[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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Case No. 5-09-30
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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