COD Properties Ohio, L.L.C. v. Black Tie Title, L.L.C.

2025 Ohio 2519

• Court: Ohio Court of Appeals
• Decided: July 17, 2025
• Docket: 113730
• Status: Published

Opinion

[Cite as COD Properties Ohio, L.L.C. v. Black Tie Title, L.L.C., 2025-Ohio-2519.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

COD PROPERTIES OHIO, LLC, :

Plaintiff-Appellee, : No. 113730 v. :

BLACK TIE TITLE, LLC, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: July 17, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-19-917765 and CV-20-932386

Appearances:

Harold Pollock Co., L.P.A., and Harold Pollock; Mark G. Passannante, pro hac vice, for appellee.

Roetzel & Andress, LPA and David Sporar, for appellants.

LISA B. FORBES, J.:

Appellants Black Tie Title, L.L.C. (“Black Tie” or “BTT”), Nicholas

Varner (“Varner”), and Ryan Steigmeier (“Steigmeier”) (collectively referred to as

“Defendants” or “Appellants” at times) appeal the trial court’s decisions on various

post-trial motions and the denial of their motion for summary judgment. For the reasons set forth below, we reverse the trial court’s denial of Appellants’ motion for

judgment notwithstanding the verdict on COD Properties Ohio, L.L.C.’s (“COD”)

conversion claim. We also reverse the trial court’s grant of COD’s Civ.R. 60(A)

motion, and accordingly, we partially reverse the trial court’s award of attorney fees.

The remaining assignments of error raised by Appellants are overruled. This matter

is remanded for further proceedings consistent with this opinion.

I. Background

This case arises from a business arrangement between Black Tie and

COD in which Black Tie agreed to attend residential foreclosure sales, also known as

sheriff’s sales, on COD’s behalf and bid on properties offered for sale following

foreclosure. Black Tie is owned by Varner and Steigmeier, with Varner serving as

the managing member. Black Tie provides title and escrow services related to

residential real estate transactions. COD was established by Christopher Ostlund

(“Ostlund”), who is based in Oregon, for the purpose of purchasing foreclosed

residential properties in Cuyahoga County.

One specific transaction is at the heart of this dispute. On February 11,

2019, Steigmeier, in his position as an employee of Black Tie, attended the sheriff’s

sale for residential real estate located at 15508 Edgewood Avenue (the “Edgewood

Property” or the “Property”). He won the bid and provided the sheriff’s office with

a $5,000 deposit check given to him by COD to secure the purchase. When he filled

out the paperwork for the sale, he did so incorrectly. Instead of identifying COD as

the purchaser using its exact business name registered with the Ohio Secretary of State — COD Properties Ohio, LLC — Steigmeier wrote COD Properties, LLC. When

it came time to prepare the deed, the sheriff’s office titled the Edgewood Property in

Steigmeier’s name. Thereafter, Black Tie, Varner, and Steigmeier refused to title the

Property in COD’s name.

On July 3, 2019, COD filed suit against Black Tie, Varner, and

Steigmeier. The parties engaged in vigorous litigation. The following is a summary

of the procedural history relevant to this appeal.

A. Procedural History

COD filed its fourth and last amended complaint on June 11, 2021, in

which it raised 14 causes of action against Black Tie, Varner, and Steigmeier. Black

Tie, Varner, and Steigmeier answered and filed counterclaims and a third-party

complaint. The court appointed a receiver to take legal possession of the Property

on December 23, 2021. In June 2022, the receiver transferred the Property to COD.

On March 13, 2023, the trial court granted in part and denied in part

Black Tie, Varner, and Steigmeier’s joint motion for summary judgment on COD’s

claims against them. The court granted summary judgment on seven of COD’s

claims. However, the court denied the Defendants’ motion for summary judgment

on the remaining seven counts that alleged breach of contract, promissory estoppel,

unjust enrichment, civil theft, conversion, conspiracy to commit conversion, and

breach of fiduciary duties, finding that genuine issues of material fact existed for

these counts, thereby precluding summary judgment. A trial commenced on March 27, 2023. The jury returned its verdict on

April 4, 2023, as follows: in favor of Black Tie, Varner, and Steigmeier on COD’s

claim for conspiracy to convert; in favor of COD on its claim for breach of contract,

awarding $555 in damages against Black Tie and $0 in damages against Varner and

Steigmeier; in favor of COD on its claim for breach of fiduciary duty, awarding

$30,000 against Black Tie and $0 against Varner and Steigmeier; in favor of COD

on its claim for civil theft, awarding $35,000 in damages against Black Tie and $0

in damages against Varner and Steigmeier; and, in favor of COD on its claim for

conversion, awarding $0 in damages. The jury found in favor of COD on each of

Black Tie, Varner, and Steigmeier’s counterclaims.

In keeping with the trial court’s bifurcation order entered prior to the

commencement of trial, the punitive-damages phase of the trial followed

immediately after the jury’s verdict on the substantive claims. The jury awarded

COD punitive damages for conversion and breach of fiduciary duty in the amounts

of $1 each against Black Tie, Varner, and Steigmeier, on each count.

By agreement, the parties submitted the issue of attorney fees to the

court. A briefing schedule was set.

Black Tie filed a motion for judgment notwithstanding the verdict on

May 12, 2023. The trial court granted Black Tie’s motion in part and denied it in

part. The court granted judgment notwithstanding the verdict on the claim for

punitive damages in connection with the finding of liability for conversion against

Black Tie, Varner, and Steigmeier and for punitive damages against Varner and Steigmeier related to breach of fiduciary duty because the jury had not awarded

compensatory damages on those counts. The court denied the motion as it related

to the award of $1 in punitive damages for Black Tie’s breach of fiduciary duty, and

the court denied the motion as it related to all remaining claims.

On July 5, 2023, the court granted COD’s motion for treble damages

on its civil-theft claim. Pursuant to R.C. 2307.61, the trial court awarded COD a total

of $105,000 in treble damages against Black Tie.

The court granted COD’s motion to assess court costs against Black

Tie, Varner, and Steigmeier on December 29, 2023.

By journal entry dated July 17, 2023, the court awarded attorney fees

to COD and against Black Tie. The determination of the appropriate amount of

attorney fees was reserved pending further briefing and evidentiary submissions.

Hearings on attorney fees were held on August 3, 2023, and November 8, 2023. On

February 12, 2024, the court awarded attorney fees in the total amount of

$326,223.17, apportioned among three attorneys for their representation of COD.

This appeal followed, with Black Tie, Varner, and Steigmeier raising

the following ten assignments of error:

1. The trial court erred in denying Appellants’ motion for summary judgment on COD’s breach of fiduciary duty claim.

2. The trial court erred in denying Appellants’ motion for summary judgment on COD’s conversion claim.

3. The trial court erred in denying Appellants’ motion for summary judgment on COD’s civil theft claim. 4. The trial court erred in denying Appellants’ motion for judgment notwithstanding the verdict on COD’s conversion, civil theft, and breach of fiduciary duty claims.

5. The trial court erred in denying Appellants’ motion for judgment notwithstanding the verdict on the punitive damages award in connection with COD’s breach of fiduciary duty claim.

6. The trial court erred in granting COD’s motion for attorney’s fees.

7. The trial court erred in granting COD’s motion for treble damages.

8. The trial court erred in granting COD’s Rule 60(A) Motion to Permit Allowance of Additional Hearing Exhibit in support of its motion for attorney’s fees.

9. The trial court erred in its assessment of COD’s attorney fee award amount.

10. The trial court erred in its assessment of court costs against Appellants.

B. Trial

1. Ryan Stegmeier

COD called Steigmeier as if on cross-examination. Steigmeier testified

that he was part of the team that launched Black Tie in 2018. Along with Varner, he

was one of the principals operating the title company, which served two primary

functions: title work and escrow services. Title work involved conducting title

searches and clearing any existing liens to ensure that property could be transferred

unencumbered. Black Tie also operated as a title insurance company, meaning it

sold title insurance. Escrow work involved holding earnest money, and, as

Steigmeier explained, “Escrow would pay any of the debtors or lien holders that

would be owed money in the transaction.” The escrow side of the business “would entail the title company taking the money from the buyer or the buyer’s lender, and

paying the seller, and pay[ing] off any liens or encumbrances.”

Whenever Steigmeier attended sheriff’s sales to bid on properties, he

brought with him an email from COD containing a “bidder sheet” so he “knew what

[he] was bidding on.” He was unsure whether the bidder sheet identified the specific

name of the company on whose behalf he was bidding. Steigmeier further stated

that COD had provided him with more than one $5,000 check to use as a deposit in

the event he was the successful bidder at a sheriff’s sale.

Steigmeier described a packet of documents related to the February 11,

2019 auction for the Edgewood Property. One of these documents — a “bidder

information sheet” completed by Steigmeier — listed the purchase price as $35,000.

On the line for “Purchaser/bidder/principal” is the name “Ryan O. Steigmeier.”

Steigmeier clarified that he acted as the bidder, while COD was the purchaser. In

the section labeled “title name” is “COD Properties, LLC,” in handwriting.

According to Steigmeier, “It’s the same thing I put on every other sheet.”

Steigmeier testified that approximately four to five months after

successfully bidding on the Edgewood Property, he received a call from someone at

the court informing him that he was in contempt of court. Although he could not

recall the specific details of the conversation, it was during this call that he first

learned the deed to the Edgewood Property was being issued in his personal name.

The day after receiving that phone call, Steigmeier went to court

seeking an explanation for why he was held in contempt and what steps were necessary to resolve the issue. Afterwards, he visited the sheriff’s office, where he

unexpectedly encountered Ostlund from COD. The two men rode the elevator

together and ended up in the sheriff’s office at the same time. Steigmeier testified

that he was angry at the time. He did not recall any of the conversations from that

day, but he did remember going to court to “mitigate” the contempt finding so he

“didn’t have to buy a $30,000 house in Bedford Heights that [he] didn’t want.”

Steigmeier did not recall any discussion with Ostlund that day beyond telling

Ostlund, “Pay your bills.”

Steigmeier testified that although the deed for the Edgewood Property

had been issued in his name, he had never received the physical deed. As he

understood it, the property was deeded to him “because [Ostlund] didn’t pay for the

property for five months.” Steigmeier denied that the deed was issued to him

because the business name he had written on the bidder information sheet did not

exist in Ohio, causing the sheriff to default to Steigmeier’s name.

The Property being deeded in Steigmeier’s name was an error. To

rectify that mistake, Steigmeier testified that his options were “pretty limited seeing

as [he was] a partner in the title company.” Consequently, Steigmeier and Varner

contacted their lawyers to “let the pros work through it” and resolve the issue.

Steigmeier maintained that he had “no idea” who eventually paid for

the Property and that he did not investigate this issue.

Steigmeier disagreed with the idea that the $5,000 deposit of checks

provided by COD could create an escrow. He maintained that these checks “were never held in escrow ever.” Rather, they were kept in Steigmeier’s car “above [his]

visor.” According to Steigmeier, in his dealings with COD, he was “acting in the

capacity of a salesman trying to procure business doing a favor for somebody . . .

[he] own[ed] half the title company . . . [he was] trying to create a relationship.”

2. Nick Albano

Nick Albano (“Albano”) testified that at the time of trial he was

working as a consultant for Ostlund Enterprises. COD was one the companies for

which he did consulting work. To enter the Ohio market, Ostlund opened a new

entity called “COD Properties Ohio, LLC” that “purchases flips [and] rentals in Ohio

from auction.” Albano was “in charge of the back end of things.”

Explaining the sheriff’s sale process generally, Albano noted that

participants must be physically present at the live auctions and bring deposit checks

sufficient to meet the property’s deposit requirement — typically in increments of

$2,000, $5,000, or $10,000, depending on the appraised value.

Albano himself had not bought properties at auction for COD. He

explained that because COD was based on the west coast, it was not sustainable to

fly in and out of Ohio for every auction, so they developed a relationship with Black

Tie and Steigmeier to appear on COD’s behalf.

Albano was copied on an email sent from Daniel Vasquez (“Vasquez”),

an employee of COD, to Steigmeier on December 23, 2018, the day before the first

auction Steigmeier was to attend on behalf of COD. Attached to the email were three

documents: a max-bid sheet, an LLC registration document, and an informational sheet. Albano identified the “max bid sheet” as a document listing the properties

COD was interested in at the auction, along with the maximum bid COD had

authorized for each property. This was necessary because auctions move quickly,

“so the person bidding on [COD’s] behalf knows where to stop [bidding].” The LLC

registration document was a certificate from the State of Ohio confirming COD’s

registration as an LLC in Ohio. Albano explained that “you cannot purchase a

property in an entity name without it registered with the State of Ohio.” He

described the third document as “an informational sheet that we give to somebody

appearing . . . for COD. That’s all the information they need to make sure the

property is deeded in the right name and contact information in case there’s any

notices sent by the court or the sheriff.” Albano testified that “[Steigmeier] was

supposed to send the auction receipt to us.”

Albano identified a bidder-information sheet from the December 24,

2018 auction. “COD Properties Ohio LLC” was handwritten on the line for “Title

name.”

After that first auction on December 24, 2018, Varner, as one of the

principals of Black Tie, sent an email to Ostlund, Albano, and others to ask how

payments would be handled. He had heard that Steigmeier had gotten “a deal done

at the auction.” He wondered if “this arrangement is going to be ongoing.”

Albano testified that after the initial email related to the December 24,

2018 auction, typically COD continued to send Steigmeier max bid sheets to

communicate to Steigmeier what properties to bid on and how much to bid. Albano sent Steigmeier an email on December 31, 2018, with one attachment, a max-bid

sheet, identifying properties COD was interested in and the maximum authorized

bids for the next auction. Albano testified that he sent only the max-bid sheet

because “we only buy in one name and [Steigmeier] already had the other

documents for auction.” Albano testified that Steigmeier never expressed any

confusion about for whom he was buying properties.

Albano identified another bidder-information sheet for a successful

bid at auction on January 22, 2019. That form was filled out correctly in that it

indicated the title should be prepared for “COD Properties Ohio, LLC.”

On February 11, 2019, Steigmeier attended the auction for the

Edgewood Property and purchased it on behalf of COD. According to Albano, an

issue arose with the purchase because “the incorrect information was put on the

bidder [information] sheet for the entity name.” On the line for the title name, the

handwritten entry read, “COD Properties LLC/Ryan Steigmeier.” Albano never had

any communication with Steigmeier regarding this issue.

Albano explained that before the deed to the Edgewater Property

could be issued, the purchase price had to be paid. Accordingly, COD sent a check

to the sheriff’s office via FedEx. Albano became aware of the need to pay the

purchase price after contacting the sheriff’s office to inquire about the status of the

transaction. The payment was sent before Albano learned that the deed had been

issued in Steigmeier’s name. Albano testified that he had expected the deed to be

issued to COD. Albano reiterated that at the sheriff’s sales held in December 2018 and

January 2019, Steigmeier accurately identified the purchaser of the real estate as

“COD Properties Ohio LLC.”

On cross-examination, Albano explained that when he first began

working in Ohio on behalf of COD, he did not know that the completed bidder

information forms were viewable on the court’s docket. Albano was unsure whether

he was aware, at the time the Edgewood Property was auctioned on February 11,

2019, that he could get bidder information by looking at the docket.

Based on his due diligence and research, Albano learned that Ostlund

had 30 days to make payment from the time a sale of a foreclosure property is

confirmed by the court. To find out when the sale is confirmed, Albano could call

the sheriff or look on the online docket. He was unsure whether he was aware of

that in February 2019.

With regard to the Edgewood Property, Albano testified that the

remaining balance payment was not made within 30 days of confirmation. Albano

did not know specifically who contacted the sheriff’s office to ascertain the exact

amount needed to pay off the Edgewood Property.

Albano acknowledged that his responsibility was to track the deeds

and ensure the property was successfully brought to market. Prior to COD’s entry

into the Ohio market, Albano conducted research on the sheriff’s sale process in the

state. He found the Ohio process to be generally ideal, because securing a property at auction only required a down payment, rather than the full purchase price

upfront.

Steigmeier did not attend all auctions on behalf of COD. According to

Albano, COD hired one other individual to attend sheriff’s auctions on its behalf.

That individual was hired through “Task Rabbit,” which is an app through which a

person can hire someone “sight unseen” to “do various things.” The intent was for

COD to use the app to hire someone to perform the same duties that Steigmeier had

been performing.

3. Garth Swanson

Garth Swanson (“Swanson”) is a real-estate investor. He is familiar

with Ostlund through his previous work at a fund where “Chris and Bulldog were

our largest clients, purchasing properties at auction and refinancing them.”

Swanson testified that he had entered into a joint venture with Ostlund Enterprises,

Inc. Pursuant to the agreement, Swanson provided the funds for the deposits

required for COD to acquire properties at sheriff’s sales. Swanson’s role was strictly

that of an investor, supplying capital. Two properties were purchased under the

joint-venture agreement, and the Edgewood Property was one of them.

Swanson met Steigmeier at the Black Tie offices while delivering

checks to use when bidding on the properties. Swanson understood that Black Tie

was bidding on properties for the joint venture. Swanson understood that the

checks “would be kept safe there as in like an escrow.” Swanson discussed with

Steigmeier that Black Tie would do the bidding for them and “properties that we, COD Properties Ohio, would take down or would sell [we] would use Black Tie for

escrow services.”

Swanson brought five cashier’s checks, each in the amount of $5,000,

to the meeting at Black Tie. He handed the checks to Steigmeier, who assured him

they would be kept “safe in-between auctions.” Swanson identified a copy of one of

the checks made payable to the Cuyahoga County Sheriff’s Department. Having

previously used title services, Swanson was aware of the fiduciary responsibility

involved when handling other people’s money. This, coupled with Steigmeier’s

reassuring words, left Swanson with the assumption that Steigmeier was acting as a

fiduciary. Swanson stated that the cashier’s checks represent “essentially cash”

withdrawn directly from his bank account.

On cross-examination, Swanson claimed there was a verbal

agreement that Steigmeier would go to auctions and bid on properties on behalf of

the joint venture. Swanson testified that he was aware that one of the $5,000

cashier’s checks was used by Steigmeier for the Edgewood Property. The others

were eventually collected when Steigmeier stopped doing anything for COD

Properties.

Swanson testified that the money to pay the sheriff for the balance on

the Edgewood Property came from Swanson’s father. He was aware that Black Tie

had raised questions about the source of the funds used to pay the sheriff. 4. David Freeburg

David Freeburg (“Freeburg”) testified as an expert on behalf of COD.

He is a title agent and an attorney.

Freeburg described an “escrow transaction” as follows: the escrow

agent gets a deed from the person selling the property, and the escrow agent gets the

money from the person who is buying the property. The escrow agent swaps those,

giving the deed to the buyer and the money to the seller. In short, the escrow agent

facilitates the transaction.

According to Freeburg, escrow agents owe duties to both parties for

whom they are escrowing. Typically, the escrow agent has a contractual relationship

with the party and owes fiduciary duties to the party. Fiduciary duties include,

primarily, the duty to act in good faith, to follow the instructions of the party, and

not to engage in self-dealing. According to Freeburg, any time you have an agency

relationship, there is a duty of loyalty. An escrow relationship is a type of agency

relationship. There is a principal who is directing and an agent who is taking

directions. The agent has a duty to be loyal to their principal.

While acknowledging that there was no written escrow agreement

between Black Tie and COD, Freeburg opined, “Black Tie Title and its principals

were acting as an escrow agent on behalf of COD.” He testified that written

agreements are for clarity and are not necessary to create an escrow relationship.

More specifically, Freeburg gave his opinion that “an escrow

agreement existed between Steigmeier, Black Tie Title, Varner, and COD Properties for the expressed purpose of COD acquiring title to the property know as

15508 Edgewood Drive, Maple Heights.” He based his opinion on the facts that

Black Tie, Steigmeier, and Varner were delivered a check for the purpose of paying

the deposit to the sheriff, along with instructions from COD to purchase the specific

property.

According to Freeburg, “as escrow agent, Black Tie Title, Steigmeier

and Varner owed a duty of obedience to COD.” He explained that, as escrow agent,

these parties were required to follow COD’s instructions as relates to the Edgewood

Property transaction.

Freeburg further opined that Black Tie, Steigmeier, and Varner owed

a duty of loyalty, which includes refraining from self-dealing, and the duty to “obey

the instructions that are given by the principal to the agent.” That meant they were

supposed to deliver the check, title the property in COD’s name, and not title the

property in Steigmeier’s name.

Freeburg expressed his opinion that, when Black Tie found the title

was in Steigmeier’s name, the proper response should have been for the agent —

Black Tie, Steigmeier, and Varner — to deed the property to COD. According to

Freeburg, Steigmeier should have immediately relinquished title to COD by

executing a quitclaim deed. He was not aware of anything that would have

prevented Steigmeier from doing so.

According to Freeburg, it is common for funds used by an entity like

COD to come from multiple parties. “The fact that funds don’t necessarily come from a COD bank account doesn’t necessarily mean they aren’t being directed from

COD and it doesn’t change my conclusion in relationship to this transaction at all.”

Freeburg concluded that Black Tie and its principals breached their

duty to obey, testifying that the “escrow agent does not have the option to not follow

instructions based upon the interest of an unknown, undisclosed third party.”

Freeburg further testified that “the possible existence of an undisclosed third party

in not justification for an agent to breach their duty of loyalty, their duty of good

faith, their duty to discharge the instructions provided by the principal.”

Freeburg understood that Black Tie, Varner, and Steigmeier’s defense

was based on concerns about the existence of a duty to the person who paid for the

property. He did not agree that Black Tie had a duty to inquire about the

relationship between COD and a third-party lender.

5. Christopher Ostlund

Ostlund testified that COD purchases houses out of foreclosure and

that his primary focus is assessing the value of the properties COD acquires and

determining the markets into which the business expands. After COD purchases the

properties, he collaborates with property managers who oversee their rental.

The idea to come to Cleveland to operate his business was born in the

fall of 2018. He became interested in Cleveland because of the large amount of

foreclosure activity and the low bids he was seeing. COD had not yet been formed.

To decide whether to enter the market in Cleveland, Ostlund started communicating with local people in the market, from title companies to attorneys, learning the

process of what he needed to know about working in Ohio.

In October 2018, Ostlund met Varner, who he understood had a lot of

experience in foreclosures, house flipping, and rentals. Varner was interested in

growing his title business.

Ostlund made arrangements with Black Tie to handle auction bidding

for COD because it did not make sense to Ostlund to fly someone out from Oregon

for every sheriff’s sale. COD agreed to pay Black Tie a $125 trip charge and an

additional $25 for each property Black Tie won at auction. Varner told Ostlund that

Black Tie would invoice COD. Ostlund did not know who the specific person was

who would be bidding at auction on behalf of COD. Varner told him it would be

either Varner or one of his associates.

After that arrangement was reached, Ostlund had cashier’s checks

delivered to Black Tie’s offices, to be held there for future use to pay deposits at

auctions. Ostlund instructed Varner to keep, for use at sheriff’s sales, COD’s

certificate of registration with the Ohio Secretary of State’s office. COD would

always be the buyer. COD also provided general instructions regarding the conduct

of an auction that would be the same from auction to auction.

Ostlund described information provided to Black Tie before Black Tie

attended its first auction on COD’s behalf, reiterating earlier testimony that

Steigmeier received three documents on December 23, 2018: the max bid sheet, the LLC paperwork for Steigmeier to present when he won an auction, and an

instruction sheet that described the auction process.

Ostlund testified that in December 2018, Steigmeier purchased

property at a sheriff’s sale on behalf of COD. Ostlund confirmed that the bidder-

information sheet listed “COD Properties Ohio LLC” as the entity to which the deed

should be issued, with Steigmeier identified as the bidder.

In January 2019, COD provided Steigmeier an updated address for

COD. The new address was 7 St. Clair Avenue, Suite 450, Cleveland, Ohio.

Before the auction for the Edgewood Property, COD had purchased

approximately four or five houses in Ohio.

Ostlund testified that, in his capacity as president of COD, he entered

into a joint-venture agreement with Swanson dated January 23, 2019. Swanson

agreed to provide capital to COD to purchase properties in Ohio.

The purpose of the meeting with himself, Swanson, and Steigmeier at

Black Tie’s offices in early February 2019 was to talk about the process and to

introduce Swanson. Swanson gave Steigmeier five $5,000 cashier’s checks that

were intended for use at future auctions. Ostlund understood the checks “were kept

in a secure place in Black Tie.” At the time of that meeting, COD was interested in

purchasing the Edgewood Property that was going to be up for auction on

February 11, 2019. Ostlund conveyed to Black Tie that COD wanted Black Tie to

represent COD at the February 11, 2019 auction. On February 11, 2019, at 11:17 a.m., Steigmeier sent an email to COD

informing it that he had won the auction for the Edgewood Property. Additionally,

Steigmeier sent an invoice to COD for auction services.

Ostlund testified regarding documents related to the Edgewood

Property auction. He identified the cashier’s check used to make the deposit on the

Edgewood Property. The $5,000 cashier’s check was dated January 30, 2019, and

was made payable to the Cuyahoga County Sheriff.

A document titled “Distribution of Sale Proceeds” identified “Ryan O.

Steigmeier” as the purchaser of the Edgewood Property. After accounting for

various fees and taxes, that document stated the total amount remaining to be paid

for the Edgewood Property was $31,736.22. Ostlund testified that COD paid the

balance due.

The Sheriff’s Report of Sale identified “Ryan O. Steigmeier” as the

“highest and best bidder” for the Edgewood Property with the sum of $35,000. The

address listed Steigmeier’s address as “7 St Clair Cleveland, OH.”

Ostlund identified the bidder-information sheet for the Edgewood

Property. On the line for “Title Name,” in Steigmeier’s handwriting, appears: “COD

Properties LLC/Ryan Steigmeier.” Ostlund testified that he does not have a

company registered in Ohio with that name.

On February 13, 2019, Varner emailed Albano, Ostlund, Vasquez, and

Steigmeier. The subject line read, “Discontinuing Attending Auctions Moving

Forward.” The body of the email read, “Hi guys, we will no longer attend auctions moving forward. Please have someone pick up the remaining checks from our office

or provide a mailing address to send the existing checks.” Ostlund had “no clue” as

to why Varner sent that email; according to Ostlund, Varner “just decided not to do

the work anymore at that time I believe.”

Ostlund responded via email later that day, saying that he had “talked

with Ryan on what happened which is all good. We will be lining up [a] guy to pick

up checks on Friday which I will text Ryan the guys [sic] full name. Thanks again

for all your support and will be in touch soon.” When asked “what happened with

Ryan,” Ostlund testified, “Ryan just told me that they were just no longer — they

were going to focus their time more on other things in their business.” Someone

retrieved the unused deposit checks from Black Tie.

Ostlund testified about email communications between himself and

Steigmeier regarding Steigmeier’s invoice for $600 for having attended auctions on

behalf of COD. Ostlund was willing to make the payment requested; however, he

asked Steigmeier to complete a W-9 form for tax purposes before transmitting the

check to Steigmeier. Steigmeier declined to do so, instead informing Ostlund that

he could “[k]eep the money.”

The process for making payment for a property once COD was deemed

the successful bidder included “the $5,000 deposit down. They receive it and then

the next step is waiting for them to give you a confirmation . . . . [W]ithout the

confirmation of sale, you’re never going to own the property.” According to Ostlund,

sometimes it takes many months, even up to a year, before confirmation of sale is received. When COD first started buying properties in Ohio in December 2018, “we

didn’t really understand. So that’s why we had our legal team. . . [to] get as much

expertise that we can in relying on your resources to help us.”

Ostlund never got the order of confirmation of sale on the Edgewood

Property. Nonetheless, he did eventually pay the remainder of the purchase price.

He could not recall how he knew to make the payment.

COD had 30 days from the date of sale confirmation to provide the full

purchase price. Ostlund explained that if this 30-day deadline is missed, “you go

into contempt,” the consequence being that “they take your deposit . . . so on the

Edgewood . . . I would have lost my $5,000 deposit.” Additionally, the property

would be resold at auction. Concerning the Edgewood Property, Ostlund testified,

“If they sell it and it goes over the bid, they’re actually — the buyer actually gets extra

money, so that money would have been went [sic] to Ryan.” This was because,

according to the sheriff’s paperwork and court records, Steigmeier was the

purchaser of the Edgewood Property.

Ostlund testified concerning a motion for contempt filed against

Steigmeier regarding the Edgewood Property. According to the motion and

accompanying affidavit, the deed for the Edgewood Property had been “duly

prepared and [was] ready for delivery” to Steigmeier; however, he “failed and

refused to pay the aforesaid purchase price.” A contempt hearing was set for

June 10, 2019. By that date however, payment for the property had been completed. As a result, according to a magistrate’s order dated June 28, 2019, the motion and

affidavit in contempt against Stegmeier were moot.

According to Ostlund, COD had given Steigmeier explicit instructions

that the Edgewood Property was supposed to have been titled, “COD Properties

Ohio, LLC.” Ostlund learned on June 21, 2019, that did not happen. He was on an

elevator on his way to the sheriff’s office to pick up deed receipts to properties other

than the Edgewood Property. He encountered Stegmeier, who, according to

Ostlund, would not talk to him. Ostlund said, “Hi.” Steigmeier just looked down.

According to Ostlund, when he and Steigmeier got to the clerk’s

counter, Steigmeier stated that he was there “for the 15508 Edgewood Drive

property. I’m here to pick up a deed.” Ostlund was confused. The clerk responded

to Steigmeier, “‘Yeah, the deed’s been done. It’s recorded.’” Ostlund was upset by

what he heard. He was in shock. He testified that Steigmeier then said, “‘That’s

awesome. I have it sold to another investor. I have it sold to another investor.’”

According to Ostlund, he responded that the Edgewood Property was his and that

Steigmeier had stolen it. Ostlund claimed he told Steigmeier that he needed to deed

the Property back to COD. Steigmeier said nothing in response, he just left. Ostlund

later testified that when he asked Steigmeier to deed the property over to COD,

Steigmeier responded, “’No, we have it sold’” and then left.

Ostlund testified that afterward he tried to contact Varner but Varner

did not respond. He also contacted his attorney who sent an email to Black Tie

asking them to return the Edgewood Property to COD. They did not. According to Ostlund, eventually Black Tie told him that they would not give the deed to COD

because, “It’s not your money. Prove it. It’s not your money.”

Approximately three years later, COD did get title to the Property. A

receiver had been appointed over the Edgewood Property and that receiver sought

and received court approval to effectuate the transfer. Ostlund identified a journal

entry dated May 17, 2022, approving the transfer of legal title of the Edgewood

Property to COD. The Edgewood Property was transferred to COD via a quitclaim

deed dated June 28, 2022.

Ostlund testified he had an escrow agreement with Black Tie.

Ostlund testified that the delay in the payment of the purchase price

for the Edgewood Property was caused by the fact that he did not know when the

sale had been confirmed. Thus, although the auction was February 11, 2019, COD

did not complete payment until June. He also verified that in responding to

interrogatories, COD had responded that “[t]he reason for the delayed payment

stems from the number of properties that COD was working to get funded and it was

a matter of poor timing and funding availability or lack thereof.”

6. Alnita Grant

Black Tie called as its first witness Alnita Grant (“Grant”) who works

for the Cuyahoga County Fiscal Office in the Transfer Reporting Department. That

department handles deeds, mortgage liens, and real estate transfers concerning real

property in Cuyahoga County. Grant’s job duties as a senior account clerk included

processing documents such as deeds and conveyance forms. Grant explained that she is familiar with a form that is used to correct

a deed previously recorded if there is a mistake or error on the recorded deed. For

example, a legal description may need to be clarified or a name may have been

misspelled. That form would be used and the transfer would be effectuated.

7. Valerie Pavlich

Valerie Pavlich works for the Cuyahoga County Sheriff’s Office. As of

trial, she had been working there for at least 15 years.

Pavlich testified that as of February 11, 2019, the information required

on bidder forms included the date, the case number, the permanent parcel number,

the amount the property was purchased for, the name of the bidder, and whatever

the bidder wanted the title to read. If an LLC was involved, it would have to be

registered with the State of Ohio. The purchaser fills out the part of the form

identifying in whose name the deed should be prepared.

Pavlich testified that it is her job to verify that any companies

identified are registered with the State of Ohio. The bidder fills out the form while

Pavlich confirms that the business entity is registered. If the business is not

registered, the bidder can put their name down on the form. “If they do that and

that happens, they can do a quitclaim deed. That cost $45 to do a quitclaim deed . . .

and then they change it.” Within a day or two of sale, the results of the sale will be

posted on the internet.

Pavlich confirmed that the handwriting on the bidder-information

form for the Edgewood Property is not hers. According to Pavlich, where the form asks for the Property to be titled to COD Properties, LLC/Ryan Steigmeier,

“sometimes they’re allowed to do that.” The way the Edgewood Property bidder-

information form was prepared indicates to her that she looked online, could not

find COD Properties, LLC, and “Steigmeier put his name on there.” Pavlich would

only ask an individual to put their name on the form if she could not find the

business entity existing in Ohio.

8. Nicholas Varner

Varner testified on his own behalf and on behalf of Black Tie. He is

the managing member of Black Tie. Black Tie was formed in 2017.

Varner testified that he had never handled escrow for the sale of a

foreclosure property purchased at sheriff’s sale.

Varner described his limited relationship with Ostlund and others at

COD. He was introduced to Ostlund via email by an investor who would buy

properties. In that email, the investor described Ostlund as “doing some business

in Cleveland. Mostly buying at auction and he has a few questions for you.” From

October 2018 to February of 2019 when Varner cut ties with Ostlund and his group,

Varner had met Ostlund three times and exchanged emails and a few phone calls.

That was the extent of their relationship. Varner never met Albano in person but

was on emails with him. He did come into contact with Vasquez who he understood

to be Ostlund’s State of Ohio manager.

Varner explained that Ostlund indicated “he was going to buy the

properties.” It had not crossed Varner’s mind that Ostlund was not going to use his group’s money to purchase properties at auction. Varner did not give Ostlund any

information or advice regarding what properties to buy.

Regarding his December 26, 2018 email to Ostlund and others, when

Varner asked, “How are payments going to be handled?” he wanted to know “what

level of requirement this was going to take from [Steigmeier].” It had been explained

to Varner that what Steigmeier was being asked to do was “an extremely basic task

that wouldn’t take very long that you can handle outside of the day-to-day activities.”

Prior to meeting Ostlund, Steigmeier had no experience attending sheriff’s sales.

Varner did not pay close attention to the details of the relationship. He was not

“aware of what LLC or bidder name they were working under.”

Ostlund sent Varner an email on February 2, 2019, regarding two

properties – Fortune and Highland – transmitting a purchase and sale agreement.

Varner met with Ostlund on February 3, 2019, and they went to look at those two

properties. Varner testified that Ostlund “was hoping that I would buy these

properties.” Varner understood Ostlund to be asking if Black Tie would open up title

and escrow. Upon reviewing the purchase and sale agreements, Varner understood

that Ostlund was lining up prospective buyers and trying to get them to fund the

balance of the sale to the sheriff directly. Black Tie did not open up title and escrow

“[b]ecause it was clear to [Varner] that [Ostlund] did not own the properties and

also [Varner] had no interest in doing anything that [he] perceived to be illegal real

estate business.” After reviewing the two agreements provided by Ostlund, along with

a document outlining COD’s business model, Varner concluded that “this was not

something that I felt comfortable with at all. It was clear [Ostlund] was selling

something he did not own.” According to Varner, Ostlund was “trying to get

prospective buyers to fund auction properties to pay the balance.”

Varner explained his reasoning behind sending the February 13, 2019

email ending the relationship between Black Tie and COD. Varner “didn’t want

anyone that I knew to be associated with that business model including myself,

including [Steigmeier], anyone.”

Varner identified email correspondence from COD’s lawyer to him,

among others, dated June 21, 2019, demanding that Steigmeier title the Edgewood

Property to COD. Varner responded that Steigmeier “is caught in the middle and

has fiduciary obligations to preserve the transfer of the property on behalf of all

persons and entities with the potential interest in the property.” Varner went on to

demand information from COD, including, but not limited to, “proof of every person

and entity who paid and remitted purchase price including the down payment.”

Varner also demanded documentation authorizing Steigmeier to title the Property

to COD, a resolution on behalf of every entity involved disclaiming interest in the

Property, a written release and a hold harmless agreement indemnifying Black Tie

“in the event that other parties with an interest in the [property] later challenge the

transfer.” Varner did not receive the information he had demanded. Varner wanted

a court order from a judge and/or a receiver as to how the Property should be titled. On cross-examination, Varner agreed that there was no agreement

for Steigmeier to take title to the Edgewood Property. At some point, Steigmeier

told Varner that he had the deed to the property. According to Varner, Steigmeier

never went to the sheriff’s office to pick up the deed. “He went down there to get out

of contempt of court.” Varner understood that the deed had already been titled in

Steigmeier’s name.

On June 21, 2019, Varner did not have any agreement regarding

escrowing or sending any money to the sheriff to complete the purchase price on the

Edgewood Property. Further, Steigmeier did not want the Property.

Varner wanted the information he had requested from COD — the

proof of who paid, the resolution, the release, and the hold harmless agreement —

for his own protection, for Black Tie, Steigmeier, and himself and also “for the people

who paid consideration.” According to Varner, once the Property was titled into

Steigmeier’s name, “there was a responsibility to those whose money was put in

consideration.” That responsibility was Black Tie’s, among others. Because this was

an “outlier or random event,” Varner contacted his attorney.

Varner contended that Black Tie never had any escrow agreement

with anybody with regard to the Property. Nonetheless, he maintained that

Steigmeier had a “duty to step in and figure out whose money it was.”

The ownership of the Property went from the sheriff to Steigmeier,

from Steigmeier to the Receiver, and then from the Receiver to COD. That last step

occurred in June 2022. 9. Steigmeier on Direct Examination

Steigmeier clarified that he had only attended sheriff sales on behalf

of Ostlund/COD. On behalf of COD, Steigmeier bid on the “Morris property” and

won the bid. When preparing the bidder-information sheet, he wrongly identified

the entity for title as “COD Properties LLC.” As was the case with the Edgewood

Property, there was a problem with the Morris property being titled after Steigmeier

won the bid on behalf of COD. That title was fixed; it is not in Steigmeier’s name

any longer. Steigmeier testified that he did not know that he was filling out the

bidder information forms incorrectly.

According to Steigmeier, he did not know there was a problem with

the title to the Edgewood Property until he was held in contempt of court. Once he

realized that, “we contacted our lawyers.”

II. Law and Analysis

A. Final Appealable Order

At the outset, we consider whether Appellants have presented a final

appealable order under R.C. 2505.02 such that this court is vested with jurisdiction

to review the present appeal. In response to this court’s requested briefing on the

issue, both COD and Appellants urge this court to find a final appealable order,

which we do.

The record reveals that COD’s claims for promissory estoppel and

unjust enrichment were not expressly resolved. The trial court denied summary

judgment, finding genuine issues of material fact. At trial, the jury was instructed on each of these claims and provided separate verdict forms for each of these claims.

Consistent with the instructions they were given, the jury found Black Tie liable for

breach of contract and they left the verdict forms for promissory estoppel and unjust

enrichment blank. The journal entry memorializing the jury’s verdict makes no

mention of promissory estoppel or unjust enrichment. The journal entry does not

include Civ.R. 54(B) language indicating that “there is no just cause for delay.”

This court has recognized that ordinarily, “[w]hen a court issues a

judgment that disposes of some claims but leaves other claims pending, the order is

final and appealable only if the judgment complies with Civ.R. 54(B).” FedEx

Corporate Servs. v. Brandes Internatl. Co., 2020-Ohio-3449, ¶ 11, fn. 1 (8th Dist.).

However,

“if the effect of the judgment as to some of the claims is to render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not required to make the judgment final and appealable.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989); see also Wise v. Gursky, 66 Ohio St.2d 241, 243 (1981) (“A judgment in an action which determines a claim in that action and has the effect of rendering moot all other claims in the action as to all other parties to the action is a final appealable order pursuant to R.C. 2505.02 and Civ.R. 54(B) is not applicable to such a judgment.”).

Id.; see also Ameritech Publishing, Inc. v. Mayo Bail Bonds & Sur., Inc., 2013-Ohio-

831, ¶ 13 (6th Dist.) (finding a final appealable order without regard to Civ.R. 54(B)

relief granted on breach of contract rendered moot claims for unjust enrichment and

quantum meruit).

It is well-settled that a finding of liability on a claim for breach of

contract renders moot a claim for unjust enrichment or promissory estoppel. See, e.g., Gallagher Sharp. L.L.P. v. Miller Goler Faeges Lapine L.L.P., 2019-Ohio-3508,

¶ 19 (8th Dist.) (“Unjust enrichment is not applicable where an express contract

exists.”); Graham v. Lakewood, 2018-Ohio-1850, ¶ 59-61 (8th Dist.) (the existence

of a valid and enforceable contract bars recovery under unjust enrichment or

promissory estoppel); Wells Fargo Fin. Leasing Inc. v. Gilliland, 2006-Ohio-2756,

¶ 25 (4th Dist.) (where the jury found the defendant liable under an express contract,

a claim for unjust enrichment would “not lie, because the subject matter of the claim

is covered under an express contract” so that the unjust-enrichment claim was moot

for purposes of R.C. 2505.02; finding a final appealable order).

The jury’s verdict finding an express contract that was breached

rendered moot COD Properties’ promissory-estoppel and unjust-enrichment

claims. See 12100 Buckeye Ltd. v. Council for Economic Opportunities in Greater

Cleveland, 2021-Ohio-4517 (8th Dist.) (recognizing that the existence of a contract

between the parties bars recovery under a theory of promissory estoppel); see also

Digitalight Sys. v. Cleveland Clinic Found., 2022-Ohio-1400, ¶ 65 (8th Dist.)

(recognizing that it is well settled that the existence of a valid contract between the

parties bars recovery under a theory of unjust enrichment when the contract covers

the same subject matter).

Thus, the court’s journal entry memorializing the jury’s verdict

resolved all of COD’s substantive claims against Black Tie, Varner, and Steigmeier

such that, once the issue of attorney fees was resolved, this matter was appealable

pursuant to R.C. 2505.02. See Rojas v. Concrete Designs, Inc., 2017-Ohio-379, ¶ 4 (8th Dist.) (noting that a final order under R.C. 2502.02 requires that the order

“affects a substantial right in an action that in effect determines the action and

prevents a judgment”).

Having determined this matter is properly before this court, we now

consider Appellants’ assignments of error, which we will, at times, address together

and out of order for ease of analysis.

B. Summary Judgment

In assignments of error Nos. 1, 2, and 3, Appellants argue the trial

court erred when it denied their motion for summary judgment on COD Properties’

claims for breach of fiduciary duty, conversion, and civil theft. We find no merit to

these arguments.

We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). Under Civ.R. 56, summary judgment is appropriate when no genuine issue

exists as to any material fact and, viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse

to the nonmoving party, entitling the moving party to judgment as a matter of law.

Id. On a motion for summary judgment, the moving party carries an initial burden

of identifying specific facts in the record that demonstrate his or her entitlement to

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). A fact is

material if it “‘might affect the outcome of the suit under the governing law’ of the

case.” Oko v. Cleveland Div. of Police, 2021-Ohio-2931, ¶ 23 (8th Dist.), quoting Turner v. Turner, 67 Ohio St.3d 337, 340 (1993). “A factual dispute is ‘genuine’ only

if ‘it allows reasonable minds to return a verdict for the nonmoving party.’”

Huntington Natl. Bank v. Blount, 2013-Ohio-3128, ¶ 32 (8th Dist.), quoting Sysco

Food Servs. v. Titan Devs., 1995 Ohio App. LEXIS 4762, * 7 (9th Dist. Oct. 25, 1995).

The Ohio Supreme Court has explained that

[w]hile any error in the denial of a motion for summary judgment will often be rendered moot or harmless when the trial proceedings show that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion for summary judgment was made, . . . the denial of a motion for summary judgment is not harmless when the denial was predicated on a pure question of law.

Bliss v. Manville, 2022-Ohio-4366, ¶ 14, citing Continental Ins. Co. v. Whittington,

71 Ohio St.3d 150 (1994), syllabus; see also Batsche v. Batsche, 2024-Ohio-1234,

¶ 13 (12th Dist.) (“[D]enial of summary judgment based on issues of material fact

followed by a verdict in favor of the nonmoving party renders the denial of summary

judgment moot or harmless . . . . Errors in denying summary judgment that relate

solely to legal questions, however, are reviewable.”) (Citations omitted.)

As such, under long-standing and recently reaffirmed Ohio Supreme

Court guidance, Appellants must demonstrate that the denial of summary judgment

was predicated on a pure question of law to succeed in any of their first three

assignments of error. They have failed to do that here.

To begin, the trial court explained in its judgment partially denying

Black Tie, Varner, and Steigmeier’s motion for summary judgment that “genuine

issues of material fact remain, which preclude summary judgment” on COD Properties’ claims for breach of fiduciary duty, civil theft, and conversion.1 Thus, the

judgment shows that the case proceeded to trial on factual disputes, not legal ones.

The parties’ arguments and the evidence presented at the summary-

judgment phase of these proceedings demonstrated that COD and the Defendants

offered differing versions of the events at the heart of this dispute. For example,

COD presented evidence in the form of Ostlund’s testimony that when Ostlund went

to the sheriff’s office to pay the remainder of the purchase price for the Edgewood

Property, he met up with Steigmeier who was there to collect the deed for the same

property. At his deposition, Ostlund testified that Steigmeier told him that

Steigmeier had sold the Edgewood Property to a third party and refused to make

arrangements to turn the deed over to COD. On the other hand, Defendants

presented evidence in the form of an affidavit from Steigmeier in which he asserted

that he never claimed an interest in the Edgewood Property, that his name

appearing on the deed was an innocent mistake, and that he was willing to retitle

the property once he had a clear understanding of exactly who paid the remainder

of the purchase price so that he could make sure the property was properly titled.

COD’s claims for breach of fiduciary duty, civil theft, and conversion

all revolve around the questions of whether Steigmeier wrongfully used COD’s

$5,000 to bid on the Edgewood Property and then refused to turn over the

Edgewood Property to COD and whether Appellants had sold the Edgewood

1 Notably, the trial court did grant summary judgment in favor of Appellants on

seven of the counts in the fourth amended complaint. Property to a third party. The trial court correctly identified that disputed facts

precluded an award of summary judgment.

In light of the foregoing, Appellants’ first, second, and third

assignments of error are overruled.

C. Judgment Notwithstanding the Verdict

In assignments of error Nos. 4 and 5, Appellants argue that the trial

court erred in denying their motion for judgment notwithstanding the verdict on

COD’s substantive claims of conversion, civil theft, and breach of fiduciary duty and

on the award of punitive damages in connection with COD’s claim for breach of

fiduciary duty.

Ohio’s appellate courts review de novo a trial court’s ruling on a

motion for judgment notwithstanding the verdict, giving no deference to the trial

court’s decision. Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986); Goodyear Tire &

Rubber Co. v. Aetna Cas. & Sur. Co., 2002-Ohio-2842, ¶ 4. A motion for judgment

notwithstanding the verdict tests the legal sufficiency of the evidence. Osler at 347;

Goodyear at ¶ 4. Without considering the weight of the evidence or the credibility

of the witnesses,

[t]he evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support [the nonmoving party’s] side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Posin v. ABC Motor Court Hotel, 45 Ohio St.2d 271, 275 (1976); see also

Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 2008-Ohio-3833,

¶ 22; Trax Constr. Co. v. Reminderville, 2021-Ohio-3481 (11th Dist.).

1. Assignment of Error No. 4 — Conversion and Civil Theft — Theft of Real Property

Appellants argue that they were entitled to judgment

notwithstanding the verdict because the civil theft and conversion claims against

them were premised on the theft of real property. According to Appellants, neither

conversion nor civil theft may, as a matter of law, be premised on the improper

exercise of dominion or control over of real property.

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

property belonging to another inconsistent with or in denial of the rights of the

owner.” (Cleaned up.) Mathews v. Cooper, 2021-Ohio-2768, ¶ 46 (8th Dist.). To

establish a claim for conversion, “the owner of the property must show the following:

(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.” Beavers v. PNC Bank, N.A.,

2013-Ohio-5318, ¶ 29 (8th Dist.), citing Pointe at Gateway Condo. Owner’s Assn. v.

Schmelzer, 2013-Ohio-3615, ¶ 29 (8th Dist.), citing Tabar v. Charlie’s Towing Serv.,

Inc., 97 Ohio App.3d 423, 427-428 (8th Dist. 1994). In Beavers, this court

concluded that “a claim of conversion must be based on the taking of identifiable

personal property.” Id., citing Landskroner v. Landskroner, 2003-Ohio-5077 (8th

Dist.). “To the extent that [Plaintiff] is asserting a claim of conversion of real

property, her claim must fail because Ohio law does not recognize such a claim.” Id.

at ¶ 30, citing Cleveland v. Sohio Oil Co., 2001 Ohio App. LEXIS 5192, *20-21

(Nov. 21, 2001); see also STE Invs., L.L.C. v. Macprep, Ltd., 2022-Ohio-2614, ¶ 24

(6th Dist.).

COD does not dispute that, under Ohio law, a claim for conversion

cannot be based on real estate. Instead, COD responds that, as relates to its

conversion claim, the jury awarded $0 in damages, even though it found Black Tie,

Varner, and Steigmeier liable for conversion. According to COD, the matter is moot.

We disagree.

The sole case relied on by COD, Ramadan v. MetroHealth Med. Ctr.,

2011-Ohio-67 (8th Dist.), is inapposite. In Ramadan, the appeal specifically

concerned the method of calculating damages. However, because the court

determined that no damages had been awarded, the question of whether a particular

item could be included in the calculation was rendered moot. In contrast, the issue

in the present case is not about damages, but rather whether the finding of liability

for conversion was appropriate. It was not.

Here, the jury interrogatories make clear that COD’s claim for

conversion was based upon the alleged conversion of real property. As to each of

the Defendants individually, the jury was asked, “Has plaintiff proved that it owned

the Edgewood Property on June 21, 2019?” and then, “Has plaintiff proved defendant [Black Tie, Stegmeier, or Varner] wrongfully exerted dominion over the

Edgewood Property?”

Because COD’s claim for conversion was based on the alleged

conversion of real property, we find that the trial court erred in denying Appellants’

motion for judgment notwithstanding the verdict on each of COD’s conversion

claims.

However, a claim for civil theft is not similarly limited to personal

property. In its fourth amended complaint, COD sought to recover damages under

R.C. 2307.61 which allows a property owner to bring a civil action to recover

damages from any person who commits a theft offense under R.C. 2913.02. In turn,

R.C. 2913.02 provides that

[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over . . . the property . . . (1) Without the consent of the owner or person authorized to give consent; (2) beyond the scope of the express or implied consent of the owner or person authorized to give consent . . . .

The Committee Comment explaining the 1974 enactment of R.C. 2913.02 states that

“[t]heft of services and real property . . . are within the purview of the section.” See,

e.g., State v. Azir, 2006-Ohio-5449 (8th Dist.) (concerning theft of real property).

This court has recognized and upheld a claim for civil theft based on

theft of a quitclaim deed. See Dancybey v. Dancy-Dunlap, 2022-Ohio-2774 (8th

Dist.); see also State v. Lenard, 2018-Ohio-3365, ¶ 47-49 (8th Dist.) (upholding

conviction for theft under R.C. 2913.02(A)(3) based on real estate transaction). In

Dancybey, the plaintiff asserted a claim for deception pursuant to R.C. 2307.61, among other grounds. The defendant had obtained a copy of a quitclaim deed in her

name executed by her aunt and uncle for the limited purpose of providing her a place

to live should they predecease her when she was young. Id. at ¶ 2. Defendant grew

up, married, and moved away. Id. at ¶ 3. She found the deed years later, after her

aunt had died. Id. Notwithstanding the fact that the limited purpose behind the

quitclaim deed had long since passed, defendant recorded it with the county

recorder unbeknownst to the uncle. Id. After her uncle moved from the house to a

nursing home, defendant evicted her cousin who was living there. Id. The uncle

sued and, after he passed away, his executor pursued the claim for civil theft based

on theft of a real property interest. Id. at ¶ 4. Summary judgment was granted to

plaintiff and upheld by this court; defendant was found liable pursuant to

R.C. 2307.61. Id. at ¶ 1.

Appellants rely on Batsche, 2024-Ohio-1234 (12th Dist.), to argue

that a civil-theft claim cannot be based on theft of a real property interest. We are

not persuaded. In Batsche, the court held that claim for conversion and civil theft

based on allegedly improper withdrawals from two money management accounts

were alternative claims. See id. It did not address real property.

In accord with Dancybey, we find that a claim for civil theft can, as a

matter of law, be premised on theft of an interest in real property, as was the case

here. Consequently, we find that the trial court did not err in denying Appellants’

motion for judgment notwithstanding the verdict as relates to Appellants’ argument

that civil theft may not, as a matter of law, be premised on the theft of real property. 2. Assignment of Error No. 4 — Conversion and Civil Theft — Intent to Deprive COD

In support of their fourth assignment of error regarding civil theft,

Appellants argue that the trial court erred when it denied their motion for judgment

notwithstanding the verdict because at trial, “there continued to be no evidence that

Appellants obtained or exerted control [over] COD’s property with the ‘purpose’ of

depriving COD of it.” We disagree.

Having determined that the trial court erred by denying Appellants’

motion for judgment notwithstanding the verdict regarding COD’s conversion

claim, any further consideration of the evidence with regard to this claim would

amount to an advisory opinion, which this court is prohibited from issuing. See

State v. Elston, 2006-Ohio-3733, ¶ 5 (8th Dist.). We therefore decline to address

Appellants’ arguments regarding conversion further.

To prevail on its claim for civil theft, COD needed to demonstrate by

a preponderance of the evidence that Appellants willfully committed a theft offense

as defined by R.C. 2913.01. See Olive Oil, L.L.C. v. Cleveland Elec. Illum. Co., 2021-

Ohio-2309, ¶ 28 (8th Dist.). R.C. 2913.01 defines “theft offense” to include a

violation of R.C. 2913.02, which is the predicate offense alleged in COD’s claim for

civil theft. R.C. 2913.02(A) provides that “[n]o person, with purpose to deprive the

owner of property or services, shall knowingly obtain or exert control over either the

property or services . . . [w]ithout the consent of the owner or person authorized to

give consent.” Arguing insufficient evidence to support civil theft, Appellants point

out that Varner and Steigmeier testified that it was a mistake for Steigmeier’s name

to appear on the deed for the Edgewood Property, that Steigmeier did not want the

Edgewood Property, that Steigmeier did not intend to use it or rent it or sell it, and

that Appellants were willing to change the name on the deed so long as COD

disclosed who paid the balance on the purchase price. However, Appellants fail to

recognize that Varner and Steigmeier were not the only witnesses to testify in this

case and that other witness testimony suggests that there was intent to obtain or

exert control over the property.

Ostlund testified that on June 21, 2019, Steigmeier stated that he had

already sold the property to another investor and refused to return the Property to

COD. If believed, this testimony could demonstrate that Steigmeier’s name on the

title of the Edgewood Property was not an innocent mistake.

The evidence at trial further demonstrated that title to the Edgewood

Property was in Steigmeier’s name from mid-2019 until June 2022, despite the fact

that neither he nor Black Tie had paid the deposit or the balance due on the purchase

price. Steigmeier understood that he was attending the auction on behalf of COD,

that he was expected to use the $5,000 cashier’s check for the deposit if he won the

bid in accordance with COD’s instructions, and that he was expected to identify COD

as the entity in whose name the property should be titled. Ostlund and Albano

testified that COD paid the balance due on the purchase price. While Defendants

questioned whether it was truly COD who paid the balance on the Edgewood property, the only evidence of third-party payment that the jury had before it was

that Swanson’s father gave money to COD and that COD eventually paid the

purchase price. Though Steigmeier won the auction for the Property on behalf of

COD on February 11, 2019, COD did not take possession of the Property until June

2022 when the receiver titled it to COD. The delay was caused by Defendants’

refusal to act to correct the error when the Property was titled in Steigmeier’s name

rather than COD’s.

Looking at the entire record, and understanding that it is not our role

to weigh witness credibility, we find the evidence, when viewed in the light most

favorable to COD, is sufficient to support COD’s claim for civil theft. We therefore

find no error in the trial court’s denial of Black Tie’s motion for judgment

notwithstanding the verdict with regard to the civil-theft claim.

3. Assignment of Error No. 4 — Breach of Fiduciary Duty

Appellants argue that the evidence did not support COD’s claim for

a breach of fiduciary duty because COD never presented evidence that a fiduciary

relationship existed. We disagree.

Appellants specifically argue that “any fiduciary relationship must be

mutual” and that here “the record simply did not bear that out.” The only case relied

on by Appellants for this proposition, Tornado Techs. v. Quality Control Inspection,

Inc., 2012-Ohio-3451, ¶ 26 (8th Dist.), found that an ordinary business relationship

between an insurance agent and client did not rise to the level of a fiduciary

relationship. In arriving at that conclusion, the court noted that “while the law has recognized a public interest in fostering certain professional relationships, such as

the doctor-patient and attorney client relationships,” it has not recognized other

relationships like the insurance agent-client relationship to be of similar

importance. Id. at ¶ 27, citing Rose v. Landen, 2005-Ohio-1523 (12th Dist.).

“A fiduciary relationship is one in which ‘special confidence and trust

is reposed in the integrity and fidelity of another and there is a resulting position of

superiority or influence, acquired by virtue of this special trust.’” Hawes v. Downing

Health Techs. L.L.C., 2022-Ohio-1677, ¶ 43 (8th Dist.), quoting Stone v. Davis, 66

Ohio St.2d 74 (1981) (no fiduciary relationship where parties negotiated an arms-

length commercial transaction where the parties did not stand in a position of

special confidence to one another); see also In re Termination of Emp. of Pratt, 40

Ohio St.2d 107, 115 (1974) (explaining that a fiduciary relationship is one “in which

special confidence and trust is reposed in the integrity and fidelity of another and

there is a resulting position of superiority or influence acquired by virtue of this

special trust”).

“A ‘fiduciary’ has been defined as ‘a person having a duty, created by

his undertaking, to act primarily for the benefit of another in matters connected

with his undertaking.’” (Emphasis in original.) Strock v. Pressnell, 38 Ohio St.3d

207, 216 (1988), quoting Haluka v. Baker, 66 Ohio App. 308 (9th Dist. 1941). “A

breach of a fiduciary duty claim essentially is a negligence claim involving a higher

standard of care.” Hurst v. Entertainment Title Agency, 2004-Ohio-2307, ¶ 39

(11th Dist.), citing Strock at 216. “Thus, the party asserting such breach must establish the existence of a fiduciary duty, a breach of that duty, and an injury

proximately therefrom.” Id.

We are mindful of our obligation, when reviewing the trial court’s

denial of a motion for judgment notwithstanding the verdict, to construe the

evidence in the record “most strongly in favor of the party against whom the motion

is made, and, where there is substantial evidence to support [the nonmoving party’s]

side of the case, upon which reasonable minds may reach different conclusions, the

motion must be denied.” Posin, 45 Ohio St.2d at 275.

In this case, the jury answered interrogatories that clarified the scope

of the conduct at issue, finding Steigmeier liable for breach of fiduciary duties

because he “caused title to the Edgewood Property to be placed in his name or

thereafter withheld title for an extended time” and that Black Tie and Varner

breached fiduciary duties when “defendant [Steigmeier] failed to cause title to be

issued in plaintiff’s name or thereafter withholding title for an extended time.”

The evidence presented at trial demonstrated that COD was

dependent on Steigmeier to ensure that the Edgewood Property was titled in the

name of COD. Steigmeier, while working for Black Tie, attended the sheriff’s sale

on behalf of COD. He understood that he was supposed to fill out the bidder-

information sheet so that title would be issued in COD’s name once the full purchase

price had been paid. He understood that he was given the $5,000 deposit checks

for use on behalf of COD if he won any of the bids. Further, Black Tie, Varner, and Steigmeier were obligated to correct

any mistake in titling the properties purchased at sheriff’s sale. That special trust

and confidence to obey instructions and be loyal to COD was breached when

Steigmeier prepared the bidder-information sheet in such a way that title was issued

to him and then when Black Tie, Steigmeier, and Varner refused to correct the error

in the title to the Edgewood Property. Absent Appellants fulfilling their duties, COD

was powerless to effectuate the intended outcome — that the Edgewood Property be

titled in COD’s name. See Burns v. Prudential Sec., Inc., 2006-Ohio-3550, ¶ 100

(3d Dist.) (finding breach of fiduciary duty where defendant took control of

plaintiff’s assets that gave rise to enhanced fiduciary duties, which were not met).

As for mutuality, in his June 21, 2019 email to COD’s lawyers, Varner

explained that Steigmeier “is caught in the middle and has fiduciary obligations to

preserve the transfer of the property on behalf of all persons and entities with the

potential interest in the property.” Given that Appellants were hired by COD to

purchase the Edgewood Property at sheriff’s auction, COD was one of the “entities

with the potential interest in the property.” In light of Varner’s testimony at trial, it

is difficult to see how Black Tie can argue at this juncture that there was no mutual

understanding of heightened duties.

Moreover, the evidence at trial demonstrated that Varner and

Steigmeier operated Black Tie as a title and escrow company. They were, therefore,

in a position to understand that it was their responsibility to ensure that title

properly vested in connection with their work. Appellants noted that evidence was also presented that could be

construed to support a finding that Black Tie and COD had an ordinary business

relationship, not a fiduciary relationship. For example, Albano testified that COD

used the Task Rabbit app to hire people other than Steigmeier “sight unseen” to

perform the same duties that Steigmeier had been performing. However, reviewing

the trial court’s decision on judgment notwithstanding the verdict, we do not weigh

the evidence, but simply assess sufficiency.

Viewing the evidence most strongly in favor of COD, as we must, we

find that evidence presented at trial was sufficient to demonstrate that a fiduciary

relationship was established. The trial court did not err in denying Black Tie,

Varner, and Steigmeier’s motion for judgment notwithstanding the verdict on COD’s

claim for breach of fiduciary duty.

For the reasons set forth above, Appellants’ fourth assignment of

error is sustained as relates to COD’s claim for conversion but is otherwise

overruled.

4. Assignment of Error No. 5 — Punitive Damages Based on Breach of Fiduciary Duty

In Appellants’ fifth assignment of error, they argue that their motion

for judgment notwithstanding the verdict should have been granted on COD’s claim

for punitive damages because COD did not present evidence to support its claim for

breach of fiduciary duty or of actual malice. Having found that the evidence in the

record supported the finding of liability on COD’s claim for breach of fiduciary duty, we turn to whether COD presented sufficient evidence of actual malice on the part

of Black Tie.2

Pursuant to R.C. 2315.21, the burden of proof is on the party seeking

punitive damages to demonstrate actual malice by clear and convincing evidence.

“[A]ctual malice” is “(1) that state of mind under which a person’s conduct is

characterized by hatred ill will or a spirit of revenge or (2) a conscious disregard of

the rights and safety of other persons that has a great probability of causing

substantial harm.” Fowerbaugh v. Sliman, 2022-Ohio-1314, ¶ 63 (8th Dist.); see

also Best Motors, L.L.C. v. Kaba, 2025-Ohio-640 ¶ 86 (8th Dist.); Preston v.

Murty, 32 Ohio St.3d 334, 335 (1987) ( “Actual malice can be placed in two general

categories: first, behavior characterized by hatred, ill will, or a spirit of revenge

and, second, extremely reckless behavior revealing a conscious disregard for a

great and obvious harm.”). “[A]ctual malice can be inferred from conduct and

surrounding circumstances which may be characterized as reckless, wanton,

willful, or gross.” Burns, 2006-Ohio-3550, at ¶ 103 (3d Dist.), citing Columbus

Fin., Inc. v. Howard, 42 Ohio St.2d 178 (1975). “The purpose of punitive damages

2 The jury initially awarded punitive damages against Black Tie, Varner, and

Steigmeier on COD’s claims for conversion and breach of fiduciary duty. The trial court granted judgment notwithstanding the verdict on all but the award of punitive damages against Black Tie in connection with the claim for breach of fiduciary duty because no compensatory damages were awarded against any defendant for conversion and no damages were awarded against Varner and Steigmeier for fiduciary duty. “A plaintiff must be awarded some measure of compensatory damages to receive punitive damages.” Niskanen v. Giant Eagle, Inc., 2009-Ohio-3626, ¶ 12; see also R.C. 2315.21(C)(2). is not to compensate a plaintiff, but to punish and deter certain conduct.”

Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651 (1994).

After the jury returned its verdicts on COD’s underlying claims, the

court took a short recess for lunch and reconvened to consider whether to award

punitive damages. Counsel for COD stated that COD was not putting on any

additional evidence regarding punitive damages, but requested an opportunity to

argue actual malice. The court denied COD’s request. The jury was instructed on

punitive damages and returned a verdict in favor of COD, awarding $1 in punitive

damages against Black Tie in connection with COD’s claim for breach of fiduciary

duty.

Appellants argue there was “no evidence of actual malice at trial, let

alone clear and convincing evidence of it.” First, Appellants assert that because

COD presented no evidence at the bifurcated punitive-damages phase, their claim

for punitive damages must fail. We disagree.

R.C. 2315.21(B)(1)(a) provides, that if the punitive-damages phase

has been bifurcated, during the first compensatory-damages phase, “no party to

the tort action shall present, and the court shall not permit a party to present,

evidence that relates solely to the issue of whether the plaintiff is entitled to recover

punitive or exemplary damages.” (Emphasis added.)

By its plain terms, R.C. 2315.21 does not, as Black Tie urges,

disallow a party from presenting, in the initial phase, evidence necessary to

establish liability simply because that same evidence also demonstrates actual malice. But see Root v. Stahl Scott Fetzer Co., 2017-Ohio-8398, ¶ 69 (8th Dist.)

(stating that “R.C. 2315.21(B)(1) requires a trial court to bifurcate the compensatory

and punitive phases of a tort action upon the motion of any party”). Moreover, Black

Tie has not identified any evidence presented during the compensatory-damages

phase on the grounds that it went solely to the question of actual malice, much less

that such evidence has been wrongly admitted over Black Tie’s objection.

Black Tie next argues that there was no evidence of actual malice

presented at the liability phase. Black Tie highlights that Varner and Steigmeier

testified that the titling of the Edgewood Property in Steigmeier’s name was a

mistake, they did not want the Property, and they only declined to change the name

on the deed out of concern that someone other than COD had paid for it and

concern that such a transaction might implicate reporting requirements. Again,

Looking at the entirety of the record, we find that COD presented

evidence that, if believed, could have been construed as demonstrating a conscious

disregard to the rights of COD, which had a great probability of causing substantial

harm to COD, and, hence, that Black Tie acted with actual malice. In particular, we

note that Black Tie could have transferred the title to the Edgewood Property to COD

for a mere $45 but refused to do so. Not until the receiver was appointed was the

Property titled to COD, three years after the auction.

Reviewing Black Tie’s motion for judgment notwithstanding the

verdict, we do not weigh the evidence. We assess sufficiency only, viewing the evidence in the light most favorable to the nonmoving party, COD. Doing so, we

find that the trial court did not err in denying Black Tie’s motion. Appellants’ fifth

assignment of error is overruled.

D. Treble Damages

In their seventh assignment of error, Appellants contend that the

trial court erred in granting COD’s motion for treble damages under R.C. 2307.61,

following the jury’s determination of liability for civil theft. Our review of a trial

court’s decision to award or deny treble damages under R.C. 2307.61 is de novo.

Dancybey, 2022-Ohio-2774, at ¶ 9 (8th Dist.), citing X-Technology v. MJ

Technologies, Inc., 2002-Ohio-2259, ¶ 13 (8th Dist.).

Under R.C. 2307.61(A)(1)(a), a property owner who prevails in a civil

theft action is entitled to recover compensatory damages equal to the “value of the

property,” plus additional damages calculated as a set amount based on that value.

Alternatively, pursuant to R.C. 2307.61(A)(1)(b), the property owner may choose to

forego compensatory damages and instead recover liquidated damages equal to

either two hundred dollars or three times the “value of the property” at the time of

the theft (i.e., treble damages), whichever amount is greater.

A “[p]revailing plaintiff who has elected treble damages under R.C.

2307.61(A) is entitled to his chosen remedy.” Dancybey, at ¶ 13; see also

Commonwealth Land Title Ins. Co. v. Choice Title Agency, Inc., 2012-Ohio-2824,

¶ 22 (9th Dist.) (“Once a plaintiff has prevailed on a claim under R.C. 2307.60(A)(1)

. . . the remedy is . . . determined by the plaintiff’s election.”). In its motion for treble damages, COD requested the imposition of

liquidated damages in the form of treble damages pursuant to

R.C. 2307.61(A)(1)(b). The trial court granted this request, applying the treble

damages provision to COD’s $35,000 award, thereby entering a total civil theft

damages judgment in the amount of $105,000.

Appellants challenge the trial court’s award of treble damages,

asserting that such relief is limited to the theft of “goods” offered for sale by a

“mercantile establishment” and, therefore, cannot be applied to real property. We

are not persuaded.

In support of their position, Appellants rely exclusively on

R.C. 2307.61(H)(2)(a), which defines “value of the property” as “[t]he retail value of

any property that is offered for sale by a mercantile establishment.” However,

Appellants’ analysis fails to consider the remaining subdivisions of

R.C. 2307.61(H)(2), which provide alternative definitions of “value of the property,”

including one that is expressly intended to encompass a broader range of property

types. Subsection (H) provides:

(H) As used in this section . . . .

(2) “Value of the property” means one of the following:

(a) The retail value of any property that is offered for sale by a mercantile establishment, irrespective of whether the property is destroyed or otherwise damaged, is modified or otherwise altered, or otherwise is not resalable at its full market price;

(b) The face value of any check or other negotiable instrument that is not honored due to insufficient funds in the drawer’s account, the absence of any drawer’s account, or another reason, and all charges imposed by a bank, savings and loan association, credit union, or other financial institution upon the holder of the check or other negotiable instrument;

(c) The replacement value of any property not described in division (H)(1) or (2) of this section.

Subsection (H)(2)(c) serves as a catchall provision and applies to

property not otherwise specifically addressed in subsections (H)(1) and (H)(2). This

language is broad and inclusive, and nothing in the statutory text suggests an intent

to exclude real property from its scope. To the contrary, the use of the term “any

property” in (H)(2)(c) evinces legislative intent to encompass all forms of property

not otherwise defined by the statute — including real property.

Furthermore, R.C. 2307.61 provides a civil remedy for theft offenses

under R.C. 2913.02. As discussed above in connection with Appellants’ fourth

assignment of error, R.C. 2913.02 applies to theft involving both real and personal

property. Therefore, interpreting R.C. 2307.61 to allow recovery of treble damages

for the theft of real property aligns with the statutory framework and its remedial

purpose of offering a civil means to recover damages for acts that would otherwise

constitute a criminal offense. Accord Dancybey, 2022-Ohio-2774 (8th Dist.)

(acknowledging that civil theft claims and treble damages under R.C. 2307.61 may

be pursued in cases involving theft of real property interests).

Accordingly, the trial court did not err in awarding treble damages

under R.C. 2307.61(A)(1)(b) for civil theft of real property. Appellants’ seventh

assignment of error is overruled. E. Assignment of Error Nos. 6, 8, and 9 — Trial Court’s Decisions on Attorney Fees

In their sixth, eighth, and ninth assignments of error, Appellants

challenge various aspects of the trial court’s award of attorney fees to COD. The

determination of whether attorney fees are appropriate in a given case is a question

of law, subject to de novo review. See Southworth v. Southworth, 2003-Ohio-4,

¶ 31 (8th Dist.). However, once it is determined that an award of attorney fees is

proper, the amount awarded by the trial court is reviewed for an abuse of discretion.

See id.

1. Assignment of Error No. 6 — Award of Attorney Fees

In their sixth assignment of error, Appellants argue that the trial

court erred as a matter of law in granting COD’s motion for attorney fees. Under the

“American Rule,” attorney fees are generally not recoverable by the prevailing party

in a civil action. See Tinney v. Tite, 2012-Ohio-2347, ¶ 20 (6th Dist.). “However,

when punitive damages are awarded, attorney fees may also be awarded as a

component of compensatory damages.” Kaba, 2025-Ohio-640, at ¶ 88 (8th Dist.);

see Boaeuf v. Memphis Station, L.L.C., 2018-Ohio-745, ¶ 15 (8th Dist.) (an award of

attorney fees is proper following the imposition of punitive damages).

Here Appellants assert that because the finding of liability on COD’s

breach-of-fiduciary-duty claim was erroneous, the resulting awards of punitive

damages — and by extension, the attorney fee award — were likewise improper.

However, because we have already overruled Appellants’ assignments of error

relating to both the breach of fiduciary duty and the award of punitive damages, we find no merit in this argument. As a matter of law, an award of punitive damages

supports a corresponding award of attorney fees. Accordingly, we affirm the trial

court’s decision granting COD’s motion for attorney fees. We overrule Appellants’

sixth assignment of error.

2. Assignment of Error No. 8 — Civ.R. 60(A)

In their eighth assignment of error, Appellants argue that the trial

court erred in granting COD’s Civ.R. 60(A) motion to supplement the record with

exhibits supporting its attorney-fee request. The exhibits contained itemized time

entries totaling $35,625 from H.P., one of COD’s attorneys who handled specific

aspects of the litigation. Civ.R. 60(A) provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders.

A trial court’s ruling under Civ.R. 60(A) is reviewed for an abuse of

discretion. State v. Todd, 2023-Ohio-4847, ¶ 15 (10th Dist.). An abuse of discretion

occurs when the trial court exercises “its judgment, in an unwarranted way, in

regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,

2021-Ohio-3304, ¶ 35. The term abuse of discretion implies that the court’s attitude

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217 (1983)

Appellants contend that the trial court abused its discretion by

allowing COD to submit additional time entries after the attorney-fee hearing had

concluded and the evidentiary record had closed. They argue that allowing the late submission involved a substantive legal judgment, rather than a clerical correction

permitted under Civ.R. 60(A). We agree.

At the November 8, 2023 attorney-fee hearing, COD submitted

billing records related to H.P.’s work but failed to include itemized time entries for

the period from June 29, 2019, through December 31, 2020. Black Tie identified

the omission during the hearing and cross-examined COD’s expert witness, arguing

that the requested attorney fees for that period lacked adequate support. Despite

this, the trial court later granted COD’s motion to supplement the record with the

missing entries. While the omission of billing records by COD may have been

inadvertent, we find that it does not constitute a “clerical mistake” correctable under

Civ.R. 60(A).

“The term ‘clerical mistake’ refers to an error or omission that is

mechanical in nature, evident from the record, and ‘which does not involve a legal

decision or judgment.’” Londrico v. Delores C. Knowlton, Inc., 88 Ohio App.3d 282,

285 (9th Dist. 1993), quoting Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d

116, 118 (8th Dist. 1985). However, “[s]ubstantive changes in orders, judgments or

decrees are not within its purview.” Musca v. Chagrin Falls, 3 Ohio App.3d 192 (8th

Dist. 1981), paragraph one of the syllabus.

At the conclusion of the November 8, 2023 hearing, the trial court

clearly stated on the record that it would not accept any further billing records from

COD, except for those related to preparation for the fee hearing itself. This

limitation was also set forth in the court’s journal entry covering the November 8, 2023 hearing. By later granting COD’s Civ.R. 60(A) motion and admitting new

billing exhibits, the court effectively made a substantive change to the record. By

allowing the record to be supplemented after the hearing, the court denied Black Tie

any opportunity to examine that evidence, which was essential to that specific award

of attorney fees. Not only was this not the type of clerical correction that

Civ.R. 60(A) authorizes, it was fundamentally unfair.

For these reasons, we find that the trial court abused its discretion

by admitting the additional billing records after the close of the hearing. Without

those records, the award of $35,625 is unsupported by the evidence and therefore

must be deemed unreasonable. We, therefore, remand the matter to the trial court

with instructions to vacate $35,625 from the total attorney fee award. Appellants’

eighth assignment of error is sustained.

3. Assignment of Error No. 9 — Award of Fees

In their ninth assignment of error, Appellants challenge the trial

court’s award of $326,223.17 in attorney fees to COD as the prevailing party. They

assert that this amount is excessive or otherwise improper.

When attorney fees are authorized by statute, the trial court has

discretion to determine the appropriate amount to award. See Est. of Shury v.

Cusato, 2024-Ohio-2066, ¶ 7 (8th Dist.), citing Brooks v. Hurst Buick-Pontiac-

Olds-GMC, Inc., 23 Ohio App.3d 85, 91 (12th Dist. 1985). An abuse of discretion

occurs when the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Id., citing Blue v. Bur. of Workers’ Comp., 2023-Ohio-3481, ¶ 10 (8th Dist.). A trial court abuses its discretion when “‘the amount of fees determined is so high or so low

as to shock the conscience.’” Alcorso v. Correll, 2021-Ohio-3351, ¶ 43 (8th Dist.),

quoting Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991).

Appellants argue that the trial court erred by including in the overall

attorney fee award, fees related to time entries not clearly tied to COD’s breach-of-

fiduciary-duty claim against Black Tie — the only claim that permits recovery of

attorney fees in this case. In making this argument, Appellants concede that trial

courts are not required to segregate fees between recoverable and nonrecoverable

claims when such segregation is impractical, such as when the claims share a

common core of facts or arise from related legal theories, making it difficult to

allocate hours on a claim-by-claim basis. See Cuspide Props. v. Earl Mech. Servs.,

2015-Ohio-5019, ¶ 4 (6th Dist.). Appellants further acknowledge that in this case,

the trial court did find that a common core of facts linked the claims and determined

that the breach-of-fiduciary-duty claim was inextricably intertwined with the other

causes of action asserted. Nevertheless, Appellants argue that the trial court’s

conclusion that the claims were too intertwined to allow for the separation of fees

was not based on the existence of a common core of operative facts or closely related

legal theories, but rather resulted from COD’s counsel’s failure to maintain clear and

detailed time records. We find Appellants’ argument to be circular in logic and

ultimately unconvincing.

Many of COD’s attorney time entries were categorized by the legal

task performed. These included entries such as “finalization of briefs for filing,” “drafting reply to counterclaim,” “drafting opposition to motion to show cause,” and

“preparation for contempt hearing,” among others. While Appellants suggest that

these entries should have been further broken down by time spent on each

individual claim, we agree with the trial court’s assessment that such further

breakdown would have been impractical. As the trial court noted in its journal entry

on attorney fees:

Time drafting motions and attending court appearances that relate to multiple claims simply can’t be separated into portions of time spent on each individual claim. Similarly, much of the discovery required in this case required discovery of facts relevant to most, if not all, of the claims in this matter.

In sum, the reason these time entries were not further segregated by claim is

precisely because of the interrelated nature of the claims themselves. Accordingly,

we find no abuse of discretion in the trial court’s decision to include the fees

associated with these time entries in the overall attorney fee award for breach of

Appellants additionally argue as part of their ninth assignment of

error that the $326,223.17 fee award for what was essentially a dispute over a

$35,000 piece of property, is grossly excessive. We disagree.

“‘When ruling on a request for attorney fees, a trial court must

determine the ‘lodestar,’ which is the attorney’s reasonable hourly rate multiplied

by the number of hours reasonably worked on the litigation.’” Kaba, 2025-Ohio-

640, at ¶ 89 (8th Dist.), quoting Scott v. First Choice Auto Clinic, Inc., 2023-Ohio-

3855, ¶ 45 (10th Dist.), citing Bittner, 58 Ohio St.3d at 145. “‘There is a strong presumption that the lodestar amount is the proper amount for an attorney-fee

award.’” Id., quoting Scott at ¶ 45, citing Phoenix Lighting Group, L.L.C. v.

Genlyte Thomas Group, L.L.C., 2020-Ohio-1056, ¶ 19.

In determining attorney fees, courts consider a variety of factors

beyond the lodestar amount. Kaba at ¶ 90. “These factors include the time and

labor involved in litigation, the novelty and difficulty of the legal questions involved,

and the results of the legal services.” Id., citing Benton Village Condominium

Owners’ Assn. v. Holdings, JRG Ltd., 2024-Ohio-1990, ¶ 39 (8th Dist.).

In support of its request for attorney fees, COD submitted billing

records from three attorneys — G.G., M.P., and H.P. — each of whom contributed to

various aspects of COD’s case against Black Tie.

Regarding the invoices submitted by G.G., the trial court found that

he had billed a total of 2,060 minutes. Of that time, 120 minutes were determined

to be unrelated to COD’s breach-of-fiduciary-duty claim against Black Tie and were

therefore excluded from consideration. The court concluded that the remaining

1,940 minutes were both reasonable and directly attributable to COD’s claims. It

also found G.G.’s hourly rate of $300 to be reasonable, based on his affidavit and

the expert testimony presented during the attorney-fee hearing. Based on these

findings, the court calculated a lodestar amount of $9,700 for G.G.’s services.

Additionally, the court found no need to adjust this amount for factors such as the

complexity of the issues or the labor involved. The trial court applied a similar analysis to both the M.P. and H.P.

invoices. Regarding M.P., the court excluded charges it deemed nonrecoverable,

such as travel expenses, time billed prior to his pro hac vice admission in Ohio, and

work unrelated to COD’s breach-of-fiduciary-duty claim. The court found M.P.’s

hourly rate — initially $300, later increasing to $325 — to be reasonable, as well as

the $95 hourly rate for paralegal services. Based on approved time entries and

applicable rates, the court awarded COD $182,273.17 in attorney fees for the M.P.

invoices. It concluded that no further adjustments to the lodestar amount were

warranted.

As for H.P., the court excluded 150 hours he had “estimated” for work

performed between January 11, 2022, and November 4, 2022, finding them

insufficiently supported. It also excluded 161.5 hours deemed unrelated to the

breach-of-fiduciary-duty claim, and an additional 4.5 hours spent subpoenaing

Black Tie’s attorney and opposing a motion to quash, which the court found

unreasonable. After these deductions, the court accepted 447.5 hours at a $300

hourly rate, resulting in a lodestar amount of $134,250.00. The court determined

that no further adjustments to the lodestar amount were necessary.

With the exception of $35,625 for work performed by H.P. in 2019,

which was improperly awarded based on erroneously submitted evidence as

determined in our analysis of the ninth assignment of error, we find nothing

unreasonable or grossly disproportionate about the trial court’s remaining attorney

fee award of $289,598.17. As previously noted, this case was vigorously litigated by both parties for over three years. In light of these circumstances, an attorney fee

award of $289,598.17 does not shock the conscience. We find no abuse of discretion.

Accordingly, Appellants’ ninth assignment of error is sustained in

part as it relates to the improper award of $35,625 stemming from the belatedly

admitted invoices. The remainder of the assignment of error is overruled. We

remand to the trial court with instructions to reduce the attorney fee award to

$289,598.17.

F. Court Costs

In their tenth assignment of error, Appellants argue that the trial

court erred by ordering them to pay all litigation costs, rather than dividing the costs

between the parties. We disagree.

Civil Rule 54(D) provides: “Except when express provision therefor

is made either in a statute or in these rules, costs shall be allowed to the prevailing

party unless the court otherwise directs.” Civ.R. 54(D) does not grant the prevailing

party an absolute right to recover costs, rather, the rule affords the trial court

discretion in determining how litigation costs should be allocated. Naples v.

Kinczel, 2007-Ohio-4851, ¶ 3 (8th Dist.). A trial court’s ruling on costs will only be

reversed for an abuse of discretion. Id. at ¶ 7.

Appellants contend that the trial court should have required each

party to bear its own costs, asserting that many of the litigation expenses were

unnecessary and resulted primarily from COD’s conduct. According to Appellants,

COD’s actions were excessive, unwarranted, and often frivolous, which in turn increased both the cost and complexity of the case. For example, they point to COD’s

repeated amendments to its complaint, its resistance to discovery, and its filing of

numerous motions for sanctions against Appellants.

However, the record reflects that both parties vigorously litigated

this matter over an extended period. While Appellants challenge COD’s conduct,

they too filed a countercomplaint and multiple motions for sanctions. Given the

nature and extent of the litigation on both sides, we find no abuse of discretion in

the trial court’s decision to award costs to COD as the prevailing party pursuant to

Civ.R. 54(D).

III. Conclusion

For the reasons stated above, we affirm the jury’s verdict and the

trial court’s post-verdict rulings on all assignments of error, with the exception of

Appellants’ fourth, eighth, and ninth assignments of error. Regarding the fourth

assignment of error, we find that the trial court erred in denying Appellants’ motion

for judgment notwithstanding the verdict on COD’s conversion claim, because real

property cannot be the subject of conversion. As to the eighth and ninth

assignments of error, we conclude that the trial court abused its discretion by

admitting additional evidence of attorney fees after the fee hearing had concluded

and by awarding $35,625 in attorney fees based on that improperly admitted

evidence. Accordingly, we remand the matter to the trial court with instructions to vacate the $35,625 attorney fee award based on the improperly admitted evidence

and to reduce the total attorney fee award by this amount.

Judgment affirmed in part, reversed in part, and remanded.

It is ordered that appellee and appellants share 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.

______________________________ LISA B. FORBES, JUDGE

MICHELLE J. SHEEHAN, P.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE CONCURRING OPINION)

SEAN C. GALLAGHER, J., CONCURRING:

I agree with the majority’s decision, but I am compelled to write

separately to address Dancybey, 2022-Ohio-2774 (8th Dist.), which relied on the

county tax valuation as the “value of the property” for the trebling provision of

R.C. 2307.61(A)(1)(b). It is conceivable that some may interpret Dancybey to

authorize different valuations of real property for the purposes of recovery. Such an

interpretation, however, would contradict statutory definitions, essentially defining

the value of the real property for the purposes of the trebling provision as the “replacement value” under R.C. 2307.61(H)(2)(c). A county tax valuation may not

represent the replacement value of the real property and may not even accurately

reflect the fair market value of that property. Dancybey did not address the

definition of “value of property” as used in R.C. 2307.61, and therefore, the case

should be limited to its holding that once the trebling provision becomes the elected

remedy, the trial court must award treble damages. Id. at ¶ 14. I recognize that this

is not the case to address my concern because the parties have not discussed it, but

because Dancybey is applicable to the outcome, further clarification may be needed.

“R.C. 2307.60 creates a civil cause of action for damages resulting

from any criminal act, unless otherwise prohibited by law.” Jacobson v. Kaforey,

2016-Ohio-8434, ¶ 13. The “plain language of the statute does not require proof of

an underlying criminal conviction” in order to maintain and prove the civil cause of

action. Buddenberg v. Weisdack, 2020-Ohio-3832, ¶ 11; see also

R.C. 2307.61(G)(1). A plaintiff asserting a civil cause of action must demonstrate the

criminal act and resulting damages. Under R.C. 2307.61(A)(1), the plaintiff may

elect one of two measures of damage. They may recover “compensatory damages,”

which include “the value of the property and liquidated damages,” of $50, $100, or

$150 depending on the value of the property. R.C. 2907.61(A)(1)(a). If the value of

the property is less than $50, then the liquidated damage is $50; if greater than $50

but less than $100, the liquidated damage is $150; and if greater than $150, the

liquidated damage is capped at $150. In lieu of “compensatory damages,” the

plaintiff may elect to seek “liquidated damages” of either $200 or three times the value of the property at the time it was damaged or the subject of a theft offense.

R.C. 2307.61(A)(1)(b).3

As the majority notes, the phrase “value of the property” as

contemplated under R.C. 2307.61(A)(1)(b)(ii) is an expressly defined term of art.

R.C. 2307.61(H)(2). It is defined as the “retail value of any property that is offered

for sale by a mercantile establishment,” the value of a check or other negotiable

instrument not honored based on insufficient funds in the drawer’s account, or “the

replacement value” of any other property. Id.

In Dancybey, the sole argument invoking R.C. 2307.61 was based on

a trial court’s decision declining to award treble damages under

R.C. 2307.61(A)(1)(b)(ii). On that argument, it was concluded that once the plaintiff

elects to pursue liquidated damages under the trebling provision, the trial court is

required to award three times the value of the property upon a verdict in the

plaintiff’s favor. Id., 2022-Ohio-2774, at ¶ 14. The panel issued a mandate to the

trial court to enter a final judgment based on the “value of the property” derived

from the county tax valuation. Id. at ¶ 25. Unfortunately, that conclusion was not

3 This framework is curious to say the least. One cannot help but wonder why any

aggrieved property owner would elect compensatory damages as established under R.C. 2307.61(A)(1)(a). The Hobson’s choice to elect either $200 in liquidated damages under subdivision (A)(1)(b)(i) or the trebling provision under subdivision (A)(1)(b)(ii) will always yield greater monetary damages. The only exception to liquidated damages is contained in subdivision (F), but that exception limits recovery solely to the value of the property if the civil action is joined with an action for replevin under R.C. Ch. 2737. Even with the exception, the statutory choice seems simple: do not join the two actions. If not joined, treble damages remain available: the property owner may elect to recover “three times the value of the property . . . irrespective of whether the property is recovered by way of replevin or otherwise.” R.C. 2307.61(A)(1)(b)(ii). accompanied with any analysis as to whether a county tax valuation represents the

“replacement value” of the property under R.C. 2307.61(H)(2).

“Replacement value” is not expressly defined. The theft offense

statutes contains some guidance. Under R.C. 2913.61(D)(3), the value of any real or

personal property is the “fair market value” of the property, unless the personal

property is an irreplaceable thing of intrinsic worth or retains substantial utility

regardless of its age or condition. The value of personal property or a thing with

intrinsic worth that is irreplaceable is the amount that would compensate the owner

for the loss. R.C. 2913.61(D)(1). The cost of replacing personal property that retains

substantial utility is the cost to replace with new property of like kind and quality.

R.C. 2913.61(D)(2). The cost to replace value is similar to the “retail value” discussed

in R.C. 2307.61(H)(2)(a).

Unless deemed to be “an heirloom, memento, collector’s item,

antique, museum piece, manuscript, document, record, or other thing that has

intrinsic worth to its owner” that is irreplaceable or replaceable only at great

expense, the value of any other property, such as real property, is limited to its fair

market value. The “fair market value,” which is “the money consideration that a

buyer would give and a seller would accept” for that property, thus differs from the

“replacement value” under the civil recovery statute.

A civil action for theft is predicated on a theft offense. One would

think the value of the theft of real property would be tied to the theft offense itself,

in that any civil recovery would be based on the value of the property as defined by the theft statutes. Nonetheless, the legislature has limited the civil recovery solely

to the “replacement value” of real property because that property is not offered for

sale by a mercantile establishment or a negotiable instrument. What that means for

the purpose of resolving a civil claim for theft of real property is open to discussion.

Because Dancybey solely focused on the question of statutory construction with

respect to mandating treble damages once elected, the case should not be read as

defining “replacement value” under R.C. 2307.61(H)(2)(c).

As mentioned by the majority, the appellants have not provided any

analysis or discussion regarding the totality of the statutory language at issue. Their

sole argument focuses on R.C. 2307.61(H)(2)(a), which is essentially defining the

value of personal property, and fails to discuss the impact of Dancybey. That

subdivision is not applicable to the claims for theft of real property, and without

further analysis or discussion distinguishing Dancybey, there is no relief that can be

offered. Although Dancybey may need revisiting based on the foregoing

observations, it is not an issue that can be resolved in this appeal. For this reason, I

otherwise concur with the majority.