[Cite as Brown v. Charlton, 2011-Ohio-4958.]

                    Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 96430



                    BRUCE ANDREW BROWN, ET AL.

                                                     PLAINTIFFS-APPELLANTS

                                               vs.

                     SUZANNE E. CHARLTON, ET AL.

                                                     DEFENDANTS-APPELLEES




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-724016

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

        RELEASED AND JOURNALIZED:                    September 29, 2011
ATTORNEY FOR APPELLANT B. ANDREW BROWN & ASSOCIATES, LLC

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


FOR APPELLANT BRUCE ANDREW BROWN

Bruce Andrew Brown, Pro Se
820 West Superior Avenue, Suite 840
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE SUZANNE E. CHARLTON

Gerald R. Walton
John J. Schneider
Gerald R. Walton & Associates
2800 Euclid Avenue, Suite 320
Cleveland, OH 44115


ATTORNEYS FOR APPELLEES CARLTON HARLEY-DAVIDSON AND JANE
CARLTON

Christina J. Marshall
Lawrence A. Sutter
Sutter, O’Connell & Farchione Co., LPA
3600 Erieview Tower
1301 East Ninth Street
Cleveland, OH 44114
MELODY J. STEWART, P.J.:

       {¶ 1} This cause came on to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1,1 the records from the Cuyahoga County Court of Common

Pleas, and the briefs submitted by counsel.

       {¶ 2} Plaintiffs-appellants Bruce Andrew Brown and B. Andrew Brown &

Associates, LLC appeal from summary judgment granted in favor of the

defendants-appellees,       Brown’s      former     wife,    Suzanne      E.    Charlton,     Carlton

Harley-Davidson, and Jane Carlton (hereinafter “Carlton”), on the basis of the doctrine of

res judicata. 2    Brown alleges that the personal property distribution ordered by his

divorce decree did not include a 2008 Harley-Davidson titled to Brown, LLC since his

former wife did not have physical control of the same. Brown therefore complains that

Carlton acted in concert with Charlton and wantonly, recklessly, and negligently tendered

the proceeds from the sale of the motorcycle to his former wife as opposed to Brown,

LLC, the titled and legal owner of the motorcycle.




        App.R. 11.1(E) states: “Determination and judgment on appeal. It shall be sufficient
       1


compliance with App. R. 12(A) for the statement of the reason for the court’s decision as to each error
to be in brief and conclusionary form.” See, also, Form 3, Appendix of Forms to the Rules of
Appellate Procedure.

           Brown and Charlton entered a confidential settlement agreement prior to the appeals court
       2


hearing.    Consequently, Charlton was dismissed from the appeal.
       {¶ 3} Brown and Charlton acquired a 2008 Harley-Davidson motorcycle while

married and titled it to Brown, LLC. On or about October 15, 2008, an employee of

Carlton Harley-Davidson picked up the motorcycle at Brown’s residence and transported

it to Carlton’s storage facility for the winter.      Brown was incarcerated when the

motorcycle was taken away. Charlton had previously been appointed as attorney-of-fact

for Brown in his personal capacity.      It is unclear which party requested Carlton to

provide storage services for the motorcycle.

       {¶ 4} Charlton filed a complaint for divorce and other equitable relief on

February 17, 2009. On March 25, 2009, Charlton completed, notarized, and signed a

pretrial statement and affidavit that included a statement of income, expenses, assets, and

liabilities; this statement requested, in pertinent part: “6. All property of the parties

known to be owned individually or jointly (indicate who holds or how title is held: (H)

husband; (W) wife; or (J) jointly),” and in the subcategory pertaining to (b) Automobiles,

Charlton listed “H 2008 Harley Ultima $28,000.00.”

       {¶ 5} A hearing took place on April 15, 2009, and shortly thereafter the domestic

relations court entered a judgment entry of divorce, which stated, in pertinent part: “IT IS

FURTHER ORDERED, ADJUDGED AND DECREED that all parties have agreed to

their mutual satisfaction to a division of all *** items of personal property, whether

acquired *** during the marriage *** and each party heretofore has taken possession of

all such personal property belonging to him or her and to which he or she may be entitled.

 All such property shall be and remain the sole property of the one now having possession
or control of the same, free and clear of any claim whatsoever on the part of the other

party.”

          {¶ 6} Brown alleges that Charlton afterwards perfected the sale of the motorcycle

with Carlton on April 1, 2009. However, an Ohio Department of Public Safety’s Online

Vehicle/Watercraft Title Inquiry indicates that on April 24, 2009, title to the motorcycle

was transferred from B. Andrew Brown & Associates, LLC to Carlton Harley-Davidson,

Inc., and then from Carlton Harley-Davidson, Inc. to a private owner. Next, on April 28,

2009, a non-negotiable instrument endorsed by Jane Carlton and in the amount of

$19,151.94 was tendered to Suzanne Brown.

          {¶ 7} On April 13, 2010, Brown and Brown, LLC filed a complaint against

Charlton and Carlton alleging breach of fiduciary obligation, negligence, recklessness,

and conversion. Subsequently, numerous discovery requests, briefs, and other motions

were filed by all parties. On June 25, 2010, Brown collaterally filed a motion for relief

from judgment in Cuyahoga County’s Domestic Relations Court; this motion was denied

on September 3, 2010, and no appeal was taken.

          {¶ 8} Charlton filed a motion for summary judgment asserting res judicata as a

bar to Brown’s complaint, and on February 4, 2011, the trial court granted Charlton’s

motion. Carlton then filed a “Motion for Modification of Order Granting Summary

Judgment and for Summary Judgment, Sua Sponet [sic]: Motion for Reconsideration of

Motion to Strike Plaintiff’s Complaint” which the trial court granted on February 18,

2011.
       {¶ 9} Appellate review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary

judgment will be granted when there remains no genuine issue of material fact and, when

construing the evidence most strongly in favor of the nonmoving party, reasonable minds

can conclude only that the moving party is entitled to judgment as a matter of law.

Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46;

Civ.R. 56(C).

       {¶ 10} Domestic relations courts possess full equitable powers and jurisdiction

appropriate to the determination of domestic relations matters. R.C. 3105.011. A court

that grants a decree of divorce must equitably divide the marital property of the parties

and is obligated to make a decision as to whether property is marital or separate. R.C.

3105.171(B). While the record of the domestic relations court is unclear with regard to

whether the motorcycle was marital property, the domestic relations court nevertheless

had the power through continuing jurisdiction to interpret its own judgment of the divorce

decree based upon all of the facts presented.

       {¶ 11} Brown filed a motion for relief from judgment in the divorce case based

upon inequitable property distributions. That motion was denied. Charlton and Carlton,

in turn, relied on the domestic relations court’s denial of the motion to bolster their

assertion that res judicata bars Brown’s action.
       {¶ 12} The domestic relations court made no pronouncement that affairs conducted

by Brown, LLC was actually business conducted by Brown personally, or that the

motorcycle was a marital asset to which his former wife was entitled.

       {¶ 13} “While the merger and bar aspects of res judicata have the effect of

precluding the relitigation of the same cause of action, the issue preclusion aspect

prevents the relitigation, in a second action, of an issue that has been actually and

necessarily litigated and determined in a prior action that was based on a different cause

of action.” FIA Card Servs., N.A. v. Wood, 7th Dist. No. 08-JE-13, 2009-Ohio-1513,

¶23. Therefore, “any attempt to re-litigate matters decided in the [divorce] decree is

barred by res judicata.” Collins v. Collins (2000), 139 Ohio App.3d 900, 903, 746 N.E.2d

201.

       {¶ 14} Here, Brown argues that Carlton failed to establish a res judicata defense by

way of issue preclusion, that the issues raised in the divorce proceedings are different

than those raised by his claims of breach of fiduciary obligation, negligence, recklessness,

and conversion, and, as such, were not “actually and directly litigated” in the divorce and

property distribution proceedings.        Brown’s current claims do not concern the

determination of marital property versus separate property, or touch upon any other matter

germane to the domestic relations case. Brown is correct in stating that his claims were

not at issue in the domestic relations setting, and therefore were not determined by that

court. As a result, res judicata is inapplicable to the case at bar.
      {¶ 15} In this instance, genuine issues of material fact remain.          There is no

evidence in the record to demonstrate that co-defendant/ex-wife Charlton was authorized

to sell the motorcycle pursuant to the couple’s divorce decree. The couple’s property

settlement awarded to each person the property in his/her respective possession; the

motorcycle was not in the possession of the ex-wife, but was instead stored at Carlton

Harley-Davidson.    Also, it is questionable whether the ex-wife could act under the

authority of Brown’s power-of-attorney to sell the motorcycle because it was the property

of B. Andrew Brown & Associates, as evidenced by the fact that title to the motorcycle

was transferred from B. Andrew Brown & Associates to Carlton Harley-Davidson and

then to a private owner, all on the same day. Assuming for the sake of argument that the

ex-wife was authorized to sell the motorcycle, it remains unclear and disputed as to whom

the check proceeds should have been made payable.

