I respectfully dissent from the judgment and opinion sustaining appellant's assignments of error and reversing the judgment entered by the court below which overruled appellant's motion for amercement pursuant to R.C. 2707.01. Appellant's first assignment of error asserts that the judgment of the trial court overruling her motion to amerce Sheriff Dixon was against the manifest weight of the evidence.
As noted in the majority opinion, an appellate court will not reverse the judgment of a lower court as being against the manifest weight of the evidence where that court's judgment is supported by some competent, credible evidence going to all the essential elements of the case. Vogel v. Wells (1991), 57 Ohio St.3d 91,96, 566 N.E.2d 154, 158. Furthermore, it should be emphasized that a reviewing court should be guided by the presumption that the findings of a trial court are correct, since the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use their observations in weighing the credibility of the proffered testimony. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138,566 N.E.2d 1181, 1184.
In sustaining appellant's first assignment of error, the majority opinion engages in a lengthy discussion which essentially holds that lack of injury to a judgment creditor engendered by an officer's failure to carry out a writ of execution does not constitute a defense to an R.C. 2707.01 amercement action. Initially, it should be noted that in this court's prior opinion in this matter, in which the undersigned did not participate, it was explicitly stated that "[t]he party opposing the motion [sic] to amerce may, however, present adefense negating the existence of injury, bad faith, and lack of return in an effort to convince the court the case does not fall within the spirit of the amercement statute." (Emphasis added.)Rodgers v. Rodgers (July 25, 1989), Pike App. No. 420, unreported, at 4-5, 1989 WL 86268. By misadvising the trial court that lack of injury might be relevant to proving an amercement defense, we placed that court in a confusing and difficult position. By now holding that lack of injury is not an appropriate defense pursuant to R.C. 2707.01 and Moore v.McClief (1864), 16 Ohio St. 51, we have effectively overruled the language in our prior opinion without explicitly stating so.
Secondly, it should be noted that Ohio's amercement statute appears to be strictly drafted in that it requires that an officer liable in amercement "shall be amerced in the amount of the judgment * * *." R.C. 2707.01. Conversely, other jurisdictions have statutorily limited recovery in amercement actions to "the amount of * * * loss and damage to and for the use of the judgment *Page 586 creditor." See, e.g., Vitale v. Hotel California, Inc. (1982),184 N.J. Super. 512, 446 A.2d 880. Modern jurisprudence, progressive concepts of equity, causation, and damages all support the latter amercement rationale in limiting recovery of damages to those losses which, but for the officer's misfeasance or nonfeasance, would not have been suffered by the judgment creditor. To hold otherwise results in an unnecessary windfall to the judgment creditor, notwithstanding the penal nature of the statute. However, given the holding in Moore, supra, as well as the explicit language of R.C. 2707.01, I agree that absent legislative amendment of the "amount of judgment" language of R.C. 2707.01, or a contrary holding by the Ohio Supreme Court, lack of injury will not constitute a viable defense to an amercement action in Ohio.
Nevertheless, although the majority opinion inexplicably limits its reversal to a discussion of the "lack of injury" defense, a review of the record in the case at bar indicates that the trial court's February 2, 1990 judgment entry was not solely premised upon an erroneous reliance on that defense. Indeed, the trial court stated as follows in its February 2, 1990 judgment:
"In this case, for whatever reason, there was no exemption hearing held. The only hearing was held on October 30, 1987, which was well past the 60 days in which the sheriff had to return the writ of execution. ORC 2329.53. Though he probably should not have returned possession to Rodgers without requiring some sort of bond (ORC 2329.12), given all the circumstances, the sheriff's confusion about the procedure to follow is understandable.
"Based upon the foregoing, this court cannot say that the sheriff acted unreasonably under all the circumstances. Therefore, plaintiff's motion for amercement is denied."
The trial court therefore relied upon a good faith defense in overruling appellant's amercement action. Again, it should be recognized that in this court's prior opinion, Rodgers, supra, it was stated that a party opposing an amercement action may present a defense negating the existence of injury, bad faith, and lack of a return to persuade the lower court that the case does not fall within the spirit of the amercement statute, citing two Ohio Supreme Court cases for this proposition. However, neither of the cases cited in our prior opinion specified these as elements necessary to prove a defense to amercement. In fact, only the nonbinding decision of the Tuscarawas County Court of Common Pleas in Mine Safety Appliances Co. v. Best (C.P. 1947), 36 O.O. 361, 49 Ohio Law Abs. 552, 76 N.E.2d 108, has held this to constitute a defense to amercement. Even that court did not hold that satisfaction of all three of those elements was theonly way to present a viable defense to an amercement action. Consequently, I am not persuaded that a good faith defense is precluded in the context of statutory amercement actions, particularly in light of the Ohio Supreme Court's rather nebulous requirement that *Page 587 such action must come within the "spirit" as well as the "letter" of the amercement statute. Sheriff Dixon explicitly relies upon the argument that he "substantially complied with his duties and he acted in a manner consistent with good faith."
In short, unlike the lack of injury defense, I am persuaded that neither Moore, supra, nor R.C. 2707.01 precludes a good faith defense to an amercement action where the uncontroverted evidence indicated that the officer's failure to retain property and proceed with other aspects of execution, i.e., sale and distribution of proceeds, was based upon his understanding that he could not proceed with execution until the request for exemption hearing had been held and the debtor's exemption claims resolved. Considering the apparent vagaries of the law concerning such issue and in further light of such cases such asClay, supra, which notes that the risk of harm from erroneous deprivation of a person's automobile and tools of trade, i.e., the partial exemptions, may be substantial, the trial court did not err in determining that Sheriff Dixon's good faith belief took him outside the "spirit" of the R.C. 2707.01 amercement statute. Based on the foregoing, appellant's first assignment of error should be overruled.
Appellant's second assignment of error relates to the alleged improper reliance on Clay, supra. Since I am persuaded, pursuant to my disposition of appellant's first assignment of error, that the judgment of the trial court was fully supported by the applicable law and uncontroverted evidence establishing a viable good faith defense, any error by the trial court concerningClay, supra, was harmless. For the foregoing reasons, appellant's assignments of error should be overruled, and the judgment of the trial court affirmed.