Davis v. Clark Cnty. Bd. of Comm'rs

• Decision Date: 28 June 2013
• Docket Number: No. 2011–CA–84.,2011–CA–84.
• Citation: 994 N.E.2d 905
• Parties: Frank DAVIS, Plaintiff–Appellant v. CLARK COUNTY BOARD OF COMMISSIONERS, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

994 N.E.2d 905

Frank DAVIS, Plaintiff–Appellant

v.CLARK COUNTY BOARD OF COMMISSIONERS, et al., Defendants–Appellees.

No. 2011–CA–84.

Court of Appeals of Ohio, Second District, Clark County.

June 28, 2013.

William D. Bell, Sr., Cincinnati, OH, for Plaintiff–Appellant, Frank Davis.

Mark Landes, and Andrew N. Yosowitz, Isaac, Brant, Ledman & Teetor, LLP, Columbus, OH, for Defendant–Appellee, Clark County Board of Commissioners.

W. Charles Curley, Weston Hurd LLP, Columbus, OH, and Jerome M. Strozdas, City of Springfield Law Director, Springfield, OH, for City of Springfield, Det. Greg E. Nourse and Chief Steve Moody.

Lawrence Babich, and Stacy Hannan, Office of the Ohio Attorney General, Columbus, OH, for Mike DeWine and Nancy Rogers.

OPINION

FAIN, P.J.

{¶ 1}Plaintiff-appellantFrank 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.SeeState v. Davis, 2d Dist. ClarkNo. 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 eleven 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.

{¶ 4} In 2003, Davis moved to withdraw his plea.The trial court overruled the motion.State v. Davis, 2d Dist. ClarkNo. 2003–CA–87, 2004-Ohio-5979, 2004 WL 2538827.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,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 original 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 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. Rastatter, 2d Dist. ClarkNo. 06–CA–66, 2006-Ohio-5305, 2006 WL 2875586, ¶ 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 convictions resulting from those pleas.State v. Davis, 2d Dist. ClarkNo. 06–CA–79, 2006-Ohio-5306, 2006 WL 2875608.No further actions were taken by the State with regard to pursuing the criminal charges.

{¶ 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 GeneralNancy Rogers.The complaint also stated a federal civil rights claim pursuant to 42 U.S.C. § 1983.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 defendantsClark County Prosecutor Stephen Shumaker and Assistant ProsecutorStephen 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 GeneralMichael 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.”¹The trial court further found that the claims for civil 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 Nota 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 Statea 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.

{¶ 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–APPELLEESWERE 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 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. MontgomeryNo. 23982, 2011-Ohio-28, ¶ 20, quotingKenty 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 allegations, would give rise to an independent cause of action.”...