Bernad v. City of Lakewood , 140 Ohio App. 3d 350 ( 2000 )

JOURNAL ENTRY AND OPINION In this appeal, G. S. Bernad challenges the order of the Lakewood Municipal Court which denied his complaint for replevin of twenty-nine firearms which he had voluntarily relinquished to the Lakewood Police Department. Bernad admits that at the time the police took the weapons he had been under a legal disability due to a felony conviction for carrying a concealed weapon. However, he submits that, at the time he filed the replevin action seeking return of those weapons, the Cuyahoga County Common Pleas Court had relieved him of that disability, and thus, he asserts his entitlement to the immediate right to possession of them. We agree, and therefore, we reverse the judgment of the Lakewood Municipal Court.

The relevant facts in the case before us have been stipulated by the parties and are not disputed. The history reveals that in 1991, Bernad had been convicted of petty theft and carrying a concealed weapon. Subsequent to those convictions, on August 2, 1996, Bernad filed a petition with the common pleas court to expunge his felony conviction.

More recently, on June 7, 1997, Bernad's son, Peter, reported domestic violence charges against his father, and as a result, the Lakewood police arrested him. However, when his son later admitted he had fabricated the charges, they were dismissed. Three days later, Lakewood police and Alcohol, Tobacco and Firearms agents, responded to anonymous calls regarding weapons at Bernad's home, investigated, and discovered an antique gun collection which Bernad had inherited from his father. After learning of Bernad's prior felony conviction, the police removed the gun collection with Bernad's consent; no criminal charges were ever filed however, against Bernad, and the police have since retained custody of that gun collection.

On December 29, 1997, the Cuyahoga County Common Pleas Court granted Bernad's motion for expungement and sealed his record of conviction.

On February 13, 1998, Bernad filed this replevin action in the Lakewood Municipal Court to recover his gun collection from the police asserting that he consented to removal of the property with the understanding it would be held in storage until any possible issue of his disability had been resolved. Having been relieved of the disability, Bernad maintains that property is now wrongfully held. The trial court denied relief, and this appeal followed. Bernad raises seven assignments of error for our review.

I.

THE LOWER COURT ERRED BY DENYING PLAINTIFF'S PETITION FOR REPLEVIN FOR RETURN OF THE GUN COLLECTION TO PLAINTIFF IN THAT THE COURT'S JUDGMENT OF NOVEMBER 12, 1998, VOL 98 PAGE 1112, WAS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE AS SUBMITTED BY THE PARTIES ON STIPULATION.

II.

THE LOWER COURT'S JUDGMENT ENTRY REFLECTED PLAIN ERROR IN ITS READING OF THE FACTS AS AGREED TO BY THE PARTIES IN THE STIPULATION SUBMITTED TO THE COURT.

III.

THE LOWER COURT HAS VIOLATED DUE PROCESS STANDARDS BY SUMMARILY CONCLUDING THAT THE PLAINTIFF WAS ENGAGED IN CRIMINAL ACTIVITY, EVEN THOUGH THE RECORD CLEARLY REFLECTS THAT THE POLICE OFFICERS DETERMINED THAT UNDER THE CIRCUMSTANCES NO ARREST WAS TO BE MADE, NO CHARGES WERE TO BE FILED.

IV.

THE LOWER COURT ERRED IN ITS JUDGMENT THAT THE PLAINTIFF HAS FAILED TO MEET HIS BURDEN OF PROOF.

V.

THE LANGUAGE OF THE LOWER COURT'S JUDGMENT RELECTS [SIC] A PREJUDICE AGAINST THE PLAINTIFF THAT IS UNJUSTIFIED BY ANY REASONABLE READINGS OF THE STIPULATIONS.

VI.

THE LOWER COURT'S JUDGMENT UNCONSTITUTIONALLY DEPRIVES THE PLAINTIFF OF PROPERTY WITH OUT [SIC] DUE PROCESS OF LAW.

VII.

THE COURT HAS ERRED BY FAILING TO TAKE INTO ACCOUNT AND FAILING TO ADDRESS IN ITS JUDGMENT THAT UPON THE PLAINTIFF'S FILING FOR REPLEVIN OF THIS PROPERTY ANY QUESTION OF DISABILITY HAD BEEN REMOVED BY PLAINTIFF'S EXPUNGEMENT OF HIS PRIOR FELONY CONVICTION AND THEREFORE THE PROPERTY WHICH IS A VALUABLE ASSET OF HIS DECEASED FATHER'S ESTATE SHOULD BE RETURNED.

