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Norman R. Crowe, Jr. v. Firstenergy Corp.

September 29, 2011

NORMAN R. CROWE, JR. PLAINTIFF-APPELLANT
v.
FIRSTENERGY CORP., ET AL. DEFENDANTS-APPELLEES



CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No. 09 CV 144

The opinion of the court was delivered by: Delaney, J.

JUDGES: Hon. Sheila G. Farmer, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: AFFIRMED

{¶1} Plaintiff-Appellant, Norman R. Crowe, Jr. appeals the November 16, 2010 decision of the Holmes County Court of Common Pleas that granted summary judgment to Defendants-Appellees FirstEnergy Corp. and Mary Lou Crowe on plaintiff's claim for conversion of FirstEnergy Corp. stocks.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant, Norman R. Crowe, Jr. and Appellee, Mary Lou Crowe were divorced on July 28, 2008. Per the terms of the parties' Separation Agreement, Mr. Crowe agreed to transfer 50% of his shares of common stock in FirstEnergy Corp. to Ms. Crowe. At the time of the divorce, Mr. Crowe owned 844.137 shares of common stock in FirstEnergy Corp.

{¶3} FirstEnergy's Shareholder Services Department received from Mr. Crowe a stock power dated August 28, 2008, requesting FirstEnergy to transfer one-half of Mr. Crowe's FirstEnergy shares of common stock to Ms. Crowe. Given that a dividend reinvestment was due to be made on or about September 1, 2008, FirstEnergy waited to transfer the shares of the stock until September 13, 2008, after the reinvested shares were purchased and posted to all accounts. On September 13, 2008, FirstEnergy mistakenly permitted the transfer of all of Mr. Crowe's shares of stock to Ms. Crowe (850.558 shares at that time). At the time of transfer, the transfer price of the stock was $69.42 per share.

{¶4} Ms. Crowe was unaware that FirstEnergy had mistakenly transferred 100% of Mr. Crowe's shares of FirstEnergy stock to her. On September 26, 2008, Ms. Crowe's broker took all 850 whole shares into a brokerage account through a direct registration system option and left the 0.558 share at FirstEnergy in a reinvestment account. The 0.558 fractional share had grown to 0.587 fractional share as of September 1, 2009. In March 2009, Ms. Crowe sold the whole shares of FirstEnergy stock.

{¶5} On April 29, 2009, Mr. Crowe became aware that FirstEnergy had transferred 100% of his FirstEnergy stock to Ms. Crowe. Mr. Crowe notified Ms. Crowe's attorney of the error and demanded that Ms. Crowe transfer ownership of 50% of the shares back to Mr. Crowe.

{¶6} Mr. Crowe contacted FirstEnergy on May 1, 2009 and informed it that it had mistakenly transferred all of his FirstEnergy shares of stock to Ms. Crowe. On May 1, 2009, FirstEnergy's stock closed at $42.38 per share.

{¶7} Mr. Crowe submitted a letter to Ms. Crowe on May 1, 2009 demanding Ms. Crowe pay him $30,749.80 immediately or he would sue her for wrongful conversion. Thereafter, FirstEnergy and Ms. Crowe worked together to transfer the shares of stock back to Mr. Crowe and on August 7, 2009, Ms. Crowe's broker delivered to FirstEnergy's transfer agent 425 shares of FirstEnergy stock, which were placed in a new account for Mr. Crowe. FirstEnergy's stock closed on August 7, 2009 at $42.87 per share.

{¶8} Because of the mistaken transfer, FirstEnergy told Mr. Crowe that it would reimburse him for quarterly dividends issued by FirstEnergy to shareholders during the period that the shares of stock were not in his account. Mr. Crowe declined FirstEnergy's offer and did not accept a September 1, 2009 dividend check from FirstEnergy.

{¶9} On August 20, 2009, Mr. Crowe filed his complaint against FirstEnergy and Ms. Crowe in the Holmes County Court of Common Pleas. FirstEnergy filed a motion for summary judgment on November 30, 2009. Mr. Crowe filed an opposing motion for summary judgment and a response to FirstEnergy's motion for summary judgment on December 16, 2009. Ms. Crowe filed a motion for summary judgment on December 22, 2009. On January 19, 2010, the trial court denied the motions of summary judgment by FirstEnergy and Mr. Crowe. In a separate judgment entry issued January 19, 2010, the trial court granted Ms. Crowe's motion for summary judgment.

{¶10} On July 9, 2010, Mr. Crowe filed a motion to reconsider the trial court's January 19, 2010 judgment entry granting Ms. Crowe's motion for summary judgment. During the pendency of the case, the matter was assigned to a visiting judge.

{¶11} The trial court held an oral hearing on the motion for reconsideration on November 2, 2010. There is no transcript of the hearing in the record. On November 16, 2010, the trial court ruled on Mr. Crowe's motion for reconsideration. The trial court determined that based on Mr. Crowe's motion for reconsideration, the trial court sua sponte reviewed both decisions issued on January 19, 2010. The trial court denied Mr. Crowe's motion for reconsideration as to Ms. Crowe's motion for summary judgment. However, the trial court reconsidered the denial of FirstEnergy's motion for summary judgment and found that pursuant to Civ.R. 56, the motion for summary judgment should be granted and the January 19, 2010 judgment entry should be vacated as such. The trial court dismissed Mr. Crowe's complaint with prejudice.

{¶12} It is from this decision Mr. Crowe now appeals.

ASSIGNMENTS OF ERROR

{ΒΆ13} Appellant raises three ...


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