      {¶ 16} Since issues of material fact exist with regard to the sale of the motorcycle

and the distribution of the proceeds from the sale, we reverse the decision of the trial

court and remand the case for further proceedings.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

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

the Rules of Appellate Procedure.
         MELODY J. STEWART, PRESIDING JUDGE

         FRANK D. CELEBREZZE, JR., J., CONCURS;

         KENNETH A. ROCCO, J., DISSENTS WITH
         SEPARATE OPINION


         KENNETH A. ROCCO, J., DISSENTING:

         {¶ 17} I respectfully dissent from the majority’s disposition of this appeal. As the

majority opinion states, Civ.R. 56(C) makes summary judgment appropriate “if the

pleadings, depositions, answers to interrogatories, written admissions, [and] affidavits

*** show there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. ***” (Emphasis added.) I fail to see that

appellants established the existence of any genuine issue of material fact in this case. In

my view, the majority opinion goes to improper lengths in order to find issues where none

exist.

         {¶ 18} Initially, unlike the majority opinion, I find it difficult to understand the

causes of action appellants 3 alleged against appellees; “notice” pleading obviously

requires just that. I assume for the sake of argument that allegations that appellees

“wantonly, recklessly and negligently tendered the proceeds of [their] sale of [a]


        The majority opinion fails to indicate that both Brown and “B. Andrew Brown & Assocs.,
         3


LLC” filed the instant action. As did Brown himself in the trial court, the majority opinion treats
appellants as one party and fails to differentiate the entities for the purposes of determining the merits
of a summary judgment motion.
motorcycle” to Brown’s ex-wife rather than to “appellants” may state claims for either

negligence, civil conspiracy, or conversion. See Universal Coach, Inc. v. New York City

Transit Auth., Inc. (1993), 90 Ohio App.3d 284, 292, 629 N.E.2d 28; Pappas v. Ippolito,

177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶47-48, citing Tabar v.

Charlie’s Towing Serv., Inc. (1994), 97 Ohio App.3d 423, 427-428, 646 N.E.2d 1132.

       {¶ 19} Nevertheless, the evidence in the record demonstrated that Brown’s ex-wife

had the authority to dispose of the motorcycle at issue.          Moreover, the proceeds of the

sale went to her. The majority opinion fails to “follow the money.”

       {¶ 20} The majority opinion acknowledges that, at the time the motorcycle was

placed with appellees, Brown’s then-wife possessed his valid power-of-attorney. Not

long afterward, Brown made his pretrial statement for the domestic relations court.               He

claimed the motorcycle as an item of personal property; he made no indication that his

company owned the motorcycle.               Thus, appellants’ assertion on appeal that the

motorcycle actually belonged to the business lacks support in the record that was before

the trial court.   State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500, paragraph

one of the syllabus.

       {¶ 21} Pursuant to the divorce decree issued by the domestic relations court,4 the

parties to the divorce were granted ownership of the items that were in their possession at

the time of the decree.     The motorcycle, however, was not Brown’s possession; rather, it


        Since Brown conceded the divorce decree’s genuineness in his opposition brief, the trial court
       4


properly considered it. Modon v. Cleveland (Dec. 22, 1999), Medina App. No. 2945-M; Blake v.
Home Sav. & Loan, Columbiana App. No. 09 CO 14, 2010-Ohio-2689, ¶33.
already was stored with appellees.    Nothing in the record suggests either that appellees

would have been aware of the divorce, or, even if they were, that Brown revoked the

valid power-of-attorney his ex-wife possessed.

       {¶ 22} At any event, according to the written admissions supplied by appellees,

Brown himself directed appellees to sell the motorcycle and to give the money from the

sale to his ex-wife.   Appellants presented no evidence to demonstrate otherwise.

       {¶ 23} The evidence also demonstrated that appellees sold the motorcycle only

after Brown’s ex-wife presented to them Brown’s “valid power-of-attorney” that

indicated Brown authorized her to make such decisions on his behalf. Brown presented

no evidence to demonstrate appellees acted wrongfully.       Instead, his affidavit simply

repeated the unsupported allegations of his complaint.

       {¶ 24} Under these circumstances, I believe the trial court correctly granted

summary judgment to appellees on appellants’ complaint against them. Pappas, ¶49-51.

 I would, therefore, overrule the assignment of error and affirm the trial court’s

judgment.
