Are Prejudgment Attachment Orders Required to Obtain a Final Judgment of Replevin?

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