[Cite as Chuparkoff v. Ohio Title Loans, 2019-Ohio-209.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

TED CHUPARKOFF                                             C.A. No.   29008

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
OHIO TITLE LOANS                                           COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellee                                           CASE No.   CV-2016-11-4951

                                 DECISION AND JOURNAL ENTRY

Dated: January 23, 2019



        SCHAFER, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Ted Chuparkoff, appeals the judgment of the Summit County

Court of Common Pleas. For the reasons that follow, this Court affirms in part and reverses in

part.

                                                      I.

        {¶2}    On November 22, 2016, Mr. Chuparkoff filed complaint for money damages

against Ohio Title Loans. The complaint alleges that Ohio Title Loans trespassed onto Mr.

Chuparkoff’s property and “stole valuable personal property belonging to [Mr. Chuparkoff]

which was contained in a [vehicle].” Although it is not stated in the complaint, the alleged theft

of Mr. Chuparkoff’s personal property occurred in the course of Ohio Title Loans’s repossession

of a vehicle belonging to Mr. Chuparkoff’s son. Mr. Chuparkoff claims that, while he was

merely custodian of the vehicle, he is the owner of the personal property that was contained

therein. He requested compensatory damages for the appropriation of his personal property.
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Additionally, Mr. Chuparkoff alleged that the Ohio Title Loans’s actions in the theft of his

personal property were “intentional, purposeful, deliberate and punitive” and demanded

“punitive judgment in excess of $25,000.00 for [Ohio Title Loans’s] punitive acts.”

       {¶3}    Mr. Chuparkoff moved for default judgment on January 18, 2017.               Despite

receiving service of summons and a copy of the complaint, Ohio Title Loans failed to file a

responsive pleading or otherwise appear in the action. Accordingly, the trial court granted the

motion for default judgment and set the matter over for a hearing before a magistrate to

determine the issue of damages.

       {¶4}    The magistrate issued a decision on March 3, 2017, finding that Mr. Chuparkoff

failed to establish that he sustained any damages. Mr. Chuparkoff timely presented the trial

court with objections to the magistrate’s decision, including a transcript of the hearing before the

magistrate. The trial court issued a judgment entry overruling the objections. The trial court

modified the magistrate’s decision to find that Mr. Chuparkoff was entitled to damages in the

nominal amount of $10.00, but declined to consider Mr. Chuparkoff’s request for an award of

punitive damages.

       {¶5}    Mr. Chuparkoff timely appealed the trial court’s judgment and presents two

assignments of error for our review. Ohio Title Loans did not appear in the action before the

trial court, and has not appeared in this appeal.

                                                    II.

                                      Assignment of Error I

       The Court of Common Pleas erred as a matter of law when it denied [Mr.
       Chuparkoff]’s request for compensatory damages as such was against the
       manifest weight of the evidence.
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       {¶6}    In the first assignment of error, Mr. Chuparkoff argues that the trial court’s

judgment for compensatory damages on his claims of conversion and unjust enrichment is

against the manifest weight of the evidence. Relative to this assignment of error, the trial court

considered Mr. Chuparkoff’s objection to the magistrate’s finding that Mr. Chuparkoff failed to

prove any amount of compensatory damages. In its judgment entry, the trial court acknowledged

that the magistrate found that Mr. Chuparkoff failed to establish that he sustained any damages,

and the court ostensibly adopted this finding. Nonetheless, the trial court concluded that Mr.

Chuparkoff was entitled to an award of nominal damages and entered judgment in his favor in

the amount of $10.00. It is implicit in this award of nominal damages that, contrary to the

magistrate’s finding and the trial court’s purported adoption thereof, the court recognized that

Mr. Chuparkoff did sustain some damage. The trial court also found that Mr. Chuparkoff failed

to timely raise the issue of unjust enrichment and overruled his objection to the magistrate’s

decision on those grounds.

       {¶7}    “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies

within the discretion of the trial court and should not be reversed on appeal absent an abuse of

discretion.”   Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5.

However, pursuant to our review, “we consider the trial court’s action with reference to the

nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M,

2009-Ohio-3139, ¶ 18. Where, as is the case here, a party contends that the trial court’s

judgment is against the manifest weight of the evidence in a civil case, this Court

       weighs the evidence and all reasonable inferences, considers the credibility of
       witnesses and determines whether in resolving conflicts in the evidence, the
       [finder of fact] clearly lost its way and created such a manifest miscarriage of
       justice that the [judgment] must be reversed and a new trial ordered.
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(Alterations sic.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting

Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist. 2001).

A. Unjust Enrichment

       {¶8}    Mr. Chuparkoff argues that he is entitled to recover damages for unjust

enrichment in the amount of $8,500.00 for Ohio Title Loans’s retention of a $10,000.00 vehicle

for a $1,500.00 lien, $3,000.00 for money Mr. Chuparkoff expended for work performed on the

vehicle prior to its repossession, and $25.00 for gasoline. The damages he attributes to unjust

enrichment total $11,525.00.

       {¶9}    “When a party against whom a judgment for affirmative relief is sought has failed

to plead or otherwise defend as provided by these rules, the party entitled to a judgment by

default shall apply in writing or orally to the court therefore[.]” Civ.R. 55(A). A default

       arises only when the defendant has failed to contest the allegations raised in the
       complaint and it is thus proper to render a default judgment against the defendant
       as liability has been admitted or “confessed” by the omission of statements
       refuting the plaintiff’s claims. * * * It is only when the party against whom a
       claim is sought fails to contest the opposing party’s allegations by either pleading
       or otherwise defend[ing] that a default arises.

(Internal quotations omitted.) Ohio Valley Radiology Assocs. v. Ohio Valley Hosp. Assn., 28

Ohio St.3d 118, 121 (1986), quoting Reese v. Proppe, 3 Ohio App.3d 103, 105 (8th

Dist.1981). “A judgment by default shall not be different in kind from or exceed in amount that

prayed for in the demand for judgment.” Civ.R. 54(C). Therefore, “[a] default judgment cannot

lie against a defendant for claims that were not asserted.” Vikoz Ents., LLC v. Wizards of Plastic

Recycling, Inc., 9th Dist. Summit No. 25759, 2011-Ohio-4486, ¶ 7.

       {¶10} Mr. Chuparkoff has not demonstrated that he stated a claim for unjust enrichment

in his initial pleading. “A claim for unjust enrichment, or quantum meruit, is an equitable claim

based on a contract implied in law, or a quasi-contract” and “the elements of [the claims] are
                                                5


identical.” (Internal citations omitted.) Padula v. Wagner, 9th Dist. Summit No. 27509, 2015-

Ohio-2374, ¶ 47. “To succeed on a claim for unjust enrichment, a plaintiff must show that (1) it

conferred a benefit upon the defendant; (2) the defendant knew of the benefit; and ‘(3) the

defendant retained the benefit under circumstances where it would be unjust to do so without

payment.’” Chaffee Chiropractic Clinic, Inc. v. Stiffler, 9th Dist. Wayne No. 16AP0033, 2017-

Ohio-7790, ¶ 24, quoting Magnum Steel & Trading, L.L.C. v. Mink, 9th Dist. Summit Nos.

26127 and 26231, 2013-Ohio-2431, ¶ 42. Upon this Court’s review of the complaint, which is

brief and notably vague, we find no basis for stating an unjust enrichment claim.

       {¶11} Accordingly, we conclude that Mr. Chuparkoff cannot recover damages for unjust

enrichment because he failed to plead such a claim and, consequently, the default judgment did

not establish Ohio Title Loans’s liability for unjust enrichment. Regardless of any evidence of

damages Mr. Chuparkoff may have presented at the damage hearing as to a conceivable unjust

enrichment claim, his failure to plead it is fatal in the context of a Civ.R. 55 motion for default

judgment. Based on the foregoing, we conclude that the trial court did not err by declining to

award such damages in its judgment.

B. Conversion

       {¶12} Mr. Chuparkoff also contends that he established evidence to show that he is

entitled to damages in the amount of “$400.00 for the replacement of the garage door opener

which was illegally converted by [Ohio Title Loans].” The complaint, vague as though it may

be, clearly established a claim for conversion of Mr. Chuparkoff’s personal property, to wit: his

garage door opener and client files. Because the trial court granted his motion for default

judgment as to the issue of liability, Mr. Chuparkoff needed only to establish his damages at the

hearing before the magistrate. See Civ.R. 55(A) (“If, in order to enable the court to enter
                                                6


judgment or to carry it into effect, it is necessary to take an account or to determine the amount

of damages or to establish the truth of any averment by evidence or to make an investigation of

any other matter, the court may conduct such hearings * * *.”)

       {¶13} Regarding his personal property, Mr. Chuparkoff testified that Ohio Title Loans

took and failed to return his garage door opener and his client files. As to the client files, Mr.

Chuparkoff did not offer any dollar amount to quantify damages for that loss, testifying as

follows:

       In that vehicle, I had private, confidential, privileged records of clients that
       lawyers are required to keep for seven years. I can’t tell you what was in those
       files, but they are voluminous. But they could have been lots of personal stuff.
       Those files cannot be replaced. I don’t know the value of that.

As to the garage door opener, Mr. Chuparkoff testified, “I got an estimate it would cost between

around [$400.00] to replace that.” The magistrate awarded no damages, however, finding that

Mr. Chuparkoff “did not introduce any evidence to establish what personal property he had in the

vehicle at the time of the repossession and/or the value thereof.” The magistrate concluded that

Mr. Chuparkoff “failed to establish that he sustained any damages in this matter.”

       {¶14} Upon review of the objections, the trial court stated that it adopted the

magistrate’s decision that Mr. Chuparkoff failed to establish that he sustained any damages.

However, the trial court impliedly modified the magistrate’s finding to the extent that it

recognized that Mr. Chuparkoff had presented some evidence that he lost personal property.

Even so, the trial court went on to find that “Mr. Chuparkoff did not offer any documentary

testimony that it would cost ‘around [$400.00]’ to replace the garage door opener.” The trial

court found that Mr. Chuparkoff’s testimony as to the cost to replace the garage door opener was

“not competent, credible evidence” solely because it was presented “without any further

testimony or documentation.”
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       {¶15} When this court considers the weight of the evidence, “we are always mindful of

the presumption in favor of the trial court’s factual findings. [T]he weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts.” (Internal

quotations and citations omitted.) T.S. v. R.S., 9th Dist. Summit No. 27955, 2017-Ohio-281, ¶ 4.

The trier of fact is free to believe “all, part, or none of the testimony of any witness who

appeared before it[,]” and “[t]he mere fact that testimony is uncontroverted does not necessarily

require a [trier of fact] to accept the evidence if the [trier of fact] found that the testimony was

not credible.” Bradley v. Cage, 9th Dist. Summit No. 20713, 2002 WL 274638, *2. In this

instance the magistrate, not the trial judge, took evidence and heard the testimony of Mr.

Chuparkoff. However, the magistrate made no finding as to the competence or credibility of Mr.

Chuparkoff’s testimony, but instead disregarded that evidence altogether by finding that he

presented no evidence to establish damages.

       {¶16} The trial court, upon its review of the transcript of the hearing before the

magistrate, made an independent determination finding that Mr. Chuparkoff’s testimonial

evidence was not competent or credible. When considering a magistrate’s decision in the form

of a written transcript the trial court “lacks the advantage of physically viewing the witnesses in

order to aid in determining truthfulness” and “may have little, if any, greater advantage in

determining the credibility of the witnesses than this court would upon review of the trial court’s

decision.”   In re J.W., 9th Dist. Lorain No. 10CA009939, 2011-Ohio-3744, ¶ 24, quoting

DeSantis v. Soller, 70 Ohio App.3d 226, 232-233 (10th Dist.1990). The trial court’s finding is

not based on its perception of the truthfulness of Mr. Chuparkoff’s testimony and, therefore, is

not afforded any additional deference.
                                                8


       {¶17} Moreover, the trial court’s finding is not truly based on a credibility assessment or

competency finding. Although the reliability of Mr. Chuparkoff’s evidence might have been

objectionable on grounds not raised in this matter, the mere fact that his testimony was not

corroborated by additional evidence is not a proper basis for the trial court’s finding that it was

not “competent, credible evidence.” Thus, we conclude that the trial court erred in rejecting Mr.

Chuparkoff’s unrefuted testimony that the cost to replace the garage door opener was “around

[$400.00]” on the basis that such testimony was not accompanied by additional testimony or

documentation.

       {¶18} The trial court concluded that, having failed to prove compensatory damages, Mr.

Chuparkoff was entitled to an award of nominal damages in the amount of $10.00. “Nominal

damages may be awarded where an injury has been proven but the evidence fails to establish the

extent of loss to the plaintiff.” Cambridge Co. Ltd. v. Telsat Inc., 9th Dist. Summit No. 23935,

2008-Ohio-1056, ¶ 11. As discussed above, there is evidence in the record as to the amount of

damages Mr. Chuparkoff sustained in the form of his testimony that the cost to replace the

garage door opener would be approximately $400.00. There is no other evidence in the record

weighing against Mr. Chuparkoff’s testimony. Nominal damages may have been appropriate on

the loss of client files for which Mr. Chuparkoff presented no evidence to quantify the amount of

his damages. However, the trial court failed to consider evidence of damages established by

uncontroverted testimony as to Mr. Chuparkoff’s cost to replace the garage door opener.

Accordingly, we find that the trial court’s award of $10.00 in nominal damages is not supported

by the record and is against the manifest weight of the evidence.
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C. Conclusion

          {¶19} Mr. Chuparkoff did not plead a claim for unjust enrichment, and is not entitled to

recover compensatory damages upon a default judgment based on a cause of action not pleaded

in the complaint. Upon Mr. Chuparkoff’s conversion claim, the trial court erred by awarding

damages in an amount against the weight of the evidence. Therefore, Mr. Chuparkoff’s first

assignment of error is overruled in part and sustained in part.

                                      Assignment of Error II

          The Court of Common Pleas erred as a matter of law when it denied [Mr.
          Chuparkoff]’s request for punitive damages as such is required under the
          law.


          {¶20} In the second assignment of error, Mr. Chuparkoff argues that he provided

sufficient evidence to establish that he was entitled to punitive damages, and the trial court erred

by declining to award punitive damages. Initially we note that the magistrate did not address the

issue of punitive damages. In his objection Mr. Chuparkoff argued that the magistrate’s decision

failed to recognize that he had established he was entitled to recover punitive damages. In

disposing of Mr. Chuparkoff’s objections to the magistrate’s decision, the trial court concluded

that it was not required to address the issue of punitive damages. Specifically, the trial court

stated:

          Mr. Chuparkoff further argues that the [c]ourt should award him punitive
          damages based on the tort of conversion. However, he does not argue the legal
          standard for an award of punitive damages or lay a foundation for his argument.
          Therefore, the [c]ourt is not required to address it. Further, [p]unitive damages
          may be recovered in a conversion action when the conversion involves elements
          of fraud, malice or insult. Mr. Chuparkoff did not offer any evidence of fraud,
          malice, or insult. Finally, [p]unitive damages may not be awarded absent proof of
          actual damages. (Internal citation and quotation omitted.)
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         {¶21} As we stated in the first assignment of error, this Court generally reviews a trial

court’s decision with respect to a magistrate’s decision for an abuse of discretion. Barlow, 2009-

Ohio-3788 at ¶ 5. However, the issue before this Court is whether the trial court correctly

applied the law to the facts of this case, thus presenting a question of law. When considering an

issue involving a question of law, this Court applies a de novo standard of review. Copley Twp.

v. City of Fairlawn, 9th Dist. Summit Nos. 27010, 27012, 27040, 2015-Ohio-1121, ¶ 16.

Therefore, we consider the questions of law without deference to the trial court’s decision. See

id.

         {¶22} The trial court determined that it need not consider punitive damages because Mr.

Chuparkoff did not argue a legal standard or lay a foundation for his argument. It is not entirely

clear what the trial court meant by this statement.      However, Mr. Chuparkoff’s complaint

included a claim for punitive damages and specifically alleged that the actions of Ohio Title

Loans in the theft of his personal property were “intentional, purposeful, deliberate and punitive”

and demanded “punitive judgment in excess of $25,000.00 for [Ohio Title Loans’s] punitive

acts.”   The trial court granted default judgment on Mr. Chuparkoff’s complaint, thereby

determining the issue of liability against Ohio Title Loans and triggering the availability of

punitive damages.     See Whetstone v. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, ¶ 22.

“Following the entry of default judgment, all that remained was a damages hearing in order for

the trier of fact to determine the amount of damages, if any.” Id. On that basis, we conclude that

the trial court erred when it declined to consider what amount of punitive damages, if any, should

be awarded to Mr. Chuparkoff.

         {¶23} Additionally, the trial court determined that punitive damages may not be

awarded without proof of actual damages. In light of our resolution of the first assignment of
                                                11


error, the trial court’s refusal to consider punitive damages cannot be sustained based on a failure

to prove actual damages in this case. Upon remand and resolution of the proceedings relative to

the first assignment of error, the trial court shall determine whether an award of punitive

damages is appropriate.

       {¶24} Mr. Chuparkoff’s second assignment of error is sustained.

                                                III.

       {¶25} Mr. Chuparkoff’s first assignment of error is overruled in part and sustained in

part. Mr. Chuparkoff’s second assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, in part, and the matter is remanded for proceedings

consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed equally to both parties.




                                                  JULIE A. SCHAFER
                                                  FOR THE COURT



HENSAL, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

TED CHUPARKOFF, pro se, Appellant.
