Busch v. Hardway , 2014 Ohio 2681 ( 2014 )

[Cite as Busch v. Hardway, 2014-Ohio-2681.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHEILA BUSCH : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
AMY HARDWAY : Case No. 2013CA0021
:
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton
Municipal Court, Case No.
CVH 1200019
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 11, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
BRIAN W. BENBOW ROBERT A. SKELTON
605 Market Street 309 Main Street
Zanesville, OH 43701 Coshocton, OH 43812
Coshocton County, Case No. 2013CA0021 2
Baldwin, J.
{¶1} Appellant Sheila Busch appeals a judgment of the Coshocton Municipal
Court dismissing her complaint for replevin and conversion of a horse against appellee
Amy Hardway.
STATEMENT OF FACTS AND CASE
{¶2} Appellant traveled to Nebraska on September 8, 2011, and returned to
Ohio on November 28, 2011. On October 9, 2011, appellant’s husband sold her quarter
horse named Dusty to appellee for $400.00. When appellant came home and found the
horse missing, she called the Coshocton County Sherriff to report the horse as stolen.
{¶3} When Deputy Michael White responded to the theft complaint, appellant
told him that her ex-husband sold the horse to appellee. In reality, appellant and her
husband were still married, although they had been separated for years. The deputy
did not press charges.
{¶4} Appellant filed the instant action seeking replevin of the horse and
damages for conversion of the horse from appellee. The case proceeded to bench trial
in the Coshocton Municipal Court. On June 1, 2012, the court entered judgment on the
replevin action in favor of appellee, and issued findings of fact on June 25, 2012 at
appellant’s request. On July 23, 2012, the court issued a nunc pro tunc judgment
assessing court costs to appellant.
{¶5} Appellant filed a notice of appeal with this Court. We dismissed the
appeal for want of a final appealable order, as the court had not yet ruled on the
conversion action. Following a hearing, the court dismissed the conversion claim on
August 23, 2013.
Coshocton County, Case No. 2013CA0021 3
{¶6} Appellant assigns two errors to this Court on appeal:
{¶7} “I. THE TRIAL COURT’S JUNE 25, 2012 JUDGMENT ENTRY
GRANTING JUDGMENT TO APPELLEE AS TO ALL OF APPELLANT’S CLAIMS WAS
AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶8} “II. THE TRIAL COURT DID NOT HAVE JURISDICTION TO MODIFY
ITS JUNE 1, 2012 JUDGMENT ENTRY WHEN IT MODIFIED THE JUNE 1, 2012
JUDGMENT ENTRY ON JULY 23, 2012 IN REGARD TO COURT COSTS. THE TRIAL
COURT THUS COMMITTED PREJUDICIAL ERROR BY TAXING $707.38 IN COURT
COSTS TO APPELLANT WHEN THE JUNE 25, 2012 JUDGMENT ENTRY DID NOT
ORDER COURT COSTS IN THAT MANNER.”
I.
{¶9} Appellant argues that the court’s judgment is against the manifest weight
and sufficiency of the evidence.
{¶10} A judgment supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as against
the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978),
54 Ohio St. 2d 279, 376 N.E.2d 578. As the trier of fact, the judge is in the best position
to view the witnesses and their demeanor in making a determination of the credibility of
the testimony. “[A]n appellate court may not simply substitute its judgment for that of
the trial court so long as there is some competent, credible evidence to support the
lower court's findings.” State ex rel. Celebrezze v. Environmental Enterprises, Inc.
(1990), 53 Ohio St. 3d 147, 154, 559 N.E.2d 1335.
Coshocton County, Case No. 2013CA0021 4
{¶11} Replevin is solely a statutory remedy in Ohio. America Rents v. Crawley,
77 Ohio App. 3d 801, 804, 603 N.E.2d 1079 (1991). R.C. 2737.03 permits the plaintiff,
in an action for recovery of specific property, to file a prejudgment motion which, if
accompanied by a proper affidavit and bond, will allow the plaintiff to recover
possession of the property at issue. Id. at 803. Replevin is solely a prejudgment
remedy; when property has not been seized or where the defendant has retained
possession by posting bond prior to the entry of final judgment, the action converts from
one in replevin to one in conversion and only damages are recoverable. Id. at 804.
Although appellant did not file an affidavit as required by R.C. 2737.03, the court heard
the action on its merits and dismissed the action on the basis that appellant did not
prove sole ownership of the horse.
{¶12} The elements of a conversion action are: (1) plantiff’s ownership or right
to possession of the property at the time of the conversion, (2) defendant’s conversion
by a wrongful act or disposition of plaintiff’s property rights, and (3) damages. Dice v.
White Family Companies, Inc., 173 Ohio App. 3d 472, 878 N.E.2d 1105, 2007-Ohio-
5755, ¶17. The court also dismissed the conversion action on the basis that appellant
did not prove sole ownership of the horse.
{¶13} The trial court made specific findings concerning appellant’s credibility. In
the court’s August 23, 2013 judgment, the court incorporated its findings of fact issued
on June 25, 2012, and also concluded that appellant failed to prove that she was the
sole owner of the horse at the time her husband sold the horse to appellee. The court
specifically found that appellant’s testimony was not credible. Finding of Fact 10. The
court found that her testimony as to the value of the horse was not credible. Finding of
Coshocton County, Case No. 2013CA0021 5
Fact 8. The court did not believe appellant’s testimony that she acquired the horse in
2002 as a gift from her father and that its value was $20,000.00. Finding of Fact 6. The
court believed the testimony of the deputy that appellant told him she obtained the
information as to where the horse was located from her husband, and disbelieved her
denial of this statement. Finding of Fact 4.
{¶14} The trial court is in a better position than this court to judge the credibility
of the witness, as he was able to view her demeanor at the time she testified. The
judge’s decision regarding her credibility and conclusion that she did not prove she was
the sole owner of the horse is supported by competent, credible evidence.
{¶15} On October 6, 2011, appellant signed a bankruptcy petition stating that
she owned no animals. This petition was filed with the bankruptcy court on October 24,
2011. Although she claimed to have family members caring for the horse while she was
in Nebraska, no one notified her that the horse was missing as of October 9, 2011; she
testified that she did not know the horse was gone until she returned home. After
reporting the horse stolen, she told the deputy that her ex-husband sold the horse to
appellee, but she was still married at the time. While appellant places great emphasis
on the fact that only her name is on the registration with the American Quarter Horse
Association and thus she is the only one who could sell the horse, her own expert
admitted that the registration is for purposes of breeding and showing, and a horse can
be transferred without transferring the registration paperwork.
{¶16} Appellant’s testimony concerning the value of the horse was also
contradictory. The complaint alleged that the horse was worth $15,000.00. Her
amended bankruptcy petition valued the horse at $1,500.00. She testified at the
Coshocton County, Case No. 2013CA0021 6
hearing that the horse was worth $40,000.00-$50,000.00, while later testifying that the
same horse was worth $1,500.00. Appellant further gave contradictory testimony
concerning how and when she acquired the horse, and the age of the horse.
{¶17} The court’s finding that appellant’s testimony was not credible and she did
not prove that she was the sole owner of the horse at the time her husband sold it to
appellee is not against the manifest weight and sufficiency of the evidence. The first
assignment of error is overruled.
II.
{¶18} Appellant argues that the court had no jurisdiction to modify the final
appealable order of June 25, 2012, to assess court costs to appellant. The June 25,
2012, judgment was not a final, appealable order, and the appeal from this judgment
was dismissed by this Court on that basis. Therefore, the court retained jurisdiction to
amend its earlier judgment to assess court costs.
{¶19} The second assignment of error is overruled.
Coshocton County, Case No. 2013CA0021 7
{¶20} The judgment of the Coshocton Municipal Court is affirmed. Costs are
assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Gwin, J. concur.