State v. Penrod

• Decision Date: 02 July 1992
• Docket Number: No. 91,91
• Citation: 81 Ohio App.3d 654,611 N.E.2d 996
• Parties: The STATE of Ohio, Appellee, v. PENROD, Appellant. CA 1986.
• Court: Ohio Court of Appeals

Page 654

81 Ohio App.3d 654

611 N.E.2d 996

The STATE of Ohio, Appellee, v. PENROD, Appellant.

No. 91 CA 1986.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided July 2, 1992.

Lynn Alan Grimshaw, Pros. Atty., and R. Randolph Rumble, Asst. Pros. Atty., Portsmouth, for appellee.

James Scott Smith and Charles E. Smith, Portsmouth, for appellant.

PER CURIAM.

This is an appeal from a judgment entered by the Scioto County Court of Common Pleas denying the motion of Leonard Penrod, movant below and appellant herein, for an award of postjudgment interest. ¹ Appellant assigns the following errors for our review ²:

I. "In an action commenced pursuant to former [R.C.] 2933.41 the action is civil in form and [the] real party in interest is the person or entity that ultimately receives or attempts to receive the item subject to the action not the State of Ohio."

II. "Pursuant to Ohio Revised Code Section 1343.03, the Appellant, Leonard Penrod, is entitled to interest upon the judgment entry entered by the Court of Appeals, Scioto County, Ohio, on January 15, 1985."

III. "The Constitutions of the United States of America and the State of Ohio demand that private property of persons shall be inviolate and that when property is seized compensation shall be made to the owner thereof by virtue of the Fourteenth Amendment to the United States Constitution and Sections 16 and 19, Article I, of the Constitution of Ohio."

IV. "If property is not lost, stolen or abandoned, is not alleged to have been used or obtained illegally, and has been found to not be subject to forfeiture, the continued deprivation of the owner's use, control, and possession of said property amounts to an appropriation of said property and the rightful owner thereof is entitled to interest thereon, pursuant to ORC 163.17, and the Ohio Constitution."

V. "Pursuant to the general constitutional law and the statutes of the State of Ohio, when a prosecuting attorney comes into possession of money that has been judicially determined to not be lost, stolen, or abandoned, is not alleged to have been used illegally and is not subject to forfeiture, the person from whom said money was taken is entitled to interest on the sum of money from the date of the judgment that determined the disposition of the money." (Numbering by the court.)

This appeal represents yet another episode in the long-standing conflict between appellant and the offices of the Prosecuting Attorney for Scioto County. A brief summary of the events leading up to this particular appeal is as follows.

On April 21, 1982, appellant was arrested in Wheelersburg, Ohio, and charged with trafficking in drugs. The following day, a suitcase was seized from appellant's room at the Days Inn Motel. On April 23, 1982, a search warrant was issued and $14,665 in cash was found inside the suitcase. Appellant disclaimed any interest in this money, but pled guilty to trafficking in marijuana. The trial court sentenced appellant to one to ten years of imprisonment and then later released him on shock probation.

On May 21, 1982, the state filed a motion to dispose of the property which had been seized at the time of appellant's arrest. On July 16, 1982, appellant filed a motion to recover property which had been seized from him after his arrest including, inter alia, the money that was in the suitcase. ³ The trial court found that appellant had no right to recover the money from the suitcase but, on the other hand, the state had not fully complied with the statutory procedures for disposing of the property. Both sides renewed their respective motions later that year and, on December 6, 1982, the trial court entered judgment sustaining the state's motion to dispose of the property.

In State v. Penrod (Dec. 19, 1984), Scioto App. No. 1448, unreported, 1984 WL 5700 (hereinafter referred to as "Penrod I "), we reversed and held that the state had not shown that it was lawfully entitled to such money. Thus, we remanded the action with instructions to the lower court to order the release to appellant of all monies then held by the Scioto County Prosecuting Attorney.

The prosecutor misinterpreted our mandate in Penrod I and returned only $2,020 of the money which had been seized. In so doing, the prosecutor argued that the remainder had already been spent on the purchase of certain items to combat drug trafficking and, therefore, was no longer being held by him. Thus, the prosecutor concluded, the money which had already been spent was not subject to our ruling in Penrod I. Appellant then commenced a conversion action against the prosecuting attorney for those monies which had already been spent. Although the trial court dismissed the action for lack of subject matter jurisdiction, we reversed that judgment and remanded the case for consideration on the merits. See Penrod v. Scioto Cty. Pros. Atty. (Mar. 14, 1988), Scioto App. No. 1633, unreported, 1988 WL 33005 (hereinafter referred to as "Penrod II ").

Upon remand, both parties filed motions for summary judgment with supporting memoranda. On September 26, 1988, the trial court found in favor of appellant and entered summary judgment in his favor. On April 11, 1989, appellant renewed a motion which had previously been made in 1984 requesting the court to order the return of all money seized from appellant on the basis of our prior holding in Penrod I. Although the trial court had never ruled on the first such request, the second motion was granted on April 20, 1989.

The above noted judgments were reviewed by this court in the consolidated appeal of Penrod v. Scioto Cty. Pros. Atty. (Apr. 3, 1990), Scioto App. Nos. 1771 and 1818, unreported, 1990 WL 42285 (hereinafter referred to as "Penrod III and IV "). In this last case, we held that there had been no actual conversion of the seized money by the Scioto County Prosecutor and, therefore, the summary judgment granted to appellant on that issue should be reversed. Nevertheless, we ruled that the trial court had correctly ordered the state to return all monies seized from appellant pursuant to our mandate in Penrod I. Although the Ohio Supreme Court initially agreed to hear an appeal of this decision, (1990), 54 Ohio St.3d 715, 562 N.E.2d 162, the appeal was later dismissed sua sponte as having been improvidently allowed, Penrod v. Scioto Cty. Pros. Atty. (1991), 59 Ohio St.3d 602, 571 N.E.2d 436. It would appear from the record, as well as the briefs filed herein, that the prosecuting attorney has complied with our previous order and returned the seized money to appellant.

On May 20, 1991, appellant filed a motion below requesting that he be awarded postjudgment interest on the $12,645 in seized money from the date of our judgment in Penrod I. ⁴ The state filed a memorandum in opposition to appellant's motion and, on June 28, 1991, the trial court entered judgment denying such relief on the grounds that interest would not accrue on a mere order to return seized property and, in any event, could not accrue against the state of Ohio. This appeal followed.

We begin by considering, out of order, appellant's second assignment of error, wherein he presents the argument that the trial court erred in not granting him postjudgment interest on the seized money from the date of our original judgment in Penrod I. The issue of whether a party is entitled to postjudgment interest on property seized for forfeiture, and later ordered to be returned, appears to be a novel one. Neither party has cited any authority of law directly relating to this issue and we have found none in our own research. Thus, our analysis begins with certain fundamental principles.

It is well settled that, at common law, judgments did not bear interest. Cleveland Ry. Co. v. Williams (1926), 115 Ohio St. 584, 586, 155 N.E. 133, 133; Neil v. Bank (1883), 50 Ohio St. 193, 33 N.E. 720; Marietta Iron Works v. Lottimer (1874), 25 Ohio St. 621, 627. Thus, if any interest is to be payable on a judgment, it must be provided for by statute. See Merchant's Finance Co. v. Goldweber (1941), 138 Ohio St. 474, 475, 35 N.E.2d 779, 780. Appellant relies herein on the statutory interest provisions of R.C. 1343.03(A), which provide, in pertinent part, for interest at the rate of ten percent per annum upon all judgments, decrees and orders of a judicial tribunal for the payment of money arising out of a contract or other transaction. Essentially, appellant argues that the seizure and the forfeiture proceedings below constitute an "other transaction" and, given that the repayment order was for $12,645 in cash, he is entitled to postjudgment interest under R.C. 1343.03(A). We disagree.

To begin, statutes providing for the accrual of interest on judgments are directed at judgments in personam rather than judgments in rem. 45 American Jurisprudence 2d (1969) 58, Interest and Usury, Section 60. ⁵ It is well settled in Ohio that a statute providing for the forfeiture of seized property is an in rem proceeding against the property itself. Ohio Dept. of Natural Resources v. Prescott (1989), 42 Ohio St.3d 65, 66-67, 537 N.E.2d 204, 205-206; Sensenbrenner v. Crosby (1974), 37 Ohio St.2d 43, 45, 66 O.O.2d 106, 107, 306 N.E.2d 413, 415; Findlay v. Assoc. Invest. Co. (1926), 115 Ohio St. 235, 241, 152 N.E. 903, 905. Thus, the statutory provisions in Ohio for accrual of interest on judgments would not appear to apply in the context of an order to return property which had previously been seized for forfeiture.

The accrual of postjudgment interest under R.C. 1343.03(A) is allowable on judgments arising from, among other things, tortious conduct or breach of contract or some other transaction. By their very nature, judgments arising from a tort action (e.g., negligence, trespass, etc.) or a breach of contract action are going to be directed at a specific individual or entity which is then personally liable thereon. Accordingly, such judgments will be in...