[Cite as Whaley v. Young , 2020-Ohio-2981.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

MILTON WHALEY, Appellee,

- vs -

DAVID YOUNG, Appellant. :

:

:

:

:

: CASE NO. CA2019-11-189

O P I N I O N

5/18/2020

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2019 02 0274

Richard L. Hurchanik, 110 North Third Street, Hamilton, Ohio 45 011, for appellee David Young, 3244 Greenway Avenue, Cincinnati, Ohio 45248, pro se

HENDRICKSON, P.J. {¶ 1} Appellant, David Young, appeals a judgment entered in the Butle r County Court of Common Pleas in favor of appellee, Milton Whaley, on W haley's conversion claims. For the reasons set forth below, we affirm the judgment of the trial court. {¶ 2} On February 6, 2019, Whaley filed a complaint setting forth two causes of action against Young for conversion. Whaley asserted he owned an engine for a 1970 Ford Torino GT that was worth in excess of $25,000 and that Young, W haley's son-in-law, agreed to store the engine at his home in Hamilton, Ohio. Whaley alle ged that after his daughter initiated divorce proceedings against Young, Young "intentional ly and unjustifiably sold" theButler CA2019-11-189

- 2 - engine. Whaley also alleged that Young had Whaley's 8 mm Ruger rifle and had refused to return the rifle, despite Whaley's repeated demands. Whaley claimed the rifle cost $1,000 when it was "purchased new in 2014." {¶ 3} Young, acting pro se, filed an answer in which he admitted that he had agreed to store "a[n] engine/motor" at his address and was in the proc ess of divorcing Whaley's daughter, but he denied the remaining allegations set forth in Whaley's complaint. At the conclusion of his answer, Young included a request that the tri al court "dismiss said complaints as being false and frivolous in nature." Young furt her asserted Whaley's complaint should be dismissed because the same claims had alrea dy been litigated in a prior Butler County Court of Common Peas case that had ended in a dismissal for Whaley's failure to appear. {¶ 4} On May 9, 2019, Whaley moved for summary judgment on his conver sion claims and attached his own affidavit in support of the motion. In his affidavit, Whaley averred, in relevant part, as follows: I am the owner of the motor and rifle. The Defendant who is my son-in-law allowed me to store the motor. It is worth slightly in excess of $25,000. I lent the Defendant my Ruger 8 mm rifle. After the Defendant and my daughter began divorce proceedings, the Defendant testified he sold the motor. The Defendant also refused to ret urn the rifle to me although I demanded it. My opinion as owner of the rifle is that it is worth $1,000. {¶ 5} On May 21, 2019, in response to Whaley's motion for summary jud gment, Young filed a document entitled "Defendant Moves for Dismissal. " In this motion, Young again asserted that Whaley's conversion claims were "false and frivolous." Young claimed Whaley "hasn't proven" or "cannot prove" ownership of the engin e, the value of the engine, or that Whaley delivered the engine to Young for storage. Youn g did not attach any exhibits

or affidavits to his motion.Butler CA2019-11-189

- 3 - {¶ 6} On June 28, 2019, the trial court issued a decision denying You ng's motions to dismiss and granting in part and denying in part Whaley's mo tion for summary judgment. With respect to Young's motions to dismiss, the court first fou nd that Whaley was not barred from refiling his conversion claims as the prior action Whaley had commenced against Young had been dismissed without prejudice pursuant to Civ.R. 4 1(B) for failure to prosecute. The court then construed Young's arguments as a Civ .R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. The court found no merit to Young's arguments, noting that "if Whaley is able to p rove the allegations he sets forth, he would be entitled to judgment based upon his claims o f conversion." {¶ 7} The court then discussed the merits of Whaley's motion for summ ary judgment, finding that the allegations set forth in Whaley's co mplaint combined with his affidavit established that "Young has wrongfully exercised domi nion over Whaley's property to the exclusion of Whaley's rights as the property owner, or w ith respect to the rifle, withheld it from Whaley's possession under a claim inconsistent with Wha ley's rights." The court, therefore, found that judgment in favor of Whaley was appropria te. The court further found that Whaley's affidavit established damages in the amount of $1 ,000 as to Young's conversion of the rifle. However, the court found that "Whaley 's affidavit [did] not enable [it] to determine the exact monetary amount to which [Whaley] was en titled" to as damages for the engine. Because a genuine issue of material fact existed a s to the value of the engine, the court denied the motion for summary judgment in part. {¶ 8} On November 13, 2019, a jury trial was held to determine the fa ir market value of the engine Young converted. The jury determined the fair ma rket value of the Ford 429- 4V "Cobra Jet Ram Air" engine was $150. The trial court issued a final judgment in favor of Whaley for $1,150 for conversion of his engine ($150) and ri fle ($1,000). Young timely filed a notice of appeal.Butler CA2019-11-189

- 4 - Young's Appeal {¶ 9} Young's brief does not comply with the requirements of App.R. 1 6, as it does not set forth any specific assignments of error for review or c ontain references to the parts of the record in which the errors are allegedly reflected. Non etheless, the "Arguments" portion of Young's bri ef indicates he is c hallenging t he trial court's decision to limit evidence at trial to the issue of damages relating to the engine as well as challenging the damage award for both the engine and rifle. In the interests of justi ce, we will address both arguments. {¶ 10} Young contends the trial court erred by not being "concern[ed] with proof of ownership" and by not letting the jury deliberate on any issue other than damages to the engine. We find no merit to Young's arguments. On June 28, 20 19, the trial court issued a decision granting in part and denying in part Whaley's motion for summary judgment. The court granted judgment in favor of Whaley on the issue of liabi lity as to both of Whaley's conversion claims. The court further awarded summary judgment on the issue of damages for Whaley's conversion claim related to the rifle. As judgmen t had already been rendered on these issues in accordance with Civ.R. 56(C), the only issue to be decided at trial was the amount of damages Whaley was entitled to recover for Young' s conversion of the engine. The trial court, therefore, did not error in precludin g Young from introducing evidence relating to ownership of the engine or rifle at trial. {¶ 11} To the extent that Young seeks to challenge the trial court's d ecision to enter summary judgment in Whaley's favor, we find no error in the cou rt's decision. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written st ipulations of fact, if any, show that (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead reasonable mindsButler CA2019-11-189

- 5 - to a conclusion that is adverse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66 (1978). {¶ 12} "[C]onversion is the wrongful exercise of dominion over propert y to the exclusion of the rights of the owner, or withholding it from hi s possession under a claim inconsistent with his rights." Joyce v. General Motors Corp. , 49 Ohio St.3d 93, 96 (1990). The affidavit Whaley attached in support of his motion for summ ary judgment established that Young wrongfully exercised dominion over Whaley's engine w hen he sold the engine without Whaley's permission and Young wrongfully exercised domi nion over a $1,000 rifle by refusing to return it to Whaley. Young did not meet his bur den of rebutting Whaley's evidence with specific facts showing the existence of a genuine triable issue. Rather, Young attempted to rest on the allegations of denial in his pleadings and bald, unsworn assertions set forth in his responsive filing, entitled "Defendant Moves f or Dismissal," to oppose summary judgment. A party opposing a summary judgment motion m ay not rely on the allegations or denials in his pleadings in order to prevent the granting of summary judgment; rather, he must set forth specific facts in response, by affida vit or otherwise, demonstrating the existence of a genuine issue of material fact. Civ.R. 56(E ); Savransky v. Cleveland , 4 Ohio St.3d 118, 119 (1983); Deutsche Bank Natl. Trust Co. v. Sexton , 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7. As Young did not present a ny evidentiary materials demonstrating specific facts showing the existence of a genuine triable issue, the trial court did not err in granting summary judgment to Whaley on his claim s of conversion or in awarding Whaley $1,000 in damages for conversion of the rifle. Any claimed error pertaining to these issues is without merit and is overruled. {¶ 13} Turning to the jury trial held to determine the value of the co nverted engine, Young contends the trial court erred in instructing the jury on damages. He argues that the court "misinformed" the jury by not giving an instruction on en trapment and by not tailoringButler CA2019-11-189

- 6 - the instructions to the facts of the case. He further argues t hat there was "zero evidence to show any damage to the engine in question." {¶ 14} Young has not filed a transcript of the jury trial. As the app ealing party, Young had a duty to provide a transcript for appellate review as he b ears the burden of showing error in the underlying proceeding by reference to matters in t he record. Dudley v. Dudley , 12th Dist. Butler No. CA2013-09-163, 2014-Ohio-3992, ¶ 25, citi ng App.R. 9(B) and 16(A)(7). When portions of the transcript necessary for resolu tion of assigned errors are omitted from the record, the reviewing court has nothing to pas s upon and thus has no choice but to presume the regularity or validity of the lower c ourt's proceedings and affirm. Spicer v. Spicer , 12th Dist. Butler No. CA2005-10-443, 2006-Ohio-2402, ¶ 5, cit ing Knapp

v. Edward Laboratories , 61 Ohio St.2d 197, 199 (1980). {¶ 15} Given the absence of an appropriate record to support Young's a lleged errors regarding the jury instructions and evidence in support of the damage award, we presume the regularity of the proceedings and overrule Young's argument s. Whaley's Motion for Sanctions {¶ 16} Finally, Whaley has moved this court to find the appeal frivolo us and order Young to pay reasonable expenses including costs and $600 in at torney fees, as provided by App.R. 23. "'A frivolous appeal under App.R. 23 is essentia lly one which presents no reasonable question for review.'" Madewell v. Powell , 12th Dist. Warren No. CA2006-05- 053, 2006-Ohio-7046, ¶ 10, quoting Talbott v. Fountas , 16 Ohio App.3d 226, 226 (10th Dist.1984). Although unsuccessful, we find the instant appeal brought by Young presented a reasonable question for review. We therefore deny Whaley's m otion for sanctions. {¶ 17} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.