[Cite as In re Blue Wesson 357 Magnus Serial No. B003628 Stainless Smith & Wesson Model 65-1 Serial No.
17688 Box of ammunition with 50 rounds, 2016-Ohio-3279.]

                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                                :           JUDGES:
                                                 :           Hon. Sheila G. Farmer, P.J.
BLUE WESSON 357 MAGNUM                           :           Hon. William B. Hoffman, J.
SERIAL NO. B003628                               :           Hon. John W. Wise, J.
STAINLESS SMITH AND WESSON                       :
MODEL 65-1 SERIAL NO. 17688                      :           Case No. 16CA12
BOX OF AMMUNITION WITH 50                        :
ROUNDS                                           :           OPINION




CHARACTER OF PROCEEDING:                                     Appeal from the Court of Common
                                                             Pleas, Case No. 2015-CV-0088



JUDGMENT:                                                    Reversed and Remanded




DATE OF JUDGMENT:                                            June 3, 2016




APPEARANCES:

For Appellant

MICHAEL C. BEAR                                              Richland County Sheriff
38 South Park Street                                         73 East Second Street
Mansfield, OH 44902                                          Mansfield, OH 44902

                                                             Frank and Wendy Ritchie
                                                             1161 Beal Road
                                                             Mansfield, OH 44905
Richland County, Case No. 16CA12                                                          2

Farmer, P.J.

       {¶1}    On January 25, 2016, appellant, the State of Ohio, filed a petition for

interpleader for a determination of who was entitled to possess two firearms, specifically,

a Blue Wesson 357 Magnum and a Stainless Smith & Wesson, and a box of ammunition

with fifty rounds. The firearms were in the possession of the Richland County Sheriff's

Office due to "an emergency committal for mental health reasons." Appellant alleged two

individuals could have an interest in the property, Frank and Wendy Ritchie. Appellant

also alleged these two individuals "may or may not be able to purchase or own firearms

pursuant to Ohio and Federal laws." Appellant served the Sheriff's Office and Frank and

Wendy Ritchie.

       {¶2}    On February 2, 2016, Frank Ritchie filed a pro se, handwritten statement

claiming the property belonged to him.

       {¶3}    On February 23, 2016, the trial court sua sponte denied the petition and

dismissed the case pursuant to Civ.R. 12(B)(1) and (H)(3), finding "no conflicting claims

to the property in question" and therefore it did not have subject matter jurisdiction.

       {¶4}    Appellant filed an appeal and this matter is now before his court for

consideration. Assignments of error are as follows:

                                              I

       {¶5}    "THE TRIAL COURT ERRED IN DISMISSING 2016-CV-0088 FOR LACK

OF SUBJECT MATTER JURISDICTION PURSUANT TO OHIO CIV.R. 12(B)(1) AND

12(H)(3)."
Richland County, Case No. 16CA12                                                       3


                                           II

      {¶6}   "THE TRIAL COURT ERRED IN DISMISSING 2016-CV-0088 SUA

SPONTE WITHOUT NOTIFYING THE PARTIES OR GIVING THEM AN OPPORTUNITY

TO RESPOND."

                                           III

      {¶7}   "THE TRIAL COURT ERRED IN RELYING UPON THE HOLDING IN

CRAWFORD CNTY. SHERIFF'S DEP'T V. SEARS ROEBUCK & CO., 3D DIST.

CRAWFORD NO. 3-04-05, 2004-OHIO-3898, AS THE FACTS OF THAT CASE ARE

DISTINGUISHABLE FROM THE FACTS IN THE PRESENT CASE."

                                           IV

      {¶8}   "THE TRIAL COURT ERRED IN RELYING UPON THE HOLDING IN

CRAWFORD CNTY. SHERIFF DEP'T V. SEARS ROEBUCK & CO., 3D DIST.

CRAWFORD NO. 3-04-05, 2004-OHIO-3898, AS IT IS POORLY REASONED

PERSUASIVE AUTHORITY THAT HAS NEVER BEEN ADOPTED BY ANY OTHER

