[Cite as Davis v. Clark Cty. Bd. of Commrs.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

FRANK DAVIS : : Appellate Case No. 2011-CA-84 Plaintiff-Appellant : : Trial Court Case No. 11-CV-52 v. : : CLARK COUNTY BOARD OF : COMMISSIONERS, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellees : : ...........

OPINION

Rendered on the 28th day of June, 2013.

...........

WILLIAM D. BELL, SR., Atty. Reg. #0027596, 830 Main Street, Suite 604, Cincinnati, Ohio 45202 Attorney for Plaintiff-Appellant, Frank Davis

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 Director, 76 East High Street, Springfield, Ohio 45502 Attorneys for City of Springfield, Det. Greg E. Nourse and Chief Steve Moody LAWRENCE BABICH, Atty. Reg. #0001386, and STACY HANNAN, Atty. Reg. #0081094, Office of the Ohio Attorney General, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215 Attorneys for Mike DeWine and Nancy Rogers .............

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,

(Dec. 8, 2000). Davis moved

to suppress evidence. The trial court overruled the motion.

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.

The

trial court found Davis guilty and sentenced him to eleven years in prison.

In his appeal,

Davis argued that the search warrant did not include the “curtilage” portion of his residence.

We disagreed, and affirmed the judgment.

[Cite as Davis v. Clark Cty. Bd. of Commrs.,

.] {¶ 4} In 2003, Davis moved to withdraw his plea. The trial court overruled the

motion. State v. Davis, 2d Dist. Clark No. 2003-CA-87,

. On appeal, we

reversed the order overruling his motion to withdraw, and the cause was remanded for a hearing

on the issue of whether Davis would have entered a plea “despite the trial court’s failure to

inform him that he was ineligible for judicial release.” Id. at ¶ 30.

{¶ 5} On remand, the trial court permitted Davis to withdraw his prior plea, thereby

vacating his conviction. State v. Davis,

,

,

(2d Dist.). In January 2005, Davis moved again to suppress evidence, arguing that the

affidavit upon which the original search warrant was based was insufficient to support a finding

of probable cause.

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 the 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,

. 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 convictions resulting from those

pleas. State v. Davis, 2d Dist. Clark No. 06-CA-79,

. No further actions were

taken by the State with regard to pursuing the criminal charges. 4

{¶ 7} Thereafter, on October 6, 2008, Davis filed a civil complaint for wrongful

imprisonment in the Clark County Court of Common Pleas against: the Clark County Board of

Commissioners, various commissioners individually, the City of Springfield, Springfield

Detective Greg Nourse, Springfield Chief of Police Steve Moody, and Ohio Attorney General

Nancy Rogers. The complaint also stated a federal civil rights claim pursuant to

. The defendants removed the action to federal court. The federal court dismissed the

action on January 21, 2010; the dismissal was with prejudice to the federal claims, but without

prejudice to the state claims.

{¶ 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 imprisonment.” 1 The trial court further found that the claims for civil

1 The wrongful imprisonment claim against DeWine and the State of Ohio was not dismissed; those parties had not sought 5

conspiracy and malicious prosecution against these defendants were barred by the applicable

statutes of limitation. Therefore, the trial court granted the motions to dismiss, leaving only the

State of Ohio and the Ohio Attorney General, Mike DeWine, as parties. Davis appeals.

II. The Trial Court Did Not Find that the

State of 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 for 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 conclude 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.

dismissal. Davis does not dispute the correctness of the dismissal of the wrongful imprisonment claims against all other parties. 6

{¶ 13} The First Assignment of Error is overruled.

III. The Trial Court Did Not Hold that the Claims Against Nourse, Moody,

and 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 these

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 7

for Malicious Prosecution and Civil Conspiracy.

{¶ 18} Davis’s Third Assignment of Error provides:

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,

, ¶ 20, quoting Kenty v. Transamerica Premium Ins. Co.,

,

(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

allegations, would give rise to an independent cause of action.” Cully v. St. Augustine Manor,

8th Dist. Cuyahoga No. 67601,

, * 4 (April 20, 1995). In other words, “[a]n

underlying unlawful act is required before a civil conspiracy claim can succeed.”

quoting

Williams v. Aetna Fin. Co.,

,

,

. 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 8

limitations statutes of four years. See R.C. 2305.09 (trespass) and Hidey v. Ohio State Highway

Patrol,

,

(10th Dist. 1996). He claims that the statute

of limitations began to run in 2006 when this court “made him aware” of the void sentence.

{¶ 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. R.C.

2305.11(A). In the alternative, they contend that they are all either a political subdivision or

employees of a political subdivision, so that the claims against them are subject to the two-year

statute of limitations set forth in R.C. 2744.04(A).

{¶ 23} “R.C. 2744.04(A) is a special provision governing the statute of limitations in

tort cases against political subdivisions and it prevails over the general statutes of limitations

contained in R.C. Chapter 2305.” Read v. Fairview Park,

,

(8th Dist. 2001) (Emphasis sic.) It applies to political subdivisions and their employees.

Id.at 19. Therefore, the two-year limitations period of R.C. 2744.04 prevails over the general

four-year limitations period for trespass and invasion of privacy.2

{¶ 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

2 We are not aware of a specific statute of limitations for common law invasion of property, which Davis argues to be a claim set forth in his amended complaint. 9

warrant. Thus, Davis knew, or should have known, of the lack of probable cause for the actions

of the individual defendants forming the basis for his civil conspiracy claim by the date our

opinion was released, at the very latest. He failed to file the amended complaint setting forth his

civil conspiracy claim within two years from that date. Therefore, the civil conspiracy action is

also barred by the statute of limitations.

{¶ 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) termination of prosecution in favor of the accused.’ ” Froehlich v. Ohio Dept. Of

Mental Health,

,

,

, quoting Trussell v.

Gen. Motors Corp.,

,

(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} R.C. 2744.04(A) provides that actions against a political subdivision must be

brought within two years after the cause of action accrues, “or within any applicable shorter

period of time for bringing the action provided by the Revised Code.” R.C. 2305.11(A)

provides in pertinent part that “[a]n action for * * * malicious prosecution * * * shall be

commenced within one year after the cause of action accrued * * * .” 10

{¶ 28} Davis’s initial action in Clark County was filed on October 6, 2008, more than

one year after the criminal charges against him were dismissed, thereby terminating the criminal

action in his favor. Thus, this claim is also barred by the statute of limitations.

{¶ 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 R.C. 2744.04 and 2305.11(A) when he filed it on October 6,

2008, and all subsequent complaints were likewise untimely.

{¶ 30} We conclude that the 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:

3 We note that Attorney General Mike DeWine seeks to have this court declare that he is not a proper party to the action for wrongful imprisonment. However, the judgment of the trial court does not address this issue. The claims against DeWine and the State of Ohio have not yet been adjudicated in the trial court, and are therefore outside the scope of this appeal. 11

{¶ 32} R.C. 2744.04(A) provides that an “action against a political subdivision * * *

shall be brought within two years after the cause of action accrues, or within any applicable

shorter period of time for bringing the action provided by the Revised Code.” R.C. 2744.04(B)

provides what must be included in “the complaint filed in a civil action against a political

subdivision or an employee of a political subdivision to recover damages * * *.” (Emphasis

added.)

{¶ 33} By explicit omission, R.C. 2744.04(A) does not reference actions against “an

employee of a political subdivision.” Despite this, Read v. Fairview Park states, “although not

briefed by either party, we have determined that the specific two-year statute of limitations in

R.C. 2744.04(A) applies to abuse-of-process claims against political subdivisions and their

employees.” (Emphasis sic.) Read v. Fairview Park,

,

(8th Dist. 2001). See also Bojac Corp. v. Kutevac,

,

(11th Dist. 1990), abrogated on other grounds by Nadra v. Mbah,

,

,

.

{¶ 34} The precise question of this difference was raised in Strahler v. Roby, 4th Dist.

Washington No. 90 CA 25,

(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 “under 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 12

history which, through strained processes of deduction from events of wholly ambiguous

significance, may furnish dubious bases for inference in every direction.” Gemsco, Inc. v.

Walling,

,

,

(1945). “[I]n interpreting a statute a

court should always turn first to one, cardinal canon before all others. * * * [C]ourts must

presume that a legislature says in a statute what it means and means in a statute what it says

there.” Connecticut Natl. Bank v. Germain,

,

,

(1992). Similarly, a court must assume that the legislature meant what it did not say. See,

e.g., Scheidler v. Ohio Bur. of Workers’ Comp., 10th Dist. Franklin No. 04AP584,

.

{¶ 36} The legislature 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 R.C. 2744.04(A) does not affect employees of a political

subdivision.

{¶ 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 R.C.

2744.04(A). Similarly, I agree that the malicious prosecution claims against the political

subdivisions or any individuals are barred since more than one year passed between the dismissal

of the charges and the filing of the complaint.

{¶ 38} However, the complaint against any individuals for trespass is governed by the

four-year statute of limitations in R.C. 2305.09 since it is not affected by R.C. 2744.04(A). This

may seem to be a somewhat incongruous result, and perhaps not what the legislature subjectively

intended, but one which I believe is mandated by the statutes involved. Therefore, I would 13

reverse the dismissal of any individual defendants regarding the trespass claim.

..........

Copies mailed to:

William D. Bell, Sr. Mark Landes Andrew N. Yosowitz W. Charles Curley Jerome M. Strozdas Lawrence Babich Stacy Hannan Hon. Douglas M. Rastatter