Patel v. Strategic Group, L.L.C. , 2020 Ohio 4990 ( 2020 )

[Cite as Patel v. Strategic Group, L.L.C., 2020-Ohio-4990.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BIPIN PATEL, :
Plaintiff-Appellee, :
No. 109043
v. :
STRATEGIC GROUP, L.L.C., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART AND VACATED IN PART
RELEASED AND JOURNALIZED: October 22, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-897461
Appearances:
Kenneth J. Fisher, Co., L.P.A., Kenneth J. Fisher, and
Dennis A. Nevar, for appellee.
The Law Office of Jaye M. Schlachet, Eric M. Levy, and
Jaye M. Schlachet, for appellant.
RAYMOND C. HEADEN, J.:
Defendant-appellant Strategic Group, L.L.C. (“Strategic Group”)
appeals the trial court’s order entering judgment in favor of plaintiff-appellee Bipin
Patel (“Patel”) and against Strategic Group on Patel’s claims of breach of contract
and conversion, with an award of damages in the amount of $50,000. For the
reasons that follow, we affirm in part and vacate in part.
I. Factual and Procedural History
On February 13, 2018, Strategic Group purchased the commercial
real estate located at 1877 Triplett Boulevard, Akron, Ohio for $95,000 (“real
property”). Strategic Group then advertised the real property for sale through the
online website BizBuySell.
Patel, a resident of Alabama, communicated several times with Shadi
Taha (“Taha”), a co-manager of Strategic Group, to discuss the real property. On
March 5, 2018, Taha indicated via text message that the convenience store located
on the real property had been subject to a lease agreement. According to Patel, Taha
advised him that the underlying lease agreement was expiring, and Patel could
either renew the lease or opt to run the convenience store on his own. Taha’s text
message read “renew the lease or take over!!!” Patel’s intent was to purchase the
real property and to personally operate the convenience store — he did not want the
convenience store subject to an underlying lease agreement.
Taha provided differing testimony. Taha claimed he informed Patel
the lease agreement was in place with a few years remaining on the underlying lease.
Per Taha, Patel asked if Strategic Group would negotiate with the current tenant and
attempt to terminate the lease agreement. Taha notified Patel that Strategic Group
would not attempt such negotiations, but Patel could pursue those options once he
owned the real property.
Patel, along with three other individuals, traveled to Ohio to inspect
the real property in early March 2018. On March 10, 2018 (“the March meeting”),
Patel and his associates met Taha at a local Starbucks. Patel had not retained an
attorney at that point in time.
The parties provided contrary testimony regarding the documents
exchanged at the March meeting. Patel denied that Taha provided him with a
purchase agreement or lease agreement at that time. Patel claimed he first received
copies of the purchase agreement and lease agreement, by email, following the
March meeting. Conversely, Taha stated he presented the proposed purchase
agreement — that represented the sale of the real property from Strategic Group to
Patel for the sum of $550,000 — as well as a copy of the underlying lease at the
March meeting. Taha testified that Patel and his associates examined the
documents for approximately one hour.
All parties agree that the purchase agreement noted Patel’s
remittance of $50,000 earnest money. Patel paid the earnest money at the March
meeting with three personal checks. Patel’s father and two of Patel’s friends each
provided a check; the checks were made payable to Strategic Group. Strategic Group
did not place the earnest money in escrow, as required under the purchase
agreement, but deposited the funds in its personal bank account.
Patel provided conflicting testimony as to why he submitted the
earnest money at the March meeting, prior to execution of the purchase agreement.
Patel first testified that Taha required payment of the earnest money before he
executed the purchase agreement. Patel later conceded he was anxious to purchase
the real property and informed Taha that he would pay the earnest money and
subsequently have the documents reviewed by his attorney.
Patel and Taha did not meet again following the March meeting, but
exchanged copies of the relevant documents by email. While Taha asserted he
provided the purchase agreement and lease agreement at the March meeting, Patel
claimed receipt of the purchase agreement on March 11, 2018, and a partial lease on
March 12, 2018. The partial lease agreement did not contain the pages that would
have shown the lessee agreed to the available options, thereby committing to a lease
extension until November 2020.
According to Taha, he provided Patel with duplicate copies of the
lease on March 13, 2018, and March 20, 2018, and Patel should have known the real
property was subject to the underlying lease. The entire lease agreement was over
70 pages and Taha admitted he never read the document in full. Patel maintained
he did not receive the entire lease agreement until after his receipt of the title
commitment.
The parties negotiated the purchase agreement by adding to the
existing, printed paragraphs with hand-written language that was initialed by both
buyer and seller. The document was executed on March 13, 2018. Taha then
contacted Barristers Title of Ohio (“Barristers”) on March 14, 2018, to complete the
title work associated with the purchase agreement.
Patel received a copy of the title commitment from Barristers on
March 19, 2018. The title commitment included a handwritten notation that the
buyer and seller — Patel and Strategic Group — would handle the assignment of the
lease outside of escrow. This was Patel’s first notice that the underlying lease
agreement was not expired.
Upon receipt of the title commitment, Patel provided his attorney,
Christian Pereyda (“Pereyda”), with the documents relative to the purchase
agreement. Pereyda penned a letter to Strategic Group, on Patel’s behalf, stating
Patel would not go forward with the contract because the property was not
satisfactory for its intended purpose. The letter requested the return of Patel’s
earnest money. Patel may also have contacted Strategic Group directly and
indicated that because the lease was not expired, he was terminating the agreement
and requested the return of his earnest money.
Taha asserted that he was contacted by Patel after March 19, 2018,
and asked to renegotiate the purchase agreement for a lower selling price. Patel
conceded he attempted to negotiate a lower price after Taha refused to return the
earnest money, but the parties did not agree upon alternate terms.
Patel insisted he terminated the purchase agreement as permitted by
the document’s express terms and demanded repayment of his $50,000 earnest
money. Strategic Group refused to accept Patel’s termination notice and, instead,
argued it was entitled to the earnest money because Patel breached the contract
when he failed to complete the purchase of the real property.
Due to Strategic Group’s refusal to return the earnest money, Patel
filed suit against Strategic Group on May 5, 2018, claiming breach of contract,
conversion, fraudulent misrepresentation, negligent misrepresentation, and
fraudulent inducement. Strategic Group filed an answer on June 7, 2018. Strategic
Group and Patel filed motions for summary judgment on January 23, 2019, and
March 21, 2019, respectively. The trial court denied both summary judgment
motions on June 4, 2019.
On June 26, 2019, the trial judge conducted a bench trial. In
interpreting the purchase agreement, the trial judge found rider A, when read in
conjunction with paragraph 6, was subject to multiple interpretations. The judge
allowed the introduction of parol evidence to determine the parties’ intent when they
entered the agreement. Both parties presented evidence at trial, and the trial court
rendered a verdict in favor of Patel on his breach of contract and conversion claims,
with an award of $50,000. An opinion and order were journalized by the trial court
on September 6, 2019.
Strategic Group filed a timely notice of appeal on September 24, 2019,
and raised, verbatim, the following assignments of error:
Assignment of Error No. 1: The trial court erred in considering parol
evidence in awarding judgment to appellee.
Assignment of Error No. 2: The trial court erred in finding appellant
liable to appellee for breach of contract which was not supported by the
evidence.
Assignment of Error No. 3: The trial court erred by awarding judgment
on appellee’s conversion claim where it also awarded judgment on the
claim of breach of contract.
Assignment of Error No.4: The trial court erred in awarding appellee
judgment against appellant on its claim for conversion.
II. Law and Analysis
A. Standard of Review
Strategic Group’s arguments that the purchase agreement language
was not ambiguous, parol evidence was erroneously considered, and the trial court
erred when it found Strategic Group breached the contract present mixed questions
of fact and law:
While the interpretation of a contract is generally a matter of law
subject to de novo review, the same standard does not apply when the
agreement is ambiguous, as the trial court found in this case. See Dzina
v. Dzina, 8th Dist. Cuyahoga No. 83148, 2004-Ohio-4497, ¶ 11-13
(whenever contractual language is deemed to be ambiguous, it is the
responsibility of the trial court to interpret it, and the trial court has
broad discretion in clarifying ambiguous language). The interpretation
of an ambiguous term used in a contract is a question of fact and will
not be reversed on appeal absent an abuse of discretion. Maines Paper
& Food Serv., Inc. v. Eanes, 8th Dist. Cuyahoga No. 77301, 2000 Ohio
App. LEXIS 4480, 2 (Sept. 28, 2000). A trial court’s decision does not
constitute an abuse of discretion unless it is unreasonable, arbitrary, or
unconscionable. Castlebrook Ltd. v. Dayton Properties Ltd., 78 Ohio
App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992), citing Huffman v.
Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
Accordingly, when applying this standard of review, an appellate court
is not free to substitute its judgment for that of the trial court.
Nofzinger v. Blood, 6th Dist. Huron No. H-02-014, 2003-Ohio-1406,
¶ 42.
MRI Software, L.L.C. v. W. Oaks Mall FL, L.L.C., 2018-Ohio-2190, 116 N.E.3d 694,
¶ 11 (8th Dist.).
As to the trial court’s factual findings that Strategic Group breached
the purchase agreement, the weight given to the evidence and the credibility of the
witnesses are primarily issues assessed by the trier of fact. Id. at ¶ 12. The reviewing
court views the trial court’s credibility determinations with due deference. Id. And
“[b]ecause the trial court is best able to view the witnesses and observe their
demeanor when it weighs the credibility of the offered testimony, there is a
presumption that the findings of the trier of fact are correct.” Id., citing Nofzinger
at ¶ 41, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273(1984). The standard of appellate review of the trial court’s decision that Strategic
Group breached the contract is manifest weight of the evidence. See Schaste Metals
v. Tech Heating & Air Conditioning, 8th Dist. Cuyahoga No. 71589, 1997 Ohio App.
LEXIS 3543, 3 (Aug. 7, 1997) (a breach of contract claim is reviewed under a
manifest weight of the evidence standard). “Accordingly, following a bench trial, a
reviewing court will generally uphold a trial court’s judgment as long as the manifest
weight of the evidence supports it — that is, as long as ‘some’ competent and credible
evidence supports it.” MRI Software at ¶ 12, citing Hamilton v. Ball, 2014-Ohio-
1118, 7 N.E.3d 1241, ¶ 15 (4th Dist.).
B. Breach of Contract
For ease of analysis, we will review the assignments of error out of
order and first discuss the second assignment of error. In its second assignment of
error, Strategic Group argues that the trial court erred when it found in favor of Patel
on his breach of contract claim. Specifically, the trial court found that Patel,
pursuant to the terms of the purchase agreement, terminated the contract and,
therefore, Strategic Group was required to return Patel’s earnest money. Strategic
Group’s failure to remit the earnest money resulted in a breach of contract.
We first look at the trial court’s assessment of the contract — the
purchase agreement. The trial court found that when read together paragraph 6 and
rider A of the purchase agreement were ambiguous. Paragraph 6 reads:
6. CLOSING: The closing of the sale of the Property (the “Closing
Date”) shall be 30 days after removal/satisfaction or waiver of all
contingencies, but no later than 20 March 2018.
Additionally, rider A of the purchase agreement reads in its entirety:
RIDER A
ADDITIONAL CONTINGENCIES
TO
PURCHASE AGREEMENT
ADDITIONS TO PRINTED PARAGRAPHS
SOLD AS IS NO CONTINGENCIES
Paragraph 6 required the removal, satisfaction, or waiver of all
contingencies by March 20, 2018; contingencies were defined in rider A. The terms
of rider A were subject to two interpretations: (1) the parties’ handwritten additions
to the printed paragraphs — that were initialed by both parties — constituted
contingencies, or (2) the language “additions to printed paragraphs” was a heading
and there were no contingencies under the purchase agreement.
Patel argued the “additions to printed paragraphs” language
identified contingencies whereas Strategic Group argued this verbiage was simply a
heading and no contingencies applied under the purchase agreement. The contract
terms of rider A were susceptible to multiple interpretations thereby creating
ambiguity. See Michael A. Gerard, Inc. v. Haffke, 8th Dist. Cuyahoga No. 98488,
2013-Ohio-168, ¶ 11, citing Hillsboro v. Fraternal Order of Police, Ohio Labor
Council, Inc., 52 Ohio St.3d 174, 177, 556 N.E.2d 1186 (1990) (contract terms
reasonably susceptible to more than one explanation are ambiguous).
The interpretation of paragraph 6 and rider A was not problematic
until Barristers distributed the title commitment. The purchase agreement required
Strategic Group to deliver a title commitment to Patel by March 18, 2018. (Purchase
agreement at paragraph 12.) After the parties executed the purchase agreement,
Strategic Group secured Barristers for completion of the necessary title work. On
March 19, 2018, one day later than required by the terms of the contract, Barristers
delivered a copy of the title commitment to Patel. The title commitment excluded
coverage for the underlying lease and the document included a handwritten note
that read: “Buyer and Seller to get assignment [of lease] outside of escrow.” (Patel’s
trial exhibit No. 3.) The title work indicated the underlying lease would expire on
November 16, 2020. Patel alleged this was his first notice that the lessee had
exercised its options to renew the underlying lease until November 2020. Patel
subsequently requested and obtained a complete copy of the lease agreement.
