McCain v. Brewer , 2015 Ohio 198 ( 2015 )

[Cite as McCain v. Brewer, 2015-Ohio-198.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
PAMELA C. McCAIN :
:
Plaintiff-Appellee : Appellate Case No. 2014-CA-8
:
v. : Trial Court Case No. 14-CVI-001-0273
:
JAMES BREWER : (Civil Appeal from Darke County
: Municipal Court- Small Claims
Defendant-Appellant : Division)
:
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OPINION
Rendered on the 23rd day of January, 2015.
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MARK C. ENGLING, Atty. Reg. No. 0070870, and SEAN A. GRAVES, Atty. Reg.
No.0088233, Freund, Freeze & Arnold, Fifth-Third Center, 1 South Main Street, Suite
1800, Dayton, Ohio 45402-2017
Attorneys for Plaintiff-Appellee
JAMES BREWER, 8370 Stuck Road, Yorkshire, Ohio 45388
Defendant-Appellant, pro se
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FAIN, J.
{¶ 1} Defendant-appellant James Brewer, pro se, appeals from a judgment of the
Darke County Municipal Court, Small Claims Division, awarded against him in the amount
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of $1,435.00, plus costs and interest from May 8, 2014. Brewer contends that the court
erred by denying his request for written findings of fact and conclusions of law, by
admitting non-relevant evidence and by failing to consider evidence he submitted in his
defense.
{¶ 2} We conclude that there is evidence in the record to support the judgment.
We further conclude that we do not have jurisdiction to review the trial court’s order
denying Brewer’s request for findings of fact and conclusions of law, because no appeal
has been taken from that order.
{¶ 3} Accordingly, the judgment of the trial court is Affirmed.
I. The Landlord-Tenant Relationship
{¶ 4} Pamela C. McCain leased a house from Brewer, pursuant to a written lease
with a one-year term, commencing July 26, 2010, which converted to a month-to-month
tenancy after July, 2011. McCain occupied the apartment with the father of her child,
Donald, and their son, T. When McCain was incarcerated, Donald remained in the
house, and agreed to take care of her affairs. Brewer agreed to allow Donald to occupy
the house, as long as the rental payments continued, but a new lease was not entered
into.
{¶ 5} While McCain was still incarcerated, Donald died in the apartment, on April
8, 2012. Four days later, McCain contacted Brewer, who agreed to store her personal
property, but advised her that Donald’s family had already removed some of the personal
property from the house. McCain sent Brewer two letters, stating that she still wanted to
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occupy the house and that she was not abandoning her property. Brewer responded with
a letter informing McCain that the “house was no longer available for her use.” The letter
included a list of damages and cleaning needs, but no dollar amounts were provided to
estimate the cost of repairs. At no time did Brewer prepare or serve an eviction notice or
any other written notice to terminate the lease.
{¶ 6} McCain returned to the house when she was released on May 1, 2012, and
discovered that the house was empty. Brewer informed McCain that he would release the
property he had in storage when she paid $985 for back rent and unpaid utilities. McCain
testified that over the next year she made payments to Brewer, and each time he released
some of her belongings, but that many of her valuables were missing. McCain testified to
the loss of many items, including, but not limited to, bedroom furniture, a china cabinet,
jewelry, a washer and dryer, a refrigerator, a filing cabinet with personal records, a
computer, collector’s coins, family photos, a grill, a trampoline, a tent, a CD and DVD
collection, and an urn with her mother’s ashes. McCain submitted receipts and other
documentary evidence to support the purchase-price value of some items; these
documents were admitted as Plaintiff’s Ex. A. These documents itemize McCain’s
purchase price of some of her household goods, including a collectible coin set ($34.90),
jewelry ($237.93 & $80.00), Disney CD’s ($28.90, $32.86, & $44.84), Columbia House
DVD’s ($267.15), a Kmart bath set ($42.00), a toy marshmallow blaster ($24.95), and a
King size bed ($437.00), totaling $1,230.53. McCain also testified about the loss of other
personal property, but did not estimate its value, including bedding, 10 sets of curtains, a
trampoline, grill, washer, dryer, refrigerator, a tent and a jar of coins. The evidence also
reflects that McCain had paid a security deposit of $450 at the time the lease was first
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executed, which was never returned to her.
{¶ 7} Brewer testified that the house was left in poor condition, and a description of
the condition of the premises was entered as Defendant’s Ex. 1, but it did not contain any
dollar value for the damage or cost of repair. Brewer testified that when he gained
access to the house after Donald’s death, many items of personal property were already
gone, such as the coins and jewelry, which he presumed were taken by Donald’s family.
The court did not accept, as evidence, Brewer’s attempt to testify regarding what he was
told by officers and by an attorney. Neither party submitted a list itemizing the property
that Brewer did return to McCain.
II. The Course of Proceedings
{¶ 8} McCain brought this action in Small Claims Court seeking damages in the
amount of $3,000 for the loss of her personal property. Brewer did not file a counterclaim,
but presented the defense of abandonment. At the trial on May 8, 2014, all parties
testified and were allowed to present documentary evidence. A transcript of the hearing
was submitted for this appeal. On May 12, 2014, the court issued a judgment on a form
that is contained on the back side of the small-claim complaint, which states as follows:
This matter came on to be heard and upon consideration the Court
finds that the Defendant has been duly served with summons, and:
□ Defendant(s) has paid the judgment in full and the case is
dismissed.
□ Defendant is in default for answer or appearance.
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x Upon hearing.
□ Admission by Defendant.
There is due and owing to Plaintiff(s) from Defendant(s) for which
Plaintiff(s) shall have judgment the following:
Amount _$_1,435.00______
Interest 3%/yr. from 5.8.14
Costs __$ 78.00_________
{¶ 9} An entry was filed on May 12, 2014, notifying Brewer that a judgment entry
had been filed against him on May 12, 2014, that he had 30 days to appeal, and the entry
contained a Civ. R. 58 (B) certification that the judgment is a final appealable order. From
this judgment, Brewer appeals.
{¶ 10} On May 30, 2014, Brewer filed a motion for findings of fact and conclusions
of law, pursuant to Civ. R. 52. On June 3, 2014, an order was filed denying the request for
findings of fact and conclusions of law as untimely. Brewer’s notice of appeal does not
refer to the June 3rd order denying his request for findings of fact and conclusions of law;
it specifies the May 12, 2014 judgment as the judgment or order from which this appeal is
taken.
III. The Standard of Review
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{¶ 11} Brewer did not identify assignments of error, as required by App. R.
16(A)(3). In construing his pro se appeal, we shall review whether the judgment is against
the manifest weight of the evidence. When considering whether a judgment is against the
manifest weight of the evidence, an appellate court “must review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way
and created such a manifest miscarriage of justice that the judgment must be reversed
and a new trial ordered.” RLM Properties, Ltd. v. Brammer, 2d Dist. Champaign No.
2014-CA-6, 2014-Ohio-3509, ¶¶ 15-16. “A court of appeals must always be mindful of the
presumption in favor of the finder of fact.” Eastley v. Volkman, 132 Ohio St.3d 328,
2012–Ohio–2179, 972 N.E.2d 517, ¶ 21.
{¶ 12} “ ‘The underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.’ Id. ‘A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the credibility of
the witnesses and evidence submitted before the trial court. A finding of an error in law is
a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and
evidence is not.’ ” (Citations omitted.) Marsh v. Lansing Gardens Apts., 7th Dist. Belmont
No. 07-BE-32, 2008-Ohio-3404,¶ 9, quoting Seasons Coal Co., Inc. v. Cleveland 10 Ohio
St.3d 77, 80–81, 461 N.E.2d 1273 (1984).
IV. The Court’s Calculation of Damages Was
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Supported by Credible Evidence
{¶ 13} McCain’s small claims filing can be construed as an action based on
conversion and violations of Ohio Landlord Tenant law, Chapter 5321 of the Revised
Code. Although the judgment entry does not review the evidence, from the transcript it
can be inferred that the court ruled against Brewer based on undisputed evidence that the
lease was not lawfully terminated at the time McCain’s possessions were removed.
Although the contract terms specified a one-year lease term, ending in 2011, Brewer’s
continual acceptance of monthly rent converted the lease to a month-to-month tenancy.
Month-to-month leases can arise by implication or by oral agreement. Amick v. Sickles,
177 Ohio App.3d 337, 2008-Ohio-3913, 894 N.E.2d 733, ¶ 19 (4th Dist.).
{¶ 14} Pursuant to R.C. 5321.04(A)(9), a landlord has an obligation to follow
statutory procedures in order to evict a tenant and terminate a residential lease. Also,
under R.C. 5321.16, the landlord has statutory obligations with regard to the treatment of
security deposits. The failure of the landlord to follow the statutory procedures gives the
tenant the right to recover damages. At no time did Brewer issue an eviction notice
required by R.C. 1923.04, a notice of termination required by R.C. 5321.17(B), or the
ten-day notice required under the damage provision in the party’s written lease
agreement. Ex. A.
{¶ 15} In a small-claims proceeding, the trial court is the trier of fact and has the
duty to determine the credibility of the witnesses. There is nothing in the record to
discredit the testimony of McCain with regard to the valuation of her personal property.
Damages may be based upon a party’s testimony of the value of his or her personal
property. Generally, a witness must be qualified as an expert in order to testify as to the
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value of property, but an exception exists for owners of personal property, because the
owner, “aided by experience, has some particular means of forming an intelligent and
correct judgment as to the value of the property in question beyond that which is
possessed by people generally.” (Citation omitted.) Carpenter v. Johnson, 196 Ohio
App.3d 106, 2011-Ohio-4867, 962 N.E.2d 377, ¶ 16 (2d Dist.)
{¶ 16} The record also reveals that McCain presented sufficient evidence to
prevail on a claim for conversion. The three basic elements of conversion are: “(1)
plaintiff'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.” Perez Bar & Grill v. Schneider, 9th Dist. Lorain No. 11CA010076,
2012-Ohio-5820, ¶ 10. The trial court had sufficient evidence from which to conclude
that McCain had a right to the possession of the household goods, that Brewer wrongfully
took possession, because he had not properly terminated the lease, and that McCain
suffered damages in an amount equal to the value of her personal property that she was
able to establish.
{¶ 17} Although no counterclaim was filed, Brewer attempted to raise a defense of
abandonment. Abandonment has been defined as “property over which the owner has
relinquished all right, title, claim, and possession with the intention of not reclaiming it or
resuming its ownership, possession or enjoyment.” Doughman v. Long, 42 Ohio App.3d
17, 21, 536 N.E.2d 394 (12th Dist.1987). “Abandonment requires affirmative proof of the
intent to abandon coupled with acts or omissions implementing the intent. Mere non-use
is not sufficient to establish the fact of abandonment, absent other evidence tending to
prove the intent to abandon.” Perez Bar & Grill v. Schneider, at ¶ 32.
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{¶ 18} The record reveals that during McCain’s incarceration, the property
remained in possession of her co-tenants, Donald and T., and Brewer continued the
landlord-tenant relationship. Within four days of Donald’s death, McCain notified Brewer
that she did not intend to abandon the property, and that she would return in three weeks.
The trial court had sufficient evidence to conclude that McCain had not abandoned the
property.
{¶ 19} Brewer’s assertion that the trial court failed to consider his evidence of
damages to the premises as an offset to the calculation of damages owed to McCain is an
issue that was not properly before the court. Brewer did not file a counterclaim for
damages, and had failed to follow statutory procedures to retain the security deposit.
While small-claims procedure does not contemplate the filing of an answer or other
responsive pleading, it does contemplate the filing of counterclaims. Rick's Foreign
Exchange Co. v. Greenlee, 2d Dist. Montgomery No. 26096, 2014-Ohio-4505, ¶ 17.
{¶ 20} Based on the record before us, we conclude that the trial court’s judgment
is not against the manifest weight of the evidence. This is not the exceptional case
where a trier of fact has lost its way, creating a manifest injustice. Accordingly, Brewer’s
inferred assignment of error that the judgment is against the manifest weight of the
evidence is overruled.
V. Brewer Has Not Appealed from the Order Denying his Civ. R. 52
Motion
{¶ 21} To invoke the jurisdiction of an appellate court, a party must file a notice of
appeal in compliance with App. R. 3(D), which requires the designation of the specific
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“judgment, order or part thereof appealed from.” Brewer’s notice of appeal only
designates the May 12th monetary judgment; it does not refer to the June 3rd order
denying his Civ.R. 52 motion. We have held that our jurisdiction is not invoked to
consider a trial court’s post-judgment order overruling a post-judgment motion, unless
that order is designated in the notice of appeal. Tucker v. Pope, 2d Dist. Miami No.
2009-CA-30, 2010-Ohio-995, ¶ 28.
{¶ 22} Therefore, this court is without jurisdiction to consider whether the trial
court abused its discretion when it overruled Brewer’s post-judgment motion, which he
filed after the seven-day deadline established by Civ. R. 52.
VI. Conclusion
{¶ 23} No reversible error having been found, the judgment of the trial court is
Affirmed.
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FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mark C. Engling
Sean A. Graves
James Brewer
Hon. Julie L. Monnin