[Cite as Lake v. Love, 2017-Ohio-2714.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




MICHAEL L. LAKE,                                :

        Plaintiff-Appellee,                     :       CASE NO. CA2016-06-116

    - vs -                                      :              OPINION
                                                                5/8/2017
LEE C. LOVE,                                    :

        Defendant/Third-Party Plaintiff-        :
        Appellant,
                                                :
    - vs -
                                                :
MICHELLE LAKE,
                                                :
        Third-Party Defendant-Appellee.
                                                :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2014-05-1429



Michael and Michelle Lake, 5481 Liberty Woods Drive, Hamilton, Ohio 45011, plaintiff-
appellee and third-party defendant-appellee, pro se

Fred Miller, Mark W. Raines, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011,
for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant/third-party plaintiff-appellant, Lee C. Love, appeals from a judgment

entered after a bench trial in the Butler County Court of Common Pleas in favor of plaintiff-
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appellee, Michael L. Lake, and third-party defendant-appellee, Michelle Lake (collectively,

"the Lakes") on claims of conversion made by Michael and by Love. For the reasons set

forth below, we affirm the judgment of the trial court.

        {¶ 2} Michelle and Michael are husband and wife. Michelle and Love are half-

siblings, who share the same father. After Michelle's mother passed away in the mid-1990s,

Love was put on the deed to the property that Michelle's mother and Michelle's and Love's

father shared in Hamilton, Butler County, Ohio. This property contained a house and a large

pole barn.

        {¶ 3} In June 2003, Michelle and Love's father passed away, and the property

passed to Love. At the time of his death, Michelle and Love's father was the only individual

living in the home. Love, however, had personal items stored inside the pole barn on the

property.

        {¶ 4} Love and the Lakes reached an agreement wherein the Lakes would lease the

home from Love with the goal of later purchasing the property. Love, with help from Michael,

made some renovations to the home.                      Love spent around $15,000 to make the

improvements. By January 2004, the Lakes moved into the home. The parties later entered

into a written month-to-month lease for the property, which was backdated by the parties.

The lease agreement did not provide Love with any right to occupy the property during the

term of the lease. Nonetheless, Love believed he retained possession of the pole barn.

        {¶ 5} Around July 2003, Love purchased a Craftsman lawn mower.1 The Lakes

claimed Love gifted the lawn mower to them and that they exclusively used the lawn mower



1. Michael testified Love used $1,500 he received from ABATE, a motorcycle organization that Love and
Michelle's father belonged to prior to his death, to purchase the lawn mower. According to Michael, "ABATE
gives out a $1500 policy for death benefits [and] * * * I guess [Love] got the $1500, and then used it to purchase
the lawn tractor." Love, however, denied that he used money received from ABATE to purchase the lawn
mower. Although he did not testify about the amount paid for the lawn mower, Love explained that he purchased
the lawn mower with a credit card in July 2003.
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to mow the property. Love acknowledged that the Lakes exclusively used the mower after

they moved into the property's home, but he claimed he did not "give it to [them] to possess

it."

       {¶ 6} While the Lakes leased the property from Love, Love stored personal items in

the pole barn, including a 1992 Rinker V260 boat and a 1996 Kawasaki jet ski. Then, in the

winter of 2009, without any discussion with the Lakes, Love began to reside in his boat inside

the pole barn. Love, with help from Michael, made certain improvements to the pole barn to

make it habitable, including adding insulation, heating and air conditioning, and plumbing for

the installation of a shower, sink, and toilet. In the summer of 2012, Love purchased a small,

wooden storage shed and had it installed on the property so that the Lakes would have

something to store their personal belongings in as Love was still residing in the pole barn.

       {¶ 7} The Lakes purchased the property from Love near the end of April 2013. Less

than a month later, in May 2013, the Lakes asked Love to pay $250 a month in rent for his

use of the pole barn to defray the cost of the utilities he used. This request resulted in

discord between the parties, and Michael ended up placing a note on Love's refrigerator

asking him to vacate the property. Ultimately, the parties reached an agreement whereby

Love would vacate the property but would be permitted to leave his personal items in the pole

barn until he completed construction of a pole barn on another piece of property. The Lakes

believed they had agreed to store Love's items for three months while the pole barn was

being constructed, whereas Love believed the time-period to complete construction of his

new pole barn while storing items in the Lakes' pole barn was open ended.

       {¶ 8} Love vacated the Lakes' pole barn on June 6, 2013, leaving his boat, jet ski,

furniture, tools, and other items behind. In August 2013, Love returned to the property and

removed some items stored in the pole barn. Among the items removed by Love were tools

and the Craftsman lawn mower. Love's boat and jet ski remained in the pole barn.
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       {¶ 9} The Lakes disputed that the items removed by Love belonged to him. The

parties began quarreling over the ownership of the items Love removed.             Love sent

numerous disparaging text messages to Michelle and was eventually charged and convicted

of telecommunications harassment in December 2014 in the Butler County Area II Court.

Thereafter, communications between the parties occurred through their respective lawyers.

       {¶ 10} In September or October 2014, the Lakes moved the items belonging to Love

out of the pole barn and either into Love's boat or into the wooden storage shed so that they

could begin using the pole barn. The Lakes then moved Love's boat and jet ski outside. The

Lakes covered the boat and jet ski, but neither item was winterized. Love became aware that

the boat and jet ski had been moved outdoors no later than November 17, 2014, when he

came to the property to remove more of his belongings. This date marked the first big

snowstorm of the season, and, due to the weather, the police officer supervising Love's

removal of his belongings would not permit Love to drive his vehicle into the yard to hook up

his boat. Additionally, the officer only allowed Love 25 to 30 minutes to collect his items,

which was insufficient for Love to remove all of his items. Consequently, Love left his boat,

jet ski, and other personal items behind.

       {¶ 11} Love did not ask the Lakes if the boat and jet ski had been winterized; nor did

he provide instructions on how to winterize the items. Rather, he assumed that the Lakes

had properly winterized his boat and jet ski before moving them outside because he knew

Michael had observed him winterize the boat and jet ski in prior years.

       {¶ 12} Love returned to the property to collect his belongings in January 2015. At this

time, he was able to remove his jet ski and the items stored in the wooden storage shed from

the Lakes' property. However, Love was unable to remove the boat as the boat's trailer was

frozen into the ground.     Upon returning to the property in February 2015, Love was

successful in retrieving his boat.
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       {¶ 13} Michael filed a complaint for conversion against Love in the Butler County Area

II Court, Small Claims Division, seeking $3,000 in damages for the tools and lawn mower that

Love took from him. Love filed a counterclaim against Michael and a third-party complaint

against Michelle for claims of conversion of personal property and unjust enrichment, and he

sought damages in excess of $25,000. As the amount of damages Love sought exceeded

the jurisdictional amount of the Area II Court, the case was transferred to the Butler County

Court of Common Pleas.

       {¶ 14} On June 22, 2015, a bench trial was held before a magistrate. Michelle,

Michael, and Love testified about the events that transpired between them from 2003 to

2015. With respect to his conversion claim, Michael testified that his Craftsman lawn mower,

two ladders, and various tools he owned had been wrongfully taken by Love. Michael

introduced Exhibit 5 into evidence which listed all items taken by Love, individually valued the

items, and set forth an aggregate damage amount of $2,072.

       {¶ 15} Love testified about various pieces of personal property that he owned that the

Lakes damaged when they moved his items out of the insulated pole barn. He testified his

boat and jet ski were no longer operable due to their exposure to the elements and that other

personal items, which the Lakes moved out of the pole barn and placed outside in the boat or

in the uninsulated wooden storage shed, had begun to mold and mildew.

       {¶ 16} Love explained that he bought his boat in either 1997 or 1998 for $19,000, and

he had gotten a good deal on the boat as it had a cracked motor. Love testified that after

purchasing the boat, he completed several upgrades to the boat, including putting a new,

$12,000 motor on the boat, reupholstering the seats, rebuilding the outdrive, putting new

carpet on the decks, and installing a new hot water tank. According to Love, when he left the

boat in the pole barn in June 2013, it was in "mint condition." However, when he was able to

get the boat back in February 2015, it was significantly damaged. He sought $33,000 in
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damages for the boat, and in support of his damage award, introduced an insurance policy

indicating that the boat, with its trailer, was insured for $32,000.2

        {¶ 17} With respect to his 1996 Kawasaki jet ski, Love testified he bought the jet ski in

2009 for $4,400, and he maintained the jet ski in great condition. However, after getting the

jet ski back from the Lakes, the jet ski was "nothing but a water pump with an engine that

drives it. [Both] the engine and the pump are broken, cracked." Love sought $5,000 in

damages for the jet ski because "[t]hat's what [he has] invested in it. The thing wasn't for

sale and it wasn't – it wasn't to be ruined like it was ruined."

        {¶ 18} Finally, Love sought $15,000 in damages for harm caused to other items he

had left behind in the pole barn. He testified that a set of hardwood bedroom furniture, a

leather living room set, and stereo equipment were damaged by the Lakes.

        {¶ 19} On December 3, 2015, the magistrate issued a decision recommending that

judgment be entered in favor of Michael on his conversion claim in an amount of $2,072 and

against Love on Love's counterclaim and third-party complaint. In recommending that Love

not be entitled to judgment, the magistrate specifically determined that the Lakes' testimony

was more credible than Love's testimony. The court found that any damages Love may have

suffered resulted from his "unwillingness to mitigate his damages." The magistrate stated:

                [Love] became aware of the fact that his items were removed
                from the pole barn and that his boat was sitting outside, not
                prepared for the winter. Rather than working toward an amicable
                solution, he allowed the boat to sit out for the winter, with the
                assumption that it was winterized. However, the Court finds that
                such an assumption was unfounded. [Love] simply assumed that
                because Michael Lake had seen him winterize the boat in the
                past, he should have known the boat needed to be winterized.

                ***




2. Love's insurance policy indicates his 1992 Rinker V260 boat, equipment, and motor was insured for $30,000.
His 1994 Trailmaster trailer was insured for $2,000.
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              In this case, the Court finds that [Love's] damages stem solely
              from his unwillingness to mitigate his damages. He knew that
              [the Lakes] were unhappy with his behavior; he did not care. He
              knew that [the Lakes] wanted him to vacate their premises; he did
              not care. He knew that [the Lakes] wanted to use their pole barn;
              he did not care. Instead, he left his property on [the Lakes']
              property for well over [a] year. And when he first went to retrieve
              property, shortly after leaving, rather than being kind, he made
              fun of Michelle Lake and purposefully took property he knew that
              he had given to [the Lakes], the lawn [mower]. That act then set
              forth a series of letters and discussions between the parties'
              lawyers that ultimately result[ed] in trial. When informed that his
              boat was being placed outside, rather than insuring that it had
              been properly winterized, [Love] continued to stress the "principle
              of the matter" and never took the opportunity to work through his
              lawyer to look in on the boat. In fact, he had already made any
              peaceful exchanges difficult, as he was convicted of telephone
              harassment.

       {¶ 20} The magistrate further found that even if Love had demonstrated he was

entitled to damages on his counterclaim and third-party complaint, "he provided no proof as

to the actual amount of damages he suffered. * * * [Love's] figures were based on pure

speculation." In discounting Love's testimony, the court noted that Love sought damages for

more than the amount he originally paid for some items, including the jet ski.

       {¶ 21} Love filed objections to the magistrate's decision, arguing that the magistrate

erred in determining that Love failed to mitigate his damages and erred in calculating the

amount of damages owed to Michael by including $1,500 in damages for the Craftsman lawn

mower that Michael admitted he had not purchased. Love contended that including the

$1,500 in the damage award "unjustly enriched [Michael] for the value of personal property

that was never his."

       {¶ 22} On May 17, 2016, the trial court overruled Love's objections and adopted the

magistrate's decision. The trial court specifically found that it was Love's "own behavior and

hostility that impeded his ability to retrieve his property and mitigate his damages. * * * [T]he

Magistrate had sufficient evidence to base his decision that [Love] failed to mitigate his


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damages, and, as such, is not entitled to any damages." The court further determined there

was "sufficient evidence to find that the lawn [mower] was actually a gift to the Lakes for

which they are entitled to compensation for [Love's] taking of the lawn [mower]."

