Editor's Note: Attorney Nicholas K. Rohner of the Cincinnati office of Weltman, Wineburg, and Reis Co. LPA., recently sent a letter to Magistrate Mary McElwee of the Clinton County Common Pleas Court regarding whether prejudgment orders for possession of personal property are required to obtain a final judgment of replevin. I found this letter very interesting and, with Attorney Rohner's permission, I am reprinting it. The fact that I am reprinting this letter does not mean that I either agree or disagree with Attorney Rohner's statements concerning Ohio law
November 23, 2009
Magistrate Mary McElwee
Clinton County Common Pleas Court
46 S. South Street, 3rd Floor
Wilmington, Ohio 45177
Dear Magistrate McElwee,
It was a pleasure speaking with you recently regarding prejudgment orders for possession and whether they are required in Ohio in order to obtain a final replevin judgment. I researched the issue and I agree, there is a difference of opinion among the Courts that have ruled on it. My research is below.
Chapter 2737.
Chapter 2737 is titled “Replevin” and has 20 sections. The introductory definitional section, R.C. 2737.01, includes a definition for “Order of possession”:
“…(D) … the order issued by a court under this chapter for delivery to the movant of possession of specific personal property pending final judgment in the action.”
R.C. 2737.02, titled “Prejudgment recovery of personal property,” states:
“The possession of specific personal property may be recovered in a civil action prior to the entry of judgment, only as provided in sections 2737.01 to 2737.20 of the Revised Code.”
A prejudgment order of possession can only be obtained by a party who files a motion and affidavit upon or at any time after the filing of the suit, requests that a notice and hearing request form be issued to the respondent, and files a bond. A respondent can get the property back prior to final judgment by filing a bond of his own.
R.C. 2737.14 titled “Final judgment; proceedings when delivery cannot be made,” states:
“In an action to recover possession of personal property in which an order of possession has been issued, the final judgment shall award permanent possession of the property…If delivery of the property cannot be made, the action may proceed as a claim for conversion…”
Case Law.
Some of the aforementioned sections in Chapter 2737 are written in permissive terms, implying that prejudgment possession is just an option. However, in 1991, the Tenth District Court of Appeals issued a decision holding that a prejudgment order is required in order to get a final judgment for possession. The focus of that decision was on the language of R.C. 2737.14 . The Court interpreted this section to mean that a court can award permanent possession only if an order for possession has already been entered and if one is not obtained, the court can only award monetary damages under a conversion claim.
In 1996, the Second District declined to follow the Tenth District and ruled the other way. In doing so, the Court interpreted R.C. 2737 .14 to allow for a final replevin judgment without a prejudgment order, provided there is no evidence in the case that delivery of the personal property cannot be made.
In 1998, the Eleventh District agreed with the Second District and found that Chapter 2737 merely provides a process that enables a plaintiff to acquire the property at issue during the pendency of the replevin action. The Court labeled the process as “preliminary” and “temporary” and not a requirement to obtain a final judgment.
In 2001, the Fourth District, with little analysis, followed the Tenth District and held that replevin is only a prejudgment remedy. Then strangely, in 2002, the Eleventh District, with no mention of its own case four years earlier, issued a short decision following the Tenth District.
Most recently, in 2004, the Seventh District reviewed the issue and agreed with the Second District in that a prejudgment order is not required. The Seventh District provided the most detailed analysis to date. The Court stated:
“Section 2737.14 provides what happens in two situations. In the first situation, an action to recover possession of personal property in which an order of possession has been issued, the final judgment shall award permanent possession of the property to the party obtaining possession. This situation did not occur in this case because the magistrate did not order a prejudgment order of possession…In the second situation, if delivery of the property cannot be made, the action may proceed as a claim for conversion. This situation does not apply here either because delivery of the [property]…can be made. The situation we are faced with is whether it is permissible for the trial court to issue final judgment awarding possession…when no prejudgment order of possession has been issued, but delivery of the property can be made. This is permissible according to [the Second District’s prior ruling] and [section] 2737.14…
An Overview of Where the Appellate Districts Stand.
1st District-- no appellate decision, but Magistrate Bachman in Hamilton County who currently reviews all of the replevins indicates that a prejudgment order is not required in Hamilton County.
2nd District—a prejudgment order is not required.
3rd District—no appellate decision.
4th District—a prejudgment order is required.
5th Dictrict --no appellate decision.
6th District-- no appellate decision.
7th District— a prejudgment order is not required.
8th District-- no appellate decision.
9th District-- no appellate decision.
10th District—a prejudgment order is required.
11th District-- conflicting decisions on whether a prejudgment order required.
12th District—no appellate decision, but Magistrate McElwee in Clinton County who currently reviews all of the replevins indicates that a prejudgment order is required in Clinton County.
Conclusion.
Although I can see both sides of the argument, I tend to agree more with the Second and Seventh Districts. I think that a prejudgment motion for possession is an available method by which a plaintiff can obtain possession of property prior to judgment, but it is not a requirement. I do not think that the Legislature intended to require a plaintiff to post a bond and gain possession of the property (and then be subject to the other side posting a bond and taking the property back) before final disposition of the case. Ultimately, this issue may need to be resolved by legislative clarification or by the Supreme Court of Ohio.
This is an interesting legal issue. Thank you for discussing it with me.
Sincerely,
Nicholas K. Rohner
Showing posts with label Ohio law. Show all posts
Showing posts with label Ohio law. Show all posts
Friday, December 25, 2009
Tuesday, April 03, 2007
Transportation Budget Bill Contains Changes to Definition of "Recreational User"
This is from the analysis of the recently passed Transportation Budget Bill prepared by the Legislative Services Commission of the Ohio General Assembly. Governor Strickland used his line-item veto on one part of the bill, but the part that concerns the change in the definition of "recreational user" was not the item the Governor vetoed.
Property owner immunity for recreational four-wheel drive motor vehicle
operation on privately owned or leased property
(R.C. 1533.18)
Current law establishes that no owner, lessee, or occupant of premises (1) owes any duty to a recreational user to keep the premises safe for entry or use, (2) extends any assurance to a recreational user that the premises are safe for entry or use, or (3) assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user (R.C. 1533.181, not in the bill). For purposes of this immunity from liability, "premises" generally are privately owned or leased property and a "recreational user" includes a person to whom
permission has been granted, without charge, to enter upon premises to hunt, fish, trap, camp, hike, swim, operate a snowmobile or all-purpose vehicle, or engage in other recreational pursuits. Under the bill, a recreational user also includes a person who operates a four-wheel drive motor vehicle on the property, with permission, and without paying a charge.
Property owner immunity for recreational four-wheel drive motor vehicle
operation on privately owned or leased property
(R.C. 1533.18)
Current law establishes that no owner, lessee, or occupant of premises (1) owes any duty to a recreational user to keep the premises safe for entry or use, (2) extends any assurance to a recreational user that the premises are safe for entry or use, or (3) assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user (R.C. 1533.181, not in the bill). For purposes of this immunity from liability, "premises" generally are privately owned or leased property and a "recreational user" includes a person to whom
permission has been granted, without charge, to enter upon premises to hunt, fish, trap, camp, hike, swim, operate a snowmobile or all-purpose vehicle, or engage in other recreational pursuits. Under the bill, a recreational user also includes a person who operates a four-wheel drive motor vehicle on the property, with permission, and without paying a charge.
Tuesday, January 09, 2007
Another Take on Issue Preclusion
Below is a decision that I filed today on a motion for dismissal/summary judgment that also involved the issue of collateral estoppal. The issue is somewhat different than the issue presented in an earlier entry on this blog. Please keep in mind that this entry is subject to appellate review. Below is the text of the opinion:
The Farmers Savings Bank (Farmers) has filed a motion for summary judgment alleging that Heartland Homes and Auction Company’s (Heartland) claims against it are barred by the doctrine of res judicata because of settlements entered in prior cases in both the General Division and the Domestic Relations Divisions of the Medina County Common Pleas Court. Farmers was not a party to either of those actions, but Heartland was a party in both actions.
The General Division case was an action brought against Joseph Hartley by Heartland and Dianna Hartley. The Case Number for that case was 02-CIV-0663. The Domestic Relations case was between the two Hartleys, but Heartland was joined as a party. The Case Number for that case was 02-DR-00004. Both cases were settled without a trial. Both cases were settled by the same settlement agreement and Case No. 02-CIV-0663 was then dismissed with prejudice.
Res judicata in Ohio includes both claim preclusion and issue preclusion. Fort Frye Teachers Ass'n v. State Empl. Rels. Bd., ( 1998) 81 Ohio St. 3d 392, 1998 Ohio 435. Issue preclusion is sometimes referred to as the doctrine of collateral estoppal. It precludes the re-litigation of a fact that was actually and directly at issue in a previous proceeding between the same parties or their privies. Ft. Frye, 81 Ohio St. 3d at 395. The requirement that the previous proceeding be between the same parties or their privies is sometimes referred to as the doctrine of “mutuality of estoppal.”
In this case Farmers does not argue that it was a party to the previous litigation or that it was in privty with any parties in either of the two prior cases. Rather, Farmers argues that this Court ought to relax the doctrine of mutuality of estoppal because of the decision of the Ninth Appellate District Court of Appeals, sitting as the Summit County Court of Appeals, in Michaels Building Company v. City of Akron, Case No. 13061.
This Court finds that the Michaels case is not binding on this Court through the doctrine of stare decisis because it was an unreported opinion. Although not binding authority on this Court, it is persuasive authority. In this case, however, the same fact situation does not exist that existed in Michaels Building. In that case Judge Cacioppo relied on an opinion by now Chief Justice Moyers who was on the Tenth Appellate District Court of Appeals. That opinion is McCrory v. Children’s Hospital (1986), 28 Ohio App. 3d 49.
