FDL Marine Dba Edgewater Marina v. Picklo
| Decision Date | 25 October 2013 |
| Docket Number | No. 2013 CVI 12422.,2013 CVI 12422. |
| Citation | 6 N.E.3d 698 |
| Parties | FDL MARINE dba Edgewater Marina, Plaintiff v. Glenn PICKLO, Defendant. |
| Court | Ohio Court of Common Pleas |
OPINION TEXT STARTS HERE
JUDGMENT ENTRY
This case was called for a Small Claims trial on September 13, 2013 before Magistrate William F.B. Vodrey. Plaintiff's president, Joseph Anderson, and office manager, Anne McCarthy, and defendant all appeared and were duly sworn in to testify. Plaintiff is a corporation; its representatives waived counsel.
Magistrate Vodrey's decision, including findings of fact and conclusions of law, is hereby approved and confirmed.
Plaintiff has failed to prove its case by a preponderance of the evidence. Judgment for defendant on the complaint at plaintiff's costs.
This is a case about a disputed charge for the towing of a boat in a Lake Erie marina. The evidence at trial showed that plaintiff is a management company which runs Edgewater Marina in Cleveland, under contract with the Ohio Department of Natural Resources, a state agency. In 2011, defendant entered into a contract with plaintiff to moor his powerboat Mellow Yellow in the marina. Neither party submitted the contract at trial, but both agreed that it existed.
On October 29, 2012, Hurricane Sandy hit the Cleveland area with much greater force than anyone predicted. Plaintiff's office manager, Anne McCarthy, described it as a “horrible freak storm ... [and a] catastrophic affair.” High winds and heavy surf destroyed or sank about half of the sixty boats in the marina and damaged another ten, among them defendant's boat, which fortunately was only lightly damaged. The marina was filled with debris and some of its docks were ruined.
Plaintiff arranged for many of the wrecked or damaged boats to be removed three days later, on November 1, 2012. Many owners were there, some of whom were very upset about the loss or condition of their boats. Three of plaintiff's staff towed defendant's boat less than 500 feet to a ramp for removal from the water. Although defendant, who was there at the time, told them he was ready and willing to undertake the tow himself, they refused. Defendant then accepted his powerboat from them, put it on his pickup truck's trailer at the ramp and drove it away, never to return. The marina cleanup took another two or three days, and all sunken or damaged boats were eventually removed.
On November 15, 2012, plaintiff sent defendant a bill for salvage, towing and labor fees totaling $404.06. Defendant did not pay. Plaintiff later sent three reminders by mail, but defendant, believing he owed nothing, still did not pay. Plaintiff imposed interest and monthly administrative fees, and in time filed this lawsuit.
Defendant testified that he had owned Mellow Yellow, his 1975 Sea Ray 20–foot powerboat, for about six years by the time the storm hit. He spoke with McCarthy personally on November 1, 2012, although she did not remember having done so at the time of trial. Plaintiff testified that he was at the marina about four hours that day, and could easily have removed his boat without getting in the way of plaintiff's general cleanup effort. Although the boat's battery was dead, he had a portable generator and could have immediately jumpstarted it. (Plaintiff's witnesses did not disagree with defendant's testimony on these points). Defendant was never told, either in his contract, by McCarthy or by any of plaintiff's other staff, that he would be charged for the Mellow Yellow 's short tow.
Plaintiff now seeks $801.15, for unpaid salvage, towing, labor and monthly administrative fees.
At trial, a court must determine the credibility of witnesses and the weight to be given the evidence. In re Lieberman (1955), 163 Ohio St. 35, 125 N.E.2d 328;Bowlin v. Black & White Cab Co. (1966), 7 Ohio App.2d 133, 219 N.E.2d 221. The quality of evidence is more important than its quantity. If trial testimony or other evidence is in conflict, the court must decide which to believe, and which to disbelieve. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. All of the witnesses were generally credible.
As noted above, although the parties agreed that they had a contract, it was not submitted at trial. Plaintiff did, however, submit a document headed “Additional Terms, Requirements, Rules & Regulations.” Defendant did not dispute that the document, apparently an addendum to the contract, was relevant or applicable, although it did not bear his signature. Paragraph 4 of the document provides, in pertinent part, “The marina ... reserves the right to relocate boats ... to any area of the marina ... as it deems necessary and/or appropriate.” An earlier part of that paragraph refers to billing customers for “any boats found not appropriately secured,” but there was no testimony that this was applicable to defendant.
The addendum's paragraph 10 refers to billing for services provided in “emergency situations,” but the testimony made it clear that the emergency of Hurricane Sandy had passed by the time, three days later, that defendant removed the Mellow Yellow from the marina. Paragraph 10 further provides, “Notwithstanding any efforts by Edgewater Marina personnel, the boat owner is solely responsible to take all emergency action and/or means possible (including the...
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