FRANK DAVIS, Plaintiff-Appellant v. CLARK COUNTY BOARD OF COMMISSIONERS, et al., Defendant-Appellees
Appellate Case No. 2011-CA-84
Trial Court Case No. 11-CV-52
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
June 28, 2013
2013-Ohio-2758
(Civil Appeal from Common Pleas Court)
MARK LANDES, Atty. Reg. #0027227, and ANDREW N. YOSOWITZ, Atty. Reg. #0075306, Isaac, Brant, Ledman & Teetor, LLP, 250 East Broad Street, Suite 900, Columbus, Ohio 43215 Attorneys for Defendant-Appellees, Clark County Board of Commissioners
W. CHARLES CURLEY, Atty. Reg. #0007447, Weston Hurd LLP, 10 West Broad Street, Suite 2400, Columbus, Ohio 43215 and JEROME M. STROZDAS, Atty. Reg. #0003263, City of Springfield Law Direсtor, 76 East High Street, Springfield, Ohio 45502 Attorneys for City of Springfield, Det. Greg E. Nourse and Chief Steve Moody
FAIN, P.J.
{¶ 1} Plaintiff-appellant Frank Davis appeals from the dismissal of his complaint for malicious prosecution and civil conspiracy. Davis contends that the trial court erred by granting the defendants’ motions to dismiss, because its conclusion that the actions are barred by the applicable statutes of limitations was erroneous.
{¶ 2} We conclude that the claims are barred by the applicable statutes of limitations, so that the trial court did not err in dismissing them. Accordingly, the judgment of the trial court is Affirmed.
I. Davis‘s Causes of Action
{¶ 3} The genesis for Davis‘s complaint lies in a criminal action against him in 1998, wherein he was indicted on one count of Possession of Powdered Cocaine and two counts of Trafficking in Cocaine, along with “Major Drug Offender” and forfeiture specifications. See State v. Davis, 2d Dist. Clark No. 2000-CA-16, 2000 WL 1803626 (Dec. 8, 2000). Davis moved to suppress evidence. The trial court overruled the motion. Id. Thereafter, pursuant to a plea agreement, Davis pled guilty to the count of Possession of Powdered Cocaine and to the Major Drug Offender specification, in exchange for the dismissal of the remaining charges. Id. The trial court found Davis guilty and sentenced him to elеven years in prison. Id. In his appeal, Davis argued that the search warrant did not include the “curtilage” portion of his residence. Id. We disagreed, and affirmed the judgment. Id.
{¶ 5} On remand, the trial court permitted Davis to withdraw his prior plea, thereby vacating his conviction. State v. Davis, 166 Ohio App.3d 468, 2006-Ohio-1592, 851 N.E.2d 515, ¶ 3 (2d Dist.). In January 2005, Davis moved again to suppress evidence, arguing that the affidavit upon which the originаl search warrant was based was insufficient to support a finding of probable cause. Id. The trial court denied the motion to suppress. Davis then pleaded no contest to all counts, was found guilty, and was sentenced accordingly. Id. at ¶ 16. On appeal we reversed the conviction, concluding that the trial court had erred in denying thе motion to suppress. Id. at ¶ 55.
{¶ 6} On remand, the trial court “journalized an order requiring [Davis] to continue to serve two of the three sentences on convictions we reversed.” State v. Davis, 2d Dist. Clark No. 06-CA-66, 2006-Ohio-5305, ¶ 6. Davis petitioned for a writ of mandamus, which we granted on September 29, 2006, with an order that Davis be “released from imprisonment to stand trial on [the] charges, forthwith, and to proceed to trial on any of those charges not dismissed by the State.” Id. at ¶ 7. In an appeal decided the same date, we held that our prior judgment had “rendered void” the pleas entered by Davis to all of the charges, and reversed the order of the trial court refusing to release Davis from imprisonment for two of the conviсtions resulting from those pleas. State v. Davis, 2d Dist. Clark No. 06-CA-79, 2006-Ohio-5306. No further actions were taken by the State with regard to pursuing the criminal charges.
