Loretta M. Tabar v. Charlies Towing Service, Inc.
| Decision Date | 24 March 1994 |
| Docket Number | 94-LW-3765,64881 |
| Parties | LORETTA M. TABAR, Plaintiff-Appellant v. CHARLIES TOWING SERVICE, INC., ET AL., Defendants-Appellees |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. CV-212213.
For Plaintiff-Appellant: JAMES A. DeROCHE, Ulmer & Berne, Bond Court Building, 1300 East 9th Street, Suite 900, Cleveland Ohio 44114-1583.
For Defendant-Appellee Fabrizi Trucking & Paving Co.: FREDERICK D. KANTER, 27600 Chagrin Boulevard, Suite 360, Cleveland Ohio 44122.
Plaintiff-appellant Loretta M. Tabar ("Tabar") timely appeals from a December 11, 1992 journal entry and opinion finding in favor of defendant-appellee Fabrizi Trucking and Paving Co., Inc. ("Fabrizi, Inc.") with respect to Tabar's claims for conversion, breach of contract and negligence. Tabar originally brought the within action against only Emilio Fabrizi[1], who is the major shareholder of Fabrizi, Inc., and against Charlie's Towing Service, Inc. Thereafter, Tabar voluntarily dismissed her complaint against Charlie's Towing Service, Inc. and the court granted Emilio Fabrizi's motion to join Fabrizi, Inc. as a co-defendant. The trial court later dismissed Emilio Fabrizi from the case sub judice. Thus, Tabar and Fabrizi, Inc. are the only parties to the within action.
Tabar is the owner of a 1979 GMC Royal Classic eighteen-wheel semi truck and one of the few women certified to drive such vehicles interstate. In January of 1989, Tabar deposited her vehicle for regular maintenance with a company known as QIF ("QIF") which was not a party to the case sub judice. At this time, QIF was the tenant of Fabrizi, Inc. from whom QIF leased its business premises, i.e., QIF and Fabrizi, Inc. were not in business together but merely landlord and tenant.
Tabar routinely placed her vehicle with QIF for regular maintenance. However, she chose to place the vehicle for maintenance in January, 1989, specifically because she sustained a back injury the previous month and was ordered by her physician not to drive. Tabar's injury subsequently prevented her from periodically inspecting her vehicle maintained in the custody of
In June, 1989, however, Tabar was told by her physician she could return to work if she had special air bags installed in the vehicle. Thereafter, Tabar and QIF entered into an express agreement whereby QIF would make the necessary repairs on her vehicle after which Tabar would tender payment to QIF.
In September of 1989, Tabar returned to the QIF premises a second time where she again entered into an oral agreement by which QIF would place her vehicle into indoor storage for the winter and make necessary repairs on the vehicle. Tabar was accompanied by Barb Margraff ("Margraff") who assisted her in taking some personal items from the vehicle. At this time, Tabar and Margraff found the vehicle in the same good condition it was when Tabar originally brought the vehicle into QIF.
In October of 1989, QIF breached its lease with Fabrizi, Inc. and absconded during the night owing Fabrizi, Inc. thousands of dollars in rent. Thereafter, Charlie's Towing Service, Inc. took possession of the premises abandoned by QIF and became Fabrizi, Inc.'s tenant.
After QIF abandoned the property, Emilio Fabrizi, without Tabar's knowledge or consent, authorized Charlie's Towing Service to tow Tabar's vehicle to another lot owned by Fabrizi, Inc. Thereafter, Emilio Fabrizi never attempted to notify Tabar or anyone else that the vehicle had been moved even though the truck was clearly marked with an identification number, the name Central Transport," the phrase "Lorrie Tabar, Bay Village, Ohio, owner-operator," and possessed two valid and "active" license plates. In addition, Emilio Fabrizi never notified police that he was in possession of the vehicle.
In April, 1990, Tabar, who was still unaware her vehicle had been moved, entered into an agreement with Mark Kassloff ("Kassloff") for the sale of the vehicle. Kassloff offered to buy the vehicle for the sum of $19,800.00 and Tabar agreed to accept this amount for the sale of the vehicle. Kassloff thereafter went to inspect the vehicle, discovered it was missing and subsequently informed Tabar of this fact. Tabar then contacted the owner of Charlie's Towing Service who told her someone had towed the vehicle from the lot but he did not tell Tabar where the vehicle could be found.
Tabar subsequently reported her vehicle stolen to the Middleburg Heights Police Department. The police referred her to Fabrizi, Inc. Tabar then contacted Fabrizi, Inc. in May of 1990 and was initially told by Emilio Fabrizi that he would not release the vehicle until Tabar paid the towing and storage charges due Fabrizi, Inc. Emilio Fabrizi did not immediately quote Tabar the amount due for towing and storage but, rather, told her to call him back in a week or ten days. Thereafter, Emilio Fabrizi continued to stall Tabar who was unable to engage him in conversation for approximately six to eight weeks. During this time, Tabar was unable to secure a release of her vehicle and it is still being held by Fabrizi, Inc. for towing and storage fees although Fabrizi, Inc. never presented Tabar with a bill.
On June 5, 1991, Tabar filed her complaint in Common Pleas Court. Fabrizi, Inc. filed a counter-claim to recover the cost of towing and storage fees. The action was referred to arbitration and approximately one year later on May 5, 1992, the arbitrators issued a report and award which found in favor of Tabar. Thereafter, Fabrizi, Inc. appealed the report of the arbitrators to the Court of Common Pleas and requested a trial de novo.
In the interim, appellant inspected her vehicle accompanied by others who took photographs which were introduced into evidence at the arbitration hearing and at trial. Appellant noted serious damage to the vehicle including, inter alia, a complete set of tires was missing from the vehicle, the driver's window was knocked out, the grill was smashed and paint was chipped and faded. The truck was later appraised and found to have a value of only $1,500.00 due to the damage.
On September 22, 1992, a bench trial de novo was had in the Common Pleas Court. The trial court issued separate findings of fact and conclusions of law. These are summarized as follows:
The instant timely appeal followed.
Appellant's assignments of error I and II shall be considered together and follow:
These assignments have merit.
In the case sub judice, appellant raises only questions of law with respect to the Common Pleas Court's finding that Fabrizi, Inc. did not convert her vehicle but, instead, entered into an implied bailment agreement with Tabar.
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; Ohio Tel. Equip. & Sales, Inc. v. Hadler Realty Co. (1985), 24 Ohio App.3d 91. 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. Hadler Realty, supra. 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.
On appeal of the case sub judice, the parties do not dispute Fabrizi, Inc. exerted dominion and control over Tabar's vehicle or that Tabar demanded its return from Fabrizi, Inc. and Fabrizi, Inc. refused to deliver until appellant paid undetermined storage and towing fees. Tabar and Fabrizi, Inc., rather, dispute whether Fabrizi Inc.'s acquisition of Tabar's vehicle was a wrongful or unlawful exercise of control over Tabar's...
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