[Cite as McCain v. Brewer,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

PAMELA C. McCAIN : : Plaintiff-Appellee : Appellate Case No. 2014-CA-8 : v. : Trial Court Case No. 14-CVI-001-0273 : JAMES BREWER : (Civil Appeal from Darke County : Municipal Court- Small Claims Defendant-Appellant : Division) : ...........

OPINION

Rendered on the 23rd day of January, 2015.

...........

MARK C. ENGLING, Atty. Reg. No. 0070870, and SEAN A. GRAVES, Atty. Reg. No.0088233, Freund, Freeze & Arnold, Fifth-Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 Attorneys for Plaintiff-Appellee

JAMES BREWER, 8370 Stuck Road, Yorkshire, Ohio 45388 Defendant-Appellant, pro se

.............

FAIN, J.

{¶ 1} Defendant-appellant James Brewer, pro se, appeals from a judgment of the

Darke County Municipal Court, Small Claims Division, awarded against him in the amount -2- of $1,435.00, plus costs and interest from May 8, 2014. Brewer contends that the court

erred by denying his request for written findings of fact and conclusions of law, by

admitting non-relevant evidence and by failing to consider evidence he submitted in his

defense.

{¶ 2} We conclude that there is evidence in the record to support the judgment.

We further conclude that we do not have jurisdiction to review the trial court’s order

denying Brewer’s request for findings of fact and conclusions of law, because no appeal

has been taken from that order.

{¶ 3} Accordingly, the judgment of the trial court is Affirmed.

I. The Landlord-Tenant Relationship

{¶ 4} Pamela C. McCain leased a house from Brewer, pursuant to a written lease

with a one-year term, commencing July 26, 2010, which converted to a month-to-month

tenancy after July, 2011. McCain occupied the apartment with the father of her child,

Donald, and their son, T. When McCain was incarcerated, Donald remained in the

house, and agreed to take care of her affairs. Brewer agreed to allow Donald to occupy

the house, as long as the rental payments continued, but a new lease was not entered

into.

{¶ 5} While McCain was still incarcerated, Donald died in the apartment, on April

8, 2012. Four days later, McCain contacted Brewer, who agreed to store her personal

property, but advised her that Donald’s family had already removed some of the personal

property from the house. McCain sent Brewer two letters, stating that she still wanted to -3- occupy the house and that she was not abandoning her property. Brewer responded with

a letter informing McCain that the “house was no longer available for her use.” The letter

included a list of damages and cleaning needs, but no dollar amounts were provided to

estimate the cost of repairs. At no time did Brewer prepare or serve an eviction notice or

any other written notice to terminate the lease.

{¶ 6} McCain returned to the house when she was released on May 1, 2012, and

discovered that the house was empty. Brewer informed McCain that he would release the

property he had in storage when she paid $985 for back rent and unpaid utilities. McCain

testified that over the next year she made payments to Brewer, and each time he released

some of her belongings, but that many of her valuables were missing. McCain testified to

the loss of many items, including, but not limited to, bedroom furniture, a china cabinet,

jewelry, a washer and dryer, a refrigerator, a filing cabinet with personal records, a

computer, collector’s coins, family photos, a grill, a trampoline, a tent, a CD and DVD

collection, and an urn with her mother’s ashes. McCain submitted receipts and other

documentary evidence to support the purchase-price value of some items; these

documents were admitted as Plaintiff’s Ex. A. These documents itemize McCain’s

purchase price of some of her household goods, including a collectible coin set ($34.90),

jewelry ($237.93 & $80.00), Disney CD’s ($28.90, $32.86, & $44.84), Columbia House

DVD’s ($267.15), a Kmart bath set ($42.00), a toy marshmallow blaster ($24.95), and a

King size bed ($437.00), totaling $1,230.53. McCain also testified about the loss of other

personal property, but did not estimate its value, including bedding, 10 sets of curtains, a

trampoline, grill, washer, dryer, refrigerator, a tent and a jar of coins. The evidence also

reflects that McCain had paid a security deposit of $450 at the time the lease was first -4- executed, which was never returned to her.

{¶ 7} Brewer testified that the house was left in poor condition, and a description of

the condition of the premises was entered as Defendant’s Ex. 1, but it did not contain any

dollar value for the damage or cost of repair. Brewer testified that when he gained

access to the house after Donald’s death, many items of personal property were already

gone, such as the coins and jewelry, which he presumed were taken by Donald’s family.

The court did not accept, as evidence, Brewer’s attempt to testify regarding what he was

told by officers and by an attorney. Neither party submitted a list itemizing the property

that Brewer did return to McCain.

II. The Course of Proceedings

{¶ 8} McCain brought this action in Small Claims Court seeking damages in the

amount of $3,000 for the loss of her personal property. Brewer did not file a counterclaim,

but presented the defense of abandonment. At the trial on May 8, 2014, all parties

testified and were allowed to present documentary evidence. A transcript of the hearing

was submitted for this appeal. On May 12, 2014, the court issued a judgment on a form

that is contained on the back side of the small-claim complaint, which states as follows:

This matter came on to be heard and upon consideration the Court

finds that the Defendant has been duly served with summons, and:

□ Defendant(s) has paid the judgment in full and the case is

dismissed.

□ Defendant is in default for answer or appearance. -5-

x Upon hearing.

□ Admission by Defendant. There is due and owing to Plaintiff(s) from Defendant(s) for which

Plaintiff(s) shall have judgment the following:

Amount _$_1,435.00______

Interest 3%/yr. from 5.8.14

Costs __$ 78.00_________

{¶ 9} An entry was filed on May 12, 2014, notifying Brewer that a judgment entry

had been filed against him on May 12, 2014, that he had 30 days to appeal, and the entry

contained a Civ. R. 58 (B) certification that the judgment is a final appealable order. From

this judgment, Brewer appeals.

{¶ 10} On May 30, 2014, Brewer filed a motion for findings of fact and conclusions

of law, pursuant to Civ. R. 52. On June 3, 2014, an order was filed denying the request for

findings of fact and conclusions of law as untimely. Brewer’s notice of appeal does not

refer to the June 3rd order denying his request for findings of fact and conclusions of law;

it specifies the May 12, 2014 judgment as the judgment or order from which this appeal is

taken.

III. The Standard of Review -6- {¶ 11} Brewer did not identify assignments of error, as required by App. R.

16(A)(3). In construing his pro se appeal, we shall review whether the judgment is against

the manifest weight of the evidence. When considering whether a judgment is against the

manifest weight of the evidence, an appellate court “must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way

and created such a manifest miscarriage of justice that the judgment must be reversed

and a new trial ordered.” RLM Properties, Ltd. v. Brammer, 2d Dist. Champaign No.

2014-CA-6,

. “A court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Eastley v. Volkman,

,

2012–Ohio–2179,

, ¶ 21.

{¶ 12} “ ‘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.’

‘A reviewing court should not

reverse a decision simply because it holds a different opinion concerning the credibility of

the witnesses and evidence submitted before the trial court. A finding of an error in law is

a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.’ ” (Citations omitted.) Marsh v. Lansing Gardens Apts., 7th Dist. Belmont

No. 07-BE-32,

, quoting Seasons Coal Co., Inc. v. Cleveland

, 80–81,

(1984).

IV. The Court’s Calculation of Damages Was -7- Supported by Credible Evidence

{¶ 13} McCain’s small claims filing can be construed as an action based on

conversion and violations of Ohio Landlord Tenant law, Chapter 5321 of the Revised

Code. Although the judgment entry does not review the evidence, from the transcript it

can be inferred that the court ruled against Brewer based on undisputed evidence that the

lease was not lawfully terminated at the time McCain’s possessions were removed.

Although the contract terms specified a one-year lease term, ending in 2011, Brewer’s

continual acceptance of monthly rent converted the lease to a month-to-month tenancy.

Month-to-month leases can arise by implication or by oral agreement. Amick v. Sickles,

,

,

(4th Dist.).

{¶ 14} Pursuant to R.C. 5321.04(A)(9), a landlord has an obligation to follow

statutory procedures in order to evict a tenant and terminate a residential lease. Also,

under R.C. 5321.16, the landlord has statutory obligations with regard to the treatment of

security deposits. The failure of the landlord to follow the statutory procedures gives the

tenant the right to recover damages. At no time did Brewer issue an eviction notice

required by R.C. 1923.04, a notice of termination required by R.C. 5321.17(B), or the

ten-day notice required under the damage provision in the party’s written lease

agreement. Ex. A.

{¶ 15} In a small-claims proceeding, the trial court is the trier of fact and has the

duty to determine the credibility of the witnesses. There is nothing in the record to

discredit the testimony of McCain with regard to the valuation of her personal property.

Damages may be based upon a party’s testimony of the value of his or her personal

property. Generally, a witness must be qualified as an expert in order to testify as to the -8- value of property, but an exception exists for owners of personal property, because the

owner, “aided by experience, has some particular means of forming an intelligent and

correct judgment as to the value of the property in question beyond that which is

possessed by people generally.” (Citation omitted.) Carpenter v. Johnson,

,

,

(2d Dist.)

{¶ 16} The record also reveals that McCain presented sufficient evidence to

prevail on a claim for conversion. The three basic elements of conversion are: “(1)

plaintiff's ownership or right to possession of the property at the time of the conversion; (2)

defendant's conversion by a wrongful act or disposition of plaintiff's property rights; and

(3) damages.” Perez Bar & Grill v. Schneider, 9th Dist. Lorain No. 11CA010076,

. The trial court had sufficient evidence from which to conclude

that McCain had a right to the possession of the household goods, that Brewer wrongfully

took possession, because he had not properly terminated the lease, and that McCain

suffered damages in an amount equal to the value of her personal property that she was

able to establish.

{¶ 17} Although no counterclaim was filed, Brewer attempted to raise a defense of

abandonment. Abandonment has been defined as “property over which the owner has

relinquished all right, title, claim, and possession with the intention of not reclaiming it or

resuming its ownership, possession or enjoyment.” Doughman v. Long,

,

(12th Dist. 1987). “Abandonment requires affirmative proof of the

intent to abandon coupled with acts or omissions implementing the intent. Mere non-use

is not sufficient to establish the fact of abandonment, absent other evidence tending to

prove the intent to abandon.” Perez Bar & Grill v. Schneider, at ¶ 32. -9- {¶ 18} The record reveals that during McCain’s incarceration, the property

remained in possession of her co-tenants, Donald and T., and Brewer continued the

landlord-tenant relationship. Within four days of Donald’s death, McCain notified Brewer

that she did not intend to abandon the property, and that she would return in three weeks.

The trial court had sufficient evidence to conclude that McCain had not abandoned the

property.

{¶ 19} Brewer’s assertion that the trial court failed to consider his evidence of

damages to the premises as an offset to the calculation of damages owed to McCain is an

issue that was not properly before the court. Brewer did not file a counterclaim for

damages, and had failed to follow statutory procedures to retain the security deposit.

While small-claims procedure does not contemplate the filing of an answer or other

responsive pleading, it does contemplate the filing of counterclaims. Rick's Foreign

Exchange Co. v. Greenlee, 2d Dist. Montgomery No. 26096,

.

{¶ 20} Based on the record before us, we conclude that the trial court’s judgment

is not against the manifest weight of the evidence. This is not the exceptional case

where a trier of fact has lost its way, creating a manifest injustice. Accordingly, Brewer’s

inferred assignment of error that the judgment is against the manifest weight of the

evidence is overruled.

V. Brewer Has Not Appealed from the Order Denying his Civ. R. 52

Motion

{¶ 21} To invoke the jurisdiction of an appellate court, a party must file a notice of

appeal in compliance with App. R. 3(D), which requires the designation of the specific -10- “judgment, order or part thereof appealed from.” Brewer’s notice of appeal only

designates the May 12th monetary judgment; it does not refer to the June 3rd order

denying his Civ.R. 52 motion. We have held that our jurisdiction is not invoked to

consider a trial court’s post-judgment order overruling a post-judgment motion, unless

that order is designated in the notice of appeal. Tucker v. Pope, 2d Dist. Miami No.

2009-CA-30,

, ¶ 28.

{¶ 22} Therefore, this court is without jurisdiction to consider whether the trial

court abused its discretion when it overruled Brewer’s post-judgment motion, which he

filed after the seven-day deadline established by Civ. R. 52.

VI. Conclusion

{¶ 23} No reversible error having been found, the judgment of the trial court is

Affirmed.

.............

FROELICH, P.J., and WELBAUM, J., concur.

Copies mailed to:

Mark C. Engling Sean A. Graves James Brewer Hon. Julie L. Monnin