Berry's Restaurant, Inc. v. Aisling, L.L.C.Berry's Restaurant, Inc. v. Aisling, L.L.C.
Appellant/Cross-appellee
v.
Aisling, LLC
Appellee/Cross-appellant
DECISION AND JUDGMENT
* * * * *
Kenneth R. Bailey, Jessica D. Compton, and Danielle Kulik, for appellant/cross-appellee.
James W. Hart, and John M. Felter, for appellee/cross-appellant.
* * * * *
OSOWIK, J.
{¶ 1} This is an appeal from judgments of the Huron County Court of Common Pleas, which granted, in part, the complaint in replevin by plaintiff-appellant/cross-appellee, Berry‘s Restaurant, Inc. (hereafter “Berry“), denied the counterclaim for unjust
I. Background
{¶ 2} On June 23, 2020, Berry filed a complaint in replevin against Aisling. Berry alleged that it leased premises to operate a restaurant at 15 West Main Street, Norwalk, Huron County, Ohio, from a landlord, and the tenancy terminated due to a bank foreclosure. Aisling purchased the premises at the sheriff sale and took possession of the premises on February 12, 2020. Berry alleged that since then its personal property and chattel for operating a restaurant is in Aisling‘s possession and that Aisling is wrongfully detaining the same.
{¶ 3} The record shows that both Berry and Aisling are controlled by members of the same family, and Berry and the former landlord are controlled by the same person.
{¶ 4} Aisling answered, as amended, generally denying the allegations, and counterclaimed for unjust enrichment for the costs of utilities and repairs to equipment that stored and preserved Berry‘s perishable food. Berry answered appellee‘s counterclaim by generally denying all allegations.
{¶ 5} After court-ordered mediation resulted in an impasse, the two-day replevin and counterclaim bench trial occurred on December 18, 2020, and on January 6, 2021. During the bench trial the trial court judge conducted an on-site viewing of the disputed
{¶ 6} The trial court‘s January 25, 2021 judgment entry detailed its determinations of the replevin and unjust enrichment claims. First, the trial court determined that “any personal property not affixed to the building in any manner are subject to replevin and [Berry] is entitled to remove such property.” Second, the trial court found that the parties “had resolved among themselves the disposal of all food items that remained at the time of [the sheriff] sale.” Third, the trial court, using the 153 photos taken by the court reporter, determined the status of dozens of items in accordance with the following seven considerations: (1) “the extent to which any such item is attached or annexed to the property“; (2) “the appropriation to the use or purpose of that part of the realty with which it is connected“; (3) “the intention of the party making the annexation to make a permanent accession to the realty“; (4) “the nature of the property“; (5) “the degree of difficulty in removing such property“; (6) “the damage that would result from removal of
{¶ 7} On February 10, 2021, Berry filed a motion to stay the trial court‘s January 25 order or, alternatively, to hold either an evidentiary hearing for a more specific access order or to extend Berry‘s access to the premises for 14 days. Berry argued that Aisling was unreasonably obstructing Berry‘s access to the premises to remove its 70-years’ worth of personal property. Aisling denied obstructing Berry and opposed any time extension, but consented to the trial court ordering an evidentiary hearing to establish detailed rules for Berry‘s access until the original March 2 deadline.
{¶ 8} One source of dispute in this appeal is the sequence of events on February 24. Thirty minutes prior to the trial court‘s scheduled telephone conference with the parties to mediate the Berry‘s access to the premises, Berry filed a notice of appeal and did not raise that fact during the negotiations. Without knowledge of Berry‘s appeal, the trial court granted Berry‘s motion, in part, with time until March 8 to remove its property
{¶ 9} Berry filed its appellate brief setting forth four assignments of error:
- The trial court erred in failing to consider whether the property subject to the replevin action was a “fixture” or a “business fixture.”
- The trial court erred in determining that certain property subject to the replevin action was a “fixture” when it was a “business fixture.”
- The trial court erred in failing to consider Appellant‘s motion to stay execution of judgment after the notice of appeal was filed.
- The trial court erred in vacating the judgment entry dated February 25, 2021 granting appellant additional time to retrieve its property.
{¶ 10} Thereafter, Aisling filed its cross-appeal setting forth one assignment of error: “The Trial Court erred by finding that Appellee/Cross-Appellant was not entitled to damages as alleged in its counterclaim.”
II. Replevin
{¶ 11} “‘Replevin is a claim for wrongful detention of goods, but it does not require an unlawful taking. The action is strictly a possessory action, and it lies only in behalf of one entitled to possession against one having, at the time the suit is begun, actual or constructive possession and control of the property.‘” Eltibi v. Kocsis, 9th Dist. Summit No. 29885, 2021-Ohio-2911, ¶ 13, quoting Schneider v. Schneider, 178 Ohio App.3d 264, 2008-Ohio-4495, 897 N.E.2d 706, ¶ 14 (9th Dist.). Berry‘s burden in the replevin action is by the preponderance of evidence. Id. at ¶ 14, citing Schneider at ¶ 16; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.
A. Standard of Review
{¶ 12} Berry argues the appropriate standard of review for a replevin action is de novo because, as a matter of law, the trial court failed to use the “proper analysis” pursuant to
{¶ 13} Appellate review of a trial court‘s judgment in a civil replevin action is for the manifest weight of the evidence.1 Lewis v. Coup, 6th Dist. Sandusky No. S-10-0006, 2010-Ohio-4386, ¶ 28. “‘Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.‘” Id., quoting C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. We give the trier of fact‘s determinations of fact great deference. Id., citing Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); Eastley at ¶ 21 (“In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.“).
B. Goods or Chattel Subject to Replevin
{¶ 14} The owner of Berry testified at the bench trial that the replevin action is for all items not attached to the premises and where he did not intend the item to remain in the building forever. Berry concedes the trial court‘s January 25 order granted that request: “[A]ny property not affixed to the building in any manner are subject to replevin and the Plaintiff is entitled to remove such property.” However, Berry believes the trial court should have done more than just focus on how an item is affixed to the building.
{¶ 15} In support of its first and second assignments of error, Berry collectively argues that as a result of the trial court‘s failure to follow
{¶ 16} It is undisputed the underlying replevin action is not a tax case. Despite Berry‘s urgings to the contrary, the Ohio Supreme Court determined that the definitions found in
based on the court‘s comments in Funtime, it is clear that the common law test for fixtures established in Teaff and its progeny was altered only because of specific statutory provisions relating to taxation. It was not altered for other types of cases. Consistent with this conclusion, before and after the 1992 amendments to the taxation statutes, courts have applied Teaff and its progeny to cases that do not involve taxation.
BND Rentals, Inc. v. Dayton Power & Light Co., 2020-Ohio-4484, 158 N.E.3d 993, ¶ 35 (2d Dist.). Based on the foregoing, we find no trial court error in a non-tax case for failing to analyze whether the disputed items were “fixtures” or “business fixtures” pursuant to
2. “Fixture” or “Not a Fixture”
- 1st. Actual annexation to the realty, or something appurtenant thereto.
- 2d. Appropriation to the use or purpose of that part of the realty with which it is connected.
- 3d. The intention of the party making the annexation, to make the article a permanent accession to the freehold -- this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made. (Emphasis sic.)
{¶ 19} In addition, Berry does not point to anything in the record that the trial court presumed Aisling owned all disputed items or considered Berry had abandoned them. The trial court‘s January 25 order merely stated, “Any personal property remaining at the conclusion of the thirty (30) day period shall be deemed abandoned and may be appropriated by Defendant or disposed of by Defendant as they so choose.”
3. Owner‘s Intent
{¶ 20} Berry‘s replevin action arguments pivot on its owner‘s testimony at the bench trial and in an affidavit in the record that he never intended any “business fixtures” to remain with the building after the foreclosure because, although used by the restaurant
{¶ 21} The owner of Aisling testified that for very similar reasons, the disputed items continuously used at the premises for restaurant purposes were “fixtures” because they would continue to support a restaurant at the premises, which Aisling intended to open. Aisling‘s owner further testified that because the bank foreclosure listed Berry as a separate defendant from the owner, Aisling believed the sheriff sale, which is based on the mortgage foreclosed upon, included “everything [left behind] that the building was appropriate for, which it was a restaurant.
{¶ 22} The “real intention” of the owner of the chattel does not necessarily govern to prohibit the creation of a “fixture.” See Holland Furnace Co. v. Trumbull Sav. & Loan Co., 135 Ohio St. 48, 53, 19 N.E.2d 273 (1939). The apparent or legal intention to make it a “fixture” is sufficient. Id. at 53-54. As the Ohio Supreme Court explained:
His intention not to make it a part of the realty must not be secret, but may be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, the purpose and use for which the annexation is made, the utility in use or the indispensability of the combination when the chattel is once attached to the realty in the use of the whole, and the relationship of the owner of the chattel to the owner of the realty and to others who may
become interested in or owners of the property. The fact that a chattel attached to realty is or is not a fixture must appear from an inspection of the property itself, in the absence of actual notice to the contrary, or of such circumstances as would put a prudent person upon inquiry to ascertain the fact.
{¶ 23} It is undisputed the trial court judge personally conducted an inspection of the premises on December 18, 2020, and the parties’ intentions for the disputed items were presented to the trial court. We give great deference to the judge‘s evaluation of every item shown in the 153 photos.
{¶ 24} We reviewed the entire record and applicable law and find there is some competent, credible evidence going to all the essential elements of the replevin action, and the trial court‘s decision is not against the manifest weight of the evidence.
{¶ 25} Berry‘s first and second assignments of error are not well-taken.
C. Stay of Judgment Execution
{¶ 26} In support of its third assignment of error, Berry argues “there is clear error” when the trial court “denied ever having [received] a motion to stay although such motion was filed on February 10, 2021.” Berry further argued in the record that it had no duty to inform the trial court that it had filed a notice of appeal other than to file the documents in accordance with the Appellate Rules.
{¶ 28}
{¶ 29} Pursuant to
{¶ 30} We reviewed the entire record and applicable law and do not find the trial court abused its discretion when its March 2 order stated that Berry had not filed a post-appeal motion for stay under
{¶ 31} Berry‘s third assignment of error is not well-taken.
D. Time Extension
{¶ 32} In support of its fourth assignment of error, Berry argues the trial court erred by vacating its February 25 order granting Berry a negotiated six-day extension for
{¶ 33} “‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to adjudicate the case.’ * * * ‘If a court acts without jurisdiction, then any proclamation by that court is void.‘” (Citations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11; McAuley v. Smith, 82 Ohio St.3d 393, 395, 696 N.E.2d 572 (1998) (when a trial court acts post-appeal without jurisdiction, that action is a legal nullity). “The authority to vacate a void judgment * * * constitutes an inherent power possessed by Ohio courts.” Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus.
{¶ 34} The Ohio Supreme Court guides us that “the determination as to the appropriateness of an appeal lies solely with the appellate court.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 10. An appeal is perfected upon the filing of a notice of appeal, at which point “the trial court loses jurisdiction except to take action in aid of the appeal”4 but “retains jurisdiction over issues not inconsistent with the
{¶ 35} Berry argues that despite filing a notice of appeal seeking reversal of the trial court‘s January 25 order due to “improper” analysis, the trial court‘s post-appeal modification of that order with a time extension to remove items that benefitted from that “improper” analysis merely aids in executing the January 25 order. We disagree. Berry‘s faulty logic highlights the inconsistency between the outcome it seeks from the trial court and the outcome it seeks from this court on appeal. Berry is not seeking the trial court to issue a ruling in aid of the appeal; rather, Berry is seeking a trial court ruling notwithstanding the appeal it initiated. A trial court lacks jurisdiction to further adjudicate after a party files a notice of appeal where the underlying issues to be adjudicated are now with the court of appeals and are affected by the appeal. State ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 25-26.
{¶ 36} We reviewed the entire record and applicable law and find no trial court error when, on March 2, it vacated its void February 25 order after Berry filed its notice of appeal on February 24.
E. Unjust Enrichment
{¶ 38} In support of Aisling‘s cross-assignment of error, it argues the trial court erred by not awarding Aisling $6,003.09 in unjust enrichment damages for repairing and maintaining electricity to the walk-in freezer that preserved Berry‘s food, which solely benefitted Berry. Aisling further argues that it was required to “mitigate potential damages” because the repaired freezer and left-behind food were included in Berry‘s replevin action, although “the food items were long disposed of by agreement of the parties.”
{¶ 39} The owner of Aisling testified at the bench trial that the electric bills submitted into evidence were for the entire premises since the sheriff sale purchase. There is only one electric meter to the premises. She testified the sole concern for initiating post-sheriff sale electric service was to preserve Berry‘s food left behind in the walk-in freezer during the pendency of the replevin litigation. The sole concern for the repair bill for the walk-in freezer was a refrigerant leak, which, if not repaired, would have jeopardized Berry‘s food inside it during the litigation.
{¶ 40} The trial court denied Aisling‘s counterclaim stating the following:
[T]he Court finds that the costs to repair the walk-in freezer is not applicable since the Court finds the freezer to be a fixture. Further, the Court finds that the evidence is insufficient to award the costs of the electricity to run the freezer to maintain the frozen food. The Defendant could have allowed the removal of the food at any time, but chose not to and made their own decision to continue to keep it frozen. Further, the bills
submitted were for the entirety of the electricity of the property not just the freezers. The Defendant clearly benefited from the use of electricity for the building for purposes other than food storage.
{¶ 41} We review a trial court‘s determination on a claim of unjust enrichment for an abuse of discretion. Johnson‘s Island Property Owners’ Assoc. v. Cianciola, 6th Dist. Ottawa No. OT-20-011, 2021-Ohio-1341, ¶ 48-49. Once again, we give great deference to the trial court‘s factual findings stated in the record.
{¶ 42} To establish unjust enrichment, Aisling has the burden to prove it conferred a benefit on Berry, Berry had knowledge of the benefit, and the circumstances are such that it would be unjust for Berry to retain the benefit without compensating Aisling. Sediqe v. I Make the Weather Prods., Ltd., 6th Dist. Lucas No. L-15-1250, 2016-Ohio-4902, ¶ 13, citing Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20. Aisling‘s unjust enrichment claim recovery is limited by any benefit conferred on Berry gratuitously, by the actual value of the services rendered for Berry,
{¶ 43} We reviewed the entire record and applicable law and do not find the trial court abused its discretion when it denied Aisling‘s claim for unjust enrichment. We do not find the court‘s attitude was unreasonable, arbitrary or unconscionable.
{¶ 44} Aisling‘s cross-assignment of error is not well-taken.
III. Conclusion
{¶ 45} On consideration whereof, the judgments of the Huron County Court of Common Pleas are affirmed. Berry and Aisling are ordered to equally pay the divided costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Berry‘s Restaurant, Inc. v. Aisling, LLC H-21-003
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J. ____________________________
Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.