[Cite as Vienna Beauty Prods. Co. v. Cook, 2015-Ohio-5017.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

MIAMI COUNTY 

VIENNA BEAUTY PRODUCTS CO. 

 Plaintiff-Appellant/Cross Appellee 

v. 

BRENDA COOK, et al. 

 Defendants-Appellees/Cross Appellants 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 2015-CA-1 

Trial Court Case No. 12-CV-806 

(Civil Appeal from 

 Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 4th day of December, 2015. 

. . . . . . . . . . . 

BARRY W. MANCZ, Atty. Reg. No. 0011857, and CYNTHIA WESTWOOD, Atty. Reg. 

No. 0079435, Rogers & Greenberg, LLP, 2160 Kettering Tower, Dayton, Ohio 45423 

 Attorneys for Plaintiff-Appellant/Cross-Appellee, Vienna Beauty Products Co. 

ROBERT J. HUFFMAN, JR., Atty. Reg. No. 0040316, 80 South Plum Street, Troy, Ohio 

45373 

 Attorney for Defendants-Appellees/Cross-Appellants, Rarely Idle Ranch, Accurate 

 Construction Equipment Repair, LLC, and Roderick Cook 

ANDREW R. PRATT, Atty. Reg. No. 0063764, 18 East Water Street, Troy, Ohio 45373 

 Attorney for Defendant-Appellee, Brenda Cook 

. . . . . . . . . . . . . 
-2- 

HALL, J. 

{¶ 1} Plaintiff-appellant Vienna Beauty Products Co. (“Vienna”) appeals from the 

trial court’s entry of a directed verdict in favor of defendant-appellee Roderick Cook on its 

claim for conversion. In a cross appeal, defendant-cross appellant Accurate Construction 

Equipment Repair, LLC (“ACER”) appeals from the trial court’s entry of summary 

judgment against it on Vienna’s claim for conversion. 

{¶ 2} The record reflects that Vienna filed a December 2012 complaint against 

Brenda Cook, Roderick Cook, ACER, and Rarely Idle Ranch, LLC (“Rarely Idle”). The 

complaint alleged that Mrs. Cook had worked as a bookkeeping manager for Vienna until 

November 2012. It further alleged that her husband, Mr. Cook, owned ACER and Rarely 

Idle. According to the complaint, Mrs. Cook stole hundreds of thousands of dollars from 

Vienna by forging checks. In essence, the complaint alleged that the Cooks and ACER 

had acted in complicity and in a conspiracy to convert and funnel the stolen money from 

Vienna into and through ACER’s bank account. 

{¶ 3} As relevant here, Vienna’s complaint proceeded against the Cooks and 

ACER on claims of conversion and civil conspiracy.1 In January 2014, Mr. Cook, ACER, 

and Rarely Idle moved for summary judgment. (Doc. #23). Vienna opposed the motion 

and filed its own summary judgment motion. (Doc. #25). After briefing, the trial court found 

 

1 We note that Rarely Idle was named as a defendant for purposes of injunctive relief 

because Mr. Cook owned the company and Vienna feared an attempt might be made to 

place its assets beyond the reach of creditors. (Doc. #48 at 3-4). In any event, Vienna 

formally withdrew any potential substantive claims against Rarely Idle before trial. (Doc. 

#42 at 3). 
-3- 

Vienna entitled to summary judgment against Mrs. Cook on its claims against her 

because she admitted stealing the checks at issue. The trial court also found Vienna 

entitled to summary judgment against ACER on the conversion claim. It found genuine 

issues of material fact, however, precluding summary judgment for Vienna on its claims 

against Mr. Cook. Finally, the trial court denied the defendants’ summary judgment motion 

in its entirety. (Doc. #33). 

{¶ 4} The unresolved claims came before the trial court for a June 2014 bench trial. 

After hearing evidence, the trial court directed a verdict for Mr. Cook on the conversion 

and civil conspiracy claims against him. The trial court found ACER liable to Vienna for 

civil conspiracy. It also found Vienna entitled to statutory treble damages against Mrs. 

Cook and ACER, resulting in a final judgment against each of these defendants for 

$1,224,000. This appeal followed. 

{¶ 5} In its sole assignment of error, Vienna contends the trial court erred in 

directing a verdict for Mr. Cook on its conversion claim. In the cross appeal, ACER asserts 

that the trial court erred in entering summary judgment against it for conversion.2

{¶ 6} In entering summary judgment against ACER on the conversion claim, the 

trial court reasoned: 

 [ACER] only maintained one bank account into which flowed much 

of the Plaintiff’s funds which were converted. Brenda Cook acknowledged 

she was the manager agent for ACER. 

 

2 The parties’ briefs apparently focus exclusively on the conversion claim because the 

civil-conspiracy claim necessarily depends on the conversion claim. See Rachlow v. Dee, 

2d Dist. Montgomery No. 18927, 2002 WL 91288, *4 (Jan. 25, 2002) (“Pursuant to Ohio 

law, a civil conspiracy claim standing alone cannot be the subject of a civil action.”). 
-4- 

 Both Cooks further admitted they had credit cards issued to ACER 

which they both used to pay for personal bills. 

 Most interesting is the testimony that ACER gives nothing in writing 

either before or after work is done for the customer. 

 The Court finds no genuine issue of material fact and that the Plaintiff 

is entitled to judgment as a matter of law against ACER in the amount of 

$408,484.23, on the claim for conversion, since Brenda Cook was acting as 

agent for ACER when she essentially laundered the stolen money through 

the ACER account. ACER is also subject to the statutory treble damages. 

(Doc. #33 at 3) (Citations omitted). 

{¶ 7} The trial court subsequently denied ACER’s motion for reconsideration of the 

interlocutory summary judgment ruling against it. In support, the trial court reasoned: 

 * * * [T]here was [deposition] testimony from Brenda Cook that ACER 

neither had nor kept any organizational documents except the Articles of 

Incorporation, and that she was the managing agent of ACER. She also 

testified that she and Rodney had credit cards issued in the name of ACER 

that each of them then used for personal items. 

 Rodney Cook testified that ACER only had one bank account and all 

the checks Brenda endorsed went through this one account. Rodney 

claimed to know nothing about the finances of ACER and that he even let 

his wife sign his name to the tax returns. He further noted ACER puts 

nothing in writing when it does work for a customer. There was testimony 
-5- 

this has been going on since the incorporation in 2004 and the financial 

records of ACER are clearly fabricated. 

 Acts of an agent done within the discharge of her duties and within 

the scope of her authority, whether the authority is express, implied, or 

apparent, are binding on the principal. 

 In an apparent authority analysis, the acts of the principal, rather than 

the agent, are examined. 

 In the present case, ACER gave Brenda Cook the full, unchecked 

authority to run it. In addition, ACER never operated as an independent 

entity; it never had any organizational documents; never kept a system of 

checks and balances; and never kept written records of work performed for 

customers. 

 ACER appeared to exist for the purpose of allowing Brenda Cook to 

use it as a conduit for the money she was embezzling. 

(Doc. #38 at 1-2) (Citations omitted). 

{¶ 8} In directing a verdict for Mr. Cook at trial on the conversion claim, however, 

the trial court orally reasoned: 

 On the conversion claim, the Court would find that the evidence 

clearly shows that Brenda Cook committed criminal and civil violations in 

her embezzlement of money from Vienna Beauty Products. 

 The evidence does not show Mr. Cook directly participated in taking 

the money or even ask where the money was coming from which 

nevertheless permitted him to do his construction. The evidence does show 
-6- 

he benefitted from the increased funds flowing into the ACER account 

because ACER paid his personal credit card bills. The question is was that 

ACER money or Vienna money he spent because the money was comingled apparently by Ms. Cook in this one lump account. 

 While the Court has deep suspicions about the extent of Mr. Cook’s 

knowledge about this entire scenario it’s not based upon the evidence. I’m 

afraid it’s based upon the Court’s own personal experience of human 

events. 

 However, the Court must find that the Plaintiff has not established by 

a preponderance of the evidence that Roderick Cook converted the funds 

himself from Vienna nor does it show he signed any of the forged checks or 

did anything else which would allow the Court to infer that he did have direct 

knowledge and was actually participating in the conversion. 

 Therefore, the Defendant’s motion for directed verdict as to Roderick 

Cook is granted. 

(Doc. #48 at 44-45). 

{¶ 9} The trial court reiterated its findings in a final judgment entry, stating: 

 This Court found that the Defendant Roderick Cook did not directly 

participate in the embezzlement of Plaintiff’s money and that Defendant 

Roderick Cook did not inquire of Defendant Brenda Cook as to where the 

embezzled funds, which facilitated his construction work, had come from. 

This Court found that Roderick Cook benefitted from Plaintiff’s funds going 

into his business account in the name of Accurate Construction Equipment 
-7- 

Repair, LLC because the business account was used to pay Roderick 

Cook’s personal credit card bills. This Court found that embezzled funds 

were commingled by Defendant Brenda Cook into the single business 

account in the name of Accurate Construction Equipment Repair, LLC. 

While this Court is deeply suspicious as to Roderick Cook’s knowledge of 

Brenda Cook’s activities, this Court found that Plaintiff had not established 

by a preponderance of the evidence that Roderick Cook actually converted 

Plaintiff’s funds himself, did not endorse any of the forged checks or 

otherwise do anything which would allow an inference that Defendant 

Roderick Cook had direct knowledge of and was actually participating in the 

conversion of Plaintiff’s money. According, this Court finds that Roderick 

Cook is entitled to judgment on both civil conspiracy and conversion. 

(Doc. #42 at 2). 

{¶ 10} On appeal, Vienna asserts that Mr. Cook benefitted from the checks Mrs. 

Cook converted and placed in ACER’s bank account. Vienna argues that he is liable for 

conversion due to the unlawful conduct of Mrs. Cook, ACER’s agent, particularly where 

he provided no oversight or supervision and turned a blind eye toward her activities with 

respect to ACER. Under these circumstances, Vienna contends it was not required to 

prove Mr. Cook’s actual knowledge of Mrs. Cook’s conversion. For his part, Mr. Cook 

claims he cannot be held liable for conversion where he did not steal any checks and had 

no knowledge of his wife’s criminal activity. Mr. Cook additionally claims Vienna failed to 

establish with any degree of certainty that he personally benefitted from the stolen checks, 

which Mrs. Cook deposited and co-mingled with ACER’s own legitimate funds. 
-8- 

{¶ 11} As for ACER, it argues on cross appeal that it cannot be held liable for Mrs. 

Cook’s conversion because she was not acting within the scope of her employment and 

her illegal behavior was not calculated to promote ACER’s business. ACER also claims 

the record contains no evidence that it benefitted from Mrs. Cook’s co-mingling of the 

stolen checks in ACER’s business account. Alternatively, even if it did derive some benefit 

from the funds, ACER argues that it cannot be held liable for the entire amount Mrs. Cook 

converted. At most, ACER claims it should be held liable only to the extent it benefitted 

from Mrs. Cook’s activity. 

{¶ 12} Upon review, we see no error in the trial court’s entry of a directed verdict 

in favor of Mr. Cook personally. “A cause of action for conversion is founded upon ‘an 

intentional exercise of dominion or control over a chattel which so seriously interferes with 

the right of another to control it that the actor may justly be required to pay the other the 

full value of the chattel.” (Emphasis added). Hodges v. Byars, 2d Dist. Montgomery No. 

12839, 1992 WL 113027, *4 (May 28, 1992), quoting Restatement of the Law 2d, Torts 

(1965) 431, Section 222A. “Wrongful purpose or intent is not a necessary element of 

conversion; thus, a defendant is liable even if he is acting under a misapprehension or 

mistake.” Gordon v. Morris, 2d Dist. Greene No. 2000-CA-69, 2001 WL 85797, *4 (Feb. 

2, 2001). The only intent required is the intent to exercise dominion or control over the 

property. Hodges at *4. 

{¶ 13} Here we see no evidence that Mr. Cook, himself, ever intentionally 

exercised dominion or control over the checks Mrs. Cook stole from Vienna. The record 

reflects that she stole the checks in her capacity as a bookkeeper for Vienna. She then 
-9- 

deposited the stolen checks into ACER’s business account. Finally, she withdrew money 

and wrote checks from ACER’s account to pay for various things, some of which 

benefitted her personally, some of which benefitted her and her husband, and some of 

which appear to have benefitted the company. Although Mr. Cook was a signatory on the 

ACER account along with his wife, the trial court was unable to find, by the preponderance 

of the evidence, that he personally converted any funds, signed any forged checks, or 

“did anything else” to support an inference that he knew about, or participated in, his wife’s 

conversion activities. (Doc. #48 at 45). 

{¶ 14} The record supports the trial court’s conclusion. Mr. Cook testified at trial 

that his wife conducted all of their personal and business-related financial transactions. 

(Trial Tr. at 9; see also Mr. Cook depo. at 139). When money came into the ACER 

account, Mrs. Cook did “what she wanted with it” or “did with it as she pleased.” (Trial Tr. 

at 9; Mr. Cook depo. at 35). Mr. Cook never looked at bank statements or any other 

financial records. (Trial Tr. at 8). Although the Cooks both had business and personal 

credit card bills that were paid out of the ACER account, Mrs. Cook was the one 

responsible for issuing checks to pay the bills. (Id. at 15). 

{¶ 15} In short, the record supports a determination that Mrs. Cook, acting without 

Mr. Cook’s knowledge, stole checks from Vienna, deposited the checks in ACER’s 

business account, and then withdrew money to pay various expenses. On these facts, 

Vienna failed to prove, by the preponderance of the evidence, that Mr. Cook had 

knowledge of his wife’s actions, that he personally exercised dominion or control over 

Vienna’s checks or the proceeds therefrom, or that he otherwise participated in her 

conversion. Although Mrs. Cook placed the stolen checks into a business account over 
-10-

which both Cooks had authority, the record supports a finding that Mr. Cook did not 

intentionally exercise dominion or control over the converted funds. Indeed, we fail to see 

how Mr. Cook intentionally could have exercised dominion or control over something he 

did not know existed. Therefore, with respect to Mr. Cook, Vienna failed to establish the 

elements of a conversion claim. 

{¶ 16} In reaching the foregoing conclusion, we reject Vienna’s suggestion that Mr. 

Cook is liable for conversion simply because he “benefitted” from Mrs. Cook’s theft of the 

checks. At least one Ohio appellate court correctly has recognized that “benefit is not an 

element” of a conversion claim. Keybank Natl. Assoc. v. Guarnieri & Secrest, PLL, 7th 

Dist. Columbiana No. 07 CO 46, 2008-Ohio-6362, ¶ 16. Therefore, with regard to Mr. 

Cook’s liability for conversion, whether he “benefitted” from his wife’s misconduct is 

“irrelevant” to Vienna’s conversion claim.3 This is particularly true in the absence of 

evidence that he even knew about her theft of the checks. 

{¶ 17} Finally, we are unpersuaded by Vienna’s claim that Mr. Cook is personally 

liable for conversion based on his status as the sole owner of ACER, his incorporated 

construction company. In support of this proposition, Vienna relies on the following 

language from Schafer v. RMS Realty, 138 Ohio App.3d 244, 741 N.E.2d 155 (2d Dist. 

2000): 

 

3 In Keybank, the argument was that the defendants should not have been liable for 

conversion because they had not benefitted from their actions. The Seventh District 

rejected this argument, noting that a “benefit” is not an element of a conversion claim and 

that whether an alleged converter “benefitted” is irrelevant. Here Vienna argues that Mr. 

Cook should be liable for conversion because he did benefit from his wife’s actions. Just 

as in Keybank, however, Vienna’s argument fails because evidence of a “benefit” is not 

part of a conversion claim. The relevant inquiry is whether Mr. Cook intentionally 

exercised dominion or control over Vienna’s money, not whether he derived some benefit 

from Mrs. Cook stealing the checks. 
-11-

 “* * * All acts and contracts of an agent done or made within the 

discharge of his duties, and within the scope of his authority, whether that 

authority is express, implied, or apparent, are obligatory upon the principal, 

and no ratification or assent on the latter’s part is necessary to give them 

validity. * * * The principal is always liable to third persons for misfeasances 

and the omission of duty of his agent, in all cases within the scope of his 

agency, equally as for acts of his own although the agent himself is liable 

for positive wrongful acts and misfeasances committed while acting as 

agent.” 

Id. at 292, quoting Foust v. Valleybrook Realty Co., 4 Ohio App.3d 164, 446 N.E.2d 

1122 (6th Dist. 1981). 

{¶ 18} Vienna’s argument is that Mrs. Cook was a bookkeeper agent of her 

husband’s construction company, ACER. Therefore, Vienna argues that he is personally 

liable for her conversion activity, which it claims was done within the scope of her authority 

as ACER’s agent. We disagree. Notably, Schafer involved claims brought against a 

partnership and its partners for converting another partner’s interest in the partnership. 

On this issue, the members of the partnership, as principals, were found liable for the acts 

of their authorized agent, who was also a “de facto partner.” Schafer at 292. 

{¶ 19} Unlike Shafer, Mr. Cook’s construction company is not a partnership. It is a 

limited liability corporation. (Mr. Cook depo. at 28-30). For purposes of the agent-principal 

analysis in Schafer, supra, we believe the relevant potentially-liable party when a 

corporation is involved is the corporation itself, not its sole shareholder, at least absent 
-12-

grounds for disregarding the corporate form and piercing the corporate veil. 4 Thus, 

ACER, the company, may be liable for acts done by Mrs. Cook while acting as her 

husband’s bookkeeper (an issue we will address more fully below). But we are 

unpersuaded that Mr. Cook, personally, may be held liable for his wife’s conversion 

merely based on his status as ACER’s sole shareholder, particularly in light of the trial 

court’s finding that his knowledge of her tortious activity was not proven. This conclusion 

is consistent with rulings from a number of jurisdictions. Cf. Speer v. Dighton Grain, Inc., 

229 Kan. 272, 281, 624 P.2d 952, (1981) (holding that “an officer of a corporation is not 

personally liable for a conversion committed by the corporation or one of its officers 

merely by virtue of the office he holds; he must participate or have knowledge amounting 

to an acquiescence or commit a breach of duty he owes to the owner of the property 

 

4 Although the parties do not directly address piercing the corporate veil, we acknowledge 

the trial court’s findings that “ACER never operated as an independent entity” and that 

“ACER appeared to exist for the purpose of allowing Brenda Cook to use it as a conduit 

for the money she was embezzling.” (Doc. #38 at 2). If these findings were supported by 

the evidence, they would lend support to a piercing-the-corporate-veil theory. Without 

question, the evidence supports a finding that ACER’s bookkeeping and finances were in 

disarray, that some corporate formalities were not followed, and that Mr. Cook maintained 

no oversight over his wife’s work on behalf of ACER. However, we do not find support for 

the proposition that “ACER never operated as an independent entity” or that “ACER 

appeared to exist for the purpose of allowing Brenda Cook to use it as a conduit for the 

money she was embezzling.” As a threshold matter, these findings by the trial court are 

at odds with the trial court’s additional finding that Mr. Cook’s knowledge of Mrs. Cook’s 

misconduct had not been proven. In addition, the evidence establishes that ACER did

operate as an independent entity and did perform real work. Mr. Cook provided 

uncontroverted trial testimony in which he reviewed ACER’s profit-and-loss statements, 

tax returns, and other records. (See, e.g., Trial Tr. at 22-23). He also provided deposition 

testimony in which he stated that, through ACER, he earned approximately $12,000 per 

month in 2012 working as a commercial heavy-equipment-repair specialist. (Mr. Cook 

depo. at 36-37, 47). He further testified that in the past year one client, Ulliman-Schutte, 

had paid him $143,000 for his labor. (Id. at 181). In light of this uncontroverted testimony, 

ACER plainly maintained some level of an existence and a purpose separate and apart 

from facilitating Mrs. Cook’s theft from Vienna. 
-13-

before he will be held liable”); Air Traffic Conference of Am., a Div. of Air Transp. Ass’n 

of Am. v. Marina Travel, Inc., 69 N.C. App. 179, 182, 316 S.E.2d 642 (1984) (“The plaintiff 

has also offered no evidence that would indicate that the defendant should be held liable 

on the basis of her officer status. Under North Carolina law, an officer cannot be held 

individually liable for the tortious conversion of property by the corporation or other 

corporate agents in the absence of her participation therein.”); Airlines Reporting Corp. v. 

Pishvaian, 155 F. Supp. 2d 659, 666-67 (E.D. Va. 2001) (“Under Virginia law, an officer 

or director of a corporation is liable only for those intentional torts he or she commits or 

authorizes on behalf of the corporation. Although plaintiff need not show that defendant 

personally benefitted from the conversion, plaintiff must establish that defendant 

participated in, ratified, or otherwise authorized the conversion. * * * [I]mposing liability 

on defendant on the basis of the existing record would be tantamount to holding corporate 

officers liable for conversion committed by the corporation acting through its employee 

merely because the officer negligently hired or supervised the errant employee. No 

Virginia case supports imposing liability on a corporate officer, director, or sole 

shareholder in these circumstances.”); Am. Feeds & Livestock Co. v. Kalfco, Inc., 149 

A.D.2d 836, 837, 540 N.Y.S.2d 354 (1989) (“[O]fficers or directors may not be held liable 

simply on the basis of their authority[.] * * * [T]here must be evidence that Caroline Holman 

knowingly fostered the conversion or was aware of the conversion and declined to 

exercise her ability to set it right.”); Universal Lending Corp. v. Wirth Companies, Inc., 392 

N.W.2d 322, 326 (Minn. Ct. App. 1986) (“An officer of a corporation may be liable for the 

corporation’s conversion of another’s property if the officer actually participated in the 

tortious transaction.”). 
-14-

{¶ 20} Finally, we are unpersuaded by Vienna’s citation to First Nat’l Bank of New 

Bremen v. Burns, 88 Ohio St. 434, 103 N.E. 93 (1913), which Vienna claims controls the 

outcome regarding Mr. Cook’s liability for conversion. Having reviewed the case, we 

conclude that, if anything, it supports our finding of no liability on Mr. Cook’s part. In New 

Bremen, the defendant was the president and active manager of the plaintiff bank. In that 

capacity, he sold and discounted notes to the bank. In so doing, he acted personally for 

himself, as endorsee, and also for the bank, as its president and manager. Id. at 93-94. 

Under these circumstances, the bank was an innocent holder in due course unless the 

knowledge of the defendant as to what he had done could be imputed to the bank. Id. at 

94. Because the defendant effectively wore two hats and handled both sides of the 

transaction, the Ohio Supreme Court held that his knowledge about the transaction could 

be imputed to the bank. The court applied the general rule that “the acts and knowledge 

of [the defendant], as president and active manager of the bank and hence its agent in 

purchasing notes from [the defendant] the individual, become and are the acts and 

knowledge of the bank.” Id. at 94. The court found application of this rule particularly 

appropriate because “[the defendant] as manager of the bank cannot unknow what [the 

defendant] the man all the while knew.” Id. at 95. The New Bremen court also stressed 

that the dispute before it involved contract law, not tort law, and explained: “Manifestly, in 

a case sounding in tort there would be no presumption in law that the wrongful act of the 

agent was the act of the principal unless actual authority to do the act was proven or a 

subsequent ratification after all the facts and circumstances of the act were known. No 

man is presumed to do wrong. There is in fact, in law, and in good morals a reason for 

the distinction that there may not be that legal identity between principal and agent in a 
-15-

case of tort that there is in a case of contract.” Id. at 95. 

{¶ 21} New Bremen bears no similarity to Vienna’s argument regarding Mr. Cook’s 

personal liability, as opposed to ACER’s liability, based on the actions of his wife. Even 

setting aside the contract-tort distinction drawn in New Bremen, Vienna’s assignment of 

error is not seeking to hold ACER liable for conversion on a theory that Mrs. Cook, the 

bookkeeper agent of ACER, and Mrs. Cook, the private tortfeasor, necessarily had the 

same knowledge regarding her conversion of Vienna’s funds into ACER’s account. If that 

were the argument under Vienna’s assignment of error on appeal, New Bremen would 

bear some similarity to the facts before us. But it is not. Rather, Vienna argues in its 

appeal that because Mrs. Cook was ACER’s sole bookkeeper agent, her knowledge 

regarding her tortious activity necessarily is imputed to Mr. Cook personally. We do not 

believe a fair reading of New Bremen supports this conclusion, which is contrary to our 

analysis above. 

{¶ 22} For the foregoing reasons, we overrule Vienna’s sole assignment of error 

alleging that the trial court erred in entering a directed verdict for Mr. Cook personally on 

Vienna’s conversion claim. 

{¶ 23} We turn next to ACER’s cross-appeal from the trial court’s entry of summary 

judgment against it on Vienna’s conversion claim. ACER asserts that it is not liable 

because Mrs. Cook was not acting as its agent when she “laundered the stolen money” 

through its bank account. More specifically, ACER argues: 

 * * * The stolen assets were never entered into the books of ACER. 

[Mrs.] Cook’s theft of the funds and laundering of the funds through the 

ACER account had no relevance or benefit to the operation of ACER. While 
-16-

there has been speculation that ACER benefitted from the comingling of the 

funds, no evidence was submitted to substantiate such a theory. Vienna 

Beauty submitted no evidence that attempted to segregate or account for 

which funds, if any, benefitted ACER. The trial court also erred by holding 

ACER liable for the entire amount stolen by [Mrs.] Cook. At best, ACER 

would be liable for the amount that [it] actually benefitted from [Mrs.] Cook’s 

conduct. However, ACER is not liable for the intentional and criminal acts 

of its agent when such conduct was not within the scope of her authority or 

calculated to promote the business of ACER. 

(Brief of cross-appellant ACER at 13). 

{¶ 24} Upon review, we see no error in finding ACER liable for conversion based 

on Mrs. Cook’s actions. The record reflects that Mr. Cook was the sole owner and officer 

of ACER. His wife was the only other person affiliated with the company. Mr. Cook 

delegated to Mrs. Cook “all” authority to serve as an agent of the company and to perform 

all bookkeeping tasks, which included receiving and issuing bills and checks. (Doc. #48, 

Trial Tr. at 15, 25). The trial court correctly found, based on the evidence presented, that 

Mr. Cook, in his capacity as sole owner and officer of ACER, “gave [Mrs.] Cook full, 

unchecked authority to run it.” (Doc. #38 at 2; Mrs. Cook depo. at 28). Mrs. Cook, alone, 

endorsed the fraudulent checks drawn on Vienna’s account and admittedly deposited all 

of the stolen funds into ACER’s one-and-only bank account. (Doc. # 48, Trial Tr. at 16, 

31, 39; Mrs. Cook depo. at 14-15). She also admittedly signed and deposited into ACER’s 

business account all of Vienna’s customer’s checks that she intercepted before changing 

the payee from Vienna to ACER. (Doc. #48, Trial Tr. at 34; Mr. Cook depo. at 14-15, 19). 
-17-

{¶ 25} As a result of Mrs. Cook’s actions, it is indisputable that ACER intentionally 

exercised the requisite “dominion or control” over the converted checks. Indeed, in her 

role as a bookkeeper-agent for ACER, Mrs. Cook deposited all of those checks into 

ACER’s bank account. Regardless of whether Mrs. Cook’s knowledge of the 

wrongfulness of her conduct can be imputed to ACER, “[w]rongful purpose or intent is not 

a necessary element of conversion; thus, a defendant is liable even if he is acting under 

a misapprehension or mistake.” Gordon v. Morris, supra, at *4. In any event, at least one 

Ohio court has found that a corporation may be liable for conversion even if its agent acts 

with a criminal intent. Wilson Freight Forwarding Co. v. Cleveland C. & C. Highway, Inc., 

74 Ohio App. 54, 57 N.E.2d 796 (1st Dist.1943) (upholding a conversion finding against 

defendant corporation where one of its agents intentionally took plaintiff’s cargo to 

defendant’s dock, reasoning that the agent’s “motive—innocent or even praiseworthy in 

one sense—or culpable or even criminal—is immaterial”). Again, the only “intent” required 

is the intent to exercise dominion or control over the funds. Hodges v. Byars, supra, at *4. 

Here, Mrs. Cook, an authorized bookkeeper agent of ACER, intentionally placed checks 

stolen from Vienna into ACER’s bank account. Therefore, we conclude that ACER can 

be held liable in civil conversion on the basis that, acting through its agent, it intentionally 

exercised dominion or control over the funds at issue.5 ACER’s assignment of error on 

cross appeal is overruled. 

{¶ 26} Based on the reasoning set forth above, the judgment of the Miami County 

Common Pleas Court is affirmed. 

 

5 We express no opinion as to whether Mrs. Cook may be liable to ACER for the civil 

judgment that her conduct enabled Vienna to obtain against ACER. That issue is not 

before us. 
-18-

. . . . . . . . . . . . . 

DONOVAN, J., and WELBAUM, J., concur. 

Copies mailed to: 

Barry W. Mancz 

Cynthia L. Westwood 

Robert J. Huffman, Jr. 

Andrew R. Pratt 

Miami County Common Pleas Court