Morris v. First Nat. Bank & Trust Co. of Ravenna
| Decision Date | 07 January 1970 |
| Docket Number | No. 69-183,69-183 |
| Parties | , 50 O.O.2d 47, 7 UCC Rep.Serv. 131 MORRIS, Appellant, v. The FIRST NATIONAL BANK AND TRUST CO. OF RAVENNA, Ohio, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. A motion for summary judgment should not be granted except where (1) no genuine issue as to any material fact appears from the documents filed with and in response to the motion, (2) the movant is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. (Section 2311.041, Revised Code.)
2. Section 2311.041(B), Revised Code, requires that all evidence submitted upon a motion for summary judgment be construed most strongly in favor of the party against whom the motion is made.
3. Fundamental public policy requires the discouragement of extrajudicial conduct which is fraught with the likelihood of resulting violence.
4. Breach of the peace, as that term is used in Section 1309.46, Revised Code, includes an act which is likely to produce violence, which reasonably tends to provoke or excite others to break the peace and which is not performed under judicial process.
5. Where a creditor legally enters upon the private premises of his debtor for the purpose of repossessing collateral security kept thereon and is (1) physically confronted by one in charge of such premises, (2) told to desist his efforts at repossession, and (3) instructed to depart from the premises, the refusal by the creditor to heed such commands constitutes a breach of the peace within the meaning of Section 1309.46, Revised Code, and such creditor thereafter stands as would any other person who unlawfully refuses to depart from the land of another.
The facts stated in appellant's brief, which appellee agrees are 'accurate and complete,' are that in 1965 appellee loaned appellant a sum of money to enable him to purchase a heavy duty rotary mower. Appellant executed a promissory note and security agreement in that transaction and thereafter failed to make the required payments. On April 13, 1966, one Clair Shields appeared at appellant's property to take possession of the mower pursuant to the security agreement. Appellant confronted him, refused to permit the mower to be removed, directed him to leave the premises and informed him that he was not to enter upon appellant's property again. On May 9, 1966, Shields returned, this time accompanied by one Earl Mizer and another of appellee's agents. The three men went upon appellant's property and informed appellant's son that they were there to reposess the mower. Appellant was not at home. The mower was outside, on the ground near a tool shed. The son's affidavit, filed in the cause below, states, in part:
'Affiant further says that he told Earl Mizer he was trespassing, and that he informed Earl Mizer that Willis Morris, his father, had previously ejected Clair Shields from the property and told him not to return to the property.
'Affiant further says that he told Earl Mizer and the two other persons that they should not take the lawn mower from the premises; that after making this statement, he was immediately surrounded by the other two men who were with Earl Mizer; that he continued to protest the taking of the mower, but that he did nothing further to stop them, because he was afraid of being beaten by the two men who accompanied Earl Mizer.'
Appellant thereafter filed the instant action for damages, based upon trespass and conversion. In due time, appellee moved for summary judgment on the basis of its security agreement. By way of interrogatories and affidavits, all of the above information was before the trial court upon the motion. Summary judgment was granted by the trial court and affirmed by a divided Court of Appeals. The cause is now before us pursuant to our allowance of a motion to certify the record.
DiPaolo & Kirkwood and Charles E. Kirkwood, Ravenna, for appellant.
Loomis, Jones, Poland, Wilson & Griffith and J. Philip Jones, Ravenna, for appellee.
Ohio's summary judgment statute, Section 2311.041, Revised Code, first became effective on November 9, 1959. The act was designed to relieve crowded court dockets of those cases which could be disposed of as a matter of law upon documents filed in the cause. It was hoped that the new law would eliminate the time-wasting process of calling a case before a court or jury, hearing opening statements or oral evidence, and then discovering that there was a complete failure of proof or simply no justiciable controversy before the court. However, recognizing our constitutional guarantee of trial by jury in specific cases, the General Assembly limited the granting of judgment under the statute to those cases where (1) no genuine issue as to any material fact appears from the documents filed with and in response to the motion, (2) the movant is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made.
As a further guideline for the avoidance of an encroachment upon the rights of litigants, the General Assembly very clearly stated:
'* * * the party against whom the motion for summary judgment is made is entitled to have such * * * (documents) construed most strongly in his favor.' (Section 2311.041(B), Revised Code.) (Emphasis added.)
Appellee cites our recent holding in North v. Pennsylvania Rd. Co. (1967), 9 Ohio St.2d 169, 224 N.E.2d 757, in support of his claim that summary judgment was correctly granted in the instant case. A careful reading of North shows that the court there spoke only of the use of summary judgment in 'proper' cases and where 'no genuine issue of fact exists.'
In view of the above discussion, it would appear that the motion in the case at bar should have been summarily overruled. However, appelle...
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