Brust v. Franklin Cty. Sheriff's Office
2017 Ohio 9128
| Ohio Ct. App. | 2017Background
- In 1997 Brust was arrested; his 1986 Isuzu Trooper was impounded and a civil forfeiture action was filed; Brust's counsel answered in the forfeiture action. The forfeiture was stayed pending criminal appeal and later reopened in 2014; the State dismissed the forfeiture in June 2014.
- Brust obtained return of the vehicle in 2015 but sued Franklin County Sheriff's Office and the Sheriff for "failure to redeliver" personal property (tools) allegedly left in the vehicle, seeking their return and damages for the tools (approx. $6,000–$7,000).
- Defendants initially moved to dismiss alleging abandonment and procedural defects; the trial court dismissed for failure to comply with R.C. 2969.25(A); this court reversed and remanded for further proceedings.
- On remand defendants filed a summary judgment motion; Brust filed a motion for partial summary judgment. Defendants, for the first time in a memorandum opposing Brust’s partial MSJ, asserted the statute of limitations and governmental immunity as affirmative defenses.
- The trial court granted summary judgment for defendants, holding (1) the vehicle claim was moot because the vehicle was returned, and (2) Brust’s tools claim was time-barred under R.C. 2305.09 or R.C. 2744.04(A), and alternatively barred by political-subdivision immunity under R.C. 2744.02.
- On appeal this Court held defendants improperly raised affirmative defenses for the first time in a summary-judgment filing; therefore the grant of summary judgment on those bases was error and the case was remanded for further proceedings as to the tools claim; the judgment was affirmed in part (vehicle) and reversed in part (tools) and remanded.
Issues
| Issue | Brust's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Were defendants entitled to summary judgment that the vehicle claim was resolved? | Vehicle not fully returned earlier; relief still owed | Vehicle located and returned; claim moot | Held for defendants — vehicle claim moot (return occurred) |
| Was Brust’s tools claim barred by the statute of limitations (R.C. 2305.09 or 2744.04)? | Claim timely or defenses not properly raised | Statute of limitations bars claim | Court declined to decide on merits because defendants raised statute-of-limitations as an affirmative defense for first time in MSJ; remanded for further proceedings |
| Are defendants immune under political-subdivision immunity (R.C. 2744.02)? | Immunity inapplicable / not properly asserted | Immunity bars suit | Court held immunity is an affirmative defense raised improperly for first time in MSJ; remanded |
| Was it proper for the trial court to rely on affirmative defenses first raised in defendants’ memorandum opposing Brust’s MSJ? | Court should not accept untimely affirmative defenses; should strike them | Defendants argued merits of defenses justify judgment | Held for Brust — trial court erred by relying on affirmative defenses raised for first time in summary-judgment filings; remand required |
Key Cases Cited
- Lee v. Cleveland, 151 Ohio App.3d 581 (Ohio Ct. App.) (summary-judgment standard; de novo review)
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (Ohio Ct. App.) (statute of limitations is an affirmative defense)
- Carmen v. Link, 119 Ohio App.3d 244 (Ohio Ct. App.) (methods to assert affirmative defenses)
- Eulrich v. Weaver Bros., 165 Ohio App.3d 313 (Ohio Ct. App.) (improper to raise immunity/statute-of-limitations defenses first in MSJ)