[Cite as Colaprete v. Morris, 2013-Ohio-3899.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



RONALD S. COLAPRETE                                 JUDGES:
                                                    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                         Hon. John W. Wise, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 2013CA00031
MARTIN J. MORRIS, et al.

        Defendants-Appellees                        OPINION




CHARACTER OF PROCEEDING:                         Civil Appeal from the Court of Common
                                                 Pleas, Case No. 2012CV01088


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          September 9, 2013



APPEARANCES:

For Plaintiff-Appellant                          For Defendant-Appellees

ROY H. BATISTA                                   JASON BING
4808 Munson Street, NW                           Post Office Box 2985
Canton, Ohio 44718                               North Canton, Ohio 44720
Stark County, Case No. 2013CA00031                                                   2

Wise, J.

      {¶1}   Appellant Ronald S. Colaprete appeals the January 29, 2013, decision of

the Stark County Common Pleas Court affirming the Magistrate’s Decision.

                      STATEMENT OF THE FACTS AND CASE

      {¶2}   The relevant facts are as follows:

      {¶3}   In 1996, Appellant Ronald Colaprete entered into an agreement with

Appellee Paul Morris for the rental of two storage units (Unit 1 and Unit 2) owned by

Appellees Paul Morris and Martin Morris. The storage units were located at the

Morrises' rental facility on Harmont Ave. Although labeled as Unit 1 and Unit 2, the

storage units were not physically separated and essentially comprised one large

storage unit. The initial rental price for the storage units was $350.00 per month. By

2010, the rental price for the storage units had increased to $450.00 per month.

Colaprete and Paul Morris entered into a written lease agreement for the storage units.

However, neither party can produce a copy of such agreement.

      {¶4}   Throughout their business relationship, Colaprete would go for months

without paying rent on Units 1 and 2, but would make large payments to satisfy any

arrears and often advance payments on the units. This practice was accepted by Paul

Morris until April 2011, when Colaprete was $3,350.00 behind in rental payments.

      {¶5}   Paul Morris notified Colaprete that he needed to make his payments

current or he would be locked out of the units. Upon his failure to make his rental

payments current, Colaprete was locked out of Units 1 and 2 in April 2011.
Stark County, Case No. 2013CA00031                                                    3


       {¶6}     At the time of the lockout, Appellees took items, without Colaprete's

permission, from Units 1 and 2 and sold them as scrap, for which they received

$3,054.00.

       {¶7}     Although Colaprete was locked out of Units it and 2, Colaprete continued

to have items stored in these units until September, 2012.

       {¶8}     Colaprete did not make any rental payments for the continued storage of

the items in Units t and 2.

       {¶9}     At the time he was locked out of Units 1 and 2, a 1978 Ford Thunderbird

in excellent condition and a 1982 Lincoln Continental in above-average condition were

stored in the units. The value of such vehicles was $7900.00 and $2550.00,

respectively.

       {¶10} On April 5, 2012, Plaintiff filed a pro se Complaint against Defendants

Martin J. Morris, Paul R. Morris, Morris Brothers, Non Ferrous and Morris Rentals.

Colaprete's Complaint contained one count for conversion seeking $129,226.61 in

damages.

       {¶11} On May 7, 2012, Defendant Morris Rentals filed an Answer and

Counterclaim and all Defendants filed a Motion to Dismiss the Complaint.

       {¶12} On June 11, 2012, Plaintiff filed a Response to the Motion to Dismiss.

       {¶13} On June 12, 2012, the trial court denied the Motion to Dismiss.

       {¶14} On July 19, 2012 the remaining Defendants filed their Answers.

       {¶15} On August 13, 2012 the matter was for trial on September 24, 2012.

Plaintiff at this point engaged counsel.
Stark County, Case No. 2013CA00031                                                     4


       {¶16} On September 27, 2012, a bench trial commenced before a magistrate. At

the trial, the magistrate heard testimony from Appellant Colaprete and Appellees Paul

Morris and Martin Morris.

       {¶17} Subsequent to the trial, Appellant and Appellees each filed their

respective post trial memorandums and/or briefs pursuant to the trial court's

instructions.

       {¶18} On October 31, 2012 the Magistrate rendered her Judgment and Finding

of Fact and Conclusions of Law. As to Appellees’ counterclaim for breach of contract,

the Magistrate found in favor of Appellees, awarding damages in the amount of

$10,100.00, plus interest. On Appellant’s conversion claim, she found that appellees

took items belonging to Appellant without his permission. She found the measure of

damages to be the scrap value received by Appellees, $3,054.00.          On Appellant’s

negligence claim, she found that Appellees breached their duty of care by damaging

and destroying Appellant’s stored vehicles, and awarded damages in the amount of

$10,450.00.

       {¶19} On November 13, 2012, Plaintiff filed his objections to the Magistrate's

ruling of October 31, 2012.

       {¶20} On January 29, 2013, Judge Sinclair by Judgment Entry affirmed the

Magistrate's Decision and Orders.

       {¶21} It is from this decision that Appellant now appeals, assigning the following

errors for review:
Stark County, Case No. 2013CA00031                                    5


                         ASSIGNMENTS OF ERROR

     {¶22} “I. THE COURT COMMITTED ERROR IN NOT GRANTING INTEREST

ON THE JUDGMENTS IN FAVOR OF THE PLAINTIFF AGAINST THE MORRIS

DEFENDANTS.”

     {¶23} “II. THE COURT COMMITTED ERROR IN FINDING THAT THE

DAMAGES PROVEN AT TRIAL IN RESPECT TO CONVERTED PROPERTY WAS

THE AMOUNT RECEIVED BY THE MORRIS DEFENDANTS BY SCRAPPING THE

PROPERTY OF THE PLAINTIFF.

     {¶24} “III. THE COURT COMMITTED ERROR IN MAKING A CONCLUSION OF

LAW NO. 31, THAT PLAINTIFF BREACHED THE CONTRACT OF RENTAL WHEN HE

FAILED TO MAKE RENTAL PAYMENTS IN FULL FROM SEPTEMBER, 2010

THROUGH SEPTEMBER, 2012 WHICH IS INCONSISTENT WITH THE FINDING OF

FACT 12 AND 13, THAT "THROUGHOUT THEIR BUSINESS RELATIONSHIP

COLAPRETE (PLAINTIFF) WOULD GO MONTHS WITHOUT PAYING RENT ON

UNITS 1 AND 2 BUT WOULD MAKE LARGE PAYMENTS TO SATISFY ANY

ARREARS AND OFTEN ADVANCE PAYMENTS ON THE UNITS," AND "THIS

PRACTICE WAS ACCEPTED BY PAUL MORRIS UNTIL APRIL, 2011, WHEN

COLAPRETE WAS $3,350.00 BEHIND IN RENTAL PAYMENTS.

     {¶25} “IV.   THE   COURT   COMMITTED   ERROR   IN   AWARDING   THE

DEFENDANTS RENT FOR THE PERIOD OF APRIL, 2011 TO SEPTEMBER, 2012,

FOR THE REASON THAT THE CONDUCT OF DEFENDANTS IN DESTROYING AND

SCRAPPING THE PLAINTIFFS PERSONAL PROPERTY STORED ON THE
Stark County, Case No. 2013CA00031                                                     6


PREMISES      AND    LOCKING     THE    PLAINTIFF     OUT     IN   APRIL,   2011, WAS

EFFECTIVELY AN EJECTMENT.”

                                           I.

      {¶26} In his First Assignment of Error, Appellant argues that the trial court erred

in failing to grant interest on the judgments. We disagree.

      {¶27} Although Ohio common law did not generally allow prejudgment interest in

civil actions based on tortious conduct, an action in conversion was a well-established

exception. Moore v. Univ. of Cincinnati Hosp. (1990), 67 Ohio App.3d 152, 154, 586

N.E.2d 213; Masterson v. Weaver, Morgan App. No. CA-05-014, 2006-Ohio-1069;

Persky, Shapiro, Salim, Esper, Arnoff & Nolfi Co., L.P.A. v. Guyuron (Dec. 14, 2000),

Cuyahoga App. No. 77249. “Ohio courts have long recognized that the common law

provides that interest in actions based upon the tortious conversion of personal property

may run from the time of the conversion.” GM Gas Exploration, Inc. v. McClain (Oct. 17,

1995), Athens App. No. 95CA1651. However, the precise date for the calculation of the

interest remains in the sound discretion of the court. Wozniak v. Wozniak (1993), 90

Ohio App.3d 400, 412, 629 N.E.2d 500; Lyle v. Durham (1984), 16 Ohio App.3d 1, 3,

473 N.E.2d 1216; Oak Furniture Showroom, Inc. v. Normandy Pointe Assoc. (June 26,

1998), Montgomery App. No. 16816; In re: Guardianship of Cawein (Nov. 1, 1995),

Hamilton App. No. C-940885; GM Gas Exploration; Call v. Banc Ohio Natl. Bank (Apr.

11, 1994), Crawford App. No. 3-93-21.

      {¶28} In his prayer for relief, Appellant sought “[j]udgment in the sum of

$129,226.61, plus costs, and, ask [sic] the court for punitive damages, caused because

of Defendant’s wrongful conversion for their own benefit.” The prayer for relief did not
Stark County, Case No. 2013CA00031                                                       7


seek a specific award for prejudgment interest, nor did the remainder of Appellant's

complaint expressly seek prejudgment interest. Failure to include prejudgment interest

in the prayer for relief operates as a waiver of such a claim. Salvi v. Dunbar (Dec. 23,

1993), Franklin App. No. 93AP-1059; G & S Mgmt. Co. v. Commercial Union Ins. Cos.

(June 3, 1993), Franklin App. No. 92AP-1429.

       {¶29} Moreover, even if Appellant's complaint were sufficient to raise

prejudgment interest, there is no evidence in our record indicating that Appellant ever

raised the issue of prejudgment interest to the trial court.

       {¶30} Appellant’s First Assignment of Error is overruled.

                                             II.

       {¶31} In his Second Assignment of Error, Appellant argues that the trial court

erred in its determination of damages. We disagree.

       {¶32} The measure of damages in a conversion action is the value of the

converted property at the time it was converted. Tabar v. Charlie's Towing Serv., 97

Ohio App.3d 423, 427-428, 646 N.E.2d 1132 (8th Dist.1994). Put another way, the

general measure of damages for conversion is the fair market value of the item at the

time it was converted. Allied Erecting & Dismantling Co., supra, at ¶ 62. “An award of

damages must be shown with a reasonable degree of certainty and in some manner

other than mere speculation, conjecture, or surmise.” Elias v. Gammel, 8th Dist. No.

83365, 2004–Ohio–3464, at ¶ 25. Damages are not speculative when they can be

“computed to a fair degree of probability.” Allied Erecting & Dismantling Co. at ¶ 65.
Stark County, Case No. 2013CA00031                                                           8


       {¶33} An appellate court will not disturb a trial court's determination of damages

absent an abuse of discretion. Roberts v. United States Fid. & Guar. Co. (1996), 75

Ohio St.3d 630, 634, 665 N.E.2d 664.

       {¶34} An abuse of discretion implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). When reviewing for an abuse of discretion, an appellate court may not

merely substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶35} In the case sub judice, the magistrate heard testimony from both sides as

to the value of the converted property. After hearing such evidence, the magistrate in

her Findings of Fact and Conclusions of Law found:

       {¶36} “Aside from the value received by Morris Defendants for materials they

scrapped and the destroyed vehicles, this Magistrate finds that Colaprete has failed to

demonstrate the value of any other items that might have been destroyed or scrapped

by the Morris Defendants”

       {¶37} “ ***

       {¶38} “Although Colaprete submitted a detailed list of the items contained in

Units 1 and 2 along with his opinion of the value of each, this Magistrate finds such self-

serving evidence unpersuasive and that the value of the property is accurately reflected

by the value received by Morris Defendants in scrapping the items.”

       {¶39} When conflicting evidence is susceptible to more than one interpretation,

evaluating witness credibility is a controlling factor, and left to the trier of fact who is in
Stark County, Case No. 2013CA00031                                                          9


the best position to make that determination. We cannot say the fact-finder clearly lost

its way. There is competent, credible evidence supporting the trial court's decision.

       {¶40} Appellant’s Second Assignment of Error is overruled.

                                             III.

       {¶41} In his Third Assignment of Error, Appellant argues that the trial court erred

in finding that Appellant breached the rental contract in this matter. We disagree.

       {¶42} In order to succeed on a breach of contract claim, the plaintiff must

demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his obligations; (3) the

defendant breached his obligations; and (4) damages resulted from this breach. Chaney

v. Ramsey, 4th Dist. No. 98CA614, 1999 WL 217656, *5 (Apr. 7, 1999), citing Doner v.

Snapp, 98 Ohio App.3d 597, 600, 649 N.E.2d 42 (2nd Dist.1994). “ ‘[B]reach,’ as

applied to contracts is defined as a failure without legal excuse to perform any promise

which forms a whole or part of a contract, including the refusal of a party to recognize

the existence of the contract or the doing of something inconsistent with its existence.”

Natl. City Bank of Cleveland v. Erskine & Sons, Inc., 158 Ohio St. 450, 110 N .E.2d 598

(1953), paragraph one of the syllabus. “ ‘When the facts presented are undisputed,

whether they constitute a performance or a breach of a written contract, is a question of

law for the court.’ ” Koon v. Hoskins, 4th Dist. No. 95CA497, 1996 WL 30018, *7 (Jan.

24, 1996), fn. 5, quoting Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241 (1939),

paragraph five of the syllabus.

       {¶43} Here, Appellant argues that the parties had entered in a course of dealing

wherein Appellees would accept late storage fee payments from Appellant. Appellant
Stark County, Case No. 2013CA00031                                                      10


often went months without paying rent and then would become current by making a

large payment.

       {¶44} The failure of a lessor to object in a timely manner to a breach of a lease

agreement constitutes a waiver, estopping the lessor from setting up the breach as a

basis for terminating the lease. Finkbeiner v. Lutz (1975), 44 Ohio App.2d 223, 226-227,

337 N.E.2d 655, 657-658. In that case, the lessor accepted late payments from the

lessee for nine years so he waived the right to assert that the latest late payment

breached the lease. The court stated:

       {¶45} “Where a course of conduct is engaged in between the parties to a lease,

which acts are contrary to specific provisions therein, such conduct will speak for itself,

and the parties will be estopped from denying that conduct and its immediate logical

consequences.” See also Habegger v. Paul, Wood App. No. WD-03-038, 2004-Ohio-

2215 (objection not timely where it occurred fourteen months after alleged breach);

Galaxy Dev. v. Quadax, Inc., Cuyahoga App. No. 76769 (landlord was prohibited from

collecting holdover rent because it accepted the original rental payment amount for

seventeen months after the lease expired).

       {¶46} Here, the trial court agreed that the parties had engaged in this practice

until April, 2011, when Appellees notified Appellant that he was $3,350.00 behind in

rental payments, and that if he did not make his payments current he would be locked

out of the storage units.

       {¶47} Paul Morris testified that Appellant was notified on more than one

occasion that he needed to bring his rent current and keep it current, and that failure to

do so would result in being locked out of his storage unit. Mr. Morris testified that the
Stark County, Case No. 2013CA00031                                                     11


last time he told Appellant this was in September, 2010. He said they continued to

make calls to him in November, 2010, and December, 2010, and again in March, 2011,

but stated that the calls were never returned. He further testified that upon being locked

out of the storage unit, Appellant called and was told that he needed to make his rental

payments current immediately or lose his stored property. Mr. Morris stated that they

waited another couple of weeks before emptying the storage unit of some of its

contents. (T. at 103-106).

       {¶48} 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., Gallia App. No. 03CA16, 2004–

Ohio–1128, ¶ 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 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.

       {¶49} Based on the foregoing, we find that the trial court did not err in finding

that Appellant breached his rental storage agreement with Appellees.

       {¶50} Appellant’s Third Assignment of Error is overruled.
Stark County, Case No. 2013CA00031                                                      12


                                            IV.

       {¶51} In his Fourth Assignment of Error, Appellant argues that the trial court

erred in awarding rent to Appellees. We disagree.

       {¶52} Specifically, Appellant argues that the Appellees actions in locking him out

of his storage unites constituted an ejectment and therefore Appellees should not have

been awarded rent for the period of time Appellant was locked out of the leased

premises.

       {¶53} Appellant argues that the Magistrate’s Findings of Fact 18 and 19 were

erroneous, wherein she found:

       {¶54} “18. Although he remained locked out of Unit 1 and 2, Colaprete continued

to store items in the Units until September, 2012.

       {¶55} “19. Colaprete did not make rental payments for the continued storage of

the items in Units 1 and 2.”

       {¶56} Upon review, we find that from April, 2011, to September, 2012, Appellees

were unable to rent the two storage units which are the subject of this action because

they still contained Appellant’s personal items.

       {¶57} Testimony was presented at trial that the parties reached an agreement

allowing Appellant to remove whatever was remaining in the storage units. (T. at 116).

Appellant testified that he did return and had retrieved some of his items, such as the

vehicles, remaining in the storage units but that he did not remove everything. (T. at

56). He further stated that he wanted those items which were still stored in the units. Id.
Stark County, Case No. 2013CA00031                                                    13


       {¶58} As set forth above, 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.

       {¶59} Based on the foregoing, we find that the trial court did not err in awarding

rent to Appellees for the time period of April, 2011, to September, 2012.

       {¶60} The decision of the Court of Common Pleas of Stark County, Ohio, is

affirmed.


By: Wise, J.

Gwin, J., and

Baldwin, J., concur.


                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. W. SCOTT GWIN


                                            ___________________________________
                                            HON. CRAIG R. BALDWIN
JWW/d 0827
Stark County, Case No. 2013CA00031                                          14


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




RONALD S. COLAPRETE                       :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MARTIN J. MORRIS, et al.                  :
                                          :
       Defendants-Appellees               :         Case No. 2013CA00031




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. W. SCOTT GWIN


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
