[Cite as Barton v. Cuyahoga Cty,,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CARLTON BARTON, JR., ET AL., :

Plaintiffs-Appellants, : No. 109229 v. :

COUNTY OF CUYAHOGA, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 31, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-857905

Appearances:

Darryl E. Pittman, for appellants.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for appellees.

MARY J. BOYLE, P.J.:

Plaintiffs-appellants, Carlton Barton, Jr., Darryl E. Pittman, Esq., and

Pittman, Alexander Attorneys Co. L.P.A., appeal from the trial court’s denial of their

motion for summary judgment and grant of summary judgment to defendants- appellees, Cuyahoga County and Timothy McGinty, Esq. (collectively, “County”).1

Appellants raise two assignments of error for our review:

1. The [court] abused its discretion in denying the Plaintiff[s]- Appellants’ motion for summary judgment because no material issues of fact were in dispute, and Plaintiff[s]-Appellants were entitled to judgment as a matter of law.

2. The court abused its discretion in granting Defendants’ Motion for Summary Judgment because material issues of fact existed and because defendants were not entitled to judgment as a matter of law.

Finding no merit to the assignments of error, we affirm the trial

court’s judgments.

I. Procedural History and Factual Background

In January 2016, appellants filed a complaint against the County for

“unlawful retention of forfeited funds,” breach of contract, unjust enrichment, and

fraud. The complaint states that Pittman and his firm represented Barton in a civil

case against Uri Gofman and Karka, Inc. and obtained judgment against them on

September 18, 2013. According to the complaint, Gofman and Karka were also

convicted for racketeering activity in separate criminal proceedings and forfeited

funds to the County. Appellants allege that they cooperated and shared information

with the County to assist the prosecution of Gofman and Karka. According to the

complaint, in exchange for their cooperation, the County agreed that if Barton

succeeded in the civil case against Gofman and Karka, he could collect the funds that

1 When many of the events underlying this litigation occurred, the Cuyahoga County Prosecutor was Bill Mason. Timothy McGinty succeeded Mason, and Michael O’Malley succeeded McGinty. When this case was filed in 2016, appellants named McGinty as a defendant in 2018. Gofman and Karka forfeited. Appellants allege that they have requested the

forfeited funds up to the amount of their judgment from the civil suit, but the County

has refused to release the funds.

In March 2016, appellants filed an amended complaint against the

County for “unlawful retention of forfeited funds” pursuant to “R.C. 2923.34 and/or

2981.06,” replevin, and conversion. Appellants no longer seek claims for breach of

contract, unjust enrichment, or fraud. The amended complaint adds allegations that

appellants made a public records request for the County’s accounting information

and learned that the County possesses the forfeited funds.

The County moved to dismiss the amended complaint, arguing in part

that it was immune from all of appellants’ claims. The trial court denied the motion,

and the County appealed. This court affirmed, finding that the claims were for

equitable relief, and R.C. Chapter 2744 therefore did not bar the claims “at this stage

of the litigation.” Barton v. Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-

7171, ¶ 31-32.

In August and September 2019, the parties filed cross-motions for

summary judgment. The following facts are from the evidence supporting the

motions.2

In 2005, Barton saw a newspaper advertisement looking for investors

to purchase homes with no money down. He called the number in the advertisement

2 The County argues that much of appellants’ support for their summary judgment motion is improper under Civ.R. 56(C). Our recitation of the facts comes from only evidence that is proper under Civ.R. 56(C), which we discuss more thoroughly below. and worked with Realty Corporation of America to purchase seven rental properties

from an investor “who was trying to liquidate his assets.”3 Barton selected the

properties from a list, visited them for less than an hour each, and did not have them

inspected. When Barton received copies of the executed purchase agreements, he

noticed that inaccurate values were added after he signed them. For example,

Barton purchased the homes with no money down, but the purchase agreements

reflected that Barton had made down payments. Meanwhile, the properties Barton

purchased needed substantial repairs. He received rental payments from the

tenants, but he could not keep up with the cost of maintaining the properties. He

defaulted on the mortgages and lost all the properties to foreclosure by 2008.

