Bethel v. Dunipace

Miller, P.J. This is an appeal by plaintiff, Sandra J. Bethel, from a summary judgment of the Court of Common Pleas of Hancock County entered in favor of defendants Hancock County Sheriff’s Department, Sheriff Bout-well and Deputy Heldman. On or about November 1,1984, defendant, Wood County Hospital Association, Inc., obtained a judgment against Bill J. Bethel in the Municipal Court of Bowling Green, Ohio, in the amount of $6,276.30, plus interest. On May 31, 1985, defendant, John M. Dunipace, the attorney for Wood County Hospital Association, filed a Praecipe for Issuance of Writ of Execution in the Court of Common Pleas of Hancock County. On the same day the praecipe was filed the Clerk of Courts of Hancock County issued an Execution on Certificate of Judgment to the Sheriff of Hancock County, pursuant to the praecipe. The execution commanded the sheriff to levy on' the property of “Bill J. Bethel, * * * goods and chattels located at the Old Town Tavern McComb, Ohio including cash, cash registers, appliances, silverware, dishes, glassware, stock in trade, inventory, tables, chairs, furniture, etc.” On July 12, 1985, Deputy Held-man, acting pursuant to the command of the writ of execution to levy upon the property of Bill J. Bethel, levied upon the goods and chattels owned by *90 the plaintiff. The levy was executed by closing the Old Town Tavern and changing the lock on the front door. The Old Town Tavern was closed from Friday, July 12, 1985 until Monday, July 15, 1985. On August 14, 1985, the court of common pleas terminated the execution. The court ruled that plaintiff, Sandra J. Bethel, was the sole owner of the Old Town Tavern and all goods and chattels located therein. On May 29,1986, the plaintiff filed a complaint against the defendants, jointly and severally, for the amounts of $75,000 compensatory damages and $75,000 punitive damages. On September 10, 1986, the defendants, Hancock County Sheriffs Department, Sheriff Boutwell and Deputy Heldman filed a motion for summary judgment. The court of common pleas granted the defendants’ motion. Plaintiff sets forth one assignment of error in her appeal: “The court of common pleas erred in entering summary judgment for defendants Sheriff’s Department, Boutwell and Heldman in that, under well-established Ohio law, a law enforcement officer who levies execution on property owned by a person other than the judgment debtor named in the writ may be held responsible for the damages suffered by that innocent third person as a consequence of the wrongful levy.” R.C. 2329.09 states: “The writ of execution against the property of a judgment debtor issuing from a court of record shall command the officer to whom it is directed to levy on the goods and chattels of the debtor. * * *” In State, ex rel. Story, v. Jennings (1862), 14 Ohio St. 73, the Supreme Court stated in paragraph two of the syllabus: “In this state, a writ of replevin issues to enforce the claim of an owner of property, for its delivery to him by one who wrongfully detains it, and for that purpose the property is specifically described, but it confers no authority on the officer to seize property which is not actually or constructively in the possession of the party named in the process. And where the property is taken from the possession of a third person, who is the bona fide owner thereof, the process will not justify the officer, although it be the identical property described therein.” In this situation there appears to be no difference between a writ of replevin and a writ of execution. See Schaub v. Welfare Finance Corp. (1939), 65 Ohio App. 68, 72, 18 O.O. 295, 297, 29 N.E. 2d 223, 225. Further, in Ray v. City Bank & Trust Co. of Natchez, Miss. (S.D. Ohio 1973), 358 F. Supp. 630, the court stated at 641-642: “A sheriff is not an insurer and may be subject to liability * * * if he mistakenly attaches the property of a stranger to the writ * * When an officer takes goods belonging to a stranger the officer will be guilty of trespass and conversion. Schaub v. Welfare Finance Corp., supra. The view has been expressed that, if property levied on by an officer under execution is in the possession of the defendant therein, it is presumptively his, and the officer, if he knows nothing to rebut such presumption, cannot be charged as guilty of a conversion, unless, after notice that it belongs to another, he insists upon retaining possession and proceeds with the sale, in which case he is liable to the true owner, in trespass or trover. Other courts, however, have expressed the view that the sheriff must, at his peril, avoid seizing, under execution, any property other than that of the defendant, and that it is not enough that he *91 should presume, even on strong grounds, that the property is the defendant’s; he must know it. In cases of doubt the officer must ascertain who is the real owner, and if, after having been warned by the real owner, he proceeds with the levy, he is liable in damages. 70 American Jurisprudence 2d (1987) 310, Sheriffs, Police and Constables, Section 103. Here the complaint states that: “16. On July 12,1985, acting pursuant to the command of the writ of execution issued by the Hancock County Clerk of Courts, in Case No. 85-593-CJI, to levy upon the property of Bill J. Bethel, defendant Officer levied upon the goods and chattels owned by plaintiff located at Old Town Tavern, 129 East Main Street, Mc-Comb, Ohio, by closing the said Old Town Tavern [and] changing the lock on the front door. “17. At that time, plaintiff and attorney Daniel Snyder, acting on behalf of plaintiff, told defendant Officer that the Old Town Tavern and the goods and chattels listed in the writ of execution were owned by plaintiff, not Bill J. Bethel. Defendant Officer refused to take any action to terminate the levy of execution so as to permit plaintiff’s business to reopen.” By their answer defendants admit paragraphs 16 and 17 of plaintiff’s complaint. Defendants in this case contend that the sheriff’s department and its employees cannot be held liable for complying with the instructions contained in the writ and cite as authority Wholesale Electric & Supply, Inc. v. Robusky (1970), 22 Ohio St. 2d 181, 51 O.O. 2d 240, 258 N.E. 2d 432, syllabus, in which the Supreme Court found: “A ministerial officer of a court and those acting under him and at his discretion are immune from liability for damages flowing from their obedience to process issued to such officer which appears prima facie regular and to have been issued by a tribunal possessing judicial power with apparent jurisdiction to issue the same.” In the Wholesale case, an alias writ of possession was issued which included a concrete block structure to be seized along with a specific area of land. The concrete block structure was subsequently determined to be owned by a third party. The sheriff executed the writ and seized the structure. The court found that “sheriff had acted precisely in accordance with the instructions contained in the writ committed to him, which on its face, was unimpeachable.” Id. at 183, 51 O.O. 2d at 242, 258 N.E. 2d at 434. That case is distinguishable from the present case. In the Wholesale case the issue was whether the execution officer was liable for damages flowing from his obedience to a writ which on its face appeared to be valid and enforceable. There was no language in the writ which indicated the ownership of the property to be seized. In the present case, the writ specifically instructed the sheriff to seize goods and chattels belonging to Bill J. Bethel, located at the Old Town Tavern. Instead, the sheriff seized property belonging to the plaintiff, Sandra J. Bethel, although he was previously put on notice that the chattels were, in fact, those of plaintiff. After hearing on the motion the trial court granted the defendants’ motion for summary judgment. Civ. R. 56(C) states: “* * * [J]udgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter *92 of law. No evidence or stipulation may be considered except as stated in the rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *” We conclude that, based on Ohio law regarding liability of a sheriff for the seizure of property of a stranger to a writ of execution, and construing the evidence most favorably to the plaintiff, the trial court erred in concluding by summary judgment that no genuine issue of fact existed and that defendants were entitled to judgment as a matter of law. We find the plaintiff’s assignment of error to be well-taken. The judgment of the trial court is reversed and the cause is remanded for further proceedings in accordance with law. Judgment reversed. Evans, J., concurs. Shaw, J., dissents.