2005 Ohio 1282 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} Pursuant to the parties' amended stipulation of facts submitted in the trial court, on November 20, 2002, appellant telephoned the Wayne County Sheriff's office to report that his truck had been stolen. The parties further stipulated that appellant filed a written police report regarding the missing truck with the Wayne County Sheriff's office on November 21, 2002 and again on December 9, 2002. The Sheriff's office noted on November 21, 2002 the belief that appellant's truck was not stolen, because appellant "freely lent the vehicle to an unknown person." On December 9, 2002, however, the Sheriff's office noted "unauthorized use of a motor vehicle," pursuant to R.C.
{¶ 4} The parties entered into the following further stipulations. On November 24, 2002, the Akron Police Department ("APD") determined that a 1998 Toyota Tacoma truck had been left on a street in Akron. Upon determination that there was no computer record of a theft report involving the truck, the APD ordered Johnny's Auto Truck Towing, Inc. to tow the truck. The APD then conducted a search of Bureau of Motor Vehicles ("BMV") records and determined that appellant was the registered owner of the truck. The APD sent certified notice to appellant, directing appellant to reclaim the truck from the towing company within 10 days; otherwise, the truck would be disposed pursuant to statute. While the post office attempted delivery of the certified notice twice, appellant never received the notice.
{¶ 5} It is undisputed that appellant did not reclaim his truck from the towing company within 10 days of the mailing of the notice. On February 19, 2003, a designated representative of the APD executed an unclaimed and abandoned junk motor vehicle affidavit, which a representative of the towing company presented to the Summit County Clerk of Courts to receive a salvage title for the truck. On February 28, 2003, appellee purchased the truck from the towing company and received a salvage title to the truck from the county clerk's office the same day.
{¶ 6} On July 17, 2003, appellee filed a complaint for declaratory judgment in the trial court, seeking both a declaration that he is the rightful owner of the 1998 Toyota Tacoma truck and an order directing the BMV to register the truck in appellee's name. Earlier, when appellee had attempted to register the truck in his name, the BMV refused, asserting that appellant was the owner of the truck. In his complaint, appellee named appellant as a party, who "has a potential interest in the personal property of this action[.]" Appellee further averred in the complaint that the APD determined that the truck had been abandoned and that they complied with all requirements of R.C.
{¶ 7} Appellant answered that the truck was a stolen vehicle at the time of its disposal and that salvage title should not have issued. Appellant requested a declaration from the court that he is the sole owner of the truck and that salvage title is invalid.
{¶ 8} The parties filed their amended stipulation of facts and competing motions for summary judgment. The parties agreed that the sole issue for the trial court's determination was whether the truck was abandoned, so that R.C.
{¶ 9} Appellant argues that the trial court erred by finding that appellant's truck was abandoned, thereby finding summary judgment appropriate for appellee. This Court agrees.
{¶ 10} This Court reviews an award of summary judgment de novo.Grafton v. Ohio Edison Co. (1996),
{¶ 11} Pursuant to Civ.R. 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
{¶ 12} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt
(1996),
{¶ 13} This case concerns the applicability of R.C.
"The sheriff of a county or chief of police of a municipal corporation * * * may order into storage any motor vehicle * * * that has been left on a public street * * *. The sheriff or chief of police shall designate the place of storage of any motor vehicle so ordered removed.
"The sheriff or chief of police immediately shall cause a search to be made of the records of the bureau of motor vehicles to ascertain the owner and any lienholder of a motor vehicle ordered into storage by the sheriff or chief of police * * * and, if known, shall send or cause to be sent notice to the owner or lienholder at the owner's or lienholder's last known address by certified mail with return receipt requested, that the motor vehicle will be declared a nuisance and disposed of if not claimed within ten days of the date of mailing of the notice. The owner or lienholder of the motor vehicle may reclaim it upon payment of any expenses or charges incurred in its removal and storage, and presentation of proof of ownership * * *.
"If the owner or lienholder makes no claim to the motor vehicle within ten days of the date of mailing of the notice, and if the vehicle is to be disposed of at public auction as provided in section
{¶ 14} The parties do not dispute that R.C.
{¶ 15} While neither appellant nor appellee dispute that R.C.
{¶ 16} In his motion for summary judgment, appellee argued that the truck was abandoned; because appellant had loaned his truck to a recent acquaintance, with the understanding that the acquaintance would use the truck to buy cigarettes and return. Appellee asserted that this is not a case, where the acquaintance stole and subsequently abandoned the truck, so as to preclude application of R.C.
{¶ 17} In support of his motion for summary judgment, appellee averred in affidavit merely that the APD ordered the towing of the truck after the department determined that the truck was "not stolen, as of above time date." Appellee further averred that the affidavit executed by the APD indicated that the department had complied with the procedural and notice requirements of R.C.
{¶ 18} In his competing motion for summary judgment and response in opposition to appellee's motion, appellant argued that the truck was stolen; because his acquaintance deprived him of the truck, within the context of a theft, by knowingly obtaining or exerting control over the truck beyond the scope of appellant's consent.
{¶ 19} In appellant's affidavit in support of his proposition that the truck was stolen, appellant conceded that he had loaned the truck to a woman he met at a bar. He averred, however, that he loaned the truck for the limited purpose that the acquaintance drive into town to buy cigarettes and then return. Appellant averred that he telephoned the Wayne County Sheriff's department the next day to report the truck stolen and that he followed up by filing two incident reports regarding the theft of the truck. In addition, appellant averred in affidavit that he is a truck driver, and he never received notice that he must reclaim his truck within 10 days. He averred, however, that had he received notice, he would have signed for it and made arrangements to reclaim the truck. There is no dispute that certified mail notice to appellant was returned unclaimed.1
{¶ 20} In its order, the trial court defined "abandoned property" and "stolen property" and found that, because appellant had some responsibility for the abandonment of the vehicle, R.C.
{¶ 21} R.C.
{¶ 22} Black's Law Dictionary (7 Ed. 1999) 1 defines "abandonment" as "[t]he relinquishing of a right or interest with the intention of never again claiming it." "Abandoned property" is defined as "[p]roperty that the owner voluntarily surrenders, relinquishes, or disclaims." Id. at 1233. The Doughman court held that "[a]bandoned property then is property over which the owner has relinquished all right, title, claim, and possession with the intention of not reclaiming it or resuming its ownership, possession or enjoyment." Doughman,
{¶ 23} In this case, the only evidence appellee presented regarding the status of the truck was his affidavit that he relied on the APD's determination that the truck had not been reported as stolen and the department's unclaimed and abandoned junk motor vehicle affidavit asserting compliance with the requirements of R.C.
{¶ 24} Viewing the facts in the light most favorable to appellant, i.e., the non-moving party, this Court finds that appellant met his reciprocal burden of responding by setting forth specific facts to overcome appellee's evidence. Appellant averred in affidavit that he loaned his truck to a new acquaintance for a specific limited purpose. Appellant further averred regarding the efforts he made to report that the truck had been stolen, after the acquaintance exceeded that limited authority. Both appellee and appellant further stipulated to appellant's efforts. In addition, as noted in Exhibit B, attached to the parties' amended stipulation of facts, the APD documented the "unauthorized use of a motor vehicle" in regard to the truck, which offense is categorized as a theft offense.
{¶ 25} Under the circumstances, this Court finds that there is no genuine issue of material fact, and that appellant is entitled to judgment as a matter of law. Appellant presented sufficient evidence to establish that it was not his intent to have relinquished all rights, title or claim to ownership of the truck, thereby overcoming appellee's evidence and meeting his own Dresher burden. Moreover, appellee presented no further evidence to rebut appellant's evidence that he had not relinquished his claim to the truck or that he would have reclaimed the truck had he received notice of its impending disposal. Appellee's attempt to bootstrap the APD's assertion of compliance with the statutory notice provision to a finding that the truck was, in fact, abandoned is insufficient to overcome appellant's evidence to the contrary, especially in light of the APD's failure to actually effect notice to appellant.
{¶ 26} This is a case where appellant's truck was stolen, then abandoned by a thief, at the time of its removal and disposal. Consequently, because this Court finds that appellant's truck was stolen, rather than abandoned, the removal and disposal provisions of R.C.
{¶ 27} In light of the above facts and applicable law, this Court finds that summary judgment was improperly granted in favor of appellee and denied as against appellant. Appellant's assignment of error is sustained.
Judgment reversed and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellee.
Exceptions.
Batchelder, J. Concurs.
Dissenting Opinion
{¶ 29} I agree with the majority that this vehicle was either stolen or used in a criminal offense of "unauthorized use of a motor vehicle." Having found that appellant's truck was stolen and that the removal and disposal provisions of R.C.
{¶ 30} After the property is no longer needed for evidence, a reasonable effort must be made to return the property to its rightful owner.
"[A] law enforcement agency that has property in its possession that is required to be disposed of pursuant to this section shall make a reasonable effort to locate the persons entitled to possession of the property in its custody, to notify them of when and where it may be claimed, and return the property to them at the earliest possible time. In the absence of evidence identifying the persons entitled to possession, it is sufficient notice to advertise in a newspaper of general circulation in the county, briefly describing the nature of the property in custody and inviting persons to view and establish their right to it."
{¶ 31} In the instant case, I find that a reasonable effort was not made to return the vehicle to appellant. The only effort that was made to return appellant's vehicle to him was in the form of an undelivered certified letter informing him of the location of his vehicle. Appellant never received notice that he was to sign for certified mail. Consequently, the letter was never delivered and appellant had no notice that he vehicle was recovered. I cannot say that the Akron Police Department made a reasonable effort to contact appellant or to return his vehicle to him. Thus, I find that the requirements of R.C.
{¶ 32} The Akron Police Department clearly did not comply with the requirements of R.C.
