[Cite as Lisboa v. Reid, 2011-Ohio-5842.]

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 96704 

JOSE C. LISBOA, JR. 

PLAINTIFF-APPELLANT

vs. 

ROBERT REID, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-715972 

BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J. 
RELEASED AND JOURNALIZED: November 10, 2011 

 

FOR APPELLANT

Jose C. Lisboa, Jr., Pro Se 

245 Portage Trail — Extension W 

Unit 2 

Cuyahoga Falls, OH 44223 

ATTORNEYS FOR APPELLEES

William D. Mason 

Cuyahoga County Prosecutor 

BY: Sara E. Decaro 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, P.J.: 

{¶ 1} Plaintiff-appellant, Jose C. Lisboa, Jr., appeals from an order 

dismissing his civil complaint in replevin, filed against Robert Reid, the 

Cuyahoga County Sheriff; William Mason, the Cuyahoga County Prosecuting 

Attorney; and various county law enforcement personnel (unless otherwise 

noted, we shall collectively refer to these defendants as “the county”). The 

complaint sought return of $158,755.25 of personal property that Lisboa 
claimed had been seized in 2004 following his arrest and guilty plea to 

charges of domestic violence and aggravated assault. The county sought 

dismissal of the complaint on grounds that it was barred by res judicata 

because the judge in Lisboa’s criminal case had previously denied his request 

for return of the property; that the government officials were immune from 

suit; and that the fraud and abuse of process claims were barred by the 

statute of limitations. The court dismissed the action without opinion. 

{¶ 2} In 2004, Lisboa, a foreign national lawfully residing in the United 

States, entered a guilty plea to counts of aggravated assault and domestic 

violence after the state charged him with conspiring with another (a state 

informant) to frame his estranged wife on drug charges and assault of her 

alleged lover. The plea was apparently entered on terms that would allow 

Lisboa to voluntarily leave the United States within 45 days of his conviction 

rather than be deported. As part of his plea, Lisboa agreed to a ten-year 

term of community control and further agreed to forfeit $1,481 in U.S. 

currency and, “in lieu of” forfeiting a 2003 Audi, he agreed to pay the 

Cuyahoga County Sheriff’s Department the sum of $20,000. Lisboa also 

agreed to forfeit a watch, handgun, and two personal computers. Before 

Lisboa could leave the country voluntarily, the Immigration and 

Naturalization Services arrested and deported him. 
{¶ 3} After being sentenced, Lisboa filed a motion to withdraw his guilty 

plea, a motion for a new trial, and separately petitioned the court for 

postconviction relief. The basis for these motions was that he had obtained 

an affidavit from the state’s informant in which the informant claimed that 

he had been paid by Lisboa’s wife to frame Lisboa. The court denied the 

motion for a new trial. It combined the motion to withdraw the plea with the 

petition for postconviction relief for hearing, and denied them both. Lisboa 

appealed and we reversed, finding that the ten-year period of community 

control agreed to by the parties in the plea agreement exceeded the maximum 

term allowable under R.C. 2929.15(A)(1), rendering the plea void and 

unenforceable. See State v. Lisboa, 8th Dist. No. 89283, 2008-Ohio-571, ¶13. 

{¶ 4} In May 2008, following remand by this court, Lisboa filed a motion 

for the return of his property. The court denied the motion in August 2009. 

Lisboa appealed from that ruling, but we dismissed the appeal for failure to 

file a brief in accordance with Loc.R. 11.1(B)(4)(b) of the Local Rules of the 

Eighth Appellate District. See State v. Lisboa, 8th Dist. No. 93831, Motion 

No. 427050.1

{¶ 5} Lisboa filed the present action in the court of common pleas on 

January 20, 2010. He styled his complaint as a “Complaint in Replevin,” and 

 1

In April 2011, Lisboa filed another motion for the return of his property, and in May 2011, he 

filed a “second motion” for return of his property. The court denied the “second motion” in June 
alleged that the named individual defendants and other government 

personnel colluded in 2004 to instigate criminal proceedings against him for 

the purpose of preventing his return to the United States and defrauding him 

of the return of his personal property. Lisboa also alleged that in 2009, the 

prosecuting attorney fraudulently indicted him on new charges with the same 

goal of causing his deportation. 

{¶ 6} Although Lisboa sets forth four assignments of error that address 

various procedural aspects of rulings on Civ.R. 12(B) motions to dismiss, we 

need not address all of them because the claims filed in the complaint were 

plainly filed outside the relevant statutes of limitation or were barred by 

prosecutorial immunity. 

{¶ 7} Civ.R. 12(B)(6) permits the court to dismiss a complaint if it 

appears beyond doubt that the plaintiff can prove no set of facts showing the 

plaintiff’s entitlement to recovery. O’Brien v. Univ. Community Tenants 

Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus. When the facts 

pleaded in a complaint demonstrably show that those claims were filed 

outside the statute of limitations and are time-barred, the complaint may be 

dismissed pursuant to Civ.R. 12(B)(6). Doe v. Archdiocese of Cincinnati, 109 

Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11; Steiner v. Steiner 

 

2011. 
(1993), 85 Ohio App.3d 513, 518-19, 620 N.E.2d 152; Jackson v. Sunnyside 

Toyota, Inc., 175 Ohio App.3d 370, 2008-Ohio-687, 887 N.E.2d 370, ¶15. 

{¶ 8} The complaint states: “All the events that gave rise to this 

complaint started for Jose C. Lisboa, Jr. on May 3, 2004, when he was 

illegally arrested by Cuyahoga County Detectives at his divorce hearing 

approximately [sic] 10 am.” The complaint alleges further that the 

defendant detectives made a warrantless entry into his office that same date. 

 Lisboa refers to other dates in 2004 on which various alleged causes of action 

arose. 

{¶ 9} To the extent that Lisboa’s claims were made against government 

subdivisions and their employees, those claims were governed by the two-year 

statute of limitations set forth in R.C. 2744.04(A). As the prosecuting 

attorney notes, the date on which Lisboa would have been aware of the events 

giving rise to his allegations was in March 2006. That was the date on which 

the state’s informant in the underlying criminal case submitted an affidavit 

on Lisboa’s behalf stating that he had been paid by Lisboa’s wife “for me to 

encourage Jose Lisboa to pay me to engage in criminal activity against [the 

wife] and others” and that “[t]he Cuyahoga County Sheriff’s Department 

knew, at all times, that I was being paid cash by [the wife] to arrange, plan 

and execute the ‘set up’ of Jose Lisboa.” The affidavit conclusively shows 

that Lisboa was aware of the facts giving rise to this case in 2006, but failed 
to file his complaint until 2010. They are barred by the statute of 

limitations, so the court did not err by dismissing the complaint.2 3

Judgment affirmed. 

It is ordered that appellees recover of appellant their costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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. 

 

 

MELODY J. STEWART, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., CONCURS AND 

COLLEEN CONWAY COONEY, J., 

 2

To the extent Lisboa states claims against the prosecuting attorney for the 2009 indictment, 

those claims are barred by prosecutorial immunity. Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 

449, 453 N.E.2d 693. 

3

Although not a basis for our decision, we further note that the court that heard Lisboa’s 

criminal case previously denied a similar motion for the return of the property. Res judicata might 

apply to bar assertion of the replevin claim, but it is an affirmative defense that must be raised in a 

responsive pleading under Civ.R. 8(C) and cannot be raised for the first time in a Civ.R. 12(B) motion 

to dismiss. State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109, 579 N.E.2d 702. Thus, 

“[r]es judicata as a defense is generally proven through matters not contained in the complaint.” 

Grimm v. Wickman, 8th Dist. No. 96508, 2011-Ohio-3991, ¶6, citing Ardary v. Stepien, 8th Dist. 

No. 82950, 2004-Ohio-630, ¶18. 
CONCURS IN JUDGMENT ONLY