CHRISTOPHER A. DAVIS v. CITY OF CANTON, ET AL
Case No. 2013CA00080
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 21, 2014
2014-Ohio-195
Hоn. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2012CV02755; JUDGMENT: Affirmed
For Plaintiff-Appellant
BRADLEY IAMS
220 Market Ave. S., Ste. 400
Canton, OH 44702
For Defendants-Appellees
JOHN FERRERO
STARK COUNTY PROSECUTOR
BY: STEPHAN BABIK
110 Central Plaza South, Ste 510
Canton, OH 44702
DAVID SMITH
Canton Law Department
218 Cleveland Avenue S.W., 7th Floor
Canton, OH 44702
{¶1} Appellant appeals the April 15, 2013 judgment entry of the Stark County Court of Common Pleas granting appellees’ motion for judgment on the pleadings.
Facts and Procedural History
{¶2} On January 14, 2007, plaintiff-appellant Christopher A. Davis was arrested on a charge of unlawfully possessing a firearm. The items seized by the Canton Police Department at the time of appellant‘s arrest were as follows: a 1970 Oldsmobile Cutlass, a 1998 Chrysler Sebring, a 2001 Dodge Stratus, a 2005 Chrysler 300, four Hancock tires with chrome rims, and $765.00 in U.S. currency. On February 13, 2007, appellant was indicted on a federаl firearms charge. As a result of the federal indictment, the state charge against appellant of unlawfully possessing a firearm was dismissed.
{¶3} On May 11, 2007, the Stark County Prosecutor filed a forfeiture action against the above-listed property and a residence located at 2000 Spring Avenue N.E. in Canton. Appellant filed an answer to the forfeiture complaint on June 4, 2007. In his answer, appellant disputed that the taking of his property was lawful, requested the trial court dismiss the forfeiture complaint, and sought an order that the property taken from him was wrongfully taken. On April 24, 2008, the trial court held a trial on the forfeiture case. Counsel for aрpellant appeared at the forfeiture trial. The magistrate entered a decision rendering judgment for the State of Ohio on the forfeiture complaint on April 25, 2008. The magistrate‘s decision was affirmed by the trial court and a judgment entry of distribution was filed on April 30, 2008.
{¶5} On February 17, 2009, this Court issued an opinion reversing the trial court‘s forfeiture decision. State v. $765 in United States Currency, 5th Dist. Stark No. 2008CA00116, 2009-Ohio-711. We found that the trial court‘s decision that the items seized were derived directly or indirectly from the commission of a felony was not supported by the evidence, sustained the assignment of error, and stated that the “judgment of the court of Common Pleas of Stark County, Ohio, is hereby reversed.” Id. The claim against the 2000 Spring Avenue N.E. real estate was settled by the parties asserting an interest in the residence in a June 30, 2008 stipulated judgment еntry and was not a part of the 2009 appeal or this appeal.
{¶6} On July 13, 2012, appellant filed a motion for return of property in the forfeiture case. Subsequently on August 30, 2012, appellant filed a complaint for conversion against appellees City of Canton and the Stark County Board of
{¶7} After a response filed by appellant on March 11, 2013, the trial court, in an April 15, 2013 judgment entry, granted appellees’ motion for judgment on the pleadings. The trial court determined that no demand and refusal was required to trigger the statute of limitations because the original taking was not rightful and that an action of dominion inconsistent with ownership of the property had taken place. Further, that appellant‘s cause of action accrued when he discovered, or, in the exercise of reasonable care, should have discovered the injury, and that the latest point at which the discovery could have occurred was February 17, 2009, when this Court reversed the fоrfeiture judgment. The trial court held that appellant had two years from the February 17, 2009 date to bring his complaint for conversion and that his complaint for conversion was time-barred because the filing date of August 30, 2012 was well beyond
{¶8} Appellant appeals the judgment entry of the Stark County Common Pleas Court and assigns the following as error:
{¶9} “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT‘S COMPLAINT ON THE PLEADINGS.”
Motion for Judgment on the Pleadings Standard
{¶10} A motion for judgment on the pleadings presents only questions of law. Luthy v. Dover, 5th Dist. No. 2011AP030011, 2011-Ohio-4604, citing Dearth v. Stanley, 2nd Dist. No. 22180, 2008-Ohio-487. In ruling on a motion for judgment on the pleadings, the trial court must construe the material allegations in the complaint and any reasonable inferences drawn thеrefrom in favor of the plaintiff. If it finds plaintiff can prove no set of facts entitling plaintiff to relief, the court must sustain a motion for judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010-CA-00120, 2011-Ohio-580, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000-Ohio-230, 733 N.E.2d 1161. However, the complaint must allege sufficient facts to support any conclusions, and unsupported conclusions are not presumed to be true. Id.
{¶11} Judgment on the pleadings may be granted where no material factual issue exists. However, it is axiomatic that a motion for judgment on the pleadings is restricted solely to the allegations contained in those pleadings. Giesberger v. Alliance Police Dept., 5th Dist. No. 2011 CA 00070, 2011-Ohio-5940, citing Flanagan v. Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (4th Dist. 1993).
Conversion
{¶13} Appellant argues the trial court erred in finding his claim for conversion is time-barred pursuant to the applicable statute of limitations. We disagree.
