[Cite as Foster v. Benson, 2019-Ohio-1528.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

EROL FOSTER : 

 Plaintiff-Appellant, : 

 No. 107366 

 v. : 

 

ANGELA BENSON, ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED IN PART, MODIFIED IN PART, 

 AND REMANDED 

RELEASED AND JOURNALIZED: April 25, 2019 

 

Civil Appeal from the Cleveland Municipal Court 

Case No. 2016 CVG 11394 

 

Appearances: 

Mike Heller Law, L.L.C., Michael A. Heller, for appellant. 

Angela Benson, pro se; Dwayne Thomas, pro se, 

appellees. 

MARY J. BOYLE, P.J.: 

Plaintiff-appellant, Erol Foster, appeals from the trial court’s 

judgment granting defendants $8,000 in damages and court costs. He raises 12 

assignments of error for our review: 

1. Plaintiff/Appellant was denied due process. 
2. The trial court erred in failing to record the proceedings before 

the Magistrate (hearing of 09/14/2017). 

3. Magistrate’s Decision (of 09/27/2017) is/was against the 

manifest weight of the evidence. 

4. The trial court erred in the failure of adequate proof of damages 

by Defendant/Appellee(s). 

5. Trial Court erred in finding that Plaintiff/Appellant Foster 

allegedly sold her 2 couches to a neighbor. 

6. Trial Court erred in finding that Plaintiff/Appellant Foster had 

allegedly thrown out Defendant/Appellee(s)’s [sic] belongings. 

7. Trial Court otherwise erred in finding that Plaintiff/Appellant 

had “removed” or “taken” Defendant/Appellee(s)’s [sic] 

belongings. 

8. Trial Court erred in referring to ‘Defendant/Appellee(s)s’ [sic] in 

the plural, including but not limited to, arbitrarily awarding 

judgment to both Defendant/Appellees, and, in dismissing 

Plaintiff/Appellants’ claims against both Defendant/Appellees. 

9. Trial Court erred in finding that Plaintiff/Appellant had locked 

Defendant/Appellee(s) out. 

10.Trial Court erred in finding that Plaintiff/Appellant Foster 

violated ORC 5321.15. 

11. Trial Court erred in finding that Plaintiff/Appellant Foster 

committed the tort of conversion. 

12.Trial Court erred in failing to assign a dollar amount of damages 

to the alleged tort of conversion and/or to itemize damages 

therefor. 

Finding partial merit to Foster’s eighth assignment of error, we affirm 

in part, modify in part, and remand for the trial court to issue a journal entry only 

awarding Angela Benson $8,000 in damages on her counterclaim against Foster 
and omitting an award of damages to Dwayne Thomas. (Benson and Thomas are 

collectively referred to as “defendants.”) 

I. Procedural History and Factual Background 

On August 11, 2016, Foster filed a pro se complaint in forcible entry 

and detainer and for money damages against the defendants. Foster alleged that he 

owned a residential property located at 3255 East 117th Street in Cleveland and that 

he rented the property on a monthly basis to Benson and Thomas, but that they 

failed to pay rent at the beginning of August 2016. Specifically, Foster alleged that 

Benson and Thomas “agreed to pay [Foster] rent for the premises in the amount of 

$600.00 per month” and that they “failed to pay plaintiff rent for the period from 

the 1st day of August 2016 until the present[.]” Foster also alleged that he served 

Benson and Thomas with a written notice to leave the premises on August 5, 2016. 

Foster said defendants owed him $600 “plus $30 per day until [they] vacate * * * 

the premises” as well as “$300.00 for property damage” and “court filing fees and 

legal fees.” As a result, Foster sought “$950.00 plus $30.00 per day until 

defendant[s] vacate[] the premises.” 

Foster, this time with representation, filed an amended complaint on 

September 1, 2016, adding a new third-party plaintiff, Foster EM Family Trust.1 The 

amended complaint included the same allegations, but asked for money damages in 

 1 Hereinafter, Foster and Foster EM Family Trust are collectively referred to as 

“plaintiffs.” 
the amount of $5,000 for “property damage, delinquent rent, * * * and other,” as 

well as $30 per day until the defendants vacated the premises. 

The magistrate set a hearing for the matter, but continued it for lack 

of service of the summons and complaint on defendants. After resetting the hearing, 

the magistrate again found that service was not perfected. 

In October 2016, Benson filed an answer, denying the allegations. 

She alleged that “Foster change[d] and bolted the locks and doors [and she] was 

unable to get into our home as of August 2016 so I don’t owe any rent[.] Couldn’t 

get into home.” Benson also filed counterclaims against Foster for damages “for 

illegally moving all our property out [of] our home on October 17, 2016.” She alleged 

that “we never got any notice based upon eviction[.] When I got the call I called 

eviction court and they gave us a date stating they made several attempts but we 

never got any mail since July[.] Our court date was [November] 9, 2016.” She also 

alleged that Foster “paid for dump trucks called ‘Pete and Pete’ and trash[ed] all our 

belonging[s] and we lost everything without being evicted. [A]lso for lost wages.” 

She therefore requested a judgment for $8,000 plus costs. 

Thomas did not file an answer. 

In December 2016, plaintiffs moved to strike Benson’s answer and 

counterclaim for failure of service. Plaintiffs argued that Benson’s alleged service on 

Foster was inadequate because she should have served plaintiffs’ attorney who 

appeared on his behalf and represented him when the amended complaint was filed. 

Foster also argued that he never received Benson’s answer and counterclaim. 
The trial court denied plaintiffs’ motion, but granted plaintiffs “leave 

to plead until January 27, 2017 to file a response to [the] counterclaim.” Plaintiffs 

did not file a response to Benson’s counterclaim. 

The case proceeded to trial in September 2017, but plaintiffs failed to 

appear. Benson appeared pro se and submitted a list of items that she alleged were 

lost or destroyed as a result of Foster’s actions. That list was marked as Exhibit A. 

On September 27, 2017, the magistrate issued a decision, making the 

following factual findings: 

Plaintiff Erol Foster entered into a rental agreement with Defendants 

for property at 3255 E. 117th St., Cleveland. 

In July 2016, Defendant Benson asked Plaintiff Foster to change the 

locks at the property because of a problem with a neighbor. 

Defendant Benson was residing with her mother and preparing for her 

wedding and so did not press Plaintiff Foster on the question of getting 

a key; she was able to enter the property through a window to retrieve 

belongings she needed for her wedding. 

Defendant Benson told Plaintiff Foster that she planned to come to the 

property with a moving truck to move out all her furniture and her 

belongings, again asking for a key. 

* * * 

The first cause hearing was then set for September 29, 2016; on that 

day, it was continued due to lack of service on Defendants of the 

summons and complaint. The Court set the case for October 12, [2016] 

but service again failed. 
On October 17, [2016], Plaintiff Foster, without having any authority 

from the Court allowing him to do so, removed almost all of 

Defendants’ belongings from the property. Defendant Benson 

discovered that he had sold her two couches to a neighbor and had 

taken or thrown out almost all of her belongings, a true and accurate 

list of which she offered into evidence as Defendant’s Exhibit 1. 

The cost to Defendants to replace lost belongings will be greater than 

$8000. 

Defendants are also entitled to damages for the disruption and 

inconvenience of being locked out and losing their belongings but since 

their damages are already in excess of their prayer amount, the Court 

makes no finding as to the dollar amount of these damages. 

 The magistrate stated that “Plaintiff Foster knew that he had not 

obtained a judgment of eviction and knew that Defendants had no intention of 

abandoning their personal property” and that he “therefore violated R.C. 5321.15 

and committed the tort of conversion.” The magistrate also found that “Defendants 

did not provide testimony that Plaintiff Foster EM Family Trust had any role in 

removing their belongings.” As a result, the magistrate granted “judgment to 

Defendants against Plaintiff Erol Foster in the amount of $8000 plus court costs” 

and “with interest from the date of judgment.” It also dismissed “Plaintiffs’ claims 

with prejudice as a sanction for Plaintiffs’ failure to appear for trial” and dismissed 

“without prejudice Defendants’ claims against Plaintiff Foster EM Family Trust.” 

On September 27, 2017, the trial court adopted the magistrate’s 

decision granting defendants $8,000 “plus court costs with interest from the date of 
judgment[,]” dismissing defendants’ claims against Foster EM Family Trust, and 

dismissing plaintiffs’ claims with prejudice. 

On September 29, 2017, plaintiffs filed a motion for leave to file an 

answer. Plaintiffs alleged that “[a]pparently by excusable neglect[, they] 

inadvertently did not answer Defendant’s counterclaim.” They also argued that the 

“Magistrate’s Decision * * * on or about Sept. 27 must be stricken, and a new trial 

must be set.” Shortly after, plaintiffs also filed a “Motion for audio recording & 

exhibits, etc.” requesting evidence presented during the September 14, 2017 hearing. 

The trial court denied plaintiffs’ motion for leave and vacation of 

judgment. The trial court also denied plaintiffs’ motion for audio recording, stating 

that “the Court did not make an audio recording of the ex parte trial.” 

On October 11, 2017, plaintiffs filed objections to the magistrate’s 

decision. Plaintiffs attached an affidavit from their attorney, an affidavit from 

plaintiffs themselves, a copy of a list of property that Benson lost and produced at 

trial, and a copy of a failure of service notification from the Cleveland Municipal 

Court showing that service was not perfected on Benson. Plaintiffs also 

subsequently filed a motion to stay execution and strike “Defendant’s ‘Lien 

Certificate Request’ of 10/10/2017, and the ‘Certificate of Judgment for Lien,’ 

entered by [the trial court] on or about 10/16/2017.” The trial court did not rule on 

that motion. 

In its June 1, 2018 judgment entry reviewing plaintiffs’ objections, the 

trial court grouped the objections into four categories: lack of audio recording, lack 
of notice of trial date, dismissals with/without prejudice, and factual objections. 

First, the trial court overruled plaintiffs’ objections based on the lack of audio 

recording, citing Loc.R. 3.08(C) of the Court of Common Pleas of Cuyahoga County, 

General Division, and finding that there was “no requirement that a [m]agistrate 

create an audio recording of a court proceeding, once the matter reaches beyond the 

first cause hearing stage.” 

As to the lack of notice of trial date, the trial court stated that because 

Foster was represented by counsel, counsel, not Foster himself, would have received 

notice of the September 14 hearing. The court stated that while plaintiffs’ counsel 

“[did] not recall receiving a notice of the hearing[,]” “plaintiff was aware that the 

April 2017 settlement conference was unsuccessful, and [that] the matter would be 

set for trial. The trial notice was issued on August 7, 2017 and mailed to counsel on 

August 10, 2018 [sic], more than one month before the September 14, 2017 trial.” 

The trial court stated that it was “counsel’s responsibility to keep apprised of the 

Court’s docket and any upcoming events[,]” and that “it is the responsibility of the 

parties to review the docket and filings.” The court also noted that it had an 

electronic docket. The trial court thus upheld “the dismissal of Plaintiff’s case for 

his failure to appear at Trial.” 

Turning to plaintiffs’ objections as to the dismissals, the trial court 

stated, 

In light of the prevailing case law that favors a dismissal without 

prejudice, the objection to the fact that that dismissal was with 

prejudice is well-taken. The dismissal of Plaintiff’s claims should have 
been without prejudice. The Magistrate’s decision is modified to reflect 

the fact that the dismissal of Plaintiff’s case is without prejudice. 

Plaintiff also objects to the language concerning the dismissal of 

Defendant’s counterclaims against the entity Foster EM Family Trust 

who was added as a party-plaintiff in Plaintiff’s Amended Complaint. 

* * * A review of the docket reveals that Defendants’ counterclaims were 

asserted as to Erol Foster only. After Plaintiff amended his complaint 

to name Foster EM Family Trust as a new party-plaintiff, Defendants 

did not restate their counterclaims against the new Plaintiff. 

Furthermore, when Defendants had the opportunity to present 

evidence at trial against Foster EM Family Trust, they failed to do so. 

(Emphasis sic.) As a result, the trial court sustained plaintiffs’ objection and 

dismissed Benson’s counterclaims against Foster EM Family Trust with prejudice. 

Finally, as to plaintiffs’ objections to the magistrate’s factual findings, 

the trial court first noted that plaintiffs “did not attach any evidence to [their] 

objections from which the Court might conclude that the Magistrate’s factual 

findings were indeed ‘against the manifest weight of the evidence.’” The court went 

on to state, “Plaintiffs’ Objections included an affidavit from Plaintiff Erol Foster 

which avers only that he had no notice of the trial on September 14. The affidavit 

from the Plaintiff does not include any allegations challenging the factual matters 

used by the Court to come to its ruling.” The trial court also stated that even if it 

“were to construe Plaintiffs’ Objections as a Motion for Relief, Civil Rule 60(B) has 

the same requirements for the type of evidence that must be presented to the Court 

when a party challenges factual findings.” The trial court found that plaintiffs’ 

failure to attach factual material in support did not comply with Civ.R. 60(B). The 

court therefore overruled the plaintiffs’ factual objections. 
On June 14, plaintiffs filed a motion to stay execution and to strike 

“Defendant’s ‘Garnishment Other than Personal Earnings’ of 6/4/2018, and, the 

Judgment Entry/Notice of this Court of on or about 6/13/2018.” On July 2, 2018, 

the trial court issued a journal entry stating that granting plaintiffs’ motion for a stay 

of execution was “contingent on plaintiffs providing a supersedeas bond of $8,000 

plus court costs” and that “the stay will take effect when the bond is approved by the 

court.” The docket does not reflect whether plaintiffs ever provided the bond and 

whether the trial court actually granted the stay. 

Plaintiffs also contemporaneously filed a notice of appeal from the 

court’s June 1, 2018 judgment entry. 

On January 4, 2019, we remanded the case to the trial court under 

App.R. 9(E), finding that “[a]lthough the trial court adopted the magistrate’s report, 

it failed to enter a separate judgment stating the relief to be afforded.” On remand, 

the trial court granted the following judgment: 

On Defendants’ counterclaims against Plaintiff Erol Foster, the Court 

grants judgment to Defendants against Plaintiff Erol Foster in the 

amount of $8000 plus court costs with interest from the date of 

judgment. 

On Defendants’ counterclaims against Plaintiff Erol Foster Family 

Trust, the Court dismisses those counterclaims with prejudice. 

On Plaintiff’s claims against Defendants, the Court dismisses those 

claims with prejudice. 

It is from this judgment that Foster now appeals. 

 
II. Law and Analysis 

A. Due Process 

In Foster’s first assignment of error, he argues that the trial court 

denied him his procedural due process rights by (1) failing to provide plaintiffs or 

their counsel notice of the September 14 hearing, (2) proceeding with the hearing 

without plaintiffs, and (3) failing to “make any findings as to service of notice of 

hearing.” 

1. Notice 

Foster first argues that he, the Foster EM Family Trust, and his 

counsel did not receive notice of the September 14 hearing before the magistrate. 

Foremost, “[t]he power to dismiss for lack of prosecution is within the 

sound discretion of the trial court, and appellate review is confined solely to whether 

the trial court abused that discretion.” Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437, 

N.E.2d 1199 (1982). In Pembaur, the Ohio Supreme Court stated, “Pursuant 

to Civ.R. 41(B)(1), it is not an abuse of discretion for the trial court to dismiss an 

action, with prejudice, for lack of prosecution when a plaintiff voluntarily fails to 

appear at a hearing, without explanation, when the court has directed him to be 

present and his location is unknown.” Id. at syllabus. 

In this case, the trial court’s docket reflects that the trial court 

scheduled the September 14 hearing on August 9, 2017. Further, the trial court’s 

August 11, 2017 judgment entry — which set the case for trial on September 14 — 

states that a copy of the entry was “sent by regular U.S. mail to parties/counsel on 
8/10/17.” Further, on March 3, 2017, the trial court issued a journal entry warning 

that “[p]ursuant to Ohio Rule of Civil Procedure 41(B), failure of a party or counsel 

to attend may result in dismissal of that party’s claims[.]” 

Notice shall be deemed to have been provided once the clerk has served 

notice of the entry and made the appropriate notation on the 

docket. Atkinson v. Grumman Ohio Corporation (1988), 37 Ohio St.3d 

80, paragraph four of syllabus. Moreover, the validity of the judgment 

is not affected by a party’s failure to receive such notice. Id. There is 

also a presumption of proper service in cases where the Civil Rules on 

service are followed. Grant v. Ivy (1980), 69 Ohio App.2d 40, 

42. However, this presumption may be rebutted by sufficient 

evidence. Id. 

Martin v. Manning, 8th Dist. Cuyahoga No. 62039, 1991 Ohio App. LEXIS 5763, 1-

2 (Dec. 5, 1991). “[N]otice to an attorney may be imputed to the client.” State v. 

Hysell, 4th Dist. Meigs No. 95 A 4, 1995 Ohio App. LEXIS 4408, 7 (Sept. 27, 1995). 

In an attempt to rebut the presumption of service, Foster points to 

affidavits from him, the trust itself, and the parties’ attorney, which were attached 

to their objections to the magistrate’s decision. Plaintiffs’ attorney’s affidavit states 

that he “did not or [does] not recall receiving a notice of said hearing.” 

However, “a party’s self-serving statement that he did not receive 

service is generally insufficient to rebut the presumption of service.” Castanias v. 

Castanias, 12th Dist. Warren No. CA2009-11-152, 2010-Ohio-4300, ¶ 11. Therefore, 

plaintiffs’ attorney’s claim that he does not remember receiving notice is insufficient 

to rebut the presumption of service. Because the docket reflects that plaintiffs 

and/or their attorney received notice of the September 14 hearing, we presume that 

service was proper and find that the trial court did not abuse its discretion. 
2. Plaintiffs’ Absence at Hearing 

Foster next argues that the trial court abused its discretion by 

proceeding to trial in plaintiffs’ absence. However, as discussed above, we find no 

abuse of discretion with the trial court proceeding without plaintiffs. 

3. Findings of Service of Notice 

Third, Foster argues that the magistrate “failed to make any findings 

as to service of notice of hearing[,]” stating that the decision only said that “Plaintiffs 

failed to appear” and failed to state how or whether plaintiffs were served. Foster, 

however, fails to cite any support establishing that a magistrate must make factual 

findings related to service of notice. Further, “[a] court speaks through its docket 

and journal entries.” State v. Deal, 8th Dist. Cuyahoga No. 88669, 2007-Ohio-5943, 

¶ 54, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024. 

By stating that “plaintiffs failed to appear,” the magistrate impliedly found, based on 

evidence in the docket, that plaintiffs received service, and the trial court’s docket 

confirms such a finding. 

Accordingly, we overrule Foster’s first assignment of error. 

B. Failure to Record 

In Foster’s second assignment of error, he argues that the trial court 

“erred in failing to record the proceedings before the magistrate (hearing of 

09/14/2017).” 
Civ.R. 53(D)(7) requires that the proceedings before a magistrate be 

recorded in accordance with the procedures established by the court. Rule 3.08 of 

the Cleveland Housing Court’s rules, however, states in relevant part: 

(A) Except where required by law, the Court does not utilize a court 

reporter to transcribe proceedings in civil matters. 

(B) Any party or his representative may retain the service of a private 

reporter to keep a verbatim record of any scheduled hearing. * * * 

(C) An “audio only” digital recording is made of eviction hearings. 

Audio only digital recordings of other hearings also may be made. 

(Emphasis added.) 

The September 14 hearing was not an eviction hearing, particularly 

because the trial court dismissed plaintiffs’ eviction action based on plaintiffs’ 

absence and failure to prosecute their claims. Instead, the hearing only concerned 

Benson’s counterclaims against Foster. There is nothing from the record to suggest 

that any party retained the service of a private reporter or that the trial court 

required the hearing to be recorded. Therefore, pursuant to the procedures 

established in the Cleveland Municipal Court, it was plaintiffs’ responsibility to 

retain a private court reporter if they desired one, not the court’s, and the trial court 

did not err in not recording the proceedings. 

Accordingly, we overrule Foster’s second assignment of error. 

 
C. Manifest Weight and Sufficiency of the Evidence 

In Foster’s third, fourth, fifth, sixth, seventh, ninth, tenth, and 

eleventh assignments of error, he argues that the trial court’s judgment was 

supported by insufficient evidence and was against the manifest weight of the 

evidence. 

It is well settled that “an appellant bears the burden of providing the 

reviewing court with a transcript of the proceedings to demonstrate any claimed 

errors.” State v. Soverns, 8th Dist. Cuyahoga No. 101185, 2014-Ohio-4094, ¶ 6, 

citing State v. Blashaw, 8th Dist. Cuyahoga No. 98719, 2012-Ohio-6011. “‘When 

portions of the transcript necessary for resolution of assigned errors are omitted 

from the record, the reviewing court has nothing to pass upon and, thus, as to those 

assigned errors, the court has no choice but to presume the validity of the lower 

court’s proceedings, and affirm.’” State v. Simmons, 8th Dist. Cuyahoga No. 

100638, 2014-Ohio-3038, ¶ 14, quoting Knapp v. Edwards Laboratories, 61 Ohio 

St.2d 197, 400 N.E.2d 384 (1980). Further, “[i]f no recording of the proceedings 

was made, * * * the appellant may prepare a statement of the evidence or 

proceedings from the best available means, including the appellant’s recollection.” 

App.R. 9(C). 

Here, Foster challenges the sufficiency and manifest weight of the 

evidence presented at the September 14 hearing. Without a transcript or statement 

of the evidence or proceedings, however, we have no basis upon which to analyze his 

assignments of error that concern factual disputes. Fennell v. DeMichiei, 8th Dist. 
Cuyahoga No. 106966, 2019-Ohio-252, ¶ 11 (“[B]ecause Fennell did not file a 

transcript of either the August 2017 or February 2018 hearings, we are unable to 

review her arguments to the extent they relate to factual disputes.”). Instead, we are 

left with the trial court’s factual findings. Accordingly, we must presume regularity 

of the lower court’s proceedings and affirm the trial court’s judgment. State v. 

Williams, 8th Dist. Cuyahoga No. 101806, 2015-Ohio-881, ¶ 13. 

Accordingly, we overrule Foster’s third, fourth, fifth, sixth, seventh, 

ninth, tenth, and eleventh assignments of error. 

D. Trial Court’s Award to “Defendants” 

In Foster’s eighth assignment of error, he argues that the trial court 

erred “in referring to ‘Defendant/Appellee(s)s’ [sic] in the plural” and “arbitrarily 

awarding judgment to both Defendant/Appellees[.]” He also argues that the trial 

court erred in awarding damages to defendants “for all property, regardless of if or 

whether it belonged to [Benson or Thomas] * * * or was jointly owned.” 

We disagree with Foster that the trial court erred in awarding 

damages to Benson without finding whether the property was jointly owned. At the 

September 14 hearing, Benson provided the trial court with a list of property that 

she lost or was destroyed by Foster’s actions in support of her counterclaim, which 

was submitted and received by the trial court as an exhibit. Further, plaintiffs did 

not attend the hearing, let alone provide evidence suggesting that Benson did not 

own any of the property that she included in her list, cross-examine Benson, or 

challenge the amount that the trial court attributed to the property. 
Nevertheless, a review of the record shows that Benson was the only 

defendant to file a counterclaim against Foster. Therefore, the trial court’s judgment 

awarding damages to both Benson and Thomas is incorrect and should only award 

damages to Benson. While the trial court’s error is clerical in nature and such an 

error can typically be fixed via a nunc pro tunc entry, that type of entry “is restricted 

to placing upon the record evidence of judicial action which has been actually taken” 

and “it can be exercised only to supply omissions in the exercise of functions that are 

clerical merely.” Jacks v. Adamson, 56 Ohio St. 397, 402, 47 N.E. 48 (1897). “The 

function of nunc pro tunc is not to change, modify, or correct erroneous judgments, 

but merely to have the record speak the truth.” Ruby v. Wolf, 39 Ohio App. 144, 10 

Ohio Law Abs. 79, 177 N.E. 240 (8th Dist.1931). Without a transcript of the 

September 14th hearing, we are unable to discern whether the trial court correctly 

awarded damages only to Benson at the hearing and are left with the trial court’s 

erroneous award of damages to Thomas. Therefore, we modify the trial court’s 

judgment entry and remand with instructions for the trial court to issue a journal 

entry that only awards Benson $8,000 in damages and omits an award to Thomas. 

Accordingly, we sustain in part Foster’s eighth assignment of error to 

the extent that the trial court’s judgment entry should reflect that it only awarded 

damages to Benson, not Thomas, but overrule the remaining arguments. 

E. Damages 

In Foster’s twelfth assignment of error, he argues that the trial court 

erred “in failing to assign a dollar amount of damages to the alleged tort of 
conversion and/or to itemize damages therefor.” Foster’s argument in support of 

this assignment of error is one sentence long and fails to elaborate on the point he 

attempts to make. Further, the trial court’s January 9, 2018 judgment entry 

specifically states that it granted defendants damages “in the amount of “$8,000 

plus court costs with interest[.]” We are unable to discern what Foster alleges is 

deficient with that award. 

Accordingly, we overrule Foster’s twelfth assignment of error. 

Judgment affirmed in part, modified in part, and remanded for the 

trial court to issue a journal entry only awarding Benson $8,000 in damages and 

omitting an award of damages to Thomas. 

 It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

PATRICIA ANN BLACKMON, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR