[Cite as Whaley v. Young, 2020-Ohio-2981.]

                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY



 MILTON WHALEY,                                    :

        Appellee,                                  :         CASE NO. CA2019-11-189

                                                   :              OPINION
     - vs -                                                        5/18/2020
                                                   :

 DAVID YOUNG,                                      :

        Appellant.                                 :




          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV 2019 02 0274


Richard L. Hurchanik, 110 North Third Street, Hamilton, Ohio 45011, for appellee

David Young, 3244 Greenway Avenue, Cincinnati, Ohio 45248, pro se



        HENDRICKSON, P.J.

        {¶ 1} Appellant, David Young, appeals a judgment entered in the Butler County

Court of Common Pleas in favor of appellee, Milton Whaley, on Whaley's conversion claims.

For the reasons set forth below, we affirm the judgment of the trial court.

        {¶ 2} On February 6, 2019, Whaley filed a complaint setting forth two causes of

action against Young for conversion. Whaley asserted he owned an engine for a 1970 Ford

Torino GT that was worth in excess of $25,000 and that Young, Whaley's son-in-law, agreed

to store the engine at his home in Hamilton, Ohio. Whaley alleged that after his daughter

initiated divorce proceedings against Young, Young "intentionally and unjustifiably sold" the
                                                                     Butler CA2019-11-189

engine. Whaley also alleged that Young had Whaley's 8 mm Ruger rifle and had refused

to return the rifle, despite Whaley's repeated demands. Whaley claimed the rifle cost

$1,000 when it was "purchased new in 2014."

       {¶ 3} Young, acting pro se, filed an answer in which he admitted that he had agreed

to store "a[n] engine/motor" at his address and was in the process of divorcing Whaley's

daughter, but he denied the remaining allegations set forth in Whaley's complaint. At the

conclusion of his answer, Young included a request that the trial court "dismiss said

complaints as being false and frivolous in nature."      Young further asserted Whaley's

complaint should be dismissed because the same claims had already been litigated in a

prior Butler County Court of Common Peas case that had ended in a dismissal for Whaley's

failure to appear.

       {¶ 4} On May 9, 2019, Whaley moved for summary judgment on his conversion

claims and attached his own affidavit in support of the motion. In his affidavit, Whaley

averred, in relevant part, as follows:

              I am the owner of the motor and rifle. The Defendant who is my
              son-in-law allowed me to store the motor. It is worth slightly in
              excess of $25,000.

              I lent the Defendant my Ruger 8 mm rifle. After the Defendant
              and my daughter began divorce proceedings, the Defendant
              testified he sold the motor. The Defendant also refused to return
              the rifle to me although I demanded it. My opinion as owner of
              the rifle is that it is worth $1,000.

       {¶ 5} On May 21, 2019, in response to Whaley's motion for summary judgment,

Young filed a document entitled "Defendant Moves for Dismissal." In this motion, Young

again asserted that Whaley's conversion claims were "false and frivolous." Young claimed

Whaley "hasn't proven" or "cannot prove" ownership of the engine, the value of the engine,

or that Whaley delivered the engine to Young for storage. Young did not attach any exhibits

or affidavits to his motion.

                                            -2-
                                                                        Butler CA2019-11-189

       {¶ 6} On June 28, 2019, the trial court issued a decision denying Young's motions

to dismiss and granting in part and denying in part Whaley's motion for summary judgment.

With respect to Young's motions to dismiss, the court first found that Whaley was not barred

from refiling his conversion claims as the prior action Whaley had commenced against

Young had been dismissed without prejudice pursuant to Civ.R. 41(B) for failure to

prosecute. The court then construed Young's arguments as a Civ.R. 12(B)(6) motion to

dismiss for failure to state a claim upon which relief could be granted. The court found no

merit to Young's arguments, noting that "if Whaley is able to prove the allegations he sets

forth, he would be entitled to judgment based upon his claims of conversion."

       {¶ 7} The court then discussed the merits of Whaley's motion for summary

judgment, finding that the allegations set forth in Whaley's complaint combined with his

affidavit established that "Young has wrongfully exercised dominion over Whaley's property

to the exclusion of Whaley's rights as the property owner, or with respect to the rifle, withheld

it from Whaley's possession under a claim inconsistent with Whaley's rights." The court,

therefore, found that judgment in favor of Whaley was appropriate. The court further found

that Whaley's affidavit established damages in the amount of $1,000 as to Young's

conversion of the rifle. However, the court found that "Whaley's affidavit [did] not enable [it]

to determine the exact monetary amount to which [Whaley] was entitled" to as damages for

the engine. Because a genuine issue of material fact existed as to the value of the engine,

the court denied the motion for summary judgment in part.

       {¶ 8} On November 13, 2019, a jury trial was held to determine the fair market value

of the engine Young converted. The jury determined the fair market value of the Ford 429-

4V "Cobra Jet Ram Air" engine was $150. The trial court issued a final judgment in favor

of Whaley for $1,150 for conversion of his engine ($150) and rifle ($1,000). Young timely

filed a notice of appeal.

                                              -3-
                                                                        Butler CA2019-11-189

                                       Young's Appeal

       {¶ 9} Young's brief does not comply with the requirements of App.R. 16, as it does

not set forth any specific assignments of error for review or contain references to the parts

of the record in which the errors are allegedly reflected. Nonetheless, the "Arguments"

portion of Young's brief indicates he is challenging the trial court's decision to limit evidence

at trial to the issue of damages relating to the engine as well as challenging the damage

award for both the engine and rifle.       In the interests of justice, we will address both

arguments.

       {¶ 10} Young contends the trial court erred by not being "concern[ed] with proof of

ownership" and by not letting the jury deliberate on any issue other than damages to the

engine. We find no merit to Young's arguments. On June 28, 2019, the trial court issued

a decision granting in part and denying in part Whaley's motion for summary judgment. The

court granted judgment in favor of Whaley on the issue of liability as to both of Whaley's

conversion claims. The court further awarded summary judgment on the issue of damages

for Whaley's conversion claim related to the rifle. As judgment had already been rendered

on these issues in accordance with Civ.R. 56(C), the only issue to be decided at trial was

the amount of damages Whaley was entitled to recover for Young's conversion of the

engine. The trial court, therefore, did not error in precluding Young from introducing

evidence relating to ownership of the engine or rifle at trial.

       {¶ 11} To the extent that Young seeks to challenge the trial court's decision to enter

summary judgment in Whaley's favor, we find no error in the court's decision. Summary

judgment is proper when the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, show

that (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) the evidence submitted can only lead reasonable minds

                                              -4-
                                                                      Butler CA2019-11-189

to a conclusion that is adverse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

       {¶ 12} "[C]onversion is 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." Joyce v. General Motors Corp., 49 Ohio St.3d 93, 96 (1990).

The affidavit Whaley attached in support of his motion for summary judgment established

that Young wrongfully exercised dominion over Whaley's engine when he sold the engine

without Whaley's permission and Young wrongfully exercised dominion over a $1,000 rifle

by refusing to return it to Whaley. Young did not meet his burden of rebutting Whaley's

evidence with specific facts showing the existence of a genuine triable issue. Rather, Young

attempted to rest on the allegations of denial in his pleadings and bald, unsworn assertions

set forth in his responsive filing, entitled "Defendant Moves for Dismissal," to oppose

summary judgment. A party opposing a summary judgment motion may not rely on the

allegations or denials in his pleadings in order to prevent the granting of summary judgment;

rather, he must set forth specific facts in response, by affidavit or otherwise, demonstrating

the existence of a genuine issue of material fact. Civ.R. 56(E); Savransky v. Cleveland, 4

Ohio St.3d 118, 119 (1983); Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No.

CA2009-11-288, 2010-Ohio-4802, ¶ 7. As Young did not present any evidentiary materials

demonstrating specific facts showing the existence of a genuine triable issue, the trial court

did not err in granting summary judgment to Whaley on his claims of conversion or in

awarding Whaley $1,000 in damages for conversion of the rifle.            Any claimed error

pertaining to these issues is without merit and is overruled.

       {¶ 13} Turning to the jury trial held to determine the value of the converted engine,

Young contends the trial court erred in instructing the jury on damages. He argues that the

court "misinformed" the jury by not giving an instruction on entrapment and by not tailoring

                                            -5-
                                                                      Butler CA2019-11-189

the instructions to the facts of the case. He further argues that there was "zero evidence to

show any damage to the engine in question."

      {¶ 14} Young has not filed a transcript of the jury trial. As the appealing party, Young

had a duty to provide a transcript for appellate review as he bears the burden of showing

error in the underlying proceeding by reference to matters in the record. Dudley v. Dudley,

12th Dist. Butler No. CA2013-09-163, 2014-Ohio-3992, ¶ 25, citing App.R. 9(B) and

16(A)(7). When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus has no

choice but to presume the regularity or validity of the lower court's proceedings and affirm.

Spicer v. Spicer, 12th Dist. Butler No. CA2005-10-443, 2006-Ohio-2402, ¶ 5, citing Knapp

v. Edward Laboratories, 61 Ohio St.2d 197, 199 (1980).

      {¶ 15} Given the absence of an appropriate record to support Young's alleged errors

regarding the jury instructions and evidence in support of the damage award, we presume

the regularity of the proceedings and overrule Young's arguments.

                             Whaley's Motion for Sanctions

      {¶ 16} Finally, Whaley has moved this court to find the appeal frivolous and order

Young to pay reasonable expenses including costs and $600 in attorney fees, as provided

by App.R. 23. "'A frivolous appeal under App.R. 23 is essentially one which presents no

reasonable question for review.'" Madewell v. Powell, 12th Dist. Warren No. CA2006-05-

053, 2006-Ohio-7046, ¶ 10, quoting Talbott v. Fountas, 16 Ohio App.3d 226, 226 (10th

Dist.1984). Although unsuccessful, we find the instant appeal brought by Young presented

a reasonable question for review. We therefore deny Whaley's motion for sanctions.

      {¶ 17} Judgment affirmed.


      S. POWELL and RINGLAND, JJ., concur.


                                            -6-
