[Cite as AM & JV, L.L.C. v. MyFlori, L.L.C., 2018-Ohio-600.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

AM and JV, LLC et al., : 

 Plaintiffs-Appellees, : 

 No. 16AP-713 

v. : (C.P.C. No. 13CV-4488) 

MyFlori, LLC et al., : (REGULAR CALENDAR) 

 Defendants-Appellants, : 

John Does 1-5, : 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on February 15, 2018 

 

On brief: The Donnell Law Group, and Titus G. Donnell, 

for appellees AM and JV, LLC, and Aleksandar G. Mitrevski. 

Argued: Titus G. Donnell.

On brief: Anthony Law LLC, Michael J. Anthony, 

Vincent P. Zuccaro, and Andrew D. Randol, for appellants 

MyFlori, LLC, and Jim Velio. Argued: Andrew D. Randol.

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendants-appellants, Jim Velio ("Velio") and MyFlori, LLC ("MyFlori") 

(collectively "appellants"), appeal the September 14, 2016 decision and entry of the 

Franklin County Court of Common Pleas. For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} This matter arises out of a dispute between Velio and Aleksandar G. 

Mitrevski ("Mitrevski"), joint owners of the business venture AM and JV, LLC ("AM and 
No. 16AP-713 2 

JV"). Prior to entering into business with Velio, Mitrevski operated a used car dealership 

at 1940 South High Street in Columbus ("the property"), a property which he owned. 

{¶ 3} In 2008, Velio approached Mitrevski about becoming a partner in 

Mitrevski's dealership. Following negotiations, Mitrevski and Velio formed AM and JV as 

joint owners pursuant to an operating agreement that both signed. Velio agreed to 

provide Mitrevksi with $195,000 and to invest an additional $50,000 in the business. In 

exchange, Mitrevski transferred the title for the property to AM and JV and agreed to 

invest $50,000 in the business. Mitrevski was responsible for the day-to-day operations 

of the dealership and was to receive a salary. Profit from the business was to be split 

equally between Mitrevski and Velio. The operating agreement specifically provided that 

"[t]he unanimous consent of the Members shall be required before the Company may * * * 

[a]quire, sell, lease or other transfer or disposition of, or mortgage, pledge or the placing 

or suffering of any other encumbrance on or affecting all of the Company's property or 

any portion thereof." (Appellant's Sept. 14, 2015 Motion for New Trial, Ex. B, Operating 

Agreement at 5-6.) 

{¶ 4} According to Mitrevski, in January 2010, Toty Auto Repair ("Toty") began 

renting part of the property for $2,000 per month, which he split with Velio. In June 

2010, Mitrevski and Velio agreed to sell the property because the business was failing. 

While they waited for the property to sell, Mitrevski claimed that Velio agreed to take all 

the rent money, and Mitrevski would take any income from the used car dealership. 

{¶ 5} Around October 2010, Mitrevski claimed that Velio ordered him to leave the 

property. As a result, Mitrevski took some of AM and JV's cars from the property to a new 

lot across the street at 1872 South Pearl Street and began operating a used car dealership 

as a separate, new business from AM and JV. According to Mitrevski, Velio agreed to split 

with Mitrevski the rent he received from the property because Mitrevski had moved. 

Thereafter, Mitrevski attempted to sell the property to Spartak Selimaj ("Selimaj"). 

Mitrevski stated that Selimaj paid both him and Velio earnest money as a down payment 

for the property, but canceled the deal after discovering the property had been transferred 

from AM and JV to MyFlori, a company owned by Velio. Mitrevski testified he was 

shocked to discover that the property had been transferred to MyFlori. 
No. 16AP-713 3 

{¶ 6} According to Velio, in 2010, Toty began renting part of the property for 

$1,500 per month, and later began paying $2,000 per month. Velio claimed that, in June 

2010, Mitrevski bought a car for himself and told Velio to take the rent for himself. In 

February 2011, Velio confronted Mitrevski because he believed he was stealing from the 

business. According to Velio, Mitrevski told him to "[k]eep the property." (Tr. Vol. II at 

279.) 

{¶ 7} Velio stated that Toty, in March 2011, agreed to lease the property from 

Velio for a duration of three years for $2,500 per month, increasing 3 percent annually. 

Toty made payments under the lease directly to Velio. According to Velio, in March 2011, 

Mitrevski had "remove[d] himself completely from the property" and "was in [a] different 

property and business." (Tr. Vol. II at 216-17.) Velio did not share any of the rent he 

received under the lease with Mitrevski. Velio stated that, in April 2012, after the deal 

with Selimaj failed, he transferred the property to his real estate holding company, 

MyFlori. 

{¶ 8} Selimaj testified that, in June 2011, Mitrevski approached him with an offer 

to sell the property. In January or February 2012, Selimaj paid earnest money as a down 

payment for the property, but stated the sale was delayed because there was a tenant 

occupying the property. In April 2012, Selimaj discovered the property had been 

transferred from AM and JV to another company and, as a result, demanded his earnest 

money back. Selimaj testified Mitrevski reacted with surprise when Selimaj informed him 

that the property had been transferred from AM and JV to another company. Selimaj 

ultimately received his earnest money back from both Mitrevski and Velio. 

{¶ 9} On April 22, 2013, plaintiffs-appellees, Mitrevski and AM and JV 

(collectively "appellees"), filed a complaint in the trial court asserting the following three 

causes of action: quiet title against MyFlori, conversion against appellants, and 

conversion of rental income against appellants. On June 7, 2013, appellants filed an 

answer and counterclaim. Appellants made the following counterclaims: breach of 

contract, breach of fiduciary duty, fraud, conversion, negligent misrepresentation, and 

promissory estoppel. Appellants also sought punitive damages and a declaration that 

Velio was the sole member of AM and JV. On July 8, 2013, appellees filed an answer to 

appellants' counterclaims. 
No. 16AP-713 4 

{¶ 10} On July 9, 2014, appellees filed a motion for partial summary judgment. On 

August 22, 2014, appellants filed a memorandum contra appellees' motion for partial 

summary judgment. On September 2, 2014, appellees filed a reply to appellants' 

memorandum contra appellees' motion for partial summary judgment. On September 5, 

2014, the trial court issued an order referring the matter to a magistrate. On 

September 8, 2014, the magistrate filed a decision denying appellees' motion for partial 

summary judgment. 

{¶ 11} On September 19, 2014, appellees filed an objection to the magistrate's 

decision. On October 30, 2014, appellants filed a reply to appellees' objection. On 

February 2, 2015, the trial court denied appellees' objection to the magistrate's decision 

and adopted such decision as its own. 

{¶ 12} On February 9, 2015, the matter proceeded to a jury trial at which the 

magistrate presided. On February 17, 2015, the jury rendered the following verdict: 

(1) the property remained an asset of AM and JV, (2) rent in the amount of $110,727 

which had been received by Velio should be returned to AM and JV, and (3) Velio was 

entitled to damages in the amount of $43,282.75 on the claims of conversion of property 

and breach of fiduciary duty with regard to Mitrevski's conversion of motor vehicles 

belonging to AM and JV. On February 18, 2015, the magistrate filed a decision following 

the jury trial. 

{¶ 13} On September 4, 2015, appellants filed a motion for new trial or, in the 

alternative, a motion for additur and remittitur. On the same date, appellants filed a 

separate motion for judgment notwithstanding the verdict or, in the alternative, a motion 

for new trial. On October 16, 2015, appellees filed responses to appellants' September 4, 

2015 motions. On November 6, 2015, appellants filed replies to appellees' October 16, 

2015 responses. On December 23, 2015, the magistrate filed a decision denying 

appellants' September 4, 2015 motions. 

{¶ 14} On March 1, 2016, appellants filed objections to the magistrate's 

February 18, 2015 decision following jury trial. On the same date, appellants separately 

filed objections to the magistrate's December 23, 2015 decision. On March 30, 2016, 

appellees filed responses to appellants' March 1, 2016 objections. On April 5, 2016, 

appellants filed replies to appellees' March 30, 2016 responses. On September 14, 2016, 
No. 16AP-713 5 

the trial court filed a decision and entry overruling appellants' objections to the 

magistrate's February 18, 2015 decision following jury trial and overruling appellants' 

objections to the magistrate's December 23, 2015 decision denying appellants' motions for 

new trial, motion for additur and remittitur, and motion for judgment notwithstanding 

the verdict. 

II. Assignments of Error 

{¶ 15} Appellants appeal and assign the following two assignments of error for our 

review: 

I. The Trial Court Erred in Failing to Grant DefendantAppellants' Motion for New Trial, or in the Alternative, 

Motion for Additur. 

II. The Trial Court Erred in Failing to Grant Defendants' 

Motion for Remittitur. 

III. Discussion 

{¶ 16} In their two assignments of error, appellants argue the trial court erred by 

overruling their objections to the magistrate's decision denying their motion for new trial 

or, in the alternative, their motions for additur and remittitur. 

A. Applicable Law 

{¶ 17} Civ.R. 59 governs motions for a new trial. Pursuant to Civ.R. 59(A)(6), a 

trial court may order a new trial on all or part of the issues if "[t]he judgment is not 

sustained by the weight of the evidence." "When presented with a motion premised on 

Civ.R. 59(A)(6), a trial court must weigh the evidence and consider the credibility of the 

witnesses to determine whether the manifest weight of the evidence supports the 

judgment." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 61, citing 

Salvatore v. Findley, 10th Dist. No. 07AP-793, 2008-Ohio-3294, ¶ 24. "Unlike directed 

verdicts and judgments notwithstanding the verdict, an order for a new trial does not 

dispose of litigation; instead, its purpose is to prevent ' "miscarriages of justice which 

sometimes occur at the hands of juries," ' by presenting the same matter to a new jury." 

Malone v. Courtyard by Marriott Ltd. Partnership, 74 Ohio St.3d 440, 448 (1996), 

quoting Rohde v. Farmer, 23 Ohio St.2d 82, 93 (1970), quoting Holland v. Brown, 15 

Utah 2d 422, 426 (1964). 
No. 16AP-713 6 

B. Standard of Review 

{¶ 18} Civ.R. 53 governs proceedings before a magistrate, including objections to a 

magistrate's decision. In ruling on objections to a magistrate's decision, the trial court 

must undertake an independent review of the matters objected to in order "to ascertain 

[whether] the magistrate has properly determined the factual issues and appropriately 

applied the law." Civ.R. 53(D)(4)(d). In accordance with Civ.R. 53, a trial court reviews a 

magistrate's decision de novo. James v. My Cute Car, LLC, 10th Dist. No. 16AP-603, 

2017-Ohio-1291, ¶ 13. "The standard of review on appeal from a trial court judgment that 

adopts a magistrate's decision varies with the nature of the issues that were (1) preserved 

for review through objections before the trial court and (2) raised on appeal by 

assignment of error." In re Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 

2017-Ohio-7299, ¶ 14. We review the trial court's decision on a motion for new trial under 

Civ.R. 59(A)(6) for an abuse of discretion. Kenner v. Grant/Riverside Med. Care Found., 

10th Dist. No. 15AP-982, 2017-Ohio-1349, ¶ 23; Mannion v. Sandel, 91 Ohio St.3d 318, 

321 (2001), quoting Rohde at paragraph one of the syllabus; Ellinger at ¶ 61, citing Harris 

v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, ¶ 39. An abuse of discretion 

occurs when a court's judgment is unreasonable, arbitrary or unconscionable. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 19} In the context of a motion for new trial, "the abuse of discretion standard 

requires a reviewing court to 'view the evidence favorably to the trial court's action rather 

than to the original jury's verdict.' " Malone at 448, quoting Rohde at 94. "This deference 

to a trial court's grant of a new trial stems in part from the recognition that the trial judge 

is better situated than a reviewing court to pass on questions of witness credibility and the 

'surrounding circumstances and atmosphere of the trial.' " Id., quoting Rohde at 94. 

C. Motion for New Trial or Additur 

{¶ 20} In their first assignment of error, appellants assert the trial court erred in 

denying their motion for new trial or, in the alternative, motion for additur because the 

jury's award of $40,000 to Velio as a result of Mitrevski's conversion of business assets 

was inadequate. 

{¶ 21} "In Ohio, additur is only available where agreed to by the defendant as an 

alternative to the trial court's granting a plaintiff's motion for a new trial." Fares v. 
No. 16AP-713 7 

Scheussler, 10th Dist. No. 93APE10-1373 (Mar. 31, 1994), citing McCormac, Ohio Civil 

Rules of Practice, Section 13.30 at 383 (2d Ed.1992). See Allen v. Znidarsic Bros., Inc., 

11th Dist. No. 99-L-088 (Dec. 29, 2000), citing Midwest Elastomers, Inc. v. Piqua Steel 

Co., 3d Dist. No. 2-82-15 (Aug. 16, 1983). Therefore, in order to obtain additur, a plaintiff 

must first demonstrate entitlement to a new trial under Civ.R. 59. Fares.

{¶ 22} "Generally, a new trial should be granted pursuant to Civ.R. 59(A)(6) where 

it appears that the jury awarded inadequate damages because it failed to consider an 

element of damages established by uncontroverted expert testimony." Dillon v. Bundy, 

72 Ohio App.3d 767, 773 (10th Dist.1991). See Fares; Baum v. Augenstein, 10 Ohio 

App.3d 106, 108 (10th Dist.1983) ("A new trial is warranted on the ground of inadequacy 

of damages where it appears that the jury failed to consider some elements of damages."). 

See Frazier v. Swierkos, 183 Ohio App.3d 77, 2009-Ohio-3353, ¶ 22 (7th Dist.), quoting 

Bailey v. Allberry, 88 Ohio App.3d 432, 435 (2d Dist.1993) (" '[I]n order to set aside a 

damage award as inadequate and against the manifest weight of the evidence, a reviewing 

court must determine that the verdict is so gross as to shock the sense of justice and 

fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of 

an apparent failure by the jury to include all the items of damage making up the plaintiff's 

claim.' "). (Emphasis omitted.) "However, if the verdict is supported by substantial 

competent, credible evidence, a trial court abuses its discretion in granting a new trial 

based upon the weight of the evidence." Dillon at 773-74, citing Hancock v. Norfolk & 

Western Ry. Co., 39 Ohio App.3d 77, 81 (8th Dist.1987). 

{¶ 23} Appellants make two arguments in support of their contention that the 

jury's award of damages for Mitrevski's conversion was inadequate. First, appellants 

argue that Velio is entitled to half of AM and JV's ending inventory for 2010. Specifically, 

appellants contend that: 

Because jury interrogatories Nos. 9-15 specifically found that 

Velio was deprived of his ownership interest in the vehicles, 

funds, and monies held by [AM and JV] after August or 

September of 2010, Velio should be entitled to one half of the 

$80,000 on [AM and JV's] 2010 [tax] return, which is a 

reflection of the assets of that business at the end of 2010. 

Thus, the jury should have awarded Velio one half of these 

assets i.e. $40,000. 
No. 16AP-713 8 

(Appellants' Brief at 20-21.) Consistent with appellants' contention, the jury awarded 

Velio $40,000 in damages for his counterclaim for conversion. 

{¶ 24} Second, appellants argue that "Velio is entitled to $78,004.60" because 

"[e]xhibits introduced at trial prove that between August of 2010 and March of 2011, 

Mitrevski sold $156,009.21 worth of vehicles back to auto auctioneers, under the dealer 

license used for [AM and JV], with the proceeds going directly to [Mitrevski's new 

dealership's bank] accounts, which Velio had no knowledge of." (Appellants' Brief at 24; 

21.) The exhibits to which appellants point were admitted as evidence at trial and 

considered by the trial court in reviewing appellants' motion for new trial. "[A] jury is 

entitled to 'believe all, part or none of a witness's testimony.' " State v. Simmons, 10th 

Dist. No. 15AP-708, 2017-Ohio-1348, ¶ 35 (10th Dist.), quoting State v. Raver, 10th Dist. 

No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964). 

Even if the jury gave weight to appellants' exhibits, they need not have concluded that 

Velio had an ownership interest in the monies deposited in Mitrevski's new bank

accounts. Fares (finding that even though testimony "went unchallenged by defendant, 

the jury was still entitled to disbelieve the testimony and award no money damages"). 

Therefore, we cannot find the trial court erred in denying appellants' motion for new trial 

or, in the alternative, motion for additur. 

{¶ 25} Accordingly, we overrule appellants' first assignment of error. 

D. Remittitur 

{¶ 26} In their second assignment of error, appellants assert the trial court erred in 

denying their motion for remittitur because the evidence at trial demonstrated that 

appellants paid taxes on the property from 2011 through trial in the amount of 

$16,872.73, which appellants assert "should have been deducted from the total of 

$110,727.00 that [AM and JV] was awarded against Velio for conversion of rental 

income." (Appellants' Brief at 25.) 

{¶ 27} Although not expressly provided in the Ohio Civil Rules, "[a] court has the 

inherent authority to remit an excessive award, assuming it is not tainted with passion or 

prejudice, to an amount supported by the weight of the evidence." Wightman v. Consol. 

Rail Corp., 86 Ohio St.3d 431, 444 (1999). See also Moskovitz v. Mt. Sinai Med. Ctr., 69 

Ohio St.3d 638, 653 (1994), fn. 6. The following four factors must be present for a trial 
No. 16AP-713 9 

court to order remittitur: " '(1) unliquidated damages are assessed by a jury, (2) the 

verdict is not influenced by passion or prejudice, (3) the award is excessive, and (4) the 

plaintiff agrees to the reduction in damages.' " (Emphasis omitted.) Harris at ¶ 39, 

quoting Wightman at 444. "The power to order a remittitur is not limited to trial courts." 

Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, ¶ 184, 

citing Shaffer v. Maier, 68 Ohio St.3d 416 (1994). See Chester Park Co. v. Schulte, 120 

Ohio St. 273 (1929), paragraph five of the syllabus. "Thus, an appellate court may order a 

remittitur to the amount warranted by the evidence if it determines that a damages award 

is not supported by the evidence." Wells v. C. J. Mahan Constr. Co., 10th Dist. No. 05AP180, 2006-Ohio-1831, ¶ 39. 

{¶ 28} Here, Mitrevski testified he paid property taxes while at the property, but 

did not after he left. Velio testified he began paying property taxes on the property in 

question in the second half of 2011. Appellants submitted an exhibit showing property 

taxes paid from June 2011 through June 2014 in the amount of $16,872.73. 

{¶ 29} Appellants contend the above establishes Velio paid the property taxes for 

the period in question, and that it was manifest error for the jury to have failed to reduce 

the award of damages for conversion of rental income by the amount of taxes paid. 

Although Mitrevski stated he did not pay the property taxes after he vacated the property, 

the jury need not have accepted Velio's testimony that he, in fact, paid the property taxes. 

At trial, and on appeal, appellees argued the testimony and records were insufficient to 

establish that Velio paid the taxes. 

{¶ 30} Furthermore, at trial, Velio stated that he attempted to evict Toty because it 

was "behind on the rent, not paying property taxes." (Tr. Vol. II at 286.) This testimony 

raises the question as to whether Velio or Toty was responsible for paying the property 

taxes during the period in question. Although Velio points to auditor's records showing 

the property taxes were paid, he does not point to his own records showing payments 

matching the amounts in question. As a result, we find that the jury was not required to 

believe Velio's testimony that he paid property taxes in the claimed amount and, 

therefore, cannot find that the trial court erred in denying appellants' motion for 

remittitur. 

{¶ 31} Accordingly, appellants' second assignment of error is overruled. 
No. 16AP-713 10 

IV. Conclusion 

{¶ 32} Having overruled appellants' first and second assignments of error, we 

affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

BROWN, P.J., and TYACK, J., concur.