WINDWARD ENTERPRISES, INC. v. VALLEY CITY DEVELOPMENT GROUP LLC, et al.
C.A. No. 18CA0001-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 26, 2019
2019-Ohio-3419
STATE OF OHIO COUNTY OF MEDINA APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 15CIV1092
SCHAFER, Presiding Judge.
{¶1} Plaintiff/Counterclaim Defendant-Appellant, Windward Enterprises, Inc. (“Windward“) appeals the judgment of the Medina County Court of Common Pleas. For the reasons that follow, we affirm.
I.
{¶2} Windward filed a complaint in the Medina County Court of Common Pleas against Valley City Development Group, LLC (“Valley City“), Hat Creek Co., Inc., Shannondoah LLC (“Shannondoah“), Sean Lackey, Michelle Lackey, and Gandalf‘s Pub, alleging breach of a lease agreement and conversion of property. Windward is an Ohio corporation whose principals are Bruce Iacovelli and Joyce Hicks. Defendant-Appellee, Denise Pozderac, and Defendant/Counterclaim Plaintiff, Bryan Weber, are the principals of Defendant/Counterclaim Plaintiff, Valley City. The defendants all filed separate answers. Sean Lackey, Michelle Lackey, and Gandalf‘s Pub filed counterclaims against Windward alleging abuse of process. Valley City subsequently filed an Amended answer and counterclaim alleging cognovit judgment on a promissory note, breach of a loan agreement, breach of a security agreement, replevin, and breach of lease. Bryan Weber filed a counterclaim against Windward alleging negligence and violation of Ohio‘s Dram Shop Act.
{¶3} The trial court granted Windward leave to file an amended complaint. Windward‘s amended complaint added Denise Pozderac as a defendant and alleged the following claims: (1) breach of lease against Valley City; (2) conversion of property against Valley City; (3) fraud against Pozderac and Valley City; and (4) piercing the corporate veil against Weber and Pozderac.
{¶4} This matter ultimately proceeded to a four day jury trial on Windward‘s amended complaint against Defendant-Appellee Denise Pozderac, Defendant/Counterclaim Plaintiff-Appellee Valley City, Defendant/Counterclaim Plaintiff-Appellee Bryan Weber, Shannondoah, and Hat Creek, and on the counterclaims of Valley City, Weber, and Hat Creek against Windward. During trial, the trial court granted Windward‘s oral motion to dismiss its claims against Weber, Pozderac, Hat Creek, and Shannondoah. The trial court also granted Valley City‘s oral motion to dismiss its counterclaim against Windward for replevin. Finally, the trial court granted Windward‘s motion for directed verdict as to Hat Creek‘s counterclaims and thereafter dismissed the counterclaims.
{¶5} The remaining claims were submitted to the jury following trial and the jury returned the following verdicts: (1) in favor of Valley City and against Windward on Valley City‘s breach of loan agreement claim in the amount of $10,470.00; (2) in favor of Valley City and against Windward on Valley City‘s breach of lease claim in the amount of $28,723.00; (3) in favor of Windward and against Weber on Weber‘s Dram Shop Act claim; (4) in favor of Valley City on Windward‘s breach of lease claim; and (5) in favor of Windward on Windward‘s conversion claim in the amount of $0.00.
{¶7} Windward subsequently filed contemporaneous motions to vacate judgment and for judgment notwithstanding the verdict or for a new trial. Windward‘s motion to vacate was made pursuant to
{¶8} Windward filed this timely appeal, raising three assignments of error for our review.
II.
Assignment of Error I
The court erred in denying [Windward]‘s motion for judgment [notwithstanding the verdict] and a new trial as the jury‘s verdict in regard to damages on [Windward]‘s conversion claim was clearly unsupported by the evidence.
{¶9} Although Windward‘s first assignment of error states that the trial court erred in denying its motion for judgment notwithstanding the verdict and a new trial, Windward concedes in the argument portion of the assignment of error that the trial court did not err in denying its motion for judgment notwithstanding the verdict and instead only challenges the trial court‘s denial of its motion for a new trial based on
{¶10} The facts relevant to this assignment of error are as follows. Windward entered into a lease agreement with Shannondoah to rent a building where it planned to run a restaurant. Contemporaneously, Windward entered into an asset purchase agreement with Hat Creek to purchase certain restaurant equipment to be used at the restaurant location. Pursuant to the agreement, the purchase price of the equipment was $200,000.00. Windward was to pay a total of $100,000.00 to Hat Creek on or before the closing date of the agreement and the remaining $100,000.00 was to be paid to Hat Creek over a five year period at 5 percent interest. Windward executed a promissory note evidencing the balance of the purchase agreement together with a security agreement pledging the assets as security for payment of its obligation pursuant to the note. Pursuant to the security agreement, the assets were to be kept and maintained at the restaurant except by prior written consent of Hat Creek. Shannondoah subsequently sold the building where the restaurant was located to Valley City and assigned Valley City the lease agreement it had with Windward.
{¶12} Windward continued to make payments under the new lease agreement for a few years before choosing to move its restaurant to a new location. Windward took some of the restaurant equipment subject to the original security agreement to use at the new location, but left a significant amount of equipment at the original location. After Windward moved from the location, Ms. Pozderac, a principal of Valley City, visited the property and discovered that the equipment had been moved and that the property was in a state of disrepair. Ms. Pozderac believed Windward had abandoned the property and changed the locks. Shortly thereafter, Mr. Iacovelli, a principal of Windward, attempted to reenter the property with a contractor in order to clean out the property and make minor repairs, but was prevented from entering due to the locks being changed.
{¶13} The present litigation followed and ultimately proceeded to a jury trial. Following deliberations, the jury found that Valley City had converted Windward‘s property, but did not award Windward any monetary damages. The jury also found that Windward had breached the loan agreement and awarded Valley City $10,470.00 in damages. Windward
moved for a new trial on the basis that there was an error in the amount of recovery, or, in the alternative, that the judgment was not sustained by the evidence. Following a hearing, the trial court denied Windward‘s motion, stating only that Windward had “failed to satisfy any of the grounds necessary to justify ordering a new trial as set forth in
{¶14}
A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
* * *
(5) Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property;
(6) The judgment is not sustained by the weight of the evidence; * * * [.]
“When considering a motion for new trial, the trial court must abstain from disturbing the verdict unless it determines that the jury‘s damage assessment was so overwhelmingly disproportionate as to shock reasonable sensibilities.” Allied Erecting & Dismantling Co., Inc. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, ¶ 60 (7th Dist.).
{¶15} “This Court‘s standard of review of an order denying a motion for a new trial depends upon the grounds of the
{¶16} To prevail on a claim of conversion, a plaintiff must demonstrate “(1) that it owned or had the right to control the property at the time of the conversion, (2) the defendant‘s wrongful act or disposition of the plaintiff‘s property rights, and (3) damages.” Pelmar USA, L.L.C. v. Mach. Exchange Corp., 9th Dist. Summit No. 25947, 2012-Ohio-3787, ¶ 12. The general rule for the measure of damages in a conversion claim is the value of the property at the time of the conversion. Schaffer v. First Merit Bank, N.A., 186 Ohio App.3d 173, 2009-Ohio-6146, ¶ 28 (9th Dist.), quoting Erie R. Co. v. Steinberg, 94 Ohio St. 189 (1916), paragraph two of the syllabus. “However, the Supreme Court of Ohio has also held that ‘[i]n Ohio, as elsewhere, it is a rule of universal application in a tort action, that the measure of damages is that which will compensate and make the plaintiff whole.‘” Id. at ¶ 29, quoting Pryor v. Webber, 23 Ohio St.2d 104, 107 (1970). Additionally, once a plaintiff has proven its claim for conversion, it is entitled to at least nominal damages. Fisher v. Barker, 159 Ohio App.3d 745, 2005-Ohio-1039, ¶ 11.
{¶17} On appeal, Windward argues first that the trial court abused its discretion because the jury‘s award in this case is not supported by the evidence and is a manifest injustice. See
{¶18} A new trial should be granted pursuant to
When considering a
Civ.R. 59(A)(6) motion for a new trial, a trial court must weigh the evidence and pass on the credibility of the witnesses. [Yet], the trial court assesses the weight and credibility in a more limited sense than would a jury; the court is to determine, in light of its broad discretion, whether a manifest injustice has occurred. The job of the appellate court is to review whether the trial court abused its discretion in making this determination. Absent some indication that the trial court was unreasonable, arbitrary or unconscionable in exercising its discretion, the judgment of the trial court will not be disturbed. (Internal quotations and citations omitted.)
Marsico v. Skrzypek, 9th Dist. Lorain No. 13CA010410, 2014-Ohio-5185, ¶ 55, citing Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke, 9th Dist. Medina No. 10CA0138-M, 2011-Ohio-6201, ¶ 11. In contrast,
{¶19} In this case, both Windward and Valley City presented expert testimony relating to the value of the converted property. Although Windward‘s expert estimated the value of the property at $82,500, Valley City‘s expert determined the fair market value of the property to be $10,470.38.
{¶20} “In Ohio, it has long been held that the assessment of damages is so thoroughly within the province of the jury that a reviewing court is not at liberty to disturb the jury‘s assessment absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive.” (Emphasis sic.) Price v. KNL Custom Homes, Inc., 9th Dist. Summit No. 26968, 2015-Ohio-436, ¶ 46, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 654 (1994). “[A] jury ‘may separate the testimony as they wish according to what is credible to them.‘” Id., quoting State v. Mastel, 26 Ohio St.2d 170, 177 (1971). Additionally, “[a] jury is ‘free to believe all, part, or none of the testimony of each witness.‘” Id. quoting State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993).
{¶21} Regarding expert witness testimony, the trial court instructed the jury in this case as follows:
You had the testimony of two witnesses here that were considered to be expert witnesses that gave you testimony. Their testimony is admitted for whatever assistance it may provide to help you arrive at a just verdict. The determination about the quality of their testimony is to be made by you and you alone.
Additionally, the trial court gave the following instruction regarding possible damages on Windward‘s conversion claim:
If you find by the greater weight of the evidence that [Windward] proved its claim, then you must further decide whether [Valley City]‘s conduct caused [Windward] to suffer any damages and, if so, in what amount.
{¶22} Although the jury found Valley City had converted Windward‘s property, it is not clear how the jury arrived at the damages award of $0.00 since neither party requested jury interrogatories. See
{¶23} Nonetheless, a review of the record shows that although the trial court did not instruct the jury as to set off, Windward anticipated during closing argument that the jury would consider set off of Windward‘s damages from any damages the jury might find it owed to Valley City for its claims against Windward. The parties did not dispute that the Windward still owed Valley City $10,470.38 on the promissory note. Valley City also presented evidence at trial suggesting that Windward‘s breach of the lease agreement caused them over $46,000.00 in damages. Although the jury awarded Valley City $10,470.00 on its claim for breach of the loan agreement, the jury only awarded Valley City $28,723.00 on its claim for breach of the lease.
{¶24} Therefore, based upon the foregoing, we cannot say that the trial court abused its discretion when it overruled Windward‘s motion for a new trial.
{¶25} Windward‘s first assignment of error is overruled.
Assignment of Error II
The court erred in refusing to apportion the court costs when [Windward] prevailed on three of the five counts submitted to the jury.
{¶26} In its second assignment of error, Windward contends that the trial court erred in assessing all of the costs of this action to Windward since it prevailed on multiple causes of action. We disagree.
{¶27} Following the jury trial, the trial court issued a judgment entry assessing all costs to Windward. Windward thereafter filed a motion to vacate judgment pursuant to
any of the
{¶28} We review a trial court‘s ruling pursuant to
{¶29}
On motion and upon such terms as are just, the court may relieve a party a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason justifying relief from the judgment. * * * [.]
To prevail on a
{¶30} In denying Windward‘s motion, the trial court did not expressly address Windward‘s
[Windward] prevailed on some causes of action, the Defendants were the overall prevailing party.” Thus, it is not apparent from the language of the journal entry whether the trial court determined that Windward did not assert proper
{¶31} First, although the trial court did not specifically address Windward‘s
{¶32} Windward also asserts the trial court should have vacated the judgment pursuant to
{¶33} In support of its
{¶34} Nonetheless, since the trial court did not specifically address Windward‘s
court otherwise directs.” The Supreme Court of Ohio has held that the phrase “‘unless the court otherwise directs’ grants the court discretion to order that the prevailing party bear all or part of his or her own costs.” Vance v. Roedersheimer, 64 Ohio St.3d 552, 555 (1992). The Supreme Court further stated, however, that the phrase did not empower the court to award costs to a non-prevailing party. Id. A prevailing party is generally the party in whose favor the decision, verdict, or judgment are rendered. Moga v. Crawford, 9th Dist. Summit No. 23965, 2008-Ohio-2155, at ¶ 6. This includes:
[t]he party to a suit who successfully prosecutes the action * * * , prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered * * * may be the party prevailing in interest, and not necessarily the prevailing person. To be such does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who had made a claim against the other, has successfully maintained it.
(Internal quotations and citations omitted.) (Emphasis added.) Id. at ¶ 6.
{¶35} The jury in this case returned the following verdicts and the trial court entered judgment as follows: (1) in favor of Valley City and against Windward on Valley City‘s breach of loan agreement claim in the amount of $10,470.00; (2) in favor of Valley City and against Windward on Valley City‘s breach of lease claim in the amount of $28,723.00; (3) in favor of Windward and against Weber on Weber‘s Dram Shop Act claim; (4) in favor of Valley City on Windward‘s breach of lease claim; and (5) in favor of Windward on Windward‘s conversion claim in the amount of $0.00. Thus, although Windward prevailed on two of the five issues, it was not awarded any damages. On the other hand, Valley City was awarded $39,193.00 in damages for both of its causes of action.
{¶36} Windward asserts that, although it did not prevail on all of the causes of action in this case, it did prevail on two of the five causes of action: its own conversion claim and the
defense of Weber‘s Dram Shop counterclaim. Nonetheless, while Windward contends it must be considered a prevailing party in this case, it does not explain why either of these claims were the major issue, or one of, the major issues in this case nor does Windward explain why the trial court‘s determination
{¶37} Based on the foregoing, we cannot conclude that the trial court abused its discretion when it denied Windward‘s motion to vacate. Windward‘s second assignment of error is overruled.
Assignment of Error III
The court erred in admitting into evidence a security agreement which was never signed by [Windward] in favor of [Valley City] nor assigned to it.
{¶38} In its third assignment of error, Windward contends that the trial court erred in admitting a security agreement into evidence over objection.
{¶39} Windward‘s appellate counsel conceded during oral argument that Windward failed to object to the admission of the security agreement at issue. Despite this failure, Windward‘s appellate counsel argued for the first time at oral argument that that failure should not be dispositive in this case because it was “manifest in the record that they were objecting” to the admission of the security agreement. However, since Windward did not make this argument in its merit brief, we decline to address it. See App.R. 12(A)(2).
{¶40} Moreover, a review of the transcript shows that despite any prior discussion on the matter, Windward‘s trial counsel explicitly stated Windward had no objection to the admission of the security agreement as evidence. Specifically, when Valley City‘s trial counsel moved to admit the security agreement, the following exchange took place:
The [c]ourt: Then you want to move your exhibits into evidence?
[Valley City‘s trial counsel]: I would.
* * *
[Valley City‘s trial counsel]: Number 2, the Security Agreement.
[Windward‘s trial counsel]: No objection.
The [c]ourt: It‘s in.
“It is well settled that the failure to timely object to a possible error results in a forfeiture of the issue for purposes of appeal.” Skrzypek, 2014-Ohio-5185 at ¶ 6. Although the plain error doctrine may be applied in civil matters “in the rarest of circumstances,” id., Windward did not raise a plain error argument in its merit brief and we decline to do so for it. See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that can support [an] assignment of error, it is not this [C]ourt‘s duty to root it out.“).
{¶41} Windward‘s third assignment of error is overruled.
III.
{¶42} Windward‘s assignments of error are overruled. Therefore, the judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, J. CONCURS.
HENSAL, J. CONCURRING IN JUDGMENT ONLY.
{¶43} Appellant Windward argued in its third assignment of error its objections to the admission of and use of, for any purpose, Appellees’ Exhibit 2, the Security Agreement between Hat Creek and Windward.
APPEARANCES:
STEVE C. BAILEY, Attorney at Law, for Appellant.
ERIC MICHENER and KIMBERLY HALL, Attorneys at Law, for Appellees.