Kimble v. Universal TV Rental, Inc.

• Decision Date: 20 August 1980
• Docket Number: No. M-79-CV-E-022889,M-79-CV-E-022889
• Citation: 417 N.E.2d 597,65 Ohio Misc. 17
• Parties: , 19 O.O.3d 172 KIMBLE v. UNIVERSAL TV RENTAL, INC.
• Court: Ohio Court of Common Pleas

Page 17

65 Ohio Misc. 17

417 N.E.2d 597, 19 O.O.3d 172

KIMBLE v. UNIVERSAL TV RENTAL, INC.

No. M-79-CV-E-022889.

Franklin County Municipal Court, Ohio.

Aug. 20, 1980.

CRAWFORD, Judge.

This cause came to be heard on plaintiff's (Pamela J. Kimble) complaint filed against defendant (Universal TV Rental, Inc.) which, in essence, alleges that on or about July 31, 1979, the defendant invaded her privacy by forcibly entering her home and unlawfully taking a television set which was the subject of a rental agreement with option to purchase. Plaintiff further alleges that due to the willful and wanton misconduct of the defendant she suffered great distress and insecurity in her dwelling thereby causing her compensatory damages in the amount of $700. Plaintiff further seeks to recover punitive damages against the defendant in the amount of $9,300.

Trial was held to the court on July 21, 1980, and the following are the court's Findings of Fact and Conclusions of Law:

Findings of Fact

1. On or about June 2, 1978, plaintiff and defendant entered into a "Rental Agreement With Option To Purchase" a color television. The written agreement provides in part:

"OWNER'S RIGHTS TO ENTER AND TAKE POSSESSION: The Owner and its agents upon the termination of this agreement are specifically authorized to peaceably enter upon any premises where the property may be found and renter agrees to allow owner to take possession in accordance with this agreement and renter agrees to indemnify owner and its agents for all costs, expenses, and damages occurring directly or indirectly from or related to the taking possession and the removal of said property."

2. In addition, the parties stipulated that the plaintiff made payments on such agreement from June 2, 1978 through May 3, 1979 (The May payment covered a term through May 31, 1979). No payments were made on the agreement for the months of June and July of 1979. The payments made by the plaintiff were as follows:

$58 on June 2, 1978, covering the month of June;

$58 on July 8, 1978, covering the month of July;

$58 on Aug. 10, 1978, covering the month of August;

$58 on Sept. 14, 1978, covering the month of September;

$58 on Oct. 10, 1978, covering the month of October;

$58 on Nov. 7, 1978, covering the month of November;

$58 on Jan. 8, 1979, covering the month of December 1978;

$116 on Feb. 26, 1979, covering the months of January and February 1979;

$58 on March 9, 1979, covering the month of March 1979;

$106 on May 3, 1979, covering the months of April and May, 1979.

Total payments amounted to $686.

At no time did defendant object, either in writing or orally, to the late payments which were made by the plaintiff.

3. Regardless of the provisions of the agreement, ¹ the court finds that on or about July 31, 1979, plaintiff had a payoff balance on the television of $250.60. Thus, on July 31, 1979, the debtor had paid in excess of 65 percent of the cash price owed on the rental agreement with the option to purchase.

4. At no time did defendant sign, after default, a statement renouncing or modifying her rights with respect to repossession as provided in R.C. 1309.48. Plaintiff testified that she contacted the defendant during the month of July 1979, regarding her payoff balance and a possible modification of the written agreement; however, the court does not find that this testimony is sufficient to create an oral modification of the written agreement as provided in R.C. 1302.12.

5. At approximately 9:15 a. m. on July 31, 1979, plaintiff left her apartment, locked the only door leading into the apartment, and went to the airport. Shortly after plaintiff left her apartment, two representatives of the defendant, Richard Baird and Alan Dowdy, went to plaintiff's apartment building to repossess the television set covered under the rental agreement with an option to purchase. Neither Baird nor Dowdy, nor any other representative of the defendant, had contacted the plaintiff prior to July 31, 1979 regarding the repossession nor had anyone from the defendant's office received permission from the plaintiff to repossess the television set. Baird and Dowdy first went to the apartment of the resident manager (Mr. William Mitchell) and asked permission to be let into the premises of the plaintiff. Mr. Mitchell refused Baird and Dowdy admittance into the locked premises of the plaintiff. After this initial contact with Baird and Dowdy, Mitchell had no further contact with the two men.

6. Upon returning to her apartment, plaintiff found that the lock to her door had been turned, and, upon entering her premises, found that the television set covered under the agreement with defendant had been taken. Fearing that a burglary had taken place, plaintiff contacted the Columbus Police Department to report a theft of her television set. Upon investigation by plaintiff and the police, it was determined that the following note (written on a brochure) was left in her premises: "Paula We have taken our television. Please call Manager 443-9471." Upon reading this note, the police officer determined that he would not conduct a further investigation.

7. Based upon the direct and circumstantial evidence, the court finds that Richard Baird and Alan Dowdy, representatives of the defendant and without authority from plaintiff, forcibly entered plaintiff's locked apartment through the door and took plaintiff's television set. ²

8. On July 31, 1979, Richard Baird was the assistant manager of the defendant acting within the scope of his employment under orders (direct or implied) of the defendant to repossess plaintiff's television set. Neither Mr. Baird, nor any employee under his supervision, had received instructions or training from the defendant or its representative with regard to the methods that were to be used in repossessing television sets inside the locked residences of customers. ³

9. Subsequent to the taking of the television set by the defendant, plaintiff contacted the defendant but there was no effort on the part of the defendant to grant plaintiff her rights as provided under R.C. Chapters 1309 and 1317.

Conclusions of Law

I. The defendant had no right to enter plaintiff's locked apartment for the purpose of repossessing the television, and such action amounted to a trespass.

The right of a secured party to engage in self-help repossession has been the subject of much legal debate during the past decade. (See Editor's Analysis to R.C. 1309.46 and Sniadach v. Family Finance Corp. (1969), 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Fuentes v. Shevin (1972), 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; North Georgia Finishing v. Di-Chem (1975), 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751; Morris v. First Nat'l Bank (1970), 21 Ohio St.2d 25, 254 N.E.2d 683; Annotation, Validity, Under State Law, of Self-Help Repossession of Goods Pursuant to U.C.C. § 9-503, 75 A.L.R.3d 1061; Annotation, Replevin or Claim-and-Delivery, 45 A.L.R.3d 1233; Annotation, Validity Under Federal Constitution and Law, of Self-Help Repossession Provision of § 9-503 of U.C.C., 29 A.L.R.Fed. 418). The courts disfavor self-help repossession because, if abused, the process invades the legitimate conflict resolution function of the courts. (Is Repossession Accomplished by Use of Stealth, Trickery, or From a Breach of the Peace Under Uniform Commercial Code § 9-503? 40 Ohio St.L.J. 501, 504. See, also, the recent discussion by the Ohio Supreme Court in Peebles v. Clement (1980), 63 Ohio St.2d 314, 317, 408 N.E.2d 689, regarding prejudgment attachments without judicial process.) However, most courts have recognized that a secured party's right to repossess, under controlled circumstances, was a common law right and that the adoption of Uniform Commercial Code 9-503 (R.C. 1309.46) did not change the existing right, but it merely codified the right previously existing under the common law. (See Adams v. Southern Calif. First Nat'l Bank (C.A. 9, 1973), 492 F.2d 324, certiorari denied 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974).

The agreement, in the case at bar, granted to the defendant the right to "peaceably enter upon any premises where the property may be found." (See Finding of Fact No. 1). Assuming for purposes of argument that the contracting parties can alter the provisions of R.C. 1309.46 by agreement, ⁴ the agreement referring to "peaceably" must be read in pari materia with the applicable provisions of R.C. Chapter 1309 which are not in conflict therewith. (R.C. 1309.02).

R.C. 1309.46 provides:

"Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides, the secured party may require the debtor to assemble the collateral and make it available to the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor's premises under section 1309.47 of the Revised Code."

This court finds that the word "peaceably", as set forth in the agreement, means "without a breach of the peace" as provided in R.C. 1309.46. "Breach of the peace" has many definitions but this court believes that the most appropriate definition is found in 2 Anderson, Wharton's Criminal Law and Procedure, Section 802 (1957), and cited in 40 Ohio St.L.J. 501, 502, Is Repossession Accomplished By the Use of Stealth, Trickery, or Fraud a Breach of the Peace Under U.C.C. § 9-503? (1979) as follows:

" * * * a violation of public order, a disturbance of the public tranquility, by an act or conduct inciting to violence or tending to provoke or excite others to breach the peace * * *. It includes any violation of any law enacted to preserve peace and good order."

Citing several applicable cases which this...