Mockensturm v. McIlwain , 2021 Ohio 532 ( 2021 )

[Cite as Mockensturm v. McIlwain, 2021-Ohio-532.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Carl B. Mockensturm Court of Appeals No. L-20-1035
Appellant Trial Court No. 19CVF00203
v.
Craig McIlwain DECISION AND JUDGMENT
Appellee Decided: February 26, 2021
*****
Mark M. Mockensturm and Kevin C. Urtz, for appellant.
Alan Kirshner, for appellee.
*****
MAYLE, J.
{¶ 1} In this case, plaintiff-appellant, Carl B. Mockensturm, appeals the January 9,
2020 judgment of the Maumee Municipal Court that awarded him $58.80 plus interest
against the defendant-appellee, Craig McIlwain. For the following reasons, we affirm, in
part, and reverse, in part.
{¶ 2} On March 4, 2019, Mockensturm sued McIlwain in the Maumee Municipal
Court, alleging that McIlwain owed $4,596.22 on an outstanding promissory note. On
March 28, 2019, McIlwain answered the complaint, denying that he owed anything on
the note. He also filed a counterclaim against Mockensturm, alleging that he failed to
pay $15,000 for custom furniture that McIlwain built for him. The court held a bench
trial on January 8, 2020, at which time the following testimony and evidence was heard.
{¶ 3} McIlwain was previously married to Mockensturm’s stepdaughter. In 2012,
while that marriage was still intact, Mockensturm loaned $20,000 to McIlwain. The loan
is memorialized in a promissory note dated December 17, 2012, signed by McIlwain,
which states that McIlwain must repay the $20,000 loan, with interest at an annual rate of
0.22 percent. Under the note, the “Due Date” for repayment is “any future date on which
the Lender demands repayment,” and after the Due Date, interest would accrue at an
annual rate of 0.50 percent. The note further provides that “[i]f any payment obligation
under this Note is not paid when due, the Borrower shall be obligated to pay all costs of
collection, including reasonable attorney fees* * *.”
{¶ 4} Mockensturm’s daughter and bookkeeper, Michele Topar, managed the loan
for her father through her business, Advanced Bookkeeping Concepts. Topar recorded
McIlwain’s payments on a spreadsheet, and calculated the outstanding principle and
interest on a running basis.
2.
{¶ 5} McIlwain did not make any payments on the loan until 2014. McIlwain
made an initial payment of $5,000 on July 11, 2014, and a second payment of $1,500 on
August 11, 2014. Thereafter, the parties amended their agreement.
{¶ 6} On August 12, 2014, McIlwain emailed Mockensturm a “memo of
understanding” which, he said, memorialized a discussion they had the day before. The
memo states:
I, Craig Mcilwain, owing Carl Mockensturm the remaining sum of
$13,500 in principle of a total sum of $20,000, agree to make a monthly
payment of $1500.00 due by the 15th of each month. The next payment
due September 15, 2014. The final payment will be due March 15, 2015.
This will require that in certain months more than the minimum payment
will be paid. Likely months being October, November, and February. The
February 2015 payment will be made approximately 1 week later than
usual based on expected cash flow and show schedule.
Mockensturm acknowledged his agreement at the bottom of this document, where he
added:
Carl B. Mockensturm 8-13-14
I agree to the above and add to this memo a [sic] understanding on a
more fair interest rate than what is stated in the original note.
A more fair rate due to the length of the time should be 5% from this
date forward until Paid in Full.
3.
{¶ 7} According to Topar’s records and testimony, McIlwain issued only four
checks to Mockensturm after this amendment: a check for $1,500 on October 20, 2014;
a check for $750 on March 4, 2015; a check for $1,500 on April 3, 2015, and a check for
$1,500 on May 8, 2015. At trial, McIlwain claimed that he made additional payments by
check, but he did not have any records to prove it. He explained that he lost all of his
records after his divorce, when his ex-wife took over the house and all its contents.
McIlwain also claimed that he made several cash payments that are not reflected on
Topar’s ledger, but he did not say how much cash he paid or when he paid it. He also did
not have any records of these cash payments. McIlwain explained that he did not think to
get a receipt for any of his cash payments because “it’s family.”
{¶ 8} The bulk of the parties’ dispute concerns whether McIlwain received
appropriate credits to his outstanding debt in exchange for various pieces of furniture that
McIlwain handcrafted for Mockensturm’s family. Mockensturm testified that he did not
owe any compensation for this furniture, claiming that he was not involved in these
transactions and that the furniture was “never mine.” When McIlwain’s attorney
questioned Mockensturm regarding his reply to counterclaim—in which he admitted that
McIlwain built various pieces of furniture “[a]t plaintiff’s request”—Mockensturm
responded “I don’t know what that’s about.” Mockensturm explained that Topar ordered
furniture from McIlwain directly. Instead of paying McIlwain for the furniture she
ordered, Topar made loan payments to Mockensturm on McIlwain’s behalf and then
recorded these payments on her spreadsheet. Mockensturm did acknowledge, however,
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that he agreed to apply a credit to McIlwain’s loan as payment for a fireplace mantle that,
he said, his son had purchased from McIlwain. Mockensturm testified that he does not
recall any conversations with McIlwain regarding how much credit should be given to
McIlwain in exchange for any of the furniture, and there is very little documentation in
that regard.
{¶ 9} Topar confirmed that she bought various pieces of furniture from McIlwain.
She claims that she paid McIlwain directly for some of the furniture, while in other
instances he told her to make a loan payment to Mockensturm on his behalf. While
Topar acknowledged that McIlwain did not provide invoices for most of the furniture she
purchased, she did not explain how she determined the value of any items that lacked an
invoice. Topar did, however, testify that McIlwain “has had copies of [the spreadsheet]
in the past”—i.e., the spreadsheet that tracked McIlwain’s payments and documented the
various credits that she gave him in exchange for his furniture—but Topar did not say
when McIlwain received those copies or what was reflected on the copies that he
received. And there is no documentation in the record to show which versions of the
spreadsheet McIlwain received. McIlwain did admit that he had received copies of the
ledger in the past, but he “had a hard time figuring them out” because “they always
seemed to be different and * * * give something and then take it away * * *. I never
knew what was going on with those sheets.”
{¶ 10} McIlwain testified that he never agreed to accept the values that Topar
assigned to his furniture in her ledger, and he denied that he received any direct payments
5.
from Topar for any furniture. He also testified that he made all of the furniture at
Mockensturm’s request. He said “I never felt like it was coming from Michele, it always
felt like it was coming from Carl, I mean that’s the way it always looked. I was pretty
much doing the work for Carl.” McIlwain testified that he tried to make payments on the
loan, but “the financial pressures got harder and harder” for him. And, because McIlwain
was not able to make many payments, he “felt like there was a lot of pressure on [him] to
do this stuff [i.e., make furniture] because [he] owed the money.” He said that he did not
send many invoices to the Mockensturms because “it was mostly fairly loose.”
{¶ 11} Although he does not have anything in writing, McIlwain thought that the
loan “was done” after he finished his last piece of furniture for the Mockensturms in
November 2015. He did not hear anything else on the loan until after he and his wife—
Mockensturm’s stepdaughter—divorced in 2018.
{¶ 12} At trial, McIlwain presented the expert testimony of Scott Midgley, a
custom woodworker. Mockensturm objected to Midgley’s testimony on the grounds of
relevancy, and the trial court overruled the objection. Midgley explained the time, effort,
and skill that is required to make custom furniture pieces like the ones that McIlwain
crafted for the Mockensturms. He then provided estimated values for each of McIlwain’s
furniture pieces. Before he did, Mockensturm’s counsel confirmed to the trial court that,
although he maintained that the value of the furniture was established by the parties’ own
dealings (and, therefore, Midgley’s testimony was irrelevant), he did not have any
6.
objection to the content of Midgley’s testimony “as far as his estimates go.” In other
words, Mockensturm did not object to Midgley’s valuations as fair estimates.
{¶ 13} In total, McIlwain built six different collections of furniture for the
Mockensturms: (1) a TV cabinet with television mount, (2) an oak shelf, computer
cabinet, and desk, (3) a large conference room table, (4) a small conference room table,
(5) a chair rail, and (6) a fireplace mantle. The relevant testimony regarding this furniture
can be summarized as follows:
{¶ 14} 1. TV cabinet with television mount. McIlwain installed a custom
television platform and wall mount in Mockensturm’s house. Topar did not give
McIlwain any credit for this piece of furniture on her ledger. According to Mockensturm,
this “never had anything to do with * * * the note” and he was “pretty sure” that
McIlwain built this piece before the 2012 loan. Mockensturm said it was a “family
project” and they both worked on it together. McIlwain, on the other hand, stated that he
was “pretty sure” and “almost certain” that he did this work for Mockensturm after the
note. He testified that he expected to be compensated for this piece, he was never
compensated for it, and it was not a “gift.” Midgley testified that a fair price for this
piece of furniture, based on the time and work involved, was $1,471.
{¶ 15} 2. Oak shelf, computer cabinet, and desk. In 2015, McIlwain made a
custom oak shelf along with a computer cabinet and desk for Topar’s business, ABC.
McIlwain issued a handwritten invoice for $935, which he discounted to $750 for both
pieces. McIlwain testified that he discounted the price because “Carl was pushing me
7.
pretty hard to do this stuff for her so I made it easy by throwing a little discount in there.”
Topar made a $750 loan payment to her father, on McIlwain’s behalf, as compensation
for this furniture. Topar’s ledger for McIlwain’s outstanding loan includes a credit for
$750 on March 4, 2015, with the notation “ABC Paid.” McIlwain testified regarding the
time and effort that it took to create these items. Midgley said that a fair price for this
furniture, based on the time and work involved, was $2,100.
{¶ 16} 3. Large conference room table. In 2015, McIlwain made a white oak and
mahogany conference room table for Topar’s office. Topar claims that she paid
$1,200—to McIlwain directly—for this table, and that this transaction had nothing to do
with the note. Topar did not, however, produce an invoice, canceled check, or any other
documentation regarding this purchase, stating that she did not think she needed such
documents for court “since it was my own personal side deal.” At trial, McIlwain
presented a copy of an email that Mockensturm sent to McIlwain on July 22, 2015,
regarding this table, which stated:
Hi Craig. Confirming my order for Michele.
Table to be approx. 8’ long by 36” wide. Wood from existing stock.
Call me when you have a plan for the style and color of finish.
Any idea on the timing?
When asked about this email at trial, Mockensturm stated that he “just provided
measurements.” Topar did not give McIlwain any credit for this table on her ledger, but
she did make a note at the bottom of the ledger that states “Conference table in
8.
D-2 – Michele’s Conference Table – paid Ck for $1,200 – No bonus since hasn’t made
payments.” She testified that her dad was considering giving him a bonus because the
table “looked really nice” but decided against it because “he hadn’t made any payments
and hadn’t tried to.” McIlwain testified regarding the time and effort that it took to create
the table, and McIlwain claimed that he never received any payment for it. Midgley
testified that a fair price for this conference room table, based on the time and work
involved, was $4,860.
{¶ 17} 4. Small conference room table. In 2015, McIlwain made a small
conference room table—also referred to by the parties as a “round” or “triangular”
conference room table—for Topar’s business. Topar testified her conference room tables
were ordered by “me and my dad.” She said, “I needed a conference room table and we
thought hey, let’s ask Craig.” Topar’s internal business records regarding her purchase of
this table includes a handwritten note stating “NEVER got invoice from Craig. He
wanted me to pay dad as a loan payment on his behalf.” On January 23, 2015, Topar
transferred $1,800 to her father’s trust as payment for the table. Topar’s ledger for
McIlwain’s outstanding loan includes a credit for $1,800 on January 23, 2015, with the
notation “ABC Paid.” McIlwain testified regarding the time and effort that it took to
create the table, and he claimed that he never agreed to accept the amount of credit that is
reflected on Topar’s register. Midgley testified that a fair price for this conference room
table, based on the time and work involved, was $3,980.
9.
{¶ 18} 5. Chair rail. Topar testified that she paid $604 to McIlwain for a chair
rail for her office in a transaction “that had nothing to do with the loan at all.” She did
not, however, produce any records of payment at trial. Topar’s ledger for McIlwain’s
outstanding loan does not include a credit for the chair rail, and Mockensturm stated that
he had “nothing” to do with this purchase. McIlwain testified regarding the time and
effort that it took to create the chair rail, and he claimed that he never received any
payment for it. Midgley testified that a fair price for the chair rail, based on the time and
work involved, was $2,010.
