BULARD AIR SERVICES, LLC, an Oklahoma Limited Liability Company, and DONALD MCDANIEL, d/b/a MCDANIEL AVIATION, Plaintiffs/Appellees,
BROWN AVIATION, INC., an Oklahoma Corporation, Defendant/Appellant.
Mandate Issued: 07/17/2019
FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE
LINDA MORRISEY, TRIAL JUDGE
Fontanez, DUNLAP, BENNETT & LUDWIG, PLLC, Tulsa,
Oklahoma, for Appellant,
Daniel, III, SAM P. DANIEL, III, PLLC, Tulsa, Oklahoma, for
JACK GOREE, CHIEF JUDGE
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.
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.  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.
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
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.
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.
"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.
Identifying provisional remedies is more difficult in modern
civil procedure where actions in equity and law are combined.
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.  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. 
Replevin is an action to recover the possession of specific
personal property.  The statutes allow for an expedited
hearing to obtain an order for prejudgment delivery
of the property.  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.
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).
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.
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). 
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.
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.
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.
OF THE PETITION
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.
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.  Brown correctly points out that
Bulard's petition omitted the allegation of
§1571(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 ...