Ford Motor Credit Co. v. Ryan

• Citation: 72 UCC Rep.Serv.2d 977,939 N.E.2d 891,189 Ohio App.3d 560
• Decision Date: 28 September 2010
• Docket Number: 09AP–555,09AP–263,Nos. 09AP–501,and 10AP–274.,s. 09AP–501
• Parties: FORD MOTOR CREDIT COMPANY et al., Appellees,v.RYAN et al., Defendants.
• Court: United States Court of Appeals (Ohio)

189 Ohio App.3d 560
939 N.E.2d 891
72 UCC Rep.Serv.2d 977
2010 -Ohio- 4601

FORD MOTOR CREDIT COMPANY et al., Appellees,
v.
RYAN et al., Defendants.

Nos. 09AP–501

09AP–555

09AP–263

and 10AP–274.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Sept. 28, 2010.

[939 N.E.2d 899]

Frantz Ward L.L.P., Brett K. Bacon, and Timothy J. Richards, Cleveland, for appellee Ford Motor Credit Company.Reminger & Reminger Co., L.P.A., and Michael J. Valentine, for appellee Automobile Recovery Service of Cincinnati, Inc.Stockamp & Brown, L.L.C., David A. Brown, Deanna L. Stockamp, and Stephen D. Brown, Lancaster, for appellee Bob–Boyd Lincoln Mercury, Inc.Carolyn P. Ryan, pro se.James M. Ryan, pro se.KLATT, Judge.

[Ohio App.3d 572] {¶ 1} Defendant-appellant, James M. Ryan, and third party defendant-appellant, Carolyn P. Ryan, appeal multiple decisions of the Franklin County Court of Common Pleas. For the following reasons, we affirm in part and reverse in part.

{¶ 2} 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 coleased 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.

{¶ 3} 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 asserted three more breach-of-contract claims against James and RRI. These claims alleged that James and RRI had failed to pay amounts due under (1) a retail installment contract that James and Ryan and Ryan Real Estate Company (“R

[939 N.E.2d 900]

& R”)¹ had entered into when copurchasing a 2004 Mercury Monterey, (2) a retail installment contract that James and R & R had entered into when copurchasing a 2004 Mercury Mountaineer, and (3) a retail installment contract that James and R & R had entered into when copurchasing a 2004 Mercury Mountaineer Premier.²

{¶ 4} In its third-party complaint, Ford asserted a breach-of-contract claim against James's wife, Carolyn. Ford alleged that Carolyn had failed to pay [Ohio App.3d 573] amounts due under a retail installment contract that she had entered into when she purchased a 2004 Mercury Grand Marquis.³

{¶ 5} At the time that 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 expenses incurred in connection with legal claims that related to ARS's performance of its contractual obligations.

{¶ 6} 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's counterclaim had asserted multiple tort claims against Ford based on the actions of ARS's 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.

{¶ 7} 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 Section 1983, Title 42, U.S.Code (“ Section 1983”), (8) breach of contract, (9) violation of the Fair Debt Collection Practices Act, Section 1692, Title 15, U.S.Code (“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. (“RISA”). James alone also asserted a claim for negligence against Ford.

{¶ 8} Both James and Carolyn brought a cross-claim against ARS. The cross-claims stated claims for (1) conversion, (2) trespass, (3) assault, (4) breach of peace, (5) intentional infliction of emotional distress, (6) invasion of privacy, (7) violation of Section 1983, (8) violation of the FDCPA, and (9) violation of the RISA.

[939 N.E.2d 901]

{¶ 9} Additionally, both James and Carolyn named Bob–Boyd Lincoln Mercury, Inc. (“Bob–Boyd”) as a third-party defendant. The Ryans had leased or [Ohio App.3d 574] 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 claim against Carolyn, as well as its four breach-of-contract claims against both James and RRI. In three different judgment entries, the trial court granted all the summary-judgment motions. James and Carolyn separately appealed the three judgments to this court.

{¶ 11} On appeal, James and Carolyn point out that the trial court's grant of summary judgment had not resolved all the claims pending before the court. Despite the existence of unresolved claims, two of the judgments—those granting Ford's and Bob–Boyd's summary-judgment motions—did not contain 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.

{¶ 12} 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.

{¶ 13} In their first appeals (designated as case Nos. 09AP–501 and 09AP–555), James and Carolyn assign the following errors: ⁵

[1] The Trial Court Erred in terminating the case for the reason that the Trial Courts Journal Entries do not delineate the parties responsibilities and/or their obligations and further that the Trial Courts Orders do not meet the requirements of Section 2505.02 Ohio Revised Code and Civ. Rule 54(B) with the exception of the judgment Entry Granting Third Party Defendant 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 in granting summary judgment to ARS and by dismissing Defendant/Plaintiff's claims for trespass, breach of peace, conversion, assault, seizure, invasion of privacy, violation of 42 U.S.C. 1983, violation of the Fair Debt Collection Act, violation of the Ohio Retail Installment Act, and the Ohio Consumer Sales Practices Act, by the Court finding that Ohio Law grants authority to independent contractors such as ARS the authority to enter private property against the objections of its [Ohio App.3d 575] owners and to remove property from the cartilage of the home to the public street for the purpose of repossession. These actions taken by ARS and the finding of the Trial Courts Order permitting such actions violates Defendant/Plaintiff's rights under existing Ohio Law, the Ohio Constitution and the United States Constitution and contrary to the Trial

[939 N.E.2d 902]

Courts findings there are genuine issues of material fact in the record as set forth herein that are genuinely disputed that should be set for trial. ARS is not entitled to Summary Judgment as a matter of law and viewing the evidence in the light most favorable to the non moving party, reasonable minds could not come to one conclusion adverse to the party against whom the motion is made. Fuentes v Shevin 407 U.S. 67, [92 S.Ct. 1983, 32 L.Ed.2d 556], Sodal v Cook County ILL. 506 U.S. 56, [113 S.Ct. 538, 121 L.Ed.2d 450] Lungar [Lugar] v Edmondson Oil Co. 457 U.S. 922[, 102 S.Ct. 2744, 73 L.Ed.2d 482]. The Trial Court lacked jurisdiction over ARS for those actions that are under the exclusive jurisdiction of the Public Utilities Commission. Olympic Holding Co. L.L.C. v. Ace [ACE] Ltd. 122 Ohio St.3d 89

[, 2009-Ohio-2057, 909 N.E.2d 93]

.

[3] The Trial Court erred as a matter of law and fact in granting Summary Judgment to ARS by finding that Defendant Ryan did not have any evidence of outrageous or extreme conduct and that Defendants did not have any evidence of extreme emotional distress and did not have any form of expert testimony and that Appellant was not entitled to punitive damages.

[4] The Trial Court erred in failing to dismiss Ford Motor Credit Company's September 19, 2006 Amended Complaint and by granting Summary Judgment to Ford Motor Credit Company on Counts I and III–V of the Amended Complaint for the reason that the Amended Complaint fails to state a claim upon which relief can be granted, for the reason that the amended Complaint did seek and receive a declaratory judgment that all Defendants be jointly and severally liable for sums claimed due for which defendants are not contractually obligated to be, for the reason that FMCC has failed to join and commence an action against an indispensable party, Ryan and Ryan real Estate Co. without which party complete relief cannot be accorder Defendant and such failure to name a...