[Cite as Fields v. Zanesville Police Dept., 2021-Ohio-3896.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

GERALD D. FIELDS 

 Plaintiff-Appellant 

-vsZANESVILLE POLICE DEPT., ET AL 

 Defendants-Appellees 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. CT2021-0032 

: 

: 

: 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-Ohio5163, 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 nonmoving 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