{¶ 8} On January 14, 2011, Davis re-filed an action for wrongful imprisonment against the same parties, and added as defendants Clark County Prosecutor Stephen Shumaker and Assistant Prosecutor Stephen Collins. The parties moved for dismissal, based upon the argument that they were not the proper parties to a wrongful imprisonment claim. Before the motions were ruled upon, Davis filed an amended complaint adding complaints for malicious prosecution and civil conspiracy, and adding the State of Ohio and Attorney General Michael DeWine as parties.
{¶ 9} Motions to dismiss were filed by the Clark County Board of Commissioners as well as commissioners Detrick, Hartley and Tackett as individuals, Nancy Rogers, Shumaker, Collins, Nourse, Moody and the City of Springfield. Davis responded to the various motions, and the matter was submitted to the trial court. On October 7, 2011, the trial court filed an entry in which it found that none of the parties who moved for dismissal were “proper parties in an action for wrongful imprisоnment.”1 The trial court further found that the claims for civil
II. The Trial Court Did Not Find that the State оf Ohio Was Not a Party to the Action
{¶ 10} Davis‘s First Assignment of Error states as follows:
THE TRIAL COURT ERRED WHEN IT FOUND THAT THE STATE OF OHIO WAS NOT A PARTY TO THE LAWSUIT.
{¶ 11} Davis contends that the trial court erroneously found that he had not made the State a party to the lawsuit. In support, he argues that Nancy Rogers, former Attorney General of Ohio, was dismissed by the trial court‘s order despite the fact that she was not named in the Amended Complaint.
{¶ 12} We find no support fоr the claim that the trial court found Davis had failed to name the State as a defendant. The trial court merely noted that the State, rather than Nancy Rogers as the Attorney General, was the proper party to the wrongful imprisonment claim. While the amended complaint did not name Rogers as a defendant, we concludе that the trial court‘s subsequent dismissal of Rogers was harmless. Although Davis did not name the State of Ohio as a defendant in his original complaint, he did name the State as a defendant in his Amended Complaint, and the order of the trial court from which this appeal is taken is consistent with those facts.
III. The Trial Court Did Not Hold that the Claims Against Nourse, Moody, аnd the City of Springfield Were Limited to Wrongful Imprisonment
{¶ 14} For his Second Assignment of Error, Davis asserts the following:
THE TRIAL COURT ERRED WHEN IT HELD THAT CLAIMS AGAINST CERTAIN OF THE DEFENDANTS-APPELLEES WERE LIMITED TO THE WRONGFUL IMPRISONMENT CLAIM.
{¶ 15} Davis contends that the trial court improperly dismissed defendants Nourse, Moody, and the City of Springfield upon the erroneous finding that they were named parties solely for purposes of the wrongful imprisonment claim. In support, he notes that thеse defendants were also subject to the claims for civil conspiracy and malicious prosecution, and therefore should have been retained in the action.
{¶ 16} Again we find no support for this argument. The trial court specifically dismissed these defendants from the action with regard to all three stated claims against them. As noted below, the trial court correctly dismissed the malicious prosecution and civil conspiracy claims because the statute of limitations had run, and Davis does not contest the dismissal of the wrongful imprisonment claim as to these defendants.
{¶ 17} Davis‘s Second Assignment of Error is overruled.
IV. The Trial Court Did Not Err in Dismissing Davis‘s Claims for Malicious Prosecution and Civil Conspiracy.
THE TRIAL COURT ERRED WHEN FOUND [SIC] THAT THE MALICIOUS PROSECUTION CLAIM AND THE CIVIL CONSPIRACY CLAIM WAS [SIC] BARRED BY THE STATUTE OF LIMITATION.
{¶ 19} Davis claims that the trial court erred in holding that his claims for malicious prosecution and civil conspiracy are barred by the applicable statutes of limitation.