       {¶ 23} Love appealed the trial court's decision, raising three assignments of error.

For ease of discussion, we will address Love's second and third assignments of error

together.

       {¶ 24} Assignment of Error No. 1:

       {¶ 25} THE TRIAL COURT ERRED TO THE PREJUDICE OF [LOVE] WHEN IT

HELD THAT HE HAD FAILED TO MITIGATE HIS DAMAGES.

       {¶ 26} In his first assignment of error, Love argues the trial court erred when it

determined he failed to mitigate his damages. Love contends he did not have a duty to

mitigate as the record demonstrates he was not aware his property was in jeopardy of being

damaged by the Lakes until after it had been removed from the pole barn, suffered damages,

and it "was too late for him to do anything about it."

       {¶ 27} "[A]n injured party has a duty to mitigate and may not recover for damages that

could reasonably have been avoided." Chicago Title Ins. Co. v. Huntington Natl. Bank, 87

Ohio St.3d 270, 276 (1999). This duty arises where the injured party has knowledge that

damages have been sustained. Baird v. Crop Prod. Servs., 12th Dist. Fayette Nos. CA2011-

03-003 and CA2011-04-005, 2012-Ohio-4022, ¶ 37. "In mitigating damages, an injured party

must use only ordinary and reasonable effort to avoid or lessen the damages." Id. at ¶ 44,

citing Abroms v. Synergy Bldg. Sys., 2d Dist. Montgomery No. 23944, 2011-Ohio-2180, ¶ 58.

The injured party does not need to do what is unreasonable or impracticable or what is

expected to result in extraordinary expenses. Id., citing Chicago Title Ins. Co. at 296.

Because failure to mitigate is an affirmative defense, the burden to prove it lies with the party

raising it. Id. at ¶ 43.
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       {¶ 28} Having reviewed the record in the present case, we find that the evidence

supports the trial court's conclusion that Love failed to mitigate his damages. Contrary to

Love's contentions the record demonstrates that he could have used ordinary and

reasonable efforts to prevent, or at least substantially lessen, any damage to his belongings.

There is no evidence in the record to support Love's claim that the boat and jet ski had

already sustained damage as of November 17, 2014, the date he discovered the watercrafts

sitting outside the pole barn. In fact, trial testimony indicated that November 17, 2014, was

the date of the first snowstorm of the season. Love could have acted on this date to prevent

damage to his belongings. Although he was not permitted by law enforcement to drive into

the Lakes' yard to attach the boat to a vehicle, there is nothing in the record indicating he was

prevented from taking steps to winterize the watercrafts that day. Likewise, there was

nothing in the record demonstrating he was prevented from contacting the Lakes through his

attorney to find out if his boat and jet ski had been winterized, to arrange for the watercrafts

to be winterized, or to provide instructions on how to winterize the watercrafts.

       {¶ 29} Love contends his ability to remove his personal property from the Lakes'

property was hindered by a court order that required either a member of law enforcement or

both parties' attorneys to be present before he could remove his property. However, as the

trial court noted, it was Love's "own behavior and hostility that impeded his ability to retrieve

his property and mitigate his damages." Had Love not taken property that did not belong to

him in August 2013, sent disparaging text messages to Michelle, and been convicted of

telecommunications harassment, he would not have been prevented from obtaining his

property without supervision. There is no evidence in the record indicating that the delay in

Love picking up his belongings was due to obstruction by the Lakes. Rather, the evidence

introduced at trial indicated the delay was caused solely by Love's conduct.

       {¶ 30} Accordingly, as the weight of the evidence introduced at trial demonstrated
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Love delayed more than 17 months in retrieving his items from the Lakes' property, that his

delay was a result of his own actions and not those of the Lakes, and that he did not take any

action to prevent damage to his belongings after learning they had been removed from the

pole barn, we find no error in the trial court's determination that Love failed to mitigate his

damages.

       {¶ 31} Love's first assignment of error is overruled.

