Opinion
Case No. 18-COA-029
03-28-2019
JUSTIN M. EMERY, Plaintiff - Appellant v. CITY OF ASHLAND POLICE DEPARTMENT, Defendant - Appellee
APPEARANCES: For Plaintiff-Appellant THOMAS L. MASON Mason, Mason & Kearns P.O. Box 345 153 West Main Street Ashland, Ohio 44805-0345 For Defendant-Appellee KATHLEEN M. GUARENTE CAROL K. METZ P.O. Box 64093 St. Paul, MN 55164
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 17-CIV-071 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellant THOMAS L. MASON
Mason, Mason & Kearns
P.O. Box 345
153 West Main Street
Ashland, Ohio 44805-0345 For Defendant-Appellee KATHLEEN M. GUARENTE
CAROL K. METZ
P.O. Box 64093
St. Paul, MN 55164 Baldwin, J.
{¶1} Plaintiff-appellant Justin Emery appeals from the June 26, 2018 Judgment Entry of the Ashland County Court of Common Pleas granting the Motion for Summary Judgment filed by defendant-appellee City of Ashland Ohio Police Department.
STATEMENT OT THE FACTS AND CASE
{¶2} On August 28, 2014, the Ashland County Grand Jury indicted appellant one two counts of pandering obscenity involving a minor in violation of R.C. 2907.321(A)(5), felonies of the fourth degree, one count of illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), a felony of the fifth degree, one count of contributing to the unruliness or delinquency of a child in violation of R.C. 2919.24(A)(2), a misdemeanor of the first degree, and one count of possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. One of the criminal tools was a 2009 Toyota Corolla. Four of the counts were accompanied by forfeiture specifications concerning an IPhone and/or the 2009 Toyota Corolla. Appellant entered a plea of not guilty to the charges. Following a trial in June of 2015, appellant was found not guilty of possessing criminal tools and a mistrial was declared on the remaining counts. Subsequently, on October 19, 2015, appellant withdrew his former not guilty plea and entered a plea of guilty to an amended charge of disseminating material harmful to juveniles in violation of R.C. 2907.31(A)(2), a felony of the fifth degree.
{¶3} As part of its investigation, the Ashland Police Department had impounded appellant's 2009 Toyota Corolla in June of 2014 As memorialized in a letter to appellant dated May 25, 2017 from Lieutenant J.L. Bloodhart, the Ashland Police Department advised appellant that his vehicle had been impounded on June 22, 2014 as part of a criminal investigation and that the vehicle "has been due for release and you have yet to claim it." The letter advised appellant to contact the Clerk to find out the fees involved in getting the vehicle released and that the vehicle would probably needed to be towed from the impound lot. The letter further stated, in relevant part, as follows:
{¶4} "You must now, within ten days of receiving this notice, make arrangements with the Ashland Police Department to have your vehicle released from immobilization.
{¶5} "Furthermore, all applicable fees must be paid in full to the City of Ashland prior to the vehicle's release, and said receipts for these payment must be presented at the time of release. The storage costs at $8.00 per day and/or "Club" fees at $1.00 per day will be in effect during such time as the vehicle is immobilized after the court ordered period.
{¶6} "If after 10 days these fees have not been paid, nor arrangements made for the vehicle's release, a motion will be filed to have the vehicle forfeited to the City of Ashland..."
{¶7} Appellant received such letter via certified mail.
{¶8} Appellant's attorney received a letter dated January 26, 2016 from the division of police stating that there was no hold on appellant's vehicle and that appellant needed to bring in his title of registration to prove ownership of the vehicle. Appellant was incarcerated at the time of this letter, but received a copy after he got out of prison on May 27, 2016. He testified during his deposition that when he got out and called the Sheriff's Department to inquire about his vehicle, he was told that he could not collect it and was not given any reason why. Appellant testified that he also talked to someone by phone at the City of Ashland Police Department in May of 2016.
{¶9} Appellant further tested that he spoke to Lieutenant Bloodhart several times and was told that he needed to pick up his vehicle or it would be seized and claimed by the City and sold at auction. According to him, the Lieutenant offered to release it for a discounted fee. Appellant testified that he was given several different totals, but could not come up with the money. During his last conversation with the Lieutenant, the total was in the thousands of dollars. Appellant stated that he believed that there were several motions filed during his criminal case for release of the vehicle.
{¶10} Appellant testified that he went to the Ashland Sheriff's Department in person and to the police Department two times between July 2, 2014 and July 9, 2014 and was told that they could not release his vehicle. He stated that he was never told that it was subject to forfeiture. He further spoke with the Sheriff's Department four times by phone between July 19, 2014 through August 31, 2014 and went in person to the Sheriff's department between September 2, 2014 and September 9, 2014. He testified that he spoke with the Sheriff's department by phone twice between November 15, 2014 and December 15, 2014 and multiple times in person and via phone from June 5, 2015 to June 30, 2015. Appellant testified that his attorney made two attempts from August 24, 2015 through September 9, 2015 to recover appellant's vehicle.
Appellant, throughout his affidavit, stated that he went to the Ashland Police Department not the Sheriff's Department.
{¶11} According to appellant, he received a bill on October 14, 2015 to reclaim his vehicle, but was not permitted to pick it up and was told by the Sheriff's' Department and Lieutenant Bloodhart that it was on a "detective hold." Transcript at 38. The letter indicated that the impound fees totaled $2,733.00. He testified that when he spoke with the Lieutenant, he was told that the vehicle was cleared and that he could pick it up. Appellant spoke with someone at the Ashland Police Department twice between October 16, 2015 and October 24, 2015 and was told that he needed to talk to whoever was in charge. He testified that no one returned his calls.
{¶12} Appellant testified that he received a letter in December of 2015 while incarcerated stating that he could claim his vehicle after paying a large storage and holding fee and that when he was released in May of 2016, was given a larger bill. Appellant later indicated that the letter could have been the letter dated October 14, 2015, but he thought that there was a letter between October 14, 215 and January 26, 2016 when he received a letter from the City. Appellant further testified that he spoke to Lieutenant Bloodhart probably six times by phone and that the amount that he owed changed over the phone calls. He testified that he believed that the city still had his vehicle, which he believed was worth $10,000.00 based on the Kelly Blue book value.
{¶13} Appellant On April 28, 2017, appellant filed a complaint against the City of Ashland Ohio Police Department, alleging that his vehicle was being wrongfully detained. Appellant alleged that his property had been taken without just compensation or due process and that he had suffered damages as a result. Appellant sought the return of his vehicle as well as damages. Appellee filed an answer to the complaint on July 14, 2017. Appellee filed a Motion for Summary Judgment on March 19, 2018 and appellant filed a memorandum in opposition to the same on May 21, 2018 supported by appellants' affidavit. Appellee filed a reply brief on June 20, 2018.
{¶14} Pursuant to a Judgment Entry filed on June 26, 2018, the trial court granted appellee's Motion for Summary Judgment. The trial court, in its Judgment Entry, found that there were no material facts in dispute. The trial court, in its Judgment Entry, stated, in relevant part, as follows:
There appear to be no material facts in dispute in this case. Plaintiff's 2009 Toyota Corolla was seized in conjunction with the arrest of Plaintiff on June 28, 2014. The 2009 Toyota was then impounded and placed into storage by the City of Ashland pending disposition of Plaintiff's criminal charges. The Plaintiff was indicted by the Ashland County Grand Jury on August 28, 2014, including a count charging felony offense of possessing criminal tools. The criminal tool identified in the indictment was Plaintiff's 2009 Toyota. The Plaintiff was acquitted, flowing jury trial, of the possessing criminal tools charge on June 4, 2015. The remaining charges, however, were not finally resolved until October 19, 2015.
Storage fees regarding the Plaintiff's 2009 Toyota legitimately accrued from June 28. 2014 through October 19, 2015, the date Plaintiff's criminal case was finally resolved. The City of Ashland Police Department (City of Ashland) came into possession of the Plaintiffs' 2009 Toyota pursuant to R.C. 4513.61. Pursuant to R.C. 4513.61(C)(2), the owner of lienholder of an impounded vehicle may reclaim the motor vehicle upon payment of any expenses or charges incurred in its removal and storage.
It is undisputed that Plaintiff failed to pay, or even attempted to tender to the City of Ashland, the storage fees that accrued between June 4, 2015 and October 19, 2015. The City of Ashland was therefore justified to continue storage of the vehicle after October 19, 2015, and the Defend is
only entitled to return of the vehicle, under R.C. 4513.61(C)(2), 'upon payment of any expenses or charges incurred in its removal and storage.' Plaintiff admits in his affidavit that he was afforded one or more opportunities to reclaim his vehicle without paying the full expenses or charges incurred in the storage of his 2009 Toyota, and he failed to remit even the lesser amount. As the Defendant had not complied with the requirements of R.C. 4513.61 (C)(2), he is not entitled to reclaim the vehicle, and his claim of replevin must fail. Likewise, the Defendant is within its statutory right to deny Plaintiff's reclamation of the 2009 Toyota until he tenders the full storage fees that have accrued, or any lesser sum as may be agreed to by Defendant as a condition for releasing the vehicle.
{¶15} The trial court further found that there was no deprivation of property without due process, that appellee was simply exercising its statutory rights under R.C. 4513.61(C)(2) and that appellant "simply isn't entitled to reclaim his vehicle until the storage fees have been paid." The trial court dismissed appellant's complaint.
{¶16} Appellant now raises the following assignment of error on appeal:
{¶17} "I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT WHEN THERE WAS A MATERIAL FACTUAL DISPUTE."
{¶18} "II. THE TRIAL COURT ERRED BY NOT CONSIDERING THE APPELLANT'S CONSTITUTIONAL ARGUMENTS AS OUTWEIGHING ANY STATUTORY REGULATION."
I, II
{¶19} Appellant, in his two assignments of error, argues that the trial court erred in granting appellee's Motion for Summary Judgment.
{¶20} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said Civ.R. 56 was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211, 663 N.E.2d 639:
Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
{¶21} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).
{¶22} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 15CA56, 2015-Ohio-4444, ¶ 13:
It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex
Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The standard for granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: "* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.
{¶23} Appellant, in the case sub judice, is challenging the impoundment of his vehicle and the City of Ashland's failure to return the same to him.
{¶24} R.C. 4513.61 states, in relevant part, as follows:
{¶25} (A) The sheriff of a county or chief of police of a municipal corporation, township, or township or joint police district, within the sheriff's or chief's respective territorial jurisdiction, or a state highway patrol trooper, upon notification to the sheriff or chief of police of such action and of the location of the place of storage, may order into storage any motor vehicle, including an abandoned junk motor vehicle as defined in section 4513.63 of the Revised Code, that:
{¶26} (1) Has come into the possession of the sheriff, chief of police, or state highway patrol trooper as a result of the performance of the sheriff's, chief's, or trooper's duties; ....
{¶27} "A vehicle may be impounded when 'it is evidence in a criminal case, used to commit a crime, obtained with funds derived from criminal activities, or unlawfully parked or obstructing traffic; or if the occupant of the vehicle is arrested; or when impoundment is otherwise authorized by statute or municipal ordinance.' " State v. Huddleston, 173 Ohio App.3d 17, 2007-Ohio-4455, 877 N.E.2d 354, ¶ 14 (10th Dist.), quoting State v. Taylor, 114 Ohio App.3d 416, 422, 683 N.E.2d 367 (2nd Dist.1996). (Other citations omitted.)
{¶28} In the case sub judice, the 2009 Toyota Corolla was seized in conjunction with appellant's arrest in June of 2014 and was impounded and placed into storage pending disposition of appellant's criminal charges. The Toyota was subject to a forfeiture specification and thus was in the possession of the City of Ashland Police Department as a result of the performance of its duties.
{¶29} R.C. 4513.61(C) further provides, in relevant part, as follows:
(2) The owner or lienholder of the motor vehicle may reclaim the motor vehicle upon payment of any expenses or charges incurred in its removal and storage, and presentation of proof of ownership, which may be evidenced by a certificate of title or memorandum certificate of title to the motor vehicle, a certificate of registration for the motor vehicle, or a lease agreement. Upon presentation of proof of ownership evidenced as provided above, the owner of the motor vehicle also may retrieve any personal items from the vehicle without retrieving the vehicle and without paying any fee. However, a towing service or storage facility may charge an after-hours retrieval fee established by the public utilities commission in rules adopted under section 4921.25 of the Revised Code if the owner retrieves the personal items after hours, unless the towing service or storage facility fails to provide the notice required under division (B)(3) of section 4513.69 of the Revised Code, if applicable.
{¶30} As noted by the trial court, it is undisputed that appellant failed to pay or even attempted to tender to the City of Ashland the storage fees that accrued between June 4, 2015 (the date that appellant was acquitted of possession of criminal tools) and October 19, 2015 (the date that appellant entered his guilty plea). Although the amounts of the fee was reduced several times and appellant was given extensions to pay, the fees have not yet been paid. As noted by the trial court in its Judgment Entry:
The City of Ashland was therefore justified to continue storage of the vehicle after October 19, 2015, and the Defend is only entitled to return of the vehicle, under R.C. 4513.61(C)(2), 'upon payment of any expenses or
charges incurred in its removal and storage.' Plaintiff admits in his affidavit that he was afforded on or more opportunities to reclaim his vehicle without paying the full expenses or charges incurred in the storage of his 2009 Toyota, and he failed to remit even the lesser amount. As the Defendant had not complied with the requirements of R.C. 4513.61 (C)(2), he is not entitled to reclaim the vehicle, and his claim of replevin must fail. Likewise, the Defendant is within its statutory right to deny Plaintiff's reclamation of the 2009 Toyota until he tenders the full storage fees that have accrued, or any lesser sum as may be agreed to by Defendant as a condition for releasing the vehicle.
{¶31} Moreover, appellee argued in its motion, and we agree, that it is immune from liability for all claims except appellant's claims alleged under the Fourth and Fifth Amendments to the United States Constitution. R.C. Chapter 2744 establishes a three-tiered analysis for determining whether a political subdivision may be immune from liability. As a general rule, political subdivisions are immune from civil liability incurred in performing a governmental or proprietary function. R.C. 2744.02(A)(1). However, R.C. 2744.02(B) establishes five exceptions to this immunity. If any of these exceptions applies, then R.C. 2744.03 supplies additional defenses against liability.
{¶32} R.C. 2744.02(A)(1) provides that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." The Ashland Police Department is unquestionably a political subdivision entitled to immunity under R.C. 2744.02(A). See R.C. 2744.01(F) (defining political subdivision to include, e.g., municipal corporations).
{¶33} "Governmental functions" include, among other things, "[t]he provision or nonprovision of police * * * services or protection." R.C. 2744.01(C)(2)(a). Furthermore, police power to impound a vehicle constitutes a governmental function. Pavlik v. Cleveland, 8th Dist. Cuyahoga App. No. 92176, 2009-Ohio-3073, ¶ 18; Globe Am. Cas. Co. v. Cleveland, 99 Ohio App.3d 674, 678, 651 N.E.2d 1015 (8th Dist. 1994). The evidence indicates that the vehicle was impounded by the police in conjunction with the arrest of the driver, and therefore was a governmental function.
{¶34} R.C. 2744.02(B) provides five exceptions to the general grant of immunity under subsection (A)(1). None of the exceptions apply here.
{¶35} Appellant also asserted constitutional arguments under both the Fourth and Fifth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures while the Fifth Amendment prohibits the taking of property and deprivation of property without just compensation or due process of law. The trial court, in the case sub judice, found that there was no deprivation of property without due process and that there was no liability on the part of appellee. The court found that appellee was "simply exercising its statutory rights under R.C. 4513.61(C) (2), and Plaintiff simply isn't entitled to reclaim his vehicle until the storage fees have been paid." Plaintiff's taking claim fails because "[t]he government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain." Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994 (1996). Here, appellee lawfully exercised its authority under 4513.61 and such exercise does not constitute a taking of property without just compensation.
{¶36} Regarding a decision by law enforcement to impound a car, "[t]he ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706(1973). It is reasonable of police to exercise their discretion and impound a vehicle, rather than leave it, "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739(1987). "This discretion is necessarily limited to circumstances in which the officer is authorized to impound the vehicle." State v. Huddleston, 173 Ohio App.3d 17, 2007-Ohio-4455, 877 N.E. 2d 354, ¶ 14, citing Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103, and State v. Taylor 114 Ohio App.3d 416, 683 N.E.2d 367 (1996). "[A]uthority to impound should never be assumed," however. Taylor at 422. We have identified several situations in which police have authority to impound a vehicle, among them, "when impoundment is [ ] authorized by statute or municipal ordinance." Id.; Accord, State v. Saunders, 5th Dist. Fairfield No. 14-CA-57, 2015-Ohio-3535, ¶ 12.
{¶37} In the case sub judice, appellant was indicted by the Grand Jury on five counts including possessing criminal tools. The indictment contained forfeiture specifications. Probable cause exited for the charges against appellant and justified the seizure of the Toyota. The impoundment was authorized by statute, namely R.C. 4513.61 and appellant cannot establish that any constitutional violation occurred.
{¶38} Based on the foregoing, we find that the trial court did not err in granting summary judgment in favor of appellee.
{¶39} Appellant's two assignments of error are, therefore, overruled.
{¶40} Accordingly, the judgment of the Ashland County Court of Common Pleas is affirmed. By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.