Kraft Constr. Co. v. Cuyahoga Cty. Bd. of Commrs., 72095

• Court: United States Court of Appeals (Ohio)
• Citation: 713 N.E.2d 1075,128 Ohio App.3d 33
• Docket Number: No. 72095,72095
• Parties: KRAFT CONSTRUCTION COMPANY, Appellant and Cross-Appellee, v. CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al., Appellees and Cross-Appellants. * Eighth District, Cuyahoga County
• Decision Date: 26 May 1998

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128 Ohio App.3d 33 713 N.E.2d 1075 KRAFT CONSTRUCTION COMPANY, Appellant and Cross-Appellee,
v.
CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al., Appellees and Cross-Appellants. ^* No. 72095. Court of Appeals of Ohio, Eighth District, Cuyahoga County. Decided May 26, 1998.

[713 N.E.2d 1078] Thomas G. Lobe, Cleveland, for appellant and cross-appellee.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Saundra Curtis-Patrick and Ronald K. Riley, Assistant Prosecuting Attorneys, Cleveland, for appellees and cross-appellants.

PORTER, Presiding Judge.

Plaintiff-appellant/cross-appellee Kraft Construction Company ("Kraft") appeals from a directed verdict in favor of defendants-appellees/cross-appellants Cuyahoga County Board of Commissioners and the Sanitary Engineering Division of the County Department of Community Services (collectively "the county") arising out of Kraft's claims that the county was liable in conversion and trespass for its use of a sewage pumping station constructed by Kraft. The county cross-appeals contending that the trial court erred in awarding damages for unjust enrichment to Kraft against the manifest weight of the evidence and in its rulings on the admission of evidence and instructing the jury. We find no reversible error and affirm the judgment below.

[713 N.E.2d 1079] This case originated when Kraft filed suit against the county in September 1995, alleging trespass, conversion, and unjust enrichment in connection with the county's use and maintenance of the Glen Eden pump station constructed and owned by Kraft in Highland Heights. Kraft requested injunctive relief to prevent the county from continuing to use the pump station as part of its sewage system. The court denied this request, and the parties agreed to maintain the

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status quo until the case was resolved. The evidence at trial revealed the following matters.

Kraft purchased undeveloped land in Highland Heights in the late 1980s for the purpose of developing it into one hundred thirty sublots for single-family homes in the Glen Eden subdivision. Highland Heights imposed requirements for sanitary sewer connections and access to utilities for subdivision development. Kraft hired CT Consultants, an engineering firm, to act as intermediaries with Highland Heights and the county sanitary engineer. There were numerous meetings and extensive discussions between and among the interested parties regarding how the new development would fit in the Highland Heights/county sanitary sewer system.

CT Consultants developed a plan and made presentations to the county sanitary engineer and Highland Heights, submitting four alternative proposals regarding how the development could tie into the sanitary sewer system. At some point it was determined that the Franklin pump station, which had been built in 1960 and was already servicing three hundred forty existing homes in the vicinity of the new development, was inadequate to handle the additional flow to be generated by the homes in the proposed new subdivisions. Kraft was advised by the county that the new Glen Eden pump station would have to be provided, at Kraft's expense, in order to obtain approval for development of the subdivision.

In March 1988, CT Consultants sent a letter to the county, proposing to build the Glen Eden pump station on a parcel of land owned by Kraft in order to service the lots in the new subdivisions and the existing customers serviced by the Franklin pump station. Kraft proposed to use the eight-foot Franklin force main and to eliminate the Franklin pump station, which had overflow problems. The preliminary estimated cost for the new pump station to serve the proposed lots was $380,000. This proposal was approved by the county and Highland Heights.

It was at all times understood by the parties that the county sanitary engineer would operate and maintain the pump station as it did thirty-eight other pump stations in Cuyahoga County. Kraft was promised the right to remove the pumps, generators, controls, and other personal property items inside the Glen Eden pump station (known as "salvage rights") when its use was eliminated by construction of gravity sewers down Highland Road. There was evidence that the Highland Road gravity sewers would eliminate the need for the new Glen Eden pump station. Plaintiff's evidence indicated that new gravity sewers were projected for construction in 1994. After the new Glen Eden pump station went on line, ownership was to be transferred by warranty deed to the county, which would take over the operation and maintenance.

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Over two years passed from the completion of the Glen Eden pump station (January 1991) and despite numerous conversations and letters exchanged between the parties, a written operating and maintenance agreement and warranty deed were not executed. During this period, the county operated and maintained the new pump station, but the real estate taxes on the parcel where the pump station was located remained unpaid and were billed to Kraft, which owned the fee. Kraft was advised that the county would not accept transfer of the property until all real estate taxes were paid.

On July 15, 1992, Kraft returned an executed Glen Eden pump station agreement to the county, but the county refused to execute the agreement due to the unpaid real estate taxes. Eventually, the county treasurer initiated a foreclosure action seeking payment of the delinquent real estate taxes. Kraft paid the delinquent real estate taxes and costs of the foreclosure litigation (totaling $12,000) and filed the instant action against the county.

[713 N.E.2d 1080] The case proceeded to trial before a jury. At the conclusion of Kraft's case, the court granted the county's directed verdict motion on the trespass and conversion claims. The trial court allowed the case to continue to be heard by the jury. At the end of all the evidence, the trial court advised the parties that although the quasi-contract claim was equitable in nature, he was going to submit the case to the jury in an advisory capacity. The parties did not object to this procedure.

The jury returned a unanimous verdict for Kraft on the unjust enrichment count for $512,000. The court subsequently issued its findings of fact and conclusions of law generally consistent with the jury's advisory verdict. The court awarded unjust enrichment damages of $306,594 to Kraft; ordered the real estate transferred to the county, subject to Kraft's salvage rights on abandonment that it valued at $200,000; and required the county to disgorge the real estate taxes paid by Kraft since January 1990 with ten percent interest. Kraft filed a timely appeal from the court's directed verdict ruling on the conversion and trespass issues. The county defendants cross-appealed on the court's decision awarding damages to plaintiff for unjust enrichment.

This timely appeal and cross-appeal ensued.

Kraft's sole assignment of error states as follows:

"Whether the trial court erred to the prejudice of the appellant-plaintiff by entering a directed verdict in favor of defendants on count two of the complaint alleging conversion and trespass."

Civ.R. 50(A) provides in pertinent part as follows:

"(4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most

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strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

A motion for directed verdict requires the trial judge to construe the evidence most strongly in favor of the party against whom the motion is directed. The motion should be sustained only if reasonable minds can come to but one conclusion, and the conclusion is adverse to the nonmoving party. Wise v. Timmons (1992), 64 Ohio St.3d 113, 592 N.E.2d 840. Where reasonable minds may reach differing conclusions, the motion must be denied. Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 592 N.E.2d 828.

This court outlined the essential elements of conversion as follows in Tabar v. Charlie's Towing Serv., Inc. (1994), 97 Ohio App.3d 423, 427-428, 646 N.E.2d 1132, 1136:

"Conversion is the wrongful control or exercise of dominion over property belonging to another inconsistent with or in denial of the rights of the owner. Bench Billboard Co. v. Columbus (1989), 63 Ohio App.3d 421, 579 N.E.2d 240; Ohio Tel. Equip. & Sales, Inc. v. Hadler Realty Co. (1985), 24 Ohio App.3d 91, 24 OBR 160, 493 N.E.2d 289. In order to prove the conversion of property, the owner must demonstrate (1) he or she demanded the return of the property from the possessor after the possessor exerted dominion or control over the property, and (2) that the possessor refused to deliver the property to its rightful owner. Id. The measure of damages in a conversion action is the value of the converted property at the time it was converted. Brumm v. McDonald & Co. Securities, Inc. (1992), 78 Ohio App.3d 96, 603 N.E.2d 1141."

Kraft alleged that the county converted the Glen Eden pump station to its own use. However, there was substantial evidence adduced during plaintiff's case that it was the understanding of the parties throughout their relationship that the new Glen Eden pump station would be turned over to, and operated and maintained by, the county after it was built by Kraft.

It is undisputed that the station was operated and maintained by the county after it came on line in January 1991, with the acquiescence,[713 N.E.2d 1081] if not consent, of Kraft. Thomas Ackerman, Kraft's principal, testified that Kraft did not pay any expenses for operation, repair, or maintenance at the pump station after it became operational...