[Cite as Bunta v. Mast,

.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

VASILE BUNTA : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 20CA006 : FIRMAN D. MAST : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No. 2017 CV 030

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 2, 2020

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

THOMAS D. WHITE GRANT A. MASON MATTHEW A. KEARNEY The Lincoln Building 209 N. Washington St. 88 S. Monroe St. Millersburg, OH 44654 Millersburg, OH 44654 Holmes County, Case No. 20CA006 2

Delaney, J.

{¶1} Defendant-Appellant Firman D. Mast appeals the February 21, 2020

judgment entry of the Holmes County Court of Common Pleas journalizing the jury verdict

in favor of Plaintiff-Appellee Vasile Bunta.

FACTS AND PROCEDURAL HISTORY

Creation of Superior VacuPress, LLC

{¶2} In December 2013, Plaintiff-Appellee Vasile Bunta and Defendant-

Appellant Firman D. Mast were introduced during a long car trip to Kansas. Firman Mast

owned a successful roofing business located in Holmes County, Ohio. Bunta, an electrical

engineer, worked for Mt. Eaton Lumber company and operated his own lumber exporting

business named Dim X-Port, LLC. Dim X-Port purchased lumber from companies in Ohio

and sold the lumber to foreign markets. During the car ride, Bunta explained to Firman

Mast the concept of drying lumber with vacuum kilns. When trees are cut for lumber, they

are full of moisture. To prevent the cut lumber from splitting and warping, it is dried. The

lumber can be air dried which can take months and can lead to increased splitting and

warping. If the cut lumber is placed in a vacuum kiln, the heat and vacuum from the kiln

pulls the moisture from the lumber, requiring less drying time and less warping or splitting.

{¶3} In January 2014, Bunta and Firman Mast entered into an oral agreement to

purchase a vacuum kiln and start a wood drying business named Superior VacuPress,

LLC (“VacuPress”). Bunta did most of the planning, which included the plant layout,

electrical design, and business plan. Bunta introduced Firman Mast to Jim Parker, Bunta’s

contact at Vacutherm, where VacuPress was going to purchase the vacuum kiln. The Holmes County, Case No. 20CA006 3

VacuPress building was going to be built on the property of Defendant Dennis Mast,

Firman Mast’s father.

{¶4} Firman Mast and Bunta consulted with Commercial and Savings Bank to

obtain financing. The bank recommended that Bunta not be a partner in VacuPress due

to his credit issues. Bunta was a Romanian immigrant, educated in the United States and

a green card holder. As Bunta was working on establishing VacuPress, he did not focus

on Dim X-Port. In 2015, Dim X-Port experienced financial difficulties due to foreign market

instability in lumber. As a result, Dim X-Port was unable to fully pay its outstanding

balances to the lumber companies. One company, DY Lumber, understood the basis for

Dim X-Port’s outstanding bills was market instability and allowed it make installments on

the balance.

{¶5} To secure the bank financing for VacuPress, Dennis Mast co-signed the

loans with Firman Mast. Commercial and Savings Bank made five loans totaling

$1,433,000 and opened a $200,000 credit line to VacuPress.

{¶6} The original operating agreement for VacuPress was signed in April 2014.

The initial members of VacuPress were Firman Mast at 85% interest and Dennis Mast for

15% interest (in exchange for his co-signing the loan and providing the land). Firman Mast

was the manager of VacuPress.

{¶7} The vacuum kiln purchased from Vacutherm was installed from June 2014

to November 2014. The kiln went into operation in December 2014. Dennis Mast was

hired by VacuPress to load the vacuum kiln. Mervin Mast, Firman’s brother, was hired as

the bookkeeper and salesperson. Both Dennis and Mervin earned a salary from

VacuPress. Holmes County, Case No. 20CA006 4

{¶8} In January 2015, Firman Mast and Bunta entered into an agreement that

for the first six months of operation, he and Bunta would not be paid. At month 12 and if

VacuPress was earning money, Firman Mast and Bunta would draw $2000 per month. At

month 18, Firman Mast and Bunta would draw $4000 per month.

Operation of Superior VacuPress

{¶9} In February 2015, Bunta and Firman Mast formed the Ohio Vacupress

Association, dba, Vacutherm Midwest, LLC (“Vacutherm”), based on their relationship

with Jim Parker. Bunta was the 51% owner and Firman Mast was the 49% owner. The

purpose of Vacutherm Midwest was to receive commissions from the sales of Vacutherm

vacuum kilns.

{¶10} Firman Mast issued a capital call of $109,000 to the members of VacuPress

in September 2015. Bunta was included in the capital call even though he was not a

member of VacuPress. On October 19, 2015, Bunta used funds from Dim X-Port and paid

VacuPress $10,000. On December 8, 2015, Bunta used his interest from Vacutherm to

pay $22,175.90 to VacuPress.

{¶11} On January 1, 2016, the members executed an Amended and Restated

Operating Agreement for VacuPress that included Bunta as a 30% member. Firman Mast

was manager and 45.9% owner, Dennis owned 13.5%, and Mervin owned 10.6%. Based

upon Bunta’s 30% interest, he was responsible for 30% of the capital call.

{¶12} Bunta paid $3,060 to VacuPress from his interest in Vacutherm on March

2, 2016. Bunta overpaid his portion of the capital call by $1,882.00.

{¶13} Firman Mast called a member’s meeting on March 22, 2016. The purpose

of the meeting was to discuss the financial difficulties facing VacuPress. Firman Mast, Holmes County, Case No. 20CA006 5

Dennis, and Mervin confronted Bunta about the inability of VacuPress to purchase lumber

from local lumber mills. They argued that due to Bunta’s outstanding debts to local lumber

mills, the mills would not do business with VacuPress. The Masts encouraged Bunta to

settle his debts with the lumber mills. Firman Mast and Bunta had not received any

compensation from VacuPress. Prior to the meeting, Bunta told Firman Mast that he

wanted to be paid for the work he performed in creating VacuPress in 2014 and 2015.

Firman Mast told him to provide invoices so Bunta brought invoices from Dim X-Port

totaling $26,000 to the meeting. Bunta issued the invoices from Dim X-Port for tax

purposes. The members agreed that VacuPress should pay Bunta $6,000. Bunta

admitted at the meeting that he wanted to exit VacuPress.

{¶14} After the meeting, Bunta stopped actively working for VacuPress. Firman,

Dennis, and Mervin agreed that they needed to move forward with the business without

Bunta.

{¶15} In June 2016, Firman Mast made a first attempt to remove Bunta from

VacuPress when he sent him a letter demanding payment of Bunta’s share of the capital

call with a penalty of a 24.9% interest rate.

{¶16} Firman Mast and Bunta dissolved Vacutherm Midwest. Firman Mast

created FM, LLC to receive commissions from the sales of Vacutherm vacuum kilns.

Firman Mast and his wife were the owners of FM, LLC.

{¶17} In July 2016, Firman Mast offered Bunta $20,000 as a buyout option. Bunta

did not accept. Holmes County, Case No. 20CA006 6

Creation of Superior Lumber

{¶18} On August 15, 2016, Firman Mast sent the members of VacuPress a notice

of dissolution. On November 1, 2016, Firman Mast created Defendant Superior Lumber,

LLC with Firman Mast owning 51% interest, Dennis 15% interest, and Mervin 34%

interest. Firman Mast transferred the assets and debts from VacuPress to Superior

Lumber. In December 2016, Firman Mast wrote a letter to the shareholders of VacuPress

stating that due to financial difficulties, VacuPress would cease operations. On January

19, 2017, the Ohio Secretary of State received notification that VacuPress had been

dissolved. Superior Lumber began operations on January 1, 2017.

{¶19} The 2017 tax return for Superior Lumber showed its gross receipts were

$1,735,752.00 and its gross profits were $347,153.

Civil Action

{¶20} On June 15, 2017, Bunta filed a complaint against VacuPress, Firman Mast,

Mervin, Dennis, and Superior Lumber (“Mast defendants”). Bunta also named

Commercial and Savings Bank (“CSB”) as a defendant to the complaint.

{¶21} The thrust of Bunta’s argument was that he was not compensated when

Firman Mast dissolved VacuPress. Bunta asserted the following counts in his complaint:

(1) declaratory judgment against the Mast defendants and Superior Lumber determining

the Mast defendants abandoned VacuPress in favor of Superior Lumber with a

determination that the parties are no longer bound to the operating agreement of

VacuPress; (2) a declaration that VacuPress is dissolved and requiring the Mast

defendants to fully account for VacuPress; (3) accounting by VacuPress and the Mast

defendants for all monies received and disbursed by them; (4) breach of fiduciary duty by Holmes County, Case No. 20CA006 7

the Mast defendants; (5) civil conspiracy by VacuPress, Superior Lumber, and the Mast

defendants to breach the fiduciary duty owed to appellee and/or conversion of appellee’s

property; (6) conversion by VacuPress, Superior Lumber, and the Mast defendants; and

(7) unjust enrichment by VacuPress, Superior Lumber, and the Mast defendants. Bunta

requested the following relief: a declaratory judgment that the Mast defendants

abandoned VacuPress and the parties are no longer bound by the operating agreement,

judicial dissolution, accounting, and winding up of VacuPress, and an award of

compensatory damages. Bunta did not name CSB in any of the counts, nor did he request

relief from CSB. Rather, Bunta only asserted that CSB “may have an interest in the

subject matter of this case.”

{¶22} The Mast defendants filed an answer denying the allegations in the

complaint and asserting as their first affirmative defense that the Amended and

Reinstated Operating Agreement contained a binding arbitration clause. On July 27,

2017, the Mast defendants filed a motion to stay proceedings and refer the matter to

arbitration. On November 17, 2017, the trial court issued a judgment entry denying the

motion to stay the proceedings and arbitration request. The Mast defendants appealed

the matter to this Court in Vasile Bunta v. Superior VacuPress LLC,

,

(5th Dist.). On July 13, 2018, we affirmed the trial court’s decision to deny the

motion to stay.

{¶23} On October 4, 2019, the Mast defendants filed motions for summary

judgment. Bunta responded. The trial court held an oral hearing on the motions.

{¶24} On November 14, 2019, Bunta dismissed three counts of his complaint: (1)

declaratory judgment against the Mast defendants and Superior Lumber determining the Holmes County, Case No. 20CA006 8

Mast defendants abandoned VacuPress in favor of Superior Lumber with a determination

that the parties are no longer bound to the operating agreement of VacuPress; (2) a

declaration that VacuPress is dissolved and requiring the Mast defendants to fully account

for VacuPress; and (3) accounting by VacuPress and the Mast defendants for all monies

received and disbursed by them.

{¶25} On December 5, 2019, the trial court denied the motions for summary

judgment. Bunta voluntarily dismissed VacuPress as a defendant.

{¶26} The remaining Mast defendants filed a Motion in Limine on February 4,

2020. The Mast defendants argued Bunta’s expert witness, Michael Oesch should be

excluded. Oesch, a certified public account, was to testify as to the financials of

VacuPress and Superior Lumber. The trial court held a hearing on the motion on February

10, 2020 and denied the motion.

{¶27} The matter proceeded to a three-day jury trial. During the trial, Firman Mast

made multiple motions for directed verdict, which the trial court denied. Mervin Mast was

dismissed as a defendant. The matter was submitted to the jury with interrogatories. The

jury returned verdicts against only Firman Mast on (1) Count Six, Conversion and

awarded damages in the amount of $231,854.50 and (2) Count Seven, Unjust Enrichment

and awarded damages in the amount of $45,000. The trial court journalized the verdict

on February 21, 2020. It is from this judgment Firman Mast now appeals. Holmes County, Case No. 20CA006 9

ASSIGNMENTS OF ERROR

{¶28} Firman Mast raises three Assignments of Error:

{¶29} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT FIRMAN

MAST’S MOTION FOR SUMMARY JUDGMENT AND SUBSEQUENT MOTIONS FOR

DIRECTED VERDICT ON APPELLEE’S CLAIM FOR CONVERSION.

{¶30} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT FIRMAN

MAST’S MOTION FOR SUMMARY JUDGMENT AND SUBSEQUENT MOTIONS FOR

DIRECTED VERDICT ON APPELLEE’S CLAIM FOR UNJUST ENRICHMENT.

{¶31} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

PERMITTING APPELLEE’S EXPERT WITNESS TO TESTIFY AND SUBMIT HIS

DAMAGES VALUATION REPORT TO THE JURY.”

ANALYSIS

I. CONVERSION

{¶32} Bunta claimed that Firman Mast committed the tort of conversion over

Bunta’s 30% interest in VacuPress when Firman Mast dissolved VacuPress and created

Superior Lumber. Firman Mast contends in his first Assignment of Error that the trial court

erred when it failed to find as a matter of law, through summary judgment or directed

verdict, that Bunta had no claim for conversion. We disagree.

Standard of Review

{¶33} Firman Mast challenged Bunta’s claim for conversion on two fronts:

summary judgment and directed verdict. Summary judgment proceedings present the

appellate court with the unique opportunity of reviewing the evidence in the same manner

as the trial court. Smiddy v. The Wedding Party, Inc.,

, 506 N.E.2d Holmes County, Case No. 20CA006 10

212 (1987). As such, this Court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co.,

,

(1996).

{¶34} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 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. Temple v. Wean United, Inc.,

,

(1977).

{¶35} Similar to a Civ.R. 56 motion for summary judgment, a motion for a directed

verdict can only be granted if, after construing the evidence most favorably to the

nonmoving party, reasonable minds could come to but one conclusion upon the evidence

submitted. Civ.R. 50(A)(4); Ohio Cas. Ins. Co. v. D&J Distrib. & Mfg., Inc., 6th Dist. Lucas

No. L-08-1104,

, ¶ 29.

The Tort of Conversion

{¶36} The tort of conversion is defined as “the wrongful exercise of dominion over

property to the exclusion of the rights of the owner, or withholding it from his possession

under a claim inconsistent with his rights.” Heflin v. Ossman, 5th Dist. Fairfield No.

05CA17, 2005–Ohio–6876, ¶ 20, quoting Joyce v. General Motors Corp.,

,

(1990). Thus, the elements required for conversion are: (1) a

defendant's exercise of dominion or control; (2) over a plaintiff's property; and (3) in a

manner inconsistent with the plaintiff's rights of ownership.

citing Cozmyk Ent., Inc. v.

Hoy, Franklin App. No. 96APE10–1380,

(June 30, 1997). Holmes County, Case No. 20CA006 11

{¶37} Firman Mast raises two arguments as to why Bunta’s claim for conversion

must fail. First, he contends existing Ohio law does not recognize a claim of conversion

over intangible assets. Second, assuming arguendo the claim of conversion over

intangible assets is not barred as a matter of law, Firman Mast states that Bunta failed in

meeting his evidentiary burden to demonstrate his damages.

Can Bunta’s Membership Interest be Converted?

{¶38} In this case, Bunta claimed that Firman Mast converted his 30%

membership interest in VacuPress when Firman created Superior Lumber, dissolved

VacuPress, and transferred the VacuPress assets and debts to Superior Lumber. The

uncontroverted evidence at trial showed that Bunta was a 30% member of VacuPress,

Firman Mast dissolved VacuPress and transferred all the assets and debts from

VacuPress to Superior Lumber, and Bunta was not a member of Superior Lumber. In

closing arguments, Bunta requested damages in the amount of $516,097.00 for the

totality of his claims. Interrogatories were submitted to the jury. On Interrogatory 11, the

jury found by a preponderance of the evidence that Firman Mast converted property that

was owned by Bunta for which he had the right to possess and Bunta suffered damages

in the amount of $231,854.50.

{¶39} Firman Mast argues Bunta’s claim for conversion is barred as a matter of

law because Ohio law unilaterally limits conversion claims to those based on the taking

of tangible, personal property. He states the property allegedly converted by Firman Mast

was monies due under the Amended and Restated Operating Agreement, which is not

identifiable and tangible personal property. The issue before the Court is whether Bunta’s Holmes County, Case No. 20CA006 12

30% membership interest in VacuPress can be converted. We examine the case law

addressing the conversion of intangible assets.

{¶40} The Ohio Supreme Court addressed the issue of conversion and intangible

property in Zacchini v. Scripps–Howard Broadcasting Co.,

,

(1976). The intangible asset at issue in Zacchini was the plaintiff’s image.

Zacchini was a “human cannonball” and had been filmed by a television station, which

showed the clip during a news program. Zacchini sued, alleging as part of his claims the

invasion of privacy by appropriating his professional talents. The trial court granted

summary judgment and the appellate court reversed, finding Zacchini stated a claim for

conversion. The matter was appealed to the Ohio Supreme Court where it rejected

Zacchini’s claims. The Court stated as to conversion:

Conversion is a wrongful exercise of dominion over property in exclusion of

the right of the owner, or withholding it from his possession under a claim

inconsistent with his rights. Railroad Co. v. O'Donnell (1892),

, 497,

. Although the original rule at common law was that

only tangible chattels could be converted, it is now generally held that

intangible rights which are customarily merged in or identified with some

document may also be converted. Examples include drafts, bank

passbooks, and deeds. See Prosser, The Law of Torts (4th ed. 1971), at

pages 81-82. See, generally, Annotation,

. But conversion

does not apply to any intangible right, and certainly it has never been held

that one's countenance or image is ‘converted’ by being photographed. The

difficulties with any such holding are apparent. ‘Taking’ a photograph of Holmes County, Case No. 20CA006 13

someone does not in fact take anything from that person. If the photograph

or film is only a conversion when shown to others, we may well ask to how

many others it must be shown, and how often, before it becomes actionable.

The distinguishing characteristic of conversion is the forced judicial sale of

the chattel or right of which the owner has been wrongfully deprived. In the

case of such intangible quasi-proprietary rights as are involved here, a

forced sale would be largely absurd, because of the doubtfulness of

determining what has been ‘taken.’ Is it the right to perform the act, to view

it, to present it on television, to license its filming, or some other right?

Judicial ingenuity could perhaps award damages and find a res said to be

sold. But to extend the ambit of conversion to rights such as those claimed

by plaintiff, which are more appropriately considered under wholly distinct

legal principles, is confusing, unnecessary, and improper.

(Citations omitted.) Zacchini at 226–27.

{¶41} The Second District Court of Appeals reviewed a conversion claim

regarding intangible property in Schafer v. RMS Realty,

,

(2000). Schafer involved a partnership wherein a majority of partners had

issued a capital call, which they were entitled to do under the terms of the partnership

agreement. However, the majority partners had issued the capital call for a wrongful

purpose, to reduce the minority partner’s partnership interest and squeeze the him out of

the partnership. The minority partner sued the majority partners, claiming in part

conversion of his partnership interests. The majority partners argued the claim for

conversion was barred because Ohio law did not recognize conversion of intangible Holmes County, Case No. 20CA006 14

assets. The Schafer court concluded the minority partner was entitled to make a claim for

conversion of his partnership interest:

[C]onversion was an appropriate basis for recovery in the present case.

Specifically, Schafer had an undisputed interest of twenty-five percent in

[the partnership] before the capital call. * * * Based on the alleged wrongful

acts of the defendants, Schafer lost nineteen percent of his property interest

and the defendants' asserted control over the property, in opposition to

Schafer's claim.

,

.

{¶42} In its analysis of the case law regarding conversion, the Second District did

not find any cases unilaterally prohibiting conversion claims based on intangible assets.

. “[T]he Ohio Supreme Court has not rejected conversion as a potential cause

of action for all intangible assets.”

. The Second District believed “the correct

approach is to analyze the particular type of intangible asset, to see if allowing a

conversion claim makes sense.”

.

{¶43} In support of his argument that Bunta’s claim for conversion is barred as a

matter of law, Firman Mast cites this Court to Landskroner v. Landskroner,

, 2003–Ohio–4945,

(8th Dist.). In Landskroner, father and

son attorneys had entered into practice together but there was no written agreement

between the parties. The father stated he transferred his interest in the law firm to the son

contingent upon his receiving fair distributions from the law firm. Subsequently, the son

advised the father that he was ending their business relationship and vacated the office

space they shared, taking with him all the employees and business equipment. The father Holmes County, Case No. 20CA006 15

filed a lawsuit against the son which included a claim for conversion. The trial court

dismissed the case and the Eighth District Court of Appeals affirmed.

{¶44} The father claimed the law firm “obtained possession of monies” belonging

to him and converted those funds for its own use in contravention of the parties’

agreement. Id. at ¶ 26. The Eighth District noted that “ ‘existing law generally allows

actions for conversion to be based only upon the taking of identifiable, tangible personal

property.’ “ Id. at ¶ 27, citing Wiltberger v. Davis,

,

(10th Dist. 1996). The court then went on to find the father's conversion claim was “not

identifiable, personal property but rather comprise[d] monies” the father claims were due

and owing him under an agreement. Id. at ¶ 27.

{¶45} Upon examination of Zacchini, Schafer, and Landskroner, we do not agree

with Firman Mast’s argument that Ohio law unilaterally prohibits conversion claims based

on intangible assets. Determining whether the property can be the subject of a conversion

action is not a bright line test – the determination is nuanced and to be decided based

upon the characteristics of the alleged converted property.

. The

appropriate questions to ask are is the property intangible and if so, is the intangible

property identifiable?

{¶46} In Landskroner, the problem with the father's conversion claim was not that

money was the basis of the claim but that the father could not identify any money to which

he was due. Heartland Fed. Credit Union v. Horton, 2nd Dist. Montgomery No. 25412,

. This stemmed from his failure to attach to the complaint any

contract or agreement which might have specified the sums which he was due. In Holmes County, Case No. 20CA006 16

contrast, the partnership interest that was converted in Schafer was specifically

identifiable.

{¶47} A conversion claim based on intangible property was permitted in Fifth Third

Bank v. Cooker Rest. Corp.,

,

(1st Dist. 2000).

Cooker entered into a Bank Card Merchant Agreement with Fifth Third Bank for it to

provide credit-card processing services for its restaurants. Cooker relocated its

headquarters and returned the credit-card processing equipment to Fifth Third.

Meanwhile, one of Cooker's restaurants accidentally reprogrammed its processing

equipment and transmitted over $50,000 in payments to Fifth Third. Fifth Third kept those

funds and demanded more as liquidated damages for what it perceived as a breach of

the Bank Card Merchant Agreement. Fifth Third sued Cooker for breach of contract and

Cooker counterclaimed for conversion. The First District Court of Appeals affirmed a

verdict in favor of Cooker on its claim for conversion. The claim was permitted because

the money converted was specifically identifiable. Heartland Fed. Credit

.

{¶48} In the present case, Bunta claims the conversion of his 30% membership

interest in VacuPress when Firman Mast dissolved VacuPress and transferred the assets

and debts to Superior Lumber. There is no dispute the property Bunta claims is intangible;

therefore, the next question is the property identifiable? Bunta’s expert at trial, Michael

Oesch testified that based on the financial records he examined, the assets and debts of

VacuPress were transferred to Superior Lumber. John Cook, expert for Firman Mast,

testified that Firman did not liquidate VacuPress, he rolled the assets into Superior

Lumber. On a personal financial statement prepared by Firman Mast in August 2017 for Holmes County, Case No. 20CA006 17

the Home Loan Savings Bank, Firman Mast stated the value of his share of Superior

Lumber was $850,000. Oesch extrapolated from the personal financial statement that the

total value of Superior Lumber was $1,670,000. From the value of Superior Lumber as

stated in Firman’s personal financial statement, Oesch testified Bunta’s 30% interest

would be $500,000. Oesch testified he also conducted an analysis of different financial

records and estimated the company value was $1,720,322, wherein the value of Bunta’s

portion was $516,097. The jury ultimately awarded Bunta $231,854.50 on his claim for

conversion. Firman Mast has not raised an Assignment of Error contesting the amount

the jury awarded Bunta on his claim for conversion.

{¶49} In this case, we find that Bunta’s claim for conversion is not unilaterally

barred as a matter of law. The facts of the case are comparable to Schafer wherein the

property claimed, while intangible, was identifiable.

Did Bunta Prove All Elements of Conversion?

{¶50} Firman Mast next contends that Bunta failed to produce evidence on all

elements of conversion. Specifically, Firman argues that Bunta did not produce evidence

of damages at the time of the alleged conversion. Firman Mast requested a directed

verdict in his favor on this issue at trial.

{¶51} A judgment for conversion generally imposes the fiction of a “forced judicial

sale” and requires the defendant to pay the full value of the converted property. Schafer

v. RMS Realty, Inc., 2nd Dist. Montgomery No. 21869,

, ¶ 67 citing

Acheson v. Miller,

(1853); Conley v. Caudill, 4th Dist. Pike No. 02CA697,

, ¶ 8 n. 2. As stated in Acheson: “The party [plaintiff] in effect abandons

his property, as of that time, to the wrong-doer, and proceeds for its value; so that, when Holmes County, Case No. 20CA006 18

judgment is obtained and satisfaction made, the property is vested in the defendants, by

relation, as of the time of the taking or conversion.” Schafer, supra at ¶ 67. The measure

of damages in a conversion action are thus determined by the value of the property at the

time of the conversion. Kademian v. Marger, 2nd Dist. Montgomery No. 24256, 2012-

Ohio-962,

, ¶ 84 citing Brumm v. McDonald & Co. Securities, Inc.,

,

(4th Dist. 1992).

{¶52} Firman Mast notified the members that VacuPress was ceasing operations

in 2016. Superior Lumber was formed on November 1, 2016 and the operating agreement

signed on December 31, 2016. The dissolution paperwork for VacuPress was filed with

the Ohio Secretary of State on January 19, 2017. Firman Mast argues that if acts

constituting conversion took place, they took place at the time the Superior Lumber began

operating and the transfer of assets and liabilities took place. He states that no valuation

of VacuPress as of December 31, 2016 took place.

{¶53} Bunta responds that the uncontroverted evidence demonstrated that

Firman Mast transferred the assets and liabilities of VacuPress to Superior Lumber. He

dissolved VacuPress but he according to Firman’s expert, he did not liquidate VacuPress.

Bunta was not claiming a 30% ownership interest in Superior Lumber but argued to the

jury that because Firman Mast transferred VacuPress assets to Superior Lumber,

Superior Lumber was fundamentally VacuPress. The measure of his conversion

damages, therefore, was 30% of the value of Superior Lumber.

{¶54} A motion for a directed verdict and summary judgment can only be granted

if, after construing the evidence most favorably to the nonmoving party, reasonable minds

could come to but one conclusion upon the evidence submitted. Reviewing the facts of Holmes County, Case No. 20CA006 19

this case in a light most favorable to Bunta, the nonmoving party, we find that reasonable

minds could come to differing conclusions as to the damages for conversion. Bunta

presented evidence at trial demonstrating that Firman Mast transferred the assets and

liabilities of VacuPress to Superior Lumber for the purpose of squeezing out Bunta as a

member. The only difference between VacuPress and Superior Lumber was that Bunta

was not a member.

{¶55} Upon our de novo review, we find that Bunta’s claim for conversion was not

barred as a matter of law and he presented genuine issues for the finders of fact to

consider. The jury found Bunta’s arguments persuasive that Firman Mast exercised

dominion or control over Bunta’s 30% membership interest in a manner inconsistent with

the Bunta’s rights of ownership, for which he suffered damages.

{¶56} Firman Mast’s first Assignment of Error is overruled.

II. UNJUST ENRICHMENT

{¶57} Prior to trial, Firman Mast moved for summary judgment on Bunta’s claim

for unjust enrichment, which the trial court denied. Firman Mast renewed his argument at

trial and moved for directed verdict on the claim, which was likewise denied. The jury

found in favor of Bunta on his claim for unjust enrichment and awarded damages in the

amount of $45,000.

{¶58} Firman Mast contends in his second Assignment of Error that the trial court

erred by denying his motions for summary judgment and directed verdict on Bunta’s claim

for unjust enrichment. In our analysis of the first Assignment of Error, we outlined the

standard of review for considering a motion for summary judgment and directed verdict

and we use the same criteria when considering his arguments as to unjust enrichment. Holmes County, Case No. 20CA006 20

Tort of Unjust Enrichment

{¶59} To establish an unjust enrichment claim, the plaintiff must demonstrate: (1)

a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the

benefit; and (3) retention of the benefit by the defendant under circumstances where it

would be unjust to do so without payment. Mun. Services Corp. v. Hall Community Dev.

LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042,

,

, ¶

25 citing Robinette v. PNC Bank, 5th Dist. Licking No. 15-CA-47,

,

, ¶ 23 citing Hambleton v. R.G. Barry Corp.,

,

(1984). Under Ohio law, unjust enrichment is a claim under quasi-contract

law that arises out of the obligation cast by law upon a person in receipt of benefits that

he is not justly entitled to retain. FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist.

Stark,

,

, ¶ 1 citing Beatley v. Beatley,

,

,

.

{¶60} A plaintiff may not recover under the theory of unjust enrichment or quasi-

contract when an express contract covers the same subject. Lehmkuhl v. ECR Corp., 5th

Dist. Knox No. 06 CA 039,

,

, ¶ 55 citing Ullmann v.

May

,

(1947), syllabus four; City of Cincinnati v. Cincinnati

Reds

,

(1984). However, while a party “may not

recover for the same services under both a contractual claim and a claim for quantum

meruit, a party is not barred from seeking alternative theories and recovering under a

quantum meruit theory if his contractual claim fails.” Mun. Services Corp. v. Hall Holmes County, Case No. 20CA006 21

Community Dev. LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042,

,

, ¶ 22 quoting FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist. Stark

No. 2018CA00026,

,

, ¶ 19 citing Building Industry

Consultants, Inc. v. 3M Parkway, Inc.,

,

,

(9th Dist.).

{¶61} We consider Firman Mast’s assigned errors as to summary judgment and

directed verdict together because they are premised on the same argument that he is

entitled to judgment as a matter of law on Bunta’s claim for unjust enrichment because

Bunta could not set forth any facts entitling him to relief.

What were the Alleged Benefits Conferred?

{¶62} First, Firman Mast contends Bunta failed to identify any benefits that he

conferred upon Firman Mast, VacuPress, or Superior Lumber. Bunta responds that the

record shows that Bunta conferred benefits upon Firman Mast in the creation and

establishment of VacuPress and later, the creation of Superior Lumber. Reviewing the

evidence in a light most favorable to Bunta, we find the jury could conclude that Bunta

conferred benefits upon Firman Mast. Before the start of VacuPress, Firman Mast was a

roofer and Bunta was an engineer in the lumber business, with his own lumber exporting

company. The genesis of VacuPress was a long car trip, where Bunta told Firman about

the business of drying lumber with vacuum drying kilns. Prior to Bunta’s introduction,

Firman Mast had no knowledge of the vacuum kiln. Bunta introduced Firman to Jim

Parker, Bunta’s vacuum drying kiln contact. After deciding to go into business together,

Bunta drew up the business plan and the plant layout. VacuPress was formed, which

Firman Mast used to create Superior Lumber. Holmes County, Case No. 20CA006 22

{¶63} Prior to the March 22, 2016 meeting, Bunta told Firman Mast that he wanted

to be paid for the work he performed for VacuPress in 2014 and 2015. Firman Mast told

him to provide invoices, so Bunta brought invoices from Dim X-Port totaling $26,000 to

the meeting. Bunta issued the invoices from Dim X-Port for tax purposes. The Mast

defendants agreed to pay Bunta $6,000.

{¶64} The record in this case shows that Bunta used his technological knowledge

and business expertise to assist Firman Mast in the creation of VacuPress, for which

Bunta expected future compensation as a member of VacuPress, but received nothing

when he was squeezed out of VacuPress.

When were the Alleged Benefits Conferred?

{¶65} Firman Mast next argues that regardless of the benefits allegedly conferred

upon Firman Mast, Bunta’s claims for unjust enrichment are barred because the

relationship between the parties was governed by the terms of the Amended and

Restated Operating Agreement.

{¶66} Bunta and Firman Mast met in December 2013 and they first discussed the

concept of vacuum drying lumber and in January 2014, Bunta and Firman Mast began

the purchase of a vacuum kiln and start a wood drying business named Superior

VacuPress, LLC. The original operating agreement for VacuPress was signed in April

2014 and Bunta was not a member. On January 1, 2016, the members executed an

Amended and Restated Operating Agreement for VacuPress and Bunta was a member.

{¶67} The evidence in this case could have caused reasonable minds to come to

differing conclusions as to whether Bunta conferred some benefits upon Firman Mast

before they entered the Amended and Restated Operating Agreement. The jury found in Holmes County, Case No. 20CA006 23

favor of Bunta on his claim for unjust enrichment and valued the benefits conferred upon

Firman Mast by Bunta in the amount of $45,000. Firman Mast did not contest the amount

of the jury verdict on appeal.

{¶68} Firman Mast’s second Assignment of Error is overruled.

III. EXPERT WITNESS

{¶69} In his third Assignment of Error, Firman Mast argues the trial court abused

its discretion when it overruled his motion in limine and objection at trial to exclude the

testimony of Bunta’s expert witness, Michael Oesch. We disagree.

{¶70} Oesch, an accountant with Veritas Solutions, had a masters degree in

accounting and was a certified public account, certified fraud examiner, and private

investigator. At trial he testified that he was in the process of applying to be a certified

valuation analyst. In preparation for trial, he wrote an expert report (Exhibit KK) and

damages summary (Exhibit KK-1) based on the financial documents released in

discovery. Firman Mast objected to Oesch’s entire report being admitted into evidence.

The trial court sustained the objection in part and allowed only the damages summary to

be submitted to the jury.