{¶ 20} First, we address the issue of whether the trial court properly dismissed the action for civil conspiracy as time-barred. “A claim for civil conspiracy requires proof of ‘a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damage.‘” Kimmel v. Lowe‘s, Inc., 2d Dist. Montgomery No. 23982, 2011-Ohio-28, ¶ 20, quoting Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). “A claim for conspiracy cannot be made [the] subject of a civil action unless something is done which, in the absence of the conspiracy аllegations, would give rise to an independent cause of action.” Cully v. St. Augustine Manor, 8th Dist. Cuyahoga No. 67601, 1995 WL 237129, * 4 (April 20, 1995). In other words, “[a]n underlying unlawful act is required before a civil conspiracy claim can succeed.” Id., quoting Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 1998-Ohio-294, 700 N.E.2d 859. Thus, the applicable statute of limitations for filing a civil conspiracy is the relevant limitations statute for the underlying cause of action. Cully, supra.
{¶ 21} Davis contends that the underlying action sounds in trespass and common law invasion of property, both of which he arguably raises in his complaint and both of which have
{¶ 22} The defendants contend that the only underlying action applicable to them in this case is the malicious prosecution claim, which has a one-year statute of limitations.
{¶ 23} ”
{¶ 24} As noted above, Davis‘s original complaint was not filed until October 6, 2008, more than two years after our September 29, 2006 opinion reversing the convictions for lack of probable cause for the search. At the very latest, Davis‘s cause of action for trespass and common-law invasion of property accrued on September 29, 2006, when we rendered our opinion that there was no probable cause for the entry of the police on his property. Davis‘s civil conspiracy claim is also based upon the lack of probable cause for the issuance of the search
{¶ 25} We next address Davis‘s claim that he timely filed his claim for malicious prosecution. “The tort of malicious prosecution in a criminal setting requires proof of three essential elements: ‘(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) terminatiоn of prosecution in favor of the accused.‘” Froehlich v. Ohio Dept. of Mental Health, 114 Ohio St.3d 286, 2007-Ohio-4161, 871 N.E.2d 1159, ¶ 10, quoting Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 146, 559 N.E.2d 732 (1990).
{¶ 26} In this case, we must determine when the prosecution was terminated in favor of Davis. At the oral argument of this appeal, Davis contended that the prosecution did not terminate in his favor until the State dismissed the charges. Although the record in this appeal does not show the date that the State dismissed the criminal charges against Davis, both Davis and the Springfield individual defendants agreed in oral argument that the charges were dismissed in February 2007.
{¶ 27}
{¶ 29} Davis next argues that, because he filed the second state action within one year from the date the federal court dismissed his state claims without prejudice, his claims are timely filed. He further argues that his amended complaint, filed on January 14, 2011, also relates back to the original action. This argument ignores the fact that the original action, upon which Davis relies, was not timely filed. Thus, Davis‘s lawsuit for malicious prosecution and civil conspiracy was time-barred by
{¶ 30} We conclude that thе trial court did not err in dismissing the actions for malicious prosecution and civil conspiracy as time-barred. Accordingly, the Third Assignment of Error is overruled.
V. Conclusion
{¶ 31} All of Davis‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.3
HALL, J., concurs.
FROELICH, J., concurring in part and dissenting in part:
{¶ 33} By explicit omission,
{¶ 34} The precise question of this difference was raised in Strahler v. Roby, 4th Dist. Washington No. 90 CA 25, 1992 WL 21227 (Jan. 27, 1992), where the court reiterated the positions of the parties, but ultimately held that the issue was not properly before it since it was not presented for consideration to the trial court. Id. at *3. In Strahler, the appellees cited the Legislative Service Commission analysis that “undеr the bill, a civil action against a political subdivision or an employee of a political subdivision to recover damages” shall be brought within two years.
{¶ 35} “The plain words and meaning of a statute cannot be overcome by legislative
{¶ 36} The legislaturе knew it could include employees of the political subdivision in subpart (A) since it did so in subpart (B). I have to assume that the failure to include such language was purposeful and that
{¶ 37} I agree with the majority that any claims against the political subdivision for trespass or invasion of privacy are barred by the two-year statute of limitations of
{¶ 38} However, the complaint against any individuals for trespass is governed by the four-year statute of limitations in
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