{¶ 19} 6. Mantle. In 2015, McIlwain created a custom mantle for Mockensturm’s
son. As Topar testified, McIlwain made a mantle for her brother’s fireplace, and “dad
paid for that” and “instead of giving Craig a check Craig said just apply it to the loan so,
again, that’s what we did.” Topar’s ledger includes a credit dated July 1, 2015, for $600,
with the following notation: “Trade work for Mantel at Mike’s House.” McIlwain
testified regarding the time and effort that it took to create the mantle, and he stated that
he never agreed to accept the amount of credit that is reflected on the register. Midgley
did not estimate a value for the mantle, but McIlwain testified that a fair value would
represent 40 hours of work at $45 an hour—i.e., $1,800.
{¶ 20} The final credit on Topar’s payment ledger is a “bonus” credit for $600 on
November 3, 2015—there is no record of any additional payments on the loan after this
date. Topar testified that Mockensturm “decided to try and help Craig out and give him a
10.
bonus for $600 for all of the work that he did just because he was trying to help him out.”
According to McIlwain, he thought that the loan was “done.”
{¶ 21} McIlwain, however, received a letter from Mockensturm’s attorneys on
January 18, 2019, stating that there was still money owed on his loan and threatening
collection proceedings if McIlwain did not pay the full amount outstanding—which, the
letter stated, was $4,596.22 as of that date. McIlwain did not pay, and Mockensturm filed
this case a few weeks later.
{¶ 22} After considering all of this testimony and evidence, the trial court issued a
ruling from the bench. First, the trial court rejected McIlwain’s argument that laches
precluded Mockensturm from enforcing the note, and found that McIlwain owed a total
of $4,628.80 on the note.
{¶ 23} Regarding the furniture purchases and payments, the trial court noted that
although there was “little or no testimony on who ordered the pieces, what they were
supposed to look like, how fancy they were supposed to be,” there were “some things
* * * which were able to be garnered by the testimony and the evidence presented.” The
court noted that “[t]he relationship of the parties” was a factor in the “ordering patterns
and * * * what was ordered.” It then considered some of the items of furniture. It
rejected Midgley’s valuation for the printer cabinet, saying “I don’t believe that printer
cabinet cost $2,100 to fabricate, I just don’t believe it.” The trial court also noted that
there was not enough evidence for him to determine the value of the TV stand. But the
court went on to state:
11.
The table on the other hand, the round table I believe every bit that
that could have cost $3,980, not the $1,800 that was given credit. I believe
the mantel would have cost $1,800 as opposed to the 600. And I believe
the, those seem to be, there was evidence on Exhibit M, evidence there’s
uncontested that the conference table was, appeared to be an agreed price of
$1,200, therefore the set off is at $4,570.
{¶ 24} The court then stated that “judgment for the plaintiff” in the amount of
$58.80, “judgment for plaintiff on the Counterclaim,” and “cost to defendant.” Court was
then adjourned.
{¶ 25} The next day, January 9, 2020, the trial court issued a written decision and
judgment entry. In its two-paragraph written decision, the court noted that a bench trial
was held on January 8, 2020 and, “[u]pon consideration of the testimony and evidence
presented,” the court granted judgment to Mockensturm on his complaint and awarded
damages in the amount of $58.80 with interest at the rate of 5 percent per annum from the
date of judgment, granted judgment to Mockensturm on the counterclaim, and ordered
McIlwain to pay costs. The trial court did not provide any reasoning for its judgment,
and neither party requested findings of fact and conclusions of law under Civ.R. 52.
{¶ 26} Mockensturm filed a notice of appeal on February 4, 2020. McIlwain filed
a notice of cross-appeal on February 14, 2020, but never filed a brief within the time
prescribed by the appellate rules. For the sake of clarifying the record, we hereby dismiss
McIlwain’s cross-appeal under App.R. 18(C) for failing to file a brief.
12.
{¶ 27} Mockensturm timely filed an appellant’s brief, in which he asserts the
following assignments of error:
No. 1: The Trial Court’s decision to setoff the amount Appellee
owed to Appellant under the promissory note was against the manifest
weight of the evidence.
No. 2: The Trial Court abused its discretion when it failed to award
Appellant his reasonable attorney fees as described in the promissory note.
II. The trial court’s decision to setoff the amount that
McIlwain owed to Mockensturm under the promissory note
was not against the manifest weight of the evidence.
