Stamatopoulos v. All Seasons Contracting, Inc.

[Cite as Stamatopoulos v. All Seasons Contracting, Inc., 2020-Ohio-566.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

EVANGELOS STAMATOPOULOS, :
ET AL.
:
Plaintiffs-Appellants/
Cross-Appellees, :
Nos. 107783 and 107788
v. :

ALL SEASONS CONTRACTING, INC. :
ET AL.,
:
Defendants-Appellees/
Cross-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART
RELEASED AND JOURNALIZED: February 20, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-12-785907 and CV-12-795314

Appearances:

Thrasher, Dinsmore & Dolan, L.P.A., Mary Jane Trapp,
and Ezio A. Listati, for appellants/cross-appellees.

John M. Manos Co., L.P.A., and John M. Manos, for
appellees/cross-appellants.
RAYMOND C. HEADEN, J.:

Plaintiffs-appellants/cross-appellees Evangelos Stamatopoulos

(“Stamatopoulos”) individually, and as managing member of Lightning Capital

Holdings, L.L.C. (“Lightning”) (collectively “Appellants”), appeals from the

September 12, 2018 journal entry clarifying an August 26, 2015 final entry of

judgment in favor of defendants-appellees/cross-appellants Nikolas and Marika

Fourtounis, trustees of the Nikolas and Marika Fourtounis Living Trust (collectively

“the Fourtounises”). The Fourtounises and defendants-appellees Mark Fourtounis

(“Mark”), All Seasons Contracting, Inc., and Global Outdoor Solutions, L.L.C.

(“Global”) (collectively, “Appellees”) filed a cross-appeal. For the reasons that

follow, we affirm in part, and vacate in part.

Procedural and Substantive History

The instant appeal is the result of protracted litigation dating back to

June 2012. The underlying dispute arose out of a deteriorated relationship, and a

convoluted set of business deals involving multiple individuals and entities. The

following factual history was set forth in Stamatopoulos v. All Seasons Contr., 2018-

Ohio-379, 104 N.E.3d 1001 (8th Dist.) (“Stamatopoulos II”):

The record reflects that prior to the filing of [the underlying] case, Mark
operated contracting, painting, and landscaping companies known as
All Seasons Contracting and Painting, Inc., All Seasons Contracting and
Landscaping, Co., and All Seasons Contracting, Inc. (collectively “All
Seasons”). During his operation of the All Seasons businesses, Mark
purchased vehicles and specialized equipment for bridge painting,
bridge resurfacing, and landscaping. Mark personally guaranteed the
debt for these purchases, and Fifth Third Bank had a security interest
in the assets. In 2010, the All Seasons companies began to struggle,
and Fifth Third demanded repayment on All Seasons’ outstanding loan
balance in the amount of $1,200,000. As a result of the demand, both
All Seasons and Mark, personally, filed for bankruptcy.

In the midst of his bankruptcy proceedings, Mark’s personal friend,
[Stamatopoulos], agreed to purchase the assets of All Seasons for
$220,000 [pursuant to an Asset Purchase Agreement] and the
bankruptcy court issued an order transferring possession of the
equipment to Stamatopoulos free and clear from all other
encumbrances.

In order to pay the $220,000 for the equipment, Stamatopoulos
pledged his New York City apartment as collateral. However,
Stamatopoulos was not permitted to take out a second mortgage on the
apartment and had to pay its outstanding balance of $31,452 before he
could use it as collateral. The record reflects that Mark’s parents, the
Fourtounises, agreed to loan Stamatopoulos funds to satisfy his
outstanding loan. The Fourtounises allege that they advanced “an
additional $76,249 for funds to repair the equipment and an additional
$39,440 to cover business expenses and interest on the purchase
money loan.”

Lightning Capital Holdings was formed to take title of the assets after
the bankruptcy sale closed. Stamatopoulos testified that he was the
sole owner of Lightning Capital Holdings and that Mark’s
responsibilities with the company included locating all of the
equipment that Stamatopoulos had purchased in the bankruptcy
proceedings, preparing the equipment for use, and moving the
equipment to a warehouse owned by Mark’s brother. Mark, however,
maintained that he was not an employee, but instead was
Stamatopoulos’s equal partner in Lightning Capital Holdings and the
venture to purchase the All Seasons assets from Fifth Third Bank.

After several months, the personal relationship between Mark and
Stamatopoulos deteriorated. By March 2012, the parties severed their
business arrangement and entered into a settlement agreement in an
effort to resolve their “various financial and business dealings.” In the
settlement agreement the parties agreed to the following relevant
provisions:

1. Concurrently with the execution of this Agreement, [Stamatopoulos]
shall execute and deliver a Cognovit Promissory Note to [the
Fourtounises] in the amount of $112,000, said amount due and payable
on or before June 30, 2012. * * * Said cognovit promissory note
 obligation shall be secured by certain equipment owned by
[Stamatopoulos], to wit: a Volvo Truck, a so called “Super Sucker” * * *.

Said Super Sucker is hereby pledged as security for payment of the
Cognovit Promissory Note by titling it to and placing it in the
possession of [the Fourtounises.] In the event that [Stamatopoulos]
shall default upon the said cognovit promissory obligation, * * * [the
Fourtounises] may take free and clear title to said Super Sucker and
retain, use and/or dispose of it as they shall deem fit in full satisfaction
of the note or may pursue other legal remedies available to them
pursuant to Ohio law and in accordance with the terms of said
cognovits promissory note.

***
2. As additional consideration to the amount set forth in the Cognovit
Promissory Note referenced in paragraph 1 above, it is further agreed
that [Stamatopoulos] will transfer title to, free and clear of any and all
claims and/or encumbrances, vehicles and/or equipment to [Mark]
* * * as identified on the attached Exhibit B, incorporated herein.

The terms of the cognovit note, signed by appellees on March 30, 2012,
provided that during the pledge period, title to the Volvo vacuum truck
would be held by the Fourtounises, but Stamatopoulos would be
permitted to use the truck while it is pledged as collateral if he secured
a bond to protect against “resulting value diminution.” Following the
execution of the settlement agreement and cognovit promissory note,
Stamatopoulos moved his business operations to a new location, and
Mark began operating Global, a landscaping company, with some of the
equipment purchased in the bankruptcy sale.

Thereafter, a dispute arose between the parties regarding the
ownership of various pieces of business equipment. [Appellees]
believed that the settlement agreement signed by Stamatopoulos
addressed the disposition of the assets. However, Stamatopoulos
argued he was forced to sign the agreement under duress.

The procedural history of this case is equally convoluted, in part

because two separate actions were initiated and proceeded separately for several

months. On June 27, 2012, Stamatopoulos filed a verified complaint for replevin,

order of possession, and other relief in Cuyahoga County Court of Common Pleas
against the All Seasons companies, Mark, Global, “Doe Corporation,” and the

Fourtounises. Stamatopoulos presented seven claims: (1) alter ego, (2) breach of

contract related to the asset purchase agreement, (3) fraudulent

inducement/intentional misrepresentation related to the asset purchase agreement,

(4) conversion, (5) replevin/injunctive relief, (6) unjust enrichment, and (7) trespass

to chattel. Stamatopoulos also sought and obtained from the trial court an

emergency order of possession of 44 specific pieces of machinery, together with

“[a]ll other assets purchased by the Stamatopoulos Parties in the bankruptcy of

Defendants All Seasons * * * which are reasonably identifiable and which have yet

to be turned over * * *.” The order of possession explicitly stated that Stamatopoulos

was not required to post a bond to obtain the relief set forth therein.

All of the Appellees filed requests for a hearing and an emergency stay

of the order of possession. The court conducted a hearing and ordered Appellees to

provide Stamatopoulos with a list of the locations of the property at issue. On

July 16, 2012, Appellees filed a motion to transfer the case to the court’s commercial

docket. The court denied this motion on July 19, 2012. On July 24, 2012, Appellees

filed a notice of removal to federal court. On October 26, 2012, the case was

remanded to the Cuyahoga County Court of Common Pleas. On November 16, 2012,

Global filed a motion requesting the court order Stamatopoulos to post a bond.

On November 9, 2012, the Fourtounises initiated a separate action

against Stamatopoulos in the trial court seeking confession of judgment on a

cognovit note. The Fourtounises obtained a cognovit judgment in the amount of
$112,000 against Stamatopoulos. On November 21, 2012, the Fourtounises filed an

answer to Stamatopoulos’s claims in his replevin action.

On November 21, 2012, Mark filed an answer and counterclaim to

Stamatopoulos’s claims in the original case. Mark averred in his answer that the All

Seasons companies had been “liquidated by order of the U.S. Bankruptcy Court on

June 13, 2011 and the corporate charters for each corporation [were] thereafter

cancelled by the Ohio Secretary of State.” In his counterclaim, Mark sought an order

from the trial court to enforce the settlement agreement. Mark averred that on

March 30, 2012, Stamatopoulos had entered into an agreement with Appellees to

resolve claims for “past due rent,” and for “repayment of loans.” According to the

terms of this agreement, which was attached to Mark’s counterclaim as an exhibit,

Stamatopoulos executed a “Cognovit Promissory Note made payable to Manolis

Investments, LLC” and the Fourtounises in the amount of $112,000. As security for

the note, Stamatopoulos would, inter alia, transfer both the title and the possession

of the Super Sucker to the Fourtounises. Mark claimed that Stamatopoulos had

failed to comply with the terms of the settlement agreement, and demanded that the

trial court enforce it.

On November 29, 2012, Stamatopoulos filed a motion to stay

execution of the cognovit judgment, vacate the cognovit judgment, and consolidate

the Fourtounises’ action with his action. On November 30, 2012, the court held a

hearing on this motion.
 For some time, the cases proceeded separately. On March 4, 2013,

the trial court granted Stamatopoulos’s motion to stay execution of the cognovit

judgment and vacated that judgment. In a May 28, 2013 journal entry

corresponding to a May 16, 2013 hearing, the court noted that Global’s motion to

order a bond in Stamatopoulos’s replevin action had been withdrawn.

On May 30, 2013, the trial court consolidated the two cases. In July

2013, the Fourtounises amended their complaint against Stamatopoulos, alleging

(1) breach of the settlement agreement, (2) breach of the note, (3) wrongful

attachment, (4) violation of civil rights under color of state law, and (5) entitlement

to punitive damages based on actual malice.

On May 30, 2013, Global filed an answer to Stamatopoulos’s original

complaint, together with counterclaims alleging (1) breach of the settlement

agreement, (2) breach of the letter agreement,1 (3) wrongful seizure of property,

(4) violation of civil rights under color of state law, (5) malicious conduct intended

to cause economic harm, and (6) malicious conduct intending to intimidate Global

from pursuing its civil remedies.

The case was subsequently referred to mediation. When mediation

proved unsuccessful, the court resumed trial preparations. On July 8, 2013, the

Fourtounises filed a motion for order of bond related to the July 2012 order of

possession, approximately one year after the order was issued and several months

1 The letter agreement is not a subject of this appeal.
after Global’s identical motion had been withdrawn. On July 19, 2013,

Stamatopoulos filed an answer to the Fourtounises’ amended complaint, asserting

duress as an affirmative defense.

The case proceeded to a jury trial on February 12, 2014. At the close

of Stamatopoulos’s case, the Appellees moved for a directed verdict on all counts of

his complaint. The court granted the motion as to the claims of alter ego, breach of

the asset purchase agreement, conversion, unjust enrichment, and trespass to

chattel, leaving only Stamatopoulos’s claim of fraudulent inducement.

At the close of Appellees’ case, Stamatopoulos moved for a directed

verdict on Mark’s claim of partnership dissolution, the Fourtounises’ claim of

wrongful attachment, and all claims for violation of civil rights under color of state

law and malicious conduct. The motion was unopposed and granted as to the

Fourtounises’ claim of wrongful attachment and otherwise denied.

With the agreement of all parties, the court instructed the jury to first

consider Stamatopoulos’ duress defense to the settlement agreement. It further

instructed the jury that if Stamatopoulos failed to establish duress by a

preponderance of the evidence, the court would enforce the settlement agreement

and note. The court also instructed the jury as to the Fourtounises’ violation of civil

rights under color of state law claim as follows:

[The Fourtounises] claim that [Stamatopoulos,] acting under Ohio’s
prejudgment replevin statute, deprived them of their ownership
interest in the [Super Sucker.] Any person in the United States has the
right to recover damages when any other person who, under color of
any state law, deprives him or her of any right, privilege or immunity,
 secured or protected by the constitution or the laws of the United
States. Constitutional requirements of due process apply to
prejudgment attachment procedures whenever state officers act jointly
with a private party in seizing a property in dispute.

Now, in this case, [Stamatopoulos] acted jointly with the Cuyahoga
County Sheriff’s Department in seizing the [Super Sucker]. An order
allowing for prejudgment seizure of property is constitutional only if
the order requires plaintiffs to furnish an appropriate bond to
compensate the defendants in the event of a wrongful seizure.

[Stamatopoulos] did not post a bond to protect the [Fourtounises] prior
to seizing the [Super Sucker]. The seizure was therefore
unconstitutional.

If the settlement agreement is valid, [the Fourtounises] are entitled to
be compensated for all losses proximately caused by the seizure of their
property.

The court did not instruct the jury as to any of Appellees’ claims for breach of the

settlement agreement or note.

On February 21, 2014, the jury returned a verdict. Verdict form No. 1

stated that the jury found “in favor of [the Fourtounises] upon their counterclaim

against [Stamatopoulos] and [awarded] damages of $100,000.” This verdict was

consistent with the interrogatory No. 6, pursuant to which the jury found that the

Fourtounises proved by a preponderance of the evidence that they were damaged by

Stamatopoulos’s seizure of the Super Sucker. Pursuant to their instructions, the jury

completed two other interrogatories. According to interrogatory No. 1, the jury did

not find that Stamatopoulos proved his affirmative defense of duress by clear and

convincing evidence. According to interrogatory No. 7, the jury did not find that

Global or Mark proved that it was damaged by Stamatopoulos’s seizure of its trucks
and equipment by a preponderance of the evidence. No other interrogatories or

verdict forms were filled out by the jury.

On March 5, 2014, Appellees filed a “request for entry of judgments,”

requesting that the court schedule a hearing to determine the attorney fees

recoverable by Mark, direct Stamatopoulos to deliver title to the Super Sucker to the

Fourtounises, and direct Stamatopoulos to deliver title to certain other vehicles and

equipment to Mark. On March 19, 2014, Stamatopoulos responded to this request,

arguing that in light of the jury’s general verdict and award of $100,000 to the

Fourtounises, he had no further obligations to perform under the settlement

agreement. Stamatopoulos also argued that the Fourtounises were not entitled to

the Super Sucker because they are legally prohibited from seeking both judgment on

a debt and possession of the collateral securing said debt.

On April 3, 2014, the court issued the following journal entry:

As a result of the jury’s verdict finding that [Stamatopoulos] failed to
prove duress in the signing of the settlement agreement and cognovit
note, the parties are hereby ordered to comply with the terms of the
settlement agreement, signed by the parties on or about March 30,
2012, within 30 days of the date of this journal entry. The court retains
jurisdiction over all post-judgment motions. * * * Final. * * *

On April 16, 2014, Global filed a motion for a new trial “on damages.”

On April 17, 2014, Appellees filed a “motion for entry of final appealable judgment.”

On May 1, 2014, the trial court issued another journal entry stating:

Entry of 04/03/2014 is amended to include the following language:
inasmuch as it was the clear intention of the parties, and the jury was
advised, that in the event that [Stamatopoulos] did not prevail on [his]
claim of duress in signing the settlement agreement, the Court would
 enforce the settlement agreement. In addition, the jury returned a
verdict in favor of [the Fourtounises] for $100,000. It is so ordered.
Final.

On May 14, 2014, the trial court denied Global’s motion for a new trial on damages

and denied Appellees’ motion for entry of a final appealable judgment as moot.

On May 27, 2014, Appellees filed a notice of appeal from the trial

court’s May 14, 2014 journal entry. On June 4, 2014, Stamatopoulos filed a notice

of cross-appeal. Appellees presented seven assignments of error, and

Stamatopoulos presented five cross-assignments of error. This court dismissed the

case for lack of a final, appealable order. Stamatopoulos v. All Seasons Contr., Inc.,

8th Dist. Cuyahoga No. 101439, 2015-Ohio-1141 (“Stamatopoulos I”).

On remand, the trial court issued an order on August 26, 2015,

“supplementing” its prior entries of April 3, 2014, and May 1, 2014. The

supplemental judgment entry stated, in relevant part:

On February 21, 2015, the jury returned a verdict in favor of Nikolas
and Marika Fourtounis and against Evangelos Stamatopoulos
(“Lightning Capital Holdings”) and awarded damages in the amount of
$100,000.00. The jury further found that Global Outdoor Solutions
did not prove by a preponderance of the evidence that it was damaged
by Evangelos Stamatopoulos by the seizure of its trucks and equipment.
Additionally, the jury found that Evangelos Stamatopoulos did not
prove by clear and convincing evidence the affirmative defense of
duress in signing the Cognovit Note and Settlement Agreement.

All parties prepared and agreed to the jury instructions, jury
interrogatories and verdict forms that were submitted to the jury. Any
claims not addressed by the agreed-to forms are dismissed with
prejudice pursuant to Civ.R. 41(B)(1).
 Pursuant to the agreed to jury instructions, the jury was instructed, “If
you find that plaintiffs failed to establish the duress defense by clear
and convincing evidence, the Court will order the parties to perform the
obligations imposed by the Settlement Agreement and Note.”

Therefore, based on the jury’s verdict, this court hereby finds in favor
of Nikolas and Marika Fourtounis and against Evangelos
Stamatopoulos and Lightning Capital Holdings in the amount of
$100,000.00. Additionally, pursuant to the agreed to jury instructions,
the parties are hereby ordered to comply with the Settlement
Agreement and Cognovit Note attached hereto as Exhibit A and Exhibit
B within 30 days of the date of this order.

On September 4, 2015, Appellees filed a proposed order of specific

performance. On September 8, 2015, Stamatopoulos filed a notice of his compliance

with the trial court’s order of specific performance, asserting that he gave appellants

a tender payment of the $100,000 judgment, and also executed titles, possession,

and keys for certain vehicles listed in exhibit B of the parties’ settlement agreement

that were still in his possession.

On September 25, 2015, the parties appealed again. The Appellees

presented six assignments of error for review, arguing among other things that the

trial court erred in dismissing claims that were not submitted to the jury and failing

to award attorney fees. Stamatopoulos presented five cross-assignments of error,

challenging the jury verdict and alleging that the trial court made several errors

involving jury instructions.

On February 1, 2018, this court reversed and remanded the case.

Stamatopoulos II. In part because the trial court’s August 26, 2015 order added

language referring to the Cognovit Note, this court instructed the trial court to clarify
the rights and responsibilities of the various parties, as well as the status of any

unresolved claims.

On remand, on September 12, 2018, the trial court issued the

following journal entry:

Pursuant to the Court of Appeals journal entry and opinion issued
February 1, 2018, this court was ordered to further explain its final
entry of judgment issued August 26, 2015. Therefore, this court further
finds that the $100,000 awarded by the jury in favor of Nikolas and
Marika Fourtounis and against Evangelos Stamatopoulos relates to
damages for wrongful attachment and seizure of the Super Sucker.
Separate and apart from the jury’s award of $100,000, due to the lack
of finding of duress, the parties are also ordered to comply with both
the Settlement Agreement and Cognovit note. Absence of reference to
the Cognovit note in previous entries was in error.

This court further finds that Nikolas and Marika Fourtounis have
requested specific performance with regard to the Settlement
Agreement and Cognovit note.

It is ordered that within 14 days of the journalization of this judgment
Evangelos Stamatopoulos shall endorse over the title to the 2004 Volvo
Vacuum Truck, VIN #4V5KC96F54N36214 to Nikolas and Marika
Fourtounis, trustees of the Nikolas and Marika Fourtounis Living
Trust, and deliver the title to their counsel John Manos. In the event
Evangelos Stamatopoulos fails to deliver the title properly endorsed for
transfer the clerk of courts is ordered to cancel the existing title to the
Volvo Vacuum Truck and issue a new title in the name of Nikolas and
Marika Fourtounis, Trustees of the Nikolas and Marika Fourtounis
Living Trust.

It is ordered that within 14 days of the journalization of this judgment
Evangelos Stamatopoulos shall return the 2004 Volvo Vacuum Truck
VIN #4V5KC96F54N36214 to 5000 Van Epps Road, Brooklyn Heights,
Ohio from where it was wrongfully seized in the same condition it was
when the seizure occurred. All sets of keys are to be delivered with the
truck.

It is ordered that within 14 days of the journalization of this judgment
Evangelos Stamatopoulos shall endorse over the title to all the trucks
and trailers identified on the attached Exhibit XXX to Global Outdoor
 Solutions, LLC and deliver the titles to its counsel John Manos. In the
event Evangelos Stamatopoulos fails to deliver the titles properly
endorsed for transfer the clerk of courts is ordered to cancel the existing
titles for all vehicles and trailers listed on the attached Exhibit XXX and
issue new titles in the name of Global Outdoor Solutions.

It is ordered that within 14 days of the journalization of this judgment
Evangelos Stamatopoulos shall return the trucks and trailers identified
in the attached exhibit XXX as being “seized by Stamatopoulos” to
5000 Van Epps Road, Brooklyn Heights, Ohio from where they were
wrongfully seized in the same condition they were in when the seizure
occurred. All sets of keys are to be delivered with the trucks.

The court retains jurisdiction over this matter to enforce the settlement
agreement and Cognovit note.

Costs to Evangelos Stamatopoulos.

Final.

Stamatopoulos initiated the instant appeal, raising the following

assignments of error for our review:

I. The trial court erred as a matter of law in holding and then
instructing the jury that seizure of property pursuant to a valid order of
possession issued in the replevin action was unconstitutional, and it
was plain error to decide this dispositive issue via a ruling on an
evidentiary motion in limine.

II. The trial court erred as a matter of law in instructing the jury that
defendants were entitled to damages for the seizure of property
belonging to plaintiffs and loss of use of one piece of the property
pledged as collateral.

III. The trial court abused its discretion by entering a money judgment
in favor of Nikolas and Marika Fourtounis and then ordering specific
performance.

IV. The trial court erred as a matter of law by directing a verdict in favor
of appellants on Mr. Stamatopoulos’ conversion claim for relief.
 V. The verdict in favor of Nikolas and Marika Fourtounis is against the
manifest weight of the evidence and was based in part upon plain error
as a matter of law in admitting incompetent testimony as to the
“possible” rental value of the Super Sucker by a witness who was
neither the owner of the property or qualified as an expert witness.

Appellees filed a cross-appeal, presenting the following cross-

assignments of error for our review:

I. The trial court erred in failing to award Appellees the attorney fees
incurred to enforce the settlement agreement.

II. The trial court erred in failing to award Appellees attorney fees when
an unconstitutional seizure of their property was established at trial.

III. The trial court erred in denying Global’s motion for new trial on
damages.

Law and Analysis

As an initial matter, we note that our analysis in this appeal has been

restricted by the parties’ own pleadings and arguments, several of the trial court’s

decisions, and the relevant case law. As a result, we are mindful that the possibility

of crafting an outcome that both adheres to the law and satisfies any or all of the

parties is slim.

I. Jury Instructions on Replevin Order of Possession

In Stamatopoulos’s first assignment of error, he argues that the trial

court erred as a matter of law when it instructed the jury that seizure of property

pursuant to an order of possession issued in the replevin action was

unconstitutional. He further argues that it was plain error for the court to decide

this dispositive issue via a ruling on a motion in limine.
 In response, Appellees offer an extensive discussion of Ohio’s replevin

statute, R.C. 2737.01 et seq., as well as the interaction of their claims with 42 U.S.

1983 (“Section 1983”). Appellees argue that R.C. 2737.10 requires that the court

issue a bond prior to issuing a valid order of possession, and that in the absence of

such a bond, the order of possession was unconstitutional.

This issue initially came up at trial related to a motion in limine filed

by the Appellees. Counsel for the Appellees sought a preliminary instruction from

the court to the jury, at the outset of trial, that the order of possession was

unconstitutional. The court heard arguments from both sides before ultimately

concluding that while counsel for Appellees would not be precluded from arguing

that the order was unconstitutional during opening statements, the court would not

address the issue prior to its issuance of jury instructions.

Once both sides had presented their cases to the jury, the issue was

discussed again, this time in the context of jury instructions. Although

Stamatopoulos’s trial counsel conceded that the court should have ordered a bond

prior to issuing the order of possession, counsel objected to a jury instruction

characterizing the order as unconstitutional. The court considered this argument

before ultimately overruling this objection and instructing the jury that

Stamatopoulos had unconstitutionally seized the Fourtounises’ property.

Before we address the substance of the jury instructions, it is

necessary to examine the context in which the court instructed the jury on this issue.

Of the claims in the Fourtounises’ amended answer and counterclaims, only one was
submitted to the jury: “violation of civil rights under color of law.” Section 1983

provides that:

[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress * * *.

To prevail on their Section 1983 claim, the Fourtounises were required to show “that

(1) a person, (2) acting under color of state law, (3) deprived [them] of a federal

right.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d

454, ¶ 20 (8th Dist.), citing Berger v. Mayfield Hts., 265 F.3d 399, 405 (6th

Cir.2001). After our review of the record and the relevant law, we conclude that the

Appellees had no actionable Section 1983 claim against Stamatopoulos, and

therefore, this claim should not have been submitted to the jury as a matter of law.

In the instant case, the Fourtounises attempted to bring a Section

1983 claim against Stamatopoulos based on their claims that the replevin statute

was misused and abused where Stamatopoulos filed an allegedly baseless motion

and the trial court did not require Stamatopoulos to post a bond. The Fourtounises’

claim does not attribute any violation because of a state rule, but rather contends

that Stamatopoulos misused and failed to comply with the rule. Further, the

Fourtounises are not challenging the constitutionality of Ohio’s replevin statute.

Rather, they are arguing that Stamatopoulos abused or violated the statute. In light

of this distinction, we find the case law cited by the Fourtounises insufficient to
support their Section 1983 claim. Additionally, we are compelled to acknowledge

that this court has previously held that the Fourtounises had no actionable Section

1983 claim related to the very same order of possession in a separate action.

Fourtounis v. Verginis, 8th Dist. Cuyahoga No. 102025, 2015-Ohio-2518, ¶ 16.2 In

affirming the trial court’s dismissal of the Fourtounises’ Section 1983 claim in that

case, this court held because the Fourtounises were not attributing any violation of

their civil rights to a state rule, but rather asserting that the rule was misused or not

complied with, they failed to state a cause of action under Section 1983. Id. at ¶ 14.

Although that case involved a different defendant, we are mindful that the alleged

violation complained of by the Fourtounises was nearly identical.

Because we conclude, as a matter of law, that Appellees’ Section 1983

claims should not have been submitted to the jury, any arguments regarding the

contents of the jury instructions on this claim are moot. Therefore, we vacate the

jury verdict and $100,000 judgment in favor of the Fourtounises, because the

judgment was based upon the Fourtounises’ Section 1983 claim. In light of this

conclusion, Stamatopoulos’s second, third, and fifth assignments of error are moot.

II. Directed Verdict on Stamatopoulos’s Conversion Claim

In his fourth assignment of error, Stamatopoulos argues that the trial

court erred in granting Appellees’ motion for a directed verdict on his conversion

2 Separate from the underlying action, Appellees filed a complaint against
Theologis Verginis (“Verginis”), Stamatopoulos’s initial attorney in these proceedings.
Appellees brought a Section 1983 claim against Verginis related to his role in filing the
replevin motion for possession of property that is at issue in the instant case. This court
affirmed the trial court’s dismissal of that claim.
claim because he presented sufficient evidence at trial going to all of the elements of

that claim.

Appellate courts apply a de novo standard of review in evaluating the

grant or denial of a motion for directed verdict. Zappola v. Rock Capital Sound

Corp., 8th Dist. Cuyahoga No. 100055, 2014-Ohio-2261, ¶ 40, citing United States

Bank v. Amir, 8th Dist. Cuyahoga No. 97438, 2012-Ohio-2772, citing Groob v.

KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14. Pursuant

to Civ.R. 50(A)(4), a trial court properly grants a motion for directed verdict where,

after construing the evidence most strongly in favor of the party against whom the

motion is made, it 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.

Count 4 of Stamatopoulos’s complaint alleged conversion;

specifically, he alleged that the Appellees exercised unlawful dominion and control

over certain property he had purchased pursuant to the asset purchase agreement.

Conversion is “the wrongful control or exercise of dominion over the property

belonging to another consistent with or in denial of the rights of the owner.” Tabar

v. Charlie’s Towing Serv., Inc., 97 Ohio App.3d 423, 427-428, 646 N.E.2d 1132 (8th

Dist.1994), citing Bench Billboard Co. v. Columbus, 63 Ohio App.3d 421, 579 N.E.2d

240 (10th Dist.1989). A party alleging conversion must establish (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) the possessor refused to deliver the
property to its rightful owner. Pointe at Gateway Condo. Owner’s Assn. v.

Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and 99130, 2013-Ohio-3615, ¶ 64, citing

Tabar at 427-428.

Stamatopoulos argued at trial that he purchased assets free and clear

of any liens or encumbrances pursuant to an asset purchase agreement. Subsequent

to the execution of that agreement, the parties executed a settlement agreement,

pursuant to which Stamatopoulos agreed to transfer title to some of the purchased

assets to Mark. Stamatopoulos also agreed to vacate the Van Epps yard, where he

had been maintaining a personal office and keeping some of the purchased assets.

Stamatopoulos presented evidence at trial that when he sent an agent, Tony Savaidis

(“Savaidis”) to the Van Epps yard to retrieve his property, Mark and his brother

prevented Savaidis from entering the property. At trial, the parties disagreed as to

whether there was an adequate demand for the return of the property and

subsequent refusal to that demand to survive a motion for directed verdict.

While

“a demand for the return of personal property is not necessarily a
prerequisite in a conversion action, a demand and refusal is necessary
where the person alleged to have converted the property has rightfully
obtained possession thereof and, therefore, cannot be found to have
converted the property unless he either fails to restore it upon demand
or by some other act of his creation unlawfully exercises dominion over
the property.”

Kavalec v. Ohio Express, Inc., 2016-Ohio-5925, 71 N.E.3d 660, ¶ 31 (8th Dist.),

quoting Drakoules v. Dairy Queen of Whitehall, Inc., 10th Dist. Franklin Nos. 76AP-

961 and 77AP-157, 1977 Ohio App. LEXIS 7412 (Aug. 9, 1977). Therefore, a demand
was necessary here because Stamatopoulos had voluntarily left his allegedly

converted property at the Van Epps yard.

Appellees acknowledge that Stamatopoulos made a demand for the

property remaining at the Van Epps yard in a letter sent from his counsel to

Appellees. However, they assert that rather than refusing to give the property to

Stamatopoulos, the Fourtounises offered to arrange a meeting to complete the

exchange of property, but such a meeting never took place and Stamatopoulos

proceeded with filing the replevin action several days later. Evidence was presented

to this effect at trial, and Stamatopoulos offers nothing in response to this. Because

it does not appear that Stamatopoulos presented sufficient evidence of a demand

and refusal, the trial court properly granted Appellees’ motion for directed verdict

on his conversion claim. Therefore, Stamatopoulos’s fourth assignment of error is

overruled.

III. Attorney Fees

In Appellees’ first and second cross-assignments of error, they assert

that the trial court erred by failing to award them attorney fees. In their first

assignment of error, they argue that attorney fees are compensable damages when

incurred as a result of a settlement agreement being violated. They also argue that

all parties had agreed that the trial court would determine what attorney fees the

prevailing party could recover. We disagree.

The decision to award attorney fees should not be reversed absent a

showing that the court abused its discretion. Bittner v. Tri-County Toyota, Inc., 58
Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). An abuse of discretion suggests the trial

court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

As an initial matter, we must reiterate that the trial court dismissed

with prejudice all claims not submitted to the jury, including Appellees’ claims for

breach of the settlement agreement. Therefore, neither the court nor the jury

determined that Stamatopoulos breached the settlement agreement. The jury did

determine, pursuant to interrogatory No. 1, that Stamatopoulos did not sign the

settlement agreement under duress. Therefore, the settlement agreement was

deemed valid and enforceable. It does not follow, however, that Stamatopoulos

breached the settlement agreement.

Further, despite Appellees’ argument on appeal that the trial court,

and not the jury, would determine the issue of attorney fees, this is belied by the

record. At the close of Stamatopoulos’s case in chief, the parties assented on the

record to the court determining the issue of attorney fees with no assistance from

the jury. Subsequently, however, the interrogatories and verdict forms given to the

jury clearly contemplated attorney fees. The interrogatories and verdict forms were

reviewed by the parties and agreed to by all parties. Ultimately, the jury declined to

award attorney fees to any party, and none of the Appellees’ challenged the jury

verdict on appeal.

Interrogatory No. 5 asked if the jury awarded Stamatopoulos attorney

fees on his fraudulent inducement claim; the jury properly declined to complete this
interrogatory because it declined to find that Stamatopoulos proved duress by clear

and convincing evidence. Interrogatory No. 9 asked “if you awarded punitive

damages do you find that Global Outdoor Solutions (Mark Fourtounis) should also

be awarded attorney fees?” Because the jury declined to find that neither Global nor

Mark proved by a preponderance of the evidence that they were damaged by the

seizure of its property, the jury properly declined to complete this interrogatory.

Verdict form No. 3 stated, “[w]e the jury having found in favor of Global Outdoor

Solutions (Mark Fourtounis) upon its Counterclaim against Evangelos

Stamatopoulos, also find that Global Outdoor Solutions (Mark Fourtounis)

should/should not (circle one) recover it’s [sic] attorney fees.” Again, because the

jury did not find in favor of Global or Mark, it did not complete this verdict form.

The only verdict form the jury did complete, pursuant to its

instructions from the court, was verdict form No. 1, which stated that the jury found

in favor of the Fourtounises upon their Section 1983 counterclaim against

Stamatopoulos and awarded damages in the amount of $100,000 in connection

with that claim. Even if we had not vacated this verdict as a matter of law, it contains

no reference to attorney fees. In light of the foregoing, we find no abuse of discretion

where the trial court declined to award attorney fees to any of the Appellees.

Therefore, Appellees’ first cross-assignment of error is overruled, and their second

cross-assignment of error is overruled as moot.
IV. Global’s Motion for a New Trial on Damages

In their third cross-assignment of error, Appellees argue that the jury

failed to award Global damages and, similarly, the court erred in denying Global’s

motion for a new trial on damages. In support of this argument, Appellees assert

that Global was damaged as a result of the order of possession and subsequent

seizure of their property. In light of the uncontroverted evidence, they claim, the

wrongful seizure of their property is an established fact. Because the jury’s failure

to award damages is against the manifest weight of the evidence, Appellees argue

that the court should have ordered a new trial on the issue of damages. We disagree.

Pursuant to Civ.R. 59, the granting of a motion for a new trial rests

within the sound discretion of the trial court. Therefore, “‘where a trial court is

authorized to grant a new trial for a reason which requires the exercise of sound

discretion, the decision on a motion for a new trial may be reversed only upon a

showing of abuse of discretion by the trial court.’” Spisak v. Salvation Army, 8th

Dist. Cuyahoga No. 99633, 2013-Ohio-5429, ¶ 20, quoting Rohde v. Farmer, 23

Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph one of the syllabus.

For the reasons outlined above in our analysis of Stamatopoulos’s

first assignment of error, Appellees’ Section 1983 claims should not have been

submitted to the jury as a matter of law. Therefore, any argument on appeal that is

based on these claims necessarily fails. Further, even if it was proper to submit these

claims to the jury, the jury did not find in Global’s favor on its Section 1983 claim.

Generally, a new trial on damages alone is usually only proper when the issues of
liability and proximate cause are not contested. Iames v. Murphy, 106 Ohio App.3d

627, 633, 666 N.E.2d 1147 (1st Dist.1995), citing Mast v. Doctor’s Hosp. N., 46 Ohio

St.2d 539, 350 N.E.2d 429 (1976); Slivka v. C.W. Transp., Inc., 49 Ohio App.3d 79,

550 N.E.2d 196 (8th Dist.1988). In light of the foregoing, that cannot be said of the

instant case. Therefore, Global is not entitled to a new trial on damages. Appellees’

third cross-assignment of error is overruled.

As a result of the foregoing, we vacate the judgment entered in favor

of the Fourtounises against Stamatopoulos on the Section 1983 claim. Further, in

light of both the absence of any finding by the trial court or jury of any breach of the

settlement agreement and the absence of any vacation of the replevin order of

possession, we vacate the portion of the trial court’s September 12, 2018 order

instructing Stamatopoulos to turn over title and possession of the Super Sucker to

the Fourtounises. Similarly, we vacate the portion of the trial court’s September 12,

2018 order instructing Stamatopoulos to return property that he seized from Van

Epps. The remainder of the trial court’s September 12, 2018 journal entry, ordering

the parties to comply with the settlement agreement, remains in effect, binding the

parties to the respective contractual terms to which they agreed before the start of

the underlying litigation.

Judgment affirmed in part, and vacated in part.

It is ordered that appellees/cross-appellants and appellants/cross-appellees

share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.
 It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR