Brown v. CincinnatiBrown v. Cincinnati
Terry Brown, pro se,
Paula Boggs Muething, City Solicitor, and Mark R. Manning, Assistant City Solicitor, for Defendant-Appellant.
BERGERON, Judge.
{1} In this replevin and conversion action with a somewhat messy procedural backdrop, appellant-defendant city of Cincinnati asks us to reverse the denial of summary judgment to it, largely based on immunity. We agree in part. The city‘s effort to secure summary judgment on all claims is premature, as the trial court has not concluded the case, and thus we lack appellate jurisdiction to entertain the merits of this dispute. But the court was wrong to deny the city immunity on the conversion claim, in part, because the city secured some of the property in question pursuant to a governmental function, and no exception to immunity applies. The same cannot be said, however, for the replevin claim, which only seeks the return of the property and not damages. Therefore, we dismiss this appeal in part, affirm in part, and reverse in part, and remand for further proceedings.
{2} Plaintiff-appellee Terry Brown was charged with domestic terrorism in 2016, after allegedly issuing threats to the Hamilton County Prosecutor‘s Office and the Cincinnati Police Department. As part of the investigation, police executed a search warrant at Mr. Brown‘s house, seizing approximately 20 items that were ostensibly related to the case. These include a revolver and ammunition, several computers, electronic devices, USB drives, and other miscellaneous items. He was arrested two days later.
{3} The criminal matter against Mr. Brown proceeded to trial and, after an initial mistrial, he was acquitted at his encore trial in 2018. Eager to reclaim his property after his victory, Mr. Brown sued the city for replevin (or in the alternative, conversion) of 30-35 items of personal property that he alleges police seized. The police department has a record of approximately 20 of those items, but Mr. Brown insists that the city possesses 10-15 additional items, including a wallet, MP3 player, and clothing. Finally, Mr. Brown also brought claims for damage to two vehicles—alleging that the city crushed a 1998 Mazda and caused unspecified damage to a 1997 Oldsmobile. It is undisputed that the city attempted to return the items identified in its records to Mr. Brown on several occasions. Mr. Brown, however, has refused to accept those items until the conclusion of the entire case.
{4} In response to Mr. Brown‘s suit, the city moved for summary judgment, which the trial court granted in part and denied in part. The court granted summary judgment for the city on the issues relating to the two vehicles (those are not before us in this appeal). However, the trial court denied the city‘s motion as to the personal items. In so concluding, the court expressed concern about a discrepancy between the search warrant report (Exhibit D) and the inventory report (Exhibit A). In short, the inventory report contains a few more items than the search warrant report. The court noted that this discrepancy could result from officers grouping items together on the handwritten search warrant report, with the inventory report spelling out the items in more detail. Additionally, the court noted that a couple of items not listed on the search warrant report might have been taken during the arrest instead of during the search. Regardless, because the court could not ascertain the origin of the discrepancy, it determined that summary judgment was inappropriate “as to these items.” However, the court failed to elucidate whether “these items” include all 30-35 personal items that Mr. Brown disputes or whether it encompasses only the items that reflect the discrepancy highlighted by the court. Finally, the trial court denied the city‘s defenses, including the defense of immunity. The city now appeals on the basis of the denial of tort immunity, under
II.
{5} In its sole assignment of error, the city argues that the trial court erred by not granting its summary judgment motion in full. The city primarily argues that it should ]prevail on the merits, and presents its immunity argument from both of Mr. Brown‘s claims (replevin and conversion) in the alternative. However, the city faces a jurisdictional hurdle which limits the scope of our appellate review. We first address that jurisdictional limitation, and then we discuss the city‘s alternative immunity argument.
A.
{6} Contrary to the city‘s argument, we do not have appellate jurisdiction
{7} But this exception does not throw open the door to all interlocutory matters: “appellate review under
{8} Therefore, to the extent the city invites us to determine the underlying merits of this case, we find its appeal premature and dismiss that aspect of its appeal for want of appellate jurisdiction. We can only review the issue of immunity at this juncture.
B.
{9} With the scope of this appeal narrowed, we now consider whether immunity applies to Mr. Brown‘s claims—replevin and conversion—and to the property in dispute. “[I]ssues regarding political-subdivision immunity under
{10} When determining whether the city should receive immunity, we follow a three-tiered analysis. R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.), citing Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10. First, we assess whether the underlying conduct falls within the general grant of immunity in
1.
{11} The city cannot survive the first tier of analysis on Mr. Brown‘s replevin claim because the claim sits outside of the general grant of immunity in
{12} The city features three cases from our sister districts in an effort to convince us that immunity nonetheless applies to replevin. But this argument mischaracterizes the holdings of those cases. First, in Davis v. Springfield Police Dept., 2d Dist. Clark No. 2003-CA-44, 2004-Ohio-1164, while the plaintiff filed a complaint, in replevin, seeking damages for emotional distress after police seized his property, the Second District clarified, in affirming tort immunity for the police, that the plaintiff‘s claim was not actually for replevin. Id. at ¶ 1, 11. As the court explained, because “[the plaintiff] does not seek the return of his property, but rather seeks monetary damages for emotional distress * * * * his action is not truly an action for replevin, it is an action sounding in tort.” Id. at ¶ 11. Second, in Pavlik v. Cleveland, 8th Dist. Cuyahoga No. 92176, 2009-Ohio-3073, police
{13} In light of the plain language of the statute, and Ohio caselaw, we decline to extend tort immunity under
2.
{14} Having determined that immunity does not apply to the replevin claim, we now turn to Mr. Brown‘s conversion claim. For analytical ease, we assess the conversion claim by dividing the property into two categories: (1) Listed Property—property listed in the search warrant report (Exhibit D) and inventory report (Exhibit A); and (2) Unlisted Property—property not listed in either report.
{15} Listed Property. We conclude that the city has immunity from any conversion claim relating to the Listed Property because the evidence establishes that it was seized pursuant to a governmental function. As already noted,
{16} Having concluded that the Listed Property falls within the general grant of immunity, we next consider whether any exception applies. And Mr. Brown has not demonstrated that any such exception exists. Subsection (B) of
{17} Unlisted Property. Finally, we conclude that the city did not establish summary judgment entitlement to immunity for conversion of the Unlisted Property (items not reflected in the city‘s reports, Exhibits A and D). The Ohio Supreme Court explains that “a party seeking summary judgment *** bears the initial burden of informing the trial court of the basis for the motion *** .” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Thus, to obtain summary judgment regarding the Unlisted Property, the city must “specifically point to some evidence * * * which affirmatively demonstrates that [Mr. Brown] has no evidence to support [his] claims.” Id. Here, the city simply argues that it never possessed the Unlisted Property in the first place. The city may well be correct. But as we have already noted, the merits of this case exceed the scope of our appellate review at this juncture. State ex rel. Deem, 2017-Ohio-2937, at ¶ 9. We are only concerned with whether the Unlisted Property (if seized) was taken pursuant to a governmental function. And viewing the evidence in a light most favorable
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{18} In light of the foregoing analysis, we conclude that the trial court erred by not granting summary judgment for the city on the conversion claim against the Listed Property (items on Exhibit A and Exhibit D). However, we affirm the trial court‘s denial of summary judgment on the city‘s immunity claim for conversion against the Unlisted Property (items not listed on Exhibit A and Exhibit D). Furthermore, we affirm the trial court‘s denial of summary judgment regarding immunity as to Mr. Brown‘s replevin claim against all items. Finally, because the trial court ruled in the city‘s favor (and on the merits) regarding the two vehicles, we do not review that determination and dismiss the city‘s appeal with respect to the merits for want of appellate jurisdiction. We therefore sustain in part, overrule in part the city‘s assignment of error, and dismiss in part the city‘s appeal and remand this cause for further proceedings consistent with this opinion.
Judgment accordingly.
MYERS, P. J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion