Court of Appeals of Ohio, Eighth District, Cuyahoga
MONIQUE N. GIBSON PLAINTIFF-APPELLEE
DAN SHEPHARD, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cleveland Municipal Court Case No. 2015 CVI
ATTORNEYS FOR APPELLANTS Gary L. Lieberman Darren J. Dowd
Brad A. Straka David M. Dvorin Lieberman, Dvorin & Dowd,
ATTORNEY FOR APPELLEE Doron M. Kalir Civil Litigation Clinic
Cleveland-Marshall College of Law.
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze,
JOURNAL ENTRY AND OPINION
A. GALLAGHER, PRESIDING JUDGE.
Defendants-appellants Vanguard Property Management Ltd.
("Vanguard") and Cleveco, L.L.C.
("Cleveco") (collectively, "appellants")
appeal from the judgment of the Cleveland Municipal Court,
awarding plaintiff-appellee Monique Gibson $1, 959 in damages
on her claim to recover for the loss of personal property she
had stored in a storage locker provided for her use by
appellants, the property manager and landlord of an apartment
she had leased. For the reasons that follow, we affirm the
trial court's judgment.
and Procedural Background
On July 31, 2015, Gibson filed a small claims complaint, pro
se, against Dan Shephard and Vanguard in Cleveland Municipal
Court, alleging that they were responsible for the
unauthorized access of and removal of her personal property
from the storage locker and seeking $1, 959 in damages
allegedly caused by their negligence. Vanguard was the
property manager for the apartment complex in which Gibson
resided, and Shephard was its managing partner. Gibson
thereafter amended her complaint, adding Cleveco, the
landlord and property owner, as a defendant and her claims
against Shephard were dismissed.
On October 14, 2015, a trial was held before a magistrate.
Gibson appeared pro se and testified on her own behalf.
Sheila Mazzo, Cleveco's property manager, testified on
behalf of appellants. A summary of the evidence presented at
In April 2014, Gibson entered into a 12-month lease with
Cleveco for a unit in the Brookside Oval Apartments complex
in Cleveland. Gibson testified that when she paid her deposit
and received her keys, the property manager told her that she
could use any of the empty storage lockers in the laundry
room to store her personal belongings. There were 11 or 12
storage lockers, one for each unit. According to Gibson, the
storage lockers were see-through units, "so you could
see everything in each of those."
Gibson testified that when she first moved in, she used one
of the storage lockers for approximately two weeks but did
not place a lock on it and her belongings "came up
missing." She thereafter placed a lock on the locker and
used the same locker to store her belongings, accessing the
locker two or three times each week, without incident until
Gibson testified that on July 5, 2015, she accessed the
locker and "it was fine"; "[e]verything was
there and the lock was on." At that time, Gibson had
stored her and her children's winter clothing and winter
coats, a playpen, Christmas tree and decorations, comforters
and a baby monitor in the storage unit. When Gibson accessed
the locker the following weekend, however, "everything
was gone, the lock was gone." Gibson indicated that a
green label bearing the number 913 (which had not been there
previously) had been placed above the storage locker. Only
one other storage locker had a similar label over it.
Gibson testified that she immediately attempted to contact
the leasing office but it was closed. When Gibson contacted
the leasing office the following Monday to find out what had
happened to her belongings, a management representative
(later identified as Mazzo) told Gibson that she
"didn't know anything about it." Gibson
indicated that Mazzo told her that the tenants in unit 913
had been evicted and had vacated the premises at the
beginning of the month. When Gibson pressed Mazzo to find out
what had happened, Mazzo indicated that she would call the
maintenance department to determine if one of the maintenance
personnel had removed Gibson's belongings. Gibson stated
that approximately a minute later, Mazzo called her back and
said that the maintenance personnel did not remove
Gibson's belongings from the storage locker.
Mazzo testified that approximately two years earlier,
management distributed brightly colored stickers to all
tenants with their apartment numbers and asked them to place
the stickers on the storage lockers they were using. She
stated that some of the lockers still have the stickers on
them but that others do not. She testified that when new
tenants move in, they are told that if there is no storage
locker with their apartment number, they can use any empty
locker. With respect to what is done if a tenant vacates an
apartment but leaves belongings behind in a storage locker,
Mazzo testified that management does not look to see if
tenants have left belongings in a storage locker after they
have vacated the property. If, however, management is advised
that a former tenant may have left belongings behind in a
locker, she initiates what is "typically a three-week
process involving "a series of notices that go out to
the entire building." She indicated that the notices
advise the tenants that "we have items in a unit that we
don't know who they belong to, " ask the tenants to
make sure any storage locker they are using is "numbered
correctly and state a date upon which the items will be
removed if the storage locker is not numbered. She indicated
that any belongings removed from a storage locker are held in
the maintenance garage for 30 to 60 days "to see if
anyone claims what's in there." Mazzo could not
recall when she last followed this procedure because
"[i]t's been so long" since the issue had
arisen. She indicated that she did not follow this procedure
or send out any notices in this case because she
"didn't know anything was wrong."
Mazzo testified that she does not know what happened to
Gibson's belongings. She indicated that when Gibson
contacted her about her missing belongings, the head of the
maintenance department was with her. Mazzo testified that she
told Gibson that only she could authorize maintenance
personnel to remove belongings from a storage locker and that
she had not authorized the removal of Gibson's belongings
from any storage locker. Mazzo stated that she told Gibson
that, as a "double-check, " she would "talk to
maintenance" and call her back. Mazzo asked the head of
the maintenance department if he had authorized the removal
of Gibson's belongings and he indicated that he had not.
However, Mazzo did not speak with any of the other
maintenance personnel to determine if any of them knew what
had happened to Gibson's belongings. Mazzo called Gibson
back and informed her that maintenance had not removed her
belongings from the storage locker.
Mazzo testified that she had no knowledge as to who put the
913 sticker on the storage locker but indicated that the
family who had lived in apartment unit 913 moved out at the
end of June. She stated that the new tenants did not move in
until August and that no one was in unit 913 during July 2015
when Gibson's belongings were taken from the storage
Although Gibson contacted the police regarding the incident,
Mazzo did not. Gibson testified that police officers
inspected the storage locker and asked her questions about
what had occurred but told her there was nothing they could
do for her. Mazzo did nothing further to investigate what had
happened to Gibson's belongings.
In addition to her testimony, Gibson introduced several
photographs including photographs of the storage locker with
the "913" label and an itemized list describing the
items or categories of items that were in the storage locker
and the approximate value of each as evidence of her claims.
Appellants also introduced a copy of the lease.
On November 18, 2015, the magistrate issued his decision. He
concluded that Gibson had established by a preponderance of
the evidence that one of appellants' employees had
removed Gibson's belongings from the storage unit, likely
mistaking it for the property of the tenants who had recently
vacated apartment 913 and awarded Gibson $1, 959 in damages.
The magistrate indicated that although Gibson presented no
direct evidence that appellants' maintenance personnel
had removed her belongings from the storage locker, "all
the circumstantial evidence points to that conclusion."
The magistrate carefully reviewed the evidence presented and
explained in detail how he came to his conclusion including
what evidence he found to be more or less persuasive and why.
With respect to the limitation of liability set forth in the
lease, the magistrate concluded that the lease "disavows
the landlord's responsibility only for actions not due to
its own carelessness" and thus did not preclude
Gibson's claim. With respect to damages, the magistrate
determined that appellants' removal of Gibson's
belongings without notice violated R.C. 5321.04(A)(7) and
Cleveland Codified Ordinances ("C.C.O.") 375.06,
entitling Gibson to $500 in damages "for the suffering
she experienced due to the invasion of her privacy." He
also found that Gibson was entitled to compensatory damages
"for the replacement of her belongings and the
inconvenience to her of having to shop to replace them."
The magistrate noted that although Gibson valued her lost
property at $1, 959, she was limited to the damages she
prayed for in her complaint and awarded her total damages of
$1, 959, plus court costs and interest from the date of
judgment. The trial court approved and confirmed the
Appellants filed objections to the magistrate's decision,
challenging the magistrate's finding that appellants'
representative had removed Gibson's belongings from the
storage locker and his rejection of other possible
explanations for what had happened to her belongings.
Appellants also argued that (1) the lease exculpates them
from liability for Gibson's losses, (2) the magistrate
had improperly imposed a duty on them to investigate the
incident, (3) Gibson failed to present sufficient proof of
her alleged damages and (4) the magistrate abused his
discretion in concluding that appellants had violated R.C.
5321.04(A)(7) and C.C.O. 375.06 by entering Gibson's
On May 5, 2016, the trial court overruled appellants'
objections and entered judgment in favor of Gibson for $1,
959, plus court costs and interest from the date of judgment.
Appellants appealed the trial court's judgment, raising
five assignments of error for review:
First Assignment of Error: The trial court erred by finding
appellants responsible for appellee's loss when the lease
expressly exculpates appellants from liability for damage to