Durben v. Malek
2014 Ohio 2611
Ohio Ct. App.2014Background
- Anita and Bill (George) Durben sold ~130 acres (house and outbuildings) to niece Roxanne Malek in 2007 for $100,000, reserving a life estate for the Durbens in 30 acres (including the house); the agreement prohibited waste and gave Malek ownership of new leases (with limited proceeds to Sellers only with Buyer consent).
- After transfer, the Durbens continued to live there intermittently but the house and property deteriorated severely (trash, inoperable plumbing and furnace, collapsed floor joists, animal waste); health officials later found the house uninhabitable and the Durbens vacated.
- Malek (who had not inspected the interior at purchase) demanded the Durbens remove belongings in 2011; they removed some items within two weeks but left many others; Malek then removed and stored items of apparent value (appraised ~$1,098) and spent substantial sums to clean and repair the property.
- The Durbens sued Malek (replevin and conversion); Malek counterclaimed for waste, nuisance, and conversion (including retention of cell-tower lease rents). Case went to bench trial in Common Pleas; trial court entered judgment for Malek on counterclaims and against the Durbens on conversion/replevin.
- Trial court found: (1) the Durbens abandoned personal property left on the premises, so no conversion by Malek; (2) the Durbens committed waste causing significant damage and awarded Malek $40,000; (3) the Durbens converted cell-tower lease proceeds by entering a lease after sale without Malek’s consent and keeping $1,250 in rents.
Issues
| Issue | Durben's Argument | Malek's Argument | Held |
|---|---|---|---|
| Whether Durbens abandoned personal property left on premises, barring conversion claim | They contend property was not abandoned and Malek unlawfully removed chattels | Items were abandoned after eviction notice and two-week removal period; remaining items left indefinitely | Court: Durbens abandoned the property; no conversion by Malek |
| Whether Durbens committed waste requiring damages to owner (Malek) | Durbens argued Malek could not specify pre-purchase interior condition so damages unsupported | Malek showed severe deterioration, admitted ongoing neglect by Durbens, and presented repair/cleanup costs | Court: Found permissive/voluntary waste; awarded $40,000 damages to Malek |
| Whether Durbens could validly lease cell-tower rights and retain rents after sale | Durbens claimed life-tenant power to lease; thus rents belonged to them during life estate | Contract limited Buyer to ownership of leases (with Seller benefit only with Buyer consent); Durbens leased without consent and kept rents | Court: Contract controlled; Durbens converted lease proceeds; award for Malek |
| Whether emotional-distress claim survived summary judgment | Durbens asserted intentional infliction of emotional harm | Malek moved for partial summary judgment denying that claim | Court granted summary judgment to Malek on intentional infliction claim |
Key Cases Cited
- State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589 (2001) (definition of conversion)
- Joyce v. General Motors Corp., 49 Ohio St.3d 93 (1990) (conversion elements)
- Doughman v. Long, 42 Ohio App.3d 17 (12th Dist.) (definition of abandoned property)
- Reams v. Henney, 88 Ohio App. 409 (1950) (life tenant duty to preserve estate)
- Noble v. Tyler, 61 Ohio St. 432 (1900) (life tenant's inherent power to lease)