out of the particular situation created, and cafling for

special pnecautions:" Id.

f{118} Courts have recognized that setf-heip repossession constitutes an

inherently dangerous activity. Williamson v. Fowler Toyota, Inc. (Okla.1998), 956 P.2d

858, 1998 OK 14, ¶6; Hester v. Bandy (Miss.1993), 627 So.2d 833, 84143; DeMary v.

Rieker (i997), 302 N.J.Super. 208, 221. Self-help repossession is a hazardous business

because it necessitates activities that appear to the public as theft. Bitlings, Handling

Automobile Warranty and Repossession Cases (2d ed.) 631, Sedion 11:20. Whenever a

person confiscates the property of another, particularly when the owner believes he is

entitled to keep the property, the potential for a dispute is high, and injury to person or

property a foreseeable risk. DeMary at 221. Consequently, we conclude that self-help

repossession creates a special danger arising out of the situation created by the work,

and it calls for special precautions.

E0436 - A96Nos. 09AP-501, 09AP-555, i 0AP-263 & 10AP-274 53

{1119} Because sel(-help repossession is inherently dangerous work, the secured

party has a nondelegable duty to ensure that repossessions occur without a breach of the

peace. Wdliamson at ¶16; DeMary at 222. Therefore, Ford is liable for ARS' actions.

{1120} Consistent with the outcome of the above analysis, the drafters of the

U.C.C. have also opined that creditors should be held liable for the actions of the

independent contractors that they hire to repossess collateral. In the Official Comment to

U.C.C. 9-609, the drafters state, "[]n considering whether a secured party has engaged in

a breach of peace, [] courts should hold the secured party responsible for the actions of

others taken on the secured party's behalf, including independent contractars engaged by

the secured party to take possession of collateral."

{1121} Earlier, we concluded that a question of fact remains regarding whether

ARS breached the peace when it repossessed the Premier on January 12, 2006. As

Ford has a nondelegable duty to avoid a breach of the peace, Ford is liable for any torts

that ARS committed during that repossession. We thus conclude that the trial court erred

in granting Ford summary judgment on appellants' claims for conversion of the Premier,

the trespass that allegedly occurred on January 12, 2006, and assauR.

111221 In sum, we conclude that the trial court appropriately awarded Ford

summary judgment on its breach of contract claims. However, we conclude that

summary judgment was inappropriate on James' claims for conversion, trespass, and

assault and Carolyn's claim for trespass. Accordingly, we overrule James' seventh and

Carolyn's fifth assignments of error to the extent that they challenge the trial court's ruling

regarding Ford's breach of contract claims. We sustain James' seventh and Carolyn's

;0435 - A97Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 54

fifth assignments of error to the extent that they challenge the trial court's ruling on James'

claims for conversion, trespass, and assault and Carolyn's daim for trespass.

{41123} We next tum to James' eighth and Carolyn's sixth assignments of error. By

those assignments of error, appellants argue that the trial court erred in granting Ford

leave to sell their vehides. On September 19, 2006, Ford sought leave of court to sell the

Premier and Monterey co-purchased by James and R&R, as well as Carolyn's Grand

Marquis. ApparenUy, Ford requested this court order to buttress its right under R.C.

1309.610(A) to sell collateral after default. The trial court granted the motion.

(¶124} Because the trial courts decision is interlocutory and unrelated to

judgments resolving the claims of and against Ford, ARS, and Bob-Boyd, it is not yet ripe

for appeal. Haley at 111-12; Davis at 16. Accordingly, we dismiss James' eighth and

Carolyn's sixth assignments of error.

(¶125) For the foregoing reasons, in appeal Nos. 09AP-501 and 09AP-555: (1) we

find the first assignments of error moot, (2) we sustain in part and overrule in part the

second assignments of error, (3) we overrule the third and fourth assignments of error, (4)

we overrule the fifth assignment of error in appeal No. 09AP-501, (5) we overrule in part

and sustain in part the fifth assignment of error in appeal No. 09AP-555, and (6) we

dismiss the sixth assignment of error in appeal No. 09AP-501.

(4qt26) ln appeal Nos. IOAP-263 and 10AP-274: (1) we overrule the first

assignment of error in appeal No. IOAP-263, (2) we overrule in part and sustain in part

the first assignment of error in appeal No. 10AP-274, (3) we strike the second and third

assignments of error, (4) we overrule the fourth assignment of error in appeal No. 10AP-

263, (5) we strike the fifth assignment of error in appeal No. 10AP-263 and the fourth

E0436 - A98Nos. 09AP-501, 09AP-555, 10AP-263 & 10AP-274 55

assignment of error in appeal No. IOAP-274 as they relate to ARS, (6) we overrule the

fifth assignment of error in appeal No. 10AP-263 and the fourth assignment of error in

appeal No. 10AP-274 as they relate to Ford, (7) we dismiss the sixth assignment of error

in appeal No. IOAP-263, (8) we overrule in part and sustain in part the seventh

assignment of error in appeal No. 10AP-263 and the fifth assignment of error in appeal

No. 10AP-274, and (9) we dismiss the eighth assignment of error in appeal No. 10AP-263

and the sixth assignment of error in appeal No. 10AP-274.

11127} Given the foregoing, we affirm in part and reverse in part the judgments of

the Franklin County Court of Common Pleas, and we remand this case to that court for

further proceedings consistent with law and this opinion.

Judgments affirmed in part and reversed in part;cause remanded.

BRYANT and SADLER, JJ., concur.

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E0436 - A32

20720 - S56

IN THE COURT OF APPEALS OF OtilO

TEM'FI ppPEU.ATE QISTRICT

Fond Mceor CIedh Compenp,

plakmMopellem.

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Jmrbs M Ryan et al,

06fendeitta.

(.lanlad M. Ryan.

D^I^a1rt,Appe^t^.

Caroyn P. Ryan d al..

ThYd Paily Dafondenb.

(Can" P. RyaAo

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1t Y fC^IE_N_T EN1RY

For 1ha raaeons stabsd in 1he decdicn of tlhis court mdeied hoeln on

Septernber 28. 2010. in ePPow Ncs. 09A1P-501 and 09APLIM (1) we !!nd tlra firat

E0436 - A34

20720 - S57

Naa. OBAP-501, O9AP4VA 10AF283810AP-274 2

a•a1Q1Ymft of anCR n10Ct, (2) W6 s11Y18m Nf Pwt and GYan{Ila 1n Pwi ft SOCWnW

aasgnmanb of ®nor, (3) vra cmaeuk 1he ihnd and fiowq^ sagnmenfi of enar, (4) wa

avanula the 1dh asalgrrnsnt or anoor in appaal No. 09AP 601. (6) we orenula in part and

audWn In paR ths 1fteasianment d anor ln"appatd Na 09AP-Mand (8) we diamira

the a6dh aasgnnnent of anor in appoW Na 09AP-M.

In appeai N!aa. 10AP-2B8 and 10AP-274: (1) wa ovanula tlo flnlt

aa@Wprbnt of war in appasl No. 10AP-288. (2) rwf omruis in PaR and auebein In pad

the ibat asmignment of arror in appea( No. 10AR04, (S) wa eAos tha seoond and thmi

mgnmanEs of anor, (4) we oMenida the Iburqi easignrtent af anw In appeal Na 1CAR

Z83, (5) wa atraos ifia idlh aeaignnur^t of anor in appoW No 1QAP,Z83 and the fourlh

esagnmard of anor in apped No. 1QAP-274 as thsy rdeft to AI1S. (6) we ovenuls tha

fi0h aesignmen► of emor In appad No. tOAP-283 and the iaudh aal8ratrent of anar in

appeaf No. 1GAP-274 aa they nbale to Ford. Cr) we dsmbs tha a6dh anipnmant ot anor

ln appsal Na 1011R,269. (8) wa avarLM in part an4 aunUle In part tFo =evaO

eaipnmsnt of error m appoW No 1MP489 and 1he flflh aeaiprnnent of am in appea)

No 1QARti274, ared (6) we alandss Oa eOth ismalgFunwnt ef anor M appsel No 10APq=

and 1hs sodh anabrrnsnt of am bn appoW No 1Q11P-214. Ccels aeaeeeed equeiy

behmm 1o Po"

KLATT. J . BRYANT & SApLER. JJ

J-^ judpe UI(d6am A. IQett

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