In 2008, Barton brought a “mortgage fraud racketeering” lawsuit

against Realty Corporation of America and others involved in flipping the

properties, including Gofman, Real Asset Fund, Inc., and Karka, Inc. Gofman

formed Real Asset Fund and used the company to purchase, renovate, manage, and

sell the properties that Barton purchased. Gofman also formed Karka as a holding

company that acquired Real Asset Fund as a subsidiary. In 2010, Barton voluntarily

dismissed his lawsuit and five months later refiled it against 22 defendants,

including Gofman, Karka, and Real Asset Fund. Barton Jr. v. Realty Corp. of Am.,

et al., Cuyahoga C.P. No. CV-10-739282.

3 Barton purchased more than seven rental properties, but only seven were included in his civil lawsuit. In 2010 and 2011, the state of Ohio prosecuted Gofman and Karka in

separate criminal proceedings. Both pleaded guilty to engaging in a pattern of

corrupt activity in violation of R.C. 2923.32, and the trial court ordered them to

forfeit funds to the state. Barton and Pittman knew about the criminal proceedings

but were not made aware of the forfeiture orders, did not file anything to delay the

forfeiture orders, and did not seek any of the forfeited funds at the time.

The fiscal director of the Cuyahoga County’s Prosecutor’s Office

(“CCPO”), James Ginley, stated in an affidavit that in late 2012 and early 2013, Ohio

“was the drawer of checks” sent to CCPO “relative to forfeited funds” by Gofman and

Karka. CCPO deposited the checks into a bank account that it maintains “for its

share of proceeds from criminal forfeiture orders,” called the “Law Enforcement

Trust Fund” (“LETF account”). CCPO has never “segregated any deposits made”

into the LETF account, and McGinty “significantly spent down” the balance of the

LETF account. Ginley averred that he reviewed the LETF account records, which he

says show that McGinty had spent the deposits related to Gofman and Karka’s

forfeited funds or, “at a minimum,” the funds are “no longer traceable” in the LETF

account.

In 2013 in Barton’s civil proceeding, a trial ensued on Barton’s claims

against Gofman, Karka, and Real Asset Fund. The defendants did not appear, but

their counsel appeared on their behalf. The trial court took judicial notice of the

guilty pleas that Gofman, Karka, and Real Asset Fund entered in separate criminal

cases and found that they engaged in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and (A)(3). The trial court found Barton’s damages to be

$52,840 for mortgage payments and repairs on the properties he purchased because

of the three defendants’ racketeering activities. The trial court determined, pursuant

to R.C. 2923.34(E), that because Barton proved his claim by clear and convincing

evidence, “he is entitled to have those damages trebled to $158,520.” The trial court

held a separate hearing to determine attorney fees and found that Barton’s “counsel

is entitled to” $284,193.30 in attorney fees and $15,861.05 in court costs. The trial

court ordered that Gofman, Karka, and Real Asset Fund are jointly and severally

liable for the damages. Appellants argued in their summary judgment motion that

they are entitled to a portion of the funds that Gofman and Karka forfeited to satisfy

their civil judgment.

On October 30, 2019, the trial court entered two judgments: one

denied appellants’ summary judgment motion, and the other granted the County’s.

It is from these judgments that appellants timely appeal.

II. County’s Motion to Dismiss Appeal

The County argues that we should dismiss appellants’ appeal because

(1) appellants failed to timely attach to the notice of appeal the trial court’s

judgments denying appellants’ summary judgment motion and granting the

County’s summary judgment motion; (2) appellants failed to cite to “record

evidence”; (3) the evidence on which appellants relied in their summary judgment

motion did not meet Civ.R. 56(C)’s standards; and (4) Pittman’s law firm is out of

business and lacks standing to appeal. The County’s arguments regarding appellants’ evidence do not affect the validity of the appeal but rather are

considerations on the merits. We also need not address the County’s argument

regarding Pittman’s firm because we find the firm is not entitled to damages.

Therefore, we will address only the County’s first two arguments here.

First, parties must attach to the notice of appeal “a copy of the

judgment or order appealed from (journal entry) signed by the trial judge and time-

stamped with the date of receipt by the clerk. The subject attachments are not

jurisdictional but their omission may be the basis for a dismissal.”

Loc.App.R. 3(B)(1); see also N. Chem. Blending Corp. v. Strib Indus., 8th Dist.

Cuyahoga No. 105911,

(“[T]he failure to attach a copy of the

order being appealed from is not a jurisdictional defect.”). Here, appellants did not

attach the trial court judgments to the notice of appeal. This court, however, sua

sponte ordered appellants to do so, and appellants then filed the two judgments.

The County later moved to dismiss appellants’ appeal for their failure to initially

attach the judgments, which we denied. The County now makes the same argument,

and we again reject it. The failure to attach a judgment entry to a notice of appeal is

not a jurisdictional defect, and appellants supplemented the record with the

judgment entries. Loc.R. 3(B)(1); N. Chem. Blending Corp. at ¶ 24.

Second, the appellant’s brief must cite to the “parts of the record on

which appellant relies.” Ohio App.R. 16(A)(7). An appellate “court may disregard

an assignment of error presented for review if the party raising it fails to identify in

the record the error on which the assignment of error is based[.]” App.R. 12(A)(2). Appellants maintain that they need not use a particular format to cite to the record

and that the record on appeal is incomplete. After review of the record, we find that

the record is complete, and appellants’ brief contains almost no citations, in any

format. However, we have the discretion to review an assignment of error despite

failure to cite to the record. Najjar v. Najjar, 8th Dist. Cuyahoga No. 91789, 2009-

Ohio-3880, ¶ 9, citing App.R. 12(A)(2). In our discretion, we will consider the

assignments of error.

Accordingly, we deny the County’s motion to dismiss and address the

merits of the appeal.

III. Opposing Motions for Summary Judgment

In their two assignments of error, appellants argue that the trial court

erred in denying their summary judgment motion and granting the County’s

because the trial court improperly applied Ohio’s forfeiture law. The parties’

arguments for both assignments of error are intertwined, and we will address the

assignments of error together.

We review a trial court’s judgment granting a motion for summary

judgment de novo. Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744,

. Thus, we independently “examine the evidence to determine

if as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of

Edn.,

,

(8th Dist. 1997). We therefore

review the trial court’s order without giving any deference to the trial court. Citizens

Bank at ¶ 28. “On appeal, just as the trial court must do, we must consider all facts and inferences drawn in a light most favorable to the nonmoving party.” Glemaud

v. MetroHealth Sys., 8th Dist. Cuyahoga No. 106148,

.

Pursuant to Civ.R. 56(C), summary judgment is proper where (1)

“there is no genuine issue as to any material fact,” (2) “the moving party is entitled

to judgment as a matter of law,” and (3) “reasonable minds can come to but one

conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made.” Harless v. Willis Day Warehousing Co.,

,

(1978). Trial courts should award summary judgment

only after resolving all doubts in favor of the nonmoving party and finding that

“reasonable minds can reach only an adverse conclusion” against the nonmoving

party. Murphy v. Reynoldsburg,

,

(1992).

A. Appellants’ Summary Judgment Evidence

We must first address the County’s argument that appellants’

summary judgment evidence fails to meet Civ.R. 56(C)’s standard. The County filed

a motion to strike appellants’ summary judgment exhibits, and the trial court denied

the motion without opinion. Specifically, the County challenges: (1) appellants’

response to a motion for a protective order filed in this case; (2) uncertified copies

of the forfeiture orders in Gofman and Karka’s criminal cases; (3) the County’s

combined interrogatories and document production; (4) an unauthenticated

memorandum of understanding; (5) unauthenticated County financial records; and (6) Barton and Pittman’s affidavits that contradict deposition testimony and

purport to incorporate the facts in their preliminary statement.

Civ.R. 56(C) provides an exclusive list of materials that parties may

use to support a motion for summary judgment:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.

In applying this rule, Ohio courts have consistently held that “if an exhibit or item

of evidence does not fall within one of the cited categories of permissible materials,

it can only be viewed when it has been incorporated by reference into an affidavit

which satisfies Civ.R. 56(E).” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-

0036,

; LTF 55 Props. v. Charter Oak Fire Ins. Co., 8th Dist.

Cuyahoga No. 108956,

.

Civ.R. 56(E) sets forth the criteria for affidavits:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.

“The affidavit must properly authenticate the evidence, which requires the affiant to

have personal knowledge ‘gained through firsthand observation or experience.’”

Bonacorsi v. Wheeling & Lake Erie Ry. Co.,

,

,

, ¶ 26, quoting Black’s Law Dictionary 875 (7th Ed. 1999). Decisions concerning the admission or exclusion of evidence are

within the discretion of the court and will not be reversed absent an abuse of that

discretion. Beard v. Meridia Huron Hosp.,

,

,

. An abuse of discretion is shown when a decision is

unreasonable, that is, when there is no sound reasoning process that would support

the decision. AAA Ents. v. River Place Community,

,

(1990).

First, appellants’ response to a motion for a protective order is not

proper summary judgment evidence. See Meadows v. Freedom Banc, Inc., 10th

Dist. Franklin No. 03AP-1145,

(“The parties’ briefs and

memoranda of law are not considered evidence under Civ.R. 56(C)”); Hickman v.

Ford Motor Co.,

,

(8th Dist. 1977) (“It is clear

that the briefs of the parties and memorandums of law are not properly considered

evidence under Civil Rule 56(C).”).

Second, the uncertified forfeiture orders from Gofman and Karka’s

criminal cases are likewise improper summary judgment evidence. Civ.R. 56(C).

However, James Ginley, the County’s fiscal director, stated in an affidavit that based

upon his review of records available to him, the County “received criminal forfeiture

proceeds pertaining to the State v. Karka, Inc., et al. criminal cases, CR 10-536877

or State v. Uri Gofman, et al. CR 11-557589, in late 2012 and early 2013” and that

“Judge Gaul ordered funds forfeited to the State.” The relevant evidence from the uncertified forfeiture orders is therefore also in the record via evidence that complies

with Civ.R. 56(C).

Third, we agree with the County that Civ.R. 56(C) does not permit

appellants to attach documents that the County produced in discovery because the

documents were not “placed in the record” through a deposition or affidavit.

Civ.R. 56(C) includes as proper summary judgment evidence answers to

interrogatories. However, Civ.R. 56(C) does not include document production,

unless the documents produced have been incorporated by reference into an

affidavit that satisfies Civ.R. 56(E). See Smith v. Gold-Kaplan, 8th Dist. Cuyahoga

No. 100015,

(trial court did not abuse its discretion in

excluding unauthenticated documents produced in discovery because “Civ.R. 56(C)

plainly states that ‘[n]o evidence or stipulation may be considered except as stated

in this rule.’”). Appellants submitted the County’s document production as a

supplemental exhibit to their summary judgment motion without incorporating it

into an affidavit that satisfies Civ.R. 56(C).

Fourth, Barton’s affidavit fails to authenticate the memorandum of

understanding. The memorandum states that the Ohio Organized Crime

Investigations Commission established “an organized crime task force #08-1 to

investigate organized criminal activity.” The body of the memorandum states that

it is being executed by the Commission and six law enforcement agencies, including

the County. In the version of the memorandum attached to appellants’ summary

judgment motion, certain words and sections are circled, and only the County had signed it. Barton’s affidavit specifically states that Barton “had no knowledge” of the

memorandum, and the affidavit contains no basis for Barton to have personal

knowledge about it.

Fifth, we agree with the County that the trial court abused its

discretion by failing to strike records titled “Cuyahoga County Prosecutor’s Office

Cash Account Register For the Period From Jan 1, 2012 to Dec 31, 2013.” “A witness

authenticating records need not have personal knowledge of the creation of the

document,” but “the witness must have personal knowledge of the record-keeping

system in which the documents were maintained.” Bank of N.Y. Mellon v. Roulston,

8th Dist. Cuyahoga No. 104908,

(finding that a loan

servicing agent’s affidavit stating that she reviewed records from a borrower’s

previous loan servicer did not authenticate the records because it did not state that

the agent was familiar with the previous servicer’s record-keeping system.). Pittman

averred that the records are “a true and accurate copy of [a] Cash Account Register

I received from the Prosecutor’s Office both in response to a Public Information

Access Request and in response to [appellants’] discovery request.” The records are

incomplete, starting at page two of eight and ending at page seven of eight, and

contain handwritten notations. Although Pittman has personal knowledge of where

he received the documents, his affidavit does not demonstrate that he has personal

knowledge of the record-keeping system in which the documents were maintained,

that the documents are what they purport to be, that they were made in the ordinary

course of business, or that the information contained in the documents is accurate. Sixth, the County maintains that Barton and Pittman improperly

incorporated the preliminary statement of their summary judgment motion into

their affidavits without listing out each fact individually. Barton and Pittman both

aver that they have reviewed the facts in the Preliminary Statement, “and they are

true as I verily believe.” The County cites to State ex rel. Simonetti v. Summit Cty.

