Pertuset v. Hull

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[Cite as Pertuset v. Hull, 2022-Ohio-2348.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY CARL PERTUSET, ET AL., : : Plaintiffs-Appellants, : Case No. 21CA3959 : v. : : DECISION AND JUDGMENT BRANDON HULL, ET AL., : ENTRY : Defendants-Appellees. : : _____________________________________________________________ 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 Scioto App. No. 21CA3959 2 arguments raised in the Pertusets’ sole assignment of error. Accordingly, it is hereby overruled and the judgment of the trial court is affirmed. 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. 1 Where necessary for clarity, we will reference Appellants individually as “Carl” or “Vera.” Scioto App. No. 21CA3959 3 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 Jeanna 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. Scioto App. No. 21CA3959 4 {¶5} Appellants alleged ownership of personal property, family heirlooms, and livestock located at the farm when Appellees took possession. Donald Osborne alleged he kept several horses on the Pertuset farm. Jake Pertuset alleged he kept livestock, stored corn and hay, and kept numerous pieces of farming equipment and a Frick circle sawmill at the farm. Rob Parsley alleged he kept cattle, hogs, chickens and an all-terrain vehicle at the farm. Steve Armstrong alleged he kept several cows at the farm. {¶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. Scioto App. No. 21CA3959 5 {¶8} In December 2015, Appellees filed a “Motion to Deposit Money into Court Registry.” In the motion, Appellees stated that at the time they took possession of the property livestock remained on the premises. Appellees were unfamiliar with and unequipped to care for livestock. Therefore, Appellees sold the livestock at auction and as a result were in possession of the sum of $19,723.51 in proceeds. Appellees requested permission to deposit the proceeds from the sale of the livestock with the court. In the motion, Appellees also expressed their willingness to deliver the proceeds “to whatever party may be entitled to the same.” The trial court subsequently granted Appellees’ motion. {¶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 Civ.R. 12(F). Appellees pointed out that they had filed their responsive pleading to the original complaint and argued that Appellants failed to follow proper procedure by failing to seek leave of court pursuant to Civ.R. 15(A) before filing the amended complaint. Scioto App. No. 21CA3959 6 {¶10} Appellants filed a memorandum in opposition to the motion to strike the amended complaint. Appellants asserted that during a May 5, 2016 hearing in chambers, their attorney requested leave to file the amended complaint to assert the cause of action for replevin and that the trial court had granted the oral motion for leave. Appellants requested the trial court deny the motion to strike. Appellants further requested that the trial court note for the record that the oral motion for leave to amend the complaint had been granted on May 5, 2016. The trial court neither ruled on the motion to strike nor filed the requested entry clarifying the matter.2 {¶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 2 When leave is required to file an amended complaint, and a party files or serves the amended complaint without leave of court, the amended complaint is without legal effect and may be treated as a nullity. See Hunter v. Shield, 10th Dist. Franklin No. 18AP-244, 2019-Ohio-1422, at ¶ 17 (citations omitted.) See also, Caterpillar v. Financial Services Corporation v. Tatman, 2019-Ohio-2110, 137 N.E.3d 512 (4th Dist.) at ¶ 58 (citations omitted.) Scioto App. No. 21CA3959 7 September 2016, the trial court granted Attorney Broyles’ motion. Appellants obtained new trial counsel, Attorney Cantrell, in November 2016. The matter proceeded with written discovery and depositions. A jury trial was scheduled for July 23, 2018. {¶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. Scioto App. No. 21CA3959 8 {¶15} When Farm Credit began the foreclosure action in 2009, Appellants retained Attorney Broyles. The property went to sheriff’s sale in 2012. Carl Pertuset attended the sale. Carl testified he did not think they would have to move because “some wrong things had occurred.” {¶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, 3 Specifically, Jake Pertuset testified he had three cows, a bull, a pig, several older Farmall tractors, a John Deere disc, a bush hog, a grinder/mixer, an equipment trailer, a golf cart, a 1964 green Ford pickup truck, log bolsters, a dump truck bed, old horse-drawn farm equipment, saddles, 750 bales of hay, a complete set of Snapon tools, car and truck parts, and a wood stove. The other plaintiffs testified as to their personal Scioto App. No. 21CA3959 9 2017, the parties entered a stipulation of dismissal with prejudice which dismissed the Appellants’ and Jake Pertuset’s claims against Farm Credit and Farm Credit’s counterclaims against Jake Pertuset. {¶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. Scioto App. No. 21CA3959 10 2020-Ohio-6942, at ¶ 17 (“Hull 1”).4 Consequently, we found we had no jurisdiction to consider the appeal and it was dismissed. {¶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 4 Given the Pertusets other lawsuits and appeals involving other persons or entities, we will reference the underlying trial court proceedings in this case as Hull 1. 5 In the underlying proceedings and on appeal, Appellants have had two attorneys. Appellees have had three attorneys. Three trial court judges have been assigned to handle the trial court proceedings. Scioto App. No. 21CA3959 11 monies deposited with the Scioto County Clerk of Court, and “to address the Court costs.” On February 9, 2022, this court granted the motion. 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 also R.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, 4th Dist. 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-Ohio4707, 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 App.R. 3 within 30 days of that entry. App.R. 4(A). App.R. 3(D) requires that a notice of appeal “designate the judgment, order or part thereof appealed from.” In this case, Appellants’ Notice of Appeal and Scioto App. No. 21CA3959 12 docketing statement reference the trial court’s June 24, 2021 Judgment Entry, not the September 20, 2018 order which granted summary judgment in favor of Appellees. And neither document is attached to the Notice of Appeal or the docketing statement. {¶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 Scioto App. No. 21CA3959 13 guided by the decision in Transamerica Inc. Co. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995), syllabus, wherein the Supreme Court of Ohio expressly recognized that “ ‘[p]ursuant to App.R. 3(A), the only jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal.’ ” Jenkins, supra, at ¶ 9. Therefore, in Jenkins we held, consistent with Transamerica, that a failure to comply with App.R. 3(D) is not a jurisdictional defect. Id. See also Smith v. Smith, 4th Dist. Hocking No. 18CA11, 2019-Ohio-899, at ¶¶ 12-13. {¶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 App.R. 3(D) defect. In the briefing, the appellees had addressed the merits of Jenkins' claims. Under these circumstances, we exercised our discretion to address the merits of Jenkins’ appeal.6 Similarly, in Smith v. Smith, supra, Appellant's notice of appeal specified that she was appealing a Judgment Entry filed May 21, 2018, however she should have attached the Judgment Entry-Final Decree of Divorce filed June 11, 2018. We reasoned, however, that the May 21, 2018 journal entry was merged into the final divorce decree of June 2018, and that Appellant could not have appealed the May entry until the 6 Scioto App. No. 21CA3959 14 {¶27} In this case, Appellants did not attach the September 20, 2018 order granting summary judgment in favor of Appellees. However, the trial court’s June 24, 2021 order distributing funds and ruling on additional matters effectively resolved all issues and no additional issues remain pending. See, e.g. Smith, supra, at ¶ 17. Further, both parties have briefed the issues arising from the trial court’s original 2018 order granting summary judgment, demonstrating that Appellees have not been prejudiced by the Appellants’ failure to attach the 2018 order. Thus, we are not prevented from exercising our discretion to consider the current appeal. Therefore, in the interest of justice, we proceed to consider Appellants’ sole assignment of error. 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. Scioto App. No. 21CA3959 15 governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, at ¶ 27. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and (3) the moving party is entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26. 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 7 During the briefing stage in Hull I, this court ordered the parties to address the issue of whether or not the amended complaint was properly before the trial court. Thereafter, without ruling on the issue, we dismissed the appeal for lack of a final appealable order. As indicated above, after the appeal was dismissed in Hull 1, the trial court judge ordered the parties to provide a status summary of the case. Neither party argued that the amended complaint was not properly before the court. Appellees pointed out that the same arguments made in the summary judgment applied to the original complaint. Thereafter the trial court issued its June 24, 2021 judgment entry allowing the amended complaint to be filed. The amended complaint remained unanswered and Appellants did not request default judgment. There is some authority, at least outside this state, to suggest that a party may waive his right to default judgment. See Complete Lawn Services v. Chimney Hill, LLC, 12th Dist. Butler No. CA2015-08-149, 2016-Ohio-997, at ¶¶ 31-34. Based on the circumstances of this case and despite the procedural irregularities, we have exercised our discretion to consider the merits of this appeal. Scioto App. No. 21CA3959 16 Appellees was improper, given that issues of material fact do exist in the matter. Appellants assert Appellees are liable for their acts of possessing and willfully damaging Appellants’ personal property. Likening Appellants’ predicament to an eviction case, Appellants argue that the Appellees sold the livestock and retained the proceeds thereby evincing an “intent to possess.” Furthermore, the possessory acts created a duty to not willfully damage Appellants’ property. As such, Appellants contend that Appellees are not entitled to judgment as a matter of law. {¶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 Scioto App. No. 21CA3959 17 damage to the personal property was a result of Appellants’ own inaction. While we agree with the trial court’s ruling and disposition of the case, for the reasons which follow in addition to the trial court’s analysis, we affirm the trial court’s judgment. See Buskirk v. Harrell, 4th Dist. Pickaway No. 99CA31, 2000 WL 943782, (June 28, 2000), at 7; Jackson v. Ohio Bur. of Workers' Comp., 98 Ohio App.3d 579, 585, 649 N.E.2d 30, 34 (4th Dist. 1994). 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- Scioto App. No. 21CA3959 18 Ohio-5317, 76 N.E.3d 336, ¶ 74 (4th Dist.); Brand v. Ogle, 2020-Ohio-3219, 155 N.E. 3d 37 (4th Dist.), at ¶ 10. {¶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 Scioto App. No. 21CA3959 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 19 Scioto App. No. 21CA3959 20 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. Scioto App. No. 21CA3959 21 {¶37} Appellants make much of the fact that Appellees sold the livestock at auction and retained the proceeds. However, that is not a precise representation of the disposition of the proceeds. The record demonstrates that Appellees filed a “Motion to Deposit Money into the Court Registry” in December 2015. The Motion informed the court that Appellees had in their possession $19,723.51 as a result of the sale of the livestock and that they were “willing to deliver to whatever party may be entitled to the same.” The trial court granted the motion and the money was deposited with the Scioto County Clerk of Court. Appellees’ actions in this regard further belie any intent to convert Appellants’ property. In fact, Appellees appear to have acted in a good faith effort to preserve the value of the property and to await the court’s decision as to which party or parties were entitled to the proceeds. {¶38} In Matthews v. Cooper, 8th Dist. Cuyahoga No. 109974, 2021Ohio-2768, 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. at ¶ 49. Scioto App. No. 21CA3959 22 “Appellants dispossessed themselves of their own personal belongings when they failed to remove their personal belongings from the property within the grace period provided…” Id. at ¶ 47. {¶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 Scioto App. No. 21CA3959 23 ownership, to another. See Bobb Chevrolet, Inc. v. Dobbins, 4th Dist. Ross No. 01CA2621, 2002-Ohio-4256, at ¶ 13; Thomas v. Nationwide Mut. Ins. Co., 79 Ohio App.3d 624, 629, 607 N.E.2d 944 (10th Dist. 1992). To establish a cause of action under a bailment theory, the bailor must show: (1) that a contract of bailment, express or implied, exists; (2) that the bailee possessed the bailed property; and (3) that the bailee failed to return the property to the bailor undamaged. See VanDeventer v. VanDeventer, 132 Ohio App.3d 762, 726 N.E.2d 534 (12th Dist. 1999). See also Mitchell v. Thompson, 4th Dist. Gallia No. 06CA8, 2007-Ohio-5362, at ¶ 42. {¶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 Scioto App. No. 21CA3959 24 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 Scioto App. No. 21CA3959 25 {¶45} Appellants’ amended complaint asserted a claim of replevin. As the 5th District explained in Carlton v. Johnson, 5th Dist. Stark No. 2016CA00006, 2016-Ohio-7313 ¶ 28-29: 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-Ohio2318, 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, 2014Ohio-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 R.C. 2737.03 must be followed. Crawley, 603 N.E.2d 1079 (10th Dist. 1991). Scioto App. No. 21CA3959 26 {¶47} The 11th District in Morgan, supra, pointed out that the appellant there never filed the required motion in the case. The appellate court found that since appellant did not comply with R.C. 2737.03, the trial court did not err in granting summary judgment. Similarly, there is no evidence in this case that the Appellants complied with the dictates of R.C. 2737.03 by properly commencing a replevin action. For this reason, Appellants’ claim for replevin has no merit and Appellees are entitled to judgment as a matter of law. 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 Scioto App. No. 21CA3959 27 damages are therefore moot issues. See Bender v. Logan, 2016-Ohio-5317, 76 N.E.3d 336, at ¶64.8 {¶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. 8 See State ex rel. Cincinnati Enquirer v. Hunter, 141 Ohio St.3d 419, 2014-Ohio-5457, 24 N.E.3d 1170, ¶ 4 (internal quotations omitted) (explaining that issues are moot “when they are or have become fictitious, colorable, hypothetical, academic or dead”); State v. Hudnall, 4th Dist. Lawrence No. 15CA8, 2015-Ohio3939, 2015 WL 5676859, ¶ 7 (“A[n issue] is moot when a court's determination on a particular subject matter will have no practical effect on an existing controversy.”). Scioto App. No. 21CA3959 28 JUDGMENT ENTRY 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 Rule 27 of the Rules of Appellate Procedure. Abele, J., and Wilkin, J., concur in Judgment and Opinion. For the Court, Scioto App. No. 21CA3959 29 ______________________________ 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.

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