In the McCrory case the Court held that where issues had actually been litigated in the prior proceeding, then the doctrine of mutuality of estoppal would be relaxed and would not require that the present proceeding be between the same parties or their privies. Both in McCrory and in Michaels Building the appeals arose after a trial, not a settlement. Here, in the prior cases, there were no trials, just settlements. Therefore, this Court finds that even if it were to relax the doctrine of mutuality of estoppal it would not do so in cases where the issues sought to be precluded had not been actually litigated. Consequently, this Court finds that summary judgment should not be granted on the basis of res judicata or collateral estoppal.
Farmers has also moved for summary judgment on the grounds that because of the settlement entered into between the parties in the first two cases, there was no damage caused by the tortious actions of Farmers, assuming that such actions occurred. This Court finds, however, that with respect to that argument, which goes to Counts One and Two, there is an issue of material fact and therefore summary judgment is improper.
Finally, Farmers also moves for summary judgment on Count Three of Heartland’s complaint. Again, with respect to that claim, the Court finds that there are issues of material fact and therefore summary judgment is not appropriate on that Count.
The Court consequently overrules the motion for summary judgment and the motion to dismiss for failure to state a claim, which was based on the res judicata argument disposed of above.
SO ORDERED.
The Farmers Savings Bank (Farmers) has filed a motion for summary judgment alleging that Heartland Homes and Auction Company’s (Heartland) claims against it are barred by the doctrine of res judicata because of settlements entered in prior cases in both the General Division and the Domestic Relations Divisions of the Medina County Common Pleas Court. Farmers was not a party to either of those actions, but Heartland was a party in both actions.
The General Division case was an action brought against Joseph Hartley by Heartland and Dianna Hartley. The Case Number for that case was 02-CIV-0663. The Domestic Relations case was between the two Hartleys, but Heartland was joined as a party. The Case Number for that case was 02-DR-00004. Both cases were settled without a trial. Both cases were settled by the same settlement agreement and Case No. 02-CIV-0663 was then dismissed with prejudice.
Res judicata in Ohio includes both claim preclusion and issue preclusion. Fort Frye Teachers Ass'n v. State Empl. Rels. Bd., ( 1998) 81 Ohio St. 3d 392, 1998 Ohio 435. Issue preclusion is sometimes referred to as the doctrine of collateral estoppal. It precludes the re-litigation of a fact that was actually and directly at issue in a previous proceeding between the same parties or their privies. Ft. Frye, 81 Ohio St. 3d at 395. The requirement that the previous proceeding be between the same parties or their privies is sometimes referred to as the doctrine of “mutuality of estoppal.”
In this case Farmers does not argue that it was a party to the previous litigation or that it was in privty with any parties in either of the two prior cases. Rather, Farmers argues that this Court ought to relax the doctrine of mutuality of estoppal because of the decision of the Ninth Appellate District Court of Appeals, sitting as the Summit County Court of Appeals, in Michaels Building Company v. City of Akron, Case No. 13061.
This Court finds that the Michaels case is not binding on this Court through the doctrine of stare decisis because it was an unreported opinion. Although not binding authority on this Court, it is persuasive authority. In this case, however, the same fact situation does not exist that existed in Michaels Building. In that case Judge Cacioppo relied on an opinion by now Chief Justice Moyers who was on the Tenth Appellate District Court of Appeals. That opinion is McCrory v. Children’s Hospital (1986), 28 Ohio App. 3d 49.
In the McCrory case the Court held that where issues had actually been litigated in the prior proceeding, then the doctrine of mutuality of estoppal would be relaxed and would not require that the present proceeding be between the same parties or their privies. Both in McCrory and in Michaels Building the appeals arose after a trial, not a settlement. Here, in the prior cases, there were no trials, just settlements. Therefore, this Court finds that even if it were to relax the doctrine of mutuality of estoppal it would not do so in cases where the issues sought to be precluded had not been actually litigated. Consequently, this Court finds that summary judgment should not be granted on the basis of res judicata or collateral estoppal.
Farmers has also moved for summary judgment on the grounds that because of the settlement entered into between the parties in the first two cases, there was no damage caused by the tortious actions of Farmers, assuming that such actions occurred. This Court finds, however, that with respect to that argument, which goes to Counts One and Two, there is an issue of material fact and therefore summary judgment is improper.
Finally, Farmers also moves for summary judgment on Count Three of Heartland’s complaint. Again, with respect to that claim, the Court finds that there are issues of material fact and therefore summary judgment is not appropriate on that Count.
The Court consequently overrules the motion for summary judgment and the motion to dismiss for failure to state a claim, which was based on the res judicata argument disposed of above.
SO ORDERED.
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