[Cite as Fulks v. Hollar, 2016-Ohio-246.]




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




MICHAEL D. FULKS,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-15-10

        v.

REGINA A. HOLLAR,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2014-CV-162

                                      Judgment Affirmed

                           Date of Decision:   January 25, 2016




APPEARANCES:

        John A. Poppe for Appellant
Case No. 2-15-10


PRESTON, J.

       {¶1} Defendant-appellant, Regina A. Hollar (“Hollar”), appeals the June 3,

2015 judgment of the Auglaize County Court of Common Pleas awarding

plaintiff-appellee, Michael D. Fulks (“Fulks”), $5,000.00 as damages for

conversion. We affirm.

       {¶2} The parties, who were not married, lived together, and, after the

relationship ended, disputed the ownership and return of personal property. On

August 25, 2014, Fulks filed a “Complaint and Motion for Replevin for Order of

Possession” against Hollar alleging that Hollar refused to return Fulks’ property.

(Doc. No. 1). Fulks sought a number of personal-property items that he claimed

were his; relevant to this appeal is what the parties refer to as the “Ashley

furniture” and a television. (Id.). On September 2, 2014, Fulks filed a motion

requesting “permission to perfect and file an Amended Complaint for Replevin * *

*, to continue the proceedings * * *, and for an Order restraining the Parties in

order to prevent the waste, destruction, sale or gifting of the property in dispute.”

(Doc. No. 10).

       {¶3} On September 3, 2014, the trial court granted Fulks’ September 2,

2014 motion. (Doc. No. 13). In particular, the trial court issued a temporary

restraining order against Hollar restraining her “from selling, destroying,

damaging or otherwise disposing of (by gift or otherwise) any of the property”


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identified in Fulks’ complaint. (Id.). However, to be effective, the trial court

ordered Fulks file a $2,000 cash bond with the trial court.1 (Id.).

           {¶4} On September 5, 2014, Hollar filed her answer. (Doc. No. 16). That

same day, Hollar filed a motion requesting a hearing. (Doc. No. 17).

           {¶5} After a pretrial hearing on September 19, 2014, the trial court issued

an entry on September 25, 2014 ordering that Hollar permit Fulks to recover the

property described in the entry’s attachment, a subset of the property claimed by

Fulks, which did not include the Ashley furniture or the television, on or before

September 28, 2014. (Doc. No. 22).

           {¶6} On October 17, 2014, Fulks filed a revision to his list of items that he

was seeking to recover. (Doc. No. 24). On October 21, 2014, Fulks filed an

amended complaint. (Doc. No. 25). On November 17, 2014, Hollar filed her

answer to Fulks’ amended complaint. (Doc. No. 26). On February 20, 2015,

Fulks filed a motion requesting to dismiss Count One of his complaint—

replevin—and proceed to trial on Count Two—conversion. (Doc. No. 32).

           {¶7} The case proceeded to a bench trial on May 18, 2015. (May 18, 2015

Tr. at 1). On June 3, 2015, the trial court awarded Fulks $5,000.00 as damages for

conversion. (Doc. No. 36). Specifically, the trial court concluded that the Ashley

furniture, valued at $10,972.49, was a partial gift and that the portion that was not



1
    There is no evidence in the record that Fulks filed the $2,000 bond.

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a gift was converted. (Id.). As such, the trial court ordered Hollar to pay Fulks

$5,357.00 in conversion; however, the trial court reduced that award by $357.00—

the amount that the parties agreed that Fulks would pay Hollar as her half of the

television—and ordered that Hollar make that television available for Fulks to

retrieve. (Id.).

        {¶8} On June 30, 2015, Hollar filed her notice of appeal.2 (Doc. No. 39).

She raises three assignments of error for our review. For ease of our discussion,

we will address them together.

                                   Assignment of Error No. I

        The Trial Court Abused It’s [sic] Discretion by Dividing the
        Gifted Items Based Upon Apparent Equalization of the Price of
        the Gifts.

                                   Assignment of Error No. II

        Appellant’s Right to the Ashley Furniture was Gifted to Her
        Without Reservation.

                                  Assignment of Error No. III

        The Trial Court Limited All Property to be Either “Gifts” or
        “An Award for Conversion”. Yet, Plaintiff’s Property was
        Defined on Exhibit B or Exhibit C.




2
  Fulks failed to file an appellee’s brief in this case. “Under those circumstances, App.R. 18(C) provides
that we “may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if
appellant’s brief reasonably appears to sustain such action.” Prater v. Mullins, 3d Dist. Auglaize No. 2-13-
04, 2013-Ohio-3981, ¶ 4, fn. 1, citing Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133,
¶ 16.

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       {¶9} Although it is unclear, it appears that Hollar is essentially arguing in

her assignments of error that the trial court erred by determining that the Ashley

furniture, in its entirety, was not a gift. Conversely, it appears that Hollar is

arguing that the trial court erred by concluding that she wrongfully converted the

portion of the Ashley furniture that the trial court concluded was not a gift.

       {¶10} Hollar asserts that we review the trial court’s judgment under an

abuse-of-discretion standard. That is incorrect. “‘When reviewing a civil appeal

from a bench trial, we apply a manifest weight standard of review.’” Lump v.

Larson, 3d Dist. Logan No. 8-14-14, 2015-Ohio-469, ¶ 9, quoting San Allen, Inc.

v. Buehrer, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, ¶ 89, citing Revilo

Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp., 193 Ohio App.3d 535,

2011-Ohio-1922, ¶ 5 (8th Dist.).       “‘[A] civil judgment “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.”’” Id., quoting Warnecke v. Chaney, 194 Ohio App.3d 459, 2011-Ohio-

3007, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d

279 (1978), syllabus.

       {¶11} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the

trier of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v.


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Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this

presumption is that the trial court is in the best position to evaluate the evidence by

viewing witnesses and observing their demeanor, voice inflection, and gestures.’”

Id., quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80 (1984). “‘“A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidence submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13,

quoting Seasons Coal Co. at 81. “‘“A finding of an error in law is a legitimate

ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.

       {¶12} Fulks asserted at trial and in his amended complaint that Hollar

converted his property valued at $16,732.49 listed in Exhibits A and B of his

amended complaint. However, because Hollar appears to argue only that the trial

court erred by concluding that the Ashley furniture, in its entirety, was not a gift,

we will address only the issue of the Ashley furniture. The trial court concluded

that the Ashley furniture was a partial gift and partially converted, and, after

deducting half of the value of the television, awarded Fulks $5,000.00.

       {¶13} “Conversion 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.”’” Warnecke at ¶ 15, quoting State ex


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rel. Toma v. Corrigan, 92 Ohio St.3d 589, 592 (2001), quoting Joyce v. Gen.

Motors Corp., 49 Ohio St.3d 93, 96 (1990). “‘The elements of conversion are: (1)

plaintiff’s ownership or right to possession of the property at the time of the

conversion; (2) defendant’s conversion by a wrongful act or disposition of

plaintiff’s property rights; and (3) damages.” Miller v. Cass, 3d Dist. Crawford

No. 3-09-15, 2010-Ohio-1930, ¶ 32, quoting Dice v. White Family Cos., Inc., 173

Ohio App.3d 472, 2007-Ohio-5755, ¶ 17 (2d Dist.).

       {¶14} “Where conversion is premised on the unlawful retention of

property, the plaintiff must establish that ‘(1) he or she demanded the return of the

property from the possessor after the possessor exerted dominion or control over

the property, and (2) that the possessor refused to deliver the property to its

rightful owner.’”   Dice at ¶ 17, quoting Barnes v. First Am. Title Ins. Co.,

N.D.Ohio No. 1:06CV574, 2006 WL 2265553 (Aug. 8, 2006), citing Tabar v.

Charlie’s Towing Serv., Inc., 97 Ohio App.3d 423, 427-428 (8th Dist.1994).

“‘The object of the demand and refusal elements are to “turn an otherwise lawful

possession into an unlawful one, by reason of a refusal to comply.”’” Semco, Inc.

v. Sims Bros., 3d Dist. Marion No. 9-12-62, 2013-Ohio-4109, ¶ 33, quoting RFC

Capital Corp. v. EarthLink, Inc., 10th Dist. Franklin No. 03AP-735, 2004-Ohio-

7046, ¶ 61, quoting Fidelity & Deposit Co. v. Farmers & Citizens Bank, 72 Ohio

App. 432, 434 (5th Dist.1943).


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       {¶15} While Fulks argued that Hollar converted the Ashley furniture,

Hollar contends that Fulks did not meet his burden of establishing his conversion

claim because Hollar asserts that the Ashley furniture was a gift. Evidence that

the Ashley furniture was a gift would disprove the alleged conversion; however,

“the failure to adequately support the gift theory would support [Fulks’] allegation

that [Hollar] wrongfully exerted control over [his] property.” George v. Zink, 11th

Dist. Lake No. 96-L-132, 1997 WL 286204, *2 (May 23, 1997). See also Proper

v. Butcher, 175 N.E.2d 528, 530 (4th Dist.1960) (“If there was a gift of the

property there could be no wrongful conversion.”).

       {¶16} “An inter vivos gift is an immediate, voluntary, gratuitous and

irrevocable transfer of property by a competent donor to another.”           Smith v.

Shafer, 89 Ohio App.3d 181, 183 (3d Dist.1993), citing Saba v. Cleveland Trust

Co., 23 Ohio App. 163, 165 (8th Dist.1926). “The requisite elements of a valid

inter vivos gift include: ‘(1) intent on the part of the donor to make an immediate

gift of particular property to the donee and to part with dominion and control over

the subject of the gift; (2) delivery of the subject of the gift; and (3) acceptance of

the gift.’” Wheeler v. Martin, 4th Dist. Washington No. 04CA15, 2004-Ohio-

6936, ¶ 14, quoting Anderson v. Anderson, 4th Dist. Hocking No. 91CA1, 1992

WL 174716, *1 (July 7, 1992), citing 52 Ohio Jurisprudence 3d, Gifts, Section 3,

at 8-9 (1984).


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       {¶17} Generally, “[t]he burden of showing that an inter vivos gift was made

is on the donee by clear and convincing evidence.” Smith at 183, citing In re

Fife’s Estate, 164 Ohio St. 449, 456 (1956). See also George at *3 (concluding

that the purported donee has the burden of establishing the elements of an inter

vivos gift to prevent an alleged donor from establishing a prima facie case of

conversion.) “‘Clear and convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations [or issues] sought to be established. It is intermediate, being more

than a mere preponderance, but not to the extent of such certainty as is required

beyond a reasonable doubt * * *.’” Wheeler at ¶ 13, quoting Cross v. Ledford, 161

Ohio St. 469, 477 (1954).

       {¶18} Because Hollar argues that the trial court erred in concluding that the

Ashley furniture, in its entirety, was not a gift, we need only address whether the

trial court’s judgment that the portion of the Ashley furniture deemed not to be a

gift is against the manifest weight of the evidence. Proof that the portion of the

Ashley furniture deemed not to be a gift was in fact a gift would negate Fulks’

prima facie case of conversion—namely, the ownership element of conversion.

Accordingly, we will address only that element of conversion.

       {¶19} With regard to the Ashley furniture, Fulks testified that the furniture

belongs to him and that it remains in the house that he shared with Hollar. (May


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18, 2015 Tr. at 10). According to Fulks, he purchased the Ashley furniture, and he

asked Hollar to return his property “several times.”         (Id. at 11, 14-15).      In

particular, Fulks testified that he purchased the Ashley furniture on February 15,

2013 because “[i]t just happened to be something that [he] wanted to have. [He

has] never had new furniture and [he] wanted to go in and buy new furniture and it

just happened to be in February. [He] got money out of [his] retirement and [he]

wanted to have new furniture.” (Id. at 15-16). Fulks testified that he borrowed

$2,200.00 from his retirement account and put the remaining balance on a credit

card. (Id. at 16). He testified that he is making payments on the furniture. (Id.).

       {¶20} On cross-examination, Fulks testified that the Ashley furniture was

not a Valentine’s Day gift to Hollar. (Id. at 32).

       {¶21} Hollar testified at trial that she went with Fulks to Ashley furniture

on February 13, 2013 to purchase furniture.          Specifically, she testified, “We

picked out a mattress and a box spring. We picked out the couch and loveseat.

That day we picked out a queen size mattress and box spring.” (Id. at 39). After

deciding on that furniture, Hollar testified that they continued to look around the

store and that a king-size bed caught her attention. (Id.). She testified that Fulks

came “over [to where she was admiring the bed] and he asked [her] if [she] liked

it, [she] said yes.” (Id.). According to Hollar, the couple “laid on the bed,

checked it out, checked out the nightstands, everything that went with this bed.”


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(Id.). After that, Hollar testified that the couple left the store. (Id.). She testified

that Fulks called her the next day, Valentine’s Day, “from work as he was driving

his semi and told [her] to call Ashley’s, cancel the queen size mattress and box

spring and order the king size and go ahead and order the bed, the whole bedroom

set.” (Id.). According to Hollar, Fulks told her that it was her Valentine’s Day

gift. (Id. at 39, 40, 41). Hollar testified that Fulks wanted to gift her the furniture

because he wanted her to have nice furniture because of “how well [she] kept the

house.” (Id. at 41). She testified, “I told [Fulks] on the phone that I did not need

to have it, it was nice, I did not need to have it. And he kept on and kept on, it was

my Valentine’s gift.” (Id.). She further testified that she called Ashley furniture

to change their order and the couple returned to the store on February 15, 2013

“and finalized everything, the whole package. We got the dining room table,

everything was finalized that day.” (Id. at 39).

       {¶22} The trial court’s conclusion that the Ashley furniture was not a gift,

in its entirety, is not against the manifest weight of the evidence because Hollar

failed to establish that Fulks gifted Hollar the furniture in its entirety. The record

reflects that the couple picked out items of furniture on February 13 at Ashley

furniture; that Fulks called Hollar the next day, Valentine’s Day, and told her to

cancel the bed that they originally picked out and to order the king-size bedroom

set that she was admiring in the store because he wanted her to have it as a gift for


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Valentine’s Day for her good housekeeping; that she accepted Fulks’ gift by

calling Ashley furniture and changing the order; that the couple finalized the

purchase on February 15; and that the furniture was delivered to their home

thereafter. The existence of an inter vivos gift is ordinarily a question of fact, and

the trial court is in the best position to evaluate the veracity of the testimony.

Wheeler, 2004-Ohio-6936, at ¶ 16, citing Leon v. Caroselli, 1st Dist. Hamilton

Nos. C-960364 and C-960612, 1997 WL 266761, *2 (May 21, 1997), citing 52

Ohio Jurisprudence 3d, Gifts, Section 50 (1984, Supp.1996); Lump, 2015-Ohio-

469, at ¶ 9. Thus, even though Fulks testified that the furniture was not a gift,

Hollar’s testimony showed by clear and convincing evidence that Fulks intended

to immediately gift at least a portion of the Ashley furniture to Hollar and that

Fulks intended to part with dominion and control over that portion of the furniture;

that the furniture was delivered to her; and that she accepted the furniture as a gift.

       {¶23} Nonetheless, Hollar failed to establish that the remaining portion of

the Ashley furniture was a gift. Accordingly, Hollar cannot negate the ownership

element of Fulks’ conversion claim for the remaining portion of the furniture that

was not a gift. Instead, Hollar’s failure to adequately support her gift theory

supports Fulks’ conversion claim for that portion of the furniture. See George,

1997 WL 286204, at *2. Indeed, the trial court’s conclusion that Fulks owned the

remaining portion of the Ashley furniture at the time Hollar converted it is


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supported by some competent, credible evidence. The record reflects that Fulks

purchased the furniture, had it delivered to the home that he shared with Hollar,

and intended for the couple to use the furniture. Those facts also demonstrate that

Hollar initially lawfully possessed that portion of the Ashley furniture. However,

Hollar’s possession of that portion of the furniture became unlawful when Fulks

demanded Hollar to return the Ashley furniture. The record suggests that Hollar

refused to deliver the Ashley furniture to Fulks because Fulks filed the underlying

complaint seeking damages for Hollar’s conversion of the furniture, and because

Hollar denied that she wrongfully converted the Ashley furniture by claiming that

the furniture, in its entirety, was a gift. Therefore, the trial court’s conclusion that

Hollar wrongfully converted the portion of the Ashley furniture that was not a gift

is not against the manifest weight of the evidence. See R&S Distrib., Inc. v.

Hartge Smith Nonwovens, LLC, 1st Dist. Hamilton No. C-090100, 2010-Ohio-

3992, ¶ 32 (concluding that there was “ample” competent, credible evidence that

the trial court “could have concluded that [the plaintiff] actually and substantially

interfered with [the defendant’s] rightful possession of the [property]”).

       {¶24} Hollar further argues that the trial court “arbitrarily” determined the

value of the Ashley furniture to be $10,972.49, and that “[t]here is no rationale

included within the Court’s order that give [sic] any explanation for [Hollar] to

pay [Fulks] $5,000.00 plus interest. In fact, there is nothing in the order that


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identifies what things were converted.”         (Appellant’s Brief at 7).          Stated

differently, Hollar is essentially arguing that the trial court erred by failing to

provide its findings of fact and conclusions of law, and that the trial court erred in

determining the value of the Ashley furniture. Hollar’s arguments are meritless.

       {¶25} Civ.R. 52 provides, in relevant part:

       When questions of fact are tried by the court without a jury,

       judgment may be general for the prevailing party unless one of the

       parties in writing requests otherwise before the entry of judgment

       pursuant to Civ. R. 58, or not later than seven days after the party

       filing the request has been given notice of the court’s announcement

       of its decision, whichever is later, in which case, the court shall state

       in writing the findings of fact found separately from the conclusions

       of law.

       {¶26} Hollar failed to request from the trial court findings of fact and

conclusions of law. Therefore, Hollar waived her arguments regarding the trial

court’s conclusion as to what property was converted, and its conclusion as to the

amount Hollar owes Fulks in conversion. See Tretola v. Tretola, 3d Dist. Logan

No. 8-14-12, 2014-Ohio-5484, ¶ 80, citing Cichanowicz v. Cichanowicz, 3d Dist.

Crawford No. 3-13-05, 2013-Ohio-5657, ¶ 79. Furthermore, Hollar conceded at

trial that the Ashley furniture was valued at $10,972.49. (May 18, 2015 Tr. at 6).


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       {¶27} Hollar’s assignments of error are overruled.

       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, J., concurs.

ROGERS, J., concurs in Judgment Only.

/jlr




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