OSCN Found Document:BULARD AIR SERVICES v. BROWN AVIATION
BRIAN JACK GOREE, CHIEF JUDGE:
¶1 This is an action for replevin of an aircraft engine that was in the possession of a mechanic. The trial court issued its writ for immediate return of the property to the owner. We affirm the court's prejudgment order of delivery.
BACKGROUND
¶2 Bulard Air Services, LLC, owns a Cessna 421, a twin-engine propeller aircraft. When Ron Bulard's pilot discovered the left engine had a crack in its crankcase, they hired Donald McDaniel to remove the engine from the plane so it could be repaired. McDaniel spoke to a mechanic named Larry Brown about the problem and eventually transported the engine and logbook to Brown Aviation, Inc.1 The scope of the work to be performed by Brown and the terms for payment of his services are disputed. The agreement was not in writing.
¶3 Several months passed and Mr. Bulard contacted Mr. Brown about the status of the repair. Brown requested a deposit of $25,000 but Bulard was unwilling to make a payment without the documentation he believed was reasonable. Brown was unwilling to complete the work without payment, nor would he agree to voluntarily return the engine because he claimed a possessory lien. Plaintiffs filed a petition for breach of contract, replevin and injunctive relief. Brown filed a counterclaim for payment of services for $29,812.00
¶4 The trial court conducted a hearing and ruled in favor of Bulard. Brown was required to relinquish possession of the engine and Bulard was required to obtain a bond for $16,000. The next day, Brown filed a motion to stay execution of the writ. The trial court granted the motion in part by (1) modifying the bond amount to $50,000.00, (2) extending the deadline for Brown to release the engine, and (3) requiring Brown to document the components of the disassembled engine. Brown appealed.
APPELLATE JURISDICTION
¶5 The appealed order addresses the writ of replevin. Brown proposes the order is appealable because it is an interlocutory order appealable by right. He argues it is an order modifying or refusing to vacate or modify a provisional remedy which affects the substantial rights of a party. Bulard counters that replevin is not a provisional remedy.2
¶6 "The Supreme Court may reverse, vacate, or modify any of the following orders of the district court, or a judge thereof . . . (2) An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party. . ." 12 O.S. §952(b)(2) and 12 O.S. §993(A)(3). For the reasons that follow, we agree with appellant that Bulard was asserting a provisional remedy in this action.
¶7 Identifying provisional remedies is more difficult in modern civil procedure where actions in equity and law are combined.3 The term "provisional" comes from the former practice of allowing an ancillary suit in equity. Shadid v. Hammond, 2013 OK 103, ¶6, 315 P.3d 1008, 1010 (Edmondson, J., concurring). In the court of law a litigant who was particularly at risk of an inequitable loss was obliged to request the temporary relief provided for in chancery court.4 Id. The district court now has authority to address all claims arising from a single transaction or set of circumstances, including an alleged need for prejudgment temporary relief.5
¶8 Replevin is an action to recover the possession of specific personal property.6 The statutes allow for an expedited hearing to obtain an order for prejudgment delivery of the property.7 This evidentiary hearing is preliminary in nature. Sweeten v. Lawson, 2017 OK CIV APP 51, ¶33, 404 P.3d 885, 895. Its purpose is only to determine who should have possession of the claimed property pending the final hearing. Id.
¶9 In Hutchings v. Cobble, 1911 OK 395, ¶2, 120 P. 1013, 1015, the Supreme Court cited Kansas authority which noted that a prejudgment delivery of personal property is a provisional remedy: "'The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment or provisional remedy'" Hutchings, at ¶6, quoting Batchelor v. Walburn, 23 Kan. 734 (Kan. Sup. Ct. 1880).8
¶10 A claimant who seeks possession of property before judgment is requesting temporary relief. The prejudgment order is contingent on security in the form of a bond because the court may re-transfer possession after a merits trial.9 We hold that prejudgment delivery of specific personal property pursuant to 12 O.S. §1571 et seq. is a provisional remedy within the meaning of 12 O.S. §952(b)(2) and 12 O.S. §993(A)(3).10
¶11 Not all orders disposing of provisional remedies are reviewable. Appellate jurisdiction founded upon §952(b)(2) exists only where the order discharges, vacates, modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party. §952(b)(2). We must examine the effect of the appealed order to determine whether it is reviewable.
¶12 In the writ of replevin, Bulard was directed to execute an undertaking of $16,000. A replevin bond was issued in that amount. Three days later, the court entered an order expressly modifying the amount of the bond to $50,000. The appealed order modified a provisional remedy by significantly increasing the replevin bond that secured the prejudgment order of delivery.
¶13 The order also affected the appellant's substantial rights. Brown provided aircraft mechanic services on the engine pursuant to a voluntary agreement, and the property was in his possession. He disassembled it, obtained new or remanufactured component parts, and delivered an invoice to Bulard which has not been paid. The trial court noted that any security interest Brown may have is adequately protected by the bond. We conclude the August 4, 2017 order that modified the replevin bond pursuant to a prejudgment order of delivery is an interlocutory order appealable by right. It modified a provisional remedy that affected the substantial rights of a party.
SUFFICIENCY OF THE PETITION
¶14 Brown argues that the order removing the engine from his possession should be reversed because Plaintiffs' petition failed to include all of the specific allegations set forth in §1571(A)(1) and it lacked the verification required by §1571(A)(2). These propositions require statutory construction which is an issue of law, and we review them de novo without deference to the trial court. Sweeten, ¶16.
¶15 A plaintiff seeking delivery of the property "at the commencement of the suit" must request immediate possession and include verified allegations about the property including its description, ownership, value, and wrongful detention without legal justification.11 Brown correctly points out that Bulard's petition omitted the allegation of §1571(A)(1)(e), that the property was not taken in execution (or for a similar statutory justification). However, because the order for delivery was based on evidence at a hearing, and not solely on the allegations of the petition, we are not persuaded that failure to meet this technical form of pleading requires reversal.12
¶16 Section §1571 sets forth the procedure a plaintiff must follow to recover immediate possession of specific personal property at the time suit is commenced.13 A verified petition alleging facts showing elements (a) through (f) must be served on the defendant with a summons and a special notice. The notice must direct the defendant to file a written objection within five days. If an objection is not filed in five days, no hearing is necessary and the court clerk shall issue the order of delivery. §1571(A)(3). We observe that in a case where property is immediately removed from a defendant's possession at the commencement of a case, without a hearing, the statute requires a verified petition that includes the specified allegations.14
¶17 However, when an objection is filed the court must set the case for a prompt hearing and determine the matter according to the probable merit of the petition. §1571(A)(3). Here, the order of delivery was not made immediately at commencement of the case. Brown objected to the notice and filed an answer with counterclaims. The trial court heard sworn testimony of witnesses and received exhibits offered and admitted into evidence. We hold that an order of delivery properly founded upon evidence at the hearing provided for by §1571 is not invalidated by lack of a verified petition.15 Furthermore, in replevin cases where the order for delivery does not rest solely on the verified allegations of the petition, the sufficiency of the petition is governed by the Oklahoma Pleading Code.16
VALUE OF THE PROPERTY
¶18 Brown proposes the replevin order must be reversed because Bulard never presented competent evidence of the engine's value. The value of the property is relevant where prejudgment delivery is sought because the writ may not issue until a replevin bond is executed for double the value of the property. §1573. The valuation is based on the amount stated in the petition or on evidence given at a hearing. §§1573, 1573.1.17 At the hearing, Bulard testified he obtained an estimate from a different mechanic for $16,000 after receiving Brown's statement requiring a $25,000 deposit. Bulard learned that the engine was disassembled and there was a possibility it was not repairable. Later, Brown sent Bulard a bill for more than $29,000 for work performed plus storage costs. At the close of Bulard's case-in-chief, Brown's counsel demurred to the evidence and the trial court overruled it. Brown contends the trial court's ruling was reversible error.
¶19 When a trial court considers a demurrer to the evidence it must take as true all evidence (together with all reasonable inferences) favorable to the party against whom relief is sought. A demurrer should be overruled unless there is an entire absence of proof tending to show a right to recover. Jackson v. Jones, 1995 OK 131, ¶4, 907 P.2d 1067, 1071.
¶20 Brown argues there was no evidence of the value of the engine. He urges that Bulard's only testimony was about the cost of repair which is not the same as value of the property. Bulard testified the engine was dismantled and possibly could not be repaired -- Brown informed him, "I don't even know if I can fix your engine because I don't even know if the parts are available." Bulard testified he would be willing to post a bond in the amount of $16,000.
¶21 Accepting Bulard's evidence as true and construing all inferences in his favor, the trial court could have determined the property at issue was a group of disassembled engine components, some broken and possibly irreparable or irreplaceable. The court could reasonably have inferred from Bulard's agreement to post a $16,000 bond that the dismantled and undiagnosed engine had a value of $8,000. The trial court did not commit error when it overruled Brown's demurrer to the evidence.
¶22 At the conclusion of the hearing the trial court pronounced its order granting replevin. The writ issued directing an officer to take the engine with its aircraft log book and delivery it to plaintiffs, and requiring plaintiffs to execute a bond in the amount of $16,000. However, before the time set for delivery, Brown filed a motion to stay to protect his security interest.
¶23 Brown referred to his testimony at the hearing that he has lien rights in the work he performed on the engine while it was in his possession. He argued these rights would be effectively destroyed because his interest was $29,812.00, a sum far greater than the $16,000 bond. In response, the trial court filed an order modifying the bond from $16,000 to $50,000.
¶24 Brown maintains his argument that the bond, even as modified, is not substantiated by evidence and the trial court erred by relying on the petition's allegation that the value is $25,000.18 We reiterate that there was sufficient testimony concerning the value of the property received in evidence at the hearing to support the order of prejudgment delivery. Considering that the modified bond protected Brown's claimed security interest, we find no error in the court's order.
PRESERVATION OF THE PROPERTY
¶25 When the court modified the bond, it also directed Brown to photographically document the components of the disassembled engine and it extended the time for delivery of the property. Brown asserts Bulard might deliver the engine to a third party to repair it and this would constitute spoliation of evidence. He claims the trial court erred by omitting from its modified order a prohibition against tampering or reassembling the engine.
¶26 Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of the litigant to prove his or her claim. Barnett v. Simmons, 2008 OK 100, ¶21, 197 P.3d 12. Brown cites no authority showing that a trial court must enter a preemptive order to prevent spoliation. We find no error in the court's order regarding the prospect of spoliation.
¶27 Brown also proposes that the modified order deprived him of property without due process of law guaranteed by the Oklahoma Constitution, Art. 2, §7 and the 14th Amendment of the United States Constitution. His argument is that he was not permitted an opportunity to present evidence on the amount of time it would take him to document the status of the engine, implying that the six days provided by the court was inadequate. We disagree.
¶28 Brown was served with notice of this replevin action approximately one week before the hearing. He testified that the engine is sitting on the shelves of two large carts in his shop. His exhibits included an itemized list of engine parts and the labor he performed. Brown cited authority generally stating the fundamental right to due process of law, but he has not explained why the trial court's order permitting him approximately one week to photograph the engine parts constitutes a deprivation of property without notice and an opportunity to be heard. Actual prejudice is a necessary element of a due process claim which makes the claim ripe for adjudication. Walters v. Oklahoma Ethics Commission, 1987 OK 103, ¶19, 746 P.2d 172, 177. Brown has not met this burden.
CONCLUSION
¶29 An action for statutory replevin allows for prejudgment delivery of the property based upon (1) a verified petition at the commencement of the action, or (2) a finding of probable merit at a preliminary evidentiary hearing. 12 O.S. §1571. A writ of replevin properly founded upon evidence at the hearing provided for by §1571 is not invalidated by lack of a verified petition. Unless the writ issues at the commencement of the action and based solely on the verified allegations of the petition, the sufficiency of the petition is governed by the Oklahoma Pleading Code. Finally, prejudgment delivery of specific personal property pursuant to 12 O.S. §1571 et seq. is a provisional remedy within the meaning of 12 O.S. §952(b)(2) and 12 O.S. §993(A)(3).
¶30 The trial court's Order on Defendant's Emergency Motion to Stay Execution of the Writ of Replevin, filed August 4, 2017, is AFFIRMED.
JOPLIN, P.J., and BUETTNER, J., concur.