VALENTINO
v.
OAKLAND COUNTY SHERIFF
VALENTINO
v.
OAKLAND COUNTY TREASURER
Docket Nos. 74691, 75239. (Calendar Nos. 9, 10).
Supreme Court of Michigan.
Argued November 12, 1985. Decided January 21, 1986.Fred L. Harris, P.C. (by Fred L. Harris), for the plaintiffs.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by William P. Hampton and Lanie Anderson) for defendant Oakland County Sheriff.
Jack C. Hays, Corporation Counsel, for defendants Oakland County agents.
RILEY, J.
Valentino v Oakland Co Sheriff, 134 Mich App 197; 351 NW2d 271 (1984), is an appeal from a Court of Appeals decision affirming an Oakland Circuit Court judgment awarding damages to the plaintiffs for the defendant sheriff's failure to seize property pursuant to a writ of execution.
Valentino v Dohany, 138 Mich App 94; 359 NW2d 263 (1984), is an appeal from a Court of Appeals decision affirming an Oakland Circuit Court denial of a writ of mandamus pursuant to MCL 600.6093(3); MSA 27A.6093(3), to endorse payment of a judgment entered in Valentino v Oakland Co Sheriff, supra.
I
FACTS
On September 27, 1974, and November 24, 1974, default judgments were entered in favor of the plaintiffs against Peter Lazaros and the Lazaros trust. These judgments totaled $550,000 against Lazaros individually and $850,000 against the Lazaros trust. Several efforts to enforce the judgments followed and, after Lazaros failed to appear for a creditor's examination, a bench warrant for his arrest was ordered on February 19, 1976. On March 26, 1976, plaintiffs filed a petition for writ *314 of superintending control directing the defendant sheriff to execute the bench warrant. Lazaros was admitted to a local hospital on April 18, 1976, and three days later was taken into custody, pursuant to the bench warrant, by placing a rotating sheriff's guard at his hospital room. A hearing was scheduled for May 10, 1976, on the sheriff's motion to release himself from the obligation of bringing Lazaros before the court until a determination was made that Lazaros was physically able to appear. A writ of execution against Lazaros' property and the Lazaros trust was issued and delivered to the Oakland County Sheriff's Office on May 3, 1976. The writ ordered seizure of certain items of jewelry allegedly held in Lazaros' hospital room and a 1972 Cadillac.[1]
On May 6, 1976, the undersheriff directed the removal of the hospital room guard pursuant to a letter to the circuit court judge from the Oakland County Prosecuting Attorney.[2] Execution was not made on any of the alleged items of jewelry in the hospital room before the guard was removed. On May 7, 1976, the sheriff was advised by the hospital *315 security director that Lazaros was leaving, and the sheriff directed the hospital to permit his departure. Lazaros did in fact leave the hospital on May 7, 1976, and apparently went to a hospital in Cleveland, Ohio.
On May 19, 1976, plaintiffs filed a complaint alleging misfeasance and malfeasance on the part of the sheriff and misfeasance on the part of the county as the sheriff's employer. Damages were sought in the full amount of the default judgments against Lazaros and the Lazaros trust in addition to punitive damages sought against the sheriff. Finding that the plaintiffs had failed to meet the burden of establishing that Lazaros actually possessed the property sought to be seized, or of proving its value, the trial court dismissed the plaintiffs' claim against the sheriff. Also, pursuant to the constitutional restriction against county liability for a sheriff's acts, the claim against Oakland County was dismissed.[3]
On appeal, the Court of Appeals affirmed dismissal of the claim against the county, but reversed the dismissal of the claim against the sheriff. Valentino v Oakland Co, unpublished opinion per curiam, decided August 12, 1981 (Docket No. 52781). The Court of Appeals held that once a plaintiff establishes that a sheriff failed to levy a writ of execution the plaintiff is entitled to recover the full amount of the final judgment, and the burden is on the sheriff to prove that his failure to levy was excused (i.e., establish the nonexistence of the property sought to be levied upon.) Thus, the Court of Appeals remanded the case for trial on *316 the issue whether the sheriff was negligent in failing to restore the guard to the hospital room on May 7, 1976. This Court denied the defendant's interlocutory application for leave to appeal. 412 Mich 876 (1981).
At the March 15, 1982 trial on remand, on the basis of stipulations of counsel, the trial court found, inter alia, that the guard was removed from Lazaros' hospital room at the direction of the undersheriff who was acting pursuant to his authority as second in command to the sheriff, that the sheriff had no personal knowledge of the guard's removal on May 6, 1976, and that Lazaros' hospital room was not searched from the time he was under guard until he was released from the hospital. On the basis of the findings, the trial court held that the undersheriff was negligent in removing the guard from Lazaros' hospital room and that the sheriff was vicariously liable for the acts of his undersheriff. On March 22, 1982, the court issued a written opinion (supplementing its prior oral opinion) finding the sheriff negligent, through his undersheriff who acted in his place, for disregarding an order of the court in releasing Lazaros from custody and thus depriving the plaintiffs of the opportunity to determine if any assets were available to satisfy the plaintiffs' default judgments. Judgment against the sheriff was entered March 23, 1982, awarding plaintiffs $2,247,000 including interest. Defendant filed a claim of appeal with the Court of Appeals on April 9, 1982.
On April 12, 1982, plaintiffs filed a postjudgment motion in the trial court to modify the court's findings of fact. Plaintiffs asked the court to delete its earlier finding that the sheriff had no prior knowledge of the guard's removal and sought a determination that the sheriff was negligent in *317 failing to execute the bench warrant and in failing to levy the writ of execution.
On November 10, 1982, following evidentiary hearings, the trial court entered written findings of fact and conclusions of law. The trial court found, inter alia, that the sheriff had personal knowledge on May 7, 1976, that Lazaros was intending to leave the hospital, that the sheriff failed to take Lazaros into custody as required by the February 19, 1976, bench warrant and the April 21, 1976, court order, that the sheriff's act of permitting Lazaros to leave the jurisdiction on May 7, 1976, was a wrongful and intentional act, even though it was made in reliance of advice of counsel, that while the sheriff did not have personal knowledge of the existence of the writ of execution on May 7, 1976, he had legal notice of the writ, and that the sheriff was vicariously liable for the negligence of his undersheriff in removing the guard on May 6, 1976. Final judgment was entered on December 2, 1982, affirming the March 23, 1982, judgment as modified.
In defendant's appeal after remand, the Court of Appeals affirmed the judgment of the trial court, holding, inter alia, that the sheriff was directly liable for his failure to restore the guard to Lazaros' hospital room on May 7, 1976, thus allowing Lazaros to leave before a search of his room was conducted, that the sheriff had the burden of proving the nonexistence of the property subject to the writ of execution, and that the burden of proof was on the sheriff to establish that the plaintiffs had failed to mitigate damages.
The sheriff thereafter filed an application for leave to appeal with this Court which we granted April 5, 1985.[4]
*318 II
ISSUES
We agree with the Court of Appeals affirmation of the trial court's conclusion that the sheriff was directly liable for his failure to restore the guard to Lazaros' hospital room on May 7, 1976, thus allowing Lazaros to depart before the room was searched. In affirming the trial court judgment, the Court of Appeals quoted the following language from the trial judge's opinion:
"The decision of the defendant, Johannes Spreen, not to restore the guards at the hospital room of Peter Lazaros was wrongful. The sheriff was under the direct orders of this court as evidenced by the bench warrant of February 19, 1976, and the ruling of April 21, 1976. Upon arresting any defendant on a bench warrant, it is the express duty of the sheriff to detain him in his custody until the court orders otherwise. MCL 600.1735; MSA 27A.1735.
* * *
"Defendant was aware of his duty and of the outstanding orders. Defendant was the respondent in litigation to compel the performance of his duty. Defendant's decision not to restore the guards was made on the eve of an evidentiary hearing to determine whether Peter Lazaros could be safely moved and brought before the court. There is no justifiable reason why the defendant should have contemplated refusing to follow the orders of this court. Consequently, the defendant's decision not to re-arrest Peter Lazaros was without lawful excuse.
*319 * * *
"Although defendant, Johannes Spreen did not have personal knowledge of the existence of the writ of execution until after the commencement of this present suit, he should have known and consequently must be charged with knowledge of the existence of that writ.
* * *
"Since March 26, 1976, when the defendant was named as the respondent on plaintiffs' petition for writ of superintending control, he had notice that Peter Lazaros was subject to arrest on civil process. He was also on notice that the civil process issued for the failure of Peter Lazaros as a judgment debtor to appear for discovery. From March 26, 1976, through May 10, 1976, defendant was actively engaged, through counsel, in proceedings to determine his obligation with respect to that outstanding civil process. Given the nature of the outstanding process, defendant's active involvement in litigation to enforce that process and the length of time, defendant, Johannes Spreen, had a duty to check the records of the civil division for outstanding writs of execution. Having failed to make that obvious investigation he must be charged with knowledge that a writ had in fact been received by the office of the sheriff."
Thus, the Court of Appeals concluded:
The [trial] court did not err in holding that Sheriff Spreen should reasonably have foreseen that his failure to maintain Lazaros in custody, in disobedience of court orders, would likely result in Lazaros's leaving the jurisdiction of the court and hence, the inability to seize property pursuant to the writ of execution.
* * *
We conclude that the trial court did not err in holding Sheriff Spreen directly liable for his failure *320 to restore Lazaros to custody on May 7, 1976.[[5]] [Valentino, supra, 209-212.]
The Court of Appeals decision is in accord with Michigan law which provides for a sheriff's liability if he permits an incarcerated party to leave confinement before discharge according to law. MCL 600.1735, 600.6083; MSA 27A.1735, 27A.6083.[6] We agree that the facts in this case demonstrate that the sheriff was directly responsible for allowing Lazaros' departure from confinement on March 7, 1976, before the trial court so ordered.
This Court held in Butcher v Lovitt, 280 Mich 369, 372; 273 NW 734 (1937), that the confinement of a judgment debtor in a hospital for an emergency appendectomy after transfer from a county jail (where the judgment debtor was in custody under a writ of capias ad satisfaciendum) was the same as being imprisoned in jail as required by the statute in question, 1929 CL 14756 (now incorporated *321 into 1961 PA 236, § 6082, MCL 600.6082; MSA 27A.6082).[7] This Court believes that the rotating guard placed at Lazaros' hospital room, pursuant to the bench warrant entered on February 19, 1976, and the court order of April 21, 1976, is the equivalent of being jailed for the purposes of MCL 600.6083(1); MSA 27A.6083(1). But for Lazaros' medical problems, he would in fact have been in jail pursuant to the contempt order issued upon his failure to appear for the discovery hearing. Thus, we agree with the Court of Appeals determination that the sheriff was directly liable for allowing Lazaros to leave custody before the room was searched.
We disagree, however, with the Court of Appeals determination in the instant appeal that the defendant had the burden of proving the nonexistence of property subject to levy. In the initial appeal to the Court of Appeals, a different panel addressed this same issue and held:
"[A] plaintiff who shows that a sheriff has failed to levy a writ of execution has established a prima facie case and is entitled to recover the full amount of the prior final judgment. Dunphy v People for Use of Whipple, 25 Mich 9, 12 (1872); People for Use of Springett v Colerick, 67 Mich 362, 368-370; 34 NW 683 (1887). While the sheriff may excuse his failure to enforce a levy, primarily upon showing the property sought for execution does not exist, Dunphy, supra, he bears the burden *322 of proving such an excuse. Coville v Bentley, 76 Mich 248, 250; 42 NW 1116 (1889); Beard v Clippert, 63 Mich 716; 30 NW 323 (1886)." Valentino v Oakland Co, supra, 208.
Citing this language, the Court of Appeals then affirmed the previous panel's determination, holding that because the issue raised in the present appeal was the same as the issue raised in the previous appeal, the law of the case doctrine applied and the prior ruling was dispositive. While the second Court of Appeals panel may have been bound by the previous Court of Appeals decision pursuant to the law of the case doctrine, we believe the first Court of Appeals panel applied case law clearly distinguishable from the facts presented in this proceeding and thus was in error.[8]
In Dunphy, supra, a writ of execution was issued upon a judgment obtained in a suit commenced by attachment wherein the sheriff levied upon the same lands within the county that had been subject to the attachment. However, the sheriff failed to ever make a proper return of the execution. This Court stated that
[w]here the sheriff fails to return an execution, the debt is assumed to be lost, and the execution creditor is prima facie entitled to recover of him the full amount. But the sheriff is nevertheless allowed to make the one excuse for not performing his duty that however faithfully he might have endeavored to do so, the effort would have been *323 ineffectual because the defendant had no property from which the money could be made. [25 Mich 12.]
The sheriff had argued that his effort would have been ineffectual because the judgment debtor had transferred the lands in question and thus there was no property from which the judgment could have been satisfied. In answer to the sheriff's argument, this Court stated that "[i]t would be absurd to say that the sheriff is excused by impracticability of collecting a debt when he has already obtained satisfaction of it." Dunphy, supra, 13. The case was subsequently decided in favor of the plaintiff and damages were assessed at the full amount of the execution with interest.
In Springett, supra, the Lapeer County Sheriff was given a writ of attachment on certain real estate. However, the sheriff delayed in his enforcement of the writ and consequently lost the opportunity to collect anything on the judgment. This Court approved a jury instruction that said, as in Dunphy, that "`the measure of damages is prima facie the amount of his judgment and costs, with interest thereon from the date of the judgment.'" Springett, supra, 370.
In Coville, supra, a constable levied upon certain goods pursuant to a suit commenced by attachment, but later returned them against the protest and without the consent of the plaintiff. The officer testified that the goods levied upon were exempt, and thus it would have been of no benefit to the plaintiff to sell them under the execution because the sale would be void. This Court explained that "[t]he defense that there was no property to be found liable to seizure, of the judgment debtor named in the execution, is always open to the officer, whether idemnified [sic] or not, and is a *324 good excuse in an action for refusal or neglect to levy." Coville, supra, 250.
Finally, in Beard, supra, the Wayne County Sheriff was given a writ of attachment on certain goods and lands which clearly existed and were pointed out to him. The officer made no effort to levy upon the goods and later filed a return stating that he was unable to find any of the property. The plaintiffs then brought an action against the sheriff to recover damages on account of his neglect and failure to serve the writ. This Court ruled that the sheriff was obliged to levy the property in debt, and "[n]eglecting that, it was incumbent, when sued for failure so to do, to show, by satisfactory evidence, that the property upon which he was directed to levy, and for which he had received indemnity, was not the property of defendants in the writ of attachment, or of either of them." Beard, supra, 719.
In each of the aforementioned cases, the plaintiff's original suit was begun by attachment and the property upon which the sheriff failed to levy was specifically identified and proved to be in existence. Conversely, in this case, the writ of execution was not issued upon a judgment obtained in a suit commenced by attachment but, rather, following a default judgment entered in favor of the plaintiffs and against Peter Lazaros and the Lazaros trust. Moreover, there is no record evidence indicating the amount or value of property claimed to be in the hospital room of the judgment debtor. From the time the writ of execution was issued on May 3, 1976, and throughout the instant proceedings, the allegation of the existence of property in the hospital room of Lazaros has remained unsubstantiated. Further, a dollar value of the alleged property was never established. In fact, the only "evidence" of any property *325 rests solely on what the plaintiffs were "informed and believe."
This Court cannot agree, therefore, that the defendant sheriff must prove the nonexistence of property where the plaintiffs have yet to establish the existence of property. While the late nineteenth-century cases relied on by the Court of Appeals in Valentino, supra, i.e., Dunphy, Springett, Coville and Beard, are cited for the principle that the measure of damages is the full amount of a plaintiff's judgment where the sheriff fails to enforce a levy, this Court is not persuaded that this accurately characterizes the holding in any of these cases. Additionally, and more importantly, the cited cases addressed circumstances where the existence of the property that was not levied upon was known and the value of the property was known or ascertainable. Thus, we do not believe that those cases are dispositive of the issue raised in this case because the threshold issue of the existence of property in Lazaros' hospital room was never established.
Finally, in light of our disposition of the foregoing issues, this Court need not address the issue of which party bears the burden of proving mitigation of damages.
III
CONCLUSION
We therefore affirm the Court of Appeals holding of the sheriff's direct liability for failure to restore the guard to Lazaros' hospital room on May 7, 1976, thus allowing Lazaros to leave before a search of the room was conducted. However, we reverse the Court of Appeals decision placing the burden of proof on the sheriff to prove the nonexistence of property subject to levy. We reinstate, *326 therefore, the trial court order entered July 7, 1980, dismissing plaintiffs' complaint.
Our decision in this case renders it unnecessary for us to decide the issues raised in Valentino v Oakland Co Treasurer.
No costs, a public question being involved.
WILLIAMS, C.J., and LEVIN, BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with RILEY, J.
ARCHER, J., took no part in the decision of this case.
NOTES
[1] The 1972 Cadillac was later determined not to be registered to Peter Lazaros.
[2] The letter is set forth in Valentino, supra, 201, n 2.
"`Dear Judge Thorburn:
"`I have advised Undersheriff John Nichols that it is not necessary for him to maintain an around the clock security guard over Peter Lazaros while the latter is confined to the hospital. I am further advised that my instructions to Undersheriff Nichols represents your thinking in this matter.
"`The removal of the guards is solely my responsibility. If there are any questions regarding this recent action, please do not hesitate to contact me personally.
"`Very truly yours, /s/ "`L. Brooks Patterson "`Prosecuting Attorney'"[3] "The sheriff may be required by law to renew his security periodically and in default of giving such security, his office shall be vacant. The county shall never be responsible for his acts, except that the board of supervisors may protect him against claims by prisoners for unintentional injuries received while in custody. He shall not hold any other office except in civil defense." Const 1963, art 7, § 6.
[4] "On order of the Court, the application for leave to appeal is considered, and it is granted.
"It is further ordered that this case be argued and submitted to the Court together with the case of Valentino v Dohany (Docket No. 75239), one immediately following the other, at such future session of the Court as both cases are ready for submission."
[5] The sheriff also argued that he could not be held vicariously liable for the acts of his undersheriff pursuant to MCL 51.70; MSA 5.863, which states in part:
"A sheriff shall not be responsible for the acts, defaults and misconduct in office of a deputy sheriff."
We find it unnecessary, as did the Court of Appeals, to decide the issue of vicarious liability because of this Court's determination that the sheriff was directly liable for his own wrongful acts.
[6] "Upon arresting any defendant, on a bench warrant, to answer for any alleged misconduct, the sheriff shall keep such person in his actual custody, and shall bring him personally before the court issuing the warrant, and shall keep and detain him in his custody, until such court orders otherwise, or until the defendant is entitled to be discharged on bond." MCL 600.1735; MSA 27A.1735.
"(1) All prisoners committed on civil process shall be actually confined in jail until discharged according to law; and if any sheriff or keeper of jail permits any prisoner to leave confinement before such time, such sheriff or keeper is liable to the judgment creditor for the damages sustained and shall be guilty of a misdemeanor.
"(2) But if the prisoner is returned to custody before commencement of an action based on the liability herein described, then such liability shall be null and void." MCL 600.6083; MSA 27A.6083.
[7] "Whenever in any civil action, any person shall be committed to any jail in default of bail, or by virtue of an execution issued or proceeding founded on a judgment rendered in such suit, the plaintiff or defendant at whose instance such person shall be so imprisoned, shall pay, on demand, to the sheriff or the keeper of the common jail of the county, the expenses of the board and keeping of such person so imprisoned; and the said sheriff or keeper of said jail shall not be required to retain such person any longer in jail than such expenses of said board and keeping shall be paid in advance; nor shall any expenses constitute any charge against the county." 1929 CL 14756.
[8] Plaintiffs also argue that this Court is restricted in its determination of the issues on this appeal by the doctrine of the law of the case pursuant to our previous denial of an interlocutory appeal by leave on December 1, 1981. We conclude that the law of the case doctrine does not apply in this instance. While leave to appeal was denied on issues previously presented, denials of leave to appeal do not constitute rulings on their merits. Frishett v State Farm Ins Co, 378 Mich 733-734 (1966); Tebo v Havlik, 418 Mich 350, 379; 343 NW2d 181 (1984) (LEVIN, J., dissenting).