[Cite as Wagner v. Weaver, 2010-Ohio-978.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             HANCOCK COUNTY



RANDALL K. WAGNER,                                      CASE NO. 5-09-30

   PLAINTIFF-APPELLEE,

  v.

BOBBY WEAVER, ET AL.,                                     OPINION

   DEFENDANTS-APPELLANTS.




                        Appeal from Hancock Municipal Court
                           Trial Court No. 08-CVF-02178

                                    Judgment Affirmed

                           Date of Decision: March 15, 2010




APPEARANCES:

        Philip L. Rooney for Appellant

        John C. Filkins for Appellee
Case No. 5-09-30



SHAW, J.

       {¶1} Defendants-Appellants Bobby and Myrna Weaver (the “Weavers”)

appeal the July 20, 2009 Judgment Entry of the Findlay Municipal Court, Civil

Division, awarding Plaintiff-Appellee Randall Wagner (“Wagner”) $3,206.07 for

retail goods damaged as a result of the Weavers unlawfully evicting Wagner from

the commercial premises that he leased.

       {¶2} The Weavers owned a commercial rental property in the City of

Findlay. In early 2008, they entered into an agreement with Wagner who intended

to operate on the premises a small retail clothing store specializing in the sale of

women’s lingerie.       The parties entered into a one-year commercial lease

commencing on February 1, 2008 and terminating on January 31, 2009. Under the

terms of the lease, Wagner agreed to pay $800 per month plus a prorated

percentage of the gas and electric utilities.

       {¶3} Wagner timely paid the rent through the month of June 2008.

However, he failed to pay the utilities for June and the rent for July. As a result,

on July 30, 2008, the Weavers, without giving notice to Wagner, changed the

locks on the doors of the premises preventing Wagner from operating his business.

However, the inventory of Wagner’s business remained locked in the premises.

The Weavers later informed Wagner that he would not be permitted to retrieve his

inventory until he paid the entire amount due.



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       {¶4} On August 25, 2008, Wagner filed this suit against the Weavers for

unlawful eviction and conversion. On August 29, 2008, the Weavers permitted

Wagner temporary access to the premises to remove his inventory. Upon removal,

Wagner discovered that several items in the inventory had suffered sun damage as

a result of continued exposure in the storefront window. Wagner stated that he

maintained the business practice of rotating the stock in the front window display

every few days to prevent fading and discoloration which was caused by

prolonged sun exposure. Wagner retained some of the damaged items as evidence

for this case and donated the remainder to charity because he believed it was

against the law to sell the items in their damaged condition.

       {¶5} On July 20, 2009, the parties appeared in court to resolve the matter.

Wagner introduced two handwritten lists documenting the quantity and retail price

of each item in the storefront window that suffered damage totaling $3,630.30. No

other evidence was offered as to the value of the damage clothing. At the close of

all the evidence, the trial court found that the Weavers had inappropriately

prevented Wagner from accessing the premises in violation of the parties’ lease.

However, the trial court also found that Wagner remained liable for the unpaid

rent and utilities. Therefore, the trial court awarded Wagner $3,206.07, an amount




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comprising of the retail value of the damaged clothing reduced by the outstanding

amount Wagner owed to the Weavers for the unpaid rent and utilities.1

        {¶6} The Weavers filed an appeal to this Court asserting two assignments

of error.

                   ASSIGNMENT OF ERROR I
        THE TRIAL COURT ERRED IN GRANTING THE
        APPELLEE DAMAGES BASED ON THE RETAIL VALUE
        OF ITS INVENTORY AND FAILED TO PROPERLY
        CALCULATE SAID DAMAGES

                               ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN GRANTING THE
        APPELLEE DAMAGES WHEN THE APPELLEE FAILED TO
        PRESENT ANY EVIDENCE TO SUBSTANTIATE ITS
        CLAIM

        {¶7} Because both of the Weavers’ assignments of error are based upon

the assertion that the trial court erred when it awarded Wagner the retail value of

the damages clothes, we elect to discuss both assignments of error together.

                         The First and Second Assignments of Error

        {¶8} On appeal, the Weavers argue that the trial court erred when it

awarded Wagner the retail value of his damaged property. They assert two points

as the basis of their argument. First, retail value is an inappropriate measure of

damages in this case. Second, Wagner failed to present adequate evidence to


1
 The total amount outstanding was $974.23 which was the utilities for June and July 2008 and the rent for
July 2008. The trial court permitted the Weavers to retain Wagner’s security deposit of $550. Therefore,
$424.23 was deducted from the retail value of the damaged goods leaving $3,206.07 as the amount
awarded to Wagner.
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substantiate his claim for damages.     It is undisputed by the parties that the

Weavers’ wrongful eviction of Wagner from the premises caused the damage to

Wagner’s retail goods. Therefore, the only issue before us is whether the measure

of damages awarded to Wagner was appropriate.

      {¶9} The determination of damages is within the discretion of the trial

court and will be sustained by a reviewing court unless the award is against the

manifest weight of the evidence. Amerifirst Sav. Bank of Xenia v. Krug (1999),

136 Ohio App.3d 468, 487, 737 N.E.2d 68. “Judgments supported by some

competent, credible evidence going to all the essential elements of the case will

not be reversed by a reviewing court as being against the manifest weight of the

evidence.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280,

376 N.E.2d 578.

      {¶10} Generally when a defendant causes a loss of the plaintiff’s personal

property, the measure of damages is the difference in the fair market value of the

property immediately before and immediately after the loss. See Cooper v. Fin

(1986), 34 Ohio App.3d 282, 283, 518 N.E.2d 46. However, when no evidence is

presented concerning the difference in market values immediately before and after

sustaining the loss, an acceptable alternate measure of damages may be employed

in certain cases. Allstate Ins. Co. v. Reep (1982), 7 Ohio App.3d 90, 91, 454

N.E.2d 580.



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       {¶11} In the present case, Wagner failed to offer any evidence concerning

the fair market value of the clothing before and after it was damaged by sun

exposure. The only evidence before the trial court regarding the valuation of

damaged items was Wagner’s submission of two handwritten lists enumerating the

quantity of items damaged and the corresponding retail value of each item. Based

on the limited evidence presented at trial, we must determine whether retail value

alone is an acceptable measure of damages to compensate the plaintiff in this case.

       {¶12} At the commencement of this suit, Wagner operated a clothing

business. As in any typical retail business, Wagner purchased items with the

intent to resell them to consumers for an increased price to earn a profit. As the

Eleventh Appellate District has held, a retailer is generally not entitled to recover

the retail price for damaged or destroyed goods because absent an actual sale, the

retailer has not yet earned a profit. See Arko-Plastics v. Drake, 115 Ohio App.3d

221, 227, 685 N.E.2d 246.          The Drake Court noted that the basic principle

underlying this measure of damages is to restore retailer to the same position he

was in prior to the goods being damaged. Therefore, when the difference in fair

market value immediately before and after the loss cannot be ascertained, the

acceptable measure of compensation to award the retailer is the cost to replace the

item at the wholesale price. Id.

       {¶13} However, we note that the foregoing principles of replacement cost

and fair market value do not mean that the retail price may never be used as a

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measure of damages for loss or destruction of personal property. A retailer may

be entitled to damages when it is established through sufficient evidence that the

retail price is an appropriate measure of damages to compensate for the loss

sustained. See for example, The Limited Stores, Inc. v. Pam Am. World Airways,

Inc. (1992), 65 Ohio St.3d 66, 71, 600 N.E.2d 1027 stating that where it is shown

that the goods have a short sale life, cover is impossible and the retailer had

sufficiently demonstrated it could have sold the items, a retailer may be entitled to

the retail price of damaged goods.

       {¶14} In this case, our review of the record reveals that sufficient

circumstances existed for the trial court to conclude that the retail value was an

appropriate measure of damages. According to the parties’ lease, upon Wagner

failing to pay the rent by the fifteenth of the month, the Weavers were required to

“take out a Dispossessory Warrant” to formally evict Wagner.            Instead, the

Weavers elected to use self-help by changing the locks on the doors of the

premises without giving notice to Wagner—an action which was in violation of

their own lease.

       {¶15} Additionally, as noted earlier, it is undisputed that it was the

precipitous actions of the Weavers in locking Wagner out of the premises which

caused the damage to the merchandise.

       {¶16} Almost a month passed before the Weavers permitted Wagner to

retrieve his property. Wagner testified that during this time he made several

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unsuccessful attempts to make contact with the Weavers. Wagner stated that his

first formal contact with the Weavers after the lockout was when he received a

certified letter from Bobby Weaver dated August 25, 2008. In this letter, Mr.

Weaver informed Wagner that the release of his property was contingent on

Wagner paying the total amount he owed in arrears on the lease. The letter

specifically stated that nothing in the locked premises would be released for

“partial payment.” The same day, Wagner filed the complaint in this case and

within days the Weavers’ attorney contacted Wagner to make arrangements to

retrieve his property from the premises.

       {¶17} We further note that in addition to seeking compensation for the

damaged retail goods, Wagner also presented evidence to support a claim for

damages based on lost profits. However, the trial court declined to award Wagner

damages on this claim because it found that the figures Wagner presented

projecting a profit were unsubstantiated given that at the time of the wrongful

eviction his business had been operating at a loss for the entire five-month period

that the doors were open. Thus, from the record it is evident that the trial court

considered the credibility of all the evidence and circumstances in this case when

it determined Wagner’s recovery.

       {¶18} Based on the foregoing, it is apparent that the trial court did not

simply elect to use an arbitrary calculation of damages to award Wagner for the

loss he suffered as a result of the Weaver’s inappropriate actions to exclude him

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from the premises that he rented. In this instance, we conclude that the trial

court’s decision to award Wagner the retail value of the damaged goods was

supported by some competent, credible evidence and, therefore, its judgment

cannot be reversed as being against the manifest weight of the evidence.

       {¶19} Accordingly, the Weavers assignments of error are overruled and the

Judgment of the Findlay Municipal Court is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI, P.J., and ROGERS, J., concur

/jnc




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