[Cite as Magolan v. Shellhouse , 2012-Ohio-2144.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
KYLE MAGOLAN                                        :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. John W. Wise, J.
                        Plaintiff-Appellant         :       Hon. Julie A. Edwards, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 2011-CA-105
KEITH SHELLHOUSE DBA                                :
INDEPENDENT AUTO BODY                               :
                                                    :       OPINION
ESSENTIA INSURANCE COMPANY

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                Civil appeal from the Richland County Court
                                                        of Common Pleas, Case No. 2010CV0669

JUDGMENT:                                               Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                 May 11, 2012

APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee

WILLIAM TRAVIS MCINTYRE                                 JAMES L. GLOWACKI
BROWN, BEMILLER, MURRAY                                 JAMES J. IMBRIGIOTTA
MCINTYRE, & HARING LLP                                  WILLIAM H. KOTAR
24 West Third Street, Ste. 206                          GLOWACKI & IMBRIGIOTTA
Mansfield, OH 44902                                     7550 Lucern Drive, Ste. 208
                                                        Middleburg Heights, OH 44130


                                                        KEITH SHELLHOUSE PRO SE
                                                        INDEPENDENT AUTO BODY
                                                        2952 Plymouth-Springmill Road
                                                        Shelby, OH 44875
[Cite as Magolan v. Shellhouse , 2012-Ohio-2144.]


Gwin, P.J.

        {¶1}    Plaintiff-appellant Kyle Magolan appeals a summary judgment of the Court

 of Common Pleas of Richland County, Ohio, entered in favor of defendant-appellee

 Essentia Insurance Company on appellant’s claim for theft of his vehicle. Appellant

 assigns a single error to the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED IN GRANTING ESSENTIA’S MOTION

 FOR SUMMARY JUDGMENT. THE COURT DISREGARDED THE OHIO RULES OF

 CONSTRUCTION FOR THE INTERPRETATION OF AN INSURANCE POLICY AND

 BY DOING SO GLOSSED OVER A NUMBER OF QUESTIONS OF FACT WHICH

 SHOULD HAVE BEEN LEFT FOR A JURY.”

        {¶3}    Civ. R. 56 states in pertinent part:

        Summary judgment shall be rendered forthwith if the pleadings,

        depositions, answers to interrogatories, written admissions, affidavits,

        transcripts of evidence, and written stipulations of fact, if any, timely filed

        in the action, show that there is no genuine issue as to any material fact

        and that the moving party is entitled to judgment as a matter of law. No

        evidence or stipulation may be considered except as stated in this rule. A

        summary judgment shall not be rendered unless it appears from the

        evidence or stipulation, and only from the evidence or stipulation, that

        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, that party being entitled to have the evidence or stipulation

        construed most strongly in the party's favor. A summary judgment,
Richland County, Case No. 2011-CA-105                                                  3


      interlocutory in character, may be rendered on the issue of liability alone

      although there is a genuine issue as to the amount of damages.”

       {¶4} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company, 67 Ohio St. 2d

427 (1981). The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St. 3d

321 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301 (1999).

        {¶5} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc., 30 Ohio St. 3d 35 (1987). This means we review the matter de

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.

      {¶6}   The trial court found certain facts were undisputed.        Appellant hired

defendant Keith Shellhouse to restore a 1967 fastback appellant had purchased from a

third party, with the goal of making the vehicle into a Shelby Clone. The contract called

for Shellhouse to do $10,000 of labor and for appellant to supply all parts. Appellant

paid Shellhouse $3,000 on May 16, 2003. When the project was over, appellant was

to have a “turn-key vehicle”.

      {¶7}   Because the original vehicle was in such poor condition, the car was not

roadworthy and most of the vehicle’s parts needed to be replaced.              Appellant

purchased parts and had them shipped directly to Shellhouse. Shellhouse
Richland County, Case No. 2011-CA-105                                                   4


acknowledged that he received the parts between June and November 2003, and

additional parts were delivered in 2004.

      {¶8}   The court found in December 2004 appellant moved from Michigan to

Florida. Shellhouse acknowledged he had multiple conversations with appellant in

2005. In 2006, every three or four months, appellant would call and ask how the car

was progressing. In 2007, appellant was worried about whether the car would ever be

finished.

      {¶9}   In 2007, the frame of the vehicle was primed and waiting for paint. None

of the parts purchased in 2003 or 2004 had been installed in the vehicle. In August of

2008, Shellhouse considered the vehicle abandoned because appellant had allegedly

failed to pay him additional money owed and had allegedly not contacted Shellhouse

about the vehicle for some time.

      {¶10} After obtaining title to the vehicle through the Bureau of Motor Vehicles,

Shellhouse sold the body of the vehicle to defendant Dennis Sayre. Shellhouse sold

the parts that had been delivered to him to individuals at swap meets.

      {¶11} Appellant filed suit against appellee, Sayre, and Shellhouse alleging, inter

alia, that Shellhouse’s conduct in the transaction constituted theft within the meaning of

appellee’s policy. Sayre and Shellhouse are not parties of this appeal.

      {¶12} The Essentia policy states in pertinent part:

      SPARE PARTS

      We will pay up to $250 for direct and accidental loss or damage to “spare

      parts” for your “covered vehicle”.
Richland County, Case No. 2011-CA-105                                                 5


      “Spare parts” means a replacement for an item normally a part of “your

      covered auto” which is not currently in place on “your covered auto”.

