Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
Schneider Law Firm, LLC, and Louis C. Schneider, for
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.
Rolfes & Skavdahl Company, L.P.A., and Carmen Sarge for
Defendants-Appellees Thomas J. Singer and Christopher
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.
Factual Basis of the Federal Law Suit
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.
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.
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.
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.
Federal Court Proceedings
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.
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 ...