Bd. of Elections,

,

,

, ¶ 11, for the

proposition that an affidavit made “to the best of” someone’s “personal knowledge

and information” is insufficient. This citation is misplaced because Simonetti

involves affidavits supporting original-action complaints, not affidavits pursuant to

Civ.R. 56(E). “The statement in the affidavit that the facts set forth in the

preliminary statement are incorporated and ‘are true to the best of my knowledge

and belief’ is sufficient to constitute an affidavit.” State ex rel. Corrigan v.

Seminatore,

,

(1981). Although such a

statement “leaves much to be desired,” the trial court has discretion to accept it in

support of a motion for summary judgment.

.

Finally, Barton’s affidavit contradicts his deposition testimony. In his

opposition to the County’s summary judgment motion, Barton asserts that he met

in person with former County prosecutor, Bill Mason, while attending a police rally,

and Barton’s affidavit states that he believes the facts in the motion to be true. But

in his deposition, Barton testified that he never met with Mason. “[A]n affidavit of

a party opposing summary judgment that contradicts former deposition testimony

of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat a motion for summary judgment.” Byrd v. Smith,

,

,

, paragraph three of the syllabus. Barton

provides no explanation for the contradiction, and Barton’s assertion that he met

with Mason cannot create a genuine issue of material fact.

Accordingly, we find that the trial court abused its discretion in failing

to strike appellants’ response to the County’s motion for a protective order, the

uncertified court documents, the memorandum of understanding, the

unauthenticated County financial records, and the County’s document production.

Accordingly, we have not considered this evidence in our de novo review.

B. Statutory Claim

Appellants title their first claim against the County as “unlawful

retention of forfeited funds” and base the claim on “R.C. 2923.34 and/or 2981.06.”4

They maintain that R.C. 2923.34(M)(1) authorizes them to recover the funds that

Gofman and Karka forfeited to satisfy appellants’ civil judgment against them, and

that R.C. 2981.04(E)(3) provides a private right of action against the County.

R.C. 2923.34(A) authorizes persons injured by a pattern of corrupt

activity violating R.C. 2923.32 to initiate a civil proceeding against any person who

has violated R.C. 2923.32. The statute states:

Any person who is injured or threatened with injury by a violation of section 2923.32 of the Revised Code may institute a civil proceeding in an appropriate court seeking relief from any person whose conduct

4R.C. 2981.06 provides the procedures after an entry of a forfeiture order. It is unclear how this section supports a claim for “unlawful retention of forfeited funds,” and appellants do not explain how it applies. We therefore do not address this provision. violated or allegedly violated section 2923.32 of the Revised Code or who conspired or allegedly conspired to violate that section, except that the pattern of corrupt activity alleged by an injured person or person threatened with injury shall include at least one incident other than a violation of division (A)(1) or (2) of section 1707.042 or division (B), (C)(4), (D), (E), or (F) of section 1707.44 of the Revised Code, of 18 U.S.C. 1341, 18 U.S.C. 1343, 18 U.S.C. 2314, or any other offense involving fraud in the sale of securities.

R.C. 2923.34(M)(1) provides that anyone who succeeds in such a civil

proceeding has a right to the property criminally forfeited if the civil action is

brought within 180 days after the forfeiture order:

Any person who prevails in a civil action pursuant to this section has a right to any property, or the proceeds of any property, criminally forfeited to the state pursuant to section 2981.04 of the Revised Code or against which any fine under section 2923.32 of the Revised Code or civil penalty under division (H) of this section may be imposed.

The right of any person who prevails in a civil action pursuant to this section, other than a prosecuting attorney performing official duties under that section, to forfeited property, property against which fines and civil penalties may be imposed, and the proceeds of that property is superior to any right of the state, a municipal corporation, or a county to the property or the proceeds of the property, if the civil action is brought within one hundred eighty days after the entry of a sentence of forfeiture or a fine pursuant to sections 2923.32 and 2981.04 of the Revised Code or the entry of a civil penalty pursuant to division (H) of this section.

The right is limited to the total value of the treble damages, civil penalties, attorney’s fees, and costs awarded to the prevailing party in an action pursuant to this section, less any restitution received by the person.

Here, Barton prevailed against Gofman and Karka on his allegations

that they violated R.C. 2923.32. Barton therefore has a right to the proceeds that

Gofman and Karka criminally forfeited up to the amount of the total value of his

damages, attorney fees, and costs. Barton’s right to the forfeited property is superior to any right of the state or county if Barton brought his civil action pursuant to

R.C. 2923.34(A) within 180 days after the forfeiture order.