Bernad argues on appeal that he is entitled to the return of property seized by the police because he is no longer under any legal disability and may now lawfully possess weapons. The city maintains that at the time the police discovered the gun collection in his home, Bernad had a felony conviction for carrying a concealed weapon, and therefore, by statute, was under a legal disability and could not possess a weapon. Thus, the city urges the weapon collection had been lawfully removed from Bernad's custody. No challenge can successfully be made as to the propriety of the police action in confiscating those weapons; but the propriety of the removal of the weapons is not the issue before our court on this appeal. Rather, the issue before our court today concerns Bernad's writ of replevin which singularly tests which party has immediate right to possession of the property in question.

Before considering the matter of the writ of replevin, however, we examine the import of the action of the trial court in granting Bernad the relief from the disability.

In an analogous case styled State ex rel. Gains v. Rossi (1999), 86 Ohio St.3d 620, the court there considered a writ of quo warranto which had been filed to remove Rossi from the office of councilman because he had been convicted of a federal felony offense, attempted tax evasion, and R.C. 2961.01 in effect at that time provided in part:

A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit.

During the pendency of the matter in the court of appeals, the common pleas court granted Rossi's application to seal the record of conviction and expunged his record.

The Supreme Court, in affirming the court of appeals, denied the writ to remove Rossi, and stated:

* * * Here, Ohio has created a general disability resulting from a federal felony conviction under R.C. 2961.01 and has provided a means to remove that general disability in the expungement statutes. The result does not violate the Supremacy Clause.

In its opinion the court noted:

The R.C. 2953.32(C)(2) order to seal the record of a person's conviction "restores the person who is the subject of the order to all rights and privileges and otherwise restored by termination of sentence or probation or by final release on parole." (Emphasis added.) R.C. 2953.33(A).

Under the applicable rule of statutory construction, all statutes relating to the same general subject matter must be read in pari materia. * * * Further, in interpreting related and co-existing statutes, we must harmonize and accord full application to each of these statutes unless they are irreconcilable and in hopeless conflict. * * * In addition, the remedial expungement provisions of R.C. 2953.32 and 2953.33 must be liberally construed to promote their purposes. * * * (Citations omitted.)

Thus, in that case, the court recognized the impact of relief from a disability.

In State ex rel. Jividen v. Toledo Police Dept. (1996),112 Ohio App.3d 458, the court articulated the import of a writ of replevin:

* * * A writ of replevin enforces a legal right of immediate possession of specific property, which is granted to one who has a right to that immediate possession against another who is holding the property wrongfully or unlawfully. * * * (Citations omitted.)

See, also, Walther v. Central Trust Co., N.A. (1990), 70 Ohio App.3d 26. Further in Rothachker v. City of Lakewood (1986),30 Ohio App.3d 33, this court confronted a gun-seizure issue in connection with an individual under a legal disability due to chronic alcoholism. We stated:

* * * Therefore, if the appellant would have been able to prove at the time of the hearing that he was not then a chronic alcoholic, the trial court would have had the authority to order the return of the guns. As noted earlier, however, the trial court determined that Rothacker was a chronic alcoholic as of the date of the judgment and, thus, properly refused to order the return of the guns.

Our review here then is confined to a determination of which party has the immediate right to possession of the twenty-nine piece antique gun collection that Bernad inherited from his father. The evidence here presents us with a purportedly lawful and proper seizure of weapons by the police at the time they discovered them in Bernad's home, contrasted with Bernad's current claim that the law does not presently preclude his possession of this property.

Since replevin tests the immediate right to possession of property, the law cannot look to prior activity or conduct of any party in determining that immediate right. Bernad is thus entitled to the property because at the time he filed his writ of replevin, he established that his legal disability had been removed. He has, therefore, established an immediate right to the antique gun collection, and is entitled to return of his property. Accordingly, the judgment of the Lakewood Municipal Court in this case is reversed.

Writ allowed.

This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

It is, therefore, considered that said appellant recover of said appellee costs herein.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

___________________________________ TERRENCE O'DONNELL, PRESIDING JUDGE

DIANE KARPINSKI, J., CONCURS, with Concurring Opinion attached.

JOHN T. PATTON, J., DISSENTS, with Dissenting Opinion attached.