[Cite as Fields v. Zanesville Police Dept., 2021-Ohio-3896.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
GERALD D. FIELDS : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. CT2021-0032
ZANESVILLE POLICE DEPT., ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CH2021-0053
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 2, 2021
APPEARANCES:
For Defendant-Appellee Maddox For Plaintiff-Appellant
RONALD L. WELCH GERALD FIELDS
Muskingum County Prosecutor Noble County Correctional Facility
By: MARK A. ZANGHI 15708 McConnelsville Road
Assistant Prosecutor Caldwell, OH 43724
27 N. 5th Street, Ste. 201
Zanesville OH 43701
For Defendant-Appellee City of Zanesville Police Department
DAVID J. TARBERT
Zanesville Law Director
401 Market Street, Room 209
Zanesville, OH 43701
Muskingum County, Case No. CT2021-0032 2
Gwin, P.J.
{¶1} Appellant Gerald D. Fields appeals the June 4, 2021 judgment entry of the
Muskingum County Court of Common Pleas granting appellees’ motion for summary
judgment. Appellees are the City of Zanesville Police Department and D. Michael
Haddox, the former prosecutor of Muskingum County.
Facts & Procedural History
{¶2} In February of 2019, appellant was indicted on several counts, including
trafficking in drugs (cocaine) and trafficking in drugs (marijuana). Each of these counts
had a forfeiture specification with regards to $7,700 seized from a pillow during a search
of appellant’s residence.
{¶3} The jury found appellant guilty of the counts in the indictment. However,
with regards to the forfeiture specifications, the jury found as follows on the verdict forms
dated June 5, 2019, “We, the jury, find that the Seven Thousand Seven Hundred
($7,700.00) in lawful U.S. Currency IS NOT subject to forfeiture to the State of Ohio.”
{¶4} On June 6, 2019, the trial court issued a judgment entry finding appellant
guilty of possession of drugs (cocaine), possession of drugs (marijuana), trafficking in
cocaine, trafficking in marijuana, and illegal manufacture of drugs (cocaine). Additionally,
the judgment entry specifically provides, “the jury found the seven thousand seven
hundred dollars ($7,700) was not subject to forfeiture to the State of Ohio.” Appellant
filed a direct appeal, challenging his conviction and sentence. We affirmed his conviction
and sentence in State v. Fields, 5th Dist. Muskingum No. CT2019-0073, 2020-Ohio-3995.
The State of Ohio did not file a cross-appeal with regards to the jury’s finding that the
$7,700 seized from appellant’s home was not subject to forfeiture.
Muskingum County, Case No. CT2021-0032 3
{¶5} In November and December of 2019, appellant filed a motion for return of
property and an associated motion for judgment on the pleadings. Additionally, appellant
filed a motion to release and return unlawfully held property in July of 2020. The trial
court denied all three of appellant’s motions on September 21, 2020. Appellant did not
appeal the denial of any of these motions.
{¶6} On September 28, 2020, appellant filed a complaint/petition for a writ of
mandamus against the trial court judge, the Muskingum County Court of Common Pleas,
and the Zanesville Police Department. Appellant requested this Court order the trial court
judge and/or the Zanesville Police Department to release the $7,700 in cash.
{¶7} The trial court judge, the Muskingum County Court of Common Pleas, and
the Zanesville Police Department filed a motion to dismiss appellant’s petition for writ of
mandamus. In their motion to dismiss, respondents made one argument: that appellant
was not entitled to a writ of mandamus because he had an adequate remedy at law,
appealing the decisions of the trial court denying his motions to return property.
{¶8} In Fields v. Cottrill, 5th Dist. Muskingum No. CT2020-0046, 2020-Ohio-
5163, we granted the motion to dismiss the mandamus petition because appellant had
an adequate remedy at law. However, we did not find persuasive or adopt the reasoning
advanced by the respondents that appellant’s adequate remedy at law was to appeal the
decisions of the trial court denying his motions to return property.
{¶9} Rather, we held that, “Fields has an adequate remedy at law that precludes
the issuance of a writ of mandamus. This adequate remedy is an action in replevin.” Id.
We based our determination on this Court’s holding in State v. Young that a trial court
does not have jurisdiction to hear a defendant’s motion to return property after the
Muskingum County, Case No. CT2021-0032 4
judgment of conviction and sentence and, in order to reclaim possession of property, the
defendant’s proper remedy was to file an action in replevin, as “ when the police seized
appellant’s property, they effectively became bailees of the property and remain as such
unless and until [appellant] commence[s] a forfeiture proceeding * * *.” Id. 5th Dist.
Richland No. CA-2810, 1991 WL 87203 (May 3, 1991).
{¶10} We also cited in our mandamus decision the Ohio Supreme Court case of
State ex rel. Johnson v. Kral, 153 Ohio St.3d 321, 2018-Ohio-2382, 103 N.E.3d 814,
where the Supreme Court affirmed the court of appeals’ dismissal of a complaint for writ
of mandamus finding that the relator had an adequate remedy at law for the return of
property held by the Toledo Police Department; the adequate remedy at law was filing an
action for replevin. Id.
{¶11} On March 5, 2021, appellant instituted an action in replevin by filing a motion
for order of possession and affidavit in support of motion for order of possession against
appellees.
{¶12} On March 12, 2021, appellees filed a joint motion for summary judgment.
Appellees argued they were entitled to summary judgment because appellant’s replevin
complaint was barred by the doctrine of res judicata, as he did not appeal the trial court’s
judgment entries denying his motions for return of property. Appellant filed a reply in
opposition to the motion for summary judgment.
{¶13} The trial court issued a judgment entry on June 4, 2021, granting appellees’
motion for summary judgment and dismissing appellant’s replevin complaint. The trial
court granted the motion based upon the doctrine of res judicata; specifically, that the
doctrine of res judicata prevents appellant from collaterally attacking the decision of the
Muskingum County, Case No. CT2021-0032 5
trial court in a replevin action because he failed to appeal the decisions of the trial court
denying his motions for return of property.
{¶14} Appellant appeals the June 4, 2021 judgment entry of the Muskingum
County Court of Common Pleas and assigns the following as error:
{¶15} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT’S
SUBSTANTIAL DUE PROCESS RIGHTS BY APPLYING RES JUDICATA TO BAR
APPELLANT’S REPLEVIN CLAIM, WHERE NO JUDGMENT HAS EVER BEEN
RENDERED AGAINST APPELLANT REGARDING THE $7,700.00, AND WHERE NO
JUDGMENT OR ORDER HAS EVER BEEN RENDERED OTHERWISE DISPOSING OF
THE APPELLANT’S $7,700.00.”
Summary Judgment Standard
{¶16} Civil Rule 56 states, in pertinent part:
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 of 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. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that 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, that party being
entitled to have the evidence or stipulation construed most strongly in the
Muskingum County, Case No. CT2021-0032 6
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶17} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A
fact is material if it affects the outcome of the case under the applicable substantive law.
Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.
1999).
{¶18} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
I.
{¶19} The doctrine of res judicata precludes “relitigation of a point of law or fact
that was at issue in a former action between the same parties and was passed upon by
a court of competent jurisdiction.” State ex rel. Kroger v. Indus. Comm. Of Ohio, 80 Ohio
St.3d 649, 687 N.E.2d 768 (1998). Where there is a valid, final judgment rendered on the
merits, res judicata bars all subsequent actions based upon any claim arising out of the
same transaction or occurrence that was the subject of the previous case. Grava v.
Muskingum County, Case No. CT2021-0032 7
Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).
{¶20} Appellees argue appellant was required to appeal the trial court’s denial of
his motions to return property and, because he did not, his replevin action is barred by
res judicata. Appellant contends the trial court committed error in granting summary
judgment based on res judicata because of this court’s rulings in Fields v. Cottrill, 5th Dist.
Muskingum No. CT2020-0046, 2020-Ohio-5163 and State v. Young, 5th Dist. Richland
No. CA-2810, 1991 WL 87203 (May 3, 1991). We agree with appellant.
{¶21} In this case, the jury clearly found the $7,700 was not subject to forfeiture.
The jury verdict forms dated June 5, 2019 provide the $7,700 “is not subject to forfeiture.”
A trial court judgment entry dated June 6, 2019 also specifically confirmed the funds were
not subject to forfeiture. When appellant attempted to reclaim his funds via mandamus,
appellees made the same argument they make in this case, that appellant’s adequate
remedy at law was an appeal from the trial court’s denial of the motions for return of
property. While we ultimately dismissed the mandamus action because appellant had an
adequate remedy at law, this Court specifically stated that the adequate remedy at law
was a replevin action, not an appeal of the denial of the motions to return property. Fields
v. Cottrill, 5th Dist. Muskingum No. CT2020-0046, 2020-Ohio-5163,
{¶22} We based our decision on our previous case of State v. Young, and the
Ohio Supreme Court’s decision in State ex rel. Johnson v. Kral. In State v. Young, the
appellant attempted to appeal from the trial court’s dismissal of his motion to return
property seized from his residence. Id. We found the trial court property dismissed the
motion to return property because the appellant’s motion was not properly before the trial
court as “after the judgment of conviction and sentence was entered and time for appeal
Muskingum County, Case No. CT2021-0032 8
lapsed, the trial court no longer had jurisdiction to hear appellant’s motion.” Id. We further
held that, “in order to reclaim possession of his property, appellant’s proper remedy was
to file an action in replevin * * * when the police seized appellant’s property, they
effectively became bailees of the property * * *.” Id.
{¶23} In State ex rel. Johnson v. Kral, the Ohio Supreme Court dealt with whether
mandamus was the appropriate way in which to compel a police department to comply
with a judgment entry ordering the property returned to the owner. 153 Ohio St.3d 231,
2018-Ohio-2382, 103 N.E.3d 814. The Supreme Court held that, “the proper action to
reclaim possession of property based on unlawful seizure or detention is an action for
replevin.” Id; see also State ex rel. Jividen v. Toledo Police Dept., 112 Ohio App.3d 458,
679 N.E.2d 34 (6th Dist. 1996) (the proper action to reclaim possession of property based
upon an unlawful seizure or detention is an action for replevin).
{¶24} Pursuant to the doctrine of stare decisis, “courts [should] follow controlling
precedent, thus creating stability and predictability in our legal system.” Westfield Ins. Co
v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. Stare decisis requires
this Court to adhere to our precedent in both Fields and Young that to reclaim the property
being held, appellant had to file an action in replevin. As detailed above, the Ohio
Supreme Court has also found the proper action to reclaim possession of property based
on unlawful seizure is a replevin action.
{¶25} Further, the Ohio Supreme Court has explained that res judicata is a rule of
“fundamental and substantial justice” to be applied in a particular situation as fairness and
justice require, and “that it is not to be applied so rigidly as to defeat the ends of justice
or so as to work an injustice.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197.
Muskingum County, Case No. CT2021-0032 9
In this case, both the jury verdict and the June 6, 2019 judgment entry of the trial court
clearly and unequivocally determined the funds at issue were not subject to forfeiture.
The State of Ohio did not file a civil forfeiture complaint with regards to the $7,700, nor
did the State of Ohio file an appeal of the jury verdict or the trial court’s judgment entry.
When appellant attempted to recover the funds via a writ of mandamus, this Court did not
adopt the respondents’ argument that appellant’s adequate remedy at law was an appeal
of the denial of his motions for return of property, but we specifically stated appellant’s
adequate remedy at law was a replevin action. Under the specific facts of this case and
the concept of stare decisis, we find the application of the doctrine of res judicata would
not result in “fundamental and substantial justice.”
{¶26} Appellees contend the case law is clear that when a defendant fails to file a
timely appeal of a denial of motion for return of property, the doctrine of res judicata
prevents the defendant from collaterally attacking this denial of the return of property in a
replevin action.
{¶27} Appellees argue the case of State v. Goins, 12th Dist. Butler No. CA2004-
02-054, 2005-Ohio-828, is “directly on point” in this case because the Twelfth District held
that a replevin action was barred by res judicata after the defendant failed to appeal the
denial of a motion for return of property in the defendant’s underlying criminal case. Id.
However, we find that Goins is not directly analogous to this case. There is an important
factual difference between Goins and the instant case. In Goins, the trial court ordered
the funds be turned over to the probation department for application toward costs and
fines levied against the defendant. Id. Instead of filing a timely appeal of the judgment
entry ordering the funds be turned over to probation department, the defendant later filed
Muskingum County, Case No. CT2021-0032 10
a replevin action. Id. In this case, unlike in Goins, there was no order or judgment entry
ordering the property forfeited or turned over to the probation department. In fact, the
exact opposite occurred. There was a jury verdict and judgment entry specifically finding
the funds were not subject to forfeiture.
{¶28} The other two cases cited by appellant similarly were cases where, in the
underlying criminal case, the trial court ordered the property forfeited and the defendants
attempted to challenge these orders not in direct appeals, but in replevin actions filed
after their time for direct appeals had expired. Wagner v. City of Cleveland, 8th Dist.
Cuyahoga No. 37817, 1978 WL 218217 (Oct. 26, 1978) (holding that defendant could not
collaterally attack trial court’s judgment ordering property confiscated in the underlying
criminal case by filing a replevin action; defendant should have appealed the judgment
entry in the underlying case ordering the property forfeited); Cline v. Urbana Police
Department, 2nd Dist. Champaign No. 09-CA-45, 2010-Ohio-5384 (holding that
defendant could not collaterally attack the trial court’s judgment entry finding the seized
property forfeited in a replevin action because “the proper vehicle for challenging the plea
bargain agreement and any alleged problems concerning forfeiture would be a direct
appeal. Yet, he chose not to challenge the forfeiture of his plea bargain agreement in his
appeal”). Thus, none of the cases cited by appellees involved facts analogous to the
facts in this case.
{¶29} Accordingly, we find the trial court committed error in granting appellees’
motion for summary judgment based upon the doctrine of res judicata.
{¶30} Appellees also argue the Zanesville Police Department is not sui juris and
therefore cannot be sued in an action for replevin and that neither the Zanesville Police
Muskingum County, Case No. CT2021-0032 11
Department or D. Michael Haddox, a former County Prosecutor, are real parties in
interest. Appellees contend since appellant failed to name the City of Zanesville as a
defendant in this case, summary judgment was appropriate.
{¶31} However, appellees failed to raise this argument in the trial court. A party
cannot assert new arguments for the first time on appeal. Kennedy v. Green, 5th Dist.
Muskingum No. CT2018-0033, 2019-Ohio-854, citing Stores Realty Co. v. Cleveland, 41
Ohio St. 41, 322 N.E.2d 629 (1975). As a general rule, a litigant who has the opportunity
to raise an issue in the trial court, but declines to do so, waives the right to raise that issue
on appeal. The Strip Delaware, LLC v. Landry’s Restaurants, Inc., 5th Dist. Stark No.
2010CA00316, 2011-Ohio-4075; Helle v. Chrysler Credit Corp., 5th Dist. Delaware No.
87-CA-22, 1988 WL 120022.
{¶32} Further, Civil Rule 9(A) requires a party challenging its capacity to be sued
to raise the defense by specific negative averment. Appellees did not do so. Heintzelman
v. Air Experts, Inc., 5th Dist. Delaware No. 2005-CAE-08-0054, 2006-Ohio-4832; Fields
v. Daley, 68 Ohio App.3d 33, 587 N.E.2d 400 (10th Dist. 1990) (stating, “to the extent
defendants claim the police department lacks the legal capacity to be sued, such matter
must be raised” by specific negative averment); Mollette v. Portsmouth City Council, 169
Ohio App.3d 557, 2006-Ohio-6289, 863 N.E.2d 1092 (4th Dist. 2006) (when a party
desires to raise an issue as to the legal existence of any party or the capacity to of any
party to be sued, he shall do it by specific negative averment).
{¶33} Additionally, when a party is not sui juris, this Court has found that Civil Rule
15 permits the trial court, upon motion by a plaintiff, to amend the pleadings, so long as
the defendant is not prejudiced by the amendment. Id. (holding Civil Rule 15 permits
Muskingum County, Case No. CT2021-0032 12
substitution of parties, so long as the party is not prejudiced; the trial court did not err in
permitting plaintiffs to amend their pleading to name the appropriate party); see also
Hinderegger v. Dairy Nutrition Council, 5th Dist. Stark No. CA-8990, 1992 WL 330033;
Larson v. Canton City Utilities, 5th Dist. Stark No. 2019CA00041, 2019-Ohio-5400 (while
trial court cannot amend a complaint to add a defendant sua sponte, a plaintiff can file a
motion to amend complaint to assert a claim against the proper party); see also Carney
v. Cleveland Hts.-Univ. Hts. City School Dist., 143 Ohio App.3d 415, 758 N.E.2d 234 (8th
Dist. 2001) (finding the trial court abused its discretion in not granting plaintiff’s motion to
amend complaint and granting summary judgment based upon the doctrine of sui juris
was improper since the amendment was nothing more complicated than a simple name
change); Fields v. Daley, 68 Ohio App.3d 33, 587 N.E.2d 400 (10th Dist. 1990) (holding
that had the defendants raised the sui juris argument, the matter could have been
promptly corrected pursuant to Civil Rule 15(A)); Krueck v. Kipton Village Council, 9th
Dist. Lorain No. 11CA009960, 2012-Ohio-1787 (village council was not sui juris, but trial
court granted plaintiff’s motion to amend complaint to substitute the appropriate party);
Mollette v. Portsmouth City Council, 169 Ohio App.3d 557, 2006-Ohio-6289, 863 N.E.2d
1092 (4th Dist. 2006) (trial court erred in denying motion to amend when the motion was
filed soon after the issue of council’s non sui juris status came to plaintiff’s attention).
{¶34} Because we find the trial court committed error in granting summary
judgment on the basis of res judicata, the case returns to the trial court to address and
rule on any motions and arguments by the parties.
{¶35} Based on the foregoing, appellant’s assignment of error is sustained.
Muskingum County, Case No. CT2021-0032 13
{¶36} The June 4, 2021 judgment entry of the Muskingum County Court of
Common Pleas is reversed and remanded for proceedings consistent with this opinion.
By Gwin, P.J.,
Wise, John, J., and
Delaney, J., concur