COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67456 : TOM BUSINGER : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION STORE HOUSE, INC. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-253697 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH E. MAROSAN, ESQ. JAMES J. McDONNELL, ESQ. 6929 West 130th Street 936 Terminal Tower Parma Heights, Ohio 44130 Cleveland, Ohio 44113 NEAL M. JAMISON, ESQ. Assistant Law Director 6161 Engle Road Brook Park, Ohio 44142 - 2 - KARPINSKI, J.: Defendant-appellant Store House, Inc. ("Store House") appeals from a judgment of the trial court following a bench trial in favor of plaintiff-appellee Tom Businger in his action for conversion of personal property in a storage facility. The record demonstrates Businger filed a complaint against Store House in the trial court on June 15, 1993. Businger's complaint alleged the Store House "unlawfully locked" plaintiff out of the storage facility and converted his tools and personal property located in the storage unit. Businger's complaint prayed for compensatory and punitive damages. The Store House filed an answer denying the substantive allegations of the complaint and raised counterclaims for unpaid rent, damages to the storage facility, and conversion of electrical goods. Businger denied the allegations of the counterclaims by the Store House. The matter proceeded to a bench trial commencing May 12, 1994. Plaintiff Tom Businger testified on his own behalf and presented testimony of his brother James Businger. Tom Businger testified he rented a storage unit from the Store House on June 23, 1990, to store various equipment, tools, furniture and toys. Tom Businger subsequently fell behind in rental payments for the storage unit and agreed to perform odd jobs for the Store House. The president of defendant Store House, Thomas Kilbane, agreed in return to pay Tom Businger $5.00 per hour. James Businger, - 3 - plaintiff's brother, also performed work for defendant during November and December, 1991. Tom Businger testified that a dispute over payment arose between the parties on December 20, 1991. Tom Businger testified that Kilbane paid James Businger in cash. Because of a shortage of cash on hand, however, Kilbane attempted to pay Tom Businger by check. Tom Businger and Kilbane argued about payment and James Businger pushed Kilbane as the Busingers left the scene. The Busingers subsequently returned to the scene to speak with the police, whom defendant had called. Criminal charges were filed against the Busingers but were subsequently dismissed without trial. Tom Businger testified he was locked out of his storage unit by defendant on December 24, 1991. Tom Businger testified he was denied access to his tools and other property by the Store House until the time of trial in the case sub judice, approximately three and one-half years thereafter. Tom Businger stated he was unable to acquire a residential repair business from his former employer because he did not have his tools and maintained that he lost approximately $10,000 in earnings as a result. Tom Businger eventually obtained employment working for another residential contractor since he could not obtain his tools from the Store House. Tom Businger further testified he did not damage a door at the Store House premises or steal any electrical supplies and Kilbane never told him that defendant revoked a $398 credit for storage rent because of unsatisfactory work. - 4 - James Businger testified the only complaint by the Store House concerning unsatisfactory work related to minor plumbing work which his brother Tom corrected. James Businger testified he pushed Kilbane after the argument on December 20, 1991, because Kilbane hit him first and tried to prevent him from leaving the Store House premises. The Store House presented testimony from its president, Thomas Kilbane, and Dan Manley, a retired man who assisted operating the storage facility. Kilbane testified the Store House mailed a statement of account to Tom Businger on December 28, 1991, which indicated that Tom Businger owed the Store House $526.04 for more than ten months rent and late charges. Kilbane conceded the statement of account contained errors, including duplicative charges for the month of August, 1991, and did not contain all credits to Tom Businger's account, including a $50 payment made prior to the incident in December, 1991. The December 28, 1991, statement of account also revoked a $398 credit previously given to Tom Businger, since Kilbane deemed the plumbing work to be unsatisfactory. The account also did not record a $100 payment allegedly made in September, 1991, by Tom Businger. Kilbane's version of the December 20, 1991, dispute differed from the version presented by the Busingers. Kilbane testified the Store House agreed to employ the Busingers to complete a specific construction project for $3,340, rather than $5 per hour. Kilbane stated Tom Businger did not complete the work and - 5 - sought to obtain early payment. Kilbane testified Tom Businger stole a drill, screw gun, and various electrical equipment from the Store House offices following the dispute on December 20, 1991. Kilbane further stated Tom Businger broke a door jamb at the Store House on a prior occasion. Another witness was Dan Manley, a retirant who performed work for the Store House to obtain credit for his own storage unit rent. Manley denied the $100 receipt he signed was for rent Tom Businger made to the Store House. Manley stated he provided the receipt to Tom Businger on one occasion when Tom Businger requested Manley pay the $100 to a third person upon delivery of a vehicle. Manley further testified he observed Tom Businger put some unidentified items in his coat prior to leaving the Store House after the altercation on December 20, 1991. The trial court awarded Tom Businger $5,500 plus statutory interest and costs. The trial court's judgment entry provided that the Store House receive credit against $2,500 in damages upon the return of Tom Businger's personal property from the storage unit. The Store House timely appeals raising the following sole assignment of error: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS DEFENDANT RIGHTFULLY LOCKED PLAINTIFF OUT OF THE STORAGE FACILITY DUE TO THE ARREARAGE IN RENTAL PAYMENTS. The sole assignment of error of the Store House lacks merit. The Store House contends the trial court's judgment for conversion of Tom Businger's property is against the manifest weight of the evidence because the Store House properly locked - 6 - him out of the storage unit. The Store House also argues the damages awarded are excessive. It is well established, however, that a reviewing court may not substitute its judgment for that of the trial court when some competent, credible evidence supports the trial court's determination. Myers v. Garson (1993), 67 Ohio St.3d 610. Based on our review in compliance with this standard, the Store House has failed to show any error in the trial court's judgment. As noted above, the parties disputed the precise balance of the rental account for Tom Businger's storage unit prior to the lockout on December 24, 1991. The Store House maintained the account balance was $526.04, whereas Tom Businger presented conflicting evidence that no arrearage existed on the account. Tom Businger presented evidence that the Store House incorrectly calculated the balance on his account by (1) double-charging him $50 for the month of August, 1991, (2) improperly revoking $398 credit for services he performed, and (3) failing to credit $100 for a payment in cash to Dan Manley. The trial court resolved these conflicts in the evidence by finding no arrearage existed in Tom Businger's account as of December 24, 1991. If there was arrearage, the Store House was not justified in locking Tom Businger out of the storage unit and improperly denied him access to his property. Determinations concerning the credibility of the witnesses and weight to be given their testimony were for the trial court to make in this - 7 - bench trial, and we decline to substitute our judgment for that of the trial court. The Store House has likewise failed to demonstrate the trial court's damage award was against the manifest weight of the evidence. As noted by the trial court, it is well established that a party may recover both compensatory and punitive damages for conversion of property. Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St.3d 36; Meacham v. Miller (1992), 79 Ohio App.3d 35. The record sub judice demonstrates that for a period of approximately three and one-half years prior to trial, Tom Businger was improperly deprived of the use of substantial equipment, tools, auto parts, furniture, and toys for his four children. The Store House did not request the trial court delineate the precise basis and amount for each component of its award for the loss of use of this property in this case. Although the precise basis for the trial court's damage award is not clear, we decline defendant's invitation to speculate that the trial court improperly awarded Tom Businger lost profits. Under the circumstances, the Store House has failed to demonstrate that the total award of $5,500, or $3,000 upon return of Tom Businger's property, is against the manifest weight of the evidence. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his 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. Exceptions. PATTON, C.J., and NUGENT, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .