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Bulard Air Services, LLC v. Brown Aviation, Inc.

Court of Appeals of Oklahoma, Division I

April 18, 2019

BULARD AIR SERVICES, LLC, an Oklahoma Limited Liability Company, and DONALD MCDANIEL, d/b/a MCDANIEL AVIATION, Plaintiffs/Appellees,
v.
BROWN AVIATION, INC., an Oklahoma Corporation, Defendant/Appellant.

          Mandate Issued: 07/17/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE LINDA MORRISEY, TRIAL JUDGE

          Noah Fontanez, DUNLAP, BENNETT & LUDWIG, PLLC, Tulsa, Oklahoma, for Appellant,

          Sam P. Daniel, III, SAM P. DANIEL, III, PLLC, Tulsa, Oklahoma, for Appellees.

          BRIAN JACK GOREE, CHIEF JUDGE

         ¶1 This is an action for replevin of an aircraft engine that was in the possession of a mechanic. The trial court issued its writ for immediate return of the property to the owner. We affirm the court's prejudgment order of delivery.

         BACKGROUND

         ¶2 Bulard Air Services, LLC, owns a Cessna 421, a twin-engine propeller aircraft. When Ron Bulard's pilot discovered the left engine had a crack in its crankcase, they hired Donald McDaniel to remove the engine from the plane so it could be repaired. McDaniel spoke to a mechanic named Larry Brown about the problem and eventually transported the engine and logbook to Brown Aviation, Inc. [1] The scope of the work to be performed by Brown and the terms for payment of his services are disputed. The agreement was not in writing.

         ¶3 Several months passed and Mr. Bulard contacted Mr. Brown about the status of the repair. Brown requested a deposit of $25, 000 but Bulard was unwilling to make a payment without the documentation he believed was reasonable. Brown was unwilling to complete the work without payment, nor would he agree to voluntarily return the engine because he claimed a possessory lien. Plaintiffs filed a petition for breach of contract, replevin and injunctive relief. Brown filed a counterclaim for payment of services for $29, 812.00

         ¶4 The trial court conducted a hearing and ruled in favor of Bulard. Brown was required to relinquish possession of the engine and Bulard was required to obtain a bond for $16, 000. The next day, Brown filed a motion to stay execution of the writ. The trial court granted the motion in part by (1) modifying the bond amount to $50, 000.00, (2) extending the deadline for Brown to release the engine, and (3) requiring Brown to document the components of the disassembled engine. Brown appealed.

         APPELLATE JURISDICTION

         ¶5 The appealed order addresses the writ of replevin. Brown proposes the order is appealable because it is an interlocutory order appealable by right. He argues it is an order modifying or refusing to vacate or modify a provisional remedy which affects the substantial rights of a party. Bulard counters that replevin is not a provisional remedy. [2]

         ¶6 "The Supreme Court may reverse, vacate, or modify any of the following orders of the district court, or a judge thereof... (2) An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party..." 12 O.S. §952 (b)(2) and 12 O.S. §993 (A)(3). For the reasons that follow, we agree with appellant that Bulard was asserting a provisional remedy in this action.

         ¶7 Identifying provisional remedies is more difficult in modern civil procedure where actions in equity and law are combined. [3] The term "provisional" comes from the former practice of allowing an ancillary suit in equity. Shadid v. Hammond, 2013 OK 103, ¶6, 315 P.3d 1008, 1010 (Edmondson, J., concurring). In the court of law a litigant who was particularly at risk of an inequitable loss was obliged to request the temporary relief provided for in chancery court. [4] Id. The district court now has authority to address all claims arising from a single transaction or set of circumstances, including an alleged need for prejudgment temporary relief. [5]

         ¶8 Replevin is an action to recover the possession of specific personal property. [6] The statutes allow for an expedited hearing to obtain an order for prejudgment delivery of the property. [7] This evidentiary hearing is preliminary in nature. Sweeten v. Lawson, 2017 OK CIV APP 51, ¶33, 404 P.3d 885, 895. Its purpose is only to determine who should have possession of the claimed property pending the final hearing. Id.

         ¶9 In Hutchings v. Cobble, 1911 OK 395, ¶2, 120 P. 1013, 1015, the Supreme Court cited Kansas authority which noted that a prejudgment delivery of personal property is a provisional remedy: "'The order for the delivery is ancillary. It is like an order of injunction, which may be the final judgment or provisional remedy'" Hutchings, at ¶6, quoting Batchelor v. Walburn, 23 Kan. 734 (Kan. Sup. Ct. 1880). [8]

         ¶10 A claimant who seeks possession of property before judgment is requesting temporary relief. The prejudgment order is contingent on security in the form of a bond because the court may re-transfer possession after a merits trial. [9] We hold that prejudgment delivery of specific personal property pursuant to 12 O.S. §1571 et seq. is a provisional remedy within the meaning of 12 O.S. §952 (b)(2) and 12 O.S. §993 (A)(3). [10]

         ¶11 Not all orders disposing of provisional remedies are reviewable. Appellate jurisdiction founded upon §952(b)(2) exists only where the order discharges, vacates, modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party. §952(b)(2). We must examine the effect of the appealed order to determine whether it is reviewable.

         ¶12 In the writ of replevin, Bulard was directed to execute an undertaking of $16, 000. A replevin bond was issued in that amount. Three days later, the court entered an order expressly modifying the amount of the bond to $50, 000. The appealed order modified a provisional remedy by significantly increasing the replevin bond that secured the prejudgment order of delivery.

         ¶13 The order also affected the appellant's substantial rights. Brown provided aircraft mechanic services on the engine pursuant to a voluntary agreement, and the property was in his possession. He disassembled it, obtained new or remanufactured component parts, and delivered an invoice to Bulard which has not been paid. The trial court noted that any security interest Brown may have is adequately protected by the bond. We conclude the August 4, 2017 order that modified the replevin bond pursuant to a prejudgment order of delivery is an interlocutory order appealable by right. It modified a provisional remedy that affected the substantial rights of a party.

         SUFFICIENCY OF THE PETITION

         ¶14 Brown argues that the order removing the engine from his possession should be reversed because Plaintiffs' petition failed to include all of the specific allegations set forth in §1571(A)(1) and it lacked the verification required by §1571(A)(2). These propositions require statutory construction which is an issue of law, and we review them de novo without deference to the trial court. Sweeten, ¶16.

         ¶15 A plaintiff seeking delivery of the property "at the commencement of the suit" must request immediate possession and include verified allegations about the property including its description, ownership, value, and wrongful detention without legal justification. [11] Brown correctly points out that Bulard's petition omitted the allegation of ยง1571(A)(1)(e), that the property was not taken in execution (or for a similar statutory justification). However, because the order for delivery was based on evidence at a hearing, and ...


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