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Tabar v. Charlie's Towing Serv.3/24/1994
KRUPANSKY, Judge.
Plaintiff-appellant Loretta M. Tabar timely appeals from a December 11, 1992 journal entry and opinion finding in favor of defendant-appellee Fabrizi Trucking and Paving Co., Inc ("Fabrizi, Inc.") with respect to Tabar's claims for conversion, breach of contract and negligence. Tabar originally brought the within action against only Emilio Fabrizi,(fn1) who is the major shareholder of Fabrizi, Inc., and against Charlie's Towing Service, Inc. Thereafter, Tabar voluntarily dismissed her complaint against Charlie's Towing Service, Inc. and the court granted Emilio Fabrizi's motion to join Fabrizi, Inc. as a co-defendant. The trial court later dismissed Emilio Fabrizi from the sub judice. Thus, Tabar and Fabrizi, Inc. are the only parties to the within action.
Tabar is the owner of a 1979 GMC Royal Classic eighteen-wheel semi truck and one of the few women certified to drive such vehicles interstate. In January 1989, Tabar deposited her vehicle for regular maintenance with a company known as QIF, which was not a party to the case sub judice. At this time, QIF was the tenant of Fabrizi, Inc., from whom QIF leased its business premises, i.e., QIF and Fabrizi, Inc. were not in business together but merely landlord and tenant.
Tabar routinely placed her vehicle with QIF for regular maintenance. However, she chose to place the vehicle for maintenance in January 1989 specifically because she sustained a back injury the previous month and was ordered by her physician not to drive. Tabar's injury subsequently prevented her from periodically inspecting her vehicle maintained in the custody of QIF.
In June 1989, however, Tabar was told by her physician she could return to work if she had special air bags installed in the vehicle. Thereafter, Tabar and QIF entered into an express agreement whereby QIF would make the necessary repairs on her vehicle, after which Tabar would tender payment to QIF.
In September 1989, Tabar returned to the QIF premises a second time, where she again entered into an oral agreement by which QIF would place her vehicle into indoor storage for the winter and make necessary repairs on the vehicle. Tabar was accompanied by Barb Margraff ("Margraff"), who assisted her in taking some personal items from the vehicle. At this time, Tabar and Margraff found the vehicle in the same good condition it was when Tabar originally brought the vehicle into QIF.
In October 1989, QIF breached its lease with Fabrizi, Inc. and absconded during the night, owing Fabrizi, Inc. thousands of dollars in rent. ThereaftersCharlie's Towing Service, Inc. took possession of the premises abandoned by QIF and became Fabrizi, Inc.'s tenant.
After QIF abandoned the property, Emilio Fabrizi, without Tabar's knowledge or consent, authorized Charlie's Towing Service to tow Tabar's vehicle to another lot owned by Fabrizi, Inc. Thereafter, Emilio Fabrizi never attempted to notify Tabar or anyone else that the vehicle had been moved, even though the truck was clearly marked with an identification number, the name "Central Transport," and the phrase "Lorrie Tabar, Bay Village, Ohio, owner-operator," and possessed two valid and "active" license plates. In addition, Emilio Fabrizi never notified police that he was in possession of the vehicle.
In April 1990, Tabar, who was still unaware her vehicle had been moved, entered into an agreement with Mark Kassloff ("Kassloff") for the sale of the vehicle. Kassloff offered to buy the vehicle for the sum of $19,800, and Tabar agreed to accept this amount for the sale of the vehicle. Kassloff thereafter went to inspect the vehicle, discovered it was missin
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