COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60440 DAVID NOWATNIAK : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION FRANK RAJAVICH, ET AL. : : : : Defendant-Appellants: : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 130191 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ALAN C. ROSSMAN Schreiber, Rossman & Associates Co., L.P.A. 330 Standard Building Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT J. BELINGER 1276 West Third Street Suite 216 Cleveland, Ohio 44113 - 2 - MARTIN, J.: Defendant appeals from the order of the trial court render- ing judgment for plaintiff in the amount of $13,010 after a finding that defendant's actions toward plaintiff's property 1 constituted conversion. The relevant facts follow. Plaintiff is a self-employed auto mechanic who collects antique cars as a hobby. Defendant is the owner and operator of Frank's Place, an auto body shop. As a portion of his business, defendant accepted as "fill-in work" old cars for restoration. Plaintiff and defendant were friends since about 1977 and plain- tiff occasionally did work for the defendant. Sometime in the early 1980s, plaintiff delivered to Frank's Place a 1932 Ford vehicle. The vehicle was left outside defendant's building. Sometime thereafter, plaintiff also delivered to defendant's place of business the following, viz., a 1934 Ford vehicle with fenders for the 1932 Ford inside it, a 1973 Chevrolet chassis, and some automobile parts for the Ford vehicles. However, starting in June, 1984, plaintiff and defendant had a "falling out." Although the vehicles remained at defendant's place of business, apparently no work was done on them. 1 Since a portion of the transcript of proceedings of the trial court was unavailable for purposes of appeal, certain facts recited herein are obtained from the Statement of the Evidence prepared by the trial court and submitted to this court pursuant to App. R. 9(C). - 3 - In 1987, plaintiff filed a complaint against defendant in the Cuyahoga County Court of Common Pleas alleging in pertinent part the following: *** On or about June 1984, plaintiff delivered a 1932 Ford two door sedan, and a 1934 Ford two door sedan to defendants for the purpose of having body repairs performed. 5. Plaintiff and defendant agreed that defen- dant would make the necessary body repairs for $10.00 per hour labor charge plus materials. 6. Defendant has refused to make contracted for repairs on the automobiles. 7. Defendant has refused to return said automobiles to plaintiff in spite of repeated re- quests to do so. Plaintiff had requested the return of the vehicles on March 31, 1987. 8. Defendant has removed and or sold parts of plaintiff's automobiles. 9. Defendant has not performed his promise and has refused to repair plaintiff's automobiles. 10. Defendant has breached said contract with plaintiff and has through willful, wanton and malicious actions tried to collect money from plaintiff for allegedly storing said automobiles knowing this claim to be spurious. * * * 13. *** [P]laintiff demanded that defendant return the vehicles but defendant has wrongfully refused to do so. Said conversion is willful, wanton, fraudulent and maliciously undertaken. 14. The reasonable market value of these vehicles on March 31, 1987, was in excess of $20,000. Plaintiff prayed for return of the vehicles, compensatory damages and punitive damages. - 4 - Defendant filed an answer denying the allegations of plain- tiff's complaint, stating plaintiff's damages were caused by his own negligence, and stating plaintiff had abandoned his property. Defendant also filed a two-count counterclaim stating the follow- ing: (1) that he had agreed in 1982 to store automobile parts for plaintiff for a reasonable time because plaintiff had been "cited" for having "abandoned" parts in his yard, however "[A]fter Two (2) years had elapsed, the defendant notified the plaintiff to remove the parts or commence paying storage charges at the rate of $10.00 per day for inside and and [sic] $5.00 per day for outside storage; *** the plaintiff failed to remove the parts and the accrued storage char- ges amount of [sic] $35,980.00 as of July, 1987"; and, further, that (2) defendant made partial repairs to plain- tiff's 1978 Buick Regal but plaintiff refused to pay defendant's bill in the amount of $500. Defendant therefore prayed plain- tiff's suit be dismissed and demanded judgment on his counter- claim. Plaintiff filed an answer to the counterclaim. Plaintiff denied he had requested defendant to store automobile parts, but admitted he had been "cited." Plaintiff stated the storage was for the automobiles "until work was completed." Plaintiff denied the allegations defendant made concerning the storage charges and the repair charges. The case proceeded to arbitration. The arbitrators heard testimony and received evidence; thereafter, on May 27, 1988, the following award was made: $5,010.00 to plaintiff on his - 5 - complaint, "for plaintiff on defendant's Cross-Claim [sic] at plaintiff's costs." On June 13, 1988, defendant appealed the arbitrators' award to the trial court. The record reflects the case was then placed on the trial court's trial list. Prior to trial, the record also reflects the parties made the following stipulations: 1) 1934 Ford 2 Door Sedan (80% complete) has a fair market value of $5,000.00. 2) 1932 Ford 2 Door Sedan (if Restored) has a fair market value of about $6,000.00. 3) 1932 Ford parts that were missing have a value of about $3,000.00. 4) Monte Carlo Chassis frame delivered to Frank's Place July, 1984, to be used for parts on repairs. 2 On June 13, 1990, a bench trial commenced. Plaintiff and his two witnesses testified plaintiff deliv- ered a 1932 Ford vehicle to defendant's place of business some- time in 1984. Plaintiff testified he bought this vehicle for $425. Plaintiff further testified that although the vehicle was left outside defendant's building, plaintiff covered the vehicle with a "plastic visqueen covering to protect it from the weath- er." Plaintiff and his two witnesses further testified plaintiff also delivered to defendant's place of business in 1984 a 1934 2 Due to the disappearance of the first court reporter, the testimony of plaintiff and his two witnesses and the testimony of defendant's first three witnesses is gleaned from the trial court's Statement of the Evidence. - 6 - Ford vehicle with fenders for the 1932 Ford inside it, and a 1973 Chevrolet chassis. Plaintiff testified he paid $2,000 for the 1934 Ford and $10 for the chassis. The 1934 Ford was dismantled and taken inside defendant's building. Plaintiff and his wit- nesses stated these deliveries occurred in 1984. Plaintiff further testified that, concerning the vehicles, he made an oral agreement with defendant, viz., defendant was to restore the two Ford vehicles as he had time at a rate of $10 per hour plus costs. Plaintiff was also to do work for defendant in return for the restoration work. Plaintiff stated no time period for completion or estimate of total cost was discussed however. Furthermore, plaintiff stated that his relationship with defen- dant "went downhill" after June, 1984. Therefore, after that time he never did any work for defendant; however, plaintiff would "stop by" defendant's place of business or call periodical- ly "to find out what was being done." Plaintiff further testi- fied as follows: (1) he never paid any money to defendant for work done on the vehicles; (2) he elected not to carry any insurance on the vehicles; (3) he had no knowledge of any work being done on the vehicles since June, 1984, other than the 1934 Ford was "reprimed"; and (4) prior to litigation he never re- ceived a storage bill from defendant. Defendant then presented the testimony of four witnesses on his behalf. The first witness, a business acquaintance of defen- dant, testified he saw a 1932 Ford vehicle on defendant's prem- - 7 - ises in 1982; it was "basically a body shell with no fenders" and was never observed to have a covering on it. Defendant's second witness testified that in 1981 he ob- served on defendant's premises a 1932 Ford "body on a chassis with wheels" that was left uncovered. The third witness, an employee of defendant, testified that the 1932 Ford was owned by plaintiff and was on defendant's premises "for as long as he [the witness] could remember." This witness also stated he saw plaintiff deliver a 1934 Ford "with some fenders inside of it" in 1981 or 1982 which was then dismantled and put into defendant's shop. He stated plaintiff also delivered many "miscellaneous" automobile parts. The fourth witness, a former employee of defendant, testi- fied he saw plaintiff deliver a 1932 Ford body to defendant's place of business in 1980; however, he had not been "back there" since 1981. This witness testified that if the 1932 Ford had been properly restored it would be worth $25,000. Defendant testified that his automobile repair shop had been in business nineteen years and that he had some vehicles which were antiques. He testified in 1980 plaintiff delivered a 1932 Ford body shell but did not deliver parts, and he permitted plaintiff to leave it so plaintiff "wouldn't be cited" for having it in his yard. He stated plaintiff delivered the Chevrolet chassis about 1983. Concerning the 1934 Ford, defendant stated plaintiff "dropped off" one in 1981, then in 1983 delivered one - 8 - that belonged to defendant. As proof that defendant had bought a 1934 Ford, defendant introduced into evidence what was purported to be a receipt dated June 23, 1981 from a Greg Beussey, stating the following: Received of Frank Rajavich $2400 for 1934 Ford two-door sedan body parts and motor, no title. Defendant testified plaintiff had done some work for him prior to June, 1984. He testified the 1932 Ford was outside his shop for approximately eight years and plaintiff had wrapped it in "visqueen" in 1980. He further stated he never discussed restoration work with the plaintiff and plaintiff never delivered pieces or parts to be used in restoring any vehicles. Defendant identified Plaintiff's Exhibit 1 as a bill defendant sent to plaintiff for storage of items plaintiff had "dropped off" at Frank's Place, including a 1932 Ford, a Monte Carlo chassis, and 4 a 1934 Ford sedan. Defendant stated the following with regard to Plaintiff's Exhibit 1: A. The bills cover 7-30-84 through 6-15-86. The reason for 7-30-84 is that when he was there in June of '84, he wanted one month to get his stuff out and I told him at the time that after one month, I was going to start charg- ing for storage. Q. What did you charge? A. Inside storage at $10 a day. Outside storage $5 dollars a day. On this other one, his 3 None of the exhibits submitted into evidence during the trial are contained in the record on appeal. 4 See Footnote 3. - 9 - other bill here is from 7-17-86. If you notice, it was two years later when he final- ly came down and asked for some additional time to come with some dollars to pay for the stuff. And I said, "Okay. How long do you want?" He said, "I'll need another month." I said, "Take two months." Q. Are you normally -- do you make it a normal practice to charge for storage? A. No. Defendant stated that although plaintiff's 1934 Ford was brought inside the building at his place of business, he did not know where it was or if it was still on the property. The trial court examined defendant regarding the purported receipt as follows: THE COURT: Well, so he did drop off with you a '32 Ford and a '34 Ford? THE WITNESS: Yes. THE COURT: Okay. Now, can you explain why this receipt is the last one in this book? THE WITNESS: Because it was just written. I have no idea, sir. THE COURT: There are blanks afterwards. THE WITNESS: Afterwards, I probably didn't use it anymore. THE COURT: Can you explain why that's the only one in the book that's not blurred like all of the others? THE WITNESS: I don't know. I just closed it up and put it away and I looked a long time for that book. It was just put away. On cross-examination defendant admitted the receipt was not "found" until subsequent to the arbitration hearing. - 10 - Furthermore, with regard to the 1932 Ford defendant stated the following: Q. And it was covered originally, correct? A. It was never covered. He wrapped some visqu- een around it just before the winter of, just before the winter of '80. Q. How are you sure about the year of 1980? A. It was 1980, I'm sure. Q. Well, when was that delivered to you? A. This '32 Ford was delivered to me -- he dropped the car off in June of 1980. With regard to his storage claim, defendant made the following statements on cross-examination: Q. So it's basically netting $100-$200. You are not in business to store, are you? A. No. Q. And you are not setup as a storage facility, are you, sir? A. No. Q. Now, did you ever bill David Nowatniak the storage charges prior to this litigation? A. No, I didn't, sir. Q. All right. Do you remember ever testifying at the deposition that you had in fact sent Mr. Nowatniak a bill in 1985 or 1986 for storage? A. I might have sent him one. I don't recall now. Finally, defendant's testimony on cross-examination was as follows: - 11 - Q. The Judge just asked you about the second '34 Ford. How many '34's did he [the plaintiff] drop off there that were his? A. I would say none. Q. Now you have one listed though in storage? A. Well, that was the only one that he claimed was his. That's his. Q. He was saying it wasn't his, but you are saying it is his? A. Yes, well I have, right now I have one, two, three of them myself and I have a Roadster and what have you. Q. In 1984, to the best of your knowledge, was there any 1934 Ford bodies on your premises that belonged to David Nowatniak? That's what I am asking. A. I would say the one that was parked in the back and it's still there. The transcript reflects that at the end of the testimony a motion was made to admit the exhibits and final arguments were heard by the trial court. Thereafter, on August 7, 1990, the trial court issued its findings of fact and conclusions of law, stating in pertinent part the following: FINDINGS OF FACT * * * 2. On or about June of 1984, he [plaintiff] owned a 1932 Ford. This vehicle was depicted in Plaintiff's Exhibit A and B, as a complete vehi- cle. The fenders had been removed prior to its delivery to Frank's place. 3. The vehicle was kept in Earl Shepherd's garage. On or about June, 1984, plaintiff and Earl Shepherd delivered the 1932 Ford to Defendant - 12 - Frank Rajavich. The car was covered to protect it from the weather. 4. The 1932 Ford had a fair market value of $6,000.00. 5. Plaintiff also owned a 1934 vehicle which was approximately 80% complete and had a fair market value of $5,000.00. 6. The 1934 Ford was owned by Plaintiff. 7. On or about June, 1984, Plaintiff, in the company of his wife, delivered this automobile to Defendant Frank Rajavich. It was taken inside Frank's Place. 8. Frank Rajavich owns and operates the business of Frank's Place, an auto body shop. As fill-in work, he accepts old and antique cars for restoration. 9. The 1932 and 1934 Fords were delivered to Frank's Place by Plaintiff for purposes of restorative work to be performed. Frank Rajavich accepted these as "fill-in" work. 10. A 1973 Monte Carlo chassis was also delivered to be utilized in the restoration of the 1934 Ford. 11. By April, 1987, the 1932 Ford had become very deteriorated from being left outside, exposed to the elements. No restorative work had been performed on the vehicle. 12. It was missing approximately $3,000.00 in parts. (See stipulations). 13. In April, 1987, Plaintiff demanded return of the 1934 Ford. Mr. Rajavich failed to return the 1934 Ford. 14. Mr. Rajavich claimed the 1973 chassis had disappeared from the lot. 15. Mr. Rajavich is not in the storage busi- ness and does not have official storage facilities on his lot. - 13 - 16. There was no paper work transacted for the restoration work. - 14 - CONCLUSIONS OF LAW 1. A mutual benefit bailment was created when plaintiff delivered to defendant the vehicles listed above, pursuant to an agreement. * * * 3. Defendant failed to exercise ordinary care to protect the 1932 Ford, and this failure caused damage to plaintiff in the sum of $3,000.00. The evidence in this case could also support a finding of conversion of the missing 1932 Ford parts, but the Court will extend to defendant the benefit of the doubt on this point. 4. Defendant's claim of ownership of the 1934 Ford -- which claim continued right into the trial (see Defendant's Exhibit 2) -- and refusal to return the 1934 Ford constituted conversion of said property. 5. Defendant's claim that the 1973 Monte Carlo chassis was taken by unknown parties is not believable; his failure to return said property upon plaintiff's demand constitutes conversion. 6. The measure of damages for conversion is the fair market value of the property at the date of conversion, which was April 1, 1987. The fair market value of the 1934 Ford was $5,000.00. The fair market value of the 1973 Monte Carlo chassis was $10.00. Plaintiff is also entitled to inter- est at the legal rate on $5,010.00 from April 1, 1987. 7. The facts in this case demonstrate a wanton and reckless conversion, particularly defendant's effort to establish title to the 1934 Ford in his name (see Defendant's Exhibit 2, which the Court considers to be spurious). Therefore the Court awards $5,000.00 as punitive damages. * * * 9. Plaintiff is entitled to recover judgment from defendant in the amount of $13,010, plus interest at the legal rate on $5,010.00 from April 1, 1987, plus interest on the total amount from - 15 - the date of this judgment, and the costs of this action. 10. Judgment is awarded to Plaintiff on defendant's counterclaim. Defendant has filed a timely appeal from that order of the trial court and cites three assignments of error for review. Defendant's first assignment of error follows: THE TRIAL COURT ERRED IN FINDING THAT A MUTUAL BENEFIT BAILMENT WAS CREATED AS THIS FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INCONSISTENT WITH THE FINDING AGAINST THE APPEL- LANT ON HIS COUNTERCLAIM. This assignment of error lacks merit. Defendant makes several arguments with respect to this assignment of error. First, he argues since the evidence showed plaintiff never did any work for defendant after plaintiff delivered the vehicles, the parties had, at most, a "gratuitous 5 bailment." However, the evidence that plaintiff delivered the vehicles and automobile parts to defendant's place of business was uncon- troverted. Furthermore, although they differed concerning the terms of an agreement, both plaintiff and defendant testified defendant agreed to let plaintiff keep the vehicles and automo- bile parts on his property after they were delivered. 