Myers v. Hadsell Chem. Processing, L.L.C.Myers v. Hadsell Chem. Processing, L.L.C.
DECISION
Rendered on July 23, 2019
On brief: Ricketts Co., LPA, Richard T. Ricketts, and Andrew C. Clark, for appellants/cross-appellees. Argued: Andrew C. Clark.
On brief: Lambert Law Office, Randall L. Lambert, and Cassaundra L. Sark, for appellee/cross-appellant. Argued: Cassaundra L. Sark.
APPEAL from the Franklin County Court
DORRIAN, J.
{¶ 1} Plaintiffs-appellants/cross-appellees, Lori D. Meyers and Christopher L. Yerington (collectively, “appellants“), appeal from a judgment of the Franklin County Court of Common Pleas regarding the amount of amercement awarded by the court in granting their motion for amercement against appellee/cross-appellant Charles S. Reader (“Sheriff Reader“), in his official capacity as sheriff of Pike County, Ohio. Sheriff Reader filed a cross-appeal from the judgment granting the motion for amercement. For the following reasons, we affirm.
I. Facts and Procedural History
A. Underlying judgment and attempts to execute on judgment
{¶ 2} The motion for amercement at issue in the present appeal arises from an attempt to collect on a judgment obtained by appellants in the underlying lawsuit filed against defendants-appellees Hadsell Chemical Processing, LLC (“Hadsell Chemical“), Relevant Compounding, LLC (“Relevant“), Donald A. Hadsell, Hadsell Development, LLC, Robert W. Walton, Jr., Scott D. Evans, Timothy J. Sherman, and two Jane Doe parties. Appellants’ complaint, filed October 26, 2016, asserted claims for breach of promissory notes, guarantees, fraud, rescission, promissory estoppel, civil conspiracy, quantum meruit, unjust enrichment, restitution, conversion, and recovery of fraudulent conveyances. By warrant of attorney, appellants were granted a cognovit judgment of $3,381,532.91 against Hadsell Chemical, Relevant, and Walton, jointly and severally, on certain claims for breach of promissory notes, and $149,230.21 against Relevant and Walton, jointly and severally, on another claim for breach of a promissory note.
{¶ 3} On November 8, 2016, appellants filed a praecipe for a writ or order of execution with the Clerk of Courts of the Pike County Court of Common Pleas (“Pike County Clerk“). The praecipe directed
{¶ 4} On February 8, 2017, Hadsell Chemical filed a motion in the Pike County Court of Common Pleas to quash the First Levy, asserting the First Writ was not timely executed. The following day, appellants filed a second praecipe for a writ or order of execution with the Pike County Clerk. That same day, the Pike County Clerk issued a second writ captioned “writ of possession for personal property” (“Second Writ“) to the Pike County Sheriff‘s Office. The Second Writ was executed on February 16, 2017, and the Pike County Sheriff‘s Office seized or tagged various items located at Hadsell Chemical‘s place of business (“Second Levy“). On March 7, 2017, the Pike County Court of Common Pleas entered an agreed order holding that the First Writ was not timely executed and, therefore, the First Levy was invalid. Under the agreed order, Hadsell Chemical waived any objection to the Second Levy. In April 2017, Hadsell Chemical filed a petition for bankruptcy in federal court. Subsequently, on August 23, 2017, the Pike County common pleas court entered an agreed judgment entry providing that the Pike County Sheriff‘s Office was directed to turn over all of the levied property to the bankruptcy trustee.
B. Amercement proceedings
{¶ 5} On January 25, 2017, before the First Writ had been executed, appellants filed a motion for amercement against Sheriff Reader in the Franklin County Court of Common Pleas, requesting that Sheriff Reader be amerced for failure to timely execute the First Writ. The motion requested that Sheriff Reader be amerced in the amount of appellants’ judgment against Hadsell Chemical, Relevant, and Walton, and 10 percent of that amount, pursuant to
{¶ 6} On April 26 and 27, 2018, the Franklin County common pleas court conducted a hearing on the motion for amercement. The trial court heard testimony from Yerington, a deputy clerk with the Pike County Clerk‘s office, Sheriff Reader, the chief deputy sheriff who previously served as sheriff, and two administrative employees of the Pike County Sheriff‘s Office. Following the hearing, the trial court issued a decision granting appellants’ motion for amercement. The court further found that ordering Pike County and Sheriff Reader, in his official capacity, to be amerced in the amount of
II. Assignments of Error
{¶ 7} Appellants appeal and assign the following two assignments of error for our review:
I. The Trial Court committed reversible error when it imposed a monetary limit on this
R.C. 2707.01 Amercement Judgment.II. The Trial Court committed reversible error when it disregarded the statutory subrogation provisions of
R.C. 2707.07 and created its own mitigation structure by applying the2707.03 amercement limit to this2707.01 amercement.
{¶ 8} Sheriff Reader has filed a cross-appeal and assigns the following three assignments of error for our review:
[I.] The trial court erred by finding that the Pike County Clerk‘s Office issued a Writ of Execution.
[II.] The trial court erred by finding that Sheriff Charles Reader failed to timely execute the Writ that was issued by the Pike County Clerk‘s Office.
[III.] The trial court erred by finding Sheriff Charles Reader was delinquent in his official capacity when the Clerk‘s Office failed to issue the correct writ.
III. Analysis
A. Sheriff Reader‘s assignments of error
{¶ 9} We begin with Sheriff Reader‘s assignments of error, which challenge the trial court‘s conclusion that he was subject to amercement for failure to timely execute the First Writ. In his three assignments of error, Sheriff Reader argues the trial court erred by finding the First Writ was a writ of execution, that he failed to timely execute the First Writ, and that he was delinquent in his official capacity by failing to timely execute the First Writ.
1. Challenge to trial court‘s conclusion that First Writ was a writ of execution
{¶ 10} In his first assignment of error, Sheriff Reader asserts the trial court erred by concluding the First Writ constituted a writ of execution, arguing that the First Writ was a writ of replevin. The trial court found the First Writ was clearly a writ of execution and no reasonable public official could have interpreted it to be a writ of replevin. Appellants argue the trial court properly found the First Writ to be a writ of execution because it sought post-judgment recovery of property to satisfy a judgment.
{¶ 11} A writ of execution is a post-judgment remedy. See
{¶ 12} Prior to the hearing on the motion for amercement, the parties stipulated that the Pike County Sheriff‘s Office received the First Writ on November 10, 2016, and that it consisted of three pages: (1) a page captioned “writ of possession for personal property” directing Sheriff Reader to “proceed with the replevin in the within matter” and contact appellants’ counsel to arrange for recovery of the personal property described in the attached exhibit, (2) a copy of the praecipe for a writ or order of execution filed by appellants with the Pike County Clerk, and (3) the exhibit to the praecipe for a writ or order of execution describing the property to be tagged.
{¶ 13} Appellants did not provide a writ of execution to be issued by the Pike County Clerk as part of the praecipe for a writ or order of execution; therefore, it was necessary for the clerk‘s office to prepare the writ to be issued. A deputy clerk testified the Pike County Clerk had two template writs that were used when a praecipe did not include a copy of the writ to be issued. One template was captioned “writ of possession for personal property” and the other template was captioned “writ of possession for real property.” The deputy clerk testified she was trained to use the “writ of possession for personal property” template when a writ of execution was requested but no writ was provided by the requesting party. She testified she was not aware of any instances where the Pike County Sheriff‘s Office refused to execute a writ based on the form or substance of the writ. The deputy clerk further testified the Pike County Sheriff‘s Office did not contact the Pike County Clerk with any questions or requests for clarification after receiving the First Writ.
{¶ 14} The trial court concluded the First Writ was a writ of execution on personal property and that it complied with the statutory requirements. The First Writ directed Sheriff Reader to levy on certain specified property, as set forth in the attachment to the First Writ, and the praecipe attached to the First Writ identified the judgment debtors, the date of the judgment, and the fact that a copy of the judgment had been filed with the Pike County Clerk. Moreover, based on testimony presented at hearing, the trial court concluded the practice of the Pike County Clerk was to use the “writ of possession for personal property” template for issuing a writ of execution when a writ was not provided by the party filing the praecipe for writ of execution, and that the Pike County Sheriff‘s Office understood these to be writs of execution. Under these circumstances, the trial court reasoned that the First Writ unequivocally provided for post-judgment recovery of property and that no reasonable public official could have construed the First Writ to be a writ of replevin.
{¶ 15} This court previously considered a sheriff‘s reasonable interpretation of a writ in William P. Bringman Co., LPA v. Blubaugh, 10th Dist. No. 13AP-340, 2013-Ohio-4672 (”Bringman I“). In that case, William Bringman obtained a judgment against David Blubaugh and filed a praecipe for writ of execution directing the Franklin County Clerk of Courts to issue a writ of execution to the sheriff of Richland County ordering him to
{¶ 16} Noting that the amercement statute must be strictly construed, this court held the trial court did not err by denying the motion to amerce. The court concluded that absent the attachment describing the property to be seized, “[t]he only thing that was clear was that Sheriff Sheldon was ordered to serve the judgment debtor with the writ.” Id. at ¶ 7. Under these circumstances, the trial court did not err by failing to penalize the sheriff for failure to seize unspecified property. Id. at ¶ 12.
{¶ 17} Unlike Bringman I, in the present case the First Writ was accompanied by an attachment identifying property to be seized. The attachments to the First Writ also made it clear this was a post-judgment remedy, indicating that a judgment had been obtained and identifying the judgment debtor. Although the first page of the First Writ was captioned “writ of possession for personal property,” the contents of the attachments to the writ complied with the statutory requirements for a writ of execution. See
{¶ 18} Accordingly, we overrule Sheriff Reader‘s first assignment of error.
2. Challenge to trial court‘s conclusion that First Writ was not timely executed
{¶ 19} In his second assignment of error, Sheriff Reader asserts the trial court erred by finding he failed to timely execute the First Writ.
{¶ 20} Accordingly, we overrule Sheriff Reader‘s second assignment of error.
{¶ 21} In his third assignment of error, Sheriff Reader argues the trial court erred by holding he was delinquent in his official capacity by failing to timely execute the First Writ. Sheriff Reader argues the Pike County Clerk issued the wrong writ and that he should not be subject to amercement due to the clerk‘s error. In support of this argument, Sheriff Reader cites this court‘s decisions in Bringman I and William P. Bringman Co., L.P.A. v. Blubaugh, 10th Dist. No. 14AP-946, 2015-Ohio-2544 (”Bringman II“).
{¶ 22} As discussed more fully below, amercement under
{¶ 23} In Bringman I, this court affirmed the trial court‘s denial of a motion to amerce a sheriff, where the trial court concluded that the sheriff complied with the letter and the spirit of the law by merely serving a copy of a writ of execution on the judgment debtor because the writ lacked the attachments describing the property to be seized. Subsequently, in Bringman II, this court concluded the clerk of courts’ failure to attach the description of assets did not fit within the amercement statute. Bringman II at ¶ 19.
{¶ 24} Unlike the scenario in the Bringman cases, in the present case the Pike County Clerk attached the praecipe for writ of execution and the list of property to be seized to the First Writ. While the First Writ was not captioned as a writ of execution, as discussed above, in light of the content and the accompanying attachments, it could only be reasonably construed as a writ of execution. Thus, unlike Bringman I, where the trial court found the sheriff met the letter and the spirit of the law by serving a copy of the writ on the judgment debtor and taking no further action, under the current circumstances, Sheriff Reader did not properly execute the First Writ by failing to execute it within 60 days of receiving it. The trial court did not err by finding Sheriff Reader was delinquent in his official capacity by failing to timely execute the First Writ.
{¶ 25} Accordingly, we overrule Sheriff Reader‘s third assignment of error.
B. Appellants’ assignments of error
{¶ 26} Having concluded the trial court did not err by finding Sheriff Reader was subject to amercement, we now turn to appellants’ assignments of error, which challenge the trial court‘s limitation of the amercement remedy. In their first assignment of error, appellants argue the trial court erred by applying the $1,000 limit contained in
{¶ 27} Two provisions within
2. History of amercement statutes
{¶ 28} “To amerce is to punish.” Ryan v. Carter, 67 Ohio St.3d 568, 569 (1993), citing 1 Oxford English Dictionary 396-97 (2d Ed.1989). Amercement as a remedy against a sheriff for failure to execute a writ of execution has existed under Ohio law since at least 1805. 3 Ohio Laws 76-77 (1805). See also Allen v. Parish 3 Ohio 187, 196 (1827) (referring to judgment and execution law of 1810 providing for amercement of sheriff who failed to execute writ of execution). The Supreme Court of Ohio has referred to amercement as a “seldom-used remedy” and noted that “it is questionable why this archaic procedure remains“; however, the court further stated that Ohio courts “will enforce
{¶ 29} The present-day amercement statutes, as set forth in
{¶ 30} When Ohio‘s laws were reorganized as the Revised Statutes of Ohio, the amercement provisions previously contained in Sections 451-453 and 456-457 of the 1853 Code were grouped together with the general amercement provision regarding sheriffs contained in Section 592 into an amercement chapter under the heading of special proceedings. See Revised Statutes of Ohio Vol. II 1361-63 (1882). This grouping of amercement provisions was retained when the laws were again revised as the General Code of Ohio, where the amercement statutes were placed into a division titled quasi-criminal actions. See General Code of the State of Ohio Vol. III 2585-86 (1910). When the laws were again revised into the current Revised Code of Ohio in 1953, the amercement provisions were placed in
3. Trial court decision on amount of amercement
{¶ 31} The trial court concluded Sheriff Reader was subject to amercement, but that
amercement that prevails over the general amercement provision in
4. Construction of amercement statutes
{¶ 32} When construing the language of a statute, a court must “ascertain and give effect to the intention of the General Assembly.” Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, ¶ 24, citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16 (1968), paragraph two of the syllabus. We look to the language of the statute to determine legislative intent. Dodd at ¶ 24, citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶ 20. When a statute is clear and unambiguous, and the legislative intent is clearly expressed, it ” ‘may not be restricted, constricted, qualified, narrowed, enlarged or abridged’ under the guise of statutory construction.” Taber v. Ohio Dept. of Human Servs., 125 Ohio App.3d 742, 747 (10th Dist.1998), quoting Wachendorf v. Shaver, 149 Ohio St. 231, 237 (1948). “It is only where the words of a statute are ambiguous, are based upon an uncertain meaning, or, if there is an apparent conflict of some provisions, that a court has the right to interpret a statute.” Drake-Lassie v. State Farm Ins. Cos., 129 Ohio App.3d 781, 788 (10th Dist.1998), citing Kroff v. Amrhein, 94 Ohio St. 282 (1916).
{¶ 33}
a. Pari materia reading rule
{¶ 34} The Supreme Court has addressed the rules of statutory construction to be applied in cases of potentially conflicting statutes:
First, all statutes which relate to the same general subject matter must be read in pari materia. And, in reading such statutes in pari materia, and construing them together, this court must give such a reasonable construction as to give the proper force and effect to each and all such statutes. The interpretation and application of statutes must be viewed in a manner to carry out the legislative intent of the sections. All provisions of the Revised Code bearing upon the same subject matter should be construed harmoniously. This court in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict.
(Internal citations omitted.) Johnson‘s Markets, Inc. v. New Carlisle Dept. of Health, 58 Ohio St.3d 28, 35 (1991).
{¶ 35} Because both
{¶ 36} We believe the plain language of both statutes, when read in pari materia, do not conflict. Although
b. General versus specific canon of statutory construction
{¶ 37} When considering potentially conflicting statutes, we also look to the rules of statutory construction set forth in the Revised Code.
{¶ 38} Although we have determined, applying the in pari materia reading rule, that the statutes do not conflict, even assuming they were irreconcilable, we do not believe
c. Conclusion regarding statutory construction
{¶ 39} Reading
{¶ 40} Finally, application of the
{¶ 41} Accordingly, we overrule appellants’ first and second assignments of error.
IV. Conclusion
{¶ 42} For the foregoing reasons, we overrule appellants’ two assignments of error and overrule Sheriff Reader‘s three assignments of error. Accordingly, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.