[Cite as Commonwealth Land Title Ins. Co . v. Choice Title Agency, Inc. , 2012-Ohio-2824.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

COMMONWEALTH LAND TITLE INS CO. Appellant

v. CHOICE TITLE AGENCY, INC., et al. Appellees C.A. No. 11CA009981 11CA009983

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 08CV159215

DECISION AND JOURNAL ENTRY Dated: June 25, 2012

MOORE, Judge. {¶1} Appellant, Commonwealth Land Title Insurance Company, appeals orders from the Lorain County Court of Common Pleas. This Court reverses.

I {¶2} Sandra Maruna was the principal of Choice Title Agency which, in turn, served as title agent for Commonwealth Land Title Insurance Co mpany with respect to certain real estate transactions. In 2008, a check tendered by Choice Title in connection with a real estate closing

was dishonored for insufficient funds. Commonw ealth, from whom the purchasers had obtained title insurance, paid $116,060.26 to the seller of the property when the check was dishonored. Commonwealth’s subsequent i nvestigation led to the disc overy that Ms. Maruna had misappropriated funds from Choice Title as a re sult of questionable business deals with a man named Moclanail Rodgers.2

{¶3} Ms. Maruna was married to Carl Maruna at the time. Mr. Maruna did not have direct involvement in Choice Title, although he did occasionally lend money to his wife for business expenses and, on one occasion, loaned her $50,000. Not long after Ms. Maruna’s financial improprieties came to light, Mr. Maruna initiated divorce proceedings against her. The Marunas reached agreement on a property divisi on, which the domestic re lations court approved and incorporated into the divorce decree. As a result of the propert y division, Ms. Maruna quitclaimed her interest in three properties to Mr. Maruna. {¶4} Commonwealth sued Choice Title Agency and Sandra Maruna to recover the money that it spent when Choice Title’s check was dishonored. Commonw ealth alleged claims against Choice Title and Ms. Maruna for civil conspiracy and fraudulent conveyance, sought civil damages for theft, as permitted by R. C. 2307.60(A) and R.C. 2307.61(A), and asked the trial court to pierce the corporate veil to impose liability on Ms. Maruna individually.

Commonwealth also sued Mr. Mar una, alleging unjust enrichment and that he was the recipient of Ms. Maruna’s fraudulent conveyance of the thr ee properties that changed hands a result of the Marunas’ divorce. With respect to the fra udulent conveyance claim, Commonwealth sought avoidance of the subject transaction under R. C. 1336.07(A)(1). Commonwealth also asserted claims against Moclanail Rodgers and Affordable Real Estate Solutions, alleging that both participated with Ms. Maruna and Choice Title in financial misconduct. {¶5} Commonwealth moved for summary judgment on its claims against Mr. Maruna,

and Mr. Maruna filed a cro ss-motion for summary judgment. The trial court denied Commonwealth’s motion, but granted Mr. Maruna ’s. Commonwealth also moved for summary judgment against Ms. Maruna and Choice Title on each of the claims alleged against them. They did not respond, and the trial court granted Commonwealth’s mo tion for summary judgment on3

May 27, 2010. Neither Mr. Rodgers nor Affordable R eal Estate Solutions appeared in the action,

and the trial court entered defau lt judgment against them. {¶6} On June 23, 2010, the trial court ordered Ms. Maruna and Choice Title to pay $32,125.82 in attorney’s fees. Commonwealth a ppealed, but we dismissed that appeal, concluding that because the June 23, 2010, order did not address attorney’s fees with respect to Mr. Rodgers or Affordable Real Estate So lutions, it was not final and appealable. Commonwealth Land Title Ins. Co. v. Choice Title Agency, Inc. , 9th Dist. No. 10CA009848, 2011-Ohio-396. On March 23, 2011, the trial court combined the substance of its May 27, 2010, orders into one order and awarded attorney’s fees from Ms. Maruna, Choice Title, Mr. Rodgers, and Affordable Real Estate Solutions, jointly and severally. Commonwealth appealed that order and the May 27, 2010, orders in two separate appeals, which this Court consolidated.