5 Defendant defines this term thusly: Another name for a depositum or naked bailment, which is made for the benefit of the bailor and is not a source of profit to the bailee. (Emphasis in original.) - 16 - In his testimony defendant admitted: (1) the 1932 Ford was in poor condition when plaintiff was finally able to recover the vehicle subsequent to instituting suit against defendant; (2) the Chevrolet chassis "disappeared" from defendant's lot; and (3) plaintiff never recovered a 1934 Ford. In order to establish a prima facie case against a bailee in an action sounding in contract, a bailor need prove only (1) the contract for bailment, (2) delivery of the bailed property to the bailee and (3) failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment. (David v. Lose, 7 Ohio St. 2d 97 [36 O.O. 2d 81], paragraph one of the syllabus, followed.) (Emphasis in original.) Loewenstine v. Delta Air Lines, Inc. (1982), 7 Ohio App. 3d 185, paragraph one of the syllabus. Hence, it is clear plaintiff in the case sub judice estab- lished a prima facie case of bailment. Concerning the terms of the bailment, the Statement of the Evidence submitted to this court states that plaintiff's testimo- ny was as follows: 6) That an oral agreement was made between the Plaintiff and Defendant whereby the Defendant was to restore the 1932 and 1934 Ford at a rate of $10.00 per hour plus costs. The Defendant was to work on the vehicles whenever he had time and keep him informed as to progress and cost. * * * 11) That the defendant was to be paid for his work on a barter system ie., the Plaintiff would do work for the Defendant in return for the work done in restoring the 1932 and 1934. Plaintiff had performed work prior to 1984. - 17 - From this evidence the trial court determined there existed a mutual benefit bailment between the parties. A mutual benefit bailment is defined as a bail- ment arising by operation of law or express con- tract, which exists where personal property is delivered by the owner to another person. Both parties benefit in the exchange. Mills v. Liberty Moving & Storage, Inc. (1985), 29 Ohio App. 3d 90. See, also, Pasan v. Zoldak and Kruzansky (Aug. 21, 1986), Cuyahoga App. Nos. 50706 and 50707, unreported. Plaintiff's evidence was that defendant was given custody and control of the vehicles for the purpose of repair and would be compensated for services rendered. This evidence supports the trial court's finding that there was a mutual benefit bailment. Cf. Knight v. Apcoa, Etc. (Dec. 21, 1972), Cuyahoga App. No. 31829, unreported. It is well within the trial court's preroga- tive to choose to believe plaintiff's testimony rather than that of defendant. State v. DeHass (1967), 10 Ohio St. 2d 230. Defendant cannot take possession of plaintiff's automobile in order to pursue its commercial enterprise and at the same time consider itself a gratuitous bailee. Edwards v. Crestmont Cadillac (1979), 64 Ohio Misc. 1. Defendant's other arguments regarding this assignment of error make reference to exhibits not contained in the record on appeal. However: A presumption of validity attends the trial court's action. In the absence of an adequate record, which is the appellant's responsibility, see App. R. 9, we are unable to value the merits of the assignments of error and must affirm the - 18 - trial court's decision. Knapp v. Edwards Laborat- ories (1980), 61 Ohio St. 2d 197, 199, 15 O.O. 3d 218, 220, 400 N.E. 2d 384, 285; Meinhard Commer- cial Corp. v. Spoke & Wheel, Inc. (1977), 52 Ohio App. 2d 198, 201-202, 6 O.O. 3d 180, 182, 368 N.E. 2d 1275, 1277. (Emphasis added.) Volodkevich v. Volodkevich (1989), 48 Ohio App. 3d 313; see, also, Columbus v. Hodge (1987), 37 Ohio App. 3d 68. Moreover, in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, the Ohio Supreme Court stated as follows: While we agree with the proposition that in some instances an appellate court is duty-bound to exercise the limited prerogative of reversing a judgment as being against the manifest weight of the evidence in a proper case, it is also impor- tant that in doing so a court of appeals be guided by a presumption that the findings of the trier- of-fact were indeed correct. 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. The interplay between the presumption of correctness and the ability of an appellate court to reverse a trial court decision based on the manifest weight of the evidence was succinctly set forth in the holding of this court in C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 [8 O.O. 3d 261]: "Judgments supported by competent, credi- ble evidence going to all the essential ele- ments of a case will not be reversed by a reviewing court as being against the manifest weight of the evidence." In the case sub judice, the parties stipulated as to the value of the items delivered to defendant's place of business. Furthermore, the judgment of the trial court that there was - 19 - created between the parties a mutual benefit bailment was based on competent, credible evidence. Defendant has failed to support his argument that such a finding was inconsistent with granting judgment for plaintiff on defendant's counterclaim. Therefore, the judgment of the trial court was not against the manifest weight of the evidence. Accordingly, defendant's first assignment of error is over- ruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED IN AWARDING THE FULL VALUE OF THE VEHICLES AS THERE WAS NO EVIDENCE THAT THE APPELLEE MADE ANY ATTEMPT TO MITIGATE DAMAGES. This assignment of error also lacks merit. Defendant argues since the evidence demonstrated a lack of due care on plaintiff's part, this should have been taken into consideration in the trial court's award of damages. This argument is unpersuasive. As hereinbefore stated, the decision of the trial court is entitled to a presumption of validity. Knapp v. Edwards Labora- tories (1980), 61 Ohio St. 2d 197. Moreover, the stipulations regarding the value of the items delivered to defendant's place of business are contained in the record on appeal. Because defendant failed to deliver the property to plaintiff, the trial court could award plaintiff the reasonable value of that property. Pazan v. Zoldak and Kruzansky, supra. - 20 - Therefore, the trial court did not err in awarding the full value of the vehicles. Accordingly, defendant's second assignment of error is over- ruled. Defendant's third assignment of error follows: THE TRIAL COURT ERRED IN FINDING THAT THE APPELLEE WAS THE OWNER OF THE 1934 FORD AND IN AWARDING PUNITIVE DAMAGES FOR THE ALLEGED CONVERSION. This assignment of error also lacks merit. Defendant argues his evidence , viz., the receipt entered into evidence as part of Defendant's Exhibit 2, supported his claim of ownership of the 1934 Ford vehicle; therefore, the award of punitive damages was improper. Regarding the purported receipt, however, the trial court, after a visual inspection of the evidence and after personally examining defendant, specifically determined defendant's receipt was "spurious." It is well settled that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass, supra. The exchange between the trial court and defendant was as follows: THE COURT: Okay. Now, can you explain why this receipt is the last one in this book? THE WITNESS: Because it was just written. I have no idea, sir. THE COURT: There are blanks afterwards. THE WITNESS: Afterwards, I probably didn't use it anymore. - 21 - THE COURT: Can you explain why that's the only one in the book that's not blurred like all of the others? THE WITNESS: I don't know. I just closed it up and put it away and I looked a long time for that book. It was just put away. Therefore, it is clear the trial court's determination that defendant made a conscious effort to falsely establish title to the 1934 Ford in his name was supported by the testimony and a careful consideration of the evidence. Defendant's efforts to commit a fraud upon the court, coupled with his intentional deprivation of plaintiff's property, constituted egregious conduct which warranted an award of puni- tive damages. Charles R. Combs Trucking, Inc. v. International Harvester Co. (1984), 12 Ohio St. 3d 241; Preston v. Murty (1987), 32 Ohio St. 3d 334; Villella v. Waikern Motors, Inc. (1989), 45 Ohio St. 3d 36. Accordingly, defendant's third assignment of error is also overruled. The judgment of the trial court is affirmed. - 22 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. JOHN F. CORRIGAN, P.J., and HARPER, J., CONCUR JUDGE WILLIAM J. MARTIN* *Judge William J. Martin, Carroll County Common Pleas Court, Sitting by Assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .