Ford Motor Credit Co. v. Ryan

{¶ 1} Defendant-appellant, James M. Ryan, and third party defendant-appellant, Carolyn P. Ryan, appeal multiple decisions of the Franklin County Court of Common Pleas. For the following reasons, we affirm in part and reverse in part.

{¶ 2} On August 10, 2005, plaintiff-appellee, Ford Motor Credit Company (“Ford”), brought a breach-of-contract action against James and Ryan and Ryan, Inc. (“RRI”), in the Franklin County Municipal Court. Ford alleged that James and RRI had failed to pay amounts due under a motor-vehicle lease agreement that James and RRI had entered into when they coleased a 2002 Ford Windstar. James and RRI answered the complaint, and James filed a counterclaim. Because the damages sought in the counterclaim exceeded the municipal court’s monetary jurisdiction, the municipal court transferred the case to the common pleas court.

{¶ 3} In the common pleas court, Ford sought and received leave to file an amended complaint and a third-party complaint. In the amended complaint, Ford asserted three more breach-of-contract claims against James and RRI. These claims alleged that James and RRI had failed to pay amounts due under (1) a retail installment contract that James and Ryan and Ryan Real Estate Company (“R & R”)1 had entered into when copurchasing a 2004 Mercury Monterey, (2) a retail installment contract that James and R & R had entered into when copurchasing a 2004 Mercury Mountaineer, and (3) a retail installment contract that James and R & R had entered into when copurchasing a 2004 Mercury Mountaineer Premier.2

{¶ 4} In its third-party complaint, Ford asserted a breach-of-contract claim against James’s wife, Carolyn. Ford alleged that Carolyn had failed to pay *573amounts due under a retail installment contract that she had entered into when she purchased a 2004 Mercury Grand Marquis.3

{¶ 5} At the time that Ford filed its amended complaint and third-party complaint, it had already repossessed the vehicles at issue in those pleadings. Ford had hired Automobile Recovery Services of Cincinnati, Inc. (“ARS”), to accomplish each of the repossessions. Ford and ARS had a contractual arrangement whereby ARS provided Ford with repossession services. In the contract, ARS agreed to (1) forgo any repossession that would involve a breach of peace and (2) indemnify Ford for all expenses incurred in connection with legal claims that related to ARS’s performance of its contractual obligations.

{¶ 6} ARS repossessed four of the Ryans’ vehicles without incident. However, during the repossession of the Premier, James and the ARS agent engaged in a verbal and physical altercation. James’s counterclaim had asserted multiple tort claims against Ford based on the actions of ARS’s agent. Therefore, in addition to naming Carolyn, Ford’s third-party complaint also named ARS as a third-party defendant. Ford alleged breach-of-contract and indemnity claims against ARS.

{¶ 7} In response to Ford’s amended and third-party complaints, James and Carolyn each filed an answer and counterclaim.4 James and Carolyn asserted claims against Ford for (1) conversion, (2) trespass, (3) assault, (4) breach of peace, (5) intentional infliction of emotional distress, (6) invasion of privacy, (7) violation of Section 1983, Title 42, U.S.Code (“Section 1983”), (8) breach of contract, (9) violation of the Fair Debt Collection Practices Act, Section 1692, Title 15, U.S.Code (“FDCPA”), (10) violation of the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq. (“CSPA”), and (11) violation of the Ohio Retail Installment Sales Act, R.C. 1317.01 et seq. (“RISA”). James alone also asserted a claim for negligence against Ford.

{¶ 8} Both James and Carolyn brought a cross-claim against ARS. The cross-claims stated claims for (1) conversion, (2) trespass, (3) assault, (4) breach of peace, (5) intentional infliction of emotional distress, (6) invasion of privacy, (7) violation of Section 1983, (8) violation of the FDCPA, and (9) violation of the RISA.

{¶ 9} Additionally, both James and Carolyn named Bob-Boyd Lincoln Mercury, Inc. (“Bob-Boyd”) as a third-party defendant. The Ryans had leased or *574purchased each of the vehicles at issue in the instant case from Bob-Boyd. James and Carolyn asserted claims against Bob-Boyd for (1) breach of contract, (2) violation of the CSPA, and (3) estoppel.

