IN THE SUPREME COURT OF OHIO

Transcription

1 GRaGIN L IN THE SUPREME COURT OF OHIO BranchLotspeich,. CASE NO. 60 Appellant, On Appeal from the V.. Hamilton County Court of Appeals, First R. A. Hermes, Inc. dba About Space,. Appellate District Appellee. Court of Appeals Case No. C-11o698 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, BRANCH LOTSPEICH DANIEL E. WHITELEY, JR. [ ] (COUNSEL OF RECORD) 602 Main Street, Suite 1309 Cincinnati, Ohio (513) 72i-86oo Fax: (513) dewlaw@fuse.net COUNSEL FOR APPELLANT, BRANCH LOTSPEICH STEPHEN E. IMM [oo4oo68] (COUNSEL OF RECORD) Katz, Greenberger & Norton, LLP 105 E. Fourth Street, Suite 400 Cincinnati, Ohio (513) sei@kgnlaw.com COUNSEL FOR APPELLEE, R.A. HERMES, INC. DBA ABOUT SPACE JUL 0 9 2i;12 DDD CLERK OF COURT SUPREME C0i1Ri OF OHIO JUL. 09?v^^ CLERP OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS I ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law No. I: The owner of a self-storage facility becomes a constructive bailee when, for consideration, it exercises exclusive control of the occupant's property and is accountable for the loss or conversion of that property while in its exclusive control. Proposition of Law No. II: Where bailed property is destroyed or damaged in the exclusive possession and control of the bailee, there arises a rebuttable presumption that the bailee's negligence or other fault is the cause of the loss and the bailor is entitled to the benefit of the doctrine of res ipsa loquitur. CONCLUSION... 4 PROOF OF SERVICE APPENDIX First District Court of Appeals Judgment Entry entered May 23, A

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST In urban areas, self-storage facilities have become ubiquitous as space becomes limited and consumers increase their buying habits and accumulate more possessions. They free up needed space at home and may even provide more securitythan homes. Thus, the urban population and public atlarge wouldbe interested in the outcome of this appeal. In this case, the court of appeals failed to appreciate that a cause of action may accrue in favor of a bailor ex delicto rather than ex contractu, and erroneously relied on cases clearly distinguishable from the instant case. In other words, the court of appeals failed to draw a distinction between the tort and contract actions available to a bailor; indeed, there was no formal contract between the parties contrary to the court of appeals' decision. This case puts at issue the rights of an occupant of a self-storage locker in a facility which exercises exclusive control of his belongings as a result of his arrears yet retains control of its contents even after the occupant has extinguished his arrearage. His property disappeared in its entirety while stiil in that facility's exclusive control. Chapter 5322 of the Ohio Revised Code does little more than prescribe the procedure for the enforcement of the lien of the owner of a self-storage facility and is of no avail to the appellant in this case. STATEMENT OF THE CASE AND FACTS In anticipation of his relocation to California, and eventually Hawaii, appellant, Branch Lotspeich, rented a storage unit from appellee in While there was no formal, written contract in effect between the parties, appellant paid a total of $i8,899.oo in storage charges until his unit was discovered to be devoid of its contents in April of While out of the state of Ohio, appellant would have his brother, Edgar Lotspeich, occasionally visit his storage space, first in 1996, next in the fall of 2003 when it was 1

4 discovered that as a result of appellant's temporary arrears, appellee had removed his lock and replaced it with one of its own. Appellee's lock remained on the unit until April of 2010 when it was discovered that the storage unit had been cleaned out and all of appellant's property was gone. The Hamilton County Court of Common Pleas granted appellee's motion for summary judgment and appellant appealed to the Hamilton County Court of Appeals for the First Appellate District. The court of appeals erred when failing to recognize that a constructive bailment had been created such that, as a result of the total disappearance of his property while in the exclusive control of appellee, appellant was entitled to the benefit of the doctrine of res ipsa loquitur. argument. In support of his position on these issues, the appellant presents the following ARGUMENT IN SUPPORT OF PROPOSITIONS OF I.AW Proposition of Law No. I: The owner of a self-storage facility becomes aconstructivebaileewhen, forconsideration, it exercises exclusive control ofthe occupant'spropertyandis accountable for the loss or conversion of that property while in its exclusive control. In its decision affirming the trial court, the court of appeals wrote: Even assuming that the use of a company lock raised an inference that a constructive bailment had been created, the evidence submitted below established that Lotspeich had had the right to place a lock of his own on the storage unit. This ignores the fact that, in order to get access to his belongings, Lotspeich, or someone on his behalf, would still have to have the owner's agent unlock its lock. Having his own separate lock on the unit would have done little good. The court of appeals erroneously relied on one of its earlier decisions, Teppee v. R. A. Hermes, Inc., First District 2

5 No. C-98o771,1999 Ohio App. LEXIS 3952 (AUg 27,1999), which case is distinguishable from the instant case in that Teppee had exclusive access to his storage unit and, as a result, the elements of a bailment had not been established. When appellee, in this case, assumed exclusive possession of appellant's property, and appellant continues to pay his rent, appellee's property becomes bailed property and appellee is a constructive bailee or bailee by operation of law and as a compensated bailee owes a duty to protect the bailed property. This court held, in David v. Lose (1966), 7 Ohio St.2d 97, that where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver, a prima facie case of want of due care is established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver. Proposition of Law No. II: Where bailed property is destroyed or damaged in the exclusive possession and control of the bailee, there arises a rebuttable presumption that the bailee's negligence or other fault is the cause of the loss and the bailor is entitled to the benefit of the doctrine of res ipsa loquitur. Although it was established below that appellant's property was in the exclusive control of appellee, the court of appeals did not address his contention that he was entitled to the benefit of the doctrine of res ipsa loquitur. The disappearance of appellant's property while under appellee's exclusive control raises a presumption of lack of due care on the part of appellee as bailee and this presumption is an application of the doctrine of res ipsa loquitur to its liability as bailee. Again, as this court pointed out in David v. Lose, the court of appeals failed to recognize that the question is not whether the plaintiff has established negligence but whether the defendant has established a legal excuse for its breach. In Hanlon v. J.E. Miller Transfer and Storage Co. (1948), 149 Ohio St. 347, 79 N.E.2d 220, this court cited Corpus Juris Secundum, Bailments, p. 342, section 5o, which 3

6 explains, in part, that... where chattels are delivered to a bailee and in good condition and are retarned in a damaged state, or are lost and not returned at all, the law presumes the bailee's negligence or other fault to be the cause, and casts on the bailee the burden of showing that the loss was due to other causes consistent with due care on his part, this rule being regarded as an application of the principle of res ipsa loquitur...(emphasis added) Again, appellant should be entitled to the benefit of this doctrine in this case. CONCLUSION For the reasons set forth above, this case involves matters of public and great general interest and, as such, the appellant requests that this court accept jurisdiction so that the important issues presented herein may be reviewed on their merits. Respectfully submitted, By: Daniel E. Whiteley, J COUNSEL FOR APPELLANT, BRANCH LOTSPEICH Certificate of Service I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail, this 6s` day of July, 2012, to counsel for appellee: STEPHEN E. IMM (COUNSEL OF RECORD) Katz, Greenberger & Norton, LLP 105 E. Fourth Street, Suite 400 Cincinnati, Ohio COUNSEL FOR APPELLANT, BRANCH LOTSPEICH 4

7 APPENDIX

8 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO BRANCH LOTSPEICH, vs. Plaintiff-Appellant, APPEAL NO. C-iio698 TRIAL NO. A-ioo9666 JUDGMENT ENTRY. R.A. HERMES, INC., d.b.a. ABOUT SPACE, Defendant-Appellee. I D We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. See S.Ct.R.Rep.Op. 3(A); App.R. n.i(e); Loc,R. ii.i.i. Plaintiff-appellant Branch Lotspeich rented self-storage space from defendantappellee R.A. Hermes, Inc., d.b.a. About Space. Lotspeich's brother, Edgar, visited the storage space three times and claimed that the last two times he had gone, an "About Space" lock was on the storage unit instead of his brother's personal lock. According to Edgar, the lock had been placed there when his brother had fallen behind on payments. Edgar had to seek assistance from About Space to gain access. Even after Lotspeich was current with his payments, an About Space lock remained on the storage unit. During Edgar's last visit, he discovered that all of its contents were gone. Lotspeich subsequently sued About Space for conversion, arguing that About Space had been the bailor of his goods and had breached its duty to protect his belongings. About Space moved for summary judgment on the ground that no bailor-bailee relationship had ENTERED MAY232012

9 OHIO FIRST DISTRICT COURT OF APPEALS existed. The trial court granted About Space's motion and entered judgment in its favor. This appeal followed. In his sole assignment of error, Lotspeich claims that summary judgment was improper because issues of fact remained in regard to whether a bailor-bailee relationship had existed. Specifically, Lotspeich asserts that when About Space had replaced his personal lock with a company lock, it had created a constructive bailment that had created a duty to take ordinary care to protect his goods. Even assuming that the use of a company lock raised an inference that a contructive bailment had been created, the evidence submitted below established that Lotspeich had had the right to place a lock of his own on the storage unit. And it was uncontroverted that About Space did not know what Lotspeich had stored. Therefore, there was no "delivery" or "entrustment" of Lotspeich's goods in the typical sense of a bailment. See Tepee u. R.A. Hermes, Inc., tst Dist. No. C-98o771, i999 Ohio App. LEXIS 3952 (Aug. 27, 1999); United States Fire Ins. Co. v. Parantount Fur Service, Inc., i68 Ohio St. 431, , 156 N.E.2d 121 (1959). Instead, the record indicates that Lotspeich had entered a contract for the rental of storage space from About Space and that a lessor-lessee relationship had existed. See Bess v. Trader's World Inc., 12th Dist. No. CA2ool-o6-o63, 2o1i-Ohio About Space therefore had no duty to deliver Lotspeich's goods unharmed. See David v. Lose, 7 Ohio St.2d 97, 218 N.E.2d 442 (1966), paragraph one of the syllabus. Lotspeich's assignment of error is overruled. Civ.R. 56(C); State ex rel. Grady u. State Ernp. Relations Bd., 78 Ohio St.3d 181, 183,1997-Ohio-221, 677 N.E.2d 343. The judgment of the trial court is affirmed. ENTERED MAY 23 20i2 2

10 OHIO FIRST DISTRICT COURT OF APPEALS Further, a certified copy of this judgment entry shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. HitDEsxANDT, P.J., HravnON and FiscaER, JJ. To the clerk: Presiding Judge ENTERE 57^ MAY