COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70459 FRED RAY : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MAYS GARAGE, ET AL. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-280142 JUDGMENT: MODIFIED, AND AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: SCOTT R. MILLER 11105 Governor Avenue Cleveland, Ohio 44111 For Defendant-Appellant:: DONALD S. NANCE PINKIE LUE CLARK 900 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Mays Garage and James and Kenneth May appeal from a judgment of the common pleas court entered pursuant to a jury verdict in favor of Fred Ray on his claims for breach of contract, fraud, and conversion arising out of a dispute concerning repair to his 1984 Lincoln Town Car. On July 2, 1994, when Ray's Lincoln failed to start he had it towed to Mays Garage. On July 6, 1994, Ray spoke with Kenneth May, owner and operator of the garage, at which time May informed him the car had been repaired and it would cost $450 to have it released. Concerned because he had not authorized any repair work on his car, Ray went to the garage where he determined that no work had in fact been done on it. Ray testified that May informed him at the time the car needed a battery. Ray then purchased one and May installed it but the car would not start. Next, May suggested the alternator was defective and removed the alternator and gave it to Ray who took it to Miles Auto Supply and learned it was not defective. When he returned it to Mays Garage, May remounted the alternator. Next, May tapped the cylinoid switch and determined it was faulty. Ray then purchased one at a supply store which May installed and the car started. A dispute then arose concerning the amount owed for the work done at Mays Garage and rather then pay, Ray left his car. - 3 - On November 19, 1994, Ray sued Mays Garage for conversion and in accordance with Mechanics lien laws, Mays Garage eventually obtained title to the vehicle. The case proceeded to trial on an amended complaint alleging breach of contract, conversion and fraud. On February 8, 1996, the court continued its trial date to permit May to obtain counsel. On February 13, 1996, May indicating he had been unable to obtain counsel and initially insisted he could not proceed pro se, but then returned to court and indicated his willingness to proceed pro se. The visiting trial judge then conducted a voir dire and determined he lacked the legal experience to represent himself and returned the case to the original trial judge. On February 26, 1996, the court commenced trial. May represented himself and the court instructed him as to trial procedure. The jury returned separate verdicts in favor of Ray and against May in the amount of $3,500 on the complaint, $1,000 for fraud, $750 as punitive damages, a general verdict awarding attorney fees which the court later determined in the amount of $5,275, and a general verdict on conversion which caused the court to order May to return the vehicle to Ray. Mays Garage and Kenneth and James May now appeal that judgment assisted by counsel and assign three errors for our review. The first assignment of error states: I. THE TRIAL COURT ERRED IN PROCEEDING WITH TRIAL AND THE DEFENDANT TO ACT PRO SE WHEN THE DEFENDANT HAD BEEN VOIR DIRED IN ANOTHER COURT AND FOUND INCAPABLE OF REPRESENTING HIMSELF. - 4 - The appellants contend that the trial court erred in allowing trial to commence in this action with May acting pro se when a visiting judge had determined he was not competent to represent himself in a legal proceeding. Ray maintains, however, that the court did not err in allowing May to proceed pro se since May had a fair opportunity to present his case, in as much as the court instructed him on proper court proceedings, and any prejudice resulted from his own failure to retain counsel. The issue for our resolution, then, is whether the trial court abused its discretion in commencing trial with a pro se litigant who had been judicially determined unable to represent himself. An abuse of discretion connotes more than error of law or judgment, it implies an attitude on the part of the trial judge that is unreasonable, arbitrary, or unconscionable. State v. Powell (1990), 49 Ohio St.3d 255, 260. In State v. Davis (1980), 70 Ohio App.2d 48, that court determined that a trial court, when confronted with a pro se criminal defendant, "***must remain especially vigilant throughout the proceedings to provide the defendant with all the tools necessary to his own defense." Id. at 53. The record in that case revealed that "during the proceedings, the trial court consistently permitted defendant to interrogate prospective jurors, to cross-examine witnesses, to examine all the physical evidence, to join in side-bench discussions, and to present - 5 - closing argument." Id. As a result of this, the Davis Court concluded that "***there [was] not a scintilla of evidence to demonstrate that defendant did not receive a fair trial." Id. In this case, the trial court instructed May on trial procedure and inquired whether May understood what the court had explained. Examination of the transcript of proceedings reveals that May presented a cogent opening statement, cross-examined witnesses, presented defense witnesses, and made a closing argument. In accordance with Davis, supra, the record demonstrates that May received a fair trial. In addition, we are unaware of any obligation imposed on a trial judge to appoint counsel for a pro se litigant in a civil trial who fails or refuses to retain counsel or seek legal aid assistance despite a strong admonition as exhibited in this case from a visiting trial court judge. Faced with this situation, the trial judge had no alternative but to proceed in the manner as indicated in this record. Based on the manner in which the trial court conducted the trial and the full participation enjoyed by James May, pro se, we conclude the court did not display an unreasonable attitude and therefore did not abuse its discretion in this regard. Accordingly, we overrule this assignment of error. The second assignment of error states: - 6 - II. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO MAKE A RULING TO AWARD DAMAGES FOR FRAUD WHEN THE PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIA CASE FOR FRAUD. The appellants assert that since Ray failed to establish a prima facie case of fraud, the trial court erred in allowing the case to proceed to the jury on that issue. Ray argues, however, that the trial court properly submitted the case to the jury because he established the elements of fraud in that May knowingly made false representations to him concerning repair of the Lincoln and failed to provide a written estimate of charges before beginning work on the car. The issue for resolution presented here is whether the trial court erred in allowing the jury to determine Ray's fraud claim. In Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St. 3d 69, the Ohio Supreme Court, sets forth the following five elements necessary to establish common-law fraud: 2. ***The elements of fraud are: (a) a representation or *** (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and - 7 - (f) a resulting injury proximately caused by the reliance. The record in the case demonstrates that May told Ray over the phone that he had fixed the Lincoln, when actually, no repair work had been done to the vehicle. When Ray went to the garage he determined that May had lied about the work, and, in an effort to recover his vehicle made personal trips to obtain parts for repair of his car, but then refused to pay $450 at first, then $350 and finally $150 to May for the repairs. While it appears that May did misrepresent the state of auto repairs, the record does not reflect Ray ever relied on these mispresentations. The failure to deliver a repair estimate in this instance does not constitute fraud because both May and Ray had jointly participated in the vehicle repair, but each had a different idea about the value of the services May rendered. This does not constitute fraud. Hence, this assignment of error is sustained and the judgment of $1000 for fraud is vacated. The final assignment of error states: III. THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE JURY VERDICT WHICH WAS EXCESSIVE IN NATURE. Mays Garage claims that the trial court erred in ordering the 1984 Lincoln Town Car returned to Ray because in an action - 8 - for conversion, a plaintiff cannot recover both the value of the converted property and the property itself. Ray maintains, however, that since the jury found in his favor on conversion, the court properly ordered the converted item returned to him and further, that the monetary damages awarded by the jury compensated him for the loss of use of his car from the date of conversion until the day of trial. We must determine here whether the trial court properly awarded damages in this case. "*** The measure of damages in a conversion action is the value of the converted property at the time it was converted." Tabar v. Charlie's Towing Service, Inc. (1994), 97 Ohio App.3d 423, 427. See Erie RR. Co. v. Steinberg (1916), 94 Ohio St.189; Baird v. Howard (1894), 51 Ohio St. 57. In this case, after the jury returned a monetary amount for Ray on the complaint, and signed a general verdict for him on conversion, the trial court ordered May to return the Lincoln to Ray. Since monetary damages are the appropriate remedy in a conversion action, the trial court erred when it ordered the vehicle returned to Ray and also entered judgment for the monetary award. Accordingly, appellants' third assignment of error is well taken and this portion of the judgment is modified to vacate the order to return the vehicle. - 9 - Judgment modified in accordance with this opinion, to vacate the judgment of $1,000 for fraud and the order to return the vehicle, but affirmed in all other respects. - 10 - Appellee and appellant to share costs equally 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. NAHRA, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .