[Cite as Busch v. Hardway, 2014-Ohio-2681.]


                                     COURT OF APPEALS
                                 COSHOCTON COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


SHEILA BUSCH                                  :   JUDGES:
                                              :
                                              :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                 :   Hon. W. Scott Gwin, J.
                                              :   Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
AMY HARDWAY                                   :   Case No. 2013CA0021
                                              :
                                              :
        Defendant - Appellee                  :   OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Coshocton
                                                  Municipal Court, Case No.
                                                  CVH 1200019



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 June 11, 2014



APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

BRIAN W. BENBOW                                   ROBERT A. SKELTON
605 Market Street                                 309 Main Street
Zanesville, OH 43701                              Coshocton, OH 43812
Coshocton County, Case No. 2013CA0021                                                    2

Baldwin, J.

      {¶1}    Appellant Sheila Busch appeals a judgment of the Coshocton Municipal

Court dismissing her complaint for replevin and conversion of a horse against appellee

Amy Hardway.

                            STATEMENT OF FACTS AND CASE

      {¶2}    Appellant traveled to Nebraska on September 8, 2011, and returned to

Ohio on November 28, 2011. On October 9, 2011, appellant’s husband sold her quarter

horse named Dusty to appellee for $400.00. When appellant came home and found the

horse missing, she called the Coshocton County Sherriff to report the horse as stolen.

      {¶3}    When Deputy Michael White responded to the theft complaint, appellant

told him that her ex-husband sold the horse to appellee. In reality, appellant and her

husband were still married, although they had been separated for years. The deputy

did not press charges.

      {¶4}    Appellant filed the instant action seeking replevin of the horse and

damages for conversion of the horse from appellee. The case proceeded to bench trial

in the Coshocton Municipal Court. On June 1, 2012, the court entered judgment on the

replevin action in favor of appellee, and issued findings of fact on June 25, 2012 at

appellant’s request. On July 23, 2012, the court issued a nunc pro tunc judgment

assessing court costs to appellant.

      {¶5}    Appellant filed a notice of appeal with this Court.    We dismissed the

appeal for want of a final appealable order, as the court had not yet ruled on the

conversion action. Following a hearing, the court dismissed the conversion claim on

August 23, 2013.
Coshocton County, Case No. 2013CA0021                                                    3


      {¶6}    Appellant assigns two errors to this Court on appeal:

      {¶7}    “I.     THE TRIAL COURT’S JUNE 25, 2012 JUDGMENT ENTRY

GRANTING JUDGMENT TO APPELLEE AS TO ALL OF APPELLANT’S CLAIMS WAS

AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

      {¶8}    “II.   THE TRIAL COURT DID NOT HAVE JURISDICTION TO MODIFY

ITS JUNE 1, 2012 JUDGMENT ENTRY WHEN IT MODIFIED THE JUNE 1, 2012

JUDGMENT ENTRY ON JULY 23, 2012 IN REGARD TO COURT COSTS. THE TRIAL

COURT THUS COMMITTED PREJUDICIAL ERROR BY TAXING $707.38 IN COURT

COSTS TO APPELLANT WHEN THE JUNE 25, 2012 JUDGMENT ENTRY DID NOT

ORDER COURT COSTS IN THAT MANNER.”

                                               I.

      {¶9}    Appellant argues that the court’s judgment is against the manifest weight

and sufficiency of the evidence.

      {¶10}   A judgment supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed by a reviewing court as against

the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978),

54 Ohio St. 2d 279, 376 N.E.2d 578. As the trier of fact, the judge is in the best position

to view the witnesses and their demeanor in making a determination of the credibility of

the testimony. “[A]n appellate court may not simply substitute its judgment for that of

the trial court so long as there is some competent, credible evidence to support the

lower court's findings.” State ex rel. Celebrezze v. Environmental Enterprises, Inc.

