[Cite as Owners Mgt. Co. v. Harris, 2017-Ohio-5809.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104804




                 OWNERS MANAGEMENT COMPANY
                                                             PLAINTIFF-APPELLEE
                                                       vs.

                                 FREDERICK HARRIS

                                                             DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                        Civil Appeal from the
                                       Bedford Municipal Court
                                       Case No. 15-CVF-00027

        BEFORE: E.A. Gallagher, P.J., Stewart, J., and Boyle, J.

        RELEASED AND JOURNALIZED:                            July 13, 2017
ATTORNEYS FOR APPELLANTS

Antonio S. Nicholson
3552 Northcliffe Road
Cleveland Heights, Ohio 44118

Eric L. Foster
Law Firm of McDonald Foster L.L.C.
25801 Lakeshore Boulevard, Suite 55
Euclid, Ohio 44132


ATTORNEY FOR APPELLEE

Ted S. Friedman
32901 Station Street, #105
Solon, Ohio 44139
EILEEN A. GALLAGHER, P.J.:

          {¶1} Defendant-appellant Frederick Harris appeals the decision of the Bedford

Municipal Court granting judgment in favor of plaintiff-appellee Owners Management

Company (hereinafter “OMC”) for unpaid condominium owners association fees.             We

affirm.

          Facts and Procedural Background

          {¶2} Harris purchased a condominium in Shaker Heights in 1989. As the owner,

Harris was obligated to pay condominium owners association fees attendant to the

property. On January 20, 2012, a foreclosure action relating to the condominium was

instituted against Harris by the Bank of New York Mellon in the Cuyahoga County Court

of Common Pleas. OMC was named as a codefendant in the case but did not appear.

          {¶3} Harris continued paying his monthly condominium owners association fees

through June 2013.      The record reflects that at a case management conference in the

common pleas court on July 15, 2013, Harris agreed to enter into a consent to foreclosure.

 A stipulated magistrate’s decision dated August 16, 2013, stated that Harris consented to

the bank’s right to a decree of foreclosure.   The trial court entered judgment adopting

the magistrate’s decision on September 16, 2013, and ordered the property to be sold at a

sheriff’s sale. The record reflects that the property was transferred by sheriff’s deed from

Harris to Bank of New York Mellon on June 19, 2014.

          {¶4} On January 5, 2015, OMC brought the present case seeking $7,252.63 for

unpaid condominium owners association fees from July 2013 through June 19, 2014.
The case proceeded to a bench trial and judgment in the amount sought was granted in

favor of OMC.

       Law and Analysis

       I. Laches

       {¶5} In his first assignment of error, Harris argues that the trial court abused its

discretion by overruling the defense of laches.   However, under Civ.R. 8(C) laches is an

affirmative defense and must be specifically pled. Harris failed to raise laches in the

pleadings below and, therefore, has waived this assignment of error. McConnell v.

McConnell, 8th Dist. Cuyahoga No. 42075, 1980 Ohio App. LEXIS 11299 (Nov. 20,

1980); Laverty v. Collins, 8th Dist. Cuyahoga No. 60232, 1992 Ohio App. LEXIS 2548

( May 21, 1992).

       {¶6} Harris’s first assignment of error is overruled.

       II. Mitigation of Damages

       {¶7} In his second assignment of error, Harris argues that the trial court erred in

failing to find that OMC had a duty to mitigate its damages.

       {¶8} When reviewing a civil appeal from a bench trial, we apply a manifest weight

standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp., 193

Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.), citing App.R. 12(C)

and Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). A verdict

supported by some competent, credible evidence going to all the essential elements of the

case must not be reversed as being against the manifest weight of the evidence.
Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

       {¶9} As the Ohio Supreme Court explained in Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517:

       “Weight of the evidence concerns ‘the inclination of the greater amount of
       credible evidence, offered in a trial, to support one side of the issue rather
       than the other. It indicates clearly to the [trier of fact] that the party having
       the burden of proof will be entitled to their verdict, if, on weighing the
       evidence in their minds, they shall find the greater amount of credible
       evidence sustains the issue which is to be established before them. Weight
       is not a question of mathematics, but depends on its effect in inducing
       belief.’”

(Emphasis sic.) Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary 1594 (6th Ed.1990).

       {¶10} In assessing whether a verdict is against the manifest weight of the

evidence, we examine the entire record, weigh the evidence and all reasonable inferences,

consider the witnesses’ credibility and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the verdict must be overturned and a new trial ordered. State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶11} In weighing the evidence, we are guided by a presumption that the findings

of the trier of fact are correct. Seasons Coal, 10 Ohio St.3d at 80, 461 N.E.2d 1273. This

presumption arises because the trier of fact had an opportunity “to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.”       Id. Thus, “to the extent that the
evidence is susceptible to more than one interpretation,” we will “construe it consistently

with the * * * verdict.” Berry v. Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381, 965

N.E.2d 318, ¶ 22 (8th Dist.), citing Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426

(1980); see also Seasons Coal at 80, fn. 3 (‘“[I]n determining whether the judgment

below is manifestly against the weight of the evidence, every reasonable intendment and

every reasonable presumption must be made in favor of the judgment and the finding of

facts. * * * If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the verdict and

judgment, most favorable to sustaining the verdict and judgment”’), quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

       {¶12} We find no evidence in the record to support Harris’s contention that the

trial court failed to properly consider mitigation of damages.        The failure to mitigate

damages is an affirmative defense. Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist.

Cuyahoga No. 102119, 2016-Ohio-1466, 62 N.E.3d 1034, ¶ 69. Thus, the burden of

proving a failure to mitigate damages lies with the party asserting the defense. Id.

       {¶13} Here, Harris argues that OMC failed to mitigate its damages by electing not

to pursue the claim for unpaid fees as a cross-claim in the foreclosure case.      However,

the trial court aptly pointed out that Harris continued paying his condominium fees for

nearly a year and a half after the foreclosure case was instituted.    The present claim for

unpaid fees did not begin to accrue until unpaid fees began to accumulate in July 2013.

Even if we accepted the dubious contention that the trial court in the foreclosure case
would have granted leave for OMC to file its cross-claim to the case following the

consent decree, the claim was permissive, rather than compulsory, pursuant to Civ.R.

13(G).     Furthermore, Harris failed to proffer either facts or law to demonstrate to the

trial court below how the adjudication of the fee claim in the foreclosure case would have

mitigated the damages as opposed to resolving the matter in the present action.

         {¶14} Harris’s second assignment of error is overruled.

         {¶15} Judgment affirmed.

         It is ordered that appellee recover from appellant the costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to the Bedford Municipal Court to carry

this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
