Gregory v. Martin , 2016 Ohio 650 ( 2016 )

[Cite as Gregory v. Martin, 2016-Ohio-650.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
AMOS F. GREGORY, ) CASE NO. 15 JE 17
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
HARDIN MARTIN, JR., et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Jefferson County, Ohio
Case No. 12 CV 149
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Amos F. Gregory, pro se
124 Wares Drive
Weirton, West Virginia 26062
For Defendants-Appellees: Atty. Thomas McK. Hazlett
Hazlett Law Offices
185 W. Main Street
St. Clairsville, Ohio 43950
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: February 22, 2016
[Cite as Gregory v. Martin, 2016-Ohio-650.]
ROBB, J.
{¶1} Plaintiff-Appellant Amos Gregory appeals the decision of Jefferson
County Common Pleas Court granting the requested relief in his action for replevin.
The trial court ordered Defendants-Appellees Hardin and Karla Martin to “make
available to Plaintiff all personal property subject to the agreement available to
Plaintiff to the extent that such property still exists.” 6/17/15 J.E. Appellant asserts
the trial court erred in failing to award him damages for the personal property which
no longer exists.
{¶2} Appellant’s argument is meritless and the trial court’s decision is hereby
affirmed. As will be explained, Appellant’s claim for damages is based on the trial
court’s decision to deny his motion for a hearing on conversion, which was filed
approximately one week after the trial court granted the claim for replevin. That
ruling was not appealed to this court; Appellant solely appealed the replevin order.
Thus, the trial court’s failure to award him damages on the conversion claim is not
properly before this court. However, even if it was, Appellant did not satisfy the
statutory requirements to establish conversion.
Statement of the Facts and Case
{¶3} Appellant and Appellees entered into a contract for the sale of two
funeral homes, one located at 411 North Seventh Street, Steubenville, Ohio, and one
located at 2028 Delaware Avenue, Weirton, West Virginia. The contract was signed
in June 2008. Per the agreement, the purchase price was $300,000.00. Appellees
paid Appellant $150,000.00 at closing; that amount was financed through a bank.
The remaining $150,000.00 was to be paid in monthly installments to Appellant.
Appellees breached this agreement by failing to pay the monthly payments. As a
result, Appellant filed a pro se Petition for Declaratory Judgment based on breach of
contract in March 2012 in Jefferson County Common Pleas Court.1
{¶4} In February 2013, the matter was stayed due to an automatic
bankruptcy stay; Appellees had filed a petition for bankruptcy.
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{¶5} Appellant sought and obtained relief from the bankruptcy stay as it
pertained to the real property located at 411 North Seventh Street, Steubenville, Ohio
and 2028 Delaware Avenue, Weirton, West Virginia. 11/8/13 Bankruptcy Order.
{¶6} On January 21, 2014, Appellant filed a replevin action seeking an order
from the court for possession of personal property located in 411 North Seventh
Street, Steubenville, Ohio and 2028 Delaware Avenue, Weirton, West Virginia.
{¶7} Appellees filed a response and countersued for defamation. In the
response, they asserted the Federal Bankruptcy Court determined that the personal
property Appellant was seeking did not have value, was destroyed or thrown away,
and/or donated. They claimed the other personal property was given to them by the
Bankruptcy Court. 1/31/14 Response and Counter-Suit.
{¶8} The matter was set for a hearing. Following the hearing, the trial court
denied the request for replevin. 2/4/14.
{¶9} After that decision, it appears Appellant sought compensation through
the federal bankruptcy court for his personal property. In November 2014, the parties
agreed to dismiss Appellant’s claims. The Bankruptcy Court stated:
The dismissal with prejudice of the claims asserted by the Plaintiff in
this adversary proceeding (including the nondischargeability claims
contained in the Complaint) shall not preclude the Plaintiff from
pursuing his state court remedies to seek to recover from the Debtors
the Personal Property allegedly converted, or its value, and the parties
agree that said limited claims are not extinguished by the Debtors’
bankruptcy proceedings.
11/7/14 Bankruptcy Order.
{¶10} In February 2015, Appellant filed a “Motion to Submit Additional
Evidence” with the common pleas court in the replevin action. 2/17/15 Motion. In
this motion, Appellant provided internet photos he claimed were posted by Appellees
showing the existence and location of many of the personal property items that were
1The action was originally filed in West Virginia. Appellees moved for change of venue, which
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sold as part of the 2008 agreement. He claimed these were items Appellees denied
having in their possession.
{¶11} The trial court allowed the submission of additional evidence. 3/11/15
J.E.
{¶12} Appellees responded by filing a motion to dismiss. Appellees claimed
Appellant is not entitled to possession of the property. 4/8/15 Motion. They asserted
Appellant sold them the personal property in 2008 and consequently, he retained no
interest in the personal property. 4/8/15 Motion.
{¶13} A hearing was held on April 20, 2015. The trial court found that title to
the personal property did not pass to Appellees until the purchase price was paid in
full. The court ordered Appellees to make available to Appellant all personal property
subject to the agreement to the extent that such property still existed. Thus, the trial
court granted the replevin relief Appellant requested. 6/17/15 J.E.
{¶14} Approximately one week later, Appellant filed a “Claim for Conversion
Hearing” motion. Appellant alleged that in Appellees’ response to the replevin action
they stated the property was no longer in their possession. Appellant contended that
since the property was no longer in Appellees possession it cannot be made
available to him. Therefore, he requested damages for the property.
{¶15} The trial court denied that request. 7/8/15 J.E.
{¶16} Appellant, pro se, filed a timely notice of appeal from the June 17, 2015
Order. 7/13/15 Notice of Appeal. The notice of appeal specifically references the
June 17, 2015 Order; it does not reference the July 8, 2015 Order. Attached to the
notice of appeal is the June 17, 2015 Order; the July 8, 2015 Order is not attached to
the notice of appeal.
{¶17} This court sua sponte questioned whether Appellant was an aggrieved
party under the June 17, 2015 Order and whether the appeal could proceed. We
questioned our jurisdiction because Appellant prevailed in his replevin action.
Appellant was granted 30 days to file a memorandum in support of jurisdiction.
7/30/15 J.E. He complied with our request and argued he was aggrieved because
was granted and the action was refiled in Jefferson County Common Pleas Court.
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there was no award of damages for personal property that no longer exists. 8/3/15
Memorandum. On the basis of that argument, we indicated we would fully review the
matter. 9/14/15 J.E.
Assignment of Error
The trial court erred by ordering the Defendants to make
available to Plaintiff all personal property subject to the agreement
available to the extent that such property still exist, in violation of R.C.
2737.14.
The trial court erred by not awarding damages for breach of
contract or conversion in its Final Appealable Order in violation of R.C.
2737.14.
{¶18} It appears Appellant, pro se, argues the trial court, in addition to
awarding him possession of the personal property, should have awarded damages in
the June 17, 2015 Order. His argument, however, is meritless.
{¶19} Appellant’s pro se replevin action sought the return of his property. In
the January 21, 2014 “Replevin Action,” he requested an order for possession of
property. He specifically indicated he believed his personal property was being held
at Appellees’ place of business and at their home. He identified those places by
street addresses. 1/21/14 Replevin Action. In his February 17, 2015 “Replevin
Action, Motion to Submit Additional Evidence,” Appellant provided internet pictures of
Appellees’ place of business which allegedly showed his personal property currently
being used at their business facility. 2/17/15 Replevin Action.
{¶20} In Ohio, replevin is solely a statutory remedy. America Rents v.
Crawley, 77 Ohio App.3d 801, 804, 603 N.E.2d 1079 (10th Dist.1991). “A replevin
suit simply seeks to recover goods from one who wrongfully retains them at the time
the suit is filed. Replevin does not even require an ‘unlawful taking.’ The plaintiff in
replevin need only prove that he is entitled to certain property and that the property is
in the defendant's possession.” Wysocki v. Oberlin Police Dept., 9th Dist. No.
-5-
13CA010437, 2014-Ohio-2869, ¶ 7, quoting Wilson v. Jo–Ann Stores, Inc., 9th Dist.
No. 26154, 2012–Ohio–2748, ¶ 11 (citation omitted).
{¶21} R.C. 2737.14, which governs replevin, provides:
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 and any damages to the party
obtaining the award to the extent the damages proximately resulted
from the taking, withholding, or detention of the property by the other,
and the costs of the action. If delivery of the property cannot be made,
the action may proceed as a claim for conversion upon due notice
being given the respondent of the date, time, place, and purpose of the
hearing upon such claim.
R.C. 2737.14.
{¶22} The trial court’s final judgment complied with this statute; it awarded
permanent possession of the property, to the extent that it existed, to Appellant. The
trial court did not award damages for “the taking, withholding, or detention of the
property” because such damages were not requested at the time of the June 17,
2015 Order. Appellant only sought the return of his property. Therefore, there was
no error in the trial court’s June 17, 2015 Order.
{¶23} It appears Appellant’s contention with the trial court’s ruling is that it did
not convert the replevin action to a conversion action and award damages.
{¶24} His contention is meritless for two reasons.
{¶25} First, the June 17, 2015 Order did not deny the request to convert the
action to a conversion claim. It was the trial court’s July 8, 2015 Order that denied
the request. Appellant did not file an appeal from that order. Thus, the propriety of
that order is not properly before this court.
{¶26} Second, even if the propriety of the July 8, 2015 Order was before this
court, the trial court did not err in denying the request.
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{¶27} “Conversion is the wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from [his] possession under a
claim inconsistent with [his] rights.” Kostyo v. Kaminski, 9th Dist. No. 12CA010266,
2013–Ohio–3188, ¶ 12, quoting State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589,
592, 752 N.E.2d 281 (2001). The elements of a conversion action are: (1) plaintiff's
ownership or right to possession of the property at the time of the conversion, (2)
defendant's conversion by a wrongful act or disposition of plaintiff's property rights,
and (3) damages. Dice v. White Family Companies, Inc., 173 Ohio App.3d 472, 878
N.E.2d 1105, 2007–Ohio-5755, ¶ 17 (2d Dist.).
{¶28} R.C. 2737.14 indicates if delivery of the property cannot be
accomplished, the action may proceed as a claim for conversion. We have
previously explained that R.C. 2737.14 provides what happens in two situations.
Long v. Noah's Lost Ark, Inc., 158 Ohio App.3d 206, 2004-Ohio-4155, 814 N.E.2d
555, ¶ 60 (7th Dist.) “In the first situation, an action to recover possession of
personal property in which an order of possession has been issued, the final
judgment should award permanent possession of the property to the party obtaining
possession.” Id. “In the second situation, if delivery of the property cannot be made,
the action may proceed as a claim for conversion.” Id. Therefore, in an action for
replevin when an order of possession is granted, an attempt to repossess must be
made prior to converting the action to conversion.
{¶29} Here, the trial court did not know whether or not delivery of the property
could be made because there was no attempt to repossess. Appellant claimed
Appellees previous filings indicated that the personal property was destroyed, thrown
away, and/or donated. While that is an accurate representation of what the filing
stated, Appellant’s own additional evidence in the replevin case included pictures of
Appellees’ place of business showing use of some of the property. In other words,
Appellees were still in possession of some property that was subject of the replevin
action. By this evidence, it appears that potentially some of the property still exists
and can be repossessed by Appellant. If delivery of the property is possible, then
delivery must be made per the trial court’s order. Id.; Alb USA Auto, Inc. v. Modic,
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8th Dist. No. 98914, 2013-Ohio-1561, ¶ 12, quoting Marthaller v. Kustala, 8th Dist.
No. 90529, 2008–Ohio–4227, ¶ 11 (Where property can be returned, the appropriate
remedy is replevin, not conversion.). However, if delivery is not possible then the
claim could proceed as a conversion action if the requirements of R.C. 2737.14 are
met. Long at ¶ 60-61; Modic; Marthaller. Therefore, even if we could review the July
8, 2015 Order denying the conversion hearing, we would still find that the trial court
did not err in denying the motion at that time.
{¶30} For all the above stated reasons, the sole assignment of error is
meritless. The trial court’s decision is hereby affirmed.
Donofrio, P.J., concur
Waite, J., concur