      EXCLUSIONS

      ***

      2. Loss or damage caused by any repairing, renovating or refinishing

      process unless the process results in a fire or explosion. We will pay only

      for damage caused by the fire or explosion.

      ***

      9. Loss to “spare parts” caused by theft unless the loss results from

      forcible entry into the place where your “spare parts” are normally kept;

      into “your covered auto” itself; or into a securely locked compartment. All

      losses caused by theft must have visible marks of forcible entry.

      ***

      11. Loss to “your covered auto” as a result of anyone causing you to

      voluntarily part with it as a result of any trick or scheme.

      {¶13} The trial court found the term “theft” was not defined in the insurance

contract, but can be defined as any wrongful deprivation of the property of another

without claim or color of right. Judgment Entry at page 5, citing Munchick v. Fidelity &

Casualty Company of New York, 2 Ohio St. 2d 303 (1965).

      {¶14} The court found the language in the policy was not ambiguous. The court

found it was undisputed appellant voluntarily gave Shellhouse the vehicle and the

parts, and also found that appellant conceded Shellhouse was “running a scheme”.

The court found declaring the vehicle abandoned and selling it and its parts to other
Richland County, Case No. 2011-CA-105                                                       6


individuals is exactly the type of situation that is excluded by the policy, specifically, the

exclusion for when a party voluntarily parts with the property as a result of a trick or

scheme.

      {¶15} Appellant stated Shellhouse had tried to placate him by saying that the

vehicle was almost done, but in hindsight, appellant felt Shellhouse was trying to

deceive him. Appellant speculated Shellhouse ”got in over his head” and had more

cars than he could fix or restore. Appellant agreed Shellhouse entered into contracts

he could not fulfill, and appellant was not sure that Shellhouse ever intended to perform

the restoration.

      {¶16} We find the court erred in determining the above constituted an admission

by appellant that Shellhouse induced him to part with his vehicle as a result of a trick or

scheme. From the facts above, reasonable minds could infer Shellhouse accepted the

vehicle intending to do the restoration, but at some point could not or would not do so

and attempted to deceive appellant as to the progress he had made.

      {¶17} Shellhouse retained possession of the vehicle for some five years before

obtaining title and selling it, a fact that contradicts the notion that Shellhouse originally

obtained possession of the vehicle as part of a trick or scheme to resell it to a third

party. The fact he accepted the vehicle in 2003 and did not re-sell it until 2008 could

lead reasonable minds to differ on the question of whether Shellhouse induced

appellant to part with the vehicle as part of a scheme or trick.

      {¶18} The trial court also found there was no coverage for the spare parts

because there was no forcible entry. The court found Shellhouse was entrusted with

the parts and he sold them to third parties.
Richland County, Case No. 2011-CA-105                                                7


      {¶19} We find the court erred in finding reasonable minds could not differ on

whether the parts in question were “spare parts”. Admittedly, when Shellhouse resold

appellant’s property, he sold the parts separately from the frame. Shellhouse had

received the new parts several years earlier, and allegedly failed to promptly do the

restoration work, which would have included installing the parts in the vehicle.

Reasonable minds could differ on whether the alleged theft was a theft of spare parts

or component parts of the vehicle. Given the passage of time between accepting the

parts and reselling them could be construed as more in the nature of operating a “chop

shop” in selling the component parts of the vehicle separately from the frame.

      {¶20} The trial court found the “universe of coverage” does not list abandonment

as a covered event, and we agree there is no coverage if the property is determined to

have been abandoned. However, the coverage does include theft and larceny. The

question of whether the vehicle and its component parts were stolen or abandoned is a

question of material fact, and the court should not have granted summary judgment on

the issue.

      {¶21} We find on the evidence presented reasonable minds could differ on the

material facts and inferences to be drawn therefrom. Accordingly, we conclude the trial

court erred in granting summary in favor of appellee.

      {¶22} The assignment of error is sustained.
Richland County, Case No. 2011-CA-105                                            8


      {¶23} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is reversed, and the cause is remanded the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concurs

separately




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. JOHN W. WISE


                                            _________________________________
                                            HON. JULIE A. EDWARDS



WSG:clw 0328
Richland County, Case No. 2011-CA-105                                                  9


EDWARDS, J., CONCURRING OPINION

         {¶24} I concur with the analysis and disposition of this case except for the

analysis of the issue of whether the “parts” in question were “spare parts.” I would find

that whether or not the parts, obtained for the construction of this Shelby clone

automobile, are spare parts pursuant to the definition of spare parts in the insurance

policy is primarily a question of law and, therefore, could be determined by the trial

court.




                         ____________________________________

                                   Judge Julie A. Edwards
[Cite as Magolan v. Shellhouse , 2012-Ohio-2144.]


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


KYLE MAGOLAN                                        :
                                                    :
                           Plaintiff-Appellant      :
                                                    :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
KEITH SHELLHOUSE DBA                                :
INDEPENDENT AUTO BODY                               :
                                                    :
ESSENTIA INSURANCE COMPANY                          :
                                                    :
                     Defendants-Appellees           :       CASE NO. 2011-CA-105




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Richland County, Ohio, is reversed, and the cause is

remanded the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellee.




                                                        _________________________________
                                                        HON. W. SCOTT GWIN


                                                        _________________________________
                                                        HON. JOHN W. WISE


                                                        _________________________________
                                                        HON. JULIE A. EDWARDS
