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T. A. v. R. A.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

T. A., Plaintiff,
R. A., Defendant-Appellee, [Appeal by Q.A., Et al., Third-Party Defendants-Appellants.]

          Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-15-355865


          Raslan & Pla, L.L.C., Jorge Luis Pla, Lila D. Raslan, and Nadia Zaiem, for appellee.

          Dinn, Hochman & Potter, L.L.C., and Edgar H. Boles, for appellants.



         {¶ 1} Third-party defendants-appellants, QA. ("appellant") and two corporations, Pearl Road, Inc. ("Pearl Road") and 871 Rocky River Drive, Inc. ("Rocky River Drive"), bring the instant appeal challenging the trial court's judgment entry ordering appellant to release mortgages on Devon Drive, North Olmsted ("marital home") and Rocky River Drive, properties awarded to defendant-appellee, RA. ("wife") in a divorce action filed by appellant's brother, plaintiff, T.A. ("husband"). Appellants also challenge the trial court's jurisdiction when it ordered them to remain parties to the proceedings pursuant to Civ.R. 75(B)(1). We find no merit to the appeal and affirm the trial court's judgment.

         I. Factual and Procedural History

         {¶ 2} On February 18, 2015, husband filed a complaint for divorce against wife in the Cuyahoga County Court of Common Pleas, Domestic Relations Division. See Allan v. Allan, 8th Dist. Cuyahoga No. 107142, 2019-Ohio-2111. On that same day, the trial court issued a mutual restraining order against both husband and wife. Husband filed an ex parte restraining order against wife in regard to the contents within husband's personal safety deposit box.

         {¶ 3} On June 19, 2015, wife filed an answer, counterclaim for divorce, and cross-claims against appellant. In the divorce action, wife joined appellant, husband's brother, and two Sunoco gas stations that husband and appellant jointly owned and operated. Wife asserted that the two gas stations were marital property. The gas stations were located at 871 Rocky River Drive, Berea, Ohio and 7606 Pearl Road, Middleburg Heights, Ohio. Wife also joined Tallan, L.L.C., husband's corporation, and various financial institutions in the cross-claims. The cross-claims consisted of several tort claims for fraud, misrepresentation, conversion, and misappropriation.

         {¶ 4} Pearl Road was purchased by wife with two other partners in November 1996. The parties purchased the gas station but did not purchase the land on which the gas station sat. Allan at ¶ 12. In June 1997, wife became the sole owner of the Pearl Road gas station. Husband and wife were married on October 17, 2002. In 2001, husband entered into a purchase agreement with wife to purchase 51 percent of the stock in 7606 Pearl Road. In the divorce action, wife claims that in May 2002, prior to the couple's marriage, husband coerced her into transferring the remaining 49 percent in the Pearl Road gas station to him and not compensating her for the transfer.

         {¶5} Sometime in 2004, husband purchased 871 Rocky River Drive. This purchase included the property, equipment, and the building. Id. at ¶ 16. On May 21, 2004, husband organized Tallan, L.L.C. He is the sole member of Tallan, L.L.C. On June 17, 2004, husband incorporated 871 Rocky River Drive, and in October 2004, Sunoco, Inc. conveyed the real property to Tallan, L.L.C. The purchase price was $385, 000. On October 25, 2004, Tallan, L.L.C, entered into a term note with Charter One Bank for $269, 500 and an open-end mortgage was recorded for the same amount. The difference of $120, 000 was contributed by husband and wife, through a mortgage on the parties' marital home.

         {¶ 6} According to husband, he operated the gas stations with appellant. Sometime in 2009, husband renovated 871 Rocky River Drive. However, he and appellant testified that husband ran out of money and was unable to complete the renovations. Husband subsequently sold a portion of 871 Rocky River Drive to appellant, and Tallan, L.L.C. retained ownership of the real estate. Id. at ¶ 26.

         {¶ 7} The sale of 871 Rocky River Drive was completed through two transactions. Sometime between October 2010 and March 2011, husband sold appellant 49 percent of the stock in 871 Rocky River Drive. Both appellant and husband testified that appellant paid husband $10, 000 and assumed the $330, 580 debt to the construction company for the renovation work. On September 14, 2012, husband sold the remaining 51 percent of the stock to appellant for $57, 000.

         {¶ 8} On November 22, 2013, husband also sold Pearl Road to appellant for $150, 000, which husband had originally purchased for $250, 000.

         {¶ 9} In May 2014, Charter One Bank wrote a letter to Tallan, L.L.C, stating that the commercial loan for the original purchase of 871 Rocky River Drive could not be extended past the maturity date of October 25, 2014, and $181, 088 was owed on the note. Husband testified that he asked appellant for assistance with payment on the note. Husband and appellant apparently entered into an agreement in which appellant was to pay the remaining balance of $181, 088, and in an effort to repay appellant, husband would grant a mortgage in that amount on the marital home.

         {¶ 10} On February 4, 2015, husband granted appellant a mortgage on the marital home for $181, 088. On that same day, husband, through Tallan, L.L.C, also granted appellant a second mortgage on 871 Rocky River Drive in the amount of $181, 088. Wife did not sign the mortgage and testified that she did not have knowledge of it. Husband filed for divorce from wife on February 18, 2015.

         {¶ 11} Once joined in the divorce action, appellant filed a complaint in Cuyahoga C.P. No. CV-15-847754 against husband for failure to pay $188, 088[1] to appellant. Wife intervened in that matter and filed a stay, pending the outcome of the divorce proceedings between husband and wife. The trial court dismissed appellant's complaint without prejudice in May 2018.

         {¶ 12} On October 23, 2015, appellant filed a motion to dismiss wife's amended counterclaim and cross-claims. The trial court denied the motion to dismiss on November 19, 2015.

         {¶ 13} Thereafter, on November 24, 2015, appellant filed a writ of prohibition to this court and an application for an alternative writ. Allan v. Palos, 8th Dist. Cuyahoga No. 103815, 2016-Ohio-3073. Appellant argued that the trial court lacked subject matter jurisdiction over wife's cross-claims against appellant. On December 10, 2015, this court denied appellant's application for an alternative writ and dismissed appellant's complaint for a writ of prohibition. This court ruled that the trial court possessed general subject matter jurisdiction, and therefore, "prohibition is not available to prevent or correct any erroneous judgment, nor is prohibition available as a remedy for an abuse of discretion or as a remedy in order to prevent an anticipated erroneous judgment." Id. at ΒΆ 12. In addition, it was noted that appellant possessed ...

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