The opinion
[Cite as Ally Bank v. Bey, 2020-Ohio-5093.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ally Bank, :
Plaintiff-Appellee, :
No. 19AP-867
v. : (C.P.C. No. 19CV-8898)
Wayne Brown Bey, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 29, 2020
On brief: Weltman, Weinberg & Reis, Co. L.P.A., and
Allen J. Reis, for appellee. Argued: Allen J. Reis.
On brief: Wayne Brown Bey, pro se. Argued:
Wayne Brown Bey.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Defendant-appellant Wayne Brown Bey, aka Wayne Lee Brown Bey, appeals
from an order of possession of the Franklin County Court of Common Pleas ordering
seizure of a vehicle upon the posting of bond by plaintiff-appellee Ally Bank. Because we
find that the order of possession is not final and appealable, we dismiss Mr. Brown Bey's
appeal for lack of jurisdiction.
{¶ 2} On November 5, 2019, Ally Bank filed a complaint for money judgment and
possession of property against Mr. Brown Bey. The complaint recited that Mr. Brown Bey
had executed a retail installment sales contract secured by a vehicle but had failed upon
demand to "liquidate the balance due and owning." (Complaint at 1.) In Count 1 of the
complaint, Ally Bank asked for judgment against Mr. Brown Bey in the principal amount of
No. 19AP-867 2
the balance due plus finance charges, late charges, and costs of the action; in Count 2, Ally
Bank asked the court for an order determining that Ally Bank has the right to possession of
the collateral (the vehicle). Ally Bank simultaneously moved for possession of the vehicle
under Chapter 2737 of the Ohio Revised Code due to Mr. Brown Bey's alleged default on
the terms of the retail sales contract. The motion was supported by an affidavit of Tania
Taylor, a "replevin specialist" for Ally Financial Inc. who averred that Mr. Brown Bey had
purchased the vehicle through the retail installment contract but then failed to make
payments under the terms of the contract. (Taylor Aff. at 1.)
{¶ 3} A magistrate of the Franklin County Court of Common Pleas held a hearing
on the matter with both parties in attendance and found that Ally Bank was entitled to an
order of possession of the vehicle under R.C. 2737.07(B). Mr. Brown Bey did not file
objections to the magistrate's decision. The trial court agreed with the magistrate, finding
that, based on the affidavit, "there is probable cause to support the [m]otion." (Dec. 13, 2019
Order of Possession at 1.) The trial court then issued an order of possession for the sheriff
to seize the vehicle upon Ally Bank's posting of bond in an amount of $26,700 (found to be
twice the value of the car). The order notes that Mr. Brown Bey may recover possession of
the vehicle by posting his own bond with the court. The record shows that Ally Bank posted
bond, and a writ of replevin was issued on December 27, 2019.
{¶ 4} Mr. Brown Bey asks this court to review the merits of the trial court's order
of possession. As explained further below, we cannot do so because the order of possession,
issued under R.C. 2737.07(B), is not a final, appealable order.
{¶ 5} "Under the Ohio Constitution, Article IV, Section 3(B)(2), this court's
jurisdiction on appeal is limited to a review of final orders of lower courts." Covatch v. Cent.
Ohio Sheltie Rescue, Inc., 10th Dist. No. 15AP-699, 2016-Ohio-1241, ¶ 14. "If a lower court's
order is not final, then an appellate court does not have jurisdiction to review the matter
and the matter must be dismissed." Globe Automotive Ctr. v. Harris, 11th Dist. No. 2009-
P-0026, 2009-Ohio-3407, ¶ 4, citing Gen. Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17,
20 (1989). For a judgment to be final and appealable, it must satisfy the requirements of
R.C. 2505.02, and, "if applicable, Civ.R. 54(B)." Covatch at ¶ 14.
{¶ 6} As stated in Covatch at ¶ 15, "[t]he only division [of R.C. 2505.02] with
arguable application [to orders of possession under Revised Code Chapter 2737] would be
No. 19AP-867 3
R.C. 2505.02(B)(4)." An order is final and appealable under R.C. 2505.02(B)(4) if it "grants
or denies a provisional remedy" and both of the following conditions apply: (1) "[t]he order
in effect determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy"; and (2) "the appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action." R.C. 2505.02(B)(4).
{¶ 7} Under the statutory scheme for an action in replevin, any party to an action
involving a claim for the recovery of specific personal property may move the court, by
written motion and affidavit, for an order of possession of the property. R.C. 2737.03. See
Hoelscher v. ICS 1 Ltd., 5th Dist. No. 18CA77, 2019-Ohio-3304, ¶ 28 ("This preliminary
proceeding is commenced only if the plaintiff would like possession of the personal
property at issue during the pendency of a replevin action"), citing First Fed. Savings &
Loan Assn. of Warren v. A & M Towing & Rd. Serv., Inc., 127 Ohio App.3d 46, 50 (11th
Dist.1998).
{¶ 8} Faced with a motion for an order of possession, the trial court "shall issue an
order of possession if it finds, on the basis of the affidavit and, if applicable, the evidence
presented at the hearing, that there is probable cause to support the motion" considering
the likelihood the movant will obtain a final judgment entitling him or her to permanent
possession of the property. R.C. 2737.07(B). See R.C. 2737.01(C)(" 'Probable cause to
support the motion' means that it is likely that the movant will obtain judgment against the
respondent that entitles the movant to permanent possession of the specific personal
property that is the subject of a motion filed pursuant to section 2737.03 of the Revised
Code").
{¶ 9} If the trial court issues an order of possession under R.C. 2737.07(B), the
respondent still has a statutory means to prevent transfer of the property by filing a bond
or cash deposit. R.C. 2737.11. Ultimately, the trial court will award "permanent possession
of the property" to one party or the other in a "final judgment" pursuant to R.C. 2737.14. A
final judgment under R.C. 2737.14 includes, in addition to a decision on possession, "any
damages to the party obtaining the award to the extent the damages proximately resulted
from the taking, withholding, or detention of the property by the other, and the costs of the
No. 19AP-867 4
action." R.C. 2737.14. The statute also sets forth a procedure for a court to return the
property to the respondent and award damages caused to the respondent by deprivation of
the property where the movant obtained an order of possession of property but failed to
prosecute the action. R.C. 2737.15. See Covatch at ¶ 4, 10 (demonstrating progression of
action from an order of immediate possession to the final order of possession).
{¶ 10} The order of possession appealed in this case was issued under R.C.
2737.07(B) based upon a finding of probable cause that Ally Bank will obtain a final
judgment entitling it to permanent possession of the vehicle. The order does not resolve
which party is entitled to permanent possession of the vehicle or assess any damages that
may be accorded to the party who will receive permanent possession. Therefore, even
assuming that this order constitutes a "provisional remedy," see Covatch at ¶ 17, we find
that it is not appealable: the trial court's December 13, 2019 order issued under R.C.
2737.07(B) does not finally determine the action even with regard to the provisional remedy
(as to which Ally Bank has posted a bond), and it does not prevent a meaningful judgment
in favor of Mr. Brown Bey as to all issues in the case. See, e.g., Bass-Fineberg Leasing, Inc.
v. Modern Auto Sales, Inc., 9th Dist. No. 13CA0098-M, 2015-Ohio-46, ¶ 12-13, fn. 1, 2, ¶ 44-
51 (noting dismissal of previous appeal of trial court's grant of temporary possession for
lack of a final, appealable order and addressing issues related to trial court's grant of
temporary possession under R.C. 2737.07(B) in a later appeal of trial court's final judgment
of permanent possession); Globe Automotive Ctr. at ¶ 7 (finding a trial court's order of
possession was not a final, appealable order since no determination on damages was made
pursuant to R.C. 2737.14).
{¶ 11} We dismiss the appeal for want of jurisdiction. Globe Automotive Ctr. at ¶ 4;
Covatch at ¶ 21.
Appeal dismissed.
LUPER SCHUSTER, BEATTY BLUNT, and NELSON, JJ., concur.
_________________