Ohio Telephone Equipment & Sales, Inc. v. Hadler Realty Co.

• Decision Date: 02 May 1985
• Docket Number: No. 83AP-1195,83AP-1195
• Citation: 24 Ohio App.3d 91,493 N.E.2d 289,24 OBR 160
• Parties: , 24 O.B.R. 160 OHIO TELEPHONE EQUIPMENT & SALES, INC., Appellant, v. HADLER REALTY COMPANY, Appellee.
• Court: Ohio Court of Appeals

Page 91

24 Ohio App.3d 91

493 N.E.2d 289, 24 O.B.R. 160

OHIO TELEPHONE EQUIPMENT & SALES, INC., Appellant, v. HADLER REALTY COMPANY, Appellee.

No. 83AP-1195.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 2, 1985.

Syllabus by the Court

1. Conversion is any exercise of dominion or control wrongfully exerted over the personal property of another in denial of or under a claim inconsistent with his rights.

2. In the absence of some specific legal duty to deliver or forward the property in question, some affirmative act on the part of the defendant is usually required to constitute a conversion.

3. A demand and refusal in a conversion action are usually required to prove the conversion of property otherwise lawfully held.

4. In an action for conversion, demands on the defendant by the plaintiff for the return of the property in question prior to the defendant's exercise of dominion over the property are ineffective; hence, in order to prevail, it is necessary for the plaintiff to renew his demand on the defendant once the defendant has exercised dominion over the property.

Tudor, Cloud & Cesner, Columbus, George C. Georgeff, Worthington, and John M. Nicholson, for appellant.

Vorys, Sater, Seymour & Pease and Terry M. Miller, Columbus, for appellee.

STRAUSBAUGH, Judge.

Plaintiff, Ohio Telephone Equipment & Sales, Inc., appeals from the judgment of the Franklin County Municipal Court in favor of defendant, Hadler Realty Company, and raises the following single assignment of error:

"Given the specific facts of this case, the trial court erred in ruling that the appellant was required to make an additional demand for the return of the property in question after the appellee had regained actual possession of the premises."

Plaintiff filed a complaint against defendant on April 27, 1983, charging that defendant had converted to its own use certain telephone equipment leased by plaintiff to the Walter-Cooper Corporation ("WCC"), a tenant in defendant's building at 2000 West Henderson Road. Plaintiff alleged that WCC had failed to abide by the lease agreement for the telephone equipment and that a judgment had been obtained in the Franklin County Municipal Court for damages and return of the phones. On three separate occasions, plaintiff claimed it demanded the return of the telephones from defendant as the owner of the office which WCC leased and where the phones were installed, but defendant refused. Therefore, plaintiff asked for damages as a result of defendant's conversion of the phone equipment, for the reasonable rental value of the equipment and the value of the telephones as installed. Defendant, in its answer, admitted that several demands had been made in the past for the return of the telephone equipment purportedly located in the premises leased to WCC, but denied that it had converted the property to its own use.

The case was brought to trial before the court on October 21, 1983; and, after listening to the testimony presented, the court ruled in favor of defendant on plaintiff's complaint.

The record of the proceedings at trial reveals that WCC had entered into a lease agreement with defendant for office space at 2000 West Henderson Road. Testimony from Joseph Webber, Executive Vice-President of Hadler Realty Company in charge of management and leasing, indicated that WCC had failed to pay rent from at least June 1982, and that in March 1983 defendant considered the lease in default and took control of the premises in an attempt to find a new tenant. He testified that defendant was aware of the five phones located in the office rented to WCC and that he had been contacted on at least three occasions, beginning in September 1982, by plaintiff demanding the return of the phones. No demand was made, however, after March 1983. Webber also testified that defendant made it known to plaintiff that the equipment was available after it had taken possession of the premises in March 1983, but that defendant received no response. He further testified that he received a copy of the judgment acquired by plaintiff against WCC in December 1982, stating that plaintiff was entitled to the " * * * properties set forth in the lease agreement * * *." Finally, in September 1983, defendant removed the phones from the premises and placed them in storage.

Charles Robert Keeley, an officer for plaintiff, testified that numerous attempts had been made in 1982 to contact WCC concerning the phone equipment and its past-due rental payments, but that no one could be located. He claimed that defendant was then notified and asked to return the phones, but that defendant refused. He did not indicate that a demand was made for a return of the phones after March 1983.

At the close of the trial, the court rendered its decision orally from the bench and concluded that, because no new demand was made after defendant took possession of the property in March 1983, plaintiff was not entitled to a judgment. The demands made before March 1983 were ineffective because WCC was not considered in default or had not been evicted, so defendant did not have possession of the property or exercise dominion over it. The trial court also concluded that the previous demands did not continue and that plaintiff was required to reassert its demand for the return of the phones once defendant came into possession of the equipment. The trial court specifically stated:

"I would decide for plaintiffs [sic] otherwise than on the notice. I think you have to make a new demand, and I don't think you did. I don't think the demand continues because the demand falls on deaf ears. * * * "

The trial court further found that, although defendant could have obtained possession of the premises at an earlier date, it was not compelled to do so.

In support of its appeal, plaintiff argues that a further demand was not necessary for return of the telephone equipment...