[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 Nobl e County Correctional Facility By: MARK A. ZANGHI 15708 McConnelsville Road Assistant Prosecutor Caldwell, OH 43724 27 N. 5 th Street, Ste. 201 Zanesville OH 43701 For Defendant-Appellee City o f Zanesville Police Department DAVID J. TARBERT Zanesville Law Director 401 Market Street, Room 209 Zanesville, OH 43701Muskingum County, Case No. CT2021-0032 2

Gwin, P.J. {¶1} Appellant Gerald D. Fields appeals the June 4, 2021 judgment en try of the Muskingum County Court of Common Pleas granting appellees’ moti on for summary judgment. Appellees are the City of Zanesville Police Departme nt 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 (mariju ana). Each of these counts had a forfeiture specification with regards to $7,700 seized fr om 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 a s 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. Curr ency IS NOT subject to forfeitur e to the State of Ohio.” {¶4} On June 6, 2019, the trial court issued a judgment entry findin g appellant guilty of possession of drugs (cocaine), possession of drugs (m arijuana), trafficking in cocaine, trafficking in marijuana, and illegal manufacture of d rugs (cocaine). Additionally, the judgment entry specifically provides, “the jury found the s even thousand seven hundred dollars ($7,700) was not subject to forfeiture to the S tate 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 t he jury’s finding that the $7,700 seized from appellant’s home was not subject to forfeitu re.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 i n 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 Co urt 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 Ple as, and the Zanesville Police Department filed a motion to dismiss appe llant’s petition for writ of mandamus. In their motion to dismiss, respondents made one arg ument: that appellant was not entitled to a writ of mandamus because he had an adequa te 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 be cause 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 prop erty. {¶9} Rather, we held that, “Fields has an adequate remedy at law tha t precludes

the issuance of a writ of mandam us. 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 retu rn property after theMuskingum County, Case No. CT2021-0032 4

judgment of conviction and sentence and, in order to reclaim po ssession 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 pr operty and remain as such unless and until [appellant] commence[s] a forfeiture proceedin g * * *.” 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 c ase 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’ dismissa l 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 rem edy 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 j udgment. 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. A ppellant filed a reply in opposition to the motion for summary judgment. {¶13} The trial court issued a judgment entry on June 4, 2021, granti ng appellees’ motion for summary judgment and dismissing appellant’s replevin complaint. The trial court granted the motion based upon the doctrine of res judicat a; specifically, that the doctrine of res judicata prevents appellant from collaterally a ttacking the decision of theMuskingum County, Case No. CT2021-0032 5

trial court in a replevin action because he failed to appeal th e decisions of the trial court denying his motions for return of property. {¶14} Appellant appeals the June 4, 2021 judgment entry of the Muskin gum County Court of Common Pleas and assigns the following as error : {¶15} “I. THE TRIAL COURT ERRED TO T HE 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 N O

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, af fidavits, transcripts of evidence, and written stipulations of fact, if a ny, timely filed in the action, show that there is no genuine issue of material fac t and that the moving party is entitled to judgment as a matter of law. No ev idence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evide nce or stipulation, and only from the evidence or stipulation, that re asonable minds

can come to but one conclusion and that conclusion is adverse t o the party against whom the motion for summary judgment is made, that part y being entitled to have the evidence or stipulation construed most str ongly in theMuskingum County, Case No. CT2021-0032 6

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liabilit y alone although there is a ge nuine 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 th e 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 judgme nt, an appellate court applies the same standard used by the trial cou rt. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we revie w 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 a nd 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, fina l 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 prev ious 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 cour t’s denial of his motions to return property and, because he did not, his rep levin action is barred by res judicata. Appellant contends the trial court committed err or 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 appell ant. {¶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 “i s not subject to forfeiture.” A trial court judgment entry dated June 6, 2019 also specifical ly 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 a ppellant’s adequate remedy at law was an appeal from the trial court’s denial of th e motions for return of property. While we ultimately dismissed the mandamus action be cause 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 motio ns 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 no t properly before the trial court as “after the judgment of conviction and sentence was ent ered and time for appealMuskingum County, Case No. CT2021-0032 8

lapsed, the trial court no longer had jurisdiction to hear appe llant’s motion.” Id. We further held that, “in order to reclaim possession of his property, app ellant’s proper remedy was to file an action in replevin * * * when the police seized appe llant’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 de partment to comply with a judgment entry ordering the property returned to the own er. 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 det ention 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 po ssession of property based upon an unlawful seizure or detention is an action for replevin ). {¶24} Pursuant to the doctrine of stare decisis, “courts [should] fol low controlling precedent, thus creating stability and predictability in our le gal system.” Westfield Ins. Co

v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. Stare d ecisis 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 de tailed above, the Ohio Supreme Court has also found the proper action to reclaim posse ssion 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 partic ular situation as fairness and justice require, and “that it is not to be applied so rigidly a s 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 judgme nt entry of the trial court clearly and unequivocally determined the funds at issue were no t subject to forfeiture. The State of Ohio did not file a civil forfeiture complaint wit h 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 man damus, this Court did not adopt the respondents’ argument that appellant’s adequate remed y at law was an appeal of the denial of his motions for return of property, but we spe cifically stated appellant’s adequate remedy at law was a replevin action. Under the specif ic facts of this case and the concept of stare decisis, we find the application of the do ctrine of res judicata would not result in “fundamental and substantial justice.” {¶26} Appellees contend the case law is clear that when a defendant f ails 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 beca use the Twelfth District held that a replevin action was barred by res judicata after the def endant failed to appeal the denial of a motion for return of property in the defendant’s un derlying 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 applic ation 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 filedMuskingum 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 whe re, 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 tha t defendant could not collaterally attack trial court’s judgment ordering property co nfiscated in the underlying criminal case by filing a replev in action; defendant should hav e 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 tha t defendant could not collaterally attack the trial court’s judgm ent entry finding the seized property forfeited in a replevin action because “the proper veh icle for challenging the plea bargain agreement and any alleged problems concerning forfeitur e would be a direct appeal. Yet, he chose not to challenge the forfeiture of his p lea 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 grantin g appellees’ motion for summary judgment based upon the doctrine of res judi cata. {¶30} Appellees also argue the Zanesville Police Department is not su i juris and therefore cannot be sued in an action for replevin and that nei ther the Zanesville PoliceMuskingum County, Case No. CT2021-0032 11

Department or D. Michael Haddox, a former County Prosecutor, ar e 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 c ourt. 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 litig ant who has the opportunity to raise an issue in the trial court, but declines to do so, wa ives 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 capac ity 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. 200 6) (when a party desires to raise an issue as to the legal existence of any part y 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 fou nd that Civil Rule 15 permits the trial court, upon motion by a plaintiff, to amen d the pleadings, so long as the defendant is not prejudiced by the amendment. Id. (holding Civil Rule 15 permitsMuskingum 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 appro priate 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 spo nte, 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 n ot granting plaintiff’s motion to amend complaint and granting summary judgment based upon the do ctrine of sui juris was improper since the amendment was nothing more complicated t han 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 matt er 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 wa s not sui juris, but trial court granted plaintiff’s motion to amend complaint to substitu te 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 a mend when the motion was

filed soon after the issue of c ouncil’s non sui juris status ca me to plaintiff’s attention). {¶34} Because we find the trial court committed error in granting sum mary 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 sus tained.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 consisten t with this opinion.

By Gwin, P.J., Wise, John, J., and Delaney, J., concur