{¶ 28} In his first assignment of error, Mockensturm argues that the trial court’s
decision to setoff the amount that McIlwain owed to Mockensturm under the note was
against the manifest weight of the evidence because (1) McIlwain did not assert setoff as
an affirmative defense, (2) there was no mutuality of obligation between Mockensturm
and McIlwain, (3) McIlwain was already compensated for the furniture that he built for
Topar and Mockensturm’s son, and (4) the trial court “arbitrarily” assigned value to the
furniture.
{¶ 29} An appellate court reviews judgments from the trial court following a
bench trial under the manifest weight of the evidence standard. Terry v. Kellstone, Inc.,
6th Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 12. The manifest weight standard is the
same in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 17-23. “When weighing the evidence, the court of appeals
13.
must consider whether the evidence in a case is conflicting or where reasonable minds
might differ as to the inferences to be drawn from it, consider the weight of the evidence,
and consider the credibility of the witnesses to determine if ‘the jury clearly lost its way
and created such a manifest miscarriage of justice that the [judgment] must be reversed
and a new trial ordered.’” Quest Workforce Solutions, LLC v. Job1USA, Inc., 2016-Ohio-
8380, 75 N.E.3d 1020, ¶ 41 (6th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). “[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the finding of
facts.” Eastley at ¶ 21.
{¶ 30} Here, in the trial court’s judgment entry following bench trial, it awarded
$58.80 to Mockensturm on his complaint, and found in Mockensturm’s favor on
McIlwain’s counterclaim. The trial court’s judgment entry did not include any factual
findings, and the trial court was not required to provide any further explanation of its
ruling. Under Civ.R. 52, “[w]hen questions of fact are tried by the court without a jury,
judgment may be general for the prevailing party” unless one of the parties requests
findings of facts and conclusions of law within the time prescribed by the rule. Neither
Mockensturm nor McIlwain requested findings of fact and conclusions of law. Where an
appellant did not request findings of fact and conclusions of law under Civ.R. 52, it is
improper for an appellate court to speculate on the mental process of the trial court.
Howell v. Vance, 12th District Clermont No. CA85-09-069, 1986 WL 8910, *2 (Aug. 18,
14.
1996) (“[w]hile it would be error of reversible magnitude for a court to simply arbitrarily
select a damage figure not sustained by the evidence, we will not presume this is what the
trial court did when appellant has not utilized a Civil Rule, Civ.R. 52, which is designed
to allow us to make such a determination” because it would be “improper” for the
appellate court to “speculate” on the trial court’s “mental process” in that situation.).
{¶ 31} Moreover, the court did provide insight into its mental process here. After
testimony concluded, it found that the “relationship of the parties” was a factor in their
“ordering patterns” for the furniture, and the court accepted certain furniture valuations as
fair and accurate. The trial court then stated that McIlwain owed $4,628.80 to
Mockensturm on the note, Mockensturm owed $4,570 to McIlwain for the custom
furniture, and these mutual debts should be setoff—resulting in an award of $58.80 to
Mockensturm.
{¶ 32} A setoff is defined as “that right which exists between two parties, each of
whom under an independent contract owes a definite amount to the other, to set off their
respective debts by way of a mutual deduction.” Witham v. South Side Bldg. & Loan
Ass’n of Lima, Ohio, 133 Ohio St. 560, 562, 15 N.E.2d 149 (1938); Tejeda v. Toledo
Heart Surgeons, Inc., 186 Ohio App.3d 465, 2009-Ohio-3495, 928 N.E.2d 1138, ¶ 53
(6th Dist.). A central element of a right to setoff is the existence of mutuality of
obligation. Witham at 562. Mutuality is lacking where both parties to the transaction on
which suit was brought are not also parties to the independent contract on which a right
of setoff is claimed. Id.
15.
{¶ 33} As this court has recognized, a right of setoff can be asserted “as an
affirmative defense in [the] answer or by way of counterclaim.” Beck v. Mar Distribs. of
Toledo, Inc., 6th Dist. Lucas No. L-11-1219, 2012-Ohio, 5321, ¶ 16. Although McIlwain
did not assert setoff as an affirmative defense, he asserted a counterclaim against
Mockensturm in which he alleged that he built various items of furniture “[a]t plaintiff’s
request” and plaintiff “failed to pay defendant for said labor work and materials” and
“failed to credit defendant for [the furniture] on the note.” Under Civ.R. 13(C), a
counterclaim “may or may not diminish or defeat the recovery sought by the opposing
party. It may claim relief exceeding in amount or different in kind from that sought in the
pleading of the opposing party.” In other words, pursuant to Civ.R. 13(C), “a
counterclaim is now any claim, including setoff or recoupment, which a defendant may
have against a plaintiff.” (Emphasis added). Murphy v. Hall, 11th Dist. Trumbull No.
