COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72143 J.E.M.L., INC., ET AL., Plaintiffs-appellants JOURNAL ENTRY vs. AND FAIRVIEW SHOPPING CENTER CORPORATION, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-294199 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: MICHAEL WESTERHAUS 14255 Peppercreek Drive Strongsville, Ohio 44138 JOHN MAKRIS, pro se 75 Claremont Road Brunswick, Ohio 44212 For defendant-appellee: LEONARD A. WOLKOV 5400 Transportation Boulevard Suite #8 Cleveland, Ohio 44125 -2- KARPINSKI, J.: Plaintiffs-appellants, J.E.M.L., Inc., and John Makris, appeal from the judgment of the trial court. Plaintiffs owned a restaurant in the Fairview Shopping Center. After plaintiffs defaulted on the lease, the shopping center locked them out and subsequently sold the property inside the restaurant. Seeking to recover for the alleged wrongful conversion of their property, plaintiffs filed a lawsuit against Fairview Shopping Center Fairview. Fairview, in turn, filed a counterclaim to recover plaintiffs' unpaid rent obligation. Plaintiffs operated Glenn's restaurant and in 1987, entered into a lease with Fairview. J.E.M.L., Inc., a corporation owned by John Makris and Michael Loizos, was listed as the lessee on the lease. Makris and Loizos guaranteed the lease. As of May, 1993, plaintiffs owed $13,747 in unpaid rent and other charges. On May 4, 1993, Fairview sent a letter to plaintiffs notifying them that they were in default of the lease for non-payment of rent. The letter went on to notify plaintiffs that, because they were in default, the lease was subject to cancellation by the landlord pursuant to the remedies available under the written lease agreement. The letter closed by urging plaintiffs' attorney to contact the shopping center. After no communication by plaintiffs for over two months, Fairview sent another letter on June 24, 1993 announcing the unpaid rent and charges now totaled $17,125.72. The letter then went on to state: -3- THEREFORE, PLEASE BE ADVISED THAT PURSUANT TO RIGHTS AND REMEDIES RESERVED TO LANDLORD UNDER TERMS OF YOUR DEFAULT OF THE LEASE AGREEMENT AS WELL AS UNDER RIGHTS PER LANDLORD-TENANT LAW OF OHIO LANDLORD, FAIRVIEW SHOPPING CENTER CORPORATION , SHALL BE RETAKING YOUR PREMISES AND ASSUMING POSSESSION OF IT ON JULY 1, 1993. THIS LETTER SHALL SERVE AS YOUR LAST OFFICIAL NOTICE TO SURRENDER AND VACATE PREMISES ON OR BEFORE JULY 1, 1993. BY SAID DATE YOU SHALL ALSO BE REQUIRED TO REMOVE ALL OF YOUR FIXTURES AND EQUIPMENT WHICH YOU DO INTEND TO REMOVE AND TO AVOID DAMAGE TO THE PREMISES, WHICH IF CAUSED SHALL CONSTITUTE AN ADDITIONAL CHARGE AGAINST YOU, AS WELL AS ALL CURRENT UNPAID RENTAL. You shall receive no further notice. If you are in doubt as to your rights, you may wish to contact your own attorney. Thereafter, on July 9, 1993, Fairview entered the premises and locked out plaintiffs. On August 31, 1993, Makris was permitted to re-enter the restaurant to retrieve personal effects including business records and items in the restaurant office. Thereafter, on December 9, 1993, defendants sold all the remaining fixtures and equipment to Edward Ford (a restaurant liquidator) for $6,000. Thereafter, plaintiffs filed suit against defendants. In count one, plaintiff, J.E.M.L., Inc., sought recovery for the value of property owned by the corporation which was converted by Fairview. The jury found in favor of J.E.M.L., Inc. and awarded the corporation $5,300. In count two, John Makris, personally, sought to recover the value of the restaurant equipment and fixtures that were converted by Fairview. The jury found for defendant on this claim. Additionally, the jury awarded Fairview $16,000 on their counterclaim for unpaid rent. Plaintiffs have not appealed this last award. -4- On appeal, plaintiffs have filed two distinct briefs. The first brief was filed by John Makris, pro se, but makes arguments on behalf of both Makris and J.E.M.L., Inc. This brief raises three assignments grouped together in one broad argument. Generally, Makris argues that the judgment was not supported by sufficient evidence and was against the manifest weight of the evidence. After Fairview filed its reply brief, plaintiffs retained new counsel and filed a supplemental brief and assignments of error. The two new assignments raise the evidentiary issue of whether the trial court erred by not allowing the jury to hear opinions from Makris and a retained expert on the value of the restaurant property. The first three assignments state as follows: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW WHEN IT DENIED APPELLANTS [sic] MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW WHEN IT DENIED APPELLANTS' MOTION FOR A NEW TRIAL. III. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. These assignments raise two distinct issues, whether the verdict was supported by sufficient evidence and whether the verdict was against the manifest weight of the evidence. Regarding a challenge to the sufficiency of the evidence, a civil judgment need only be supported by some competent credible evidence going to all the essential elements of the case. Seasons Coal Co. Inc. v. Cleveland (1984), 10 Ohio St.3d 77; Parkridge Apts. Ltd. Partnership v. Cleveland (July 17, 1995), Cuyahoga App. No. 67984, -5- unreported. As to the second issue, this court will not reverse a civil judgment as against the weight of the evidence as long as the judgment is supported by some competent credible evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279; Chandler & Assoc. v. America's Healthcare Alliance (Oct. 30, 1997), Cuyahoga App. Nos. 71325, 71832, unreported. In either a civil or criminal case, the weight to be given to the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. Plaintiffs' entire argument under this assignment centers on the jury's verdict in count II, Makris' personal claim for conversion of fixtures and equipment that he claimed he owned. Plaintiffs specified that this count referred to Makris only and not J.E.M.L., Inc. Under both the sufficiency and weight standards, there was adequate evidence to sustain the verdict against Makris on his claim for wrongful conversion of the property. First, the jury heard testimony to support the proposition that Makris did not own the property. Although Makris claimed that he purchased the property from J.E.M.L., he could not document the purchase. As evidence of ownership, moreover, J.E.M.L. Inc. submitted tax returns which showed that the corporation claimed the depreciation on the items. Makris claimed, however, the accountant made a mistake on these returns, but offered no evidence that he had listed the property on his tax returns. The jury could reasonably fail to believe these -6- uncorroborated explanations and conclude that Makris was not entitled to recover any amount for the fixtures or equipment. Second, even if the jury felt that Makris owned the items, defendant presented evidence that because Makris never communicated any intention to retain the items after default, Makris abandoned any interest in them. Makris did not respond to the May 4th letter. Even when advised by the June 24th letter that Makris had until July 1st to remove what equipment he intended to remove, Makris did not respond. Fairview gave plaintiffs ample opportunity to indicate their intention to retain the property. Makris testified that it would cost over $100,000 to disconnect and relocate the equipment and that he was broke and had no money. The jury could properly consider the cost of removal a cost plaintiff avoided and defendant incurred. Accordingly, the first three assignments are overruled. Additionally, plaintiffs have filed two supplemental assignments of error, both of which raise the issue of whether the trial court erred by disallowing testimony on the value of the property converted by Fairview. The first states as follows: IV. THE TRIAL COURT ERRED BY REFUSING TO ALLOW APPELLANTS' EXPERT WITNESS TO TESTIFY AS TO THE VALUE OF APPELLANT'S [SIC] EQUIPMENT. In this assignment, plaintiffs argue that the court erred by not allowing the testimony of Jim Nelson, whose company buys and sells restaurant equipment. Plaintiffs called Jim Nelson to testify as to the value of plaintiffs' restaurant property. On the stand, Nelson admitted that he never saw the property. His -7- knowledge of the property was based solely on conversations with Makris and his review of only a list of the restaurant property, Exhibit 12. This list is not very specific, although a few descriptive words are provided, such as like new or good working condition. The list does not state, however, the year or manufacturer. For example, in the first item listed, Ceiling to Floor Divider, the purpose and length is given, but not its material. In the second item, a refrigerator is described as having four new sliding doors, but its age, condition, and manufacturer are not given. Additionally, the list provides comments on the condition of only a few of the items. For the majority of the items, the list does not specify whether the condition is new, excellent, fair, poor, etc. A trial court's ruling on whether a witness is qualified to testify on a subject is reviewed under the abuse of discretion standard. Kitchens v. McKay (1987), 38 Ohio App.3d 165; Evid.R. 104. In the case at bar, the trial court did not abuse its discretion in limiting Nelson's testimony. Evid.R. 703 states as follows: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. In the case at bar, the court would only allow Nelson to testify on the value of the item if a proper foundation had been laid for Nelson's opinion. Neither plaintiffs' counsel nor Nelson could point to any facts on which to base Nelson's testimony, because he did not personally see any of the equipment which he was -8- evaluating. Morever, at the time he testified there was no evidence admitted that gave a sufficiently full description of each item. He could not know, therefore, the year, make, and condition of all the items. This information is crucial to forming an opinion as to an object's value. Plaintiffs point out, on the other hand, that Fairview's expert, Ed Ford (who testified after Nelson) also did not know the exact age of each item. Plaintiffs fail to point out, however, that Ford personally viewed each item, had bought and sold this type of equipment, and, therefore, had first-hand knowledge as to its market value. Moreover, plaintiffs had the opportunity to depose defendant's expert regarding his classification of each item by age, brand, and condition. Accordingly, the trial court did not abuse its discretion by limiting Nelson's testimony. The fourth assignment is overruled. In the fifth assignment plaintiffs state as follows: V. THE TRIAL COURT ERRED BY FAILING TO ALLOW APPELLANT, JOHN MAKRIS, TO TESTIFY AS TO THE VALUE OF HIS PROPERTY IN REBUTTAL TO THE TESTIMONY OF APPELLEE'S EXPERT. Here, plaintiffs argue that the trial court erred by not allowing Makris to testify as to the value of the restaurant property. On direct examination, Makris did testify that the value of the property was over $100,000. However, he did not itemize the value of each specific piece of equipment. After Fairview presented its expert, plaintiffs called Makris as a rebuttal witness and attempted to ask Makris whether he disagreed with the value Ford placed on each of the items. The court did not allow Makris to testify, however, as to his opinion of each item, because -9- Makris did not testify about each item the first time he testified. The court stated as follows: Your client never said a word about itemization about anything. Now in fairness here your client, it seems to me, needed to say Hobart electric automatic dishwasher, $9,000, so that Ford could have addressed that and could have said I don't think it's $9,000, I think it is $500. (Tr. 597.) The trial court did not abuse its discretion in limiting Makris's testimony. When called during the case-in-chief, plaintiff did not attempt to value each item from the restaurant. More importantly, plaintiffs never attempted to lay any foundation for Makris's testimony on the value of each item. Accordingly, plaintiffs' fifth assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellants its 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. JOSEPH J. NAHRA, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE 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 of decision by the .