Standards of Review

{¶71} “A motion in limine is a motion directed to the inherent discretion of the trial

court judge to prevent the injection of prejudicial, irrelevant, inadmissible matters into

trial.” State v. Strait, 5th Dist. Delaware No. 14 CAA 12 0081,

,

, ¶ 24 quoting Mason v. Swartz,

,

(6th

Dist. 1991). “Generally, the grant or denial of such a motion is not a ruling on the

evidence.”

. It is a preliminary interlocutory order and the party's Holmes County, Case No. 20CA006 24

objection must be raised again at trial in order to permit the court to consider the

admissibility of the evidence in its actual context.

{¶72} The granting or denying a motion in limine are reviewed under an abuse of

discretion standard of review. Estate of Johnson v. Randall Smith, Inc.,

, 2013–Ohio–1507. In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary, or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore,

(1983). “[A] trial court is

vested with broad discretion in determining the admissibility of evidence in any particular

case, so long as such discretion is exercised in line with the rules of procedure and

evidence.” Huth v. Kus, 5th Dist. No. 2017 AP 06 0015,

,

,

, ¶ 30 quoting Rigby v. Lake Cty.,

,

(1991).

{¶73} Firman Mast contended at the hearing on the motion in limine and during

trial that the expert report was inadmissible because Oesch was not qualified to conduct

a valuation of VacuPress or Superior Lumber. He further contended that the expert report

contained impermissible legal conclusions and extraneous information that would

confuse the jury. The trial court overruled the motion in limine. He renewed his objections

to Oesch’s testimony at trial as to the other companies.

Businesses Not Named as Parties

{¶74} Within his expert report, Oesch referred to the multiple businesses owned

and operated by Bunta and Firman Mast including Ohio Vacupress Association, dba,

Vacutherm Midwest, LLC; FM, LLC; Dim X-Port, LLC; Amish Exteriors, Deutsche Roofing

Systems, Deutsche Roofing ComAg. The entities were not parties to the litigation. Holmes County, Case No. 20CA006 25

{¶75} We find no abuse of discretion for the trial court to overrule any objections

to Oesch’s mention of these entities because their identification was part of the narrative

of the relationship between Bunta, Firman Mast, VacuPress, and Superior Lumber. Prior

to Oesch’s testimony, Bunta and Firman Mast testified and clearly identified the

companies and their ownership interests. For example, Dim X-Port, LLC, was not a party

to the action but was a limited liability corporation owned and operated by Bunta for the

purpose of lumber exporting. Bunta testified he invoiced VacuPress for his services

through Dim X-Port for tax purposes. As for Ohio Vacupress, Bunta and Firman Mast

created the corporation to accept commissions for the sale of vacuum kilns, which came

about because of Bunta’s prior relationship with Jim Parker. Bunta used his interest in

Ohio VacuPress to fund his portion of the capital call from VacuPress. When analyzing

the financial records from VacuPress, the mention of these companies was necessary to

explain the flow of funds. The incorporation of the corporations during Oesch’s testimony

was not an abuse of discretion.

Valuation

{¶76} Firman Mast next argues the trial court abused its discretion when it

permitted Oesch’s testimony because he performed a valuation of Superior Lumber when

Oesch was not qualified to complete a valuation. Oesch was not a certified valuation

analyst and Firman alleges that Oesch failed to follow the accounting industry standards

for performing a valuation.

{¶77} Oesch testified on direct examination there are different methods of

conducting a valuation of a business, such as asset-based, income-based, or market-

based. He stated he did not and could not conduct a valuation of VacuPress or Superior Holmes County, Case No. 20CA006 26

Lumber because he did not have the financial data to conduct a valuation. He instead

conducted an EBITA analysis on VacuPress and Superior Lumber, which he testified was

a way to look at a company’s value by adding back interest, taxes, depreciation, and

amortization. It gave an economic picture of cash flow and the company’s economic

value. He testified that an EBITA analysis was not a valuation but a reasonableness

calculation.

{¶78} During cross examination, Oesch testified he was a member of the

American Institute of Certified Public Accountants and he was aware of the AICPA

standards for conducting valuations but he had never read the standards. He stated that

he did not perform a valuation in this engagement. He performed an evaluation, which

was an estimate of value calculated with a reasonable degree of accounting certainty.

{¶79} John Cook, Firman Mast’s expert, testified he conducted a valuation of

VacuPress and Superior Lumber using the net asset value method. On December 2,

2016, he testified Bunta’s 30% interest in VacuPress was valued at $2,000. On October

3, 2019, Bunta’s alleged 30% interest in Superior Lumber would be valued at $11,000.

{¶80} We find through direct and cross examination, Oesch’s methods for

determining Bunta’s damages were clarified for the jury’s scrutiny. Firman Mast’s expert

conducted a valuation of VacuPress and Superior Lumber, resulting in an opinion of

damages much less than Oesch’s. In this case, we find the trial court did not abuse its

discretion in finding Firman Mast’s arguments went to the weight of the evidence, not

admissibility.

{¶81} The third Assignment of Error is overruled. Holmes County, Case No. 20CA006 27

CONCLUSION

{¶82} The judgment of the Holmes County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.