{¶14} There is no dispute between the parties that even though
{¶15} Appellant first argues his cause of action did not accrue until a demand and refusal occurred. The tort of conversion is defined as the “wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from
{¶16} In Bush v. Signals Power & Grounding Specialists, Inc., this Court distinguished between two types of conversion. 5th Dist. Richland No. 08 CA 88, 2009-Ohio-5095. In the first type of conversion, the wrоngful possessor properly acquires the property, but then refuses to return it upon demand. Id. In the second type of conversion, the wrongful possessor unlawfully acquires the property. Id. As stated in Bush v. Signals Power, the demand and refusal elements are conditional and are necessary only in the first type of conversion “if the original taking was rightful and no act of dominion or control inconsistent with the [owner‘s] ownership had taken place.” Id. If possession is obtained against the will of the owner of the property and a possessor exercises dominion or control inconsistent with the ownership interests of the actual owner, no demand and refusаl is required. Id. Further, though a demand and refusal is usually required to prove conversion, acts that are “inconsistent with the right of the plaintiff‘s ownership are sufficient to satisfy this requirement.” Tinter v. Lucik, 172 Ohio App.3d 692, 2007-Ohio-4437, 876 N.E.2d 1026 (8th Dist. 2007).
{¶17} In this case, the Canton Police Department seized appellant‘s property pursuant to arrest, stored that property, and ultimately sold the property after the trial court‘s forfeiture judgment. These actions were inconsistent with appellant‘s ownership of the property and demonstrate the possessor in this case exercised dominion and
{¶18} Appellant next argues that, pursuant to the “discovery rule,” the statute of limitations did not commence until appellant was reasonably on notice that his property would not bе returned to him and that such date is within the statute of limitations. We disagree.
{¶19} The “discovery rule” is an exception to a general statute of limitations and provides that “a cause of action accrues when the plaintiff discovers, or in the exercise of reasonable care should have discovered, that he or she was injured by the wrongful conduct of the defendant.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989). The running of the statute of limitations is delayed until triggered by a “cognizable event” that would alert a reasonable person that injury has occurred. Hutchinson v. Lehigh, 5th Dist. Tuscarawas No. 2005AP020013, 2005-Ohio-6215. Further, “constructive knowledge of facts, rather than the actual knowledge of their significance, is enough to start the statute of limitations running under the discovery rule.” Waikem v. Cleveland Clinic Foundation, 5th Dist. Stark No. 2011 CA 00234, 2012-Ohio-5620, quoting Flowers v. Walker, 63 Ohio St.3d 546, 589 N.E.2d 1284 (1992).
{¶21} In this case, the property appellant argues was converted was taken from appellant upon his arrest on January 14, 2007. Appellant filed an answer to the State of Ohio‘s forfeiture complaint on June 4, 2007 in which appеllant disputed the taking of his property was lawful and stated the property was wrongfully taken from him. Counsel for appellant appeared at the forfeiture trial to argue against the seizure of the property. A judgment entry of distribution was entered on April 30, 2008. While appellant filed a notice of appeal, he failed to request or obtain a stay of execution of the forfeiture judgment. On February 17, 2009, this Court reversed the forfeiture judgment. Though appellant states the date at which he realized he would need to sue to recover his property was within the statute of limitations, appellant fails to specify what date triggered the statute of limitations and there is no indication when this realization of his need to sue occurred. To adopt appellant‘s argument would result in an open-ended limitations period in contradiction of Ohio law regarding the “discovery rule.” Here, the latest possible “cognizable event” which would alert а reasonable person that an injury had occurred was on February 17, 2009, when this Court reversed the forfeiture judgment. Thus, even utilizing the “discovery rule,” the statute of limitations for appellant‘s conversion claim expired two years after the February 17, 2009 cognizable
{¶22} Appellant finally argues that his conversion claim is not time-barred because
{¶23} The plain language of the statute does not prohibit or bar an injured party from filing claims for conversion when a civil or criminal forfeiture is pending or instruct parties that they must wait until a forfeiture action is completed to file a complaint for conversion. Rather, the statute provides that if a complaint for conversion is filed by a party while a criminal or civil forfeiture is pending, the civil complaint for conversion is stayed until the forfeiture action is resolved. Thus,
Violations of the Fifth and Fourteenth Amendment
{¶24} We further agree with appellees that appellant‘s reliance on the Fifth and Fourteenth Amendments of the U.S. Constitution for his claim does not extend the statute of limitations. In Nadra v. Mbah, 119 Ohio St.3d 305, 2008-Ohio-3918, 893 N.E.2d 829, the Ohio Supreme Court provided that the applicable statute of limitations for
{¶25} In this case, the property appellant argues was unconstitutionally seized from him was taken from appellant upon his arrest on January 14, 2007. In his June 4, 2007 answer to the forfeiture complaint, appellant disputed the taking of his property was lawful and stated the property was wrongfully taken from him. Counsel for appellant appeared at the forfeiture trial tо argue against the State of Ohio‘s seizure of the property. This Court reversed the forfeiture judgment on February 17, 2009 and appellant knew the property had been disposed of prior to this Court‘s reversal of the forfeiture judgment. Even if we utilize the latest date when appellant knew or had reason to know of the injury оf the wrongful seizure of his property, February 17, 2009, appellant‘s August 30, 2012 complaint was filed outside the applicable two year statute of limitations contained in
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur