[Cite as Brust v. Franklin Cty. Sheriff's Office, 2017-Ohio-9128.]
                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


Shawn K. Brust,                                       :

                 Plaintiff-Appellant,                 :                   No. 16AP-881
                                                                      (C.P.C. No. 14CV-13459)
v.                                                    :
                                                                     (REGULAR CALENDAR)
Franklin County Sheriff's Office et al.,              :

                 Defendants-Appellees.                :




                                          D E C I S I O N

                                    Rendered on December 19, 2017


                 On brief: Shawn K. Brust, pro se.

                 On brief: Ron O'Brien, Prosecuting Attorney, and Jeffrey C.
                 Rogers, for appellees.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by plaintiff-appellant, Shawn K. Brust, from a decision and
entry of the Franklin County Court of Common Pleas granting summary judgment in
favor of defendants-appellees, Franklin County Sheriff's Office and Zach Scott, and
denying appellant's motion for partial summary judgment.
        {¶ 2} The following background facts, essentially not in dispute, are drawn
primarily from the trial court's summary judgment decision filed December 1, 2016. On
August 22, 1997, appellant was arrested and charged in Franklin C.P. No. 97CR-4790 with
one count of aggravated murder. At the time of his arrest, appellant's vehicle and its
contents were impounded by appellee, Franklin County Sheriff's Office. On November 24,
1997, the State of Ohio filed a civil forfeiture action in Franklin C.P. No. 97CV-10411 with
No. 16AP-881                                                                                   2

respect to the vehicle, a 1986 Isuzu Trooper. On December 24, 1997, counsel for appellant
filed an answer in the forfeiture action.
       {¶ 3} Following a jury trial in the criminal proceeding, appellant was found not
guilty of aggravated murder, but guilty of the lesser-included offense of murder. The trial
court imposed a sentence of 15 years to life on the murder conviction, with an additional
three years for a firearm specification.
       {¶ 4} On April 27, 1999, the trial court stayed the civil forfeiture action in case No.
97CV-10411 due to a pending appeal in the criminal case. On March 10, 2014, the state
moved to lift the stay and re-open the case. On March 11, 2014, the trial court granted the
state's motion and lifted the stay.
       {¶ 5} On March 20, 2014, appellant entered a pro se appearance in the forfeiture
case after his counsel withdrew from the matter. On April 28, 2014, appellant requested a
continuance of the trial date, which the trial court granted. Appellant subsequently filed
several motions requesting the trial court permit him to make an appearance at trial
despite his incarceration. On June 27, 2014, the state dismissed the forfeiture action.
       {¶ 6} On July 3, 2014, appellant filed a motion in the criminal case (No. 97CR-
4790) seeking the return of his vehicle. On August 13, 2014, he filed a second request in
the criminal case for the return of his vehicle and all property inside, including tools. On
September 30, 2014, appellant filed a motion for judgment on the pleadings after the state
failed to file a response to his motions. On October 1, 2014, the trial court in case No.
97CR-4790 granted appellant's motion to return seized property (i.e., the 1986 Isuzu
Trooper). On October 9, 2014, appellant filed a motion in that case requesting the trial
court clarify its decision rendered October 1, 2014, on the basis that the court's order
made no reference to appellant's tools that were inside the vehicle.            Appellant also
requested special damages, interest and compensation as to the unreturned tools, and
other property. On November 3, 2014, the state filed a new appearance in the criminal
case (No. 97CR-4790) and filed a memorandum contra appellant's request for special
damages or compensation. On January 14, 2015, the trial court filed an entry denying
appellant's motion to clarify the court's decision of October 1, 2014.
       {¶ 7} On December 24, 2014, appellant filed his complaint in the instant action
against appellees for "failure to redeliver," raising two claims; specifically, appellant's first
claim requested the return of his vehicle, while the second claim requested that appellees
No. 16AP-881                                                                                  3

return his personal property, i.e., the tools inside the vehicle, which he alleged had a
"reasonable replacement value" around $6,000 to $7,000.
       {¶ 8} On January 7, 2015, appellees filed a motion to dismiss for failure to state a
claim upon which relief can be granted, asserting appellant abandoned any claim he had
to the property through his own neglect.            On January 15, 2015, appellant filed a
memorandum in opposition to the motion to dismiss. On February 3, 2015, the trial court
filed a decision and entry granting appellees' motion to dismiss on the basis appellant
failed to comply with R.C. 2969.25(A) (requiring an inmate to file an affidavit listing any
prior civil actions or appeals filed in the past five years).
       {¶ 9} Appellant filed an appeal from the trial court's decision granting appellees'
motion to dismiss. In Brust v. Franklin Cty. Sheriff's Office, 10th Dist. No. 15AP-488,
2015-Ohio-5090, this court reversed the judgment of the trial court and remanded for
further proceedings. Specifically, this court held that the trial court "erred by converting
appellees' motion to dismiss into a motion for summary judgment without notifying the
parties." Id. at ¶ 1. This court further held the trial court erred in finding appellant "failed
to provide an affidavit describing his prior civil actions against government entities or
employees." Id.
       {¶ 10} Following this court's remand, appellant filed with the trial court a "motion
to serve supplemental complaint." On January 26, 2016, appellees filed a motion for
summary judgment, asserting appellant abandoned any claim he might have exerted on
the property through his own neglect. On February 26, 2016, appellant filed a motion for
partial summary judgment. On March 1, 2016, appellees filed a memorandum contra
appellant's motion for partial summary judgment and renewed request for summary
judgment, arguing that appellant's claims were barred by the applicable statute of
limitations under R.C. 2305.09 and 2744.04, and that appellees had immunity pursuant
to R.C. 2744.02. On March 17, 2016, appellant filed "objections" and a motion to strike
appellees' memorandum contra appellant's motion for partial summary judgment and
renewed motion for summary judgment.
       {¶ 11} By decision and entry filed December 1, 2016, the trial court granted
appellees' motion for summary judgment and denied appellant's motion for partial
summary judgment. In granting summary judgment in favor of appellees, the trial court
determined appellant's first claim was moot based on evidence submitted indicating the
No. 16AP-881                                                                               4

1986 Isuzu Trooper had been returned to him. As to appellant's second claim, seeking the
return of personal property (i.e., tools), the trial court determined appellant had failed to
bring his claim for recovery of tools within the applicable statute of limitations periods
under either R.C. 2305.09 or 2744.04(A). The trial court alternatively found that, even if
the claim was not barred by the applicable statute of limitations periods, appellees were
immune from liability with respect to the claim pursuant to R.C. 2744.02, as the tools
"would have been seized as a governmental or proprietary function of a political
subdivision."
       {¶ 12} On appeal, appellant sets forth the following five assignments of error for
this court's review:
                [I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
                THE APPELLANT BY GRANTING THE APPELLEES'
                "MOTION     FOR   SUMMARY    JUDGMENT"    FILED
                JANUARY 26, 2016, OVER THE OBJECTIONS OF THE
                APPELLANT AND ABUSED ITS DISCRETION BY FAILING
                TO STRIKE THE EVIDENTIARY MATERIAL INTRODUCED
                BY APPELLEES', WHICH IS NOT SPECIFICALLY
                AUTHORIZTED BY OHIO CIV.R. 56(C) AND OHIO CIV.R.
                56(E).

                [II.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
                THE APPELLANT BY DENYING APPELLANT'S "MOTION
                FOR PARTIAL SUMMARY JUDGMENT," FILED ON
                FEBRUARY 26, 2016, WHICH CONCERNED LIABILITY ON
                THE PART OF THE * * * APPELLEES' WHOM ARE LIABLE
                FOR THEIR FAILURE TO REDELIVER THE BAILED
                PROPERTY OF THE APPELLANT UPON LEGAL DEMAND,
                IN WHICH APPELLANT HAS SUFFERED DAMAGES AS A
                RESULT OF SAID APPELLEES' NEGLIGENCE AND LACK
                OF DUE CARE REGARDING APPELLANT'S BAILED
                PROPERTY.

                [III.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
                THE APPELLANT AND ABUSED ITS DISCRETION BY
                DENYING APPELLANT'S OBJECTIONS AND REQUEST TO
                STRIKE THE APPELLEES' "MEMORANDUM CONTRA"
                WHERE THE APPELLEES' HAD A RECIPROCAL BURDEN
                TO PROPERLY RESPOND TO APPELLANT'S MOTION FOR
                PARTIAL SUMMARY JUDGMENT.

                [IV.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
                THE APPELLANT AND ABUSED ITS DISCRETION BY
No. 16AP-881                                                                              5

               DENYING APPELLANT'S OBJECTIONS AND REQUEST TO
               STRIKE APPELLEES' "RENEWED REQUEST FOR
               SUMMARY JUDGMENT," FILED MARCH 1, [2016], WHICH
               FAILED TO COMPLY WITH OHIO CIV.R. 56(E) AND
               VIOLATES FRANKLIN COUNTY COMMON PLEAS, LOCAL
               RULES 57.02; 12.02 AND 21.01.

               [V.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
               THE APPELLANT AND ABUSED ITS DISCRETION BY
               ADOPTING THE APPELLEES' "AFFIRMATIVE DEFENSE"
               ARGUMENTS, RAISED FOR THE FIRST TIME IN THE
               APPELLEES' "MEMORANDUM CONTRA TO PLAINTIFF'S
               MOTION FOR PARTIAL SUMMARY JUDGMENT AND
               RENEWED REQUEST FOR SUMMARY JUDGMENT,"
               FILED MARCH 1, 2016, OVER THE APPELLANT'S
               OBJECTIONS AND MOTION TO STRIKE, FILED
               MARCH 17, 2016.

       {¶ 13} Appellant's five assignments of error, all raising various challenges to the
trial court's decision granting summary judgment in favor of appellees and denying
appellant's motion for partial summary judgment, will be addressed jointly. Under these
assignments of error, appellant contends the trial court erred in: (1) failing to strike the
evidentiary materials introduced by appellees in support of their motion for summary
judgment, (2) denying appellant's motion for partial summary judgment, (3) denying
appellant's objections and request to strike appellees' memorandum contra appellant's
motion for partial summary judgment, and (4) adopting appellees' affirmative defense
arguments raised for the first time in their memorandum contra appellant's motion for
partial summary judgment and renewed motion for summary judgment.
       {¶ 14} Pursuant to Civ.R. 56(C), summary judgment is proper when "(1) no
genuine issue as to any material fact exists, (2) the party moving for summary judgment is
entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in
favor of the non-moving party, reasonable minds can only reach one conclusion which is
adverse to the non-moving party." Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-
742 (8th Dist.), ¶ 16. This court's review of a trial court's decision on summary judgment
is de novo. Id.
       {¶ 15} At the outset, we note appellant does not challenge on appeal the trial
court's grant of summary judgment in favor of appellees as to the first claim of his
complaint, i.e., seeking return of the 1986 Isuzu Trooper.          Specifically, appellant
No. 16AP-881                                                                                6

acknowledges in his appellate brief that his "motor vehicle was redelivered on August 12,
2015," and "thus, Claim One of the Appellant's Complaint has been resolved."
(Appellant's Brief at 2.) We further note that appellees, in support of their motion for
summary judgment, attached as an exhibit a copy of a letter from an assistant prosecuting
attorney addressed to appellant, dated October 31, 2014, representing that the vehicle had
been located and was available for pick up from the sheriff's impound lot. Based on this
court's de novo review, we find that no genuine issues of material fact remain with respect
to appellant's first claim and, thus, the trial court did not err in granting summary
judgment in favor of appellees as to that claim.
       {¶ 16} Appellant maintains, however, that his second claim, in which he seeks the
return of his personal property (i.e., tools) from the vehicle, has not been resolved;
according to appellant, genuine issues of material fact remain as to appellees' liability on
that claim.
       {¶ 17} As noted under the facts, in granting summary judgment in favor of
appellees, the trial court held that appellant failed to bring his claim for recovery of tools
within the applicable statute of limitations period under either R.C. 2305.09 or
2744.04(A). In the alternative, the court found that appellees were immune from liability
from appellant's claims under R.C. 2744.02 (establishing governmental immunity for
political subdivisions and their employees).
       {¶ 18} We initially address appellant's contention, raised under the fifth
assignment of error, that the trial court erred in granting summary judgment in favor of
appellees by adopting affirmative defenses raised by appellees for the first time in their
memorandum contra appellant's motion for partial summary judgment and their
renewed request for summary judgment. We note that appellant raised this argument
before the trial court in his objections and motion to strike appellees' renewed request for
summary judgment, which he filed on March 17, 2016.
       {¶ 19} Civ.R. 8(C) states in part: "In pleading to a preceding pleading, a party shall
set forth affirmatively * * * statute of limitations, * * * and any other matter constituting
an avoidance or affirmative defense." Under Ohio law, "[t]here are three ways to properly
raise an affirmative defense: (1) setting forth the defense in a prepleading motion
pursuant to Civ.R. 12(B); (2) affirmatively setting forth the defense in a responsive
pleading pursuant to Civ.R. 8(C); or (3) amending one's responsive pleading pursuant to
No. 16AP-881                                                                                7

Civ.R. 15 to include such a defense." Energy Wise Home Improvements, Inc. v. Rice, 7th
Dist. No. 04-MA-178, 2005-Ohio-2705, ¶ 21. See also Carmen v. Link, 119 Ohio App.3d
244, 250 (3d Dist.1997) (an affirmative defense "can be asserted in a pre-pleading Civ.R.
12(B) motion to dismiss, in an Answer, or in an amended or supplemental Answer").
       {¶ 20} A statute of limitations defense under either R.C. 2744.04(A) or R.C.
2305.09 is an affirmative defense, as is the defense of political subdivision immunity
under R.C. 2744.02. See, e.g., Ohio Bur. of Workers' Comp. v. Shaffer, 10th Dist. No.
13AP-67, 2013-Ohio-4570, ¶ 12 ("R.C. Chapter 2744 immunity and the statute of
limitations set forth in R.C. 2744.04(A) both provide political subdivisions with
affirmative defenses."); Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 16 (6th
Dist.1983) (statute of limitations bar under R.C. 2305.09 is an affirmative defense); Main
v. Lima, 3d Dist. No. 1-14-42, 2015-Ohio-2572, ¶ 13 (statutory immunity, including
political subdivision immunity under R.C. 2744.02, "is an affirmative defense"); Oliver v.
Wagner, 9th Dist. No. 2832-M (Dec. 8, 1999) ("Like sovereign immunity * * * the statute
of limitations [under R.C. 2744.04(A)] is an affirmative defense that must be affirmatively
pled, pursuant to Civ.R. 8(C) and is not subject to being asserted in a motion to dismiss
for failure to state a claim pursuant to Civ.R. 12(B)(6).").
       {¶ 21} Under Ohio law, "a summary judgment motion is not the proper format in
which to raise an affirmative defense for the first time in a case." Wemer v. Walker, 5th
Dist. No. 12CA17, 2013-Ohio-2005, ¶ 8. See also Midstate Educators Credit Union, Inc.
v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641, ¶ 11 (10th Dist.) ("Ohio law prohibits a
defendant from asserting an affirmative defense for the first time in a motion for
summary judgment."); Eulrich v. Weaver Bros., 165 Ohio App.3d 313, 2005-Ohio-5891,
¶ 16 (3d Dist.) (reversing trial court's grant of summary judgment in favor of defendant
and remanding matter for further proceedings where defendant failed to assert immunity
defense in answer, failed to file an amended responsive pleading, and "improperly
brought its defense for the first time in a motion for summary judgment").
       {¶ 22} In the instant case, in response to appellant's complaint, appellees did not
file an answer but, rather, filed a motion to dismiss for failure to state a claim for relief,
asserting the defense of abandonment. As noted under the facts, this court reversed the
trial court's decision granting appellees' motion to dismiss and remanded the matter to
the trial court. Following this court's remand, appellees filed a motion for summary
No. 16AP-881                                                                                               8

judgment, again raising the issue of abandonment, and appellant subsequently filed his
motion for partial summary judgment. A review of the record indicates that appellees
first raised the issue as to the applicability of the statute of limitations under R.C. 2744.04
and 2305.09, and the defense of governmental immunity under R.C. 2744.02 in their
response to appellant's motion for partial summary judgment and renewed request for
summary judgment, filed by appellees on March 1, 2016.
           {¶ 23} As previously indicated, "[t]here are only three methods to assert an
affirmative defense: a pre-pleading Civ.R. 12(B) motion to dismiss, a responsive pleading
filed under Civ.R. 8(C), or by amendment pursuant to Civ.R. 15." Eulrich at ¶ 13. Here,
appellees did not raise the affirmative defenses of statute of limitations and/or political
subdivision immunity by way of an answer,1 or by any of the other methods permitted by
law; instead, as discussed above, appellees first raised these affirmative defenses in their
renewed request for summary judgment and memorandum contra appellant's motion for
partial summary judgment. Because appellees did not properly raise the affirmative
defenses at issue, the trial court erred in relying on those defenses as the basis for
rendering summary judgment in favor of appellees. See, e.g., Nationstar Mtge., LLC v.
Young, 9th Dist. No. 28134, 2016-Ohio-8287, ¶ 23 (where defendants never asserted
affirmative defense in a responsive pleading, and instead raised it for first time in motion
for summary judgment, trial court "erred when it allowed them to assert the defense and
awarded them summary judgment").
           {¶ 24} We note that, while appellees assert the trial court properly granted
summary judgment on the basis of the applicable statute of limitations and/or political
subdivision immunity, appellees' brief does not specifically address appellant's claim that
the trial court rendered its decision based on affirmative defenses raised for the first time
by appellees in their renewed request for summary judgment. Appellees allude to the fact
that the trial court "relied only partially upon [their] arguments" in granting summary
judgment, and appellees summarily argue in the conclusion section of their appellate brief
that the property at issue was "clearly abandoned." (Appellees' Brief at 9, 11.) However,
while appellees raised the defense of abandonment in their motion to dismiss, and argued
the issue of abandonment in their motion for summary judgment, the trial court did not


1   Nor does the record indicate that appellees have ever requested leave to file an answer out of rule.
No. 16AP-881                                                                                 9

address (nor decide) that issue in rendering summary judgment in favor of appellees;
rather, the trial court granted summary judgment in their favor based on application of
the statute of limitations and/or, alternatively, the affirmative defense of governmental
immunity. Accordingly, we sustain appellant's fifth assignment of error and conclude this
matter must be remanded to the trial court for further proceedings with respect to the
issues raised under appellant's second claim.
       {¶ 25} Under his second assignment of error, appellant argues the trial court erred
in failing to thoroughly examine all appropriate materials before ruling on his motion for
partial summary judgment. Appellant further contends the trial court, in denying his
motion for partial summary judgment, focused primarily on issues related to his motion
for leave to file a supplemental complaint rather than the merits of his claim that
appellees were liable for the return of his property. To the extent the trial court's denial of
appellant's motion for partial summary judgment involved the court's application of the
affirmative defenses of statute of limitations and/or political subdivision immunity, we
sustain the second assignment of error. However, in light of our determination that this
matter must be remanded for further proceedings, the remaining arguments raised by
appellant under his second assignment of error are rendered moot. Similarly, based on
our disposition of the fifth assignment of error (and remand of this matter to the trial
court for further consideration of appellant's second claim), the issues raised by appellant
under his first, third, and fourth assignments of error are rendered moot.
       {¶ 26} Accordingly, appellant's fifth assignment of error is sustained, the second
assignment of error is sustained in part and rendered moot in part, and the first, third,
and fourth assignments of error are rendered moot. Based on the foregoing, the judgment
of the Franklin County Court of Common Pleas is affirmed in part and reversed in part,
and this matter is remanded to that court for further proceedings in accordance with law,
consistent with this decision.
                                          Judgment affirmed in part and reversed in part;
                                                                        cause remanded.

                      LUPER SCHUSTER and HORTON, JJ., concur.

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