(1990), 53 Ohio St.3d 147, 154, 559 N.E.2d 1335.
Coshocton County, Case No. 2013CA0021                                                    4

      {¶11}   Replevin is solely a statutory remedy in Ohio. America Rents v. Crawley,

77 Ohio App.3d 801, 804, 603 N.E.2d 1079 (1991). R.C. 2737.03 permits the plaintiff,

in an action for recovery of specific property, to file a prejudgment motion which, if

accompanied by a proper affidavit and bond, will allow the plaintiff to recover

possession of the property at issue. Id. at 803. Replevin is solely a prejudgment

remedy; when property has not been seized or where the defendant has retained

possession by posting bond prior to the entry of final judgment, the action converts from

one in replevin to one in conversion and only damages are recoverable. Id. at 804.

Although appellant did not file an affidavit as required by R.C. 2737.03, the court heard

the action on its merits and dismissed the action on the basis that appellant did not

prove sole ownership of the horse.

      {¶12}   The elements of a conversion action are: (1) plantiff’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. Dice v.

White Family Companies, Inc., 173 Ohio App. 3d 472, 878 N.E.2d 1105, 2007-Ohio-

5755, ¶17. The court also dismissed the conversion action on the basis that appellant

did not prove sole ownership of the horse.

      {¶13}   The trial court made specific findings concerning appellant’s credibility. In

the court’s August 23, 2013 judgment, the court incorporated its findings of fact issued

on June 25, 2012, and also concluded that appellant failed to prove that she was the

sole owner of the horse at the time her husband sold the horse to appellee. The court

specifically found that appellant’s testimony was not credible. Finding of Fact 10. The

court found that her testimony as to the value of the horse was not credible. Finding of
Coshocton County, Case No. 2013CA0021                                                       5


Fact 8. The court did not believe appellant’s testimony that she acquired the horse in

2002 as a gift from her father and that its value was $20,000.00. Finding of Fact 6. The

court believed the testimony of the deputy that appellant told him she obtained the

information as to where the horse was located from her husband, and disbelieved her

denial of this statement. Finding of Fact 4.

      {¶14}   The trial court is in a better position than this court to judge the credibility

of the witness, as he was able to view her demeanor at the time she testified.           The

judge’s decision regarding her credibility and conclusion that she did not prove she was

the sole owner of the horse is supported by competent, credible evidence.

      {¶15}   On October 6, 2011, appellant signed a bankruptcy petition stating that

she owned no animals. This petition was filed with the bankruptcy court on October 24,

2011. Although she claimed to have family members caring for the horse while she was

in Nebraska, no one notified her that the horse was missing as of October 9, 2011; she

testified that she did not know the horse was gone until she returned home. After

reporting the horse stolen, she told the deputy that her ex-husband sold the horse to

appellee, but she was still married at the time. While appellant places great emphasis

on the fact that only her name is on the registration with the American Quarter Horse

Association and thus she is the only one who could sell the horse, her own expert

admitted that the registration is for purposes of breeding and showing, and a horse can

be transferred without transferring the registration paperwork.

      {¶16}   Appellant’s testimony concerning the value of the horse was also

contradictory.   The complaint alleged that the horse was worth $15,000.00.               Her

amended bankruptcy petition valued the horse at $1,500.00.             She testified at the
Coshocton County, Case No. 2013CA0021                                                  6


hearing that the horse was worth $40,000.00-$50,000.00, while later testifying that the

same horse was worth $1,500.00.        Appellant further gave contradictory testimony

concerning how and when she acquired the horse, and the age of the horse.

      {¶17}   The court’s finding that appellant’s testimony was not credible and she did

not prove that she was the sole owner of the horse at the time her husband sold it to

appellee is not against the manifest weight and sufficiency of the evidence. The first

assignment of error is overruled.

                                              II.

      {¶18}   Appellant argues that the court had no jurisdiction to modify the final

appealable order of June 25, 2012, to assess court costs to appellant. The June 25,

2012, judgment was not a final, appealable order, and the appeal from this judgment

was dismissed by this Court on that basis. Therefore, the court retained jurisdiction to

amend its earlier judgment to assess court costs.

      {¶19}   The second assignment of error is overruled.
Coshocton County, Case No. 2013CA0021                                           7




      {¶20}   The judgment of the Coshocton Municipal Court is affirmed. Costs are

assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Gwin, J. concur.
