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Gibson v. Shephard

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017

MONIQUE N. GIBSON PLAINTIFF-APPELLEE
v.
DAN SHEPHARD, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cleveland Municipal Court Case No. 2015 CVI 011184

          ATTORNEYS FOR APPELLANTS Gary L. Lieberman Darren J. Dowd Brad A. Straka David M. Dvorin Lieberman, Dvorin & Dowd, L.L.C.

          ATTORNEY FOR APPELLEE Doron M. Kalir Civil Litigation Clinic Cleveland-Marshall College of Law.

          BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, PRESIDING JUDGE.

         {¶1} 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.

         Factual and Procedural Background

         {¶2} 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.

         {¶3} 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 trial follows.

         {¶4} 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."

         {¶5} 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 July 2015.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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."

         {¶9} 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.

         {¶10} 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 locker.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 magistrate's decision.

         {¶15} 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 storage locker.

         {¶16} 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.

         {¶17} 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 ...

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