Moore v. Republic Moving and Storage, Inc., 49A02-8705-CV-197

• Decision Date: 25 January 1990
• Docket Number: No. 49A02-8705-CV-197,49A02-8705-CV-197
• Citation: 11 U.C.C.Rep.Serv.2d 193,548 N.E.2d 1211
• Parties: 11 UCC Rep.Serv.2d 193 Ronald MOORE, Rita Green, Appellants (Plaintiffs), v. REPUBLIC MOVING AND STORAGE, INC., Appellee (Defendant).
• Court: Indiana Appellate Court

Page 1211

548 N.E.2d 1211

11 UCC Rep.Serv.2d 193

Ronald MOORE, Rita Green, Appellants (Plaintiffs), v. REPUBLIC MOVING AND STORAGE, INC., Appellee (Defendant).

No. 49A02-8705-CV-197.

Court of Appeals of Indiana Second District.

Jan. 25, 1990.

Rehearing Denied March 27, 1990.

Christopher B. Haile, Kenneth J. Falk, Legal Services Organization of Indiana, Inc., Indianapolis, for appellants.

Merle B. Rose, Cronin & Rose, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Plaintiffs-appellants Ronald Moore (Moore) and Rita Green (Green) appeal from the trial court's dismissal of their complaint against Republic Moving and Storage, Inc. (Republic) which alleged that Republic did not possess a valid lien and therefore wrongfully sold Moore and Green's household furnishings to satisfy storage charges.

We reverse and remand.

FACTS

The facts most favorable to Moore and Green reveal that in 1985, they occupied an apartment leased by Braeburn Village in Indianapolis. The small claims court constable served Moore and Green with an eviction summons on September 19, 1985, after their rental payments fell into arrears. In October, 1985, Braeburn Apartments obtained a writ of restitution and order of eviction in the Marion County Small Claims Court. At that time, a default judgment was entered for Braeburn Apartments in the amount of $457 plus court costs.

Once Braeburn Apartments obtained its judgment, the constable removed Moore and Green's property from the apartment on December 10, 1985, and placed it in storage at Republic's warehouse. The writ of restitution advised Moore and Green that their property would be removed, placed in storage, and levied upon for the judgment, costs, and interest accrued since October 1, 1985. On March 27, 1986, Republic published a notice in the "Indianapolis Commercial" newspaper claiming that Moore and Green were liable in the amount of $580 to satisfy a warehouse lien. The notice provided that an auction would take place in Indianapolis sometime after April 10, 1986, no date being specified. A list of the stored property was also received by Green on April 3, 1986.

In July, 1986, Moore and Green filed a complaint against Republic seeking the return of their property or damages if that property was sold. Republic filed a motion to dismiss on September 16, 1986, which was granted in February, 1987. Although Republic never sought or obtained a judgment, Republic sold Moore and Green's property at a public auction which had an estimated value of $2,000, in November, 1986, to satisfy their handling, storage, and newspaper advertising charges that totaled $980. The record before us does not reflect the amount of the proceeds realized from the auction.

ISSUE

Moore and Green present the following issue for our review:

Did Republic possess a valid lien entitling it to sell Moore and Green's household furnishings when that property was delivered to Republic pursuant to a court order after Moore and Green were evicted from their apartment?

PARTIES' CONTENTIONS--Moore and Green maintain that a small claims court constable is not a bailor, and because they did not authorize or consent to the storage of their property, Republic did not possess a valid warehouseman's lien and the storage and subsequent sale of their property was improper.

Republic responds that a warehouseman's lien is inapplicable under these circumstances and a lien arose by operation of law permitting Republic to store and subsequently sell Moore and Green's property to satisfy the accrued storage fees.

CONCLUSION--The trial court improperly dismissed Moore and Green's complaint.

Our standard of review of a dismissal under Ind. Rules of Procedure, Trial Rule 12(B)(6) is well known. The facts alleged in the complaint must be taken as true, and dismissal is appropriate only when it appears that under no set of facts could the plaintiff be granted relief. Thiele v. Indiana Dep't. of Highways (1985), Ind.App., 472 N.E.2d 1274; Employers Ins. of Wausau v. Commissioner of Dep't. of Ins. (1983), Ind.App., 452 N.E.2d 441; Foster v. New (1980), Ind.App., 407 N.E.2d 271. When it appears a certainty from the face of the complaint that Moore and Green were not entitled to any relief, we will not reverse the trial court's grant of Republic's motion to dismiss. See Avery v. Faulkner (1984), Ind.App., 471 N.E.2d 1226, trans. denied; Paul v. Metropolitan School Dist. (1983), Ind.App., 455 N.E.2d 411.

Ind.Code 26-1-7-209 (1988) provides in pertinent part:

"A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law."

(Emphasis supplied.) IC 26-1-7-209(3) makes this lien effective "against any person who so entrusted the bailor with possession of the goods that a pledge of them by him to a good faith purchaser for value would have been valid...." This specific language makes it clear that a lien is created against the owner of the property only if the owner of the property acts as a bailor or authorizes another to act as a bailor.

Although we know of no relevant decided cases in Indiana, several jurisdictions have determined that a warehouseman does not have a valid lien on another's property when that property is turned over to the warehouseman by a constable who had removed it pursuant to an order of restitution. In Cordle v. Lincoln Moving & Storage, Inc. 19 U.C.C.Rep.Serv. (Callaghan) 1204 (Neb.Dist.Ct.1976), the lower court entered an order of restitution after the plaintiffs' rental payments fell into arrears and the plaintiffs were evicted. The Municipal Court constable served the plaintiffs by leaving a copy of the writ on their apartment door. The writ ordered that the plaintiffs vacate the apartment. Two days later the constable returned to the premises, entered the apartment and contacted Lincoln Moving & Storage who moved the plaintiffs' property to their warehouse. In rejecting Lincoln Moving & Storage's contention that a valid lien was created under U.C.C. 7-209 the court reasoned:

"[The constable] who deposited the property with [Lincoln Moving & Storage] although acting lawfully in good faith and pursuant to a court order, did not have the authority and could not create a valid lien against the property. This is true even if he was acting as an involuntary bailee as [Lincoln Moving & Storage] contends. Republic of Austria v. H.G. Ollendorff, Inc., NY Sup Ct, Spec Term, NY Law J, p 2, 7 UCC Rep Serv 535; Nickolas v. Patrick, 51 MichApp 561, 215 NW2d 715, 14 UCC Rep Serv 761; General Motors Acceptance Corp. v. Sutherland 122 Neb. 720 . Statutorily created liens are to be strictly construed and should not be extended to cases not expressly within the statute. County Board of Supervisors of Platte Co. v. Breese, 171 Neb 37, 105 NW2d 478."

Id. at 1205 (emphasis supplied). The Cordle court also observed that Lincoln Moving & Storage might have prevailed had Nebraska adopted the 1966 editorial board amendment to U.C.C. 7-209(3) which could have created the existence of a warehouseman's lien under these circumstances if the depositor (constable) had been the legal possessor of the goods. Indiana also has not adopted the amendment which provides:

"A warehouseman's lien on household goods for charges and expenses in relation to the goods under subsection (1) is also effective against all persons if the depositor was the legal possessor of the goods at the time of deposit. 'Household goods' means furniture, furnishings and personal effects used by the depositor in a dwelling."

Id. at 1204. ¹ Moore and Green did not contract with Republic to store their property. As in Cordle, the small claims court constable removed Moore and Green's belongings once Braeburn Apartments obtained its judgment. The constable then deposited that property with Republic. Although the writ of restitution empowered the constable to take possession of the property, no warehouseman's lien was created in favor of Republic, inasmuch as Moore and Green never consented to the storage of their property, and they did not authorize the constable to deposit it with Republic. See Cordle, supra; see also Disch v. Raven Transfer & Storage Co. (1977), 17 Wash.App. 73, 561 P.2d 1097 (storage company was not entitled to a warehouseman's lien when it was shown that the bailor merely had legal possession of the owner's goods).

In a factually similar case, the Civil Court of New York City recently determined that a landlord could not create a lien on a tenant's furnishings in favor of a warehouseman by delivering those goods to the warehouseman for storage. In determining that the sale of the evicted tenant's goods had to be stayed, the court in Young v. Warehouse No. 2, Inc., (1989), 143 Misc.2d 350, 540 N.Y.S.2d 654, observed:

"UCC Sec. 7-206, 'Termination of Storage at Warehouseman's Option,' ² provides that a warehouseman may, on notifying interested parties, require payment of his charges and removal of the stored goods by the end of the agreed storage period or, if no period was agreed, by the end of a period of thirty days after receipt of notification. If not removed, the section continues, the goods may be sold in accordance with Sec. 7-210. ³ In eviction cases, it would appear that the period would usually be thirty days and that the tenant, at any time during the period could go to the warehouse and claim his possessions without having to pay any charges. If the tenant did so, the accumulation of warehouse charges would stop and the warehouseman might claim from the landlord all that was owed. If the tenant did not claim his furnishings, the warehouseman could, after the expiration of the thirty day...