{¶ 2} The following facts give rise to this appeal. Gammel, a dentist, owned and operated a dental practice in Cleveland, Ohio. In 1995, Gammel solicited two dentists to his practice to keep it running while he attended to a personal medical problem that he thought was temporary. Elias, along with another dentist, serviced Gammel's existing patients exclusively. Both dentists began work at Gammel's practice knowing there was a possibility that Gammel may have to sell his practice.
{¶ 3} Sometime later, Gammel learned he would no longer be able to practice dentistry because of his medical condition. Gammel approached both dentists about buying his dental practice and office. Gammel and Elias began negotiating the sale of Gammel's dental practice and dental office. They agreed that Gammel's practice should be transferred January 1, 1997 and Elias would buy the practice and the building over the course of seven years.
{¶ 4} As of April 1997, Elias had not presented documents or money to Gammel for the purchase of his building and practice as agreed. Gammel told Elias he wanted her out and that he would sell his business to someone else. Elias refused to leave and continued to treat Gammel's patients. Finally, after several encounters, in May 1997, Elias presented a written option agreement and $6,500 to Gammel to hold the practice and building available for purchase until June 1, allowing her time to obtain the proper paperwork. Another purchase price was agreed to by both parties; however, nothing was reduced to writing.
{¶ 5} Elias continued to avoid the purchase of the practice and the building. In August, she moved out, without notice, taking a dental chair, a secretary's chair, a light, patient records, day sheets, ledgers, and funds belonging to Gammel. Elias subsequently set up a dental practice down the street using Gammel's telephone number. Gammel demanded his equipment and patient records back, but Elias refused.
{¶ 6} In January 2002, Elias filed a cause of action against Gammel seeking recovery for monies owed under a theory of implied contract and conversion of checks, which had been made payable to Elias and cashed by Gammel. Gammel counterclaimed seeking damages for conversion of his dental practice including, but not limited to, equipment and patient records. The case proceeded to jury trial and at the close of Gammel's case, Elias moved for a directed verdict as to Gammel's conversion claim. The court denied the motion and sent the case to the jury. The jury returned a verdict in favor of Elias and against Gammel on the implied contract claim in the amount of $17,800. In addition, the jury returned a verdict in favor of Elias and against Gammel on her conversion claim in the amount of $3,018. Finally, the jury returned a verdict in favor of Gammel and against Elias on his claim for conversion in the amount of $64,461. No interrogatories were attached to the jury verdict forms. Elias moved for a judgment notwithstanding the verdict, and the court denied said motion.
{¶ 7} Elias timely appeals the decisions of the trial court advancing three assignments of error for our review.
{¶ 8} "I. The court erred in not granting a directed verdict on the defendant's conversion claim."
{¶ 9} Elias appeals arguing that a "dental practice" is intangible property that cannot be converted or stolen. Furthermore, Elias argues that there is no evidence to support the value of said "practice." Finally, Elias alleges that no tangible objects were stolen and thus both motions were improperly denied.
{¶ 10} A motion for directed verdict shall be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. Civ.R. 50(A); Crawford v.Halkovics (1982),
{¶ 11} In Tabar v. Charlie's Towing Serv., Inc. (1994),
{¶ 12} "Conversion is the wrongful control or exercise of dominion over the property belonging to another inconsistent with or in denial of the rights of the owner. Bench Billboard Co. v. Columbus (1989),
{¶ 13} In the instant case, Gammel pursued a theory that Elias converted his dental practice while she was" negotiating" with Gammel to buy his practice. Gammel stated that Elias stole his dental practice, including his patients, his telephone number, his equipment, his patient records, and funds, and set up shop down the street. Elias admitted to taking two dental chairs but claims they were hers. Elias admitted to taking approximately $8,000 in insurance checks belonging to Gammel. She admitted that Gammel demanded everything back and she refused to return the chairs and the money. She denied taking any charts, day sheets or ledgers.
{¶ 14} Prior to trial, Gammel sold his dental office but still sought recovery for the loss of his dental practice. In closing statements, Gammel's attorney requested damages in the amount of $114,000 for the conversion of the "dental practice." A review of the record shows numerous figures and suggestions as to what each party owed the other. Nonetheless, the jury returned a verdict in favor of both Elias and Gammel awarding a sum of money to both; however, no interrogatories were attached to the jury verdict to indicate how they determined said amounts. Gammel argues that his "dental practice," like the dental equipment, is personal property which can be converted. Elias argues that a cause of action for conversion cannot be maintained because the dental practice was intangible and, furthermore, nothing tangible was taken. Therefore, the issue at bar is whether a dental practice can be converted.
{¶ 15} The Supreme Court of Ohio in Zacchini v. Scripps-HowardBroadcasting Co.,
{¶ 16} In Schafer v. RMS Realty (2000),
{¶ 17} That being said, "we believe the correct approach is to analyze the particular type of intangible asset, to see if allowing a conversion claim makes senses." Schafer,
{¶ 18} Because of the alleged wrongful acts of Elias, Gammel lost his ability to sell his dental practice. Elias moved Gammel's "practice" down the street and essentially rendered his "practice" nonexistent. Elias accomplished this by dragging her feet during negotiations with Gammel, presenting a written option agreement and money to hold the practice and building available for her to purchase, and then leaving without a word. Elias started her practice down the street using Gammel's original telephone number; consequently, all of Gammel's patients were diverted to Elias's new office. Elias left Gammel without a practice to sell. We find these facts support a claim for conversion.
{¶ 19} Furthermore, the damages were readily ascertainable because Gammel and Elias had negotiated a price for which she could buy the practice. Under these facts, there is no logical reason to preclude a claim for conversion.
{¶ 20} Finally, we note that courts in other jurisdictions have allowed claims for conversion of assets more intangible than Gammel's dental practice. See, e.g., Schafer v. RMS Realty (2000),
{¶ 21} For these reasons, we find that the trial court did not err in denying Elias's motion for directed verdict. The first assignment of error is overruled.
{¶ 22} "II. The court erred in not granting judgment notwithstanding the verdict as the verdict in favor of defendant is contrary to law and against the manifest weight of the evidence."
{¶ 23} The standard for granting a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial pursuant to Civ.R. 50(B) is the same as that for granting a motion for a directed verdict pursuant to Civ.R. 50(A). Texler v. D.O. Summers Cleaners Shirt LaundryCo. (1998),
{¶ 24} In determining whether a trial court's judgment is against the manifest weight of the evidence, we are guided by the principles stated in Arnett v. Midwestern Ent., Inc. (1994),
{¶ 25} The measure of damages in a conversion action is the value of the property at the time it was converted. Tabar v. Charlie's TowingServ., Inc. (1994),
{¶ 26} In Landskroner v. Landskroner (2003),
{¶ 27} In the instant case, unlike Landskroner, Gammel's dental practice is identifiable personal property in which the measure of damages can be readily ascertained. The record reveals numerous figures addressing the viability of the practice, the asking price, and the negotiated price between Gammel and Elias. In addition, there is testimony addressing the value of the equipment that Gammel alleged Elias stole. A judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence.
{¶ 28} The second assignment of error is overruled.
{¶ 29} "III. Plaintiff was denied a fair trial when improper character evidence was offered by defendant."
{¶ 30} The trial court has broad discretion in the admission or exclusion of relevant evidence at trial. State v. Combs (1991),
{¶ 31} Civ.R. 61 provides that an error or defect in the proceeding which does not affect the substantial rights of the complaining party may be disregarded as harmless. Pursuant to this harmless error rule, the existence of error does not require reversal of a judgment unless the error is materially prejudicial to the complaining party. Fada v.Information Sys. Networks Corp. (1994),
{¶ 32} Elias does not state how this alleged error was materially prejudicial. Furthermore, defense counsel, upon cross-examination, elicited the same testimony complained of on direct examination.
{¶ 33} The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant his 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 Cuyahoga County 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, P.J., and Calabrese, Jr., J., concur.