[Cite as Curatolo v. Clay, 2011-Ohio-3226.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

YVONNE CURATOLO                                    JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        Hon. Julie A. Edwards, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2010CA00037
RICHARD CLAY, ET AL.

        Defendants-Appellees                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Common
                                               Pleas Court, Case No. 2007CV05301


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 27, 2011


APPEARANCES:


For Plaintiff-Appellant                        For Defendant-Appellant


H. ALAN ROTHENBUECHER                          ERIC J. WILLIAMS
JAY E. KRASOVEC                                Pelini, Campbell, Williams & Traub LLC
Schottenstein, Zox & Dunn Co., LPA             8040 Cleveland Avenue NW - Suite 400
US Bank Centre at Playhouse Square             North Canton, Ohio 44720
1350 Euclid Avenue, Suite 1400
Cleveland, Ohio 44115
Stark County, Case No. 2010CA00037                                                         2

Hoffman, P.J.


       {¶1}   Plaintiff-appellant Yvonne Curatolo appeals the January 20, 2010

Judgment Entry of the Stark County Court of Common Pleas entering judgment in favor

of Defendant-appellee Richard Clay.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 28, 2003, Appellant Yvonne Curatolo entered into a

commercial lease agreement with Merilyn E. Clay, as Trustee of the Merilyn E. Clay

Trust, to rent a retail establishment for the sale of antiques and collectibles. Appellant

opened an antique and art gallery in the retail space. The retail store occupied the

upper and lower levels of the building.

       {¶3}   On February 16, 2005, Merilyn E. Clay passed away and Appellee

Richard W. Clay1 became the successor trustee of the Merilyn E. Clay Trust

       {¶4}   Appellee filed two separate forcible entry and detainer actions against

Appellant in the Massillon Municipal Court for failure to pay rent as required by the lease

agreement.      The Massillon Municipal Court ordered Appellant evicted from the

premises.

       {¶5}   An initial set-out of Appellant’s possessions from the lower level of the

building took place on September 5, 2005. During the set-out, Appellant maintains the

bailiff failed to supervise removal of Appellant’s property. Appellee and others on his

behalf removed Appellant’s possessions from the lower level of the building, and set



1
  Appellee Richard Clay’s wife, Betsy Clay, was originally named a party defendant in
the within action. At the close of evidence, the trial court directed a verdict in her favor.
Appellant has not assigned the same as error. Therefore, Richard Clay is the sole
Appellee herein.
Stark County, Case No. 2010CA00037                                                     3


them outside. Appellant alleges they haphazardly spread the items over the yard and

surrounding building. She maintains when she went to recover the items, they were

damaged and broken.

       {¶6}   Appellant further asserts Appellee removed two antique soda machines

from the lower level of the retail store. The soda machines were moved outside, against

the building’s exterior wall, next to the doors on the lower level. The next morning the

machines were gone.

       {¶7}   The Massillon Municipal Court ordered Appellant vacate the remainder of

the premises by December 28, 2005. Appellant maintains she arranged for a moving

company and auction house to assist in the removal of her items; however, the moving

company cancelled just prior to the set-out. Appellant maintains, upon her arrival to the

premises, her items were being dumped onto the gravel driveway, including vintage

clothing, fragile ceramics and art work, antique furniture, lamps and other collectibles.

Appellant maintains many of the items were broken and damaged as a result.

       {¶8}   Appellant filed the within action asserting claims of negligence and

conversion. Following a jury trial, judgment was entered in favor of Appellant on the

conversion claim for $4500.00, but the jury found both parties were contributorily

negligent in their handling of Appellant’s property.      As a result, the jury assigned

percentages of negligence with Appellant being found more negligent than Appellee.

The jury found Appellant sixty-seven percent negligent.

       {¶9}   The trial court subsequently denied Appellant’s motions for judgment

nothwithstanding the verdict and/or for a new trial.

