Bustillos v. Bell

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[Cite as Bustillos v. Bell, 2012-Ohio-3320.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY LISA M. BUSTILLOS, ET AL., PLAINTIFFS-APPELLANTS/ CROSS-APPELLEES, CASE NO. 5-11-44 v. MICHELLE BELL, ET AL., OPINION DEFENDANTS-APPELLEES/ CROSS-APPELLANTS. Appeal from Hancock County Common Pleas Court Trial Court No. 2009-CV-00226 Judgment Affirmed Date of Decision: July 23, 2012 APPEARANCES: John C. Filkins for Appellants/Cross-Appellees Robert B. Hollister for Appellees/Cross-Appellants Case No. 5-11-44 SHAW, P.J. {¶1} Plaintiff-appellants/cross-appellees, Lisa Bustillos and Rick Bustillos (hereinafter, where referred to collectively, the Bustillos ) appeal the November 1, 2011, judgment of the Hancock County Common Pleas Court awarding them $630 on their conversion claims against defendant-appellees/cross-appellants, Michelle Bell and David Bell (hereinafter, where referred to collectively, the Bells ). The Bells also appeal the November 1, 2011, judgment denying their counterclaim for, among other things, lost rent. {¶2} The facts relevant to this appeal are as follows. Plaintiff Lisa Bustillos is the daughter of defendant Michelle Bell. In January of 2005, the Bustillos began leasing property at 8517 Township Road 237, Findlay, Ohio from the Bells, with the intention of eventually purchasing the property. In January of 2008, the Bustillos stopped making payments on the residence. Sometime between January of 2008 and November of 2008, the Bustillos and the Bells had a falling out and were not on speaking terms. {¶3} In November of 2008, the Bustillos went to Texas and were still there in January of 2009. On January 9, 2009, the Bells went to the residence on Twp Road 237 and claimed that they found the back door kicked in with various items taken from the residence. On January 10, 2009, the Bells rented a UHaul trailer Case No. 5-11-44 and removed various items from the residence claiming that some of the items belonged to the Bells and the other items were taken to protect them. {¶4} Several days after the Bells entered the residence, the Bustillos returned to the property. The Bustillos claimed that many of their things were missing, and claimed that their house was damaged. The Bustillos accused the Bells of damaging the home and taking all of the items that were allegedly missing. The Bells disputed those claims. {¶5} On March 18, 2009, the Bustillos filed a complaint against the Bells seeking the return of specific personal property, or in the alternative its monetary value in excess of $47,000, taken from the residence at Township Road 237.1 The Bustillos also sought compensation for repairs they undertook on the home as a result of the damage they blamed on the Bells. {¶6} On May 14, 2010, the Bells filed their answer to the Bustillos complaint, denying all allegations and asserting several affirmative defenses.2 The Bells also filed a counterclaim against the Bustillos claiming that as a direct and proximate result of [the Bustillos] failure to pay rent, [the Bells] lost rents, lost the value of the property and incurred additional expenses which caused them to file bankruptcy. (Doc. 40). 1 Specific itemization of the personal property purportedly taken can be found in Plaintiff s Exhibit 5. The answer was not filed for over a year because the case had been stayed due to the Bells filing for bankruptcy. 2 Case No. 5-11-44 {¶7} On August 22-23, 2011, the case proceeded to a bench trial. The parties, as well as several family members and friends, testified to the court. Following the trial, the parties respectively filed proposed findings of facts and conclusions of law. (Docs. 73, 74). {¶8} On November 1, 2011, the trial court filed its Judgment Entry and Order. (Doc. 75). As to the Bustillos claim against the Bells for conversion, the trial court found that the Bustillos had established a right to possession to all but two of the items they were claiming were converted, but the trial court found that the Bustillos had only proven by a preponderance of the evidence that 10 items were actually converted by the Bells.3 The trial court awarded damages where damages were proven for the converted items and then awarded nominal damages for the other items where the court found value had not been proven. In total, the Bustillos were awarded $630 and the Bells were ordered to pay the court costs. {¶9} As to the Bells counterclaim, the trial court found that the Bells had not proven by a preponderance of the evidence that Plaintiffs [were] liable for unpaid rent on the property at 8517 Twp. Road. (Doc. 75). 3 The Judgment Entry and Order lists nine separate items: 1 dining room table, 5 dining room chairs, 1 refrigerator, 1 large zebra painting, 1 power washer, various bottles of homemade wine, 1 Harley Davidson motorcycle, 1 baker s rack, and 1 washer and dryer. A tenth item was included in the damage values section, 1 air compressor. The air compressor was one of the items that the Bells admitted removing from the residence. Thus while the court did not list the air compressor with the other nine items, it appears that the court implicitly found the air compressor was also converted. Case No. 5-11-44 {¶10} It is from the November 1, 2011 Judgment Entry and Order that both the Bustillos and the Bells appeal. The Bustillos assert the following assignment of error for our review. BUSTILLOS ASSIGNMENT OF ERROR THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT THE APPELLEES HAD WRONGFULLY CONVERTED THE APPELLANTS PERSONAL PROPERTY BUT THEN LIMITED APPELLANTS RECOVERY TO ONLY SOME OF THOSE ITEMS OF PERSONAL PROPERTY THAT APPELLEES ADMITTED REMOVING AND DID NOT AWARD DAMAGES AS TO ALL OF THE ITEMS OF PERSONAL PROPERTY TAKEN. {¶11} The Bells cross-appeal asserts the following assignment of error for our review. BELLS ASSIGNMENT OF ERROR THE TRIAL COURT S JUDGMENT THAT THE BELLS WAIVED THE BUSTILLOS LEASE PAYMENTS ON THE 8517 TOWNSHIP ROAD 237 PROPERTY FROM JANUARY 2008 THROUGH MARCH 2009 SHOULD BE REVERSED BECAUSE IT IS NOT IN ACCORD WITH OHIO LAW ON WAIVER AND BECAUSE IT IS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE. {¶12} Due to the nature of the disposition, we elect to address the assignments of error together. Case No. 5-11-44 Bustillos Assignment of Error and Bells Assignment of Error {¶13} In the Bustillos assignment of error, they challenge the findings of the court with regard to the items that had been proven converted and the value of those items. Essentially the Bustillos argue that the trial court s judgment was against the manifest weight of the evidence. {¶14} The Ohio Supreme Court has recently clarified and explained the standard of review to be applied when assessing the manifest weight of the evidence in a civil case. Eastley v. Volkman, --- Ohio St.3d ---, 2012-Ohio-2179. In Eastley, the court held that the standard of review for the manifest weight of the evidence established in State v. Thompkins, 78 Ohio St.3d 380 (1997), is also applicable in civil cases. Id. at ¶ 17-19. Consequently, when reviewing the weight of the evidence, our analysis must determine whether the trial court s judgment was supported by the greater amount of credible evidence, and whether the plaintiff met its burden of persuasion, which is by a preponderance of the evidence. Id. at ¶ 19. We are mindful that, in a bench trial, 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. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). It follows that, [i]f the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the Case No. 5-11-44 verdict and judgment, most favorable to sustaining the verdict and judgment. Id. at fn. 3, quoting 5 Ohio Jurisprudence 3d. Appellate Review, Section 60, at 191-92 (1978). {¶15} In the Bells assignment of error, they challenge the finding of the court that the Bells had not proven the Bustillos were liable for unpaid rent by a preponderance of the evidence. The trial court found first that the Bells waived their contractual right to payments, and second that the Bells have not proven by a preponderance of the evidence that [the Bustillos] are liable for unpaid rent on the property at 8517 Twp Road. (Doc. 75). {¶16} The Bells do not dispute that a trial court s finding of waiver is a factual determination within the province of the trier of fact. (Appt. s Br. 9); EAC Properties, LLC v. Brightwell, 10th Dist. No. 10 AP 853, 2011-Ohio-2373, ¶ 23. The question of waiver is usually a fact-driven issue and an appellate court will not reverse a finding of waiver absent a showing of an abuse of discretion. ACRS, Inc. v. Blue Cross and Blue Shield of Minnesota, 131 Ohio App.3d 450, 456 (8th Dist.1998), citing Phillips v. Lee Homes, Inc., (Feb. 17, 1994), Cuyahoga App. No. 64353, unreported, 1994 WL 50696. An abuse of discretion connotes more than an error in law or judgment but implies that the trial court s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Case No. 5-11-44 {¶17} In accordance with the foregoing standards of review, the record reveals that the trial court has thoroughly addressed all of the relevant factual and legal issues pertaining to this appeal in its Judgment Entry and Order dated November 1, 2011, awarding the Bustillos $630 for their conversion claims and denying the counterclaim of the Bells. Accordingly, we hereby adopt the final judgment entry of the trial court dated November 1, 2011, incorporated and attached hereto as Exhibit A,4 as our opinion of this case. For the reasons stated therein, both the Bustillos and the Bells assignments of error are overruled and the judgment of the Hancock County Court of Common Pleas is affirmed. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr 4 On page 7 of the November 1, 2011 Judgment Entry there is a clerical error with relation to the citation of Fisher v. Barker. The citation should read as 159 Ohio App.3d 745, 749 as opposed to 259 Ohio App. 3d 745, 749. Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44 Case No. 5-11-44

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