COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67526 MICHAEL P. SOCHA : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : IVAN SAWCHYN : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-227956. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Dale M. Hartman, Esq. 950 Leader Building Cleveland, OH 44114 For Defendant-Appellee: Daniel J. Ryan, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 Ivan Sawchyn, pro se 14410 Uhlin Drive Middleburg Heights, OH 44130 -2- DAVID T. MATIA, J.: Michael Socha, plaintiff-appellant, appeals from the jury verdict and judgment of the Cuyahoga County Court of Common Pleas in favor of Ivan Sawchyn, defendant-appellee. Plaintiff-appellant assigns nine errors for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS On February 28, 1992 Michael Socha, plaintiff-appellant, filed a conversion action in the Cuyahoga County Court of Common Pleas against Ivan Sawchyn, defendant-appellee. The complaint alleged that defendant-appellee had converted certain items of plaintiff- appellant's personal property including six prefabricated sound module rooms purchased at an auction at Cleveland State University as well as office equipment and furniture. Defendant-appellee filed an answer and counterclaim for storage fees and damages. Plaintiff-appellant, who had known defendant-appellee for approximately thirty years, purchased the sound module rooms with the intention of incorporating them into an alleged invention he had been developing. Defendant-appellee apparently agreed to allow plaintiff-appellant to store the sound modules, office equipment and furniture in a vacant commercial building located at 7177 West 130th Street in Parma, Ohio with the understanding that if defendant-appellee leased the property, the sound modules, office equipment and furniture would have to be moved out with as little as three days notice. Initially, defendant-appellee did not charge rent for the use of the building. -3- Plaintiff-appellant stored the property at defendant-appellee's building rent free from January 1991 until August 1991. At that time, defendant-appellee began charging $30 per month rent. There is a dispute as to whether the $30 per month rent included utility costs. During October, November and December 1991, defendant-appellee padlocked the building effectively prohibiting plaintiff-appellant from gaining access to the property located inside. Various monetary demands were made by defendant-appellee for storage fees, additional rent, utilities and a security deposit. Allegedly defendant-appellee insisted that these fees be paid before plaintiff-appellant could have access to the property. No fees were paid by plaintiff-appellant who alleged that such fees were exorbitant, unsubstantiated and unreasonable. In addition, plaintiff-appellant argued that defendant-appellee's restrictions and conditions were constantly changing making compliance extremely difficult. Defendant-appellee notified plaintiff-appellant that if conditions for removal of the property were not met the property in question would be considered abandoned and sold. Sometime during late December 1991 or early January 1992 defendant-appellee sold one of sound modules to the Solon Board of Education for a purchase price of approximately $5,000. In addition, some of the office furniture was sold. The remaining sound modules, office equipment and furniture were moved by defendant-appellee out of the building and into a trailer located on the premises. Defendant-appellee -4- maintains that, at that point, plaintiff-appellant could have removed the property from the premises at any time. Prior to commencement of a jury trial, plaintiff-appellant filed two motions for summary judgment. The first motion for summary judgment was as to liability only. The second motion for summary judgment was as to all of the issues raised in the case. The trial court denied both motions for summary judgment. A jury trial commenced on April 22 1994. At the close of plaintiff-appellant's case-in-chief, defendant-appellee made a motion for directed verdict. The trial court granted defendant- appellee's motion with respect to plaintiff-appellant's claim for punitive damages. On April 26, 1994 the jury returned a verdict in favor of defendant-appellee on the counterclaim in the amount of $6,000 plus costs. On May 5, 1994 plaintiff-appellant filed a motion for judgment notwithstanding the verdict. Plaintiff-appellant's motion was denied by the trial court on June 3, 1994. Plaintiff-appellant filed a timely notice of appeal of the judgment of the trial court on July 5, 1994. II. FIRST ASSIGNMENT OF ERROR Plaintiff-appellant's first assignment of error states: THE COURT ERRED IN FAILING TO GRANT SOCHA'S SECOND MOTION FOR SUMMARY JUDGMENT. A. THE ISSUE RAISED: SUMMARY JUDGMENT Plaintiff-appellant argues that the trial court incorrectly denied his second motion for summary judgment. It is plaintiff- -5- appellant's contention that the underlying facts of the case clearly establish his claim for conversion of personal property. Plaintiff-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. -6- C. THE TRIAL COURT DID NOT ERR IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff-appellant's amended complaint alleges that defendant-appellee converted personal property owned by plaintiff-appellant. The tort of conversion has been defined as a distinct act of dominion wrongfully exercised over another's personal property in denial of his right or inconsistent therewith. (Footnote omitted.) 18 Ohio Jurisprudence 3d (1980), Conversion and Replevin, Section; L B Folding Company, Inc. v. Gergel-Kellem Corporation (1994), 94 Ohio App.3d 511. In order for plaintiff-appellant's summary judgment motion to be granted, there must be no genuine issue of material fact present regarding the alleged conversion. In this instance, a review of the record from the trial court demonstrates that questions of material fact did exist as to whether plaintiff-appellant had agreed to pay rent, and if so, in what amount. There were also questions of material fact as to whether plaintiff-appellant had abandoned his property. For these reasons, the trial court did not err in denying plaintiff- appellant's first assignment of error. Plaintiff-appellant's first assignment of error is not well taken. III. SECOND AND THIRD ASSIGNMENTS OF ERROR Plaintiff-appellant's second assignment of error states: THE COURT ERRED IN GRANTING DIRECTED VERDICT WITH RESPECT TO THE ISSUE OF SOCHA'S PUNITIVE DAMAGES. -7- Plaintiff-appellant's third assignment of error states: THE COURT ERRED IN FAILING TO GRANT SOCHA'S SECOND MOTION FOR DIRECTED VERDICT, OR IN THE ALTERNATIVE, IN FAILING TO GRANT HIS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's second and third assignments of error concurrently. A. THE ISSUE RAISED: DIRECTED VERDICT/JNOV Plaintiff-appellant argues through his second and third assignments of error that the trial court erred in granting defendant-appellee's motion for directed verdict as to plaintiff- appellee's punitive damages claim and by denying plaintiff- appellant's second motion for directed verdict as well as his motion for judgment notwithstanding the verdict. Plaintiff-appellant's second and third assignments of error are not well taken. B. STANDARD OF REVIEW FOR DIRECTED VERDICT A motion for directed verdict is governed by Civ.R. 50 (A)(4) which states: When Granted on the Evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. -8- A motion for a directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73; Crawford v. Halkovics (1982), 1 Ohio St.3d 184; Cutshaw v. Allen Bradley Co. (Dec. 1, 1994), Cuyahoga App. No. 66508, unreported. When considering a motion for a directed verdict, a trial court does not weigh the evidence nor question the credibility of witnesses. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66; Blair v. Property Mgmnt. Consultants (1987), 40 Ohio App.3d 103. The trial court must determine whether there exists "sufficient evidence, if believed, relating to each issue to permit reasonable minds to reach different conclusions on each issue." Savek v. Duracate Corp. (1989), 43 Ohio St.3d 168. In order to defeat a motion for directed verdict, the non-moving party must produce some evidence on each essential element of a claim or "produce evidence of a fact upon which a reasonable inference may be predicated to support such elements." Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285; Cutshaw v. Allen Bradley Co., supra. C. STANDARD OF REVIEW FOR JUDGMENT NOTWITHSTANDING THE VERDICT The same standard is applied by the trial court for ruling on motions for directed verdict and judgment notwithstanding the verdict. Chemical Bank of New York v. Neman (1990), 52 Ohio -9- St.3d 204, 207; Roberts v. Everson (Sept. 8, 1994), Cuyahoga App. No. 66033, unreported. When ruling on a motion for judgment notwithstanding the verdict, the trial court "must construe the evidence most strongly in favor of the non-movant and if upon all the evidence there is substantial evidence to support the non- movant's position upon which reasonable minds may reach different conclusions the motion must be denied." Ruta v. Breckenridge- Remy Co., supra. D. THE TRIAL COURT DID NOT ERR Plaintiff-appellant's second assignment of error relates to his claim for punitive damages. In order to establish a claim for punitive damages, a party must first prove the elements of the underlying claim and then 1) malice or ill will or 2) demonstrate egregious fraud, oppression or insult. Preston v. Murty (1987), 32 Ohio St.3d 334, 335. In the present case, there was insufficient evidence to support plaintiff-appellant's position that defendant-appellee's actions were motivated by malice. As the trial court accurately stated: This matter amounts to a business relationship between two old men who are no longer friends any more. That's too bad. There is nothing in the evidence that begins to rise to the level that would support a charge of punitive damages being submitted to the jury. *** (Tr. at 231.) Accordingly, the trial court acted properly in granting defendant-appellee's motion for directed verdict as to plaintiff- appellant's claim for punitive damages. -10- Plaintiff-appellant's third assignment of error relates to the trial court's denial of plaintiff-appellant's second motion for directed verdict and motion for judgment notwithstanding the verdict. Construing the evidence most strongly for defendant- appellee, this court finds that reasonable minds could conclude that defendant-appellee did not convert plaintiff-appellant's personal property given the fact that there was a dispute over rental payments, damage to the property and unpaid utility bills. For the foregoing reasons, the trial court did not err in denying plaintiff-appellant's second motion for directed verdict and motion for judgment notwithstanding the verdict. Plaintiff-appellant's second and third assignments of error are not well taken. IV. FOURTH ASSIGNMENT OF ERROR Plaintiff-appellant's fourth assignment of error states: THE COURT ERRED IN PERMITTING INTRODUCTION OF NONEVIDENCE, IRRELEVANT EVIDENCE AND HIGHLY PREJUDICIAL, MISLEADING AND CONFUSING EVIDENCE. A. THE ISSUE RAISED: ADMISSION OF EVIDENCE Plaintiff-appellant argues that the trial court erred in permitting introduction of evidence pertaining to legal issues, plaintiff-appellant's career history as an attorney and choice of a legal remedy. It is plaintiff-appellant's position that such information does not constitute relevant evidence under Evid.R. 401 and even if it was somewhat relevant it should have been -11- excluded as being substantially outweighed by unfair prejudice under Evid.R. 403. Plaintiff-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW FOR ADMISSIBILITY It is well settled that the admission of evidence falls under the general standard of relevancy set forth in Evid.R. 401 which states: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. However, pursuant to Evid.R. 403, relevant evidence must be excluded if its probative value is substantially outweighed by the threat of unfair prejudice. In Ohio, this determination is within the sound discretion of the trial court. State v. Jackson (1993), 86 Ohio App.3d 568; Vogel v. Wells (1991), 57 Ohio St.3d 91. Absent a showing of an abuse of discretion, a reviewing court will not interfere with the decision of the trial court. State v. Rutledge (Sept. 27, 1994), Franklin App. No. 93APAO8- 1212, unreported. In Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, the Ohio Supreme Court stated: The term "abuse of discretion" was defined by this court in State v Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is -12- unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION Applying this standard to the instant case, this court finds that no abuse of discretion occurred. While it is true that some of the testimony regarding legal theory, plaintiff-appellant's legal experience and choice of remedy was less relevant than other evidence offered, the admission of that evidence does not rise to the level of an abuse of discretion. Plaintiff-appellant's fourth assignment of error is not well taken. V. FIFTH ASSIGNMENT OF ERROR Plaintiff-appellant's fifth assignment of error states: THE COURT ERRED IN FAILING TO INSTRUCT THE JURY RE THE LEGAL EFFECT OF THE PREPAID RENTAL AGREEMENT. Plaintiff-appellant asserts that the trial court erred in its jury instructions. Specifically, plaintiff-appellant argues that the court failed to properly instruct the jury as to the legal effect of a pre-paid rental agreement. Plaintiff-appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS -13- In Bostic v. Connor (1988), 37 Ohio St.3d 144, the Ohio Supreme Court held that it is within the sound discretion of the trial court to refuse to admit proposed jury instructions which are either redundant or immaterial to the case. Id. at paragraph two of the syllabus. Therefore, the trial court's exclusion of a proposed jury instruction will not be reversed on appeal absent a showing of an abuse of discretion. Blakemore v. Blakemore, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION The record demonstrates that the trial court's charge to the jury accurately set forth the law in Ohio of conversion and abandonment, the two essential legal theories in the underlying case. Plaintiff-appellant contends that an additional instruction should have been given regarding the legal effect of a prepaid rental agreement. Although plaintiff-appellant may have preferred such as instruction, there is nothing in the record to demonstrate that the court's failure to so instruction constituted an error which prejudiced his substantial rights. Kasmers v. Cleveland Electric (Dec. 26, 1991), Cuyahoga App. No. 59645, unreported. Accordingly, plaintiff-appellant's fifth assignment of error is not well taken. VI. SIXTH ASSIGNMENT OF ERROR Plaintiff-appellant's sixth assignment of error states: THE COURT ERRED IN FAILING TO PERMIT RELEVANT TESTIMONY ON PUNITIVE DAMAGES AND CONVERSION. -14- A. THE ISSUE RAISED: RELEVANT TESTIMONY Plaintiff-appellant contends that the trial court should have allowed testimony relating to punitive damages and conversion. Specifically, plaintiff-appellant argues that he was prevented from introducing testimony about the value and market for used sound modules. In addition, plaintiff-appellant argues that he should have been permitted to cross-examine defendant-appellee regarding his past experience as a landlord. Plaintiff-appellant's sixth assignment of error is not well taken. B. STANDARD OF REVIEW FOR RELEVANCY As previously set forth in this court's disposition of plaintiff-appellant's fourth assignment of error, the general standard of relevancy is set forth in Evid.R. 401 which states: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The determination as to the relevancy of evidence is within the sound discretion of the trial and will not be reversed absent an abuse of that discretion. State v. Jackson, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION Plaintiff-appellant contends that he should have been permitted to elicit testimony regarding the market value of used sound modules as well as testimony pertaining to defendant- appellee's work history as a landlord. Plaintiff-appellant's -15- central cause of action was conversion which has been defined as "the wrongful assuming of unauthorized control over the personal property of another, whether it is done purposely or not." Aetna Casualty & Surety Co. v. Higbee Co. (1947), 80 Ohio App. 437. Killeen v. National City Corporation (Dec. 7, 1994), Lorain App. No. 94 CA005783, unreported. A review of the record fails to demonstrate the relevance of the disputed testimony to the tort of conversion. Plaintiff-appellant's sixth assignment of error is not well taken. VII. SEVENTH ASSIGNMENT OF ERROR Plaintiff-appellant's seventh assignment of error states: THE COURT ERRED IN IMPERMISSIBLY COMMENTING ON THE VALUE AND WORTH OF A KEY PLAINTIFF'S WITNESS. A. THE ISSUE RAISED: ABUSE OF DISCRETION Plaintiff-appellant contends that the trial court somehow minimized the testimony of Richard A. Duxbury. Plaintiff- appellant apparently objects to the following dialogue at page 84 of the trial transcript: MR. SOCHA: I have no further questions of this witness, you Honor. THE COURT: Any questions, Mr. Ryan? I'm guessing the answer is no. MR. RYAN: No. Plaintiff-appellant's seventh assignment of error is not well taken. B. STANDARD OF REVIEW -16- A judge is presumed to be fair and impartial. This court has observed in the past that an independent, impartial and honorable judiciary is indispensable to justice in our society. State v. Boyd (June 1, 1993), Cuyahoga App. No. 62853, unreported, citing Code of Judicial Conduct, Canon 1. A judge should, therefore, conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Code of Judicial Conduct, Canon 2A. Accordingly, a trial judge should refrain from intemperate commentary which might affect public confidence in the trial process. Boyd, supra; City of Cleveland v. Crawford (Sept. 28, 1989), Cuyahoga App. Nos. 55899, 55100, unreported. State v. Balcarcel (March 17, 1994), Cuyahoga App. No. 65941, unreported. C. THE TRIAL COURT DID NOT ERR A review of the record demonstrates that the trial court, in no way, displayed judicial bias or ill will toward plaintiff- appellant's witness nor did the trial court minimize the testimony of the witness through the comment referred to above. The court merely expressed its assessment of the necessity of cross-examination. Such comments do not rise to the level of reversible error. Plaintiff-appellant's seventh assignment of error is not well taken. VIII. EIGHTH AND NINTH ASSIGNMENTS OF ERROR Plaintiff-appellant's eighth assignment of error states: -17- THE COURT ERRED IN FAILING TO SUBMIT SOCHA'S REQUESTED JURY INTERROGATORIES. Plaintiff-appellant's ninth assignment of error states: THE COURT ERRED IN NOT ENTERING JUDGMENT FOR PLAINTIFF BECAUSE THE VERDICT WAS INCONSISTENT WITH THE INTERROGATORIES. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's eighth and ninth assignments of error concurrently. A. THE ISSUE RAISED: JURY INTERROGATORIES Plaintiff-appellant argues through his eighth and ninth assignments of error that the trial court erred in failing to submit all but four of his proposed interrogatories. Plaintiff- appellant argues further that the jury's answers to the four interrogatories that were submitted were not consistent with the jury's verdict. Plaintiff-appellant's eighth and ninth assignments of error are not well taken. B. STANDARD OF REVIEW FOR JURY INTERROGATORIES Civ.R. 49(B) governs the use of jury interrogatories and provides in part: (B) General verdict accompanied by answer to interrogatories. The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time. The court shall inform counsel of its proposed action upon the requests prior to -18- their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or missed issues of act and law. The trial court retains limited discretion to reject proposed interrogatories where they are ambiguous, confusing, redundant or otherwise legally objectionable. Proper jury instructions must address determinative issues and must be based upon the evidence presented. Ziegler v. Wendel Poultry Services, Inc. (1993), 67 Ohio St.3d 10, Ramage v. Central Ohio Emergency Services, Inc. (1992), 64 Ohio St.3d 97. C. STANDARD OF REVIEW FOR INCONSISTENT INTERROGATORIES Where a jury's answers to one or more interrogatories are irreconcilable with the general verdict, the choice of whether to enter judgment in accordance with the interrogatories and against the general verdict, resubmit the case to the jury or order a new trial lies within the sound discretion of the trial court. Judgment should not be rendered on answers to interrogatories as against the general verdict unless such answers are irreconcilable with the general verdict. Tosin v. SIFCO Industries, Inc. (1990), 50 Ohio St.3d 102. D. THE TRIAL COURT DID NOT ERR The trial court submitted the following interrogatories to the jury at the request of plaintiff-appellant: Interrogatory No. 7: Did the defendant agree to accept $30.00 per month rent for the premises for the months of October, November, and December? -19- Interrogatory No. 14: Did the defendant allow the plaintiff a reasonable opportunity to remove his property from the premises? Interrogatory No. 16: Was the plaintiff deprived of his right of possession as to any of his property because of the wrongful action of the defendant? Interrogatory No. 20: Did the plaintiff suffer any money loss or damages from the actions of the defendant? A review of the remaining interrogatories reveals that they were both redundant and confusing. Accordingly, the trial court did not err in refusing to submit plaintiff-appellant's remaining 20 interrogatories to the jury. The jury answered in the affirmative to interrogatory nos. 7 and 14 and in the negative to interrogatory nos. 16 and 20. These answers are not inconsistent with the general verdict in favor of defendant-appellee. The mere fact that the jury found that defendant-appellee agreed to accept $30 per month rent for a three month period does not invalidate the general verdict in favor of defendant-appellee given the existence of disputes concerning additional storage fees, unpaid utility bills and damage to defendant-appellee's property. Plaintiff-appellant's eight and ninth assignments of error are not well taken. Judgment of the trial court is affirmed. -20- 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. SPELLACY, P.J. and DYKE, J., CONCUR. DAVID T. MATIA 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. .