[Cite as Owners Mgt. Co. v. Harris, 2017-Ohio-5809.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104804 

OWNERS MANAGEMENT COMPANY

PLAINTIFF-APPELLEE 

vs. 

FREDERICK HARRIS 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Bedford Municipal Court 

Case No. 15-CVF-00027 

BEFORE: E.A. Gallagher, P.J., Stewart, J., and Boyle, J.

RELEASED AND JOURNALIZED: July 13, 2017 
ATTORNEYS FOR APPELLANTS 

Antonio S. Nicholson 

3552 Northcliffe Road 

Cleveland Heights, Ohio 44118 

Eric L. Foster 

Law Firm of McDonald Foster L.L.C. 

25801 Lakeshore Boulevard, Suite 55 

Euclid, Ohio 44132 

ATTORNEY FOR APPELLEE 

Ted S. Friedman 

32901 Station Street, #105 

Solon, Ohio 44139
EILEEN A. GALLAGHER, P.J.: 

{¶1} Defendant-appellant Frederick Harris appeals the decision of the Bedford 

Municipal Court granting judgment in favor of plaintiff-appellee Owners Management 

Company (hereinafter “OMC”) for unpaid condominium owners association fees. We 

affirm. 

Facts and Procedural Background

{¶2} Harris purchased a condominium in Shaker Heights in 1989. As the owner, 

Harris was obligated to pay condominium owners association fees attendant to the 

property. On January 20, 2012, a foreclosure action relating to the condominium was 

instituted against Harris by the Bank of New York Mellon in the Cuyahoga County Court 

of Common Pleas. OMC was named as a codefendant in the case but did not appear. 

{¶3} Harris continued paying his monthly condominium owners association fees 

through June 2013. The record reflects that at a case management conference in the 

common pleas court on July 15, 2013, Harris agreed to enter into a consent to foreclosure. 

 A stipulated magistrate’s decision dated August 16, 2013, stated that Harris consented to 

the bank’s right to a decree of foreclosure. The trial court entered judgment adopting 

the magistrate’s decision on September 16, 2013, and ordered the property to be sold at a 

sheriff’s sale. The record reflects that the property was transferred by sheriff’s deed from 

Harris to Bank of New York Mellon on June 19, 2014. 

{¶4} On January 5, 2015, OMC brought the present case seeking $7,252.63 for 

unpaid condominium owners association fees from July 2013 through June 19, 2014. 
The case proceeded to a bench trial and judgment in the amount sought was granted in 

favor of OMC. 

Law and Analysis 

I. Laches

{¶5} In his first assignment of error, Harris argues that the trial court abused its 

discretion by overruling the defense of laches. However, under Civ.R. 8(C) laches is an 

affirmative defense and must be specifically pled. Harris failed to raise laches in the 

pleadings below and, therefore, has waived this assignment of error. McConnell v. 

McConnell, 8th Dist. Cuyahoga No. 42075, 1980 Ohio App. LEXIS 11299 (Nov. 20, 

1980); Laverty v. Collins, 8th Dist. Cuyahoga No. 60232, 1992 Ohio App. LEXIS 2548 

( May 21, 1992). 

{¶6} Harris’s first assignment of error is overruled. 

II. Mitigation of Damages 

{¶7} In his second assignment of error, Harris argues that the trial court erred in 

failing to find that OMC had a duty to mitigate its damages. 

{¶8} When reviewing a civil appeal from a bench trial, we apply a manifest weight 

standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp., 193 

Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.), citing App.R. 12(C) 

and Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). A verdict 

supported by some competent, credible evidence going to all the essential elements of the 

case must not be reversed as being against the manifest weight of the evidence. 
Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. 

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. 

{¶9} As the Ohio Supreme Court explained in Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, 972 N.E.2d 517: 

“Weight of the evidence concerns ‘the inclination of the greater amount of 

credible evidence, offered in a trial, to support one side of the issue rather 

than the other. It indicates clearly to the [trier of fact] that the party having 

the burden of proof will be entitled to their verdict, if, on weighing the 

evidence in their minds, they shall find the greater amount of credible 

evidence sustains the issue which is to be established before them. Weight 

is not a question of mathematics, but depends on its effect in inducing 

belief.’” 

(Emphasis sic.) Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 

1997-Ohio-52, 678 N.E.2d 541, quoting Black’s Law Dictionary 1594 (6th Ed.1990). 

{¶10} In assessing whether a verdict is against the manifest weight of the 

evidence, we examine the entire record, weigh the evidence and all reasonable inferences, 

consider the witnesses’ credibility and determine whether, in resolving conflicts in the 

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of 

justice that the verdict must be overturned and a new trial ordered. State v. Martin, 20 

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶11} In weighing the evidence, we are guided by a presumption that the findings 

of the trier of fact are correct. Seasons Coal, 10 Ohio St.3d at 80, 461 N.E.2d 1273. This 

presumption arises because the trier of fact had an opportunity “to view the witnesses and 

observe their demeanor, gestures and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.” Id. Thus, “to the extent that the 
evidence is susceptible to more than one interpretation,” we will “construe it consistently 

with the * * * verdict.” Berry v. Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381, 965 

N.E.2d 318, ¶ 22 (8th Dist.), citing Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426 

(1980); see also Seasons Coal at 80, fn. 3 (‘“[I]n determining whether the judgment 

below is manifestly against the weight of the evidence, every reasonable intendment and 

every reasonable presumption must be made in favor of the judgment and the finding of 

facts. * * * If the evidence is susceptible of more than one construction, the reviewing 

court is bound to give it that interpretation which is consistent with the verdict and 

judgment, most favorable to sustaining the verdict and judgment”’), quoting 5 Ohio 

Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978). 

{¶12} We find no evidence in the record to support Harris’s contention that the 

trial court failed to properly consider mitigation of damages. The failure to mitigate 

damages is an affirmative defense. Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. 

Cuyahoga No. 102119, 2016-Ohio-1466, 62 N.E.3d 1034, ¶ 69. Thus, the burden of 

proving a failure to mitigate damages lies with the party asserting the defense. Id. 

{¶13} Here, Harris argues that OMC failed to mitigate its damages by electing not 

to pursue the claim for unpaid fees as a cross-claim in the foreclosure case. However, 

the trial court aptly pointed out that Harris continued paying his condominium fees for 

nearly a year and a half after the foreclosure case was instituted. The present claim for 

unpaid fees did not begin to accrue until unpaid fees began to accumulate in July 2013. 

Even if we accepted the dubious contention that the trial court in the foreclosure case 
would have granted leave for OMC to file its cross-claim to the case following the 

consent decree, the claim was permissive, rather than compulsory, pursuant to Civ.R. 

13(G). Furthermore, Harris failed to proffer either facts or law to demonstrate to the 

trial court below how the adjudication of the fee claim in the foreclosure case would have 

mitigated the damages as opposed to resolving the matter in the present action. 

{¶14} Harris’s second assignment of error is overruled. 

{¶15} Judgment affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Bedford Municipal 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. 

_______________________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

MARY J. BOYLE, J., CONCURS; 

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY