[Cite as BTS Transport, L.L.C. v. Commercial Truck & Trailer, Inc., 2020-Ohio-1564.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


BTS TRANSPORT, LLC,                                    :           OPINION

                 Plaintiff-Appellant,                  :
                                                                   CASE NO. 2019-T-0070
        - vs -                                         :

COMMERCIAL TRUCK & TRAILER, INC., :
et al.,
                                  :
         Defendants-Appellees.


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2019 CV 00375.

Judgment: Reversed and remanded.


Michael D. Rossi, Guarnieri & Secrest, PLL, 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Plaintiff-Appellant).

Charles Hess, Hess Law Office, 4230 Tuller Road, Suite 100, Dublin, OH 43017 (For
Defendants-Appellees).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, BTS Transport, LLC (“BTS”), appeals from the entry of

summary judgment granted in favor of appellees, Commercial Truck & Trailer, Inc.

(“CT&T”) and Orren Zook (collectively “Defendants”). The judgment is reversed.

        {¶2}     CT&T, located in Girard, Ohio, is a repair facility for large truck trailers,

buses, and off-road heavy vehicles. Orren Zook is the owner of CT&T. In 2014, BTS

brought a 2002 or 2003 Pitts lowboy trailer to CT&T for repair. When BTS returned to
pick up the trailer, a dispute arose over the price of the repair and the number of hours

worked. CT&T submitted an invoice for $7,195.46. BTS refused to pay that amount

and offered around $3,100.00. CT&T refused to release the trailer without full payment

of the invoiced amount.

       {¶3}    More than three years later, in 2018, CT&T obtained a certificate of title for

the trailer on the basis that it was an abandoned vehicle, pursuant to R.C. 4505.101. In

obtaining the certificate of title, CT&T filed an Unclaimed Motor Vehicle Affidavit in

which Orren Zook, as the owner of CT&T, averred that the trailer’s “wholesale value”

was $21,000.00; the “cost of agreed upon repairs” was $7,195.46; the “vehicle value”

was $13,804.54; and the “storage fees” were $23,540.00.                    He signed the affidavit

underneath the following provision:

               By completing this form, I am hereby affirming that ALL of the
               requirements of sections 4505.101 and / or 4513.601 of the R.C.
               have been met and I attest that all the information contained on this
               form is true and accurate. I understand that providing false
               information may constitute a criminal offense of falsification under
               section 2921.13 of the R.C. and is a misdemeanor of the first
               degree.

       {¶4}    After acquiring the certificate of title, CT&T sold the trailer to a third party

for the sum of $8,149.60, which, according to Defendants, included $1,000.00 worth of

additional work.

       {¶5}    On February 27, 2019, BTS sued Defendants for conversion, a R.C.

2307.60 claim1, and unjust enrichment.                 BTS sought compensatory and punitive

damages. BTS later withdrew its claim for unjust enrichment.


1. “Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil
action unless specifically excepted by law, may recover the costs of maintaining the civil action and
attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the
Revised Code or under the common law of this state, and may recover punitive or exemplary damages if
authorized by section 2315.21 or another section of the Revised Code.” R.C. 2307.60(A)(1).

                                                   2
          {¶6}   Defendants answered the complaint and thereafter moved for summary

judgment. Defendants argued that BTS had no standing to sue for conversion because

the title history reveals BTS is not and was never the owner of the trailer, and that BTS

could not succeed on its R.C. 2307.60 claim because it had not alleged a criminal act by

either defendant. Defendants also asserted Orren Zook could not be held personally

liable.

          {¶7}   In response to Defendants’ motion for summary judgment, BTS argued

that a genuine issue of material fact exists as to whether BTS ever held title to the

trailer. BTS submitted a copy of a 2017 Certificate of Title for a “2002 Pitts Trailer,”

which was incorporated into the affidavit of its managing member, Paul Adamiuk.

          {¶8}   BTS further responded that genuine issues of fact remain as to the alleged

R.C. 2307.60 violation because there was evidence that Defendants did not comply with

the requirements of R.C. 4505.101 when it applied for the certificate of title.

Specifically, BTS stated that the “vehicle value” of the trailer listed on Defendants’

Unclaimed Motor Vehicle Affidavit was not less than the statutory threshold amount of

$3,500.00 and the trailer was never left “unclaimed” by BTS, within the meaning of R.C.

4505.101. Finally, BTS asserted that Orren Zook is personally liable because he signed

the false affidavit and wrongfully invoked R.C. 4505.101.

          {¶9}   On October 2, 2019, the trial court granted Defendants’ motion and

entered summary judgment in favor of Defendants on BTS’s claims. The trial court held

Defendants had not committed conversion because CT&T initially held a possessory

lien on the trailer in the amount of the repair invoice and then took title by complying

with R.C. 4505.101 before the trailer was sold. The trial court found no violation of R.C.

4505.101. The trial court further held that BTS provided no evidence of a criminal act

                                              3
by Defendants, because the criminal act alleged was a violation of R.C. 4505.101, and

therefore BTS could not succeed on its cause of action under R.C. 2307.60.

       {¶10} BTS noticed a timely appeal from this entry. In its sole assignment of

error, BTS contends “the trial court erred in entering summary judgment in Defendants-

Appellees’ favor.” BTS raises two issues for review, both of which are questions of

statutory interpretation and application:

              [1.] Whether, for purposes of obtaining a certificate of title for an
              “abandoned vehicle” under RC§4505.101, the $3,500.00 threshold
              value of the motor vehicle is determined by deducting the cost of
              repairs from the vehicle’s wholesale value; or by deducting both the
              cost of repairs and storage fees from that wholesale value.

              [2.] Whether, within the meaning of RC§4505.101(A)(1), the period
              of time during which a given motor vehicle “has been left unclaimed
              for fifteen days or more” includes the period of time between
              completion of the requested repairs and mailing of the requested
              statutory notice.

                             Summary Judgment Standard

       {¶11} An appellate court reviews a trial court’s decision to grant summary

judgment under a de novo standard of review, i.e., “independently and without

deference to the trial court’s determination.” Brown v. Cty. Commrs. of Scioto Cty., 87

Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted); see also Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105 (1996).         Issues of statutory interpretation are also

questions of law, which we review de novo. Riedel v. Consol. Rail Corp., 125 Ohio

St.3d 358, 2010-Ohio-1926, ¶6 (citations omitted).

       {¶12} “Civ.R. 56(C) specifically provides that before summary judgment may be

granted, it must be determined that

              (1) [n]o 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

                                            4
               (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 party against whom the motion for summary judgment
               is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977); see also Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 359 (1992) (“Doubts must be resolved in favor of the

non-moving party.”).

      {¶13} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, 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 of law.” Civ.R. 56(C).

      {¶14} “[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.” Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). “If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied.” Id.

      {¶15} If this initial burden is met, the nonmoving party then bears the reciprocal

burden to set forth specific facts demonstrating there is a genuine issue for trial. Id.,

citing Civ.R. 56(E). If the nonmovant fails to do so, summary judgment will be entered

against the nonmoving party. Id.




                                            5
               R.C. 4505.101 “Certificate of Title for Abandoned Vehicle”2

        {¶16} R.C. 4505.101(A) provides the procedure by which a repair garage, such

as CT&T, is permitted to obtain a certificate of title for an abandoned vehicle:

                (1) Any repair garage or place of storage in which a motor vehicle
                with a value of less than three thousand five hundred dollars has
                been left unclaimed for fifteen days or more following completion of
                the requested repair or the agreed term of storage shall send by
                certified mail, return receipt requested, to the last known address of
                any owner and any lienholder of the motor vehicle a notice to
                remove the motor vehicle. * * *

                (2) The repair garage or place of storage may obtain a certificate of
                title to the motor vehicle if all of the following apply:

                        (a) The motor vehicle remains unclaimed by any owner or
                        lienholder of the vehicle for fifteen days after the mailing of
                        all required notices.

                        (b) For each notice, the repair garage or place of storage
                        has either received the signed receipt from the certified mail
                        or has been notified that the delivery was not possible. * * *

                        (c) An agent of the repair garage or place of storage that
                        mailed the notice executes an affidavit, in a form established
                        by the registrar of motor vehicles by rule, affirming that all of
                        the requirements of this section necessary to authorize the
                        issuance of a certificate of title for the motor vehicle have
                        been met.

                        The affidavit shall set forth an itemized statement of the
                        value of the motor vehicle; the length of time that the motor
                        vehicle has remained unclaimed; that a notice to remove the
                        vehicle has been mailed to any titled owner or lienholder by
                        certified mail, return receipt requested; and that a search of
                        the records of the bureau of motor vehicles has been made
                        in accordance with division (A)(1) of this section.

(Emphasis added.)


2. Effective March 23, 2015, the provisions of R.C. 4505.101 were significantly revised. See Am.Sub.S.B.
No. 274, Section 1, 2014 Ohio Laws File 190. Further revisions became effective April 6, 2017, which is
the version quoted herein. See Am.Sub.H.B. No. 341, Section 1, 2016 Ohio Laws File 165. Subsequent
to the matter at hand, the statute was again amended by adding “port authority” to the notice provision
found in (A)(1). See Am.Sub.H.B. No. 62, 2019 Ohio Laws File 2 (eff. July 3, 2019).

                                                   6
       {¶17} As used in this section, “repair garage” means “any business with which a

person entered into an agreement for the repair of a motor vehicle[.]”                    R.C.

4505.101(E)(1).

       {¶18} If the repair garage presents an affidavit that complies with division (A),

the clerk of courts shall issue a certificate of title, free and clear of all liens and

encumbrances. R.C. 4505.101(C)(1)(a).

              Upon receipt of the certificate of title, a repair garage * * * shall pay
              to the clerk of courts the value of the motor vehicle, minus both of
              the following: (a) If the motor vehicle was towed by the party
              seeking title to the motor vehicle under this section, a towing fee;
              [and] (b) Storage fees for the period of time the vehicle was stored
              without payment. The clerk of courts shall deposit any money
              received under this section into the county general fund.

R.C. 4505.101(C)(3).

       {¶19} “Whoever violates this section shall be fined not more than two hundred

dollars, imprisoned not more than ninety days, or both.” R.C. 4505.101(D).

                                Unclaimed Motor Vehicle

       {¶20} BTS argues the trial court erred in finding it failed to timely claim the trailer

after CT&T mailed the statutory notice, under R.C. 4505.101(A)(2)(a). It is not BTS’s

contention that it did not receive the statutory notice. Rather, according to BTS, the

(A)(2)(a) provision is not triggered unless the vehicle, under (A)(1), “has been left

unclaimed for fifteen days or more following completion of the requested repair.”

Because BTS returned for the trailer within days of the completion of the repair, it

argues the trailer was not “left unclaimed.”

       {¶21} The statute provides an owner of a motor vehicle with two distinct

opportunities to claim its vehicle before a repair garage may obtain a certificate of title.




                                               7
First, the owner has at least 15 days following completion of the requested repair.

Second, the owner has another 15 days after the mailing of all required notices:

              (1) Any repair garage or place of storage in which a motor vehicle
              with a value of less than three thousand five hundred dollars has
              been left unclaimed for fifteen days or more following completion of
              the requested repair or the agreed term of storage shall send by
              certified mail, return receipt requested, to the last known address of
              any owner and any lienholder of the motor vehicle a notice to
              remove the motor vehicle. * * *

              (2) The repair garage or place of storage may obtain a certificate of
              title to the motor vehicle if all of the following apply:

                     (a) The motor vehicle remains unclaimed by any owner or
                     lienholder of the vehicle for fifteen days after the mailing of
                     all required notices.

R.C. 4505.101(A) (emphasis added).

       {¶22} These two distinct periods of time trigger what action the repair garage

must take if it wishes to acquire title. After the first 15-day period, the repair garage

shall send a notice to remove the vehicle. After the second 15-day period, the repair

garage may apply to obtain a certificate of title. BTS does not contend that CT&T failed

to follow this procedure. If BTS believed it had claimed the trailer in accordance with

(A)(1), the time to assert its interest in the trailer and CT&T’s alleged noncompliance

with the statute was, at the very latest, within 15 days of receiving the statutory notice.

There is no evidence that BTS did so. We find no support for BTS’s argument that the

trailer was not “left unclaimed.”

       {¶23} BTS’s second issue presented for review is not well taken.




                                            8
                                  Value of Motor Vehicle

       {¶24} BTS additionally argues the trial court erred in finding the trailer’s value

was less than $3,500.00, as required under R.C. 4505.101(A), because it subtracted the

cost of repairs and the storage fees from the trailer’s wholesale value. We agree.

       {¶25} As used in R.C. 4505.101, “value” means “the wholesale value for that

make and model of motor vehicle at the time an affidavit is submitted under division (C)

of this section, as provided in a vehicle valuation guide that is generally available and

recognized by the motor vehicle industry, minus both of the following:

              (a) The estimated cost of repairs to restore the motor vehicle to the
              wholesale value for that make and model of motor vehicle;

              (b) The cost of any agreed-upon repairs.

R.C. 4505.101(E)(3) (emphasis added).

       {¶26} In the Unclaimed Motor Vehicle Affidavit, Defendants filled out the “Vehicle

Value” section as follows:

VEHICLE VALUE (must be less than $3500 to use this affidavit)
Wholesale Value (as provided in a vehicle valuation guide                           $ 21000.00
recognized by the motor vehicle industry)                                     (A)
Estimated cost of repairs to restore vehicle to wholesale value               (B)   $
Cost of agreed upon repairs                                                   (C)   $ 7195.46
VEHICLE VALUE                                                   (A) – (B) – (C) =   $ 13804.54
Towing fees*                                                                  (1)   $
Storage fees* (only for the period of time the vehicle was                    (2)   $ 23540.00
stored without payment)
AMOUNT PAID TO THE CLERK                           VEHICLE VALUE – (1) – (2) = $           .00

       {¶27} The trial court held that the value of the trailer, for purposes of R.C.

4505.101, was less than $3,500.00. In reaching this conclusion, however, the trial court

incorrectly recited both the affidavit and the statute, finding as follows:

              According to Plaintiff, Defendant acquired title to the trailer without
              complying with the requirements of R.C. 4505.101. Specifically,
              Plaintiff contends that in the affidavit accompanying the application

                                               9
             to the Ohio Bureau of Motor Vehicles (“BMV”), CT&T listed the
             vehicle’s value as $13,804.54, an amount higher than the
             $3,500.00 allowed by R.C. 4505.101. Plaintiff’s reading of the
             affidavit is incomplete. The wholesale value of the vehicle was
             listed as $13,804.54 after deducting the cost of repairs, but CT&T
             was permitted to also deduct the actual expenses for storage. After
             that deduction, the value of the vehicle was negative, and therefore,
             under the statutory maximum.

      {¶28} Pursuant to both the statute and the affidavit, the “value” of the vehicle is

equal to the wholesale value minus (a) the estimated cost of repairs to restore the

vehicle to wholesale value and (b) the cost of agreed upon repairs.             See R.C.

4505.101(E)(3). Here, the wholesale value was listed as $21,000.00—not, as the trial

court held, $13,804.54. Further, CT&T was not permitted to deduct the storage fees

when calculating “value.” Pursuant to both the statute and the affidavit, the storage fees

are only to be deducted when determining the amount to be paid to the clerk. See R.C.

4505.101(C)(3). Here, the amount to be paid to the clerk amounts to less than zero.

The trailer’s “value,” on the other hand, amounts to $13,804.54.

      {¶29} Finally, we note that the trial court relied on Comm. Star Credit Union v.

Nickson, 9th Dist. Lorain Nos. 07CA009075 & 07CA009112, 2007-Ohio-7036 in

reaching its decision. However, the statute and the Unclaimed Motor Vehicle Affidavit

have both been significantly revised since the opinion was issued in Nickson.

      {¶30} In Nickson, a credit union was the holder of a note that was secured by

the grantor’s vehicle. The vehicle was towed from mall property July 2005. The towing

company attempted to obtain a certificate of title for the vehicle August 2005. The credit

union filed a replevin action October 2005. Ultimately, the trial court granted summary

judgment in favor of the towing company. Id. at ¶1-3.




                                           10
       {¶31} On appeal, the credit union argued summary judgment was improper

because a question of fact remained regarding the application of R.C. 4505.101—

specifically, the towing company’s affidavit indicated the vehicle was worth more than

$2,500.00, which was the statutory threshold at that time. Id. at ¶12. The Ninth District

disagreed, based on the language of the statute and affidavit in effect at the time.

       {¶32} The towing company had inserted the number $5,450.00 next to a line that

read, “Wholesale value of vehicle regardless of condition, as of this date.” The credit

union asserted this was the vehicle’s “value.” The Ninth District stated that, by doing so,

the credit union “ignore[d] the remainder of the affidavit.” Id. at ¶13. According to the

court’s opinion, directly below the “wholesale value” line on the affidavit were the

following lines and corresponding values filled in by the towing company:

              Estimate cost of repairs to restore vehicle to wholesale value * * *
              $5300.

              Actual expenses incurred * * * $890.00.

              Total deductions * * * $6190.

              Value of vehicle, less deductions: * * * If more than $2500.00 this
              form cannot be used. * * * -$740.

Thus, the plain language of the affidavit demonstrated that the $5,450.00 figure

represented the vehicle’s “wholesale value,” but not the “value” of the vehicle less

deductions, which was the figure used to determine the applicability of R.C. 4505.101.

Id.

       {¶33} At that time, effective January 1, 2004, the “value” of a vehicle under R.C.

4505.101 was simply “determined in accordance with standards fixed by the registrar of

motor vehicles.” The affidavit quoted above reflects that the standard fixed by the




                                              11
registrar at the time was the vehicle’s “wholesale value” minus (a) the “estimate cost of

repairs to restore vehicle to wholesale value” and (b) “actual expenses incurred.”

       {¶34} Citing Nickson, the First District subsequently held that an applicant was

required to deduct “actual expenses for towing and storage” from the “wholesale value”

when calculating the vehicle’s “value.” Again, the court was applying the 2004 version

of R.C. 4505.101. See Matthews v. Heflin, 1st Dist. Hamilton No. C-110612, 2012-

Ohio-2862, ¶17.

       {¶35} Effective as of March 23, 2015, the “value” of a vehicle under R.C.

4505.101 is currently defined as the vehicle’s “wholesale value” minus “(a) the

estimated cost of repairs to restore the vehicle to wholesale value and (b) the cost of

agreed upon repairs.” R.C. 4505.101(E)(3). This is reflected in the Unclaimed Motor

Vehicle Affidavit submitted by Defendants. There is no longer any mention of “actual

expenses,” and “storage fees” are only to be deducted when determining the amount to

be paid to the clerk. R.C. 4505.101(C)(3)(b).

       {¶36} Consequently, it was error for the trial court to rely on Nickson when

holding that CT&T was permitted to deduct its “actual expenses for storage fees” when

calculating the “value” of the vehicle for purposes of R.C. 4505.101(E)(3).

       {¶37} The accuracy of the information contained in Defendants’ Unclaimed

Motor Vehicle Affidavit is not challenged. If it is accurate, it appears the clerk of courts

should not have issued a certificate of title to CT&T. On its face, the Unclaimed Motor

Vehicle Affidavit submitted by Defendants should not have qualified to obtain a

certificate of title because the trailer’s “value” was calculated as $13,804.54—more than

the current statutory threshold of $3,500.00. Because the trial court’s entire opinion was

based on its holding to the contrary, we must remand this matter for further

                                            12
proceedings. The trial court must be permitted to consider BTS’s claims for conversion

and R.C. 2307.60 violation in light of this clarification.

       {¶38} BTS’s first issue presented for review is well taken.

       {¶39} The sole assignment of error is with merit to the extent indicated. The trial

court erred in granting summary judgment in favor of Defendants for the reasons stated.

       {¶40} The judgment of the Trumbull County Court of Common Pleas is reversed.

This matter is remanded to the trial court for further proceedings consistent with this

opinion.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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