848 N.E.2d 534 | Ohio Ct. App. | 2006
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *720 {¶ 1} Defendant-appellant, Advanced Impounding and Recovery Services, Ltd., d.b.a. A.I.R.S., Ltd. ("AIRS"), appeals from a judgment of the Franklin County Municipal Court granting summary judgment to plaintiff-appellee, State Farm Mutual Automobile Insurance Company. For the following reasons, we affirm that judgment in part and reverse it in part and remand the matter for further proceedings consistent with this opinion.
{¶ 2} On July 14, 2003, Sandra Biermacher reported to the Columbus Police Department ("CPD") that her car had been stolen from a shopping-plaza parking lot on Westerville Road. She also notified her automobile insurance company, State Farm. That same day, AIRS towed a car (which turned out to be Biermacher's) from a portion of the same parking lot that was marked as a private tow-away zone in accordance with R.C.
{¶ 3} Five months later, AIRS still had the car. After checking with the Bureau of Motor Vehicles, AIRS determined that the car was titled to State *721 Farm. Therefore, AIRS notified State Farm that it had towed the car from a private tow-away zone. AIRS further informed State Farm that it had impounded the car and that State Farm had 15 days to claim the car or AIRS would proceed with legal action to protect its interest, including filing for title to the car pursuant to Ohio law. Finally, AIRS informed State Farm that the total fee due to recover the car was $2,407 plus tax. That amount included impound and filing fees as well as a $12 per day storage fee.
{¶ 4} On January 30, 2004, counsel for State Farm faxed a letter to AIRS's attorney that disputed AIRS's right to the claimed fees. State Farm asked AIRS to release the car and offered to pay AIRS's fees from the time that State Farm learned that AIRS had the car, January 27, 2004, to the time that State Farm mailed the letter on January 30. AIRS's counsel informed State Farm that it would not release the car unless State Farm paid the towing, impound, and storage fees. Six days later, AIRS's managing member filed for an abandoned-car title pursuant to R.C.
{¶ 5} As a result, State Farm filed a complaint alleging that AIRS had converted the car. AIRS denied liability and asserted a counterclaim against State Farm and a claim against Biermacher1 for its storage and towing fees. R.C.
{¶ 6} AIRS appeals, assigning the following errors:
Assignment of Error No. 1:
*722The trial court erred to the prejudice of appellant Advanced Impounding and Recovery Services, Ltd. dba A.I.R.S., Ltd. In granting summary judgment in favor of State Farm Mutual Automobile Insurance Company since State Farm was not entitled to summary judgment under Civil Rule 56 because genuine issues of material fact were presented for determination by the jury.
Assignment of Error No. 2:
The trial court erred to the prejudice of appellant Advanced Impounding and Recovery Services, Ltd. dba A.I.R.S., Ltd. In granting summary judgment in favor of State Farm Mutual Automobile Insurance Company since State Farm was not entitled to judgment as a matter of law.
Assignment of Error No. 3:
The trial court's action in granting the motion for summary judgment of State Farm Mutual Automobile Insurance Company abridged the constitutional right of the appellant to a jury trial guaranteed by Article
I , Section5 of the Ohio Constitution and theSeventh Amendment to the U.S. Constitution.
Assignment of Error No. 4:
The trial court's action in granting the motion for summary judgment of State Farm Mutual Automobile Insurance Company abridged the constitutional right of the appellant to a remedy and to justice as guaranteed by Article
I , Section16 of the Ohio Constitution.
{¶ 7} AIRS contends in its first and second assignments of error that the trial court improperly awarded summary judgment in State Farm's favor.
{¶ 8} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997),
{¶ 9} The trial court granted State Farm summary judgment on its conversion claim against AIRS. "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." Joyce v. Gen. Motors Corp.
(1990),
{¶ 10} R.C. 4501.101 addresses certificates of title for abandoned vehicles. The statute applies to vehicles left unclaimed in a repair garage or place of storage "following completion of the requested repair or the agreed term of storage." R.C.
{¶ 11} Additionally, State Farm's refusal to pay AIRS all of its requested fees does not demonstrate that State Farm abandoned the car. An abandonment is the "`relinquishing of a right or interest with the intention of never again claiming it.'" Labayv. Caltrider, Summit App. No. 22233,
{¶ 12} By improperly obtaining title to the car, AIRS wrongfully exercised control of State Farm's property in a manner inconsistent with State Farm's rights. Id. Therefore, the trial court properly granted summary judgment in State Farm's favor on its claim for conversion.
{¶ 13} The measure of damages in a conversion action is the value of the converted property at the time it was converted.Tabar v. Charlie's Towing Serv., Inc. (1994),
{¶ 14} The trial court also granted summary judgment in State Farm's favor on AIRS's claims for towing fees pursuant to R.C.
{¶ 15} Biermacher reported that her car was stolen from a shopping plaza parking lot. The managing member of AIRS, Selena Poling, stated in her affidavit that Biermacher's car was parked in a private tow-away zone in a shopping plaza parking lot and that her company towed the illegally parked car from the lot. Police records indicate that Biermacher reported her car stolen from the same parking lot on which AIRS claims the car was illegally parked. At a minimum, this evidence creates a question of material fact as to whether the car was stolen and then returned to the same parking lot, or whether Biermacher parked her car in a marked tow-away zone and AIRS towed it from that spot.
{¶ 16} State Farm contends that Poling's affidavit should be disregarded because she could not have personal knowledge of the facts alleged in the affidavit. Civ.R. 56(E). We disagree. Her affidavit represents that the statements contained therein are based on her personal knowledge. State Farm provides no basis in this record for rejecting Poling's affidavit as a matter of law. See Bonacorsi v. Wheeling Lake Erie Ry. Co.,
{¶ 17} Thus, summarizing our ruling with respect to AIRS's first and second assignments of error, the trial court properly granted summary judgment to State Farm on its conversion claim against AIRS. The trial court improperly awarded damages to State Farm on its conversion claim and improperly granted it summary judgment on AIRS's counterclaim. Accordingly, AIRS's first and second assignments of error are sustained in part and overruled in part.
{¶ 18} AIRS's third and fourth assignments of error address the constitutionality of summary-judgment proceedings in the trial court. AIRS claims that the trial court's award of summary judgment in this case violated its constitutional rights to a jury trial and to a remedy, as provided by the Ohio Constitution. Section
{¶ 19} A trial court's proper grant of summary judgment does not violate either of these constitutional provisions. SeeTschantz v. Ferguson (1994),
{¶ 20} In conclusion, AIRS's first and second assignments of error are overruled in part and sustained in part. AIRS's third and fourth assignments of error are overruled as moot. The judgment of the Franklin County Municipal *726 Court is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
FRENCH and McGRATH, JJ., concur.