[Cite as Wise v. Wise, 196 Ohio App.3d 533, 2011-Ohio-4772.]




STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

WISE,                                                     C.A. No.   25672

        Appellee,

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
WISE et al.,                                              COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellants.                                       CASE No.   CV-2009-01-0550

                                DECISION AND JOURNAL ENTRY

Dated: September 21, 2011



APPEARANCES:

        Pearce Leary and Bradley Hull IV, for appellee.

        Tony Dalayanis and Stephen Nowak, for appellant.


        MOORE, Judge.

        {¶ 1} Appellant, Kelvin Wise, appeals the judgment of the Summit County Court of

Common Pleas. This court affirms.

                                                     I

        {¶ 2} Kelvin and Jill Wise were married for some years. They lived in Michigan,

where, in October 2007, their divorce was finalized. Ms. Wise continued to reside in the

Michigan home after the divorce until December 2007. The divorce decree required Mr. Wise to

move out of the marital home in Michigan on December 1, 2007. When Mr. Wise declined to

leave, Ms. Wise called the police to enforce the order. Mr. Wise then left the home. During the
marriage, Mr. Wise managed four rental properties that were owned by the couple, one of which

was located at 1899 Ashley Drive in Hudson, Ohio. Ms. Wise was to pay all debts associated

with the Ashley Drive property.

       {¶ 3} At this time, there were no tenants living at the Ashley Drive property. The

utilities were in Mr. Wise’s name. A realtor had been occasionally showing the property to

prospective buyers. On December 3, 2007, the day after he was removed from the marital home,

Mr. Wise ordered the gas to the Ashley Drive property shut off. Gas was the only source of heat

to the home. He did not cancel the electricity, homeowner’s insurance, or water and sewer

service. Neither did he inform Ms. Wise that he had ordered the gas to be shut off. Mr. Wise

had all of his mail forwarded to his new residence, and because the gas bill was in his name, the

final bill went to the new address. As a result, Ms. Wise had no notice of the impending shutoff

of utilities. Mr. Wise subsequently paid the final bill.

       {¶ 4} On January 23, 2008, a neighbor called the realtor’s office to report a substantial

amount of water in the yard of the Ashley Drive property. It was discovered that pipes in the

home had frozen and burst as a result of the gas having been shut off. Ms. Wise paid $44,227 for

the renovation of the home.

       {¶ 5} On January 22, 2009, Ms. Wise brought an action against Mr. Wise, and others

not relevant to this appeal, alleging misrepresentation, fraud, and damage to property. An

amended complaint was filed on February 6, 2009, alleging negligence, financial misconduct,

breach of contract, and misrepresentation. A second amended complaint with a jury demand was

filed on July 9, 2009. On August 4, 2009, Mr. Wise filed a motion to dismiss, alleging lack of

jurisdiction and improper venue based on the Michigan divorce proceedings. On October 23,



                                                   2
2009, the court held the motion in abeyance until the parties supplemented the record with

relevant jurisdictional information.

         {¶ 6} The case was tried to a jury on October 12, 2010. On October 18, 2010, the jury

returned a verdict against Mr. Wise for $24,000 for malicious conduct, $24,000 for negligence,

and one dollar in punitive damages. On October 21, 2010, the court ordered a judgment in favor

of Ms. Wise in the amount of $48,000 for compensatory damages and one dollar for punitive

damages plus interest and costs.

         {¶ 7} Mr. Wise timely filed a notice of appeal. He raises four assignments of error for

our review.

                                                II

                                   ASSIGNMENT OF ERROR I

                [Mr. Wise] was not the legal or equitable owner of the property exchanged
                in divorce and did not owe [Ms. Wise] a duty to maintain the property for
                [Ms. Wise’s] benefit.

         {¶ 8} In his first assignment of error, Mr. Wise essentially argues that he did not owe

Ms. Wise a duty and thus she could not maintain a negligence action against him. We do not

agree.

         {¶ 9} Mr. Wise’s arguments focus on the fact that he was not the owner of the property

and that he did not owe a duty to maintain the property. However, this was not the basis of Ms.

Wise’s claim. She claimed that he had a duty not to negligently or maliciously damage the

property.

         {¶ 10} “Negligence is the failure to exercise that degree of care which an ordinarily

careful and prudent person would exercise under the same or similar circumstances.” Gedeon v.

E. Ohio Gas Co. (1934), 128 Ohio St. 335, 338.           A fundamental aspect of establishing

                                                3
negligence is determining whether the defendant owed the plaintiff a duty. Jeffers v. Olexo

(1989), 43 Ohio St.3d 140, 142. “In negligence cases the duty is always the same: to conform to

the legal standard of reasonable conduct in light of apparent risk. What a defendant must do, or

must not do, is a question of the standard of conduct reasonably required to satisfy the

defendant’s duty.” (Emphasis deleted.) Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 578.

       {¶ 11} An individual generally possesses a duty of due care. Mussivand v. David (1989),

45 Ohio St.3d 314. The duty of due care requires one to exercise “that degree of care which an

ordinarily reasonable and prudent person exercises, or is accustomed to exercising, under the

same or similar circumstances. * * * A person is to exercise that care necessary to avoid injury

to others.” Id. at 318-19. Whether a duty exists on the part of a particular defendant is a

question of law for the court to decide. See id. at 318.

       {¶ 12} Applying the above principles of negligence law to the case at hand, we believe

that a reasonable person certainly could foresee injury to a vacant rental property if he ordered

the gas company to turn off the gas, the only source of heat to the home, during the winter

months. The facts indicate that Ms. Wise was awarded the rental property in the divorce decree

and was responsible for the mortgage, insurance, utilities, and real estate taxes after Mr. Wise

vacated the marital home. However, Mr. Wise refused to vacate the marital home until Ms. Wise

involved the police. The next day, Mr. Wise ordered the gas to be shut off to the rental property.

       {¶ 13} Prior to this time, the utilities for the rental property were in Mr. Wise’s name and

had been paid by him. The final gas bill was forwarded to his new address. He did not cancel

any other utilities that remained in his name for the property, including insurance, electricity, or

water and sewer. An ordinarily reasonable person could foresee injury if he ordered the gas shut

off to a vacant home during the winter months. To the extent that Mr. Wise argues that he is
                                                 4
precluded from having a duty of care because he did not hold title ownership in the property, his

argument lacks merit. Mr. Wise owed a duty of ordinary care to Ms. Wise. Accordingly, Mr.

Wise’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

                [Mr. Wise’s] failure to act for [Ms. Wise’s] benefit where [he] had no
                legal duty to do so cannot be the basis for a malice action against [him].

         {¶ 14} In his second assignment of error, Mr. Wise essentially argues that because he did

not owe Ms. Wise a duty, Ms. Wise could not maintain a malice action against him. We do not

agree.

         {¶ 15} “ ‘Malice’ is the willful and intentional design to do injury or the intention or

desire to harm another, usually seriously, through conduct which is unlawful or unjustified.”

Cook v. Cincinnati (1995), 103 Ohio App.3d 80, 90, 658 N.E.2d 814. Mr. Wise argues that Ms.

Wise could not maintain a malice action against him because he did not owe her a duty. Our

disposition of the first assignment of error, however, indicates that he did owe her a duty. As

this was the basis of his second assignment of error, it is overruled.

                                 ASSIGNMENT OF ERROR III

                The trial court in error failed to dismiss the action under the theory of res
                judicata.

         {¶ 16} In his third assignment of error, Mr. Wise contends that the court erred in failing

to dismiss the action under the theory of res judicata. We do not agree.

         {¶ 17} Res judicata, or claim preclusion, bars the relitigation of claims.        Ft. Frye

Teachers Assn. v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395. “In Ohio, res

judicata embraces the doctrine of collateral estoppel.” Ohio Cas. Ins. Co. v. Hamel (1981), 3

Ohio App.3d 278, 279. Under that doctrine, “if an issue of fact or law actually is litigated and

                                                  5
determined by a valid and final judgment, such determination being essential to that judgment,

the determination is conclusive in a subsequent action between the parties, whether on the same

or a different claim.” Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 74.

       {¶ 18} “Collateral estoppel precludes the relitigation of an issue that has been ‘actually

and necessarily litigated and determined in a prior action.’ ” Krahn v. Kinney (1989), 43 Ohio

St.3d 103, 107, quoting Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193,

195. Mr. Wise alleges that the issue of negligence has already been decided and therefore Ms.

Wise is precluded from relitigating her negligence argument in this suit.

       {¶ 19} In order to successfully assert collateral estoppel, Mr. Wise would need to prove

that (1) the issue of his negligence “was actually and directly litigated in the prior action,” (2) the

issue of his negligence “was passed upon and determined by a court of competent jurisdiction,”

and (3) his wife “was a party in privity with a party to the prior action.” Thompson v. Wing

(1994), 70 Ohio St.3d 176, 183, citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108,

paragraph two of the syllabus.

       {¶ 20} Mr. Wise argues that the action was previously argued in the Michigan domestic

relations court and that the divorce decree is a final judgment that precludes this action.

Specifically, he argues that Ms. Wise “previously brought [an] action for contempt and [motion

for relief from judgment] against [him] in Michigan Court regarding the duties under the divorce

decree.” However, there is no evidence in the record that the issue of Mr. Wise’s negligence was

actually and directly litigated in the divorce action, or that any conclusion was reached on the

issue of negligence. Accordingly, the trial court did not err in refusing to dismiss the action on

the basis of res judicata. Mr. Wise’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV
                                                   6
                The judgment against [Mr. Wise] is not supported by the weight of the
                evidence and/or sufficiency of the evidence.

         {¶ 21} In his fourth assignment of error, Mr. Wise argues that the judgment is not

supported by the manifest weight of the evidence or the sufficiency of the evidence. We do not

agree.

         {¶ 22} In Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, at ¶ 3, the

Ohio Supreme Court set forth that “[w]hen applying a sufficiency-of-the-evidence standard, a

court of appeals should affirm a trial court when ‘ “the evidence is legally sufficient to support

the jury verdict as a matter of law.” ’ [State v.] Thompkins (1997), 78 Ohio St.3d [380] 386, 678

N.E.2d 541, quoting Black’s Law Dictionary (6th Ed.1990) 1433.            When applying a civil

manifest-weight-of-the-evidence standard, a court of appeals should affirm a trial court when the

trial court’s decision ‘is supported by some competent, credible evidence.’ State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶ 32.” (Citations omitted.)

         {¶ 23} Mr. Wise argues that the evidence was legally insufficient and that the verdict was

against the manifest weight of the evidence because he did not owe a duty to Ms. Wise. In our

disposition of the first assignment of error, we conclude that he did owe Ms. Wise a duty. As

this was the basis of his sufficiency and manifest-weight arguments, his fourth assignment of

error is overruled.

                                                 III

         {¶ 24} Mr. Wise’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.


                                                                               Judgment affirmed.


         WHITMORE, P. J., and DICKINSON, J., concur.
                                                 7