The County argues that appellants’ statutory claim fails because (1)

appellants did not bring this lawsuit against it within 180 days, (2) appellants have

no private cause of action for their statutory claim; (3) the two-year statute of

limitations for claims against political subdivisions bars appellants’ claim, (4) the

County is immune to appellants’ claim, and (5) appellants should be seeking the

forfeited funds from Ohio instead of the County. The two-year statute of limitations

and the County’s potential political subdivision immunity apply only to tort claims

for damages, so neither bars appellants’ statutory claim. See Thornton v. Cleveland,

,

,

(8th Dist.).

We disagree with the County’s interpretation of R.C. 2923.34(M)(1)

that appellants had 180 days after the forfeiture orders to file this lawsuit against the

County to recover the forfeited funds. The 180-day requirement pertains to Barton’s

civil action against Gofman and Karka (which he filed before the forfeiture orders),

not to appellants’ action against the County to recover the funds.

Regardless, appellants have no private right of action to sue the

County to recover the forfeited funds. “In determining whether statutes may create

a private cause of action for enforcement, the Ohio Supreme Court has held that a

‘statutory policy’ may not be implemented by the Ohio courts in a private civil action

absent a clear implication that such a remedy was intended by the Ohio Legislature.” Ayers v. Cleveland,

,

(8th Dist.), quoting

Fawcett v. G.C. Murphy & Co.,

,

(1976).

Appellants argue that R.C. 2981.04(E)(3) creates a private right of

action because it “provides that any person with interest in the forfeited property

may petition the court to adjudicate the validity of its sake in the property.”

(Emphasis sic.) Appellants’ reliance on R.C. 2981.04(E)(3) is misplaced.

R.C. 2981.04 provides the procedure for criminal forfeiture proceedings. Pursuant

to R.C. 2981.04(D), after the entry of a forfeiture order, the prosecutor “shall

attempt to identify any person with an interest in the property subject to forfeiture

by searching appropriate public records and making reasonably diligent inquiries.”

The prosecutor must also publish notice of the forfeiture “in a newspaper of general

circulation in the county in which the property was seized” once a week for two

consecutive weeks. R.C. 2981.04(D). Any person who has an interest in the

forfeited property may file in the court that issued the forfeiture order a petition or

an affidavit asserting their interest, and the petition or affidavit must be filed within

thirty days of the person’s receipt of notice under R.C. 2981.04(D).

R.C. 2981.04(E)(1)(a); R.C. 2981.04(E)(2)(a). R.C. 2981.04(E)(3) provides that the

court must hold a hearing if it receives such a petition or affidavit and outlines the

procedure for the hearing.

In other words, R.C. 2981.04(E)(3) gives parties with an interest in

forfeited property a right to a hearing in the court that issued the forfeiture order

within thirty days of the forfeiture order. It does not authorize a party to sue a county to recover forfeited funds at all, let alone four years after the forfeiture orders and

three years after obtaining a legal right to the forfeited property.

Appellants maintain that the County “committed wholesale violations

of [R.C.] [C]hapter 2981” by failing to give them notice of Gofman and Karka’s

forfeiture proceedings, to disburse the funds to them as victims, to hold the funds in

a LETF account, and to maintain records regarding the funds. There is no dispute

that appellants did not receive notice of the forfeiture orders and that appellants did

not file any petitions or affidavits in Gofman or Karka’s criminal cases. However, at

the time of the forfeiture orders in Gofman and Karka’s cases, appellants had no

lawful interest in the forfeited funds, so the County prosecutor had no duty to

specifically notify them. The forfeiture orders contained no order to pay restitution

to appellants as victims. And the affidavit of the County’s fiscal director shows that

the County did deposit the funds into its LETF account and maintained the account’s

records. More importantly, the County’s alleged violations of R.C. Chapter 2981 do

not create a private, statutory cause of action.

Accordingly, appellants have no private cause of action to bring their

statutory claim for “unlawful retention of forfeited funds” against the County, and

we need not address the parties’ arguments about whether appellants should be

seeking the forfeited funds from Ohio.

We find that there are no genuine issues of material fact, reasonable

minds can come to only one conclusion in favor of the County, and the County is

entitled to judgment as a matter of law on appellants’ statutory claim for “unlawful retention of forfeited funds.” The trial court therefore did not err in denying

appellants’ summary judgment motion and granting the County’s summary

judgment motion on this claim.

C. Tort Claims

In addition to the statutory claim, appellants also bring claims for

replevin and conversion. Appellants did not seek summary judgment on these

claims, but the County did, and the County contends that appellants abandoned the

claims. The County argues that appellants seek legal damages, as opposed to

equitable relief, and the claims are therefore time barred. The County also

maintains that it is immune to appellants’ claims as a political subdivision and as a

prosecuting entity.

Tort actions against political subdivisions to recover damages must

be brought within two years after the cause of action accrued. R.C. 2744.04(A). The

parties agree that the County is a political subdivision. However, this two-year

statute of limitations does not apply to equitable claims. See Bd. of Edn. of the

Loveland City School Dist. v. Bd. of Trustees of Symmes Twp.,

,

(1st Dist.) (R.C. 2744.04 two-year statute of limitations did not

apply to claims for equitable relief). Therefore, whether appellants’ claims are time

barred depends on whether they seek equitable relief or monetary damages.

In our previous decision in this case, we determined that appellants’

claims are for equitable relief, not monetary damages. Barton, 8th Dist. Cuyahoga

No. 105008,

, at ¶ 31. However, after we released our opinion in 2017, the Ohio Supreme Court decided Cleveland v. Ohio Bur. of Workers’ Comp.,

,

,

, which clarified the distinction

between legal and equitable relief.

In Ohio Bur. of Workers’ Comp., an employer alleged that it paid

excessive premiums to the Ohio Bureau of Workers’ Compensation (“BWC”) and

that it was entitled to reimbursement of the overpayments. The Ohio Supreme

Court was asked to determine whether the claim to recover overpaid premiums was

an equitable claim or a legal claim. Id. at ¶ 9. The court explained that a claim seeks

legal damages, as opposed to equitable relief, “if there is not a specifically

identifiable fund, or traceable items on which the money from the fund was spent[.]”

Id. at ¶ 16. A claim is a legal one if it seeks “to recover from a defendant’s general

assets rather than ‘specifically identified funds that remain in the defendant’s

possession.’” Id., quoting Montanile v. Natl. Elevator Industry Health Benefit Plan

Bd. of Trustees,

,

,

(2016). Equitable

claims, however, generally “‘give or enforce a right to or over some particular thing.’”

quoting

.

Even though BWC kept track of the employer’s premium payments,

the payments “went into a general insurance fund” and “were not kept separate from

payments made by other public employers.” Id. at ¶ 17. When the employer’s

premium went into the general fund, “it became comingled” with other employers’

payments. Id. The court found that “[i]t is inconceivable how money belonging to”

the employer could be clearly traced to certain funds in the BWC’s possession. Id. The court further determined that BWC had spent the payments and that the

payments were “no longer in the BWC’s possession and cannot be recovered by a

suit in equity.” Id. The court held that the employer’s claim therefore “sounds in

law.” Id.

Here, Ohio sent checks to CCPO for the proceeds from the funds that

Gofman and Karka forfeited. CCPO deposited these checks into its LETF account,

where it also deposited other proceeds from other criminal forfeiture orders.

Gofman and Karka’s forfeited funds were not kept separate from the funds of other

forfeiture proceeds within CCPO’s LETF account. Since CCPO deposited the funds

in late 2012 and early 2013, the account balance of the LETF account has been

“significantly spent down.” Gofman and Karka’s forfeited funds have been

comingled with other forfeited funds and have been used in the seven years that

have passed since the County received them. The funds are not specifically

identifiable and are not in the County’s possession. Therefore, pursuant to

Cleveland v. Ohio Bur. of Workers’ Comp., the funds cannot be recovered by a suit

in equity. Appellants therefore cannot seek equitable relief, and their claims are for

monetary damages.

Accordingly, the two-year limitation period in R.C. 2744.04(A)

applies to appellants’ tort claims. Barton succeeded in his civil action against

Gofman and Karka in 2013 but did not bring this lawsuit against the County until

2016, over two years later. Appellants’ tort claims are time barred, and we need not

address the County’s immunity and abandonment arguments. We therefore find that there are no genuine issues of material fact,

reasonable minds can come to only one conclusion in favor of the County, and the

County is entitled to judgment as a matter of law on appellants’ replevin and

conversion claims. The trial court therefore did not err in denying appellants’

summary judgment motion and granting the County’s summary judgment motion

on these claims.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and MARY EILEEN KILBANE, J., CONCUR