       {¶ 32} Assignment of Error No. 2:

       {¶ 33} THE TRIAL COURT ERRED TO THE PREJUDICE OF [LOVE] WHEN IT

RULED THAT HE HAD NOT PROVED HIS ENTITLEMENT TO DAMAGES BY A

PREPONDERANCE OF THE EVIDENCE.

       {¶ 34} Assignment of Error No. 3:

       {¶ 35} THE TRIAL COURT ERRED IN ISSUING A JUDGMENT FOR $2,072.00

AGAINST [LOVE] AS [MICHAEL LAKE] FAILED TO PRODUCE EVIDENCE OF THE VALUE

OF THE PROPERTY AT ISSUE.

       {¶ 36} In his second assignment of error, Love argues the trial court erred in

concluding that he was not entitled to damages because his requested damage figures are

"based on pure speculation." In his third assignment of error, Love argues the trial court

erred in awarding $2,072 in damages to Michael as the damage award is "speculative" and is

not based on the value of the property at the time the conversion took place.

       {¶ 37} With respect to the arguments raised in Love's second and third assignments

of error, we note that Love failed to raise these specific arguments within his objections to the

magistrate's decision. "An objection to a magistrate's decision shall be specific and state

with particularity all grounds for objection." Civ.R. 53(D)(3)(b)(ii). Where a party has failed to

object to a factual finding or legal conclusion in accordance with Civ.R. 53(D)(3)(b), "[e]xcept

for a claim of plain error, a party shall not assign as error on appeal the court's adoption of
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any factual finding or legal conclusion, whether or not specifically designated a finding of fact

or conclusion of law[.]" Civ.R. 53(D)(3)(b)(iv). "[E]ven then, 'unless the appellant argues a

claim of plain error, the appellant has waived the claimed errors not objected to below.'" Levy

v. Seiber, 12th Dist. Butler Nos. CA2015-02-019, CA2015-02-021, and CA2015-02-030,

2016-Ohio-68, ¶ 61, quoting In re L.K., 12th Dist. Butler No. CA2014-06-145, 2015-Ohio-

1091, ¶ 16.

       {¶ 38} Here, Love only objected to the magistrate's determinations that he failed to

mitigate his damages and that the value of the lawn mower could be included in Michael's

damage award when the mower "was never his" as Michael failed to purchase or pay

anything for the mower. Love did not object to the magistrate's conclusion that he provided

no proof as to the actual amount of damages he suffered or that the damage figures he

provided were based on "pure speculation." Likewise, Love did not object to the amount of

damages awarded to Michael on the basis that there was insufficient proof of the fair market

value of the property at the time of conversion. As Love did not specifically object to the

magistrate's decision on these bases, and he has not set forth a claim of plain error, he has

forfeited review of these issues on appeal. See Levy at ¶ 61; Washington Mut. Bank, F.A. v.

Wallace, 12th Dist. Warren No. CA2016-05-037, 2016-Ohio-7992, ¶ 13.

       {¶ 39} Further, even if this court were to review Love's assigned errors under a plain

error standard, Love does not prevail. Civil plain error is an extremely deferential standard of

review and its application is limited to "those extremely rare cases where exceptional

circumstances require its application to prevent a manifest miscarriage of justice, and where

the error complained of, if left uncorrected, would have a material adverse effect on the

character of, and public confidence in, judicial proceedings." Goldfuss v. Davidson, 79 Ohio

St.3d 116, 121 (1997), citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982).

This is not one of those "extremely rare cases" presenting "exceptional circumstances" where
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application of civil plain error is appropriate. Here, the trial court was presented with

testimony and evidence from the Lakes and Love regarding the damages each party was

alleged to have sustained. The trial court found the Lakes' testimony and evidence credible

but found Love's damage figures were speculative, as evidenced by the fact that he was

seeking more in damages than he original paid for his 1992 Rinker V260 boat and a 1996

Kawasaki jet ski. The trial court was entitled to discredit Love's testimony that he kept his

boat and jet ski in "mint condition" and had made thousands of dollars of improvements to

increase the value of his items. The circumstances of the present case, therefore, do not

support a finding of plain error.

       {¶ 40} Accordingly, for the reasons set forth above, Love's second and third

assignments of error are overruled.

       {¶ 41} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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