[Cite as Windward Ents., Inc. v. Valley City Dev. Group, L.L.C.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

WINDWARD ENTERPRISES, INC. C.A. No. 18CA0001-M

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE VALLEY CITY DEVELOPMENT GROUP COURT OF COMMON PLEAS LLC, et al. COUNTY OF MEDINA, OHIO CASE No. 15CIV1092 Appellees

DECISION AND JOURNAL ENTRY

Dated: August 26, 2019

SCHAFER, Presiding Judge.

{¶1} Plaintiff/Counterclaim Defendant-Appellant, Windward Enterprises, Inc.

(“Windward”) appeals the judgment of the Medina County Court of Common Pleas. For the

reasons that follow, we affirm.

I.

{¶2} Windward filed a complaint in the Medina County Court of Common Pleas

against Valley City Development Group, LLC (“Valley City”), Hat Creek Co., Inc.,

Shannondoah LLC (“Shannondoah”), Sean Lackey, Michelle Lackey, and Gandalf’s Pub,

alleging breach of a lease agreement and conversion of property. Windward is an Ohio

corporation whose principals are Bruce Iacovelli and Joyce Hicks. Defendant-Appellee, Denise

Pozderac, and Defendant/Counterclaim Plaintiff, Bryan Weber, are the principals of

Defendant/Counterclaim Plaintiff, Valley City. The defendants all filed separate answers. Sean

Lackey, Michelle Lackey, and Gandalf’s Pub filed counterclaims against Windward alleging 2

abuse of process. Valley City subsequently filed an Amended answer and counterclaim alleging

cognovit judgment on a promissory note, breach of a loan agreement, breach of a security

agreement, replevin, and breach of lease. Bryan Weber filed a counterclaim against Windward

alleging negligence and violation of Ohio’s Dram Shop Act.

{¶3} The trial court granted Windward leave to file an amended complaint.

Windward’s amended complaint added Denise Pozderac as a defendant and alleged the

following claims: (1) breach of lease against Valley City; (2) conversion of property against

Valley City; (3) fraud against Pozderac and Valley City; and (4) piercing the corporate veil

against Weber and Pozderac.

{¶4} This matter ultimately proceeded to a four day jury trial on Windward’s amended

complaint against Defendant-Appellee Denise Pozderac, Defendant/Counterclaim Plaintiff-

Appellee Valley City, Defendant/Counterclaim Plaintiff-Appellee Bryan Weber, Shannondoah,

and Hat Creek, and on the counterclaims of Valley City, Weber, and Hat Creek against

Windward. During trial, the trial court granted Windward’s oral motion to dismiss its claims

against Weber, Pozderac, Hat Creek, and Shannondoah. The trial court also granted Valley

City’s oral motion to dismiss its counterclaim against Windward for replevin. Finally, the trial

court granted Windward’s motion for directed verdict as to Hat Creek’s counterclaims and

thereafter dismissed the counterclaims.

{¶5} The remaining claims were submitted to the jury following trial and the jury

returned the following verdicts: (1) in favor of Valley City and against Windward on Valley

City’s breach of loan agreement claim in the amount of $10,470.00; (2) in favor of Valley City

and against Windward on Valley City’s breach of lease claim in the amount of $28,723.00; (3) in

favor of Windward and against Weber on Weber’s Dram Shop Act claim; (4) in favor of Valley 3

City on Windward’s breach of lease claim; and (5) in favor of Windward on Windward’s

conversion claim in the amount of $0.00.

{¶6} The trial court thereafter entered judgment in accordance with the jury’s verdict

and assessed all costs to Windward. The Medina County Clerk of Courts determined the total

amount of costs in this case to be $3,622.78.

{¶7} Windward subsequently filed contemporaneous motions to vacate judgment and

for judgment notwithstanding the verdict or for a new trial. Windward’s motion to vacate was

made pursuant to Civ.R. 60(B)(1), (3), and (5), and asserted that the trial court had mistakenly

assessed all costs to Windward since they were a prevailing party and Windward did not have the

opportunity to approve the judgment entry submitted by the defendants to the trial court prior to

the trial court issuing the entry. Windward’s motion for judgment notwithstanding the verdict

and for a new trial argued that it was entitled to a new trial on either the conversion claim, the

loan agreement claim, or both, since the weight of the evidence showed that Windward had

suffered monetary damage due to the conversion of their property despite the jury’s award of

$0.00. Valley City filed memorandums in opposition to both motions. The trial court ultimately

denied Windward’s motions.

{¶8} Windward filed this timely appeal, raising three assignments of error for our

review.

II.

Assignment of Error I

The court erred in denying [Windward]’s motion for judgment [notwithstanding the verdict] and a new trial as the jury’s verdict in regard to damages on [Windward]’s conversion claim was clearly unsupported by the evidence. 4

{¶9} Although Windward’s first assignment of error states that the trial court erred in

denying its motion for judgment notwithstanding the verdict and a new trial, Windward concedes

in the argument portion of the assignment of error that the trial court did not err in denying its

motion for judgment notwithstanding the verdict and instead only challenges the trial court’s

denial of its motion for a new trial based on Civ.R. 59. On appeal, Windward argues that the

trial court abused its discretion when it denied Windward’s motion for a new trial because (1) the

jury’s award is not supported by the evidence and is a manifest injustice; and (2) Valley City’s

expert testified that the converted property had value.

{¶10} The facts relevant to this assignment of error are as follows. Windward entered

into a lease agreement with Shannondoah to rent a building where it planned to run a restaurant.

Contemporaneously, Windward entered into an asset purchase agreement with Hat Creek to

purchase certain restaurant equipment to be used at the restaurant location. Pursuant to the

agreement, the purchase price of the equipment was $200,000.00. Windward was to pay a total

of $100,000.00 to Hat Creek on or before the closing date of the agreement and the remaining

$100,000.00 was to be paid to Hat Creek over a five year period at 5 percent interest. Windward

executed a promissory note evidencing the balance of the purchase agreement together with a

security agreement pledging the assets as security for payment of its obligation pursuant to the

note. Pursuant to the security agreement, the assets were to be kept and maintained at the

restaurant except by prior written consent of Hat Creek. Shannondoah subsequently sold the

building where the restaurant was located to Valley City and assigned Valley City the lease

agreement it had with Windward.

{¶11} Windward eventually defaulted on both the lease agreement with Valley City and

its obligation pursuant to its promissory note with Hat Creek. Windward was three months 5

behind in rent and owed a remaining balance of $38,233.78 for the restaurant equipment. At that

point, Windward and Valley City entered into an agreement: Valley City would pay off the

$38,233.78 debt Windward owed to Hat Creek, and Windward agreed to re-pay Valley City the

debt owed plus the amount owed for missed rent payments over a five-year period. The new

lease agreement included a provision stating that in addition to the increased monthly rental

obligation, Windward agreed to pay Valley City a certain amount of money “for loan to payoff

Hatcreek Company.”1

{¶12} Windward continued to make payments under the new lease agreement for a few

years before choosing to move its restaurant to a new location. Windward took some of the

restaurant equipment subject to the original security agreement to use at the new location, but left

a significant amount of equipment at the original location. After Windward moved from the

location, Ms. Pozderac, a principal of Valley City, visited the property and discovered that the

equipment had been moved and that the property was in a state of disrepair. Ms. Pozderac

believed Windward had abandoned the property and changed the locks. Shortly thereafter, Mr.

Iacovelli, a principal of Windward, attempted to reenter the property with a contractor in order to

clean out the property and make minor repairs, but was prevented from entering due to the locks

being changed.

{¶13} The present litigation followed and ultimately proceeded to a jury trial.

Following deliberations, the jury found that Valley City had converted Windward’s property, but

did not award Windward any monetary damages. The jury also found that Windward had

breached the loan agreement and awarded Valley City $10,470.00 in damages. Windward

1 Although there was some dispute at trial as to whether Hat Creek assigned its security interest in the restaurant equipment to Valley City, resolution of that issue is not necessary to our discussion here. 6

moved for a new trial on the basis that there was an error in the amount of recovery, or, in the

alternative, that the judgment was not sustained by the evidence. Following a hearing, the trial

court denied Windward’s motion, stating only that Windward had “failed to satisfy any of the

grounds necessary to justify ordering a new trial as set forth in Civ.R. 59.”

{¶14} Civ.R. 59 states in pertinent part,

A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:

***

(5) Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property;

(6) The judgment is not sustained by the weight of the evidence; * * * [.]

“When considering a motion for new trial, the trial court must abstain from disturbing the verdict

unless it determines that the jury’s damage assessment was so overwhelmingly disproportionate

as to shock reasonable sensibilities.” Allied Erecting & Dismantling Co., Inc. v. Youngstown,

,

, ¶ 60 (7th Dist.).

{¶15} “This Court’s standard of review of an order denying a motion for a new trial

depends upon the grounds of the motion. Depending upon the basis of the motion for a new trial,

this Court will review a trial court’s decision to grant or deny the motion under either a de novo

or an abuse of discretion standard of review.” (Internal quotations and citations omitted.)

Jackovic v. Webb, 9th Dist. Summit No. 26555,

. Windward does not raise

an issue of law, but instead challenges the trial court’s exercise of discretion in denying its

motion. An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

(1983). 7

{¶16} To prevail on a claim of conversion, a plaintiff must demonstrate “(1) that it

owned or had the right to control the property at the time of the conversion, (2) the defendant’s

wrongful act or disposition of the plaintiff’s property rights, and (3) damages.” Pelmar USA,

L.L.C. v. Mach. Exchange Corp., 9th Dist. Summit No. 25947,

. The

general rule for the measure of damages in a conversion claim is the value of the property at the

time of the conversion. Schaffer v. First Merit Bank, N.A.,

, 2009-Ohio-

6146, ¶ 28 (9th Dist.), quoting Erie R. Co. v. Steinberg,

(1916), paragraph two of

the syllabus. “However, the Supreme Court of Ohio has also held that ‘[i]n Ohio, as elsewhere,

it is a rule of universal application in a tort action, that the measure of damages is that which will

compensate and make the plaintiff whole.’” Id. at ¶ 29, quoting Pryor v. Webber,

(1970). Additionally, once a plaintiff has proven its claim for conversion, it is entitled

to at least nominal damages. Fisher v. Barker,

,

.

{¶17} On appeal, Windward argues first that the trial court abused its discretion because

the jury’s award in this case is not supported by the evidence and is a manifest injustice. See

Civ.R. 59(A)(6). Specifically, Windward contends that it “is manifestly unjust that [Valley City]

be permitted to keep the property, still receive payment for it, and not have to compensate

Windward for its value.” Thus, it appears Windward is arguing that the jury’s verdicts are

inconsistent. Alternatively, Windward argues the trial court abused its discretion because Valley

City’s expert testified that the converted property had value. See Civ.R. 59(A)(5).

{¶18} A new trial should be granted pursuant to Civ.R. 59(A)(6) “if the jury’s verdict

was not supported by competent, substantial, and credible evidence.” Pena v. Northeast Ohio

Emergency Affiliates, Inc.,

(9th Dist. 1995), quoting Dillon v. Bundy,

(10th Dist. 1992). 8

When considering a Civ.R. 59(A)(6) motion for a new trial, a trial court must weigh the evidence and pass on the credibility of the witnesses. [Yet], the trial court assesses the weight and credibility in a more limited sense than would a jury; the court is to determine, in light of its broad discretion, whether a manifest injustice has occurred. The job of the appellate court is to review whether the trial court abused its discretion in making this determination. Absent some indication that the trial court was unreasonable, arbitrary or unconscionable in exercising its discretion, the judgment of the trial court will not be disturbed. (Internal quotations and citations omitted.)

Marsico v. Skrzypek, 9th Dist. Lorain No. 13CA010410,

, citing

Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke, 9th Dist. Medina No. 10CA0138-M, 2011-

Ohio-6201, ¶ 11. In contrast, Civ.R. 59(A)(5) allows for a new trial where there is an error in the

amount of recovery when the action is for the detention of property.

{¶19} In this case, both Windward and Valley City presented expert testimony relating

to the value of the converted property. Although Windward’s expert estimated the value of the

property at $82,500, Valley City’s expert determined the fair market value of the property to be

$10,470.38.

{¶20} “‘In Ohio, it has long been held that the assessment of damages is so thoroughly

within the province of the jury that a reviewing court is not at liberty to disturb the jury’s

assessment absent an affirmative finding of passion and prejudice or a finding that the award is

manifestly excessive.’” (Emphasis sic.) Price v. KNL Custom Homes, Inc., 9th Dist. Summit

No. 26968,

, quoting Moskovitz v. Mt. Sinai Med. Ctr.,

(1994). “[A] jury ‘may separate the testimony as they wish according to what is credible to

them.’”

quoting State v. Mastel,

(1971). Additionally, “[a] jury is

‘free to believe all, part, or none of the testimony of each witness.’”

quoting State v. Jackson,

(4th Dist. 1993). 9

{¶21} Regarding expert witness testimony, the trial court instructed the jury in this case

as follows:

You had the testimony of two witnesses here that were considered to be expert witnesses that gave you testimony. Their testimony is admitted for whatever assistance it may provide to help you arrive at a just verdict. The determination about the quality of their testimony is to be made by you and you alone.

Additionally, the trial court gave the following instruction regarding possible damages on

Windward’s conversion claim:

If you find by the greater weight of the evidence that [Windward] proved its claim, then you must further decide whether [Valley City]’s conduct caused [Windward] to suffer any damages and, if so, in what amount.

{¶22} Although the jury found Valley City had converted Windward’s property, it is not

clear how the jury arrived at the damages award of $0.00 since neither party requested jury

interrogatories. See Civ.R. 49(B); see also Segedy v. Cardiothoracic & Vascular Surgery of

Akron, Inc.,

,

, ¶ 25 (9th Dist.), quoting Cincinnati

Riverfront Coliseum Inc. v. McNulty Co.,

(1986) (“‘The essential

purpose [of] * * * interrogatories is to test the correctness of a general verdict by eliciting from

the jury its assessment of the determinative issues * * * in the context of evidence presented at

trial.’”). Instead, the jury was given general verdict forms for all the claims submitted to the jury

and both parties expressly declined to poll the jury after the verdicts were read. See Civ.R. 48

(“Upon request of either party, the jury shall be polled by asking each juror if the verdict is that

of the juror; * * * if the verdict in substance is defective, the jurors must be sent out again for

further deliberation.”). “Inherent inconsistencies between different general verdicts rendered by

a jury must be raised by a party before the jury is discharged. If not so raised, such arguments

are thereafter waived.” Alliance Excavating, Inc. v. Triangle Real Estate Services, Inc., 10th

Dist. Franklin No. 08AP-535,

, ¶ 10. 10

{¶23} Nonetheless, a review of the record shows that although the trial court did not

instruct the jury as to set off, Windward anticipated during closing argument that the jury would

consider set off of Windward’s damages from any damages the jury might find it owed to Valley

City for its claims against Windward. The parties did not dispute that the Windward still owed

Valley City $10,470.38 on the promissory note. Valley City also presented evidence at trial

suggesting that Windward’s breach of the lease agreement caused them over $46,000.00 in

damages. Although the jury awarded Valley City $10,470.00 on its claim for breach of the loan

agreement, the jury only awarded Valley City $28,723.00 on its claim for breach of the lease.

{¶24} Therefore, based upon the foregoing, we cannot say that the trial court abused its

discretion when it overruled Windward’s motion for a new trial.

{¶25} Windward’s first assignment of error is overruled.

Assignment of Error II

The court erred in refusing to apportion the court costs when [Windward] prevailed on three of the five counts submitted to the jury.

{¶26} In its second assignment of error, Windward contends that the trial court erred in

assessing all of the costs of this action to Windward since it prevailed on multiple causes of

action. We disagree.

{¶27} Following the jury trial, the trial court issued a judgment entry assessing all costs

to Windward. Windward thereafter filed a motion to vacate judgment pursuant to Civ.R.

60(B)(1), (3), and (5), within the period of appeal, asserting that: (1) the trial court had

mistakenly assessed all costs to Windward since they were a prevailing party; and (2) Windward

did not have the opportunity to approve the judgment entry prepared and submitted by the

defendants to the trial court prior to the trial court issuing the entry. Valley City filed a

memorandum in opposition arguing that Windward had failed to demonstrate the applicability of 11

any of the Civ.R. 60(B) grounds or set forth any operative facts which demonstrated a

meritorious claim. The trial court denied Windward’s motion.

{¶28} We review a trial court’s ruling pursuant to Civ.R. 60(B) for an abuse of

discretion. J.P. v. T.H., 9th Dist. Lorain No. 14CA010715,

. An abuse of

discretion is more than an error of judgment; it means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore,

.

{¶29} Civ.R. 60(B) provides, in pertinent part,

On motion and upon such terms as are just, the court may relieve a party a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason justifying relief from the judgment. * * * [.]

To prevail on a Civ.R. 60(B) motion to vacate judgment, the movant must demonstrate: (1) a

meritorious claim; (2) entitlement to relief under one of the Civ.R. 60(B) provisions; and (3) the

timeliness of the motion. GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

(1976), paragraph two of the syllabus. All three requirements are independent and in the

conjunctive, so each must be clearly established to be entitled to relief.

. However,

Civ.R. 60(B) may not be used as a substitute for appeal. Doe v. Trumbull Cty. Children Servs.

Bd.,

(1986), paragraph two of the syllabus.

{¶30} In denying Windward’s motion, the trial court did not expressly address

Windward’s Civ.R. 60(B) grounds. Instead, the trial court stated that the court had the authority

pursuant to Civ.R. 54(D) to award costs to the prevailing party and in a case where each party

has multiple causes of action submitted to the jury for consideration, the trial court “can make

the determination of which party is the prevailing party by looking to which party prevailed on

the substantial portion of the litigation.” The trial court ultimately determined that “although 12

[Windward] prevailed on some causes of action, the Defendants were the overall prevailing

party.” Thus, it is not apparent from the language of the journal entry whether the trial court

determined that Windward did not assert proper Civ.R. 60(B) grounds or whether it determined

that Windward did not have a meritorious claim. We conclude, however, that remand for

clarification is not necessary because neither determination would be an abuse of discretion.

{¶31} First, although the trial court did not specifically address Windward’s Civ.R.

60(B) grounds, we note that Windward cited Civ.R. 60(B)(5) in its motion to vacate and on

appeal, but failed to present any argument as to Civ.R. 60(B)(5) grounds for relief. Next,

Windward attempts to rely on Civ.R.60(B)(1), however, the mistake Windward alleges

occurred—that the trial court mistakenly assessed costs to Windward—does not present grounds

for relief under Civ.R. 60(B)(1) because “‘a factual or legal mistake on the part of the trial court

is not the type of mistake contemplated by Civ.R. 60(B)(1).’” Culgan v. Miller, 9th Dist. Medina

No. 10CA0074-M,

, quoting Hankinson v. Hankinson, 7th Dist. Mahoning

No. 03 MA 7,

. Rather, “[a] mistake under Civ.R. 60(B)(1) contemplates a

mistake by a party or his legal representative.” Doyle v. St. Clair, 9th Dist. Lorain No.

16CA010967,

, citing

.

{¶32} Windward also asserts the trial court should have vacated the judgment pursuant

to Civ.R. 60(B)(3). Civ.R. 60(B)(3) provides relief on the grounds of “fraud (whether heretofore

demonstrated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse

party[.]” “This Court [has] acknowledged that ‘the fraud or misconduct referred to in Civ.R.

60(B)(3) is fraud or misconduct material to obtaining the judgment, not fraud or misconduct

upon which a claim or defense is based.’” CitiMortgage, Inc. v. Dudek, 9th Dist. Summit No. 13

25806,

, quoting Indymac Bank, F.S.B. v. Starcher, 9th Dist. Summit No.

24194,

.

{¶33} In support of its Civ.R. 60(B)(3) grounds, Windward asserts it did not have the

opportunity approve the judgment entry prepared and submitted by the defendants to the trial

court prior to the trial court issuing the entry. However, Windward did not develop an argument

in its motion to vacate, nor does it on appeal, to suggest that such action on the part of opposing

counsel constituted fraud, misrepresentation, or misconduct in this case. See App.R. 16(A)(7).

Additionally, Windward points to no case law suggesting that a trial court only has authority to

assess costs to a party if the judgment entry was first approved by the party that will be assessed

those costs, nor does Windward explain how the preparation of a judgment entry and submission

to the trial court for signature without the approval of the opposing party would constitute fraud,

misrepresentation, or misconduct on the part of the adverse counsel in this case. Instead,

Windward stated in its motion to vacate and in its merit brief that by citing Civ.R. 60(B)(3), it

did not “mean to cast aspersions upon [Valley City] or [Valley City’s] counsel” but “would

respectfully submit that a better process would have been to submit th[e] [j]udgment [e]ntry for

approval.” Accordingly, we cannot say that the trial court abused its discretion when it

determined it had the authority pursuant to Civ.R. 54(D) to award costs to the prevailing party

and in a case where each party has multiple causes of action, determine which party is the

prevailing party.

{¶34} Nonetheless, since the trial court did not specifically address Windward’s Civ.R.

60(B) grounds, it is possible the trial court may have determined that Windward did not have a

meritorious claim. Civ.R. 54(D) provides that “[e]xcept when express provision therefore is

made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the 14

court otherwise directs.” The Supreme Court of Ohio has held that the phrase “‘unless the court

otherwise directs’ grants the court discretion to order that the prevailing party bear all or part of

his or her own costs.” Vance v. Roedersheimer,

(1992). The Supreme

Court further stated, however, that the phrase did not empower the court to award costs to a non-

prevailing party.

A prevailing party is generally the party in whose favor the decision,

verdict, or judgment are rendered. Moga v. Crawford, 9th Dist. Summit No. 23965, 2008-Ohio-

2155, at ¶ 6. This includes:

[t]he party to a suit who successfully prosecutes the action * * * , prevailing on the main issue, even though not necessarily to the extent of his original contention. The one in whose favor the decision or verdict is rendered and judgment entered * * * may be the party prevailing in interest, and not necessarily the prevailing person. To be such does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who had made a claim against the other, has successfully maintained it.

(Internal quotations and citations omitted.) (Emphasis added.) Id. at ¶ 6.

{¶35} The jury in this case returned the following verdicts and the trial court entered

judgment as follows: (1) in favor of Valley City and against Windward on Valley City’s breach

of loan agreement claim in the amount of $10,470.00; (2) in favor of Valley City and against

Windward on Valley City’s breach of lease claim in the amount of $28,723.00; (3) in favor of

Windward and against Weber on Weber’s Dram Shop Act claim; (4) in favor of Valley City on

Windward’s breach of lease claim; and (5) in favor of Windward on Windward’s conversion

claim in the amount of $0.00. Thus, although Windward prevailed on two of the five issues, it

was not awarded any damages. On the other hand, Valley City was awarded $39,193.00 in

damages for both of its causes of action.

{¶36} Windward asserts that, although it did not prevail on all of the causes of action in

this case, it did prevail on two of the five causes of action: its own conversion claim and the 15

defense of Weber’s Dram Shop counterclaim. Nonetheless, while Windward contends it must be

considered a prevailing party in this case, it does not explain why either of these claims were the

major issue, or one of, the major issues in this case nor does Windward explain why the trial

court’s determination that “[d]efendants were the overall prevailing party” was an abuse of

discretion. See Padrutt v. Village of Peninsula, 9th Dist. Summit No. 24272,

(concluding that appellants had not demonstrated that a trial court’s assessment of costs

against them after they lost on three of the four issues presented in the trial court below was an

abuse of discretion where appellant did not explain why the issue it did prevail on was the major

issue in the case); see also App.R. 16(A)(7).

{¶37} Based on the foregoing, we cannot conclude that the trial court abused its

discretion when it denied Windward’s motion to vacate. Windward’s second assignment of error

is overruled.

Assignment of Error III

The court erred in admitting into evidence a security agreement which was never signed by [Windward] in favor of [Valley City] nor assigned to it.

{¶38} In its third assignment of error, Windward contends that the trial court erred in

admitting a security agreement into evidence over objection.

{¶39} Windward’s appellate counsel conceded during oral argument that Windward

failed to object to the admission of the security agreement at issue. Despite this failure,

Windward’s appellate counsel argued for the first time at oral argument that that failure should

not be dispositive in this case because it was “manifest in the record that they were objecting” to

the admission of the security agreement. However, since Windward did not make this argument

in its merit brief, we decline to address it. See App.R. 12(A)(2). 16

{¶40} Moreover, a review of the transcript shows that despite any prior discussion on

the matter, Windward’s trial counsel explicitly stated Windward had no objection to the

admission of the security agreement as evidence. Specifically, when Valley City’s trial counsel

moved to admit the security agreement, the following exchange took place:

The [c]ourt: Then you want to move your exhibits into evidence?

[Valley City’s trial counsel]: I would.

***

[Valley City’s trial counsel]: Number 2, the Security Agreement.

[Windward’s trial counsel]: No objection.

The [c]ourt: It’s in.

“It is well settled that the failure to timely object to a possible error results in a forfeiture of the

issue for purposes of appeal.” Skrzypek,

. Although the plain error

doctrine may be applied in civil matters “in the rarest of circumstances,”

Windward did not

raise a plain error argument in its merit brief and we decline to do so for it. See Cardone v.

Cardone, 9th Dist. Summit No. 18349,

, *8 (May 6, 1998) (“If an argument

exists that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.”).

{¶41} Windward’s third assignment of error is overruled.

III.

{¶42} Windward’s assignments of error are overruled. Therefore, the judgment of the

Medina County Court of Common Pleas is affirmed.

Judgment affirmed. 17

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CALLAHAN, J. CONCURS.

HENSAL, J. CONCURRING IN JUDGMENT ONLY.

{¶43} Appellant Windward argued in its third assignment of error its objections to the

admission of and use of, for any purpose, Appellees’ Exhibit 2, the Security Agreement between

Hat Creek and Windward. This argument began right after voir dire and continued during the

arguments made by all counsel after the Defendants rested and before the court instructed the

jury. Further, Appellant Windward continued to argue to the trial court and argued in its brief to

this Court why this alleged error was highly prejudicial to Windward. The trial court fully 18

expressed its reasoning on the record regarding the use, publishing and admission of the

document. It was in fact, “manifest in the record that [Appellants] were objecting” to the

Exhibit. I would therefore, examine the merits of Appellant’s third assigned error. I concur

however, by finding that the trial court did not err by allowing it to be published to the jury and

allowing testimony regarding same. As to the admission of the Exhibit into evidence, as the

majority correctly states and Appellant acknowledged, the Appellant did not object to the

admission of the document. Finally, I would address Windward’s arguments that it was

manifestly unjust to allow Valley City Development Corp. to keep Windward’s property while

still requiring Windward to pay the balance of the loan on that equipment.

APPEARANCES:

STEVE C. BAILEY, Attorney at Law, for Appellant.

ERIC MICHENER and KIMBERLY HALL, Attorneys at Law, for Appellees.