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Wright v. Heller

Court of Appeals of Ohio, First District, Hamilton

January 17, 2018

PATRICIA WRIGHT, and GLENN WRIGHT, Plaintiffs-Appellants,

         Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO. A-1403169

          The Schneider Law Firm, LLC, and Louis C. Schneider, for Plaintiffs-Appellants.

          Lindhorst & Dreidame, Christopher H. Hurlburt and James Brockman, for Defendants-Appellees Joseph and Tracy Heller

          Faulkner & Tepe, LLP, John C. Scott and Tracy E. Schwetschenau for Defendant-Appellee Huff-Drees Realty, Inc.

          Arnzen, Molloy, Storm, & Turner, P.S.C., and Aaron A. Vanderlann for Defendant-Appellee Huff-Drees Realty, Inc.

          Smith Rolfes & Skavdahl Company, L.P.A., and Carmen Sarge for Defendants-Appellees Thomas J. Singer and Christopher Parchman.



         {¶1} Plaintiffs-appellants Glenn and Patricia Wright ("Wrights") appeal from the trial court's grant of summary judgment in favor of defendants-appellees Joseph and Tracy Heller ("Hellers"), Huff-Drees Realty, Inc., d.b.a. Huff Realty ("Huff), Thomas Singer, Christopher Parchman, and Nationwide REO Brokers, Inc., ("Nationwide") in a case regarding the removal, disposal, and retention of the personal property that the Wrights failed to retrieve from their former home at 7329 Waterpoint Lane following a foreclosure. We affirm the judgment of the trial court because res judicata barred the Wrights from asserting these claims against the defendants.

         The Factual Basis of the Federal Law Suit

         {¶2} In February 2009, Bank of America ("BOA") foreclosed on a home owned by Glenn and Patricia Wright. The sheriff sold the property back to the bank in December 2009. The Wrights never removed their personal property from the home. After the sale, the bank informed the Wrights in writing numerous times that their property must be removed from the home, to no avail. On March 4, 2010, BOA posted a "Personal Property Notice" on the home informing the Wrights that any property that was not removed by April 8, 2010, would be disposed of without further notice. The notice was also mailed to and received by the Wrights.

         {¶3} The Wrights, through broker Tim Atteberry, made two attempts to repurchase the home. Atteberry made offers in January and March 2010, but BOA never responded to the offers. On April 7, 2010, Atteberry spoke with Kate McCarthy, a paralegal who worked for Manley Deas Kolchalski, L.L.C., the law firm that represented BOA. Atteberry represented that he had a potential buyer for the property who was interested in purchasing the furniture with the home. Atteberry did not disclose to McCarthy that the Wrights were the potential buyers. After conferring with BOA, McCarthy sent an email confirming that the furniture would remain on the property and instructing Atteberry to conduct future negotiations with Tom Singer, the listing agent from Huff Realty.

         {¶4} After April 7, 2010, the Wrights never followed up with BOA regarding their personal property. In the meantime, Atteberry contacted Singer who did not negotiate with Atteberry. BOA sold the property to the Hellers in July 2010. When the Wrights visited the home in August 2010, they learned it had been sold to the Hellers.

         {¶5} Four months later, the Wrights filed suit against BOA in the United States District Court for the Southern District of Ohio asserting state-law claims for breach of contract, negligence, and fraud, claiming they were wrongfully deprived of their personal property because BOA had a lawful duty to protect the property until the Wrights chose to retrieve it, BOA failed to retain the property, and BOA conveyed the personal property to the Hellers.

         The Federal Court Proceedings

         {¶6} In the district court, the Wrights alleged that BOA had agreed to secure and maintain their personal property, BOA had breached the agreement by discarding the property and allowing it to be turned over to the Hellers, the Wrights' demands for recovery of the personal property had been refused, and the Wrights had been deprived of the ownership and benefit of their personal property. The Wrights further alleged that BOA "was negligent in fulfilling" its duty to maintain custody and control over the property, and that BOA had falsely misrepresented its intent to maintain and secure the property.

         {¶7} After discovery, the district court granted BOA's motion for summary judgment finding that BOA did not enter into a contract with the Wrights to allow them to leave their property in the home, and that any alleged permission to maintain the personal property in the home was contingent solely on the successful repurchase of the home by Atteberry on behalf of the Wrights. The court further found that the Wrights were not in negotiations to purchase the property, and that they should have known well before July 2010 that BOA would not sell the property to Atteberry. Once the Wrights knew that they could not repurchase the home, they should have taken active steps to retrieve their belongings. Instead, the Wrights sat passively and did nothing ...

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