{¶ 10} Ford, ARS, and Bob-Boyd moved for summary judgment on all the claims that James and Carolyn had asserted against them. Ford also moved for summary judgment as to its breach-of-contract claim against Carolyn, as well as its four breach-of-contract claims against both James and RRI. In three different judgment entries, the trial court granted all the summary-judgment motions. James and Carolyn separately appealed the three judgments to this court.

{¶ 11} On appeal, James and Carolyn point out that the trial court’s grant of summary judgment had not resolved all the claims pending before the court. Despite the existence of unresolved claims, two of the judgments — those granting Ford’s and Bob-Boyd’s summary-judgment motions — did not contain Civ.R. 54(B) language. James and Carolyn argued that absent Civ.R. 54(B) language, those two judgments did not constitute final, appealable orders.

{¶ 12} This court stayed the two appeals and remanded the matter to the trial court so that it could address the remaining claims. The trial court responded by again entering judgment in Ford and Bob-Boyd’s favor on their summary-judgment motions, but this time, including Civ.R. 54(B) language in the judgment entries. Both James and Carolyn then filed additional appeals from the amended judgment entries. We have consolidated all the appeals.

{¶ 13} In their first appeals (designated as case Nos. 09AP-501 and 09AP-555), James and Carolyn assign the following errors:5 *575owners and to remove property from the cartilage of the home to the public street for the purpose of repossession. These actions taken by ARS and the finding of the Trial Courts Order permitting such actions violates Defendant/Plaintiff s rights under existing Ohio Law, the Ohio Constitution and the United States Constitution and contrary to the Trial Courts findings there are genuine issues of material fact in the record as set forth herein that are genuinely disputed that should be set for trial. ARS is not entitled to Summary Judgment as a matter of law and viewing the evidence in the light most favorable to the non moving party, reasonable minds could not come to one conclusion adverse to the party against whom the motion is made. Fuentes v Shevin 407 U.S. 67, [92 S.Ct. 1983, 32 L.Ed.2d 556], Sodal v Cook County ILL. 506 U.S. 56, [113 S.Ct. 538, 121 L.Ed.2d 450] Lungar [Lugar] v Edmondson Oil Co. 457 U.S. 922[, 102 S.Ct. 2744, 73 L.Ed.2d 482], The Trial Court lacked jurisdiction over ARS for those actions that are under the exclusive jurisdiction of the Public Utilities Commission. Olympic Holding Co. L.L.C. v. Ace [ACE] Ltd. 122 Ohio St.3d 89[, 2009-Ohio-2057, 909 N.E.2d 93],

*574[1] The Trial Court Erred in terminating the case for the reason that the Trial Courts Journal Entries do not delineate the parties responsibilities and/or their obligations and further that the Trial Courts Orders do not meet the requirements of Section 2505.02 Ohio Revised Code and Civ. Rule 54( B) with the exception of the judgment Entry Granting Third Party Defendant Automobile Recovery Services of Cincinnati Inc. Motion for Summary Judgment, dated May 15, 2009.

[2] The Trial Court erred as a matter of law and fact in granting summary judgment to ARS and by dismissing Defendant/Plaintiff s claims for trespass, breach of peace, conversion, assault, seizure, invasion of privacy, violation of 42 U.S.C. 1983, violation of the Fair Debt Collection Act, violation of the Ohio Retail Installment Act, and the Ohio Consumer Sales Practices Act, by the Court finding that Ohio Law grants authority to independent contractors such as ARS the authority to enter private property against the objections of its

*575[3] The Trial Court erred as a matter of law and fact in granting Summary Judgment to ARS by finding that Defendant Ryan did not have any evidence of outrageous or extreme conduct and that Defendants did not have any evidence of extreme emotional distress and did not have any form of expert testimony and that Appellant was not entitled to punitive damages.

[4] The Trial Court erred in failing to dismiss Ford Motor Credit Company’s September 19, 2006 Amended Complaint and by granting Summary Judgment to Ford Motor Credit Company on Counts I and III-V of the Amended Complaint for the reason that the Amended Complaint fails to state a claim upon which relief can be granted, for the reason that the amended Complaint did seek and receive a declaratory judgment that all Defendants be jointly and severally liable for sums claimed due for which defendants are not contractually obligated to be, for the reason that FMCC has failed to join and commence an action against an indispensable party, Ryan and Ryan real Estate Co. without which party complete relief cannot be accorder Defendant and such failure to name a indispensable necessary party is a jurisdictional defect that precludes judgment and renders any declaration by the Trial Court Void, and for the reason that the Amended Complaint fails to claim default by the buyers in their contractual obligations all of which are genuine issues of material facts that are in dispute which precludes a judgment in this matter.

[5] The Trial Court erred in Granting Summary judgment in favor of FMCC and Bob Boyd in its findings that the evidence conclusively demonstrates the vehicles were purchased primarily for business purposes and that the Consumer Sales Protection Act does not apply.

{¶ 14} James alone (in case No. 09AP-501) assigns the final error:

*576[6] The Trial Court erred by granting Ford Motor Credit Company’s Emergency Motion for an Order Exercising Jurisdiction Over and Denying Return of Mercury Mountaineer. Judge Lynch’s Order violates the Fourth, Fifth, and Fourteenth Amendment of the U.S. Constitution. The Order seizes the Premier denying a “substantial right” of possession and use to Appellant, denies Appellant’s rights to due process of a post deprivation hearing and legitimizes the illegal actions of trespass, wrongful removal and conversion of property by combination of FMCC & ARS.

{¶ 15} In his second appeal (designated as case No. 10AP-263), James assigns the following errors:

[1] The Trial Court erred in Granting its Amended Entry Granting Summary Judgment In Favor Of Bob-Boyd Lincoln Mercury Inc. dated February 24, 2010.

[2] The Trial Court Erred in dismissing Defendants/Third Party claims against Automobile Recovery Services Of Cincinnati Inc.

[3] The Trial Court erred in granting Automobile Recovery Services of Cincinnati Inc’s Motion for Summary Judgment, as agent of Ford Motor Credit Company and as well as on its own behalf, the issue of assaulting James M. Ryan, creating a breach of the peace, wrongful conversion and/or stealing a 2004 Mercury Mountaineer “Premier” from the car port curtilage of the James and Carolyn Ryan residence at 3165 Dale Avenue Columbus Ohio 43209 on January 12, 2006 eliminated any right of entry on to the Ryan’s private property that may have existed under of color of state law as set forth in James M. Ryan’s counterclaim to Plaintiffs Amended Complaint, crossclaim, and third party complaint against third party defendant Automobile Recovery Services of Cincinnati Inc this entry onto private property and the removal of the vehicle was therefore an illegal act. The Trial Court erred in dismissing Defendants/Third party Counterclaims.

[4] Sections 1309.609(A)(1) & (2) & Section 1390.609(B)(2) Ohio Revised Code are unconstitutional as they violate the Due Process right Defendant James M. Ryan, a citizen of the State of Ohio, they violate Article I Section 1.01, 1.16 and 1.19 of the Ohio Constitution, they violate the Fourth and Fourteenth Amendment of the United States Constitution.

[5] The Trial Court Erred in denying appellant’s motion for continuance pursuant to Civil Rule 56(F).

[6] The Trial Court erred by granting Ford Motor Credit Company’s Emergency Motion for an Order Exercising Jurisdiction Over and Denying Return of Mercury Mountaineer. Judge Lynch’s Order violates the Fourth, Fifth and Fourteen[th Amendment of the United States Constitution and Article 1.16 & 1.19 of the Ohio Constitution. The Order seizes the vehicle *577known as the Premier denying a “substantial Right” of possession and use to Appellant, denies Appellant’s rights to due process, of a post deprivation hearing and legitimizes the illegal actions of trespass, wrongful removal and conversion of property by both Ford Motor Credit Company and Automobile Recovery Services of Cincinnati Inc.

[7] The Trial Court Erred in issuing its Amended Judgment Entry dated February 25, 2010 by granting plaintiff Ford Motor Credit Company’s Motion for Summary Judgment and dismissing with prejudice the claims in their entirety, and by entering judgment against James M. Ryan in the amount of $2,742.65, by granting judgment against James M. Ryan in the amounts of $1,612.37, $1,740.89 and $4,392.20 as James M. Ryan was not in default of his Contracts and any sums that may be due under the Contracts are subject to off set and that the Motions do not meet the requirements of Civil Rule 56(C).

[8] The Trial Court Erred in its Decision and Entry Granting Plaintiffs Motion For an Order Granting it Leave to Sell Collateral Filed September 19, 2006.

{¶ 16} Carolyn’s assignments of error are identical,6 except she omits the fourth and sixth assignments of error and substitutes the following in place of James’s seventh assignment of error:

The Trial Court Erred in issuing its Amended Judgment Entry dated February 25, 2010 by granting plaintiff Ford Motor Credit Company’s Motion for Summary Judgment and dismissing with prejudice the claims in their entirety, and by entering judgment in the amount of $8,635.24 as Carolyn P. Ryan was not in default of her Contract, that the motions do not meet the requirements of Civil Rule 56(C).

{¶ 17} Before considering the merits of appellants’ assignments of error, we must address ARS’s motion to strike. In its motion, ARS requests that this court strike from the second appeals the assignments of error and arguments related to it. ARS points out that the judgment entry granting it summary judgment included Civ.R. 54(B) language, making it a final, appealable order. Appellants appealed that judgment in case Nos. 09AP-501 and 09AP-555, and they both filed briefs in support of their appeals. ARS contends that once the briefing in case Nos. 09AP-501 and 09AP-555 concluded, appellants could not, without leave of court, submit additional assignments of error and argument directed toward ARS. We agree.

{¶ 18} The trial court’s rulings on Ford and Bob-Boyd’s summary-judgment motions did not become final, appealable orders until the trial court issued the *578amended judgment entries. Thus, in their second appeals, appellants could, and did, assign and argue error arising from those amended judgments. However, because the judgment granting ARS summary judgment was a final, appealable order, appellants’ appeals from that judgment presented their only opportunity to assign and argue error as to that judgment.

{¶ 19} Moreover, the appeal from the judgment granting ARS summary judgment gave appellants their only chance to appeal those interlocutory orders related to that judgment. When a final judgment does not terminate the entire case, but only terminates the case as to certain claims or parties, only prior interlocutory orders that relate to the final judgment will merge into the final judgment. Davis v. Galla, 6th Dist. No. L-08-1149, 2008-Ohio-3501, 2008 WL 2700008, ¶ 5-6. See also Haley v. Reisinger, 9th Dist. No. 24376, 2009-Ohio-447, 2009 WL 250871, ¶ 11-12; Norcold, Inc. v. Gateway Supply Co., 3d Dist. No. 17-05-11, 2006-0hio-6919, 2006 WL 3802609, ¶ 25-36 (an interlocutory order unrelated to the final judgment that terminated the case as to one party did not become appealable until the final disposition of the case). Thus:

For example, if a trial court judge makes an interlocutory ruling that certain documents will not be considered in making its decision on a summary judgment motion and subsequently, finding that there is no just reason for delay, the judge grants the summary judgment motion as to one of the defendants, then an appeal from the grant of summary judgment may include an appeal from the interlocutory ruling concerning the consideration of documents. The “documents ruling” will merge into the final order granting summary judgment.

Davis at ¶ 6.

{¶ 20} In the case at bar, prior to ruling on ARS’s motion for summary judgment, the trial court denied appellants’ Civ.R. 56(F) motion for a continuance to respond to ARS’s motion. The judgment denying the Civ.R. 56(F) motion was an interlocutory order related to the judgment granting ARS summary judgment. Consequently, the judgment denying the Civ.R. 56(F) motion merged into the final judgment disposing of the claims brought against ARS. Appellants, therefore, had to assert and argue any errors arising from the denial of the Civ.R. 56(F) motion in their first set of appeals.

{¶ 21} App.R. 16 allows an appellant to file an initial brief and a reply brief, and an appellee to file a response brief. “No further briefs may be filed except with leave of court.” App.R. 16(C). Here, appellants did not seek leave to file additional briefing as to ARS. Accordingly, we strike the second and third assignments of error from case Nos. 10AP-263 and 10AP-274. To the extent that they relate to ARS, we also strike the fifth assignment of error from case No. 10AP-263 and the fourth assignment of error from case No. 10AP-274.

*579{¶ 22} We will address case Nos. 09AP-501 and 09AP-555 first. By the first assignments of error in those appeals, appellants argue that the trial court did not render final, appealable orders when it ruled on Ford and Bob-Boyd’s summary-judgment motions. These assignments of error became moot once the trial court issued the amended judgment entries. Accordingly, we need not decide appellants’ first assignments of error.

{¶ 23} By appellants’ second assignments of error, they argue that the trial court erred in granting ARS summary judgment on all their claims against it. Although these assignments of error challenge the trial court’s ruling on appellants’ claims for invasion of privacy, seizure, and violation of the FDCA, RISA, and CSPA, appellants do not advance any argument in support this challenge. Likewise, the assignments of error contest the trial court’s jurisdiction over ARS, but appellants fail to assert an argument on this point. An appellant must demonstrate each assigned error through an argument supported by citations to legal authority and facts in the record. App.R. 16(A)(7); Cross v. Ohio Adult Parole Auth. Chief, 10th Dist. No. 09AP-364, 2009-0hio-5027, 2009 WL 3065176, ¶ 3. If an appellant neglects to advance such an argument, a court of appeals may disregard the assignment of error. App.R. 12(A)(2); Bond v. Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, 2008 WL 600201, ¶ 16-17. Accordingly, we will disregard those portions of the second assignments of error that appellants fail to separately argue.

{¶ 24} We now turn to the merits of appellants’ argument that their claims against ARS for trespass, conversion, assault, and violation of Section 1983 should have survived summary judgment.7 Appellate review of summary-judgment motions is de novo. Andersen v. Highland House Co. (2001), 93 Ohio St.3d 547, 548, 757 N.E.2d 329. “ ‘When reviewing a trial court’s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.’ ” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, 861 N.E.2d 920, ¶ 11, quoting Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103, 701 N.E.2d 383. Civ.R. 56(C) provides that a trial court must grant summary judgment when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion *580for summary judgment is made. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.

{¶ 25} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, 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 on an essential element of the nonmoving party’s claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

{¶ 26} Initially, we note that although ARS sought summary judgment on all appellants’ claims, it failed to explain in its motion why the trial court should grant summary judgment on appellants’ trespass claims. In fact, the motion does not mention the trespass claims at all, other than listing “trespass” in its recitation of all the claims appellants asserted.8 Likewise, ARS’s brief on appeal contains no argument regarding appellants’ trespass claims. Because ARS neither established the absence of a genuine issue of material fact regarding the trespass claims nor presented a legal reason why those claims must fail, we conclude that the trial court erred in granting summary judgment to ARS on appellants’ trespass claims.

{¶ 27} Appellants next contend that the existence of genuine issues of material fact precluded summary judgment on their conversion claims. “ ‘[C]on-version is the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights.’ ” State ex rel. Toma v. Corrigan (2001), 92 Ohio St.3d 589, 592, 752 N.E.2d 281, quoting Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172. ARS argues that it did not wrongfully take appellants’ vehicles because Ford had a contractual right to repossess the vehicles, and Ford hired ARS to exercise its contractual right. Section G of the *581retail installment contracts states that if the obligor(s) default, Ford “may repossess (take back) the vehicle.” In Ohio, this right to repossession is subject to R.C. 1309.609, which provides:

(A) After default, a secured party:

(1) May take possession of the collateral * * *.

(B) A secured party may act under division (A) of this section:

(1) Pursuant to judicial process; or

(2) Without judicial process if it acts without breach of the peace.

{¶ 28} R.C. 1309.609 is virtually identical to Section 9-609 of the Uniform Commercial Code (“U.C.C.”). The General Assembly incorporated U.C.C. provisions into the Ohio Revised Code “[t]o make uniform the laws among the various jurisdictions.” R.C. 1301.02(B)(3). Accordingly, to supplement Ohio law, our analysis of R.C. 1309.609 relies upon precedent from other jurisdictions addressing U.C.C. 9-609 and similar state statutes. Additionally, this court looks to caselaw interpreting former R.C. 1309.46, which preceded R.C. 1309.609 and duplicated former U.C.C. 9-503.9 149 Ohio Laws, Part I, 106, 107-108. Like U.C.C. 9-609, former U.C.C. 9-503 also allowed the repossession of collateral upon default if the creditor accomplished the repossession without a breach of the peace. Consequently, precedent from other jurisdictions interpreting former U.C.C. 9-503 and like state statutes also inform our analysis.

{¶ 29} R.C. 1309.609 gives a secured party the right to attempt self-help repossession if a debtor defaults. State v. LeFevre (May 4, 1995), 10th Dist. No. 94APA09-1376, 1995 WL 258959; Smith v. John Deere Co. (1993), 83 Ohio App.3d 398, 408, 614 N.E.2d 1148. However, “[i]f the secured party, or a third party repossessing for the secured party, causes a breach of peace while repossessing the collateral, the repossession will be wrongful, and the debtor may sue the secured party in conversion for return of the collateral or damages.” 9 Hawkland, Uniform Commercial Code Series (2001), Section 9-503:3. See also Bear v. Colonial Fin. Co. (1932), 42 Ohio App. 482, 487-189, 182 N.E. 521 (a secured party who breaches the peace in repossessing collateral may be liable for conversion under Ohio common law); Clark v. Assocs. Commercial Corp. (D.Kan. 1994), 877 F.Supp. 1439, 1450, fn. 9, quoting 68A American Jurisprudence 2d, Secured Transactions, Section 622 (“ ‘Generally, when the creditor, by self-help, repossesses the collateral by a breach of peace, the creditor is liable for trespass and conversion’ ”); Ivy v. Gen. Motors Acceptance Corp. (Miss.1992), 612 So.2d *5821108, 1117 (a debtor may sue in conversion if the secured party breaches the peace in repossessing the collateral); MBank El Paso, N.A. v. Sanchez (Tex. 1992), 836 S.W.2d 151, 152 (when a breach of peace occurs, “the secured party may be held liable in tort”); Gen. Elec. Credit Corp. v. Timbrook (1982), 170 W.Va. 143, 145, 291 S.E.2d 383 (“And, of course, if repossessions result in breaches of the peace, creditors are responsible for any torts they commit”); Northside Motors of Florida, Inc. v. Brinkley (Fla.1973), 282 So.2d 617, 624 (self-help repossession methods that breach the peace “would expose the creditor to tort liability”); McCall v. Owens (Tenn.App.1991), 820 S.W.2d 748, 752 (“When the repossessor uses force and breaches the peace, the repossessor may be liable for trespass, conversion, assault and battery and other torts”); 2 Anderson, Uniform Commercial Code (3d Ed.) 925, Section 9-609:7 (“Being unauthorized to repossess the collateral because of the breach of the peace, the secured party will be liable to the debtor in conversion for having wrongfully interfered with the debtor’s possession of the collateral”).

{¶ 30} Normally, a conversion occurs if a person takes another’s vehicle without the owner’s permission. See Toma, 92 Ohio St.3d at 592, 752 N.E.2d 281. R.C. 1309.609 provides a defense to such a conversion claim because it permits a repossessor to take possession of the vehicle, rendering the repossession lawful. This defense, however, depends on the absence of a breach of the peace. If a breach of the peace occurs, the repossessor cannot rely on R.C. 1309.609 to excuse its actions. Marcus v. McCollum (C.A.10, 2004), 394 F.3d 813, 820 (“If a breach of peace occurs, self-help repossession is statutorily precluded”). At the point the peace is breached, the repossessor’s exercise of dominion over the vehicle becomes wrongful, exposing the repossessor to liability for conversion.

{¶ 31} A breach of peace is:

[A] violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace, or, as is some times said, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence.

Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25, 29, 50 O.O.2d 47, 254 N.E.2d 683, quoting Akron v. Mingo (1959), 169 Ohio St. 511, 513, 9 O.O.2d 7, 160 N.E.2d 225. A breach of peace includes “ ‘all violations of public peace, order or decorum’ ” and “ ‘breaking or disturbing the public peace by any riotous, forceful or unlawful proceedings.’ ” Makepeace v. Chrysler Motors Corp. (May 8, 1981), 2d Dist. No. L-80-187, 1981 WL 5572, quoting Census Fed. Credit Union v. Wann (Ind.App.1980), 403 N.E.2d 348.

{¶ 32} In the case at bar, ARS repossessed three vehicles copurchased by James and R & R, as well as Carolyn’s vehicle. Three of the repossessions *583proceeded uneventfully. On February 7, 2006, ARS towed the Mountaineer from the parking lot of R & R’s office building. Although James “saw it go away,” he “didn’t have any time to respond.” ARS took the Monterey that James copurchased from his son’s driveway sometime during the night of February 7 and 8, 2006. That same night, ARS took Carolyn’s vehicle from the carport of the Ryans’ home. Neither James, his wife, nor his son knew that the repossessions had occurred until they awoke the next morning.

{¶ 33} Appellants acknowledge that the ARS agents did not threaten, incite, or commit any act of violence when they repossessed the three' vehicles on February 7 and 8, 2006. Appellants, however, argue that the ARS agents breached the peace when they entered onto private property to repossess the vehicles.

{¶ 34} Generally, no breach of peace occurs merely because the repossessor enters on a person’s driveway or carport to retrieve a vehicle. Geeslin v. Nissan Motor Acceptance Corp. (June 3, 1998), N.D.Miss. No. Civ. A. 1:97CV186-DA, 1998 WL 433932, affirmed (C.A.5, 2000), 228 F.3d 408 (table). See also Butler v. Ford Motor Credit Co. (C.A.5, 1987), 829 F.2d 568, 570 (holding that the removal of a vehicle from a private driveway in the early morning hours while the debtor was asleep did not constitute a breach of peace); Oaklaum Bank v. Baldwin (1986), 289 Ark. 79, 81, 709 S.W.2d 91 (same); Giles v. First Virginia Credit Servs., Inc. (2002), 149 N.C.App. 89, 102, 560 S.E.2d 557 (same); Ragde v. Peoples Bank (1989), 53 Wash.App. 173, 176-77, 767 P.2d 949 (same). “ ‘[I]n general, a mere trespass, standing alone, does not automatically constitute a breach of the peace.’ ” Pantoja-Cahue v. Ford Motor Credit Co. (2007), 375 Ill.App.3d 49, 55, 313 Ill.Dec. 650, 872 N.E.2d 1039, quoting Chrysler Credit Corp. v. Koontz (1996), 277 Ill.App.3d 1078, 1083, 214 Ill.Dec. 726, 661 N.E.2d 1171. See also Ivy, 612 So.2d at 1111 (“[E]ntering a private driveway to repossess collateral without use of force does not constitute a breach of peace”); 2 Anderson, Uniform Commercial Code (3d Ed.) 924, Section 9-609:6 (“[T]aking property from a driveway or other open area, even though technically trespassing, will not generally, by itself, make the repossession involve a breach of the peace”).

{¶ 35} Indeed, R.C. 1309.609 gives a repossessor a privilege to enter another’s land to effectuate a repossession, so long as the repossessor does not breach the peace. LeFevre (because former R.C. 1309.46 gave the secured party the right to take possession of the collateral upon default, the repossessor “had the right to enter [the debtor’s] property to repossess the car upon his default if such could be done, without a breach of the peace”). See also Callaway v. Whittenton (Ala.2003), 892 So.2d 852, 858 (the Alabama repossession statute based on U.C.C. 9-609 “gives a secured creditor the right to enter a debtor’s land for the purpose of repossession”); Pantoja-Cahue, 375 Ill.App.3d at 56, 313 Ill.Dec. 650, 872 *584N.E.2d 1039, quoting Koontz, 277 Ill.App.3d at 1084, 214 Ill.Dec. 726, 661 N.E.2d 1171 (the secured creditor enjoyed a “limited privilege” to enter the debtor’s property “ ‘for the sole and exclusive purpose of effectuating the repossession’ ”); Thompson v. First State Bank of Fertile (Minn.App.2006), 709 N.W.2d 307, 312 (“a secured party’s authority to take possession of collateral after default carries with it the privilege to enter another’s land for the purpose of taking possession of the collateral if the entry is reasonably necessary in order to take possession”); Sperry v. ITT Commercial Fin. Corp. (Mo.App.1990), 799 S.W.2d 871, 876-877 (the secured party “had an absolute legal privilege to enter [the debtor’s] property to peacefully repossess all collateral in the event of default”); Marine Midland Bank-Cent. v. Cote (Fla.App.1977), 351 So.2d 750, 752 (the right to self-help repossession in Florida’s version of former U.C.C. 9-503 implied “a limited privilege to enter on the debtor’s land”); Restatement of the Law 2d, Torts (1965), Entry Pursuant to Legislative Duty or Authority, Section 211 (“A duty or authority imposed or created by l