         [Cite as Greer v. Bruce, 2014-Ohio-4901.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


ROBERT GREER,                                        :   APPEAL NO. C-140121
                                                         TRIAL NO. A-1104694
        Plaintiff-Appellee,                          :

  vs.                                                :     O P I N I O N.

GERALD BENJAMIN BRUCE,                               :

  and                                                :

EARL L. BRUCE,                                       :

        Defendants-Appellants.                       :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 5, 2014




Stephenie N. Lape and Kenneth G. Hawley, for Plaintiff-Appellee,

Daniel E. Whitely, Jr., for Defendants-Appellants.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.


         {¶1}     Defendants-appellants Gerald Benjamin Bruce and Earl L. Bruce

appeal the judgment of the Hamilton County Court of Common Pleas awarding

damages to plaintiff-appellee Robert Greer in a suit for conversion. The trial court

entered the judgment after a trial before a magistrate.

                                 Ownership Claims

         {¶2}     Greer testified that, in 2010, he had entered into an oral agreement

with Earl Bruce to use property owned by Bruce and later by Bruce’s son, Gerald

Bruce.    Greer used the Bruce property as a “laydown yard” to store industrial

equipment while offering it for sale. According to Greer, he was permitted to use the

Bruce property in exchange for bringing in clean landfill, grading the land, and giving

half of the proceeds from salvageable items already on the land to Earl Bruce.

         {¶3}     Greer had access to a key to the property, and he placed a large

array of industrial equipment, including generators, fuel tanks, and pumps on the

land. Greer testified that Earl Bruce had mentioned clearing the property at various

times, with Greer stating that he would comply with his requests or demands. On

Thursday June 16,, 2011, Greer went to the laydown yard and saw that the entrance

was blocked by a deputy sheriff. A man who worked for Earl Bruce told Greer that he

would have to remove his equipment by the following Monday. Greer testified that

before this, he had never been told to remove any of his equipment.

         {¶4}     On Friday June 17, 2011, Greer again went to the property to begin

collecting his equipment. This time, he was met by Robert Writesel, a man whom the

Bruces had hired to clear Greer’s equipment from the land. Despite Earl Bruce’s




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representation that Greer would have until Monday to remove his property, Writesel

and his crew were hauling away the equipment Friday morning.

       {¶5}       While Greer photographed the removal of his property, Writesel

made an obscene gesture that was caught on camera. Greer sought an injunction

from the trial court to prevent the further removal of his equipment, but he was

unsuccessful in his efforts.

       {¶6}       The evidence demonstrated that Writesel had sold Greer’s

equipment for its scrap value. Greer presented expert evidence that the value of the

items removed by Writesel was $344,990.           Greer also presented evidence that

Writesel had removed only valuable equipment and that numerous items without

resale or scrap value had been left on the Bruce property.

       {¶7}       Earl Bruce testified that he had never given Greer permission to

use his property. According to Bruce, Greer had been permitted to use adjacent land

that Bruce had leased from Whitewater Township. Bruce stated that Greer had

encroached on his property despite repeated warnings that he was trespassing.

Bruce also stated that he had finally arranged for Writesel to clear the land so it could

be leased to someone else. Despite his claim that he simply wanted the land cleared,

Bruce could not cogently explain why only the valuable items had been removed.

       {¶8}       Gerald Bruce testified that, when he had acquired the land from

Earl Bruce in 2010, he had assumed that all of the equipment belonged to his father.

He stated that he had rarely visited the property and was not familiar with the

business relationship between his father and Greer.

       {¶9}       The magistrate found that the Bruces had converted Greer’s

property and that the value of the property was $344,990. But because Greer had

testified that he would have been charged a 12 percent commission on the sale of the



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items, the magistrate recommended that the court award compensatory damages in

the amount of $303,591.20. The magistrate also recommended an award of punitive

damages in the same amount. The trial court overruled the Bruces’ objections and

entered judgment in accordance with the magistrate’s recommendation.

                          The Judgment for Conversion

       {¶10}     In their first assignment of error, the Bruces argue that the trial

court erred in entering judgment in favor of Greer. They first argue that they had

acted lawfully because the trial court had allegedly authorized them to clear Greer’s

equipment from the property.           In support of their argument, they cite the

magistrate’s refusal to enjoin the removal of the equipment as well as the

magistrate’s oral pronouncement that the Bruces could “clean the place up” and do

what they “need to do.”

       {¶11}     We find no merit in this argument. It is well settled that a court

speaks only through its journal entries. Hooten v. Safe Auto Ins. Co., 1st Dist.

Hamilton No. C-010576, 2004-Ohio-451, ¶ 7. In this case, the trial court did not

journalize any pretrial decision with respect to the property, and any reliance on the

oral pronouncements of the magistrate was misplaced.

       {¶12}     The Bruces next contend that, because Greer was a trespasser on

their property, they had the right to remove the equipment and could not be properly

held liable for conversion. Greer maintains that he was a lessee of the land and was

wrongfully deprived of his property.

       {¶13}     Conversion is the wrongful exercise of dominion over property in

exclusion of the owner’s right, or the withholding of property from the owner’s

possession under a claim inconsistent with the owner’s rights.        See Eysoldt v.

Proscan Imaging, 194 Ohio App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 26 (1st



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Dist.), citing Zacchini v. Scripps-Howard Broadcasting, 47 Ohio St.2d 224, 226, 351

N.E.2d 454 (1976), and Norwell v. Cincinnati, 133 Ohio App.3d 790, 811, 729 N.E.2d

1223 (1st Dist.1999). Thus, we must determine whether the Bruces’ confiscation and

sale of the equipment was wrongful.

       {¶14}         First, we reject the Bruces’ contention that Greer was a trespasser.

Greer adduced evidence that he had an oral lease with the Bruces to use their land as

a “laydown yard,” and the trial court found that evidence to be credible. Because

Greer was given access to the property and used it openly for an extended period of

time, we cannot say that the trial court lost its way in finding him to be a lessee. See

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19-20.

       {¶15}         Next, we must determine whether the Bruces acted properly in

using “self-help” to evict Greer. We agree with the trial court that the Bruces’ actions

were unlawful.

       {¶16}         R.C. 1923.04 provides that a commercial landlord must give three

days’ notice of the intent to evict and must then use judicial process to effectuate the

forcible entry and detainer.         Courts have recognized an exception to these

requirements in the commercial setting where the parties have agreed to waive the

statutory safeguards. See, e.g., Northfield Park Assoc. v. Northeast Ohio Harness,

36 Ohio App.3d 14, 521 N.E.2d 466 (8th Dist.1987) (self-help methods were not

precluded by statute or public policy where a commercial lease provided for waiver of

judicial process).

       {¶17}         But there is nothing in the record to indicate that the parties in the

instant case agreed to waive the statutory requirements or to otherwise provide for

the kind of “self-help” methods employed by the Bruces. And there was certainly no

evidence that Greer had agreed to permit the Bruces to summarily confiscate and sell



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the property stored on the Bruces’ land without compensating him for its value.

Thus, the trial court did not err in finding the Bruces liable for conversion, and we

overrule the first assignment of error.

                                  Punitive Damages

       {¶18}      In their second and final assignment of error, the Bruces argue that

the trial court erred in awarding punitive damages.

       {¶19}      To be entitled to punitive damages, a plaintiff must demonstrate

that the defendant had acted with actual malice, which has been defined as “(1) that

state of mind under which a person’s conduct is characterized by hatred, ill-will or a

spirit of revenge, or (2) a conscious disregard for the rights and safety of other

persons that has a great probability of causing substantial harm.” Eysoldt, 194 Ohio

App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, at ¶ 44, citing Blair v. McDonagh, 177

Ohio App.3d 362, 2008-Ohio-3698, 894 N.E.2d 377, ¶ 65 (1st Dist.). The decision to

grant or deny punitive damages is within the discretion of the trial court. See Kemp

v. Kemp, 161 Ohio App.3d 671, 2005-Ohio-3120, 831 N.E.2d 1038, ¶ 73 (5th Dist.).

       {¶20}      In this case, we find no abuse of discretion.       Greer adduced

evidence that the Bruces had first given him a date to remove his equipment and had

then taken possession of the property three days before the deadline.            With

Writesel’s assistance, the Bruces had converted the equipment and immediately sold

it for scrap without giving Greer an opportunity to challenge their actions. To add

insult to injury, Writesel made an obscene gesture in response to Greer’s reasonable

requests for them to stop confiscating his property.

       {¶21}      The Bruces attempted to explain the extreme measures they had

taken by stating that they needed to clear the land. But this assertion was belied by

the fact that only the valuable items were removed from the land, with numerous



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other large but worthless items permitted to remain. Under these circumstances, the

trial court correctly held that the Bruces had acted with a conscious disregard for

Greer’s rights, and punitive damages were warranted.

       {¶22}     The Bruces do not separately argue that the amount of punitive

damages awarded in this case was excessive. Instead, they challenge only the trial

court’s determination that malice had been demonstrated. We nonetheless note that

the judgment was within the limits imposed by R.C. 2315.21(D)(2), and we find

nothing excessive in the damage award.         Accordingly, we overrule the second

assignment of error.

                                   Conclusion

       {¶23}     We affirm the judgment of the trial court.

                                                                Judgment affirmed.


DINKELACKER, J., concurs.
HENDON, J., concurs in part and dissents in part.

HENDON, J., concurring in part and dissenting in part.


       {¶25}      I concur in the majority’s holding that the Bruces were properly

held liable for conversion and that the trial court did not abuse its discretion in

awarding punitive damages. But because I believe the trial court placed too much

emphasis on Writesel’s conduct in determining the amount of punitive damages, I

would hold that the award was excessive.

       {¶26}      It is evident from the tenor of the magistrate’s decision that

Writesel’s obscene gesture was the impetus for awarding punitive damages in the

same amount as the compensatory award.           But Writesel was an independent

contractor. There was no evidence that the Bruces had any control over Writesel’s

actions or that they had countenanced his lack of decorum.            Under these


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circumstances, I would remand the cause to the trial court for a reconsideration of

the punitive-damages award. Accordingly, I dissent in part.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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