II {¶7} Commonwealth has raised eigh t assignments of error in support of its appeal. The first six challenge various aspects of the tria l court’s May 27, 2010, order with respect to its claims against Mr. Maruna. The final two assi gnments of error relate to the March 23, 2011, order with respect to its claims against Ms. Maruna and Choice Title. We have rearranged the assignments of error for purposes of discussion.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER R.C. §1336.04(A)(1). [MS. MARUNA] TRANSFERRED THE MARUNA PROPERTIES TO [MR. MARUNA] WITH THE ACTUAL INTENT TO HINDER, DELAY OR DEFRAUD COMMONWEALTH.4

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER R.C. §1336.04(A)(2). [MS. MARUNA] TRANSFERRED HER INTEREST IN THE MARUNA PROPERTIES WITHOUT RECEIVING A REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR THE TRANSFER AND SHE KNEW, AT THAT TIME, THAT SHE WOULD INCUR DEBTS BEYOND HER ABILITY TO PAY AS THEY BECAME DUE. ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT COMMONWEALTH SUMMARY JUDGMENT AGAINST [MR. MARUNA] ON ITS CLAIM FOR FRAUDULENT TRANSFER UNDER R.C. §1336.05. [MS. MARUNA] TRANSFERRED HER INTEREST IN THE MARUNA PROPERTIES WITHOUT RECEIVING A REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR THE TRANSFER AND SHE BECAME INSOLVENT AS A RESULT OF THE TRANSFER. {¶8} In Commonwealth’s second, third, and fourth assignments of error it argued that Commonwealth, not Mr. Maruna, was entitled to summary judgment on its fraudulent conveyance claim. In other words, Commonwealth has argued that the trial court should have granted summary judgment to it or, in the alternative, not at all. {¶9} Under Civ.R. 56(C), “[s]ummary judgment will be granted only when there remains no genuine issue of material fact and, wh en construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law.” Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10. This Court reviews an order granting summary judgment de novo. Grafton v. Ohio Edison

Co ., 77 Ohio St.3d 102, 105 (1996). The substantiv e law underlying Commonwealth’s claim for fraudulent conveyance provides the framework fo r reviewing the cross-motions for summary judgment, both with respect to wh ether there are genuine issues of material fact and whether either party was entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc .,5

477 U.S. 242, 248 (1986); Burkes v. Stidham , 107 Ohio App.3d 363, 371 (8th Dist.1995). This case, therefore, requires us to examine the Ohio Uniform Fraudulent Transf er Act, codified in Chapter 1336 of the Ohio Revised Code. {¶10} When a creditor’s claim arises before the transfer of property, a fraudulent conveyance as to that creditor may exist in four s ituations: (1) if the debt or transferred property with actual intent to defraud the creditor, (2) if the debtor did not recei ve reasonably equivalent

value for the transfer under th e circumstances described in R.C. 1336.04(A)(2), even if acting without actual fraudulent intent, (3) if the de btor transferred property without receiving reasonably equivalent value and was insolvent or became insolvent as a result, and (4) if the debtor transferred the property to an inside r under the circumstances described in R.C. 1336.05(B), even if reasonably equivalent value was given in exchange. See generally R.C. 1336.04; R.C. 1336.05. {¶11} A creditor does not need to prove intent on the part of the transferee to establish a claim for fraudulent conveyance, but transferees may prove defenses to the claim and assert their rights as described in R.C. 1336.08. See Ford v. Star Bank, N.A. , 4th Dist. No. 97CA39, 1998 WL 553003, *4 (Aug. 27, 1998); R.C. 1336.04; R.C. 1336.05; R.C. 1336.08. Compare R.C. 1313.56 and R.C. 1313.57 (providing that the fraudulen t intention of the transferee must be proven under a different statute th at permits a conveyance to be voided as to all creditors upon suit by any). In other words, transferees are necessary parties to a claim for fraudulent conveyance not because their participation in th e fraud must be proven, but because they hold an interest in the property that is the subject of the conveyance. R.C. 1336.07 and R.C. 1336.08, in turn, protect the rights of transferees by providi ng defenses and defining the remedies available

to creditors.6

{¶12} Commonwealth’s motion for summary judgment argued that the transfer of property from Ms. Maruna to Mr. Maruna wa s fraudulent under R.C. 1336.04(A)(1) and (A)(2)

and under R.C. 1336.05. Mr. Maruna responded and moved for summary judgment, arguing that there was no “transfer” in the first place because the properties changed hands as part of the Marunas’ divorce. Mr. Maruna did not argue that he was entitled to any of the defenses set forth in R.C. 1336.08, nor did he support his response or motion for summary judgment with any

evidence related to those defenses. Mr. Mar una also did not dispute Ms. Maruna’s conduct underlying this case. Instead, he argued that he was entitled to summary judgment because, in his view, the change in ownership of real prope rty as part of the Marunas’ divorce settlement

was not a “transfer.” {¶13} R.C. 1336.01(L), however, defines a “transfe r” as “every direct or indirect, absolute or conditional, and volunt ary or involuntary method of dis posing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.” Although Comm onwealth and Mr. Maruna characterize the proceedings in the Marunas’ divorce case in different ways, the record on summary judgment is actually clear and the facts are not disputed. The Marunas settled their divorce case on mutually agreeable terms. The case was not tried, but the trial court did examine the parties on the record before accepting the terms of their settlement. The divorce decree incorporated the property division that the parties negotiated between themselves and to which they agreed. As a result of their agreement, Ms. Maruna executed quitclaim deeds to Mr. Maruna. This is a “transfer” as defined by R.C. 1336.01(L). Whether it is a fraudulent transfer and, if so, whether the appropriate remedy is that the transfer shoul d be voided was the subject of Commonwealth’s motion for summary judgment and its arguments on appeal.7

{¶14} Since the conveyances at issue were “tra nsfers,” and since Mr. Maruna did not argue that any of the defenses available under R.C. 1336.08 applied to him, we agree that the trial court erred by granting summary judgment to Mr. Maruna. Therefore, we turn to Commonwealth’s argument that summary judgment should have been granted in its favor. Commonwealth argued that the transfers by Ms. Ma runa were fraudulent as to its interest under either R.C. 1336.04(A)(1), R.C. 1336.04(A)(2), or R.C. 1336.05(A). Because a fraudulent conveyance can be established in any of th ese ways, Commonwealth was entitled to summary judgment if it established that there was no genuine issue of fact and that it was entitled to judgment as a matter of law with respect to any of the statutes at issue. Commonwealth is entitled to summary judgment under R.C. 1336.04(A)(1 ), and so our discussion begins and ends

there. {¶15} Under R.C. 1336.04(A)(1), “[a] transfer made or an obligation incurred by a

debtor is fraudulent as to a creditor * * * if th e debtor made the transfer or incurred the obligation * * * [w]ith actual intent to hinder, de lay, or defraud any creditor of the debtor[.]” R.C. 1336.04(B). A transfer can be fraudulent as to the debtor under R.C. 1336.04(A)(1), yet not

fraudulent as to the transferee if the transferee establishes the defense that he took the property “in good faith and for a reasonably equivalent value[.]” R.C. 1336.08(A). This defense, once proved, does not change the fraudulent nature of the transfer, but can impact the remedies

available to the creditor. See R.C. 1336.08(A)-(C); R.C. 1336.07. In this way, the rights of a transferee who took the property in good faith an d for reasonably equivalent value are protected even though the intention of the transferee is not relevant for purposes of establishing that a transaction was fraudulent in the first place. See e.g. R.C. 1336.08(B)/(C); R.C. 1336.07.8