       {¶10} Appellant now appeals, assigning as error:
Stark County, Case No. 2010CA00037                               4


     {¶11} “I. THE TRIAL COURT’S INSTRUCTION ON THE AFFIRMATIVE

DEFENSE OF ABANDONMENT WAS IMPROPER AS APPELLEES WAIVED THIS

AFFIRMATIVE DEFENSE AND, REGARDLESS, THE INSTRUCTION ITSELF WAS AN

INACCURATE STATEMENT OF LAW.

     {¶12} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

DENYING APPELLANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE

VERDICT OR NEW TRIAL.

     {¶13} “III. THE TRIAL COURT’S INSTRUCTION ON THE CONVERSION

CLAIM WAS AN INACCURATE STATEMENT OF LAW.

     {¶14} “IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

GRANTING APPELLEES’ MOTION IN LIMINE EXCLUDING THE TESTIMONY OF

APPELLANT’S PROFFERED DAMAGES EXPERTS.

     {¶15} “V. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF

APPELLANT’S TWO PRIOR MISDEMEANOR CONVICTIONS AND HER PRIOR

LITIGATION WITH ALLSTATE.

     {¶16} “VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

FINDING IN FAVOR OF APPELLEES ON THE NEGLIGENCE CLAIM GIVEN THE

COURT’S JURY INSTRUCTION ON THE DUTY OF A LANDLORD IN A NEGLIGENCE

CONTEXT.

     {¶17} “VII. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

PROVIDING AN INCOMPLETE JURY INSTRUCTION ON THE NEGLIGENCE CLAIM.
Stark County, Case No. 2010CA00037                                                          5


       {¶18} “VIII. THE CONTRIBUTORY NEGLIGENCE FINDING WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE JURY DETERMINED

APPELLEES WERE THE PROXIMATE CAUSE OF MS. CURATOLO’S DAMAGES.”

                                                 I.

       {¶19} In the first assignment of error, Appellant asserts the trial court erred in

instructing the jury as to the affirmative defense of abandonment.               Specifically,

Appellant maintains Appellee waived the defense by failing to raise it in the pleadings or

to amend the pleadings accordingly.

       {¶20} Ohio Civil Rule 15(B) reads,

       {¶21} “(B) Amendments to conform to the evidence

       {¶22} “When issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had been raised in

the pleadings. Such amendment of the pleadings as may be necessary to cause them

to conform to the evidence and to raise these issues may be made upon motion of any

party at any time, even after judgment. Failure to amend as provided herein does not

affect the result of the trial of these issues. If evidence is objected to at the trial on the

ground that it is not within the issues made by the pleadings, the court may allow the

pleadings to be amended and shall do so freely when the presentation of the merits of

the action will be subserved thereby and the objecting party fails to satisfy the court that

the admission of such evidence would prejudice him in maintaining his action or

defense upon the merits. The court may grant a continuance to enable the objecting

party to meet such evidence.”
Stark County, Case No. 2010CA00037                                                        6


       {¶23} Appellant does not cite to an objection made in the record to Appellee’s

raising the issue of abandonment during trial on the grounds that it was not raised in the

pleadings. Neither does this Court find an objection in the record. Accordingly, we find

the issue of abandonment was tried by the implied consent of the parties. We find

Appellee impliedly and directly raised the issue of abandonment, during trial on

numerous occasions. Accordingly, pursuant to Civil Rule 15(B) we find Appellee did not

waive the affirmative defense, and the trial court properly included an instruction on

abandonment in its instructions to the jury.

       {¶24} Appellant next argues the trial court’s abandonment instruction was

incomplete and failed to identify Appellee’s affirmative duty to prove Appellant’s intent to

abandon the property.

       {¶25} The trial court instructed the jury as follows:

       {¶26} “Abandonment.

       {¶27} “In order to abandon property, the owner must unequivocally relinquish the

rights to it so that the owner’s conduct amounts to a virtual throwing away or a total

disregarding of the property. If a tenant movies [sic] out of the residence, but leaves

some of their property behind in the rental property, the property left behind is deemed

to been abandoned.”

       {¶28} Tr. at 749.

       {¶29} The test to be applied to the trial court’s decision to give a certain jury

instruction is one of abuse of the court’s discretion. Walker v. Conrad 2004-Ohio-259.

Upon review, the trial court did not abuse its discretion in the instruction given.

Appellant’s first assignment of error is overruled.
Stark County, Case No. 2010CA00037                                                     7


                                              II.

      {¶30} In the second assignment of error, Appellant argues the trial court erred in

denying her motion for judgment notwithstanding the verdict.

      {¶31} When ruling on a motion for judgment notwithstanding the verdict, a trial

court applies the same test as in reviewing a motion for a directed verdict. Ronske v.

Heil Co., Stark App. No.2006-CA-00168, 2007-Ohio-5417. See also, Pariseau v. Wedge

Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511. “A motion for judgment

notwithstanding the verdict is used to determine only one issue i.e., whether the

evidence is totally insufficient to support the verdict.” Krauss v. Streamo, Stark App.

No.2001 CA00341, 2002-Ohio-4715, paragraph 14. See, also, McLeod v. Mt. Sinai

Medical Center (2006), 166 Ohio App.3d 647, 853 N.E.2d 1235, reversed on other

grounds, 116 Ohio St.3d 139, 876 N.E.2d 1201. Neither the weight of the evidence nor

the credibility of the witnesses is a proper consideration for the court. Posin v. A.B.C.

Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334. See, also,

Civ.R. 50(B); and Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19. In

other words, if there is evidence to support the nonmoving party's side so that

reasonable minds could reach different conclusions, the court may not usurp the jury's

function and the motion must be denied. Osler, supra.

      {¶32} Appellate review of a ruling on a motion for judgment notwithstanding the

verdict is de novo. Midwest Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., Stark

App. No.2006CA00048, 2006-Ohio-6232; Ronske v. Heil, supra.

      {¶33} In reviewing a trial court's decision regarding a motion for new trial, we

apply the abuse of discretion standard. Sharp v. Norfolk & Western Railway Company,
Stark County, Case No. 2010CA00037                                                       8


72 Ohio St.3d 307, 1995-Ohio-224, 649 N.E .2d 1219. This Court may not disturb a trial

court's decision unless we find the decision was unreasonable, unconscionable, or

arbitrary. Id. Appellant argues the trial court erred in denying her motion for judgment

notwithstanding the verdict or her motion for a new trial as reasonable minds could

conclude the amount of recovery awarded to her on the conversion claim was unjustly

low given the evidence.

       {¶34} At trial, Appellant provided a detailed report accounting for the alleged

damages to her items, which totaled $826,604. That amount was for the damages

resulting from the December 2005 set-out. In addition, she alleged damages in the

amount of $59,125 resulting from the September 2005 set-out.

       {¶35} Appellant’s motion for JNOV concedes the $4,500 award was likely the

amount awarded for the conversion of one soda machine.            The jury was given an

itemized list of damages, and were to determine which damages resulted from

negligence and which resulted from conversion. The damages award did not stem from

a calculation of a percentage of negligence attributed to each party; rather, correlates to

an award for the conversion of one item, the antique soda machine. We find the trial

court did not err in overruling Appellant’s motion for JNOV or abuse its discretion in

denying the motion for new trial.

       {¶36} Appellant’s second assignment of error is overruled.

                                               III.

       {¶37} Appellant’s third assignment of error argues the trial court abused its

discretion in instructing the jury as to the conversion claim.      Specifically, Appellant

argues the trial court’s instruction was an inaccurate statement of the law.
Stark County, Case No. 2010CA00037                                                           9


       {¶38} The trial court instructed the jury:

       {¶39} “Plaintiff is additionally alleging conversion by the defendant of the

plaintiff’s property.   The action of conversion of personal property is based on the

wrongful possession by one party of the property of another. It is the wrongful taking of

the property that gives the right of action to the owner of the property against the

wrongdoer. It is not necessary for the party taking wrongful possession of the property

to assert absolute ownership of it in order to give the owner the right to an action for

conversion. If you find from the greater weight of the evidence that the plaintiff was the

owner of the property in question and entitled to the immediate possession thereof, and

was deprived of that possession by an unauthorized act of the defendant, or by the

exercise of dominion over the property inconsistent with the right of possession of the

plaintiff, it is a conversion of the property.      Any distinct act of dominion wrongfully

exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.”

       {¶40} Tr. at 750-751.

       {¶41} Upon our review of the record, Appellant did not object to the trial court’s

instruction as given, nor does Appellant cite to an objection in the record. Furthermore,

we find the trial court’s instruction on conversion does not amount to an abuse of

discretion.

       {¶42} The third assignment of error is overruled.

                                                 IV.

       {¶43} Appellant’s fourth assignment of error asserts the trial court erred in

granting Appellee’s motion in limine excluding the testimony of Appellant’s proffered

damages experts.
Stark County, Case No. 2010CA00037                                                         10


       {¶44} Evidence Rule 702 provides,

       {¶45} “A witness may testify as an expert if all of the following apply:

       {¶46} “(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception

common among lay persons;

       {¶47} “(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony;

       {¶48} “(C) The witness' testimony is based on reliable scientific, technical, or

other specialized information. To the extent that the testimony reports the result of a

procedure, test, or experiment, the testimony is reliable only if all of the following apply:

       {¶49} “(1) The theory upon which the procedure, test, or experiment is based is

objectively verifiable or is validly derived from widely accepted knowledge, facts, or

principles;

       {¶50} “(2) The design of the procedure, test, or experiment reliably implements

the theory;

       {¶51} “(3) The particular procedure, test, or experiment was conducted in a way

that will yield an accurate result.”

       {¶52} As a general rule the admission or exclusion of expert testimony is within

the sound discretion of the trial court. The trial court permitted Appellant herself to give

her opinion in terms of the value of items allegedly damaged by Appellee.                  Of

significance, Appellant herself did not dispute the items subsequently suffered damage

while in storage. The trial court stated on the record,
Stark County, Case No. 2010CA00037                                                           11


       {¶53} “And I’ll tell you where I’m at.         I had the opportunity to review the

depositions that were taken of these experts. And, you know, I’ll give you my thoughts.

I, I’m not going to have, allow them to testify in this case. And I’m going to read those

reasons on the record from the depositions that I’ve taken and I’ll start with Steven

Walker.

       {¶54} “The biggest concern I have on both these experts is these are damages

that apparently are alleged to have occurred in the year 2005. I believe December of

2005. We are now almost in October of 2008 (sic).

       {¶55} “There is no testimony from Mr. Walker that he even saw any of this

information in 2005. He’s never testified as an expert before. He didn’t see any of

these items in 2005. He’s trying to recreate values three years later.

       {¶56} “He has indicated in his deposition he has not looked at the collection until

three months ago. In his deposition he indicates that most of his values are based on

the plaintiff’s list of her value of the inventory, which I think is very consistent for all the

plaintiff’s and defendant’s experts, as well.

       {¶57} “Never saw the property while it was at the Obsessions store, never saw

the property at Butterbridge. I’m a little concerned. He has no notes, I don’t even know

how he came with his calculations. Apparently there is no notes. He says he has a

photographic memory. He has no license or certificate. Most of his experience of

selling materials on the secondary market on-line. Ah, he doesn’t have any notes, but

said he provided the information to the attorney over the phone. Ah, I just don’t see

how that, in fairness, can be, ah, admitted in fairness to the defense in this case.
Stark County, Case No. 2010CA00037                                                        12


       {¶58} “As to Jason Adams, it’s the same ruling. Ah, he’s never testified as an

expert. He’s actually more of an antique dealer. He’s never looked at this collection

until three or four months ago.          Cannot give us any value at 2005, which is,

understanding that this lawsuit is being filed, why there was no expert analysis in 2005

that could determine the damage or list of damage on the things, there is no license or

certificate. Again, doesn’t appear to be any report, no written notes. If I understood his

deposition, he hasn’t even seen the final compiled list. He was not present at any set

off. He has no knowledge as to how any of the items that she claims were damaged

were actually damaged. Doesn’t know how the items were mishandled. Not familiar

with the efforts that the plaintiff took to even protect the property. Not familiar with how

long items sat out in the elements following the setouts, which is important from what

I’m hearing in the facts of this case.

       {¶59} “Now, as to plaintiff, if I let this information in, and they make a directed

verdict, I would have to grant it under the law. At least that’s my viewpoint. On the

other hand, I want you to have your day in court and I think the person who is best

suited to provide this testimony is the plaintiff, herself. And if the plaintiff testifies to

these values, ah, I know you have issues on cross-examination, obviously, but I think

you get past a directed verdict and I think that’s why that testimony is critical. So I don’t

want you to think I’m taking a hard-line, that I’m trying to take away your case, but in all

honesty - - and at least I’m telling you this beforehand, because I want to be fair to

everybody in this room. If you didn’t call the plaintiff for that aspect and put these two

experts on, I don’t know how you’d get past a directed verdict. So that’s my ruling.
Stark County, Case No. 2010CA00037                                                      13


       {¶60} “If anybody wants to - - which also means your experts are not going to be

permitted otherwise.”

       {¶61} Tr. at 119-123.

       {¶62} Upon review of the record and the rationale offered by the trial court in

excluding Appellant’s witnesses, we do not find the trial court abused its discretion in

granting the motion in limine.

       {¶63} The assignment of error is overruled.

                                               V.

       {¶64} In the fifth assignment of error, Appellant maintains the trial court erred in

admitting evidence relative to Appellant’s two prior misdemeanor convictions and her

involvement with past litigation.

       {¶65} Appellant moved the trial court for an order in limine barring Appellee from

introducing evidence or making inferences as to Appellant’s prior misdemeanor

convictions and her involvement in a prior lawsuit with Allstate Insurance Company.

Appellant asserts the introduction of such evidence only served to confuse, inflame and

prejudice the jury as to her character; therefore, the references should have been

excluded pursuant to Ohio Rules of Evidence 401, 402, and 403.

       {¶66} At trial, the following exchange occurred as to Appellant’s prior eviction

from Canton Centre Mall:

       {¶67} “Q. And you said earlier in your testimony that part of the reason that you

went to the barn, left Canton Centre mall was because Canton Centre was going down

hill, correct?

       {¶68} “A. Yes.
Stark County, Case No. 2010CA00037                                                     14


      {¶69} “Q. Okay. The truth is, however, ma’am you were evicted, weren’t you?

      {¶70} “Mr. Rothenbuecher: Objection, Your Honor.

      {¶71} “The Court: Overruled.

      {¶72} “A. Yes.

      {¶73} “Q. ‘Cause at some point you were no longer current on your rent at

Canton Centre, correct?

      {¶74} “A. Yes, not totally correct.

      {¶75} “Q. Well, is it correct or not, ma’am?

      {¶76} “A. No.

      {¶77} “Q. Okay.

      {¶78} “And we’ll do this if we have to for every single thing we talk about.

      {¶79} “A. That’s fine.

      {¶80} “Q. We’ll go to your deposition transcript. Okay?

      {¶81} “A. That’s fine.

      {¶82} “Q. I’ll put that up here - - and I don’t know what the focus is here.

      {¶83} “There we go.

      {¶84} “And if you’ll look at your deposition - - this is from your first deposition,

Page 33.

      {¶85} “A. Yes.

      {¶86} “Q. Line 11. With regard to Canton Centre Mall, were you always current

on your rent, and the answer there is what?

      {¶87} “A. No.

      {¶88} “Q. Okay. So that is correct what I asked you?
Stark County, Case No. 2010CA00037                                                  15


      {¶89} “A. It was a dispute.

      {¶90} “Q. Right.

      {¶91} “A. Over a month.

      {¶92} “Q. And, ma’am, you were in fact eventually evicted from Canton Centre

Mall, weren’t you?

      {¶93} “A. Yes, Walmart was coming.

      {¶94} “Q. Ma’am, I need you to answer my questions.

      {¶95} “It’s true, is it not, that you were evicted from Canton Centre Mall?

      {¶96} “A. Yes.

      {¶97} “Q. Okay?

      {¶98} “A. Walmart was coming.

      {¶99} “Q. And, in fact, ma’am, the items that you had at those stores were taken

from you, weren’t they?

     {¶100} “A. No.

     {¶101} “Q. They were chained away from you and padlocked away from you,

correct?

     {¶102} “A. The night the furniture store left.

     {¶103} “Q. Ma’am, the items - -

     {¶104} “A. The next morning the store was - -

     {¶105} “* * *

     {¶106} “Q. Right. They were chained and padlocked away from you?

     {¶107} “A. Yes.

     {¶108} “Q. And that wasn’t just for a day or two, correct?
Stark County, Case No. 2010CA00037                                                   16


    {¶109} “A. No, it was for a year.

    {¶110} “* * *

    {¶111} “Q. You’re referring to the antiques that were chained and padlocked and

that you claim were damaged by Canton Centre Mall, correct?

    {¶112} “A. No.

    {¶113} “Q. Clearly, though, not the first time you complained about someone

damaging your items, right?”

    {¶114} Tr. at 316-319.

    {¶115} As to the Allstate litigation, the following exchange occurred on the record:

    {¶116} “Q. You would not come into court and be dishonest?

    {¶117} “A. No.

    {¶118} “The Court: We’ve already been through that part.

    {¶119} “By Mr. Williams:

    {¶120} “Q. And you’ve never done that before, right?

    {¶121} “A. Not to my knowledge.

    {¶122} “Q. You had a court proceeding about a garnishment of a bank account.

    {¶123} “Do you remember that?

    {¶124} “Mr. Rothebuecher: Objection, Your honor.

    {¶125} “A. Yes.

    {¶126} “The Court: Well, slow down.

    {¶127} “Yeah, I would sustain that.

    {¶128} “Mr. Williams: Okay.
Stark County, Case No. 2010CA00037                                                        17


    {¶129} “Your Honor, I’m going to go into statements made in that proceeding

under oath.

    {¶130} “The Court: Well, I think I’ve explained what I would permit before the trial.

So stick to what I permit and then we won’t have any problem.

    {¶131} “Mr. Williams: Okay.

    {¶132} “The Court: Okay? It’s pretty clear what I said I would permit. Okay.

    {¶133} “By Mr. Williams:

    {¶134} “Q. You would never represent to anyone, would you, that money was

taken out of an account, your account, was to pay employees and that they had to

resign because that money was taken? If it wasn’t true?

    {¶135} “Mr. Rothenbuecher: Objection.

    {¶136} “By Mr. Williams:

    {¶137} “Q. Right?

    {¶138} “Mr. Rothenbuecher: Objection, Your Honor.

    {¶139} “The Court: Okay. Let’s approach.

    {¶140} - - - - - - - -

    {¶141} (A conference was held at the bench outside the hearing of the jury.)

    {¶142} - - - - - - - -

    {¶143} “The Court: I had a pretrial ruling that said that there is two convictions.

    {¶144} “Mr. Williams: Right.

    {¶145} “The Court: I have no idea what those convictions are about.

    {¶146} “Mr. Williams: Right. These aren’t about the convictions.

    {¶147} “The Court: All right.
Stark County, Case No. 2010CA00037                                                     18


     {¶148} “Then all I’ve permitted you to talk about is the two prior convictions.

     {¶149} “Mr. Williams: Maybe I’m doing it a bad way. I’ll try and clean it up.

     {¶150} “What I’m trying to get, she’s got under oath in Allstate case, the Allstate

examiner says, You lied to the Court to get money, to keep money from being taken out

of your account and I can prove it and here’s how, and she goes through it and she

goes, You’re right; that’s not true.

     {¶151} “The Court: Is that in a deposition?

     {¶152} “Mr. Williams: Yes.

     {¶153} “The Court: Do you have the transcript?

     {¶154} “Mr. Williams: Yes.

     {¶155} “Mr. Rothenbuecher: It’s in a different case.

     {¶156} “The Court: I don’t know why you didn’t object to it.

     {¶157} “Mr. Rothenbuecher: I did object.

     {¶158} “The Court: Not until you got to the middle.

     {¶159} “Mr. Rothenbuecher: Yeah.          This is totally different now.     This is.

Testimony about a garnishment.

     {¶160} “The other was clothes, ceiling falling in.

     {¶161} “The Court: I haven’t been aware that you were going to ask this stuff.

     {¶162} “Mr. Williams: I said it in my opening.

     {¶163} “The Court: Yeah I know.

     {¶164} “Mr. Williams: She’s going to tell me she didn’t say that or that she did and

then I can impeach her with the deposition.”

     {¶165} “* * *
Stark County, Case No. 2010CA00037                                                        19


     {¶166} “The only thing that I’ve permitted is that there is two prior convictions.

     {¶167} “So, where are we trying to go with this?

     {¶168} “Mr. Williams: It, she’s made a misstatement to the Court in a prior case.

     {¶169} “It’s - -

     {¶170} “The Court: Okay.

     {¶171} “Mr. Williams:         - - along the lines of misstatement in a deposition

testimony.

     {¶172} “What I’d like to be able to do, Your Honor, is say, Did you ever make a

misstatement to the Court in any prior case, did you ever misrepresent to a judge what

the facts and circumstances of a case where [sic].

     {¶173} “I’ve got the sworn deposition here that plays it out and I think it’s relevant

and, again, goes to her, directly to her credibility.

     {¶174} “The Court: Just, I don’t know anything about that case, I don’t know the

context of it.

     {¶175} “I think if it’s something you wanted to introduce, you should have told me

about it. I haven’t been made aware about this thing.

     {¶176} “Mr. Williams: We referenced it in our opening statement, and I guess that

--

     {¶177} “The Court: I don’t know your case.

     {¶178} “You know, you guys have had this for two years and as I told you at the

beginning of the case, I can rule on some things as I’ve listened to it.

     {¶179} “I mean, this is about this case, I mean, you’ve made a lot of questions on

deposition about her mind changing and things changing.
Stark County, Case No. 2010CA00037                                                      20


      {¶180} “I wish this would have been objected to as soon as he started anything

about Allstate. Because the door has somewhat been left open.

      {¶181} “Mr. Rothenbuecher: may I speak to that?

      {¶182} “The Court: Yes.

      {¶183} “Mr. Rothenbuecher: Your Honor, when he’s talking about Allstate.

      {¶184} “There was a roof claim for Allstate that took place in the barn and that’s

not a problem because I opened the door on that claim.

      {¶185} “But now he’s going to Allstate claim that relates to sewage and theft items

at different facility.

      {¶186} “Now there are similar items, she had them both places, but what we’re

doing here is taking an argument on a proceeding that you already ruled we’re not going

to be talking about and the other one is this, it’s about a Court proceeding she talked in

was about employees and payment and nothing to do with this inventory or anything.

      {¶187} “The Court: Well, when I walked into this trial, no one has told me about

three cases with Allstate and now you’re asking me to make rulings on testimony when I

don’t know anything about it.

      {¶188} “Mr. Williams: May I, Your Honor?

      {¶189} “The Court: Well, no. At this point I’m going to be honest with you: I’m not

going to let it in.

      {¶190} “* * *

      {¶191} “And I’d rather stick to my ruling as to the two prior convictions and I think

that’s going to get your point that you’re trying to make to them.
Stark County, Case No. 2010CA00037                                                       21


     {¶192} “But since I didn’t know anything about this, I think it’s prejudicial for me to

now let you keep kicking in the door that they opened a little bit. Okay?

     {¶193} “Mr. Williams: Understand, Your Honor.

     {¶194} “The Court: So for better or worse, that’s my ruling.

     {¶195} “Mr. Rothenbuecher: Your Honor, I’ll comment on the record I will not

make any comment in closing to a promise he made on that point and didn’t say

anything. So to keep that off the table.

     {¶196} “The Court: Yeah, let’s get this off the table.

     {¶197} Tr. at 391-394; 395-401. (Emphasis added.)

     {¶198} We find the trial court did not err in allowing the testimony with regard to

the two prior misdemeanor convictions as the same were relevant to the issues

presented.

     {¶199} Further, with regard to the Allstate litigation, as evidenced in the record set

forth above, Appellant’s counsel admitted on the record to opening the door to the

evidence admitted and did not object to the same on the record.             The trial court

excluded the remainder of the evidence.          We find the trial court did not abuse its

discretion with regard to the Allstate litigation.

     {¶200} The fifth assignment of error is overruled.

                                               VI, VII, VIII.

     {¶201} Appellant’s sixth, seventh and eighth assignments of error raise common

and interrelated issues; therefore we will address the arguments together.

     {¶202} Initially, we address Appellant’s argument with regard to the trial court’s

instruction to the jury as to negligence. Again, Appellant does not cite to an objection in
Stark County, Case No. 2010CA00037                                                           22


the record to the trial court’s instruction, and this Court’s review of the record does not

evidence Appellant objected to the same.

     {¶203} The trial court instructed the jury,

     {¶204} “Duty of a landlord.

     {¶205} “A landlord owes no duty towards a tenants’s [sic] personal property, other

than not to willfully damage the property, and the landlord has no affirmative duty to

protect the property.”

     {¶206} Tr. at 749.

     {¶207} Upon review of the instruction, we do not find the trial court abused its

discretion in so instructing the jury.

     {¶208} Appellant further argues the verdict in favor of Appellee on the negligence

claim was in error. The jury found Appellant was sixty-seven percent negligent. We

note a judgment supported by some competent, credible evidence will not be reversed

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. A reviewing court does not decide

whether it would have come to the same conclusion as the trial court.          Rather, we are

required to uphold the judgment so long as the record, as a whole, contains some

evidence from which the trier of fact could have reached its ultimate conclusions.

Hooten Equipment Co. v. Trimat, Inc., 4th Dist. No. 03CA16, 2004–Ohio1128, ¶ 7. We

are to defer to the findings of the trier of fact because the trier of fact 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 testimony.               Seasons Coal

Company, Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273. We
Stark County, Case No. 2010CA00037                                                       23

may not substitute our judgment for that of the trier of fact. Pons v. Ohio State Medical

Board (1993), 66 Ohio St.3d 619, 614 N.E.2d 748. 621, 66 Ohio St.3d 619, 614 N.E.2d

748.

       {¶209} Upon review of the record, there was sufficient, competent and credible

evidence upon which the jury based its findings, and the trial court did not err in entering

judgment accordingly. Numerous witnesses, including the supervising bailiff, Appellee,

his family, and others testified they never saw the items willfully destroyed by Appellee.

Further, Appellant herself acknowledged the items were left out for a significant period

of time before she could retrieve them, and the items were substantially damaged in

storage in the years following the incident at issue.

       {¶210} The assignments of error are overruled.

       {¶211} The January 20, 2010 Judgment Entry of the Stark County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Edwards, J. and

Delaney, J. concur                            ___________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              ___________________________________
                                              HON. JULIE A. EDWARDS


                                              ___________________________________
                                              HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00037                                          24


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


YVONNE CURATOLO                        :
                                       :
       Plaintiff-Appellant             :
                                       :
-vs-                                   :        JUDGMENT ENTRY
                                       :
RICHARD CLAY, ET AL.                   :
                                       :
       Defendants-Appellees            :        Case No. 2010CA00037


       For the reasons stated in our accompanying Opinion, the January 20, 2010

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to

Appellant.




                                       ___________________________________
                                       HON. WILLIAM B. HOFFMAN


                                       ___________________________________
                                       HON. JULIE A. EDWARDS


                                       ___________________________________
                                       HON. PATRICIA A. DELANEY
