Morris v. First Nat. Bank & Trust Co. of Ravenna, No. 69-183

• Court: United States State Supreme Court of Ohio
• Writing for the Court: HERBERT; TAFT; SCHNEIDER
• Citation: 50 O.O.2d 47,21 Ohio St.2d 25,7 U.C.C.Rep. 131,254 N.E.2d 683
• 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.
• Decision Date: 07 January 1970
• Docket Number: No. 69-183

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21 Ohio St.2d 25 254 N.E.2d 683, 50 O.O.2d 47, 7 UCC Rep.Serv. 131 MORRIS, Appellant,
v.
The FIRST NATIONAL BANK AND TRUST CO. OF RAVENNA, Ohio, Appellee. No. 69-183. Supreme Court of Ohio. Jan. 7, 1970.

[254 N.E.2d 684] 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

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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 [254 N.E.2d 685] 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

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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...