Paragraphs 11 and 12 of the purchase agreement addressed title and
read as follows:
11. TITLE: At the closing Seller shall deliver to Buyer a good and
sufficient general warranty deed (the “Deed”) conveying good and
marketable fee simple title in and to the Property to Buyer, free and
clear of all liens, claims and encumbrances whatsoever, except (a) any
mortgage financing assumed by Buyer (b) covenants, easements,
reservations, conditions and restrictions of record, if any, reviewed and
approved by Buyer, pursuant to paragraph 12, (c) zoning changes and
(d) real estate taxes and assessments, both general and special, which
are a lien but not yet due and payable as of the Closing Date (as
hereinafter defined).
12. TITLE POLICY: Seller shall furnish to Buyer at Seller’s expense
an Owner’s Policy of Title Insurance (the “Title Policy”), issued by
____ in the amount of the Sales Price and dates at or after the Closing
Date, insuring record title to the Property to Buyer subject only to the
exceptions described in paragraph 11, provided that Buyer shall have
the right to review and approve any easements, covenants, conditions,
reservations or restrictions of record disclosed in the preliminary title
commitment to be provided to Buyer by Seller within five (5) days after
the execution of this agreement. If for any reason the title company is
unable to issue a Title Policy as aforesaid of if Seller is otherwise unable
to convey title as set forth in paragraph 11 and if within fifteen (15) days
after the receipt of notice by certified mail from Buyer to Seller to
remove or satisfy the defect or defects in title, said defects are not cured,
then at the expiration of said fifteen (15) day period, Buyer may at his
option, to be exercised by notice by certified mail to Seller within five
(5) days after the expiration of said fifteen (15) day period, (i) accept
such title as Seller is able to furnish, or (ii) terminate this Agreement
and receive all funds or documents, if any, previously paid or deposited
by Buyer. Upon such termination neither party hereto shall thereafter
be under any further liability to the other party hereto.
(Emphasis added.) We note that the emphasized language in paragraph 11 —
reviewed and approved by Buyer, pursuant to paragraph 12 — was a handwritten
addition to the paragraph and, depending upon how rider A was interpreted, could
have qualified as an “addition to printed paragraphs” or a contingency under rider
A. The wording “and approve” in paragraph 12 was crossed out by the parties.
The question before the court was whether the parties intended the
handwritten additions to the printed paragraphs to be contingencies that had to be
waived, removed, or satisfied before closing. (Purchase agreement at paragraph 6.)
If so, Patel’s approval of the assignment of the lease — divulged for the first time in
the title commitment — was a contingency that had to be waived, removed, or
satisfied before closing. Parol evidence was introduced to interpret the parties’
intended meaning of paragraph 6 and rider A.
Patel testified that he did not intend to execute the purchase
agreement if an underlying lease was attached to the real property because Patel
wanted to personally operate the convenience store. Taha was aware of Patel’s
intention to purchase the real property and operate the convenience store himself.
To do so, there could be no underlying lease agreement attached to the real property.
Patel testified about Taha’s March 5, 2018 text that led Patel to believe he could
either renew the underlying lease agreement or choose to terminate the lease and
operate the convenience store personally. The parol evidence clarified for the trial
court that the parties intended the contingencies to include the handwritten
additions to the printed paragraphs, including Patel’s approval of the title work.
After establishing the intentions of the parties and determining the
language added to the printed purchase agreement served as contingencies, the trial
court further analyzed and interpreted the terms of the purchase agreement.
Barristers’ title work showed the real property was encumbered by the underlying
lease and the lease had to be assigned from Strategic Group to Patel. The purchase
agreement did not specifically address the assignment of the lease from Strategic
Group to Patel or the current renewal status of the lease agreement. However,
Patel’s approval of the title work, as required under paragraphs 11 and 12, allowed
him to assess these issues presented in the title commitment. Patel testified that
upon receiving the title commitment, he terminated the purchase agreement.
The purchase agreement provided for termination under paragraphs
4, 5, and 12. Paragraph 5, specifically, allowed Patel to terminate the purchase
agreement and receive a full refund of the earnest money should Patel’s
investigation of the property disclose any state of facts objectionable, in Patel’s sole
judgment, per the contingencies contained in rider A. Patel found the title
commitment objectionable and, therefore, notified Strategic Group of his intentions
to terminate. Patel sent his termination notice, through his attorney, in writing and
by mail as required by the terms of the purchase agreement.
Strategic Group argues that because Patel testified at trial that the
physical land was not objectionable — only the presence of the lease — Patel could
not terminate under paragraph 5. We do not interpret paragraph 5 as imposing such
a limitation. Further, the trial court found the terms of paragraph 5 permitted
Patel’s objections to the purchase agreement and title commitment and we do not
find this was against the manifest weight of the evidence.
Paragraph 5 also stated Patel would receive a refund of the earnest
money upon his termination of the purchase agreement. Strategic Group’s failure
to return the earnest money constituted a breach of contract.
Based upon the foregoing, the trial court found that the purchase
agreement contained ambiguous terms that led to more than one interpretation of
rider A and paragraph 6. The trial court’s introduction of parol evidence helped to
explain the parties’ intentions when they executed the purchase agreement. The
trial court found Patel was entitled to terminate the purchase agreement, which he
did with the requisite notice required under the agreement. Upon receipt of Patel’s
notice of termination, Strategic Group was obligated to return Patel’s earnest money
and Strategic Group’s failure to do so constituted a breach. The trial court’s findings
were supported by competent, credible evidence and were not unreasonable,
arbitrary, or unconscionable. Therefore, the trial court correctly found in favor of
Patel on his breach of contract claim and Strategic Group’s second assignment of
error is overruled.
C. Parol Evidence
In its first assignment of error, Strategic Group contends that the trial
court erred when it considered parol evidence. Specifically, Strategic Group argues
that the terms of the purchase contract were not ambiguous and, therefore, parol
evidence should not have been introduced.
Interpretation of a contract requires the court to ascertain and give
effect to the parties’ intent. MRI Software, 2018-Ohio-2190, 116 N.E.3d 694, at ¶ 27,
citing Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273,
714 N.E.2d 898 (1999). In so doing, the court reviews the contract as a whole and
presumes the parties’ intent is reflected in the contract’s language. Kelly v. Med.
Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the
syllabus. As a result, if the contract’s language is plain and unambiguous, the terms
are enforced as written, and courts may not turn to evidence outside the four corners
of the contract to alter its meaning. Beverage Holdings, L.L.C. v. 5701 Lombardo,
L.L.C., 159 Ohio St.3d 194, 2019-Ohio-4716, 150 N.E.3d 28, ¶ 13.
Conversely, courts will consider extrinsic evidence to give effect to the
parties’ intentions where the language of the contract is unclear or ambiguous.
Alliant Food Servs. v. Powers, 8th Dist. Cuyahoga No. 82189, 2003-Ohio-4193,
¶ 36. Contract terms are considered ambiguous where their meanings are
reasonably susceptible to multiple interpretations. Porterfield v. Bruner Land Co.,
2017-Ohio-9045, 103 N.E.3d 152, ¶ 18 (7th Dist.), citing First Natl. Bank of
Pennsylvania v. Nader, 2017-Ohio-1482, 89 N.E.3d 274, ¶ 25 (9th Dist.). Once a
clause is found ambiguous, “parol evidence can be introduced to explain the
intention of the parties.” Schleicher v. Alliance Corporate Res., 10th Dist. Franklin
No. 95APE03-311, 1995 Ohio App. LEXIS 5405, 9 (Dec. 7, 1995). “Parol evidence is
used only to interpret the terms, and not to contradict the terms.” First Natl. Bank
of Pennsylvania at ¶ 25.
Courts apply a de novo standard when reviewing the application of
parol evidence. Rice v. Rice, 7th Dist. Columbiana No. 2001-CO-28, 2002-Ohio-
3459, ¶ 38, citing Charles A. Burton, Inc. v. Durkee, 158 Ohio St. 313, 324, 109
N.E.2d 265 (1952).
The trial court determined that a reading of paragraph 6 and rider A
together created an ambiguity since multiple interpretations were possible. Rider A
could have meant the additions to the printed paragraphs were contingencies or,
alternatively, the wording “additions to printed paragraphs” was a heading and no
contingencies applied under the contract.
The parol evidence provided the trial court clarity as to the parties’
mutual intentions when they entered the purchase agreement. The trial court
considered Taha’s representations to Patel, relative to the status of the underlying
lease agreement and Patel’s right to operate the convenience store as his own
business. Taha’s March 5, 2018 text communicated to Patel that the underlying
lease agreement was expired and did not need to be renewed. Patel reasonably
relied on those representations. It was Patel’s intention to enter the purchase
agreement with the expectation that he would operate the convenience store
independently and that the real property would not be subject to an underlying lease
agreement. The trial court found the parties intended and mutually agreed at
drafting that the language “additions to printed paragraphs” demonstrated the
additional handwritten terms included in the purchase agreement were
contingencies thereby allowing Patel to approve the title commitment. The record
reflects that the trial court did not err when it found the terms of the purchase
agreement ambiguous and considered parol evidence to establish what the parties
mutually agreed to and understood to be the meaning of rider A.
Thus, Strategic Group’s first assignment of error lacks merit and is
overruled.
D. Conversion
Strategic Group’s third and fourth assignments of error both address
conversion and will be discussed collectively. Strategic Group argues that the trial
court erred when it found it liable for conversion and awarded Patel judgment on
his conversion claim.
Conversion and breach of contract are alternate causes of action.
Boston v. Sealmaster Industries, 6th Dist. Erie No. E-03-040, 2004-Ohio-4278,
¶ 36, citing Richardson v. Shaw, 209 U.S. 365, 382-383, 28 S.Ct. 512, 52 L.Ed. 835(1908). A litigant may not recover for both a breach of contract and conversion.
Boston at ¶ 37. An award on both claims would amount to double recovery. Kindle
Rd. Co., L.L.C. v. Trickle, 5th Dist. Licking No. 03CA99, 2004-Ohio-4668, ¶ 61.
Patel filed suit against Strategic Group and identified five causes of
action; only his claims of breach of contract and conversion are relevant to this
inquiry. Through his breach of contract and conversion claims, Patel sought
repayment of the $50,000 earnest money he deposited with Strategic Group at the
inception of the parties’ dealings.
The trial court determined Strategic Group breached the purchase
agreement when it failed to refund the earnest money to Patel after Patel exercised
his right to terminate the agreement. Additionally, the trial court found Strategic
Group wrongfully withheld, and continued to wrongfully withhold, the earnest
money in contravention to Patel’s property rights and, therefore, converted Patel’s
property. The trial court entered judgment in favor of Patel, and against Strategic
Group, on the claims of breach of contract and conversion and awarded damages to
Patel totaling $50,000.
The trial court correctly found in favor of Patel on his breach of
contract claim, as described above in response to Strategic Group’s second
assignment of error. Once the trial court returned the full value of the alleged
converted property to Patel — as occurred when the trial court awarded Patel
$50,000 on his breach of contract claim — Patel suffered no damages pursuant to
his conversion action. See Silverman v. Am. Income Life Ins. Co. of Indianapolis,
10th Dist. Franklin Nos. 01AP-338 and 01AP-339, 2001 Ohio App. LEXIS 5683, 32
(Dec. 18, 2001) (where the owner received full value of the converted property, he
suffered no damages under a conversion cause of action). Breach of contract and
conversion are alternate causes of action, and once the trial court found Strategic
Group breached the purchase agreement, there was no basis for the trial court to
consider Patel’s claim of conversion. See Dream Makers v. Marshek, 8th Dist.
Cuyahoga No. 81249, 2002-Ohio-7069, ¶ 20 (based upon plaintiff’s conversion and
breach of contract causes of action that sought identical damages from the
defendant, the trial court correctly granted defendant’s motion for summary
judgment on the conversion claim because the facts presented a clear and simple
contract action under which the plaintiff had recovered the alleged damages).
We find that once the trial court found Strategic Group liable for
breach of contract, the conversion claim could not be considered and any arguments
regarding conversion were moot. We vacate the order that found Strategic Group
liable for conversion and vacate the portion of the judgment that found Strategic
Group liable for $50,000 due to conversion. We affirm the judgment to the extent
it awarded Patel $50,000 for damages under his breach of contract claim. In light
of this conclusion, Strategic Group’s third and fourth assignments of error are moot.
Judgment affirmed in part and vacated in part.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
______________________________________
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR