Ci.ER^tur{;^^ ^t APPELLEE'S MEMORANDUM OPPOSING JURISDICTION IN THE SUPREME COURT OF OHIO. Branch Lotspeich, : Case No

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1 IN THE SUPREME COURT OF OHIO Branch Lotspeich, : Case No V. Appellant, R.A. Hermes, Inc., dba About Space, Appellee. On Appeal from the Hamilton. County Court of Appeals, First. Appellate District. Court of Appeals. Case No. C APPELLEE'S MEMORANDUM OPPOSING JURISDICTION STEPHEN E. IMM [ ] (COUNSEL OF RECORD) Katz, Greenberger & Norton LLP 105 E. Fourth Street, Suite 400 Cincinnati, Ohio (513) sei(&,kenlaw.com COUNSEL FOR APPELLEE, R.A. HERMES, INC. DBA ABOUT SPACE DANIEL E. WHITELEY, JR. [ ] (COUNSEL OF RECORD) 602 Main Street, Suite 1309 Cincinnati, Ohio (513) Fax: (513) dewlawnu fuse.net COUNSEL FOR APPELLANT, BRANCH LOTSPEICH Ci.ER^tur{;^^ ^t ^^{JUb^i

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS NOT OF GREAT PUBLIC OR GENERAL INTEREST STATEMENT OF FACTS APPELLEE'S POSITION REGARDING APPELLANT'S PROPOSITIONS OF LAW Appellant's Proposition of Law No. 1: 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... 3 Appellant's 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 CERTIFICATE OF SERVICE

3 I. THIS CASE IS NOT ONE OF GREAT PUBLIC OR GENERAL INTEREST There is no reason to believe the instant case is of any public or general interest. Giving Appellant the benefit of every doubt, the only thing he even arguably proved in the trial court is that he once had property in a self storage unit, and that now it is no longer there. He did not prove any negligence or other wrongdoing by Appellee that caused his alleged loss. There are any number of scenarios that may account for the alleged loss of Appellant's property. It may have been removed by an acquaintance or relation that had some knowledge of its value and whereabouts, or it may have been stolen by someone who had no connection to Appellant. There can be no expectation of the public having any significant interest in a case in which Appellant himself could only speculate as to the cause of his alleged loss. Appellant's contention that this case presents an interesting issue in the law of bailment is unconvincing and unpersuasive. Under Ohio law, it is abundantly clear that the relationship between a self-storage facility and its customer is that of lessor/lessee, not that of bailor/bailee. The relationship between the parties here bears none of the earmarks of a bailment, and Appellant's attempt to characterize it as such finds no support in the record. Ohio's Self-Storage law is codified in statute, and Appellant does not even contend that there is any ambiguity in the applicable statutory provisions. II. APPELLEE'S STATEMENT OF FACTS Appellant's Statement of Facts, contained in his Memorandum in Support of Jurisdiction, misrepresents certain key factual elements of the case. Appellee therefore offers its own Statement below. All of the stated facts are undisputed. 1

4 Appellant rented a self-storage unit from Appellee from 1992 to Appellee did not insure or guarantee the contents of Appellant's unit against damage or loss. Appellant's customers supply their own locks to the units they lease, and they are instructed to procure their own insurance for the items they choose to store. Appellee does not have a "master key," and ordinarily is unable to enter a leased unit at all. Appellee only enters a customer's unit if (1) an emergency repair is necessary, (2) the customer himself authorizes entry, or (3) the customer defaults on payment and fails to cure the default after notice. In the event of an uncured default, Appellee will eventually have to cut off the customer's lock. In accordance with Ohio law, the contents of the unit are then advertised and sold at auction. O.R.C It is undisputed that Appellee did not advertise or sell any of the contents of Appellant's unit here. Appellant fell in arrears on his rental payments in In the Fall of that year, Appellant's brother, Edgar Lotspeich, visited Appellee's facility to inspect Appellant's unit, and to see if his (Edgar's) daughter might have an interest in some of its contents. Appellant's brother testified that the key he had with him did not fit the lock, and that Appellee's employee told him the lock had been replaced because of Appellant's failure to make the required rental payments. Appellant's brother was still granted access to the unit, however, and found the contents to be intact. Appellant cured the aforesaid arrearage, and continued to make lease payments on his unit until the Spring of In April of 2010, Appellant's brother again went to Appellee's facility, this time at Appellant's request. In advance of this visit, Appellant wrote instructions to Appellee's manager, James Valentine. Among other things, these instructions plainly show that 2

5 Appellant considered himself to have total control over access to his storage unit. He wrote as follows: Jim,. I would like to authorize my brother Ed Lotspeich to have full access to my storage unit. The lock may need to be cut off and we will supply a new lock in that case. When Appellant's brother arrived he went to the manager's office and Mr. Valentine accompanied him to the unit. Mr. Valentine observed that the lock then in place was not of the type used by Appellee when it places one of its own locks on a unit. He nevertheless tried all his keys on the lock, and none worked. Mr. Valentine then cut off the lock - as Appellant himself had authorized and instructed - and let Appellant's brother into the unit. There was nothing inside. Appellee has no knowledge of what happened to any of the unit's supposed contents. As indicated previously, Appellee had never advertised or sold any of Appellant's property. III. APPELLEE'S POSITION REGARDING APPELLANT'S PROPOSITIONS OF LAW Appellant's Proposition of Law No. 1: 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. The main problem with Appellant's first proposition of law is that neither of the factual premises for it are true. There was never a bailment created, and Appellee never exercised "exclusive control" over Appellant's property. Under Ohio law, it is clear that the relationship between a self-storage facility and its customer is that of lessor/lessee, not bailor/bailee. A self-storage facility does not issue a "warehouse receipt, bill of lading, or other document of title" for the personal property stored by its customers. O.R.C (A)(2). Such documents - which a warehouse does have to issue 3

6 - entitle the owner to "receive, hold, and dispose of' the goods they describe. O.R.C (O). A warehouse also owes - according to statute - a duty to exercise reasonable care with regard to the goods stored in it, and it is liable for any loss or injury to the goods that results from its failure to exercise such care. O.R.C (A). By contrast, no such duty of care is imposed on the owners of self-storage facilities by Ohio's Self-Storage Statute. O.R.C See also Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, (1944) (if lot owner only assigns "designated space" for customers to store property, without assuming custody or control over the property, owner is merely lessor, and does not owe duty of care to lessee). Appellant has attempted to get around the clearly established law by claiming that the parties' relationship in this case was at some point changed from lessor/lessee to that of bailor/bailee. This occurfed - according to Appellant - when he fell in arrears on his rental payments, and thereby caused Appellee to replace the lock on his unit. Appellant claimed that this created a bailment because it allegedly gave Appellee "exclusive control" over his property. This contention is fatally flawed for the following reasons: 1. To begin with, Appellant made no claim for breach of bailment in his Complaint. Nor did he ever seek to amend his Complaint to assert such a claim. 2. As a factual matter, it is simply not true that Appellee had "exclusive control" over the contents of Appellant's self-storage unit after the alleged lock change. The uncontroverted evidence was that Appellant was given unfettered access to the unit every time he (or his agent) is known to have come to Appellee's facility, including in the Fall of 2003 and in April of Furthermore, Appellant's 2010 letter to the facility clearly shows that he believed - correctly - that he had complete control over access to his unit. When he was not in arrears there was nothing stopping him from putting any lock he wanted on his unit. Further still, the testimony of Appellant's own brother was that Appellee's manager did not even have a key to Appellant's unit when he arrived there 4

7 in In short, Appellant's claim that Appellee had "exclusive control" over Appellant's property is demonstrably and indisputably false. 3. The alleged lock change - which Appellant says transformed the parties' relationship from lessor/lessee to bailor/bailee - occurred as a result of Appellant's falling in arrears on his lease payments. It would be an absurd result indeed if Appellant - and other users of self-storage units - were viewed as im r^ving their legal status by failin to pay their rent. In short, there is no legal or factual basis for Appellant's attempt to characterize his relationship with Appellee as a bailment, actual or constructive. Appellant's 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. Appellant's second proposition of law suffers from the same flaw as the first - i.e. its incorrect factual premise that Appellant's property was in the "exclusive possession and control" of Appellee. To Appellee's knowledge, no court has ever held that the owner of a self-storage facility is a bailee of the goods deposited by someone leasing a self-storage unit. Nor does it appear that any court has ever applied the doctrine of res ipsa loquitur in these circumstances. None of the elements supporting application of that doctrine is present here. Appellant essentially wants the Court to make the operators of self-storage facilities insurers or guarantors of all property stored on their premises. Such a result would be directly contrary to Ohio's Self-Storage Statute, and to its common law. The owners of self-storage facilities have never been considered to be insurers of their customer's goods. Nor would it be fair or equitable to make them so, as such owners have no knowledge of the content or value of the goods stored by their customers. Facility owners simply provide a designated space for the customers themselves to store goods of their choosing. The customers are free to add or remove 5

8 items at their own discretion, without any knowledge on the part of facility owners. Owners cannot be expected to insure items about whose value and character they have no information. The duty to insure such items properly belongs to the customer, who has full knowledge concerning the items stored. If Appellant wanted to insure the contents of his self-storage unit against loss or theft, he could and should have procured an insurance policy on them. If he wanted to create a bailment, he could and should have stored his goods in a warehouse, instead of in a self-storage facility. IV. CONCLUSION For the foregoing reasons, Appellee respectfully requests that the Court decline to accept jurisdiction in this matter. Respectfully submitted, G. SI^GpTenf. Imm ( ) Katz Greenberger & Norton LLP 105 East Fourth Street -- Fourth Floor Cincinnati OH PHONE: FAX: sei,kanlaw.com CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing has been served upon Daniel E. Whiteley, Jr., Attorney for Appellant, 602 Main Street - Suite 1309, Cincinnati, Ohio, 45202, via regular U.S. Mail this 7th day of August, ^^ hen E. Imm ( )