111 Scherr Ln. v. Triangle Gen. Contracting , 233 Md. App. 214 ( 2017 )

Circuit Court for Queen Anne’s County
Case No. 17-C-15-020318 REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 855
September Term, 2016
______________________________________
111 SCHERR LANE, LLC, ET AL.
v.
TRIANGLE GENERAL CONTRACTING,
INC., ET AL.
______________________________________
Eyler, Deborah S.,
Beachley,
Shaw Geter,
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: June 29, 2017
In 2013, a commercial property at 111 Scherr Lane in Grasonville (“the Property”)
was sold at foreclosure to 111 Scherr Lane, LLC (“the LLC”), the owner of the Property,
and Edward Gills, the sole member of the LLC, the appellants. Thereafter, in the District
Court of Maryland for Queen Anne’s County, two actions for replevin were filed against
the LLC and Gills to recover personal property stored at the Property. One action was
filed by appellee TECO, Inc. (“TECO”), an electrical contracting company owned by the
prior owners of the Property and their family members; and the other was filed by
appellee Triangle General Contractors, Inc. (“Triangle”), a lessee of the prior owners. 1
The cases were consolidated for trial and the District Court granted writs of replevin in
favor of TECO and Triangle. After the writs were executed, resulting in the recovery of
some, but not all, of the appellees’ property, the cases were converted to actions for
detinue and transferred to the Circuit Court for Queen Anne’s County.
The circuit court bifurcated the claims, which were separately tried to the court. In
TECO’s case, the court entered a final judgment of possession in its favor for property
recovered under the writ and for certain property that had not been recovered; and entered
judgment in TECO’s favor for $9,856.40 for the value of other property that was not
recovered. The judgment was entered against the LLC and Gills, jointly and severally.
In Triangle’s case, the court issued a judgment of possession in favor of Triangle for
1
One suit also named Paul Cohen, a substitute trustee who foreclosed upon the
deed of trust on the Property, as a defendant. Cohen has no interest in the Property,
however, and is not an appellant.
property recovered under the writ and entered a judgment against the LLC for $59,119
for items not recovered.
Gills and the LLC noted this appeal, presenting five questions for review, which
we have rephrased and reordered:
I. Did the circuit court err or abuse its discretion by determining that
the personal property had not been abandoned?
II. Did the circuit court err or abuse its discretion by entering judgments
for possession and money judgments in detinue for personal property
that was not in the possession of Gills and the LLC when the
replevin action was commenced?
III. Did the circuit court err or abuse its discretion by awarding damages
in favor of Triangle based upon the replacement value, instead of the
market value, of the personal property?
IV. Did the circuit court err or abuse its discretion by entering judgments
for possession and for damages against Gills and the LLC for
property that was listed as recovered on the schedule of replevied
items?
V. Did the circuit court abuse its discretion by entering judgment
against Gills personally for actions he took on behalf of the LLC?
For the following reasons, we answer these questions in the negative and shall
affirm the judgments of the circuit court.
FACTS AND PROCEEDINGS
The Property consists of a fenced, commercial lot improved with a modular home.
In 2004, Josiah Tice (“J. Tice”) and Joan Tice, his wife, purchased the Property. They
did not live on the Property, but used it to store equipment for TECO, a family-owned
electrical contracting business. Dennis Jay Tice (“D. Tice”), their son, is an owner and
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the general manager of TECO. TECO’s equipment was stored in seven trailers parked on
the Property.
In late 2006 or early 2007, J. Tice entered into a verbal lease agreement with Jack
Leone on behalf of his company, Triangle. Pursuant to that agreement, Triangle began
storing its contracting supplies in two trailers parked on the Property and paying $50 per
month in rent to J. Tice.
On July 16, 2013, substitute trustees on an indemnity deed of trust securing the
elder Tice’s mortgage on the Property filed an order to docket foreclosure in the circuit
court. Two months later, on September 17, 2013, the Property was sold at a foreclosure
sale to Gills, for $94,000. J. Tice and D. Tice were present at the foreclosure sale, having
hoped to purchase it on behalf of TECO.
Gills planned to use the Property in connection with his seafood business. After
the foreclosure sale, he contacted members of the Tice family several times and asked
them to remove their belongings from the Property. At that time, Gills was unaware that
any of the trailers belonged to Triangle.
The foreclosure sale was ratified on December 13, 2013. On February 5, 2014,
Gills went to settlement, having assigned the contract of sale to his wholly-owned LLC.
A substitute trustee’s deed was executed that day conveying the Property to the LLC.
Thereafter, Gills padlocked the gates to the Property and posted “No Trespassing” signs.
Five days later, on February 10, 2014, Gills wrote to J. Tice as follows:
I am writing this letter to inform you that you have 10 days to remove your
stuff from [the Property]. The [P]roperty is now legally owned by my
LLC. The courts [sic] ratification took place weeks ago. I have talked to
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you by phone on several occasions to no avail. I need to move on with my
plans for the [P]roperty. I will dispose of the stuff if you have not removed
it within 10 days of the writing of this letter. To access the [P]roperty you
must call [me] at [phone number] anytime. I am close and can be there in a
moment.
Thank you,
Ed Gills, for [the LLC]
In the days that followed, D. Tice, along with TECO employees, went to the
Property several times to remove the TECO equipment stored there. He brought with
him a trailer and a skid steer. 2 According to D. Tice, two snowstorms and a rain storm
made it impossible for him to remove all of TECO’s personal property within the ten-day
period imposed by Gills. On Friday, February 20, 2014, Gills told D. Tice that he could
enter the Property a final time the following day to remove the trailer and the skid steer,
but that “everything else was his [i.e., Gills’s] and [D. Tice] couldn’t have it.” On
Saturday, February 21, 2014, D. Tice went to the Property. Gills was present, along with
the Sheriff, and permitted D. Tice to take the two items, but nothing else. At that time,
the seven TECO-owned trailers remained on the Property, as did some of their contents.
Meanwhile, Leone was still unaware that the Property had been foreclosed upon.
He continued to pay $50 per month in rent. On March 12, 2014, J. Tice contacted Leone,
who was in Florida, and told him that the Property had changed ownership. Leone
immediately called Gills to inquire about retrieving Triangle’s personal property. Gills
told Leone that Triangle’s trailers and the equipment inside them now belonged to him
(Gills).
2
A skid steer is a 4-wheel vehicle with loading arms that can be used to move
heavy objects.
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A. District Court Proceedings on Replevin Actions
More than two months later, on June 2, 2014, Triangle filed an action for replevin
against Gills, the LLC, and the substitute trustee in the District Court seeking return of its
personal property and damages of $25,000. It alleged that two trailers—a 1986 Williams
Office trailer (“Williams Trailer”) and a 1988 Strick trailer (“T-44 Trailer”)—belonging
to Triangle were stored on the Property and that “approximately ninety (90) items or
pieces of construction equipment” were stored in the trailers. Triangle attached to its
complaint a four-page handwritten inventory of the contents of the T-44 Trailer.
On June 26, 2014, TECO filed an action for replevin against Gills and the LLC in
the District Court seeking return of its personal property and damages of $29,500. It
alleged that TECO owned “approximately 200 items of personal property . . . stored in
trailers” on the Property. 3 TECO attached as an exhibit to its complaint a list of assets
stored on the Property, including “7 . . . Box Trailers and their contents.”
The cases were consolidated for trial on September 26, 2014. In TECO’s case, J.
Tice testified consistent with the above stated facts. D. Tice testified that the seven
TECO trailers had been on the Property since 2006/2007. The trailers contained various
electrical supplies and tools, many of which had been acquired in 1998 when TECO
purchased the assets of Simpson Electrical Co., Inc. A copy of the Bill of Sale reflecting
that acquisition was introduced into evidence. D. Tice had marked with asterisks the
3
J. Tice also was named as a plaintiff. The complaint alleged that J. Tice owned a
1980 Line Truck and a 1954 Antique Chevrolet Truck that were stored on the Property.
No evidence about these items was produced at the replevin hearing or in the subsequent
detinue action in the circuit court and J. Tice is not an appellee in this Court.
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items on the list that he knew were on the Property as of February 20, 2014. Those items
included the seven trailers, a forklift, and various tools. He also testified that a “sea
container” was on the Property. 4
D. Tice explained that when the foreclosure proceedings were commenced, he and
his father still hoped that the family and/or TECO would be able to maintain title. They
attended the foreclosure sale, but were outbid by Gills. Thereafter, they did not remove
TECO’s trailers from the Property because they understood that the sale was not yet
finalized. They also believed they might be able to enter into an agreement with Gills to
continue storing the trailers on the Property.
After receiving the February 10, 2014 letter from Gills, however, D. Tice took
steps to remove TECO’s property from the Property. He brought machinery onto the
Property to remove some of the items. During the 10-day period, there were two
snowstorms and a rainstorm, however, and as a result, he was unable to move very many
items. He was “scheduled” to go to the Property on Friday, February 20, 2014, to “get
some more stuff,” but Gills prohibited him from doing so. The following day, Gills
permitted D. Tice to enter the Property to remove a “two axle trailer, skid steer, [and] a
van that we had loaded, and the truck that we had towed it in there with.” He was not
permitted to load any additional items.
In Triangle’s case, Leone testified that Triangle had stored two trailers on the
Property since 2007: the Williams Trailer, which was 8 feet by 32 feet, and the T-44,
4
A “sea container” is a “metal box with doors on it” that is used “to ship cargo
back and forth . . . on a ship.” It also can be used to store equipment on job sites.
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which was a 40-foot box trailer. The T-44 Trailer was filled with “heavy construction
tools and equipment, power tools, . . . building records.” Leone identified an inventory of
items in the trailers that he had prepared when he loaded them in 2007. He had not
removed any items since then. He had added a few items to the trailers over the years
and had updated the inventory list to reflect that. The inventory was admitted into
evidence (“T-44 Inventory”).
Leone had not been to the Property for at least a year, possibly two or more years.
He had not received any notice that a foreclosure proceeding was commenced. He had
continued to pay rent to the Tices every month since 2007 until he learned of the change
in ownership.
On March 12, 2014, Leone received a phone call from J. Tice advising that the
Property had “changed hands.” Leone immediately called Gills, told him that two trailers
on the Property belonged to Triangle, and asked about getting them back. Gills
responded that the trailers and their contents had been “abandoned per the sheriff” and
that he (Gills) had “disposed of it.” Leone informed Gills that he had asked his employee
to drive by the Property that morning and that his employee had observed Triangle’s
trailers on the Property and also had observed someone “taking stuff out of the large
trailer.” Gills asked Leone what was in the trailers. Leone described the items that were
contained in the trailers, which included “rough-sawn black walnut.” Gills replied, “oh,
is that what that wood was?” Leone explained that black walnut is very expensive and
that he wanted it back. Gills reiterated that the trailers and their contents were
“abandoned property” that “belong[ed] to [him] now.”
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Leone flew back to Maryland from Florida and, on March 22, 2014, went to the
Property. He was able to enter the Property and he observed both of his trailers, as well
as some of the trailers owned by TECO. 5 He took photographs and a video of the trailers,
some of which were introduced into evidence. The trailers were open and their contents
had been disturbed. Leone noticed that some of the tools that had been stored inside the
T-44 Trailer were now inside the TECO trailers.
More recently, Leone had driven by the Property and seen that Gills had modified
the Williams Trailer, “incorporat[ing it] into some kind of structure on the [P]roperty as
part of the seafood market.” A sign for Gills’s business was attached to the Williams
trailer.
Gills testified that when he purchased the Property, it looked like a “junk yard.”
There were “[l]ogs, piles of debris, brush, tires” all over. He began cleaning it up, but did
not remove any items “that [weren’t] [his].” Beginning a few weeks after the foreclosure
sale, he called J. Tice “at least six or seven times” to try to make arrangements for the
TECO trailers and other property to be removed. J. Tice said he would “talk with his son
and . . . get back to [Gills],” but never followed through. J. Tice’s girlfriend arranged to
have a truck body that belonged to her towed from the Property.
After the LLC took possession of the Property, Gills wrote the February 10, 2014
letter. He left the Property unlocked during the 10-day period. He had several “amiable”
conversations with D. Tice during that period and saw him on the Property multiple times
5
Leone entered the Property surreptitiously without Gills’s permission.
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loading items into a van and otherwise removing TECO’s property. At the expiration of
the 10-day period, Gills let D. Tice remove a loaded van and the skid steer, but otherwise
excluded him from the Property. Gills believed that the TECO property was considered
abandoned as of that date.
Thereafter, Gills began “remov[ing] everything that wasn’t nailed down[,] . . .
pil[ing] it all up into dumpsters and [having] the scrap people come and take it away.”
He had contracted with Schultz & Son, a local scrap metal company, for that purpose.
He scrapped at least four trailers and a lot of other “junk” that was inside the trailers.
According to Gills, when he was served in the two replevin actions in June 2014,
the only items belonging to Triangle or TECO left on the Property were the Williams
Trailer, which Gills had converted to use for his business; the T-44 trailer; a sea
container; a 28-foot trailer; wooden poles; and some other items that had been stored
inside the trailers. Gills spent more than $1,100 improving the Williams Trailer by
adding a floor, a ceiling, and walls; wiring it for electricity; installing a light fixture; and
painting it. He raised the trailer up on cinder blocks next to the loading dock on the
Property.
On cross-examination, Gills testified that he could not recall how much he had
been paid by the scrapyard for the items he removed from the Property, but it was more
than $1,000. He was paid by weight, after certain deductions for transportation costs and
disposal of items that could not be scrapped.
At the conclusion of the hearing, the court held the matter sub curia and directed
the parties to return on October 17, 2014, for it to issue its ruling. A week before that
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happened, however, TECO and Triangle filed a motion to admit additional evidence,
attaching an affidavit by D. Tice. He averred that following the September 26, 2014 trial,
he drove to 101 Drummer Drive in Grasonville, a property owned by Gills, and saw a
Case Model 580 forklift parked there. He checked the serial number on the identification
plate and determined that it was the forklift owned by TECO that was included in the
inventory list entered into evidence at trial. In his testimony, Gills had not identified the
forklift as an item of property remaining in his possession.
The District Court granted the motion to reopen and, on October 17, 2014, held an
evidentiary hearing. D. Tice testified consistent with his affidavit. He stated that the
forklift had been present at the Property between February 10, 2014, and February 20,
2014. When asked why he did not remove the forklift during that 10-day period, he
responded that its battery was dead.
Gills testified that he had had the forklift towed from the Property to a repair shop
sometime after February 20, 2014. He replaced the transmission, engine, tires, hydraulic
system, carburetor, fuel tank, fuel valves, condenser wires, and spark plugs. He had not
mentioned the fork lift in his prior testimony because “it’s not a trailer.” He maintained
that his testimony about the items that were present on his Property when the replevin
actions were filed otherwise was accurate.
On cross-examination, Gills was asked about the items presently stored in the
trailers that remained on the Property. Gills recalled seeing “screws and washers and
bolts and junk,” some “hand tools and shovels,” a “lot of hoses,” two ladders, and “some
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cords.” He also had seen the “wood” Leone had testified about, apparently referring to
the black walnut. Everything else had been scrapped or taken to the dump.
TECO and Triangle also introduced into evidence a Schultz & Son record showing
four payouts for scrap to Gills totaling $14,368. The first payout was made on March 25,
2014, in the amount of $5,351.60 for 54,820 pounds of metal. That ticket reflected
deductions for disposal of ten truck tires and other trash. The second payout was made
on April 29, 2014, in the amount of $6,916.40 for 59,880 pounds of metal. That ticket
reflected deductions for disposal of more than 50 truck tires and 2 passenger tires, as well
as trash disposal. The last two payouts were made on June 9 and 10, 2014, totaling
$2,100 for 9,600 pounds of metal.
At the conclusion of the hearing, the parties submitted post-trial memoranda. The
appellants argued that Triangle and TECO abandoned their property when they left it on
the Property and did not return to reclaim it in the months following the foreclosure sale
and thereafter. They argued, moreover, that an action for replevin only may be brought
against a party in possession of the personal property and that the evidence showed that at
the time the suit was initiated, the only personal property in the possession of Gills and
the LLC were three trailers and some items inside them. On this basis, Gills and the LLC
asked the court to grant judgment in their favor as to the remaining personal property
claimed by TECO and Triangle. Gills and the LLC asserted, moreover, that if Triangle
and TECO were entitled to replevy the trailers, then they (Gills and the LLC) were
entitled to a lien on those items for the costs incurred in storing them on the Property.
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Finally, Gills argued that he had no personal liability for any actions taken on behalf of
the LLC.
Triangle and TECO argued that there was no evidence that they ever had
manifested an affirmative intention to abandon their personal property at the Property.
On the contrary, the evidence showed that the Tices were actively trying to remove
TECO’s property when Gills barred them from the Property and Leone was paying rent
to store his property until he learned of the foreclosure sale, at which time he immediately
contacted Gills to arrange for the return of his trailers.
On November 13, 2014, the court reconvened and announced its ruling,
documented in a Memorandum Opinion and Order filed that same day. The court
credited Gills’s testimony that he contacted the Tices after the foreclosure sale took place
and asked them to remove TECO’s personal property, but they did not do so. At that
time, Gills was the equitable owner of the Property, but did not yet hold legal title, and
therefore did not have authority to order the Tices (or Leone) to remove their property.
The court credited D. Tice’s testimony that he (and his father) did not take steps to
remove their property right after the foreclosure sale because they understood that “the
process wasn’t over” and that they were not yet obligated to do so. Their decision to wait
until legal title passed to the LLC indicated “procrastination,” not abandonment, in the
court’s view. In any event, the Tices’ response to the February 10, 2014 letter clearly
evinced an intent “not to abandon [their] property” because they came to the Property to
haul some of it away and asked to be allowed to return after the expiration of the 10-day
period. (Emphasis in original.)
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With respect to Triangle, the court found “no basis” to conclude that it had
abandoned its personal property. It credited Leone’s testimony that as soon as he learned
of the foreclosure, in March 2014, he contacted Gills and “demanded return of his
property.”
The court then turned to the “most difficult issues . . . [of] what particular property
is at issue for purposes of the replevin action and what degree of proof is required to
prove its possession by [Gills and the LLC] at the time of the commencement of the
action.” Gills had acknowledged that the two Triangle-owned trailers and one TECO-
owned trailer remained on the Property, along with the sea container, wooden poles,
black walnut wood, and miscellaneous tools and hardware. The Case forklift also was at
Gills’s property on Drummer Drive. With respect to that property, the Court found that
Gills and the LLC were “unlawfully detain[ing it] and that TECO [was] entitled to its
return.”
Turning to the personal property that Gills and the LLC did not admit they still
possessed, the court found that D. Tice and Leone’s testimony established possession of
that property as of February 20, 2014 (with respect to TECO) and March 22, 2014 (with
respect to Triangle). The court reasoned that the general rule is that “‘possession of
personal property . . . proved to exist at some time prior to the commencement of an
action to recover such property, is presumed to continue until the contrary is
established,’” and found that the appellants had not presented credible evidence to rebut
that presumption. (Quoting Sufficiency of proof in replevin of defendant’s possession at
time of commencement of action, 2 A.L.J. 2d 1043).
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The court issued a writ of replevin in favor of TECO for the forklift; seven trailers;
a trailer dolly; a sea container; “several wood poles”; three boring and piercing tools; and
a pump. The court issued a writ of replevin in favor of Triangle for the Williams Trailer;
the T-44 Trailer; the black walnut wood; and “all items listed on [the T-44 Inventory].” 6
Triangle and TECO each were required to post a bond of $5,000.
On August 13, 2015, the Queen Anne’s County Sheriff executed the writs of
replevin. 7 The sheriff completed a “Schedule of Goods Replevied” for each appellee. As
to TECO, the items listed as replevied on the schedule were a 1968 Fruehauf box trailer;
a trailer dolly; a sea container; and “several wood poles.” Inside the box trailer were
miscellaneous tools and materials that Gills had advised the sheriff were “all junk.” As to
Triangle, the items listed as replevied were the Williams Trailer; black walnut lumber;
6
That list comprised more than seventy-five tools and items of heavy equipment.
7
The nine-month delay between the grant of the writs and the execution of the
writs was occasioned by interlocutory appeals filed by Gills and the LLC. They noted
appeals from the District Court’s memorandum opinion and order in each case. TECO
and Triangle moved to strike the appeals, arguing that the District Court’s decision was
not a final, appealable judgment because a replevin action is in the nature of a
preliminary probable cause determination and that an appeal only may be taken from a
final determination in detinue that TECO and Triangle are entitled to possession of the
property (and awarding damages, if proved). The District Court agreed and struck the
appeals. Thereafter, Gills and the LLC noted appeals from the grant of the motions to
strike. In those appeals, the circuit court determined that the orders granting the motions
to strike were appealable, but the District Court had not erred by striking the appeals as
having been taken from non-final judgments. The circuit court thus remanded the case to
the District Court for further proceedings. These rulings are not at issue in the instant
appeal and we make no comment about them.
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and twenty miscellaneous tools and items of construction equipment. 8 The sheriff noted
that all of these items were clearly marked with Triangle’s name and logo. Seven
similarly marked items that were not listed on Triangle’s inventory also were located but
were not replevied.
B. Circuit Court Proceedings on Detinue Action
In November 2015, the cases were transferred to the circuit court for a merits trial
because the value of the property at issue exceeded the monetary jurisdiction of the
District Court. The circuit court bifurcated the claims by TECO and Triangle for trial.
TECO’s claims were tried on February 2, 2016. In its case, TECO called D. Tice
and Amber Schultz, a former office assistant at Schultz & Son. In addition to reiterating
his prior testimony, D. Tice testified that six trailers, two piercing tools, a pump, and a
trencher belonging to TECO “remain[ed] unrecovered.” When asked whether he knew
why those items were no longer at the Property, he replied, “[t]hey were taken to the
scrap yard.”
Amber Schultz testified that she worked as an office assistant at Schultz & Son, a
full service scrap yard, for eight and a half years, including during all of 2014. She was
in charge of invoices and statements. She was asked about the metal scrapped by Gills in
2014, as evidenced on the Schultz & Son payment ticket. She testified that the March 25,
2014 transaction reflected that Gills had scrapped two steel trailers and one aluminum
8
As we shall discuss, infra, the T-44 Trailer was not listed on the schedule of
replevied items, but it was recovered. The Williams Trailer was listed, but was not
recovered.
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trailer. The ticket reflected a $310 deduction for trash, which Schultz explained meant
that the scrapyard had hauled to the landfill “material inside of the trailers,” such as wood
and debris. The April 29, 2014 ticket reflected that Gills had scrapped five more trailers.
That ticket also reflected a trash deduction. The June 2014 transactions were for roll-off
containers that Schultz & Son provided to Gills to fill and return. As mentioned earlier,
the scrap payments made to Gills totaled $14,368.
Gills testified that he contacted Schultz & Son within days after February 20,
2014, and arranged for all but one of the TECO trailers to be hauled off the Property and
scrapped. He said that the March and April 2014 payment tickets reflected the scrap
value of all those items (as well as some of his own personal property). The June 2014
transactions were unrelated to the TECO property.
At the close of the evidence, counsel for TECO argued that because the trailers
and the personal property inside them belonged to TECO and TECO had not abandoned
that property, Gills had “unlawfully converted it” when he claimed it to be his own and
had it scrapped. He asked the court to enter a money judgment in favor of TECO in the
amount of the Schultz & Son payment tickets.
Counsel for Gills and the LLC responded that this was a “clear case of
abandonment” in light of the five month period between the foreclosure sale and the date
when the Tices were prohibited from entering the Property to retrieve any more personal
property. He pointed out that the evidence showed the TECO property that had not been
replevied all had been scrapped by April 29, 2014, “long before suit was filed in this
matter.” He argued that if the court were to find that the property was not abandoned and
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that an action for replevin could be maintained, any award of damages should be limited
to the scrap value of the trailers reflected on the March and April 2014 payment tickets
from Schultz & Son, not the June 2014 tickets, and that any judgment should be entered
against the LLC, not Gills personally.
Triangle’s claim was tried on March 15, 2016. In its case, Triangle called Leone
and Eston E. Hoffman, an auctioneer and personal property appraiser. Leone testified
that the T-44 Inventory was prepared by two of his employees in around 2010, when he
temporarily was “winding . . . down” Triangle’s “heavy construction business” in favor
of “more residential and light commercial” business. Leone stored the tools and
equipment in the T-44 Trailer, rather than selling them, because he anticipated restarting
his company’s heavy construction business and he would need to “have th[o]se tools
available for our use at that time.” All of Triangle’s tools and equipment were painted
orange and were stenciled with the company name. They were stored in a “very orderly
and organized fashion,” with tools in their boxes and on shelving within the trailer.
Leone further testified that on August 13, 2015, when the writ of replevin was
executed, he recovered the T-44 Trailer, but not the Williams Trailer. He explained that
the Williams Trailer could not be towed off the Property because it was four-feet off the
ground on cinder blocks and no longer had wheels attached. There were tools and
equipment inside the T-44 Trailer when it was replevied, but much of Triangle’s personal
property was missing. The tools and equipment that were present all were in a “big heap
in the middle of the trailer.” After he reclaimed the T-44 Trailer, Leone inventoried the
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items within it and then hired Hoffman to give him an appraisal of the “equipment that
wasn’t there.”
Hoffman was accepted by the court as an expert in the field of appraisal and
auctioneer services. He testified that he had appraised property for Leone around
2010/2011, including the inventory of the T-44 Trailer. At that time, Leone had sold
some of his heavy construction tools and equipment. The appraised value assigned by
Mr. Hoffman was significantly lower than the price the items ultimately sold for at
auction.
In 2015, Leone asked Hoffman to assign a value to the missing tools and
equipment. Hoffman determined a “replacement value,” as opposed to a market value,
for the tools and equipment that had been stored in the T-44 Trailer but were no longer in
the trailer when the writ of replevin was executed. He explained that he used that method
because the “tools [would] have to be replaced [if] Mr. Leone . . . wanted to go into
business tomorrow.” He opined that that method produced a replacement value of
$59,119 for the tools. Hoffman’s report detailing how he arrived at that figure was
introduced into evidence. We shall discuss it in more detail, infra.
In his case, Gills testified, recalled Leone, and called two witnesses: his wife and
bookkeeper for the LLC, Donna Gills (“Donna”); and Edward Nelson, an auctioneer.
Gills testified that he disposed of TECO’s property after February 20, 2014, but did not
dispose of any of Triangle’s property. He claimed that everything stored in the T-44
trailer when he took title to the Property remained there until the writ of replevin was
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executed. Photographs of the inside of the T-44 trailer that he took at some point after
the replevin action was filed were introduced into evidence.
By stipulation, Nelson was accepted as an expert in the fields of appraisal and
auctioneering services. He explained the difference between the “replacement value” and
“market value” methods of valuation. In the former method, the appraiser assigns “a
dollar amount . . . to go out somewhere and [buy the item].” In the latter method, the
appraiser determines how much the item in its current condition would sell for at auction.
Nelson reviewed the photographs of the tools taken by Gills and, using the market value
method, determined that the total value of the tools that had been stored in the T-44
Trailer, but were not replevied, was $3,695.
Donna testified that she was present when her husband opened the T-44 Trailer.
She saw that the contents of the trailer were “rusty” with a “thick layer of dust.” She did
not believe that any of the contents were removed from the Property before the writ of
replevin was executed.
At the conclusion of the evidence, counsel for Triangle argued that the court
should find that all the items listed in Triangle’s inventory were present on the Property
when the action was commenced and to award damages for the value of the items not
replevied based upon the the valuation opinion offered by Hoffman.
Counsel for Gills and the LLC argued that the Williams Trailer and the black
walnut wood were not at issue because both were listed as having been replevied by the
sheriff. He further argued that the court should credit Gills’s testimony that the items that
were replevied were all the items stored in the T-44 Trailer. He argued that if the court
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were inclined to grant a monetary judgment, it should be entered against the LLC only,
not against Gills, and it should be for an amount based upon Nelson’s valuation opinion.
He argued that a market value valuation was more appropriate in this case because Leone
had testified that he began storing his equipment at the Property because he no longer
was engaging in heavy general contracting work.
On June 5, 2016, the court entered memorandum opinions and orders on the
bifurcated claims. In TECO’s case, it adopted the “rationale and reasoning” of the
District Court in rejecting the abandonment defense. It found that “even a cursory
analysis of the facts shows that [TECO] did not intend to walk away from their property,
and [was] taking multiple active steps to recover it in what Gills admits were three
attempts during the unilaterally imposed 10 day window.”
The court credited Gills’s testimony that he had had all but one of TECO’s trailers
hauled away to be scrapped and the contents otherwise disposed of within days after he
barred the Tices from the Property. On that basis it found that the Schultz & Son
payment tickets from March and April 2014 reflected the scrap value of the trailers and
that the June 2014 payment ticket was unrelated to TECO’s property.
The court entered judgment of possession in favor of TECO for four items
replevied on August 13, 2015. From the scrap tickets, it found that seven trailers were
scrapped in March and April 2014. 9 The writs of replevin sought the return of nine
trailers—seven belonging to TECO and two belonging to Triangle—and two trailers were
9
In fact, Schultz had testified that eight trailers were scrapped.
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replevied—one belonging to TECO and one belonging to Triangle. Thus, the court
reasoned that six of the scrapped trailers belonged to TECO. Because it could not
determine from the scrap tickets which trailers were TECO’s and because TECO had not
adduced any other valuation evidence, the court entered judgment in favor of TECO for
the six trailers with the lowest scrap value, for a total of $9,856.40. The court entered
judgment against the LLC and Gills, jointly and severally, because the Schultz & Son
payment tickets showed payment had been made to Gills, individually, not to the LLC.
The court also noted the lack of any evidence that Gills had been acting in a
representative capacity when he sold the trailers for scrap. The court entered judgment of
possession in favor of TECO for the “non-replevied property [that] . . . cannot be
valued,” consisting of the forklift, the piercing and boring tools, the pump, and the
trencher.
In Triangle’s case, the court credited Leone’s testimony about the tools and
equipment stored in the T-44 Trailer and his actions upon learning that the LLC had
taken title to the Property. The court found Gills not to be credible. It noted that Gills
had changed his testimony between the District Court and circuit court proceedings with
respect to whether he had disposed of any personal property stored in the T-44 trailer. It
found that Gills had hoped to “gain a windfall at the expense of others” by selling and
repurposing Triangle’s (and TECO’s) property.
The court ruled that Triangle had proved that the property identified on the writ of
replevin all belonged to it and all had been present at the Property in March 2014. The
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court entered a judgment of possession in favor of Triangle with respect to the replevied
property.
The court then turned to damages relative to the personal property that was not
replevied, which the court found to include the black walnut wood and the Williams
Trailer. The court found both valuation experts to be credible, noting that they reached
“wildly different valuations” simply because each used a different approach to valuation.
The court determined that the evidence supported the award of the replacement value of
the personal property, as opined by Hoffman, rather than the market value, as opined by
Nelson. We shall discuss this ruling in greater detail below. The court entered a
judgment in detinue in favor of Triangle and against the LLC for $59,119.
These timely appeals followed.
DISCUSSION
I.
Gills and the LLC contend the circuit court erred as a matter of law by ruling that
TECO and Triangle had not abandoned their personal property on the Property. They
maintain that the evidence showed that Triangle’s property was left “unattended from
September 17, 2013 through June 2, 2014, when Triangle filed suit” and that TECO’s
property was left unattended through June 26, 2014, when it filed suit. This argument is
without merit.
In Nickens v. Mount Vernon Realty Group, LLC, 429 Md. 53 (2012), the Court of
Appeals considered, in pertinent part, whether a foreclosure purchaser unlawfully
converted the personal property of an occupant of the foreclosed upon property when it
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disposed of that property after employing peaceable self-help to take possession of the
property. The Court held that while the foreclosure purchaser had the right to use self-
help to enter and take possession of the real property and to exclude others from entering,
the purchaser only could dispose of the personal property if it had been abandoned by the
former occupant. “[A]bandonment entails the relinquishment of any interest to the
property” and may be shown by evidence that the “owner has ‘walk[ed] off and [left] [the
property] with no intention to again claim it or exercise rights of ownership over it.’” Id.
at 77-78 (quoting Steinbraker v. Crouse, 169 Md. 453, 457-58 (1936)).
In the case at bar, the circuit court adopted the non-clearly erroneous findings
made by the District Court that neither TECO nor Triangle had abandoned their property.
These findings are amply supported by the record, which shows that the Tices, upon
receiving the February 10, 2014 letter, made immediate and repeated efforts to recover
their personal property, continuing until they were excluded from the Property by Gills
on February 21, 2014; and that Leone demanded the return of his personal property the
same day he received notice that the Property had been foreclosed upon. This evidence
plainly showed an affirmative intent on the parts of TECO and Triangle not to relinquish
their interest in their tools, trailers, equipment, and other items of personal property
stored at the Property and supported the circuit court’s determination that that property
had not been abandoned.
II.
Gills and the LLC contend the circuit court erred by awarding damages to TECO
and Triangle for personal property that was not replevied because it was not in their
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(Gills’s and the LLC’s) possession on the dates the replevin actions were filed. TECO
and Triangle respond that, having met their burden with respect to the element of
possession at the replevin stage of the proceedings, they were not obligated to prove the
element of possession at the detinue stage. For the reasons to follow, we agree with Gills
and the LLC that possession in the defendant ordinarily is a required element of an action
for detinue; however, under a well-established exception to that rule, TECO and Triangle
were entitled to a judgment for the value of their personal property even if it had been
destroyed prior to the commencement of suit.
a.
“In a replevin action, a party seeks . . . to recover specific goods and chattels to
which he or she asserts an entitlement to possession.” Dehn Motor Sales, LLC v. Schultz,
439 Md. 460, 486 (2014). At common law, an action for replevin could be commenced
by filing a bond with the clerk of the court in double the value of the personal property
claimed to be unlawfully detained by the defendant. Wallander v. Barnes, 341 Md. 553,
561 (1996). Upon the approval of the bond, the clerk would issue a writ directing the
sheriff to seize the goods and place them in the plaintiff’s possession. Id.
The common law writ encompassed two alternative remedies. If the goods or
chattels could be seized and returned to the plaintiff, the action would proceed in the
detinuit, alleging that the defendant was unjustly detaining the property. Id. at 562. In
that action, once the plaintiff proved his entitlement to possession, he could obtain a final
judgment of possession and recover damages occasioned by the unjust detention of the
property. Benesch v. Weil, 69 Md. 276, 279 (1888). If “the goods and chattels [were]
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eloigned,[10] or otherwise withheld from the execution of the writ by the act of the
defendant,” however, the action could proceed in the detinet. Id. 11 In that action, the
plaintiff could be awarded the full value of the goods or chattel as damages. Id. In some
cases, a plaintiff could be entitled to both remedies, as they related to different items of
property.
Until 1973, pre-hearing seizures of goods pursuant to a writ of replevin were
permitted in Maryland. In the wake of the Supreme Court’s decision in Fuentes v. Shevin,
407 U.S. 67 (1972), holding that prehearing seizures of property violated due process, the
Court of Appeals adopted amended rules that “provide[d] a judicial hearing early in the
procedure, so that the writ of replevin could issue as expeditiously as constitutionally and
practically possible.” Wallander, 341 Md. at 568. The amended rules abolished the
detinet/detinuit distinction within replevin. All actions for replevin were now the
equivalent of an action in the detinuit in that they were commenced by the filing of a
“statement of claim . . . alleg[ing] that the defendant unjustly detains the property,”
seeking the return of the property, and, in certain cases, seeking damages for the
detention. Id. at 569 (quoting M.D.R. BQ42) (emphasis added). Exclusive jurisdiction
over replevin was vested in the District Court. That court was required to hold a pre-
10
Eloign is “[t]o remove (a person or property) from a court’s or sheriff’s
jurisdiction [or] [t]o remove to a distance; conceal.” Black’s Law Dictionary, 559 (10th
ed. 2014).
11
The plaintiff also could elect to file a declaration when he or she posted bond.
Such a declaration necessarily would be in the detinuit because, at that time, the goods
were alleged to be detained by the defendant. If the writ was successfully executed, the
plaintiff would amend the declaration to proceed in the detinet.
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seizure hearing on a show cause order and grant the writ if the plaintiff made a showing
of a “reasonable probability” that he or she was entitled to the return of the property. If
the writ were denied, the action would “proceed in detinue.” Id. at 568–69 (quoting
M.D.R. BQ44).
As the Wallander Court explained, in light of these changes:
Modern replevin in Maryland is a pre-judgment, but post-probable
cause determination, seizure. If probable cause is not established, so that
replevin is denied, the action is no longer replevin, it is detinue. If probable
cause is established and the writ issues, but the property cannot be seized
before trial on the merits, the action is no longer replevin. Under those
circumstances, if the plaintiff still desires at least the option of obtaining
return of property, the value of which is in the monetary jurisdiction of the
District Court, after a District Court judgment on the merits, the plaintiff
properly should amend to detinue. If successful on the merits, the plaintiff
may then recover the property by a District Court judgment for return of the
property.
Where (1) probable cause is not established or, if established, the
property cannot be seized before trial, (2) the value of the property exceeds
the monetary jurisdiction of the District Court, (3) the plaintiff has not
demanded a jury trial, and (4) the plaintiff desires a judgment for the goods
or for their value, the plaintiff’s recourse is to dismiss, voluntarily and
without prejudice, and to commence a new action in the circuit court.
Id. at 572.
Shortly after the decision in Wallander, in 1996, the Court of Appeals again
amended the rules governing replevin and detinue, to their current form, permitting
transfer to the circuit court without the need for a plaintiff to dismiss and refile. Rule 12-
601, titled “Possession of Personal Property Before Judgment – Replevin,” provides that
a party “claiming the right to immediate possession of personal property may file an
action . . . for possession before judgment . . . . in the District Court.” Id. at (a). The
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action must be prosecuted against “the person who has possession of the property at the
time the complaint is filed” and if possession changes during the pendency of the action,
the person who “obtains possession . . . shall be joined as a defendant.” Id. at (b)
(emphasis added). The complaint shall describe the property and its value; allege that the
defendant “unjustly detains the property”; state a claim for the return of the property; and
state “any claim for damages to the property or for its detention.” Id. at (c). The District
Court shall hold a hearing not less than seven days after notice to the defendant and, if the
court determines that the plaintiff is entitled to possession before judgment, “shall order
issuance of a writ directing the sheriff to place the plaintiff in possession of the
property[.]” Id. at (g). The order also shall prescribe the amount of a bond to be paid by
the plaintiff to secure the property pending a trial on the merits. If the writ is returned
unexecuted because “the claimed property cannot be found,” the plaintiff may request
reissuance of the writ or may proceed on an action for detinue, pursuant to Rule 12-602.
Id.
Rule 12-602, titled “Recovery of Property or Value After Judgment – Detinue,”
permits a plaintiff to bring an action for the recovery of personal property in the circuit
court or the District Court. Id. at (a). Like an action for replevin, a detinue action must be
brought against the party “who has possession of the property at the time the complaint is
filed.” Id. at (b) (emphasis added). If the plaintiff already has instituted a replevin action
pursuant to Rule 12-601, however, that action automatically will convert to one for
detinue after the show cause hearing; and “[i]f the value of the property remains at issue
and that value and any damages claimed exceed the monetary jurisdiction of the District
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Court,” or if a jury trial is prayed, the action will be transferred to the circuit court. Md.
Rule 12-601(h).
When the plaintiff prevails at a merits trial on an action for detinue, the court
“shall award possession of the property or, in the alternative, payment of its value.” Md.
Rule 12-602(d)(1). The court also may award damages caused by the unlawful detention
of the property or for damage to the property during the detention. Id. A judgment in
detinue “shall separately specify the value of the property and damages.” Md. Code
(1973, 2013 Repl. Vol.), section 11-104(a) of the Courts & Judicial Proceedings Article.
If judgment is entered for the defendant and the plaintiff already had been put in
possession of the property before judgment, by replevy, the court shall order the property
returned to the defendant and the defendant may move for damages within 15 days of the
judgment. Id. at (d)(2).
b.
In the case at bar, Triangle filed its action for replevin on June 2, 2014, pursuant to
Rule 12-601, seeking the return of the Williams Trailer, the T-44 Trailer, and
“approximately ninety (90) items or pieces of construction equipment” stored inside the
trailers. TECO filed its action on June 26, 2014, seeking the return of the seven trailers
and “approximately 200 items of personal property” stored inside them.
At the September 26, 2014 show cause hearing in District Court, Gills testified
that the only property belonging to TECO or Triangle that remained at the Property was
the Williams Trailer, which Gills had converted to use for his business; the T-44 Trailer;
a sea container; a 28-foot trailer; wooden poles; and some other items that had been
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stored inside the trailers. He asserted that soon after February 20, 2014, he had begun
“remov[ing] everything that wasn’t nailed down[,] . . . pil[ing] it all up into dumpsters
and [having] the scrap people come and take it away.” The Schultz & Son payment
tickets were not introduced into evidence, however, so the time period in which these
items were scrapped or otherwise disposed of was not clear.
At the October 17, 2014 reopened show cause hearing in the District Court, Gills
acknowledged that he still had possession of the TECO forklift. He also clarified that
there were “screws and washers and bolts and junk,” some “hand tools and shovels,” a
“lot of hoses,” two ladders, and “some cords” inside the trailers that remained on the
Property. He also had seen the “wood” Leone had testified about, apparently referring to
the black walnut. He claimed that everything else had been scrapped or taken to the
dump. The Schultz & Son payment tickets were introduced into evidence at that hearing,
but there was no testimony adduced to show which items were covered by the payment
tickets for March, April, and June 2014.
The District Court, in ruling that TECO and Triangle each had met its burden of
proof at the pre-judgment stage, reasoned that although Gills and the LLC had denied
being in possession of much of the claimed property when the actions were filed, they
had not produced credible evidence to rebut the presumption that “possession of personal
property . . . proved to exist at some time prior to the commencement of an action to
recover such property . . . continue[s].”
In this appeal, Gills and the LLC do not challenge the propriety of the pre-
judgment ruling by the District Court. Rather, they maintain that after the replevin
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actions were converted to an action for detinue and transferred to the circuit court, TECO
and Triangle were required to prove by a preponderance of the evidence that the personal
property that was not replevied (and which Gills did not otherwise acknowledge
remained on the Property) had been in the possession of Gills and the LLC when the
replevin actions were filed. They assert that TECO and Triangle failed to meet this
burden and that the court erred by not entering judgment in their (Gills and the LLC’s)
favor with respect to that property.
TECO and Triangle respond that they properly stated claims for replevin; were
successful at the pre-judgment stage; and thus were entitled to proceed in detinue to seek
final judgments for possession or, in the alternative, for damages for the value of any
goods that were not recovered. They maintain that Gills and the LLC failed to
“establish—at the replevin and detinue hearings—any basis for determining that specific
items were disposed prior to litigation.” 12
12
TECO and Triangle also suggest that Gills and the LLC “failed to even raise the
argument that the supposed disposition of certain items of personal property should
prevent [TECO and Triangle] from recovering the value of the personal property.” We
disagree. In opening statements at the detinue trial on TECO’s claims, counsel for Gills
and the LLC explained that “[t]he law is very clear that replevin can only apply to
property that was possessed by the defendants on the date and time that the suit was
filed” and because the evidence would show that much of the property claimed had been
scrapped before June 26, 2014, TECO was not entitled to recover damages for that
property. Counsel for TECO reiterated at the close of the evidence that it was clear that
TECO’s trailers had been scrapped in March and April 2014, before suit was filed.
Similarly, at the trial on Triangle’s claims, counsel for Gills and the LLC argued in
closing that it was Triangle’s burden to show “that on the date that the suit was filed, that
this property was in the possession of Mr. Gills” and that the court had heard “credible
testimony” that the items replevied were the only items belonging to Triangle in Mr.
Gills’s possession on June 2, 2014, when Triangle filed suit.
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c.
We begin with the judgment in favor of TECO for $9,856.40 in damages. The
damages comprised the approximate scrap value of the six trailers the court found
belonged to TECO and were present on the Property on February 5, 2014, when the LLC
took title, and on February 21, 2014, when Gills last permitted D. Tice to enter the
Property.
As mentioned, Rule 12-601 states that a replevin action should be brought against
the person who has “possession of the property at the time the complaint is filed.” This is
consistent with the common law rule in actions for replevin that, “in order for the plaintiff
to succeed in an action for the recovery of specific personal property, he must prove, as
an element of his case, possession in the defendant at the commencement of the action.”
Sufficiency of proof in replevin of defendant's possession at time of commencement of
action, 2 A.L.R. 2d 1043 (1948). At the pre-judgment replevin stage, this burden is slight,
in that a plaintiff may satisfy it with evidence that the defendant was in possession of the
claimed property at some point in time before the replevin action was filed. See Tesar v.
Bartels, 32 N.W.2d 911, 914–15 (Neb. 1948) (holding that the “well-established” rule of
evidence, that “when the . . . state of things is one established by proof, the law presumes
that the . . . state of things continues to exist as before, until the contrary is shown, or
until a different presumption is raised from the nature of the subject in question,” applies
to proof of a defendant’s possession of the property in an action for replevin) (quoting 20
Am. Jur., Evidence, § 207, p. 205).
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The District Court found that TECO’s evidence that six trailers (and other items of
personal property) were in the possession of Gills and the LLC on the Property as of
February 21, 2014, just over four months before TECO filed suit, satisfied its slight
burden to show that Gills and the LLC were in possession of that property when suit was
filed. At the detinue trial, however, the Schultz & Son payment tickets and Amber
Schultz’s testimony were in evidence and they plainly rebutted the presumption that Gills
and the LLC were in possession of TECO’s property when TECO filed the replevin
action. The circuit court so found. Thus, the issue before this Court is whether, upon a
finding that the defendant parted with possession of the plaintiff’s personal property
before the commencement of the replevin action, the court nevertheless may award
damages in detinue for the value of that property.
Our research has revealed no Maryland case addressing this issue. The leading
Maryland case on replevin and detinue is Wallander, supra. That case traces the history
of the common law writ in Maryland and how it has been transformed by statute and by
rule. Wallander concerned a Mercedes sedan purchased by the plaintiff (Wallander) from
a consignee of the vehicle. The purchase was financed through a transaction by which
Wallander was designated as a lessee and the finance company a lessor. The consignor
of the vehicle re-possessed it from Wallander because the consignee did not pay him (the
consignor). Wallander brought an action for replevin against the consignor and one of
his agents. By the time the replevin hearing was held, however, the consignor had
transferred the Mercedes to a dealer in another state. At the replevin hearing, Wallander
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sought damages, not the return of the Mercedes. The District Court dismissed the action
for lack of standing, but its ruling was reversed by the circuit court.
On remand, the District Court held another replevin hearing; ruled that the matter
had been converted to one for detinue because a writ of replevin never had issued and, by
that time, could not issue because the defendants no longer were in possession of the
Mercedes 13; and determined that Wallander was entitled to damages for the Mercedes,
but that his damages were limited because he was a “lessee” of the vehicle when he filed
suit, as a result of the financing agreement he had entered into.
Wallander appealed and the case eventually reached the Court of Appeals. The
Court held that over a series of amendments to the rules governing replevin and detinue
in Maryland, it had abrogated the common law rule that damages for the value of goods
were recoverable in replevin. Rather, replevin had become purely a “pre-judgment, but
post-probable cause determination, seizure.” 341 Md. at 572. If probable cause were not
established, a writ would not issue and the action would be converted to detinue for a
merits hearing. If probable cause were established and the writ was issued but the
property was not recovered before the merits trial, then the plaintiff could amend to
detinue and seek return of the property or, in the alternative, a judgment for its value. If
13
During the pendency of the appeal, the defendants had re-acquired the Mercedes
and sold it.
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the value exceeded the monetary jurisdiction of the District Court, the plaintiff could
dismiss and commence a new action in the circuit court. 14
The Court reasoned that because from the first hearing in the District Court,
Wallander was not seeking return of the Mercedes, but only its value, he was pursuing
trover/conversion, not replevin or detinue. In such an action, Wallander could be entitled
to the full value of the Mercedes (which would exceed the monetary jurisdiction of the
District Court).
In Wallander, the defendants were in possession of the claimed property when the
replevin suit was filed but were no longer in possession of it by the time of the show
cause hearing; and Wallander was no longer seeking to recover the property. Here, in
contrast, whether Gills and the LLC had possession of the property was a contested issue
at the replevin hearing; and TECO was seeking the return of all its personal property at
that stage. It was only at the detinue hearing that it became clear that, with the exception
of the property that had been replevied (and, as we shall explain, certain wooden poles),
all of TECO’s property had been destroyed before the replevin action was commenced.
TECO suggests that having met its burden at the replevin stage, it did not need to
prove possession in the defendants after the action converted to one in detinue. We
disagree. Rules 12-601 and 12-602 both require that the action be brought against the
party then in possession of the property. At a show cause hearing in replevin under Rule
12-601, the plaintiff need only establish a reasonable probability that he or she is entitled
14
Again, the Court’s Wallander decision preceded the rules change that eliminated
the need to dismiss and refile.
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to possession of the property and, if the plaintiff satisfies that burden, the court shall issue
a writ of replevin directing the sheriff to place the plaintiff in possession of the property.
The court may proceed “ex parte” if the defendant fails to appear.
After the writ is executed, and the case converts to detinue, the plaintiff must
prove by a preponderance of the evidence entitlement to a final judgment of possession;
any damages claimed for the detention of the property; and, as to property not recovered,
entitlement to damages for the value of that property. Even if the action began as one for
replevin, this necessarily requires proof that the property that was not recovered on the
writ was in the defendant’s possession when the action was commenced. See Rule 12-
602(b); Mylander v. Page, 162 Md. 255, 260 (1932) (“detinue, for the return of goods,
like replevin, is maintainable only against one who has the goods in his possession”)
(citing 1 Poe, Pleading & Procedure, § 521); Friedman v. Friedman, 971 So. 2d 23, 30
(Ala. 2007) (holding that a judgment in detinue could not issue where court credited the
defendant’s testimony that she was not in possession of the claimed property, as the
common law action in detinue “has always included possession of the subject chattel by
the defendant as an element”).
In a number of old common law cases, however, courts from around the country
have held that an action for detinue may be maintained against a defendant who was
unjustly in possession of specific property and, with knowledge of the plaintiff’s claim to
that property, parted with possession before suit was filed. See Ford v. Caldwell, 21
S.C.L. (3 Hill) 242, 244–45 (S.C. 1837) (“Detinue will lie against one out [of]
possession, where [he] has once had the rightful possession, and has culpably parted with
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it; but where he has been deprived of his possession by the authority of law, or where he
has parted with it without any intentional derogation of the title of the true owner, he
would not be held liable to this form of action; although he might be, in the latter
instance, to actions of a different form.”); Poole v. Adkisson, 31 Ky. (1 Dana) 110, 119
(Ky. 1833) (“Detinue may be maintained against a defendant who has had possession of
the chattel sued for, but has parted with the possession (without being divested of it by
authority of law), before the date of the writ.”); Haley v. Rowan, 13 Tenn. (5 Yer.) 301
(Tenn. 1833) (“action of detinue will lie . . . when the defendant had parted with the
possession before demand and suit brought”); Sinnott v. Feiock, 59 N.E. 265, 266 (N.Y.
1909) (an action for replevin and detinue will lie “where the defendant has wrongfully
parted with possession” prior to commencement of the action); Cable Co. of Alabama v.
Griffitts, 49 So. 577, 578 (Ala. 1907) (“If the defendant, having had actual possession
previous to the demand or suit brought, ‘has wrongfully or to elude the plaintiff’s action
parted with it,’ detinue may be maintained against him.”) (citation omitted); but see
Haughton v. Newberry, 69 N.C. 456, 458 (N.C. 1873) (“There was a fatal variance
between the allegation and the proof. In face of the fact, that the defendant did not have
the possession at the time of the commencement of the action, as a matter of course the
plaintiff was not entitled to the judgment demanded by the complaint.”).
The logic of the exception to the possession rule is readily apparent. An action for
replevin seeks possession of personal property unjustly detained by a defendant and, thus,
within the defendant’s control. A plaintiff seeking the return of his or her property may
have no way of knowing whether the defendant still has possession of it when suit is
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filed. A defendant who has disposed of the plaintiff’s property with knowledge of the
plaintiff’s claim, but before suit has been filed, is not dissimilar to a defendant who
disposes of the property (or otherwise hides it away), preventing the sheriff from
replevying the property during the pendency of the suit. In the latter scenario, the law is
clear that the plaintiff may recover the value of the property if the writ is returned
eloigned (or partially eloigned). We are persuaded by the reasoning of our sister courts
that the same result should follow when the defendant disposed of the property culpably,
after the plaintiff made demand for it, but before suit was filed.
In the case at bar, the circuit court found that TECO had a right to possess the six
trailers; that Gills knew the trailers belonged to TECO; that D. Tice attempted to remove
the trailers from the Property during the 10-day window arbitrarily permitted by Gills, but
was unable to complete that task; that at the expiration of the 10-day window, Gills
declared, wrongfully, that the property was abandoned and belonged to him; and that
within the next two months, Gills caused all six of TECO’s trailers to be scrapped and
received over $9,000 for the metal. When TECO filed suit against Gills and the LLC, it
had no reason to think its trailers and the property stored inside them were not still in the
possession of Gills and the LLC. At the replevin trial in the District Court, the evidence
was conflicting on that issue. It only was at the detinue trial that the evidence became
clear that all six trailers had been scrapped, i.e., destroyed, in March and April 2014,
before TECO filed suit but after D. Tice affirmatively asserted TECO’s claim to the
property. And by then, the property no longer existed; that is, it had not been transferred
to someone else, it had been destroyed. On this evidence, the court did not err by ruling
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that an action for detinue could be pursued for damages for that property and that TECO
was entitled to a judgment for the scrap value of the trailers.
d.
We now turn to the judgment in favor of Triangle for the value of the items of
personal property listed on the T-44 Inventory that were not replevied. Gills and the LLC
assert that Triangle did not meet its burden to prove that the claimed property ever was in
their possession, much less that it was in their possession when Triangle filed its action
for replevin on June 2, 2014.
The circuit court credited Leone’s testimony that he made demand for Triangle’s
property in early March 2014 and that all of the items of property listed on the T-44
Inventory were present on March 22, 2014, the date he surreptitiously entered the
Property and looked inside the trailer. The court rejected Gills’s testimony to the
contrary as not credible. The court found that Gills disposed of that property or otherwise
converted it to his own use (as he admittedly did with the Williams trailer) at some time
thereafter. The court did not make any finding as to whether Gills undertook to dispose
of or convert Triangle’s property before or after June 2, 2014, when Triangle initiated its
replevin action. For the reasons already explained, however, because Triangle’s personal
property wrongfully was eloigned after Triangle made demand for its return, in
derogation of its right to possession, Triangle was entitled to a judgment in detinue for its
value even if it was disposed of prior to suit being commenced.
III.
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The LLC contends the circuit court erred or abused its discretion by accepting the
valuation method used by Hoffman, rather than the method used by Nelson, and by
entering judgment in favor of Triangle for the value opined by Hoffman. It maintains
that to the extent that the replacement valuation method was appropriate, that method
must account for “physical or functional depreciation.”
Triangle responds that the court did not abuse its discretion by “balanc[ing] the
competing appraisal reports to conclude that Triangle’s expert produced a more accurate
and credible calculation of damages.” It asserts that Hoffman “consulted multiple
sources and averaged multiple purchase prices to determine the price that Triangle would
have to pay in order to obtain a substantially similar model of each missing item of
tangible personal property.”
Hoffman’s testimony and his appraisal report explain that in 2010 or 2011 he
personally had observed all the property Triangle stored in the T-44 trailer, had found it
all to be in good condition, and had appraised its value at that time as exceeding $50,000.
He opined that because the tools and construction equipment had not been used since
then and had been stored in a clean and dry location, there was no reason to believe its
value would have declined in the interim. Hoffman valued the property by assessing the
“cost to replace [each item of property with an item] of the same or equal value.” He
chose that valuation method because the tools and equipment all were used by Triangle in
its heavy construction business and would need to be replaced were Triangle to be
awarded a job. Hoffman attached to his report a lengthy appendix showing the
comparably priced items he had located in online marketplaces, such as Ebay.com,
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ConstructionEquipmentforless.com, and GlobalIndustrial.com, as well as at local
businesses such as Hearne Hardwoods. Some of the items Hoffman had located in those
marketplaces were new, but many were in used but working condition. If Hoffman found
multiple online listings, he averaged the prices of several comparable items to arrive at
the replacement value.
It is well-established that the ordinary “measure of damages for the conversion or
destruction of a chattel is the market value of the chattel at the time and place of the
conversion or destruction.” Weishaar v. Canestrale, 241 Md. 676, 684 (1966) (citation
omitted). If a plaintiff’s loss is “greater than the market value of the chattel at the time of
its destruction, an owner should, on principle, be allowed additional items which will
adequately compensate him unless some of those claimed items are so speculative as to
create danger of injustice to the defendant.” Id. at 685 (citation omitted).
Here, the court found that the “evidence support[ed] the replacement value opined
by Hoffman” for several reasons. Leone had “testified credibly that the items in question
were stored and in working order” and that he planned to use the tools and equipment on
future jobs. Thus, Leone had “accumulated a specific inventory of working tools on
which [Triangle] could rely at a moment’s notice should they be required” and the “only
way in which Triangle could accumulate the same tools in any reasonable time period
[would be to] find the tools where they are advertised and purchase them.” To require
Leone to “traipse” all over the state “attending various auctions in hopes that identical
used tools could be identified and purchased” would be an unrealistic burden and would
impose substantial additional costs on Triangle. In light of these findings, the court found
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that to the extent that the replacement value of the items of property exceeded their
market value, the excess was a necessary component of Triangle’s damages justified by
the unique facts of this case. We perceive no error or abuse of discretion by the circuit
court in so finding.
IV.
Gills and the LLC contend the circuit court erred by entering a judgment of
possession with respect to one item of property owned by TECO (wood poles) and listed
as replevied by the sheriff, and by entering judgments for damages with respect to two
items of property owned by Triangle and listed as replevied by the sheriff: the Williams
Trailer and the black walnut wood. We shall address each item in turn.
a. Wooden poles
D. Tice testified at the detinue trial that he did not recover the wooden poles that
are identified on the sheriff’s return as replevied. Gills and the LLC concede that the
wooden poles remained on the Property after the sheriff executed the writ. The circuit
court ruled that TECO was entitled to a final judgment of possession for the wooden
poles. It did not award any damages for the poles, however, because TECO did not
present any evidence bearing on their value or claim damages caused by their detention.
There was no dispute that the wooden poles were TECO’s property and that they
remained in the possession of Gills and the LLC. For that reason, the court did not err by
entering judgment of possession in TECO’s favor for that property.
b. Williams Trailer
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The evidence adduced at the detinue trial showed that while the sheriff’s return
listed the Williams Trailer as being replevied, it was not. Rather, the T-44 Trailer was
replevied. Leone testified that the Williams Trailer could not be moved off the Property
because its wheels had been removed and it had been converted into an office for the
LLC’s business. In light of that evidence, which the court credited, Triangle was entitled
to a judgment for the value of the trailer in lieu of a judgment of possession.
c. Black Walnut Wood
The sheriff’s return listed the black walnut wood as having been replevied. Leone
testified at the detinue trial that the wood that was replevied was not the black walnut he
had stored in the T-44 trailer. He was shown photographs taken by Gills that purportedly
depicted the wood stored in that trailer and testified that that wood “certainly [was] not
the black walnut,” which had been in “much better” condition. Hoffman confirmed that
the lumber depicted in the photographs did not appear to be the black walnut wood that
he personally had observed and appraised in 2010 or 2011. The circuit court found
Leone to be credible, and disbelieved Gills’s testimony. Based upon this evidence, the
circuit court plainly did not err by finding that the black walnut wood that had been
stored in the T-44 trailer was not replevied and awarding Triangle damages for its value.
V.
Finally, Gills contends the circuit court erred by entering judgment against him
personally on TECO’s claim. He maintains that the evidence showed that at all times he
was acting “for and on behalf of his wholly owned corporate entity.” In any event, he
asserts that the court erred by entering judgment against both him and the LLC to the
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extent that the court found that he was acting only in his personal capacity when he
contracted with Schultz & Son to scrap the trailers.
TECO responds that the circuit court did not clearly err by finding that Gills was
acting in his personal capacity, not in his capacity as the sole member of the LLC, when
he scrapped the trailers and their contents. It maintains, moreover, that joint and several
liability was warranted. We agree.
The Schultz & Son payment ticket identifies the customer as “Edward Gills” and
states that all payments were made to him. Amber Schultz testified that Gills contracted
with Schultz & Son to scrap the trailers and their contents. This was evidence supporting
the court’s finding that Gills contracted with the scrapyard in his personal capacity, not as
a member of the LLC.
The evidence also showed that the February 10, 2014 letter directing TECO to
remove its property within 10 ten days was written by Gills on behalf of the LLC and that
Gills was acting on behalf of the LLC when he prohibited the Tices from entering the
Property to remove the rest of TECO’s property. In light of the evidence that Gills and
the LLC engaged in independent acts causing the injury to TECO, the court did not err by
imposing joint and several liability.
JUDGMENTS AFFIRMED. COSTS
TO BE PAID BY THE
APPELLANTS.
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