{¶16} Commonwealth was granted summary judg ment against Ms. Maruna based, in part, on her admissions by default under Civ.R. 36. Specifically, those admissions established that Ms. Maruna transferred the properties at issue to Mr. Maruna with the “purpose of hindering, delaying or defrauding * * * Commonw ealth.” Ms. Maruna has not challenged the trial court’s judgment against he r, and by virtue of her admissi ons, Ms. Maruna’s actual intention to hinder, delay, or defraud Commonwealth is “c onclusively established * * * for the purpose of the pending action[.]” Civ.R. 36. {¶17} Commonwealth also supported its motion for summary judgment against Mr.

Maruna with these written admissions. See generally Civ.R. 56(C). Although Mr. Maruna could have responded with reference to Civ.R. 56(C) evidence, if any, that demonstrated a genuine issue of material fact with respect to Ms. Maruna’s intention to defraud Commonwealth, he did not do so. He also did not argue the defense provided by R.C. 1336.08(A), nor did he support his cross-motion for summary judgment with evidence demonstrating that he took the properties in good faith and for reasonably equivalent value. With respect to Commonwealth’s claim that Ms. Maruna fraudulently conveyed the property to Mr . Maruna, therefore, there is no genuine issue of material fact, and Commonwealth is entitled to judgment as a matter of law. Commonwealth’s second assignment of error is, therefore, sustained. Its third and fourth assignments of error, which argue alterna tive grounds for summary judgment under R.C. 1336.04(A)(2) and R.C. 1336.05, need not be addressed. See generally App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR I

IT WAS IMPROPER FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT TO [MR. MARUNA] AFTER IT FOUND THAT THERE WERE GENUINE ISSUES OF MATERIAL FACT IN THIS CASE.9

ASSIGNMENT OF ERROR V

IF THE TRIAL COURT’S DECISION TO GRANT SUMMARY JUDGMENT TO [MR. MARUNA] WAS BASED, IN ANY WAY, ON ITS BELIEF THAT THE DIVORCE DECREE PREVENTED COMMONWEALTH FROM PURSUING A CLAIM FOR FRAUDULENT CONVEYANCE THEN THIS WAS AN ERROR AS A MATTER OF LAW. ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO COMMONWEALTH ON ITS FRAUDULENT CONVEYANCE CLAIM AGAINST [MS. MARUNA], THE TRANSFEROR, BUT DENIED COMMONWEALTH[’S] SUMMARY JUDGMENT CLAIM AGAINST [MR. MARUNA], THE TRANSFEREE. {¶18} In light of our disposition of Commonwea lth’s second assignment of error, its first, fifth, and six assignment s of error are also moot. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED WHEN IT FAILED TO DECLARE THE TRANSFER OF THE MARUNA PROPERTIES VOID AND FAILED TO ALLOW COMMONWEALTH TO EXECUTE ON ITS JUDGMENT THROUGH A FORECLOSURE ON THE MARUNA PROPERTIES. {¶19} Commonwealth’s seventh assignment of error argues that, having entered summary judgment against Ms. Maruna on its fra udulent conveyance claim, the trial court erred by awarding only the remedy of a money judgment. In light of our conclu sion that the trial court erred by entering summary judgment in favor of Mr. Maruna on the fra udulent conveyance claim against him and, conversely, by failing to ente r summary judgment in Commonwealth’s favor on that claim, we agree in part. R.C. 1336.07 an d R.C. 1336.08 permit the tria l court to fashion a remedy appropriate to the case, but do so with consideration for the liability of the debtor and the rights of the transferee. Consequently, Co mmonwealth’s seventh assi gnment of error is sustained to the extent that the trial court must now consider what remedy is appropriate in light10

of Commonwealth’s judgment against Mr. Maruna and Ms. Maruna on the fraudulent conveyance claim. The seventh a ssignment of error is sustained.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD COMMONWEALTH TREBLE DAMAGES PURSUANT TO R.C. §2307.61 AGAINST [MS. MARUNA] AND [CHOICE TITLE]. {¶20} Commonwealth’s final assignment of error is that the trial court erred by failing to award treble damages despite granting summary judgment to Commonwealth under R.C. 2307.60(A) and R.C. 2307.61(A)(2). {¶21} Under R.C. 2307.60(A)(1), any person who has been injured by a criminal act may bring a civil action to recover damages. When civil liability is based on the commission of a theft offense, the plaintiff “may elect to r ecover” liquidated damages in amounts specified by the statute or “three times the value of the property at the time it was * * * the subject of a theft offense[.]” R.C. 2307.61(A). Choice Title and Ms. Maruna have suggested that despite the language of R.C. 2307.61(A), a tria l court may disregard a plaintiff’s election and decline to award treble damages. Cases in terpreting an earlier version of R.C. 2307.61(A) did reach that

conclusion. See e.g. Fulmer Supermarkets v. Whitfield , 2d Dist. No. 10397, 1988 WL 2430, *1-2 (Jan. 5, 1988). That version of the statute, ho wever, differed from the current version in significant ways. Specifically, it provided that a successful plaintiff “may recover” compensatory damages and, to the extent th e property was valued under $5,000, “may recover exemplary damages[.]” In 1992, the statute wa s amended to essentially its present form, expanding the dollar value of cases in which exem plary damages are available and providing that the plaintiff “may elect to recover” in the ways described therein. Accordingly, earlier cases11

interpreting the language of R. C. 2307.61(A) and later cases that adopt their holdings without reference to the changes in the statute are not persuasive. {¶22} Instead, our decision is controlled by the language of the statute itself. R.C. 2307.61(A) provides that a successful plaintiff “may elect to recover” treble damages, subject only to notice requirements that R.C. 2307.61(A)(2) prescribes for claims under $5,000. Once a plaintiff has prevailed on a claim under R.C. 2307.60(A)(1) premised upon commission of a theft offense, the remedy is therefore determined by the plaintiff’s election. R.C. 2307.61(A). See

also X-Technology, Inc. v. MJ Technologies , 8th Dist. No. 80126, 2002-Ohio-2259, ¶ 27 (“[U]pon proof of the fact that [the plaintiff] has been damaged through a criminal act * * * he becomes entitled to the remedy chosen.”). {¶23} The trial court granted summary judgment to Commonwealth on its claims against Ms. Maruna and Choice Title, including its claim for civil liability arising from the theft offense of passing bad checks. Although not specified in the Amended Complaint, Commonwealth’s motion for summary judgment also explained that it sought treble damages under R.C. 2307.61(A)(2). According to the terms of the statute, the trial court erred by failing to give effect to Commonwealth’s elec tion of damages under R.C. 2307.61(A)(1). Commonwealth’s eighth assignme nt of error is sustained.

III {¶24} Commonwealth’s second assignment of error is sustained. The trial court’s order granting summary judgment to Mr. Maruna is ther efore reversed with respect to the fraudulent conveyance claim, and judgment is entered in favor of Commonwealth on that claim. Commonwealth’s first, third, fourth, fifth, and sixt h assignments of error are moot. The seventh and eighth assignments of error are sustained and, with respect to those assignments of error, the12

trial court’s judgment is reversed and remanded so that the trial court may consider the remedies that should be awarded to Commonwealth in lig ht of this opinion and as described herein. Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees.

CARLA MOORE FOR THE COURT

WHITMORE, P.J. DICKINSON, J. CONCUR13

APPEARANCES: DONALD P. MCFADDEN and MONICA E. RUSSELL, Attorneys at Law, for Appellant. KENNETH P. FRANKEL, Attorney at Law, for Appellees. JAMES V. BARILLA, Attorney at Law, for Appellee.