2019-T-0022, 2020-Ohio-163, ¶ 24, quoting Indus. Fabricators, Inc. v. Natl. Cash
Register Corp., 10th Dist. Franklin No. 83AP-13, 1984 WL 4669, *5 (Mar. 8, 1984)
(finding that the trial court did not err by construing defendant’s affirmative defense for
setoff as a counterclaim under Civ.R. 8(C), which allows a court to treat a defense as a
counterclaim “if justice so requires.”). We therefore reject Mockensturm’s argument that
McIlwain was not entitled to any setoff because he did not assert a right of setoff as an
affirmative defense.
{¶ 34} Turning to the substantive issue of setoff, we reject Mockensturm’s
arguments that the trial court’s judgment is against the manifest weight of the evidence.
16.
{¶ 35} First, regarding mutuality of obligation, although Mockensturm testified
that he was not involved in the furniture transactions, there was evidence in the record to
the contrary. For example, in Mockensturm’s reply to McIlwain’s counterclaim, he
admitted that McIlwain built various pieces of furniture “[a]t plaintiff’s request.”
McIlwain introduced an email in which Mockensturm stated he was confirming “my
order for Michele” for the large conference room table. Topar testified that some of the
orders came from “me and my dad.” Most importantly, McIlwain testified that he always
felt that the furniture orders were “coming from Carl” and that he was “pretty much
doing the work for Carl.” He further testified that he felt like there was “a lot of
pressure” on him to make the furniture because he “owed the money” on the note to
Mockensturm.
{¶ 36} Notably, with the exception of Mockensturm’s email regarding the large
conference room table, there was no documentation to prove who ordered what furniture.
Thus, the trial court was left to determine—as a necessary prerequisite to setoff—whether
there was mutuality of obligation between Mockensturm and McIlwain by assessing the
relative credibility of the witnesses on that issue. Although under a manifest-weight
standard we consider credibility of witnesses, we must nonetheless extend special
deference to the trial court’s credibility determinations given that the trial court had “the
benefit of seeing the witnesses testify, observing their facial expressions and body
language, hearing their voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor.” State v. Wright, 6th Dist. Lucas No. L-16-1053,
17.
2017-Ohio-616, ¶ 47, citing State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616,
¶ 14. Here, we cannot say that the trial court lost its way simply because it believed
McIlwain instead of Mockensturm on that issue.
{¶ 37} For this same reason, we also reject Mockensturm’s claim that McIlwain is
not entitled to a setoff because he was already compensated for the furniture that he built.
There was little documentation and testimony regarding any agreed-upon prices for the
furniture. Indeed, while Topar acknowledged that McIlwain did not provide invoices for
most of the furniture that was purchased, she did not explain how she assigned values to
furniture that lacked an invoice. In addition, McIlwain clearly testified that he did not
agree to accept the credits that are reflected on Topar’s ledger, and he claimed that he did
not receive any payment from anyone for various items of furniture. Again, this issue
required the trial court to consider the respective credibility of the witnesses, and we
cannot say that the trial court lost its way when it parsed the evidence and determined that
Mockensturm owed McIlwain for the custom furniture.
{¶ 38} Finally, we reject Mockensturm’s claim that the trial court “arbitrarily”
assigned value to the furniture. Both McIlwain and Midgley testified that it was time
consuming to build the various pieces of custom furniture, and provided their opinions
regarding the fair value of the furniture given the time, effort, and materials involved.
Moreover, Mockensturm’s counsel explicitly stated that he had no objection to Midgley’s
estimated values for the furniture. The trial court apparently accepted some of this
testimony, and we cannot say that it lost its way in doing so—especially since there was
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evidence to support the trial court’s valuations, and we must make every reasonable
presumption in favor of the trial court’s judgment.
{¶ 39} In sum, after reviewing the record, we cannot say that the trial court lost its
way and thereby created a manifest miscarriage of justice when it set off the parties’
respective debts and awarded judgment to Mockensturm for $58.80. Mockensturm’s first
assignment of error is found not well-taken.
II. The trial court erred by failing to award reasonable
attorney fees to Mockensturm.
{¶ 40} In his second assignment of error, Mockensturm argues that the trial court
abused its discretion when it failed to award Mockensturm reasonable attorney fees under
the note, which provides that “[i]f any payment obligation under this Note is not paid
when due, the Borrower shall be obligated to pay all costs of collection, including
reasonable attorney fees * * *.” Although Mockensturm did not bring a separate claim
against McIlwain for attorney fees, his prayer for relief requested judgment “in the
amount of $4,596.22, plus interest, costs and attorneys’ fees.” The trial court did not
address the issue of attorney fees, thereby overruling the request sub silento. Jones v.
McAlarney Pools, Spas & Billiards, Inc., 4th Dist. No. 07CA34, 2008-Ohio-1365, ¶ 10.1
1
In cases, such as this, where the plaintiff does not invoke a specific statutory or rule
authority as a basis for its request for attorney fees and, instead, simply includes an
unspecified request for attorney fees in the prayer for relief, appellate courts do not view
the general request for fees as a separate and distinct claim for purposes of Civ.R. 54(B).
Jones at ¶ 12. See also PC Surveillance.net, LLC v. Rika Group Corp., 7th Dist.
Mahoning No. 11 MA 165, 2012-Ohio-4569, ¶ 16-17; Scott v. Lyons, 11th Dist.
19.
{¶ 41} To begin, Mockensturm cites an incorrect standard of review. If a contract
is clear and unambiguous, then its interpretation is a matter of law because there is no
issue of fact to be determined, and the trial court’s interpretation is reviewed de novo on
appeal. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108,
652 N.E.2d 684 (1995). “If the terms of the contract are unambiguous, the court
must enforce the intent of the parties as expressed by the contract.” Harris v. Reiff, 6th
Dist. Wood No. WD-03-056, 2003-Ohio-7264, ¶ 9. Moreover, although a prevailing
party in a civil action may not recover attorney fees as part of the costs of litigation under
the “American rule” that has been adopted by Ohio courts, there are certain exceptions to
that rule. Wilborn v. Bank One Cor., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d
396, ¶ 7. Relevant here, the American rule does not apply where “an enforceable contract
specifically provides for the losing party to pay the prevailing party’s attorney fees.” Id.{¶ 42} Here, the contract unambiguously states, “[i]f any payment obligation
under this Note is not paid when due, the Borrower shall be obligated to pay all costs of
collection, including reasonable attorney fees * * *.” Mockensturm sued McIlwain
claiming that he had not paid the balance due on the note, and the trial court concluded
that McIlwain did, in fact, have an outstanding payment obligation under the note that
was not paid when due. Accordingly, under the note, McIlwain is “obligated to pay all
costs of collection, including reasonable attorney fees.”
Ashtabula No. 2008-A-0032, 2009-Ohio-1141, ¶ 30; Knight v. Colazzo, 9th Dist. Summit
No. 24110, 2008-Ohio-6613, ¶ 9.
20.
{¶ 43} We find Mockensturm’s second assignment of error well-taken. Under the
unambiguous terms of the note, Mockensturm is entitled to recover reasonable attorney
fees. We therefore reverse and remand this matter to the trial court for a determination of
Mockensturm’s reasonable attorney fees.
III. Conclusion
{¶ 44} We find that the trial court’s judgment awarding a total of $58.80 to
Mockensturm was not against the manifest weight of the evidence. Accordingly, we find
Mockensturm’s first assignment of error not well-taken.
{¶ 45} We also find that Mockensturm is entitled to recover reasonable attorney
fees from McIlwain under the unambiguous language of the promissory note.
Accordingly, we find Mockensturm’s second assignment of error well-taken. We reverse
and remand this matter to the trial court for a determination of Mockensturm’s reasonable
attorney fees. The trial court’s judgment is affirmed in all other respects.
{¶ 46} We therefore affirm, in part, and reverse, in part, the January 9, 2020
judgment of the Maumee Municipal Court. The parties are ordered to split the costs of
this appeal under App.R. 24(A)(4).
Judgment affirmed, in part,
and reversed, in part.
21.
Mockensturm v. McIlwain
C.A. No. L-20-1035
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, 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/.
22.