Pertuset v. HullPertuset v. Hull
APPEARANCES:
Tyler E. Cantrell, Office of Young & Caldwell, LLC, West Union, Ohio, for Appellants.
Randall L. Lambert and Cassaundra Sark, Lambert Law Office, Ironton, Ohio, for Appellees.
Smith, P.J.
{¶1} On September 20, 2018, the trial court granted judgment in favor of Brandon and Jeana Hull, defendants/appellees, against Carl and Vera Pertuset, plaintiffs/appellants, on all counts of plaintiffs/appellants’ amended complaint for conversion, replevin, and associated damages. The Pertusets alleged that the Hulls damaged or destroyed personal property located on a farm formerly owned by the Pertusets and purchased by the Hulls at a sheriff‘s sale in 2012. Upon review of the record, we find no merit to the
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Carl and Vera Pertuset (“Appellants”) once owned a large family farm in the northwest area of Scioto County.1 The property, designated parcel number 23-0528 on the Scioto County Auditor‘s records, consists of a 181.458 acre tract of land. During Appellants’ ownership of the farm, they entered into a mortgage loan agreement with American Savings Bank (“American”), and unfortunately later defaulted on their mortgage payments. In 2009, a complaint in foreclosure, Scioto County Common Pleas Court Case No. 09CIE140, was commenced by Farm Credit of America, PCA (“Farm Credit”) against Appellants and various named defendants including American. American filed a timely answer and also asserted a cross-claim in foreclosure against Appellants. Over the years, Appellants have vigorously challenged the foreclosure in associated proceedings. See Am. Savs. Bank v. Pertuset, 4th Dist. Scioto No. 11CA3442, 2013-Ohio-566, (“Pertuset I”); Am. Savs. Bank v. Pertuset, 4th Dist. Scioto No. 13CA3564, 2014-Ohio-1290 (“Pertuset II”); and Scioto Cty. Bd. Of Commrs./Revolving Loan Fund Bd. v. McDermott Industries, L.L.C., 4th Dist. Scioto No. 12CA3504, 2014-Ohio-240. In Pertuset II, this Court found that the original 2011 grant of summary judgment and decree in foreclosure to American as holding the first lien on the real property, “stands valid as the law of the case, as affirmed once by this Court.” Id. at ¶ 22.
{¶3} Appellants’ current appeal relates to the sale of Appellants’ farm to Brandon and Jeana Hull (“Appellees”) at the Scioto County Sheriff‘s sale on November 14, 2012. On September 8, 2014, the trial court filed a judgment entry confirming the sale. On October 27, 2014, the trial court filed another judgment entry ordering deed and distribution to Appellees. In November 2014, Appellees filed a writ of possession. On January 15, 2015, the Sheriff executed the writ and Appellants were forcibly removed from the farm.
{¶4} On October 26, 2015, Appellants filed a complaint for conversion and sought compensatory and punitive damages against the Appellees in the Scioto County Common Pleas Court. The action was assigned Case Number 2015CIH163. Appellants also joined with additional plaintiffs: Jake Pertuset; Donald Osborne; Steve Armstrong; and Rob Parsley. John and Jane Doe, Unknown Occupants, and Farm Credit were also named as defendants.
{¶6} The complaint further alleged that on January 15, 2015, after Appellants were removed from the farm, Appellees allegedly caused the Appellants’ personal property and livestock to be removed and/or destroyed. It was alleged that Farm Credit took possession of the Frick sawmill. Appellants alleged injury and damage as a result of Appellees’ wrongful conduct. Appellants demanded judgment in their favor on the basis of wrongful conversion, compensatory and punitive damages, costs and attorney fees.
{¶7} Appellees filed a timely answer and counterclaim against Appellants. Farm Credit filed a timely answer and counterclaim against Jake Pertuset. Written discovery ensued. The matter was eventually scheduled for jury trial and was continued and rescheduled several times.
{¶9} On June 3, 2016, Appellants filed an amended complaint asserting an additional claim for replevin. Farm Credit again filed a timely answer and counterclaim. Appellees, however, filed a motion to strike and request for hearing. Appellees argued that Appellants’ amended complaint was not properly before the court and was required to be stricken from the record pursuant to
{¶11} In August 2016, Farm Credit filed a motion for summary judgment. Generally, Farm Credit moved the court to dismiss Appellants’ amended complaint as to Farm Credit because Farm Credit was the legal owner of the Frick sawmill as adjudicated in the foreclosure case. As such, Farm Credit concluded that Jake Pertuset‘s claims were barred by the doctrine of res judicata.
{¶12} Also in August 2016, Appellants’ counsel, Attorney Bruce Broyles, filed a motion for leave to withdraw as counsel for Appellants. In
{¶13} In May 2017, Appellees’ counsel was permitted to withdraw and Attorney Rodeheffer undertook representation of Appellees. Attorney Rodeheffer deposed all Appellants. Carl and Vera Pertuset‘s depositions were quite lengthy. Generally, Mr. and Mrs. Pertuset testified as to their acquisition of the farm; Carl‘s poor health; the foreclosure action; the livestock and personal property located on the farm in late 2014 - early 2015; and their forcible removal from the property by the Scioto County Sheriff.
{¶14} Specifically, Carl Pertuset testified he and his wife had lived on the property for 26 years. He last earned income in 2006, prior to being hospitalized for three years. According to Carl‘s testimony, when he was discharged from the hospital, “we were exhausted on everything.” Appellants stopped making mortgage payments because: (1) they did not have the money, and (2) the bank did not have the original note attached to the mortgage.
{¶16} On cross-examination, Carl acknowledged that believing his attorney right up to the end that he wasn‘t going to lose the property seemed a “little naïve.” Carl testified he was “kidnapped” from his property on January 15, 2015 when the Scioto County sheriff‘s deputies showed up. Carl stayed at the sheriff‘s department 2-3 hours. When Carl left the sheriff‘s department he and his wife went to a local church. Carl and Vera stayed in the church‘s fellowship hall until April of 2015. Vera Pertuset‘s deposition testimony mirrored her husband‘s in substance and sentiment.
{¶17} Jake Pertuset testified he set up a GoFundMe page to raise money to save his parents’ farm. He also called the Glenn Beck show before his parents were removed, trying to raise awareness of “what the banks were doing by unlawfully trying to take their home.” Jake Pertuset testified as to miscellaneous items of personal property and livestock he owned that were located at the farm at the time Appellees took possession.3 On July 10,
{¶18} On May 31, 2018, Appellees filed a motion for summary judgment. Appellants filed a memorandum contra to the motion for summary judgment. On September 20, 2018, the trial court granted judgment in favor of Appellees “against all plaintiffs on all counts of plaintiffs’ amended complaint.” On October 3, 2018, Appellees voluntarily dismissed their counterclaims against Appellants.
{¶19} On October 11, 2018, Appellants timely appealed the trial court‘s decision granting summary judgment. On December 22, 2020, this Court found that the trial court‘s September 20, 2018 Decision and Order was not final and appealable because the trial court‘s decision made no ruling relative to the distribution of the $19,723.51 in funds deposited with the court in June 2016. See Pertuset v. Hull, 4th Dist. Scioto No. 18CA3852,
property located on the Pertuset farm and their understanding, or lack thereof, as to whether or not they should retrieve their property prior to the sheriff‘s sale. Donald Osborne, Carl‘s lifelong friend, testified he had five horses and a few personal items, including a fan and a hand cart located at the farm. Stephen Armstrong, Jake Pertuset‘s friend, testified he had six cattle and 800 bales of hay on the Pertuset farm. Robert Parsley, the Pertusets’ son-in-law, testified he had five cows, eight or nine hogs, 50 chickens, and hay on the farm on the pertinent date. Parsley also stored at the farm a six to seven-year-old Brute Force Kawasaki four wheeler he used for checking livestock.
{¶20} Another judge was assigned to the underlying action, Scioto County Common Pleas Court Case No. 15CIH00163, in March of 2021.5 On March 19, 2021, the trial court noted this court‘s decision finding no appealable order and ordered the parties to submit brief summaries of the status of the case. Thereafter on June 24, 2021, the trial court entered judgment as follows:
(1)The amount received by [the Hulls] for the sale of livestock of approximately $19,000.00 that is held in escrow shall be paid to [the Pertusets’ attorney] to be deposited in his trust account;
(2)The motion to amend the complaint is granted;
(3)The motion to strike and all other pending motions are overruled.
The trial court also designated the entry as a final appealable order. Thereafter, Appellants timely appealed.
{¶21} On January 21, 2022, Appellants filed, in this court, a “Motion to Allow Judgment Entry to be Filed” in trial court case number 2015CIH163, the underlying matter. The motion explained that the previous judgment entry needed to be amended to reflect the correct amount of
JURISDICTION OF THIS COURT
{¶22} Once again, we must address a preliminary jurisdictional question. As we explained in Hull I at Paragraph 15:
Appellate courts “have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district[.]”
Ohio Constitution, Art. IV, Section 3 (B)(2) ; see alsoR.C. 2505.03(A) . If a court‘s order is not final and appealable, we have no jurisdiction to review the matter and must dismiss the appeal. Eddie v. Saunders, 4thDist. Gallia No. 07CA7, 2008-Ohio-4755, at ¶ 11. If the parties do not raise the jurisdictional issue, we must raise it sua sponte. Ray v. Walmart Stores, Inc., 4th Dist. Washington No. 10CA27, 2011-Ohio-5142, at ¶ 8, citing Sexton v. Conley, 4th Dist. Scioto No. 99CA2655, 2000 WL 1137463, (Aug.7, 2000), at *2.
See also, Stepp v. Starrett, 4th Dist. Vinton No. 18CA714, 2019-Ohio 4707, at ¶ 3.
{¶23} The appellate rules provide that a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by
{¶24} Appellants’ assignment of error in the current appeal, however, asserts that the trial court erred by granting the motion for summary judgment and does not contest the matters addressed in the June 24, 2021 Judgment Entry. Appellants have referenced the court‘s most recent entry as the order or judgment appealed from, but in actuality, based on the assignment of error set forth in their appellate brief, they are appealing the September 20, 2018 order which granted summary judgment in favor of Appellees. We have previously encountered such deficiencies in notices of appeal.
{¶25} In Jenkins v. Hill, 4th Dist. Meigs No. 4CA4, 2015-Ohio-118, Appellant Jenkins designated the trial court‘s February 27, 2014 judgment denying his motion for new trial in his notice of appeal, but his assignment of error and related argument contested the trial court‘s February 10, 2014 judgment entered on the jury verdict in favor of the opposing parties. Jenkins did not request a new trial but instead requested a reversal of the judgment entered by the trial court on the jury verdict. This court was
{¶26} The Transamerica decision further provided at ¶ 10: “When presented with other [i.e. nonjurisdictional] defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion.” Id. at syllabus. In Jenkins, we noted that there was in fact a final appealable order, and the appellees had not established any prejudice from the
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST THE PLAINTIFFS.”
A. STANDARD OF REVIEW
{¶28} Appellate review of summary judgment decisions is de novo,
final decree of divorce was entered on the record. Once the final decree was entered, Appellant timely filed her notice of appeal. As in Jenkins, supra, given that Appellee received adequate notice of the issues raised and had responded to them, we found no harm. Therefore, we did not find the non-jurisdictional defect prevented our consideration of the appeal. Id. at ¶ 14-15.
B. LEGAL ANALYSIS
{¶29} Appellants’ original and amended complaints asserted claims for conversion, bailment, replevin, consequential damages, and punitive damages.7 On appeal, Appellants contend that summary judgment to
{¶30} Appellees’ response has been that the record simply does not reveal an intent to possess on the part of Appellees. Rather, Appellees contend the evidence demonstrates that Appellees did the best they could to deal with a situation created by Appellants, i.e., “the abandonment of an entire farm full of personal property of every kind and description.” Appellees assert that rather than an intent to possess, their actions demonstrated an intent to preserve the value of the property. Appellees point to the fact they filed a motion to deposit the proceeds from the sale of the livestock with the clerk of courts until the matter was decided.
{¶31} In this case, the trial court‘s ruling also found the matter similar to eviction proceedings but found that Appellees had no duty to protect the property of Appellants. The trial court further found that any injury or
1. Conversion
{¶32} “ ‘ The tort of conversion has also been defined as “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.” ’ ” Monea v. Lanci, 5th Dist. Stark No. 2011 CA00050, 2011-Ohio-6377, at ¶ 70, quoting Heflin v. Ossman, 5th Dist. Fairfield No. 05CA17, 2005-Ohio-6876, ¶ 20, quoting Joyce v. General Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).
{¶33} The elements of a conversion claim are: (1) a plaintiff‘s ownership or right to possession in property at the time of conversion; (2) defendant‘s conversion by a wrongful act or disposition of the plaintiff‘s property rights; and (3) damages. See Mitchell v. Thompson, 4th Dist. Gallia No. 06CA8, 2007-Ohio-5362, at ¶ 37. See also Bender v. Logan, 2016-
{¶34} In this case, there are no genuine issues of material fact. There is no evidence that Appellees engaged in any wrongful act or disposition of Appellant‘s property. According to Carl Pertuset‘s deposition testimony, he made no effort to remove property between September 8, 2014 and January 15, 2015. In her deposition, Vera Pertuset answered “yes” to questions when she was confronted with the statements that: (1) she chose not to move the personal property, and (2) she chose to ignore the trial judge‘s orders. Vera also testified she never advised the others to remove their personal property because she did not think they needed to remove it.
{¶35} By contrast, Appellees’ evidence included the affidavit of Brandon Hull. Attached to Hull‘s affidavit were, among other exhibits, a DVD containing 72 photographs of the various items of personal property remaining on the property when Appellees took possession on January 15, 2015. Hull‘s affidavit described the status of the property, which our review of the DVD photographs has confirmed, as follows:
6. A writ of restitution directing the Sheriff to evict the Pertusets was eventually issued and on January 15, 2015, the Affiant took possession of the real property pursuant to the writ.
7. Upon arrival the Affiant immediately observed that the entire farm was cluttered with personal property of every
kind, nature, and description. All of the out- buildings on the property were full of used, and in some instances, dilapidated personalty including tools, appliances, cookware, children‘s things, building materials, produce, jars of food, containers with office materials, and much more. The open fields had rusted vehicles and dilapidated farming equipment.
8. Attached hereto is a DVD containing photos (Affidavit Exhibits 1-72), taken on June 27, 2017, which accurately depict the personal property that the Pertusets left behind and the condition that it was in.
9. Shortly after going on to the property Affiant was contacted by Scioto County Sheriff Marty Donini and was asked if Affiant would voluntarily take some of the personal property in the house at 82 Jacquays Road to Bethany Baptist Church. Affiant agreed and rented at his own expense a U Haul truck and together with the help of six other people took two U Haul truck loads and four pickup truck loads of personal property from the residence and delivered it to the church. On the instruction of a deacon of the church who met us there, the items were left in buildings located on the church property. Affiant estimates that it took eight hours to complete this work.
10. The majority of the balance of the personal property was left in the building where Affiant had found it. The personal property not left in buildings where it was found was moved to other storage locations, some under cover and some out in the open.
11. Most of the heavy farm and other equipment was moved to locations next to Jacquays Road out in the open. The balance was left in various locations on the farm where the Pertusets had left it.
12. Neither Affiant nor his wife have conducted any activity relative to the personal property that could be construed as evidencing an intent to possess or own the Plaintiffs’ personal property.
13. In addition to the personal property left by the Pertusets there was some livestock including pigs, horses, chickens, and cows. The livestock presented a difficult dilemma to the Affiant inasmuch as he was inexperienced
in caring for animals of this type, did not have the food that the animals needed, did not want to assume liability for the animals even if he had known what to buy. Affiant also knew that given the apparent financial distress that the Pertusets were experiencing that he would never be reimbursed for whatever expense he incurred caring for the animals.
14. Affiant had the cows and pigs taken to Producers auction in Hillsboro, Ohio where they were sold at auction.
15. The horses were taken to an auction house in northeast Ohio and sold.
16. The chickens were turned over to Affiant‘s eventual tenant of the property, Joe Crabtree.
17. The Plaintiffs’ personal property remained stored as described in Paragraphs 10 and 11 of this Affidavit until they were removed by them pursuant to an agreement on October 21 and 22, 2017.
{¶36} Brandon Hull‘s affidavit demonstrates that his wife and he took possession of the farm legally and the Scioto County Clerk of Court‘s docket in the foreclosure case, which we hereby take judicial notice of, supports this conclusion. Appellees inherited a dearth of personal property they did not want. They also inherited livestock which presented a difficult dilemma, considering Appellees had no experience with caring for horses, cows, goats, pigs, and chickens. Appellees’ act of legally possessing the premises in no way demonstrates an intent to possess the personal property or the livestock. The evidence in this case does not demonstrate any wrongful act on the part of the Appellees.
{¶38} In Matthews v. Cooper, 8th Dist. Cuyahoga No. 109974, 2021-Ohio-2768, ¶ 49, another case involving issues of claimed conversion of personal property pursuant to an eviction proceeding, the 8th District Court noted that based on the court‘s restitution order, Appellee had the legal right to possession of the premises. “Appellants had every ‘opportunity to protect their interests’ in their personal property by removing that property from the premises within the grace period prior to the move out date.” Id.
{¶39} Similarly, Appellants dispossessed themselves of their livestock and personal property by their inaction during the foreclosure proceedings. We find no genuine issues of material fact exist and reasonable minds can reach but one conclusion, which is that Appellants did not intend to possess or to convert Appellants’ livestock and other personal property. Appellants’ claim for conversion is without merit and Appellees are entitled to judgment as a matter of law.
2. Bailment
{¶40} The trial court‘s September 20, 2018 Decision and Order likened the situation involving these parties similar to those faced in eviction proceedings. The trial court found:
[T]he defendants did not have a duty to protect the property of plaintiffs. In fact, defendants cooperated with plaintiffs on two occasions to assist them in retrieving the personal property. Plaintiffs had ample opportunity to remove the property prior to the writ of restitution but chose not to help themselves. Any injury or damage to the personal property was the result of plaintiffs’ own inaction.
{¶41} A bailment occurs when a person transfers possession, but not
{¶42} A contract of bailment is formed like any other contract and its essential elements include delivery of the personal property to the bailee and acceptance by the bailee, with the intended return to the bailor. See George v. Whitmer, 5th Dist. Fairfield No. 05CA70, 2006-Ohio-436, at ¶ 16; Bess v. Trader‘s World, Inc., 12th Dist. Warren No. 2001-06-063, 2001-Ohio-8636, at *4. “As in the creation of all contracts, ‘there must be a meeting of the minds as to the terms and conditions.’ ” George, supra at ¶ 17, quoting Edwards v. Crestmont Cadillac, 64 Ohio Misc. 1, 8 (1979). In Ringler v. Sias, 68 Ohio App. 2d 230, 231-232, 428 N.E.2d 869 (10th Dist.1980), an eviction case, the court observed:
The first consideration is what duty or status does a landlord have toward a tenant‘s property which has legally
been removed from the landlord‘s premises and which has been set out by a deputy sheriff upon the landlord‘s property. Does the setting of the personal property by a deputy sheriff upon the landlord‘s property create an involuntary constructive bailment, making the landlord responsible in some affirmative way for caring for the property? We believe not. Unless the landlord takes some act consistent with an intent to possess the former tenant‘s property, the landlord does not become a gratuitous bailee of the property. (Emphasis added.) To become a bailee, the property must come into possession of the bailee. The placing of personal property upon the open land of another does not constitute even a constructive delivery of possession to the landowner.
{¶43} Based upon our de novo review of the record, we find no evidence to suggest that a bailment relationship existed between Appellants and Appellees. Appellees did not expressly or impliedly agree to possess Appellants’ property. The evidence in this case demonstrates anything but a meeting of the minds.
{¶44} As in Ringler, we find no constructive delivery of possession to Appellees. Instead, Appellants were forcibly removed from the property and Appellees inherited a huge mess. We agree with the trial court‘s finding that any injuries or damages suffered by Appellants was the result of their own inaction. Appellants’ claim that a bailment relationship has no merit and Appellees are entitled to judgment as a matter of law.
3. Replevin
In Ohio, replevin is solely a statutory remedy. Gregory v. Martin, 7th Dist. Jefferson No. 15 JE 17, 2016-Ohio-650, 2016 WL 698619, ¶ 20, citing America Rents v. Crawley, 77 Ohio App.3d 801, 804, 603 N.E.2d 1079 (10th Dist.1991).
See Doff v. Lipford, 5th Dist. Stark No. 2019CA00017, 2019-Ohio 2318, at ¶ 43.
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. Gregory at ¶ 20, quoting Wysocki v. Oberlin Police Dept., 9th Dist. Lorain No. 13CA010437, 2014-Ohio-2869, ¶ 7, quoting Wilson v. Jo-Ann Stores, Inc., 9th Dist. Summit No. 26154, 2012-Ohio-2748, ¶ 11.
See Doff, supra.
{¶46} As stated above, replevin is a statutory remedy that must be sought in accordance with specific procedures. See Paolucci v. Morgan, 11th Dist. Portage No. 2017-P-0020, 2018-Ohio-793, at ¶ 34; Bond v. Bond, 11th Dist. Geauga No. 2001-G-2382, 2002-Ohio-3843, at ¶ 17. The dictates of
4. Damages
{¶48} Appellants also argue on appeal that they are entitled to consequential and punitive damages. However, as discussed above, Appellants have not demonstrated that genuine issues of material fact remain as to Appellees’ alleged intent to possess, an essential element of proving a claim of conversion. Appellants have not demonstrated that any bailment relationship existed between the parties. And, Appellants did not follow the statutory procedures in order to commence a proper claim for replevin. Given these findings, Appellants’ claims for consequential and punitive
{¶49} Based on the foregoing, we find no merit to Appellants’ sole assignment of error. The trial court did not err in finding no genuine issues of material fact and that Appellees are entitled to judgment as a matter of law. As such, the sole assignment of error is hereby overruled.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J., and Wilkin, J., concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.