COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72802 JAMES D. SHOREY : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : BILL MARTIN, ET AL. : OPINION : Defendants-Appellees : Date of Announcement of Decision: JULY 2, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 306783 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: BRIAN M. FALLON, ESQ. 450 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendants-Appellees: BRENT L. ENGLISH, ESQ. 310 Lakeside Avenue 795 Courthouse Square Cleveland, Ohio 44113-1021 -2- JAMES M. PORTER, J.: Plaintiff-appellant James D. Shorey appeals from the trial court's judgment in his conversion case holding that plaintiff relinquished his right to make any claim against [defendants Martin and Allied] by releasing Mrs. Shorey [his ex- wife] for all claims relating to her wrongfully disposing of the Steinway piano. The court found that a release of the party primarily liable operates as a release of any party secondarily liable. On grounds other than those advanced by the trial court, we affirm the judgment below. [A] reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof. Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96, citing Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 284, 29 O.O. 426, 430, 58 N.E.2d 658, 663. Plaintiff James D. Shorey owned a valuable 1925 Steinway Baby Grand Piano in excellent condition. The piano's wholesale value was $7,500 and its retail value was between $12,000 and $15,000. James and his wife, Shannon Shorey, were separated and going through a divorce. Shannon remained in the marital house while James moved out. However, James left the piano at the home. On February 1, 1994, Shannon sold the piano, without authority, to defendant Allied Piano, Inc. for $3,000. Martin, Allied's president, had no knowledge of the pending divorce or that Shannon had no authority to sell the piano. At the time of the purchase, Martin required Shannon to endorse on the purchase check that the -3- piano was free and clear of all liens. Shannon kept the $3,000 proceeds from the sale. Allied subsequently sold the piano to a man known only as California Red. The whereabouts of California Red and the piano are unknown. During the Shorey's divorce proceedings, the issue of Shannon's sale of the piano was raised. As stated in appellant's brief herein at p. 2: Shannon's conversion of the piano became an issue in the Shorey divorce case. In settling the case -- long before the present action was brought -- James released Shannon from her liability for converting the piano. (Findings of Fact No. 6.). On April 12, 1996, plaintiff filed this action against Allied Piano, Inc., Bill Martin and Second Hand Rose. Second Hand Rose was later dismissed from the case. Plaintiff sought a declaratory judgment that he was the rightful and lawful owner of the piano and damages for the wrongful conversion of the piano. The Allied defendants filed a timely answer denying all liability and asserted a third-party complaint against Shannon for indemnification or contribution. Shannon failed to answer Allied's third-party complaint and on December 3, 1996, Allied filed a motion for a default judgment against her. On January 8, 1997, the trial court granted the motion and granted judgment for Allied in whatever sum may be adjudged against any of the defendants and third party plaintiffs in this suit in favor of Plaintiff, James D. Shorey, plus costs and interest at 10% from the date of judgment. On April 14, 1997, the case proceeded to a bench trial. On June 10, 1997, the trial court journalized its order including -4- findings of fact and conclusions of law. The Court held: Even though Mr. Kaffeman [Martin] and Allied Piano, Inc. purchased the piano for value with a good faith belief that Mrs. Shorey had authority to sell the piano, Steinway No. 233049, they committed the tort of conversion. However, the Court found that Mr. Shorey relinquishedhis right to make any claim against Mr. Kaffeman and Allied Piano, Inc. by releasing Mrs. Shorey for all claims relating to her wrongfully disposing of the Steinway piano. Plaintiff James Shorey's timely appeal ensued. His sole assignment of error states as follows: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY HOLDING THAT JAMES SHOREY WAS PRECLUDED FROM RECOVERING DAMAGES FROM THE ALLIED DEFENDANTS DUE TO A PRIOR RELEASE OF ANOTHER PARTY. Plaintiff asserts that the trial court erroneously held that plaintiff was precluded from recovering damages from Allied because he previously released, as part of a divorce settlement, his former wife from any liability to him from her separate conversion of the same personal property. He asserts that primary and secondary liability has no application to the case at bar as Allied's liability is not vicarious in any way. In short, plaintiff argues that defendant Allied has committed a separate tort of conversion, independent of Shannon's conversion. Conversion has been defined as any exercise of dominion or control wrongfully exerted over the personal property of another in denial of or under a claim inconsistent with his rights. Ohio Tel. Equip. & Sales, Inc. v. Hadler Realty Co. (1985), 24 Ohio App.3d 91, 93. It is well settled in Ohio that no matter how many -5- times a stolen chattel may be bought and sold for full consideration and in the best of faith, everyone through whose hands it has so passed is guilty of converting it to his own use and liable for its value to the real owner, if he has abused it, used it as his own, or done any act inconsistent with the rights of the owner. 18 Ohio Jurisprudence 3d (1980), Conversion & Replevin, S34 at 505; North Canton Bank v. Cocklin (1933), 46 Ohio App. 27. Accordingly, it is a well-settled rule that an action for conversion will lie against a bona fide purchaser from the original wrongful taker of chattels belonging to another. Angus v. Cincinnati Morris Plan Bank (1937), 56 Ohio App. 444. In the instant case therefore, in the absence of plaintiff's release of Shannon in the divorce proceedings, Allied's act of selling the piano to California Red would be considered a separate act of conversion. We nonetheless hold that the trial court entered the correct judgment for the reasons stated below. When plaintiff Shorey pursued his conversion claim against his wife in the domestic relations court and released her, he passed title to the piano to his wife which related back to the time of her taking. Therefore, she passed good title to Allied, a bona fide purchaser. Ohio law supports this conclusion. As stated in 18 Ohio Jur.3d Conversion and Replevin S1 at 482: However, the recovery of the value of the specific chattel by the plaintiff in an action for conversion transfers title to the goods to the defendant. When the injured party begins an action in conversion for the value of goods wrongfully taken he abandons his property, in effect, as of that time, to the wrongdoer, and proceeds for its worth alone, so that when -6- judgment is obtained and satisfaction made the property is vested in the defendant by relation back to the time of the taking or conversion. And, of course, the determination of the right as being in the defendant may be equally conclusive, if decided on the merits. Furthermore, this principle was fully recognized by the Ohio Supreme Court in U.S. Fire Ins. Co. v. Paramount Fur Services, Inc. (1959), 168 Ohio St. 431, where bailee Goldman accepted a fur for storage and then transferred it to a sub-bailee without the owner's permission. The fur was stolen from the sub-bailee. The owner's insurance company sued the sub-bailee for $1500, the value of the fur, not $100, the limit of contractual liability imposed by Goldman. In holding plaintiff's recovery was limited to $100, the Supreme Court found that if the owner elects to treat the first bailee as a converter *** the owner cannot thereafter take the inconsistent position that he may recover from the second bailee for loss caused to the property ***. Paragraph 7 of syllabus. The Supreme Court explained its conclusion as follows at 440: It is reasonably arguable that there are allegations in the petition which could support a conclusion that Goldman converted the coat when it delivered the coat to defendant. If we assume that the allegations of the petition could support that conclusion, nevertheless it is apparent from the allegations of the petition that neither plaintiff nor the owner of the fur coat ever elected to treat Goldman as a converter. If the owner of the coat had elected to do so and had been correct in so contending, then the owner would have had a right against Goldman to recover for the value of the coat. Conkle v. George K. Scott Co., Inc. 147 Ohio St., 487, 34 O.O., 405, 72 N.E. (2d), 82; Aetna Casualty & Surety Co. v. Higbee Co., 80 Ohio App. 437, 36 O.O., 188, 76 N.E. (2d), 404, 174 A.L.R., 266. In electing to treat Goldman as -7- a converter, the owner of the coat would necessarily have had to recognize the coat as having been converted by and thereby as having become the property of Goldman. Sammis v. Sly, 54 Ohio St., 511, 519, 44 N.E., 508, 56 Am. St. Rep., 731. Thus, where a bailee of personal property does something that may amount to a conversion of that property, if the owner elects to treat the bailee as a converter, the owner thereby in effect requires a forced sale of the property to the bailee. Prosser on Torts (2d), 66, Section 15. If the coat had thus become the property of Goldman, then obviously neither the owner nor plaintiff could now, without taking an inconsistent position, recover anything from defendant on account of its damage. Any cause of action on amount of such damage would then be vested in Goldman. By leaving his piano in the custody of his wife in the marital residence, Shorey created a gratuitous or constructive bailment. Where otherwise than by a mutual contract of bailment, one person has lawfully acquired the possession of personal property of another, the one in possession is, by operation of law, generally treated as a bailee of such property and may therefore be reasonably referred to as a constructive bailee. Paramount Fur Services, Inc., supra, at 436. A gratuitous bailee is a bailee who will receive nothing from the owner of the property and will have no right to recover from such owner anything for what he does in caring for such property ***. Id. at 437. When plaintiff Shorey pursued a conversion claim against his bailee wife in the domestic relations proceedings, he treated her conversion as a forced sale of the piano to her which related back to her sale to Allied. The piano was then the property of Shannon -8- and her sale of it to Allied and Allied's subsequent sale of it to California Red are valid transfers of ownership, not conversions. Furthermore, when plaintiff released her from the claim, he was estopped from pursuing a second conversion claim against Allied or was deemed to have waived it. See 18 Ohio Jur.3d Conversion and Replevin S40, S41 at 511. These principles are consistent with the common law generally as stated in 89 C.J.S. Trover and Conversion S160(b) at 640-641: The general rule is well settled that, where a judgment for plaintiff has been satisfied, the title to the property, whether legal or equitable, is, by operation of law, vested in defendant, independent of any provision in the judgment to that effect, and plaintiff is conclusively estopped to assert any further right or title to, or interest in, the property converted. *** the title thus acquired relates back to the date of the conversion. For the foregoing reasons, plaintiff's sole assignment of error is overruled. Judgment affirmed. -9- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, A.J., CONCURS. O'DONNELL, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED). JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72802 JAMES D. SHOREY : : Plaintiff-Appellant : DISSENTING : v. : OPINION : BILL MARTIN, et al. : : Defendants-Appellees : : DATE: JULY 2, 1998 TERRENCE O'DONNELL, J., DISSENTING: I respectfully dissent from the majority opinion in this case. The facts here establish a classic, legal-textbook example of conversion and, although involved, are relatively uncomplicated. James Shorey inherited a 1925 or 1926 Baby Grand Steinway Piano (Serial No. 233049) which had been in his family since he was ten years old. During the pendency of divorce proceedings which he filed against his wife, Shannon Shorey, he left the piano in the marital home where Shannon lived, located at 19115 Shaker Blvd. in Shaker Heights, Ohio. On or about February 1, 1995, however, Shannon called Allied Piano, Inc., and one of its officers, Marvin Kaffeman a/k/a Bill Martin, agreed to pay her $3,000 for the piano which, at the time, had a retail value of $12,500 to $15,000. Shannon then sold the piano to Allied, and Allied thereafter transferred it to a gentleman known only as California Red. The whereabouts of both California Red and the Baby Grand Steinway are presently unknown. The record before us further reveals that -2- in resolving the pending divorce litigation, James relinquished his claim against Shannon for conversion of the piano and her retention of the proceeds from its sale to Allied. Following resolution of the divorce proceedings, however, James Shorey instituted an action against Allied Piano, Inc. and Kaffeman, seeking to replevin the piano or recover damages for its conversion. Allied filed a third-party complaint against Shannon seeking indemnity from her for any losses it sustained. The court granted a default judgment in favor of Allied on its indemnity claim against Shannon but, at the conclusion of the bench trial, entered judgment for Allied on Shorey's claim for conversion on the theory that since he had released Shannon, the primary tortfeasor, he had also released his claim against Allied, a party the trial court determined to be a secondarily-liable tortfeasor. James Shorey now appeals from that judgment, contending separate torts of conversion have been committed and urging that the law allows recovery against each tortfeasor as a primary obligor. In my view, this is a case about conversion, not bailment. A conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. See Restatement of the Law 2d, Torts (1965) 431, Section 222A(1). In order to prove conversion, the owner must demonstrate that he or she demanded the return of the property from the possessor following its conversion, and that the possessor refused to deliver the property to its rightful -3- owner. See Tabar v. Charlie's Towing Serv. Inc. (1994), 97 Ohio App.3d 423. See, also, Hinkle v. Cornwell Quality Tool Co. (1987), 40 Ohio App.3d 162; Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309. Also, it is well recognized that each person who converts property is separately liable therefor, and that no matter how many times a stolen chattel may be bought and sold for full consideration and in the best of faith, everyone through whose hands it has so passed is guilty of converting it to his own use and liable for its value to the real owner. See, generally, Woolsey v. Seely (1833), Wright Reps. 360; 18 Ohio Jurisprudence 3d (1980) 505, Conversion and Replevin, Section 34. In addition, it is indisputable that one who transfers possession of a chattel can transfer no better title to it than he has received. See Atlantic Finance Co., Inc. v. Fisher (1962), 173 Ohio St. 387. Here, despite the fact that Allied asserts itself as a bona- fide-purchaser-for-value, Allied cannot obtain a better title to the piano than Shannon Shorey had to pass; thus, as against James Shorey, the true owner, Allied, as a transferee of the converted property, has an inferior title and James Shorey has a superior title to the piano. See Pate v. Elliott (1978), 61 Ohio App.2d 144, where the court stated at 146: * * * a purchaser of property acquires only as sound a title as was held by the seller. Because a thief has void title, anyone possessing superior rights to the property may recover possession from the thief or a subsequent purchaser. (Emphasis added). -4- Nonetheless, because each conversion of the piano is a separate tort, Shannon and Allied are not joint tortfeasors who acted in concert to commit a single tort, but instead are successive tortfeasors who separately and independently converted the piano: in Shannon's case, when she transferred to Allied, and in Allied's case, when it transferred to California Red. Hence, the notion of primary and secondary liability as advanced by the trial court is misplaced. Rather, the law is that each person who converts the property is separately liable to the owner; however, that owner is entitled to but one satisfaction for such loss arising from the conversion. See Railroad Co. v. Hutchins (1881), 37 Ohio St. 282. Accord Swenson v. Ewy (1978), 54 Ohio St.2d 470; Seifert v. Burroughs (1988), 38 Ohio St.3d 108; Whitacre v. Bd. of Education (1974), 42 Ohio App.2d 19; Haendiges v. Haendiges (1992), 82 Ohio App.3d 720; in this regard, it is well-settled that an owner may recover the fair market value of the property at the time it was converted. See Tabar v. Charlie's Towing Serv., Inc., supra. See, also, Woolsey v. Seely, supra; Railroad Co. v. Hutchins, supra. The interesting question on this appeal, however, concerns the legal effect of the release offered in the Domestic Relations litigation as it affects Shorey's right to pursue his claim against Allied. In Tanker v. N. Crest Equestrian Ctr. (1993), 86 Ohio App.3d 522, the court stated at 526: * * * it is a well-recognized rule that a release that is so general that it includes within its terms claims of which the releasor was ignorant, and thus not within the -5- contemplation of the parties when the release was executed, will not bar recovery of such claims. Isroff v. Westhall Co. (Feb. 21, 1990), Summit App. No. 14184, unreported; 1990 WL 15192. Annotation (1947), 171 A.L.R. 184. And further, in The Adams Express Co. v. Beckwith (1919), 100 Ohio St. 348, the court held in its syllabus at paragraph 4: Such written release, whether it be a covenant not to sue, a covenant to cease suing, or a covenant in partial satisfaction, does not inure to the benefit of any other persons than those who are parties to such written release, save and except that it is a satisfaction pro tanto to the party wronged and to that extent works a discharge to all joint wrongdoers. (Ellis v. Bitzer, 2 Ohio, 89, disapproved and overruled). See, also, Whitacre v. Bd. of Education, supra; Riley v. Cincinnati (1976), 46 Ohio St.2d 287. The law on the issue of satisfaction is longstanding as the court stated it in Woolsey, supra, at 362 in a case involving a miner who had raised ore belonging to another: * * *. If, also, any part of the ore in dispute has been raised by a trespasser, or mere wrong-doer, and the plaintiff has discharged the trespasser, and received satisfaction from him, in any way, for so much, he cannot recover of others. * * *. (Emphasis sic; boldface added). Because the record presented to our court does not contain the release between James and Shannon Shorey, we are unable to determine whether it constituted a relinquishment of Shorey's claim itself, or merely a relinquishment of his right to proceed against Shannon on that claim; or, whether he contemplated releasing his claim against Allied by signing it; further, we cannot determine what satisfaction, if any, he received in exchange for it. It is -6- clear, however, that if he received full satisfaction for the fair market value of the piano from her, he is precluded from any recovery against Allied. On the other hand, if he received only a pro tanto satisfaction from her, the law is that he may pursue his claim against Allied to recover up to the fair market value of the piano at the time of conversion. Lastly, it is my view that even if James created a constructive bailment by leaving the piano with Shannon pending his divorce as the majority believes he did, she still had a duty to redeliver it to him in accordance with the terms of the bailment. Thus, my view differs from the majority concerning the legal effect it affords the release offered by James in the Domestic Relations litigation. Without knowing the value received by him in exchange for it, the majority simply assumes he received a full satisfaction from Shannon. The majority opinion in this regard blurs the distinction between James' release of his claim to conversion of his piano with his release of Shannon as one tortfeasor who converted it. Since the release is not part of the record before us, we cannot know whether it binds Shannon's heirs, successors or assigns or whether James simply quit-claimed his rights against her without value in order to pursue his separate recovery against Allied for its separate conversion of the piano in its admitted transfer to California Red. . My view is that since James is entitled to a full fair market value recovery in connection with the conversion of the piano, and since he is entitled to pursue the separate torts of conversion -7- against each converter, he should be permitted to pursue this claim against Allied, but only to the extent of receiving one satisfaction for the loss of the piano. Without having the opportunity to review the release, we cannot know what satisfaction or value, if any, James received in exchange for that release. Accordingly, I respectfully dissent from the judgment of the majority as I would reverse the determination of the trial court in this regard and remand the matter for an evidentiary hearing to determine what value James received in exchange for the release, and would permit James to pursue his full or pro tanto claim .