Anderson v. Preferred Title & Guaranty Agency, Inc. ( 2014 )

[Cite as Anderson v. Preferred Title & Guaranty Agency, Inc., 2014-Ohio-561.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kim L. Anderson, :
Plaintiff-Appellant, :
v. : No. 13AP-385
(C.P.C. No. 11CV-9083)
Preferred Title & Guaranty Agency, :
Inc. et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
NUNC PRO TUNC1
Rendered on February 13, 2014
Kim L. Anderson, pro se.
DeSanto & McNichols, Debra J. DeSanto and David J.
McNichols, for appellees Preferred Title & Guaranty Agency,
Inc. and Frank Farkas.
Sikora Law LLC, Michael J. Sikora, III, Richard T. Craven
and Joni S. Todd, for appellee Stewart Title Guaranty
Company.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Plaintiff-appellant, Kim L. Anderson, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for summary judgment and
granting the motions for summary judgment of defendants-appellees Stewart Title
Guaranty Company, Preferred Title & Guaranty Agency, Inc., and Frank Farkas. For the
following reasons, we affirm.
1 To include the original date of release.
No. 13AP-385 2
I. BACKGROUND
{¶ 2} Appellant brought this action, pro se, against Stewart Title Guaranty
Company ("Stewart Title"), Preferred Title & Guaranty Agency, Inc. ("Preferred Title"),
Frank Farkas (collectively "appellees"), and Rebecca Barley.2 According to the parties,
appellant was a facilitator who brought buyers and sellers together for three real estate
transactions, which are at issue in this case. Preferred Title provided title, escrow, and
closing services related to the transactions. Farkas, a vice president at Preferred Title, and
Barley, an employee at Preferred Title, were involved in the transactions. Stewart Title
had a business relationship with Preferred Title, pursuant to which it underwrote the title
insurance policies issued by Preferred Title during the transactions.
{¶ 3} Appellant claims Stewart Title, Preferred Title, Farkas, and Barley had a
duty to disclose accurate information to lenders but, despite that duty, Barley listed
appellant's business debts incorrectly as second mortgages on HUD-1 Settlement
Statements related to the sale of properties located at 873-875 Kelton Avenue, Columbus,
Ohio 43206; 69 Dakota Avenue, Columbus, Ohio 43222; and 296 Olentangy Ridge Place,
Powell, Ohio 43068. Farkas approved the paperwork prepared by Barley. Appellant also
contends he was listed as a real estate broker in error.
{¶ 4} The errors on the paperwork played a role in causing funds to flow into
appellant's possession that he was not legally entitled to receive, and he retained those
funds. Consequently, appellant was indicted, tried before a jury, and convicted of
engaging in a pattern of corrupt activity, identity fraud, theft, forgery, and money
laundering. Appellant was sentenced to serve 15 years in prison and ordered to pay over
$1 million in restitution.
{¶ 5} Appellant does not dispute that his convictions are related to the sale of five
properties, including the three at issue in this case. Appellant contends that appellees are
civilly liable to him because Barley's errors on the HUD-1 Settlement Statements caused
him to become convicted, incarcerated, and subject to the restitution order. He argues
2Rebecca Barley was never served with process in the underlying lawsuit, nor did she enter an appearance
or otherwise plead. She is, likewise, not a party to this appeal.
No. 13AP-385 3
that Preferred Title is liable to him as Barley and Farkas' employer, and Stewart Title is
vicariously liable to him due to its relationship with Preferred Title and underwriting the
title insurance policies. Appellant's operative complaint is imprecise, but it includes
allegations of negligence, misrepresentation, fraud, and intentional infliction of emotional
distress.
{¶ 6} On November 26, 2012, appellant filed a motion for summary judgment.
He argued that there was no genuine dispute that Barley prepared the flawed HUD-1
Settlement Statements, Farkas approved those documents, and the mistakes on those
documents cause him to be prosecuted. Therefore, appellant contended the trial court
should grant him judgment as a matter of law and award him $12 million in
compensatory and punitive damages.
{¶ 7} On December 10, 2012, Stewart Title filed a motion for summary judgment
arguing that appellant did not allege any direct wrongdoing on its part, and appellant
could not otherwise establish a viable theory of liability pertaining to Stewart Title. On
January 15, 2013, Preferred Title and Farkas filed a motion for summary judgment
arguing that they committed clerical errors and did not act with malice or knowingly
commit fraud. Preferred Title and Farkas noted they relied on documents provided to
them by appellant. Additionally, Preferred Title and Farkas argued that appellant's claims
were barred by application of the unclean hands doctrine, referencing appellant's criminal
conduct and convictions.
{¶ 8} On April 12, 2013, the trial court ruled on the three motions for summary
judgment. The court denied appellant's motion and granted appellees' motions due to
appellant's unclean hands. The court also found appellant's claims against Stewart Title,
Preferred Title, Farkas, and Barley failed as a matter of law regardless of whether they
were based on theories of direct or vicarious liability. The court concluded that
"[appellant] accepted and retained the funds disbursed at the three closings and it was his
acceptance and retention of those funds that led to his criminal convictions and
incarceration." (R. 210, Decision and Entry, 19.) Appellant has timely appealed the trial
court's judgment.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant presents the following three assignments of error for our review:
No. 13AP-385 4
FIRST ASSIGNMENT OF ERROR
The Trial Court erred as a matter of law and abused its
Discretion by Denying Plaintiff-Appellant's Motion for
Summary Judgment; when there were no genuine issues of
material fact and Plaintiff-Appellant was entitled to Summary
Judgment; where the issue of liability was based on the
wrongful acts of the Defendants incident to three Real Estate
Transactions and the Paramount wrongful act was admitted
to by one Defendant and acknowledged by all the others.
Further, more specifically, the Trial Court erred and abused
its Discretion by not Granting Summary Judgment against
Defendant Rebecca Barley, who under the facts conceded by
all parties and the Trial Court; admitted she listed the
Plaintiff's Business Debt wrongly as a Second Mortgage on
Three Real Estate Transactions HUD-1 Settlement
Statements. Again, under the facts, this act was committed by
her and not Plaintiff.
SECOND ASSIGNMENT OF ERROR
The Trial Court erred as a matter of law and abused its
Discretion by Granting Defendants-Appellees Preferred Title
& Guaranty Agency, Inc. and Frank Farkas's Motion for
Summary Judgment; where, again, the issue of liability was
based on the wrongful acts of the Defendants incident to three
Real Estate Transactions and the fatal act was done by one of
the Defendants but argued away as a clerical error, repeated at
least Three times and committed without malice or
knowingly; and that they relied on documents provided by
Plaintiff, who simply had presented invoices, not Second
Mortgages, to said Defendants; and under these facts it was
unreasonable to grant them Summary Judgment.
THIRD ASSIGNMENT OF ERROR
The Trial Court erred as a matter of law and abused its
Discretion by Granting Defendant-Appellee Stewart Title
Guaranty Company's Motion for Summary Judgment; where
the issue of liability was based on the wrongful acts of the
Defendants incident to three Real Estate Transactions and the
fatal act was done by one of the Defendants but argued away
as a clerical error; but repeated three times, and Stewart Title
No. 13AP-385 5
was aware of Preferred's Acts and even approved them
repeated as well as holding themselves out as the Principal
and had privity of contract to be held liable under contract law
and should also be held vicariously liable for the acts of its
agents.
III. PRELIMINARY MATTERS
{¶ 10} Preliminarily, because appellant is proceeding pro se on appeal as he did in
the trial court, we note that "Ohio courts hold pro se litigants to the same rules and
procedures as those litigants who retain counsel. Pro se litigants are not entitled to greater
rights, and they must accept the results of their own mistakes." Williams v. Lo, 10th Dist.
No. 07AP-949, 2008-Ohio-2804, ¶ 18, citing Whitehall v. Ruckman, 10th Dist. No. 07AP-
445, 2007-Ohio-6780, ¶ 21; State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas,
123 Ohio St.3d 124, 2009-Ohio-4688, ¶ 1, quoting State ex rel. Fuller v. Mengel, 100 Ohio
St.3d 352, 2003-Ohio-6448, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Servs.,
145 Ohio App.3d 651, 654 (10th Dist.2001) (" ' "[P]ro se litigants * * * are held to the same
standard as litigants who are represented by counsel." ' "). Thus, like members of the bar,
pro se litigants are required to comply with the rules of practice and procedure. Hardy v.
Belmont Corr. Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9.
{¶ 11} With that in mind, we note that appellant raises issues in both his merit
brief and reply brief that fall outside of the parameters of his assignments of error. Most
notably, appellant is displeased with the trial court's denial of numerous motions, without
specific explanations, at the same time the trial court ruled on the motions for summary
judgment that are the subject of this appeal. However, appellant did not assign error to
the denial of the other motions. Pursuant to App.R. 12(A)(1)(b), an appellate court must
"[d]etermine [an] appeal on its merits on the assignments of error set forth in the briefs
under App.R. 16." "Thus, this court rules on assignments of error only, and will not
address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553,
¶ 70, citing In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5.
Accordingly, we will address appellant's assignments of error as written and disregard his
extraneous arguments. See Bonn v. Bonn, 10th Dist. No. 12AP-1047, 2013-Ohio-2313,
¶ 9.
IV. STANDARD OF REVIEW
No. 13AP-385 6
{¶ 12} Appellate review of summary judgments is de novo. Titenok v. Wal-Mart
Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6; Coventry Twp. v. Ecker,
101 Ohio App.3d 38, 41 (9th Dist.1995). "When an appellate court reviews a trial court's
disposition of a summary judgment motion, it applies the same standard as the trial court
and conducts an independent review, without deference to the trial court's
determination." Harris v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-466, 2013-
Ohio-5714, ¶ 6. We must affirm the trial court's judgment if any grounds the movant
raised in the trial court support it, even if the trial court failed to consider those grounds.
Tilley v. Dublin, 10th Dist. No. 12AP-998, 2013-Ohio-4930, ¶ 18, citing Coventry Twp. at
41-42.
{¶ 13} Summary judgment is proper only when the party moving for summary
judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving
parties are entitled to judgment as a matter of law, and (3) reasonable minds could come
to but one conclusion and that conclusion is adverse to the party against whom the
motion for summary judgment is made, that party being entitled to have the evidence
most strongly construed in its favor. Id. at ¶ 19, citing State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997); Civ.R. 56(C).
{¶ 14} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial
burden under this rule with a conclusory assertion that the nonmoving party has no
evidence to prove its case; the moving party must specifically point to evidence of a type
listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no
evidence to support the nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421(1997). Once the moving party discharges its initial burden, summary judgment is
appropriate if the nonmoving party does not respond, by affidavit or as otherwise
provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial.
Dresher at 293; Vahila at 430; Civ.R. 56(E).
V. DISCUSSION
No. 13AP-385 7
{¶ 15} For ease of discussion, we will address appellant's assignments of error out
of order, beginning with his second assignment of error. In his second assignment of
error, appellant argues the trial court erred in granting Preferred Title and Farkas' motion
for summary judgment. We disagree.
{¶ 16} According to appellant, the "fatal act" in this case is that Barley listed his
business debts incorrectly as second mortgages on HUD-1 Settlement Statements related
to three real estate transactions. Appellant does not dispute that he received funds from
those transactions, and that he accepted and retained those funds. As noted by appellees
and the trial court, it was appellant's acceptance and retention of those funds that led to
his claimed injury in this civil case: criminal prosecution and convictions, a 15-year prison
sentence, and a restitution order for over $1 million. Appellant simply argues that his
criminal conduct is not germane to these proceedings. Appellant is mistaken.
{¶ 17} In order for appellant to prevail on his tort claims, he must prove that
appellees' tortious acts proximately caused his injuries. White v. Vrable, 10th Dist. No.
98AP-1351 (Sept. 30, 1999). Appellant's own criminal acts were the proximate cause of
his criminal convictions. See State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-
6566 (affirming appellant's convictions and sentence), aff'd by the Supreme Court of
Ohio, In re Cases Held for Decision in State v. Hodge, 128 Ohio St.3d 234, 2011-Ohio-
228, ¶ 6; DiNozzi v. Ohio State Dental Bd., 10th Dist. No. 08AP-609, 2009-Ohio-1376,
¶ 14.
{¶ 18} Appellant's criminal conduct broke the causal chain between appellees'
allegedly tortious acts and his claimed injury. See DiNozzi at ¶ 14; White, citing Bilicic v.
Brake, 64 Ohio App.3d 304, 307 (11th Dist.1989); see also Evans v. Thrasher, 1st Dist.
No. C-120783, 2013-Ohio-4776, ¶ 22, citing Taylor v. Webster, 12 Ohio St.2d 53, 56
(1967), and Feichtner v. Ohio Dept. of Transp., 114 Ohio App.3d 346, 359 (10th Dist.1995)
("When a third person's criminal act intervenes between a defendant's conduct and a
plaintiff's injuries, the defendant's negligence is the proximate cause of the plaintiff's
injuries only where the defendant could have reasonably foreseen the intervening act.").
Due to appellant’s conduct, which was not reasonably foreseeable, he cannot prevail on
his tort claims, and Preferred Title and Farkas are entitled to judgment as a matter of law.
Accordingly, appellant's second assignment of error is overruled.
No. 13AP-385 8
{¶ 19} In his third assignment of error, appellant argues the trial court erred in
granting Stewart Title's motion for summary judgment. We disagree. It is undisputed
that Stewart Title was not directly a party to or involved in the three transactions at issue.3
Appellant contends Stewart Title is vicariously liable for the actions of Preferred Title,
Farkas, and Barley. However, all of appellant's tort claims against Stewart Title fail
because " 'there can be no vicarious liability imputed to a principal, if there is no liability
on the part of the agent.' " Faieta v. World Harvest Church, 10th Dist. No. 08AP-527,
2008-Ohio-6959, ¶ 54, quoting Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
¶ 21; Krause v. Case W. Reserve Univ., 8th Dist. No. 70712 (Dec. 19, 1996) ("The master
or principal is not liable unless the servant or agent is liable in the first instance."). Thus,
because Preferred Title, Farkas, and Barley are not liable to appellant, neither is Stewart
Title.
{¶ 20} Appellant also purports to have contract based claims against Stewart Title;
however, such claims are not supported by the record. Appellant's amended complaint
does not contain any contract claims. It is captioned "CIVIL COMPLAINT WILLFUL
AND NEGLIGENCE-TORT" and, true to that description, it only discusses tort causes of
action. Appellant conceded at the trial level that Stewart Title was not directly involved in
the real estate transactions at issue, and appellant described his theory of liability against
Stewart Title as "based on agency principles and claims of negligent supervision and
negligent training." (R. 159, Appellant's Motion for Summary Judgment, 7.) Now, on
appeal, appellant alleges there was an "implied contract" between him and Stewart Title
without citing to the record. (Appellant's brief, 13.) It is not this court's duty to search the
record for evidence to support an appellant's argument as to alleged error. Hardy at ¶ 10,
citing Sherman v. Sherman, 10th Dist. No. 05AP-757, 2006-Ohio-2309, ¶ 15 and State ex
rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.). Furthermore,
this court may disregard arguments if the appellant fails to identify the relevant portions
of the record from which the errors are based. Id., citing In re C.C., 10th Dist. No. 04AP-
3As the trial court noted, appellant admitted in his discovery responses that Stewart Title did not create the
HUD-1 Settlement Statements in the three transactions, Stewart Title did not make any misrepresentations
upon which appellant relied, and appellant did not have any direct written or oral communications with
Stewart Title.
No. 13AP-385 9
883, 2005-Ohio-5163, ¶ 80; App.R. 12(A)(2). In any event, we do not find support for an
independent contract claim against Stewart Title in the record.
{¶ 21} There was a title insurance underwriting agreement between Stewart Title
and Preferred Title in place at the time of the real estate transactions. However, appellant
only references that agreement in an attempt to substantiate his tort based vicarious
liability arguments, which fails for the reasons above. Therefore, the trial court properly
granted Stewart Title’s motion for summary judgment. Accordingly, appellant's third
assignment of error is overruled.
{¶ 22} In his first assignment of error, appellant argues that the trial court erred in
denying his motion for summary judgment. We disagree. For the reasons above,
appellant could not prevail on his motion. Therefore, his first assignment of error is
overruled.
VI. APPELLANT'S MOTION TO STRIKE
{¶ 23} On August 19, 2013, appellant filed a motion to strike Preferred Title and
Farkas' brief. Appellant argued the brief was untimely. However, on July 11, 2013, this
court granted Preferred Title and Farkas an extension of time until July 25, 2013 to file
their brief, and they filed their brief on that day. Therefore, appellant's motion to strike
is denied.
VII. CONCLUSION
{¶ 24} Accordingly, having overruled all three of appellant's assignments of error,
we affirm the judgment of the Franklin County Court of Common Pleas.
Motion denied;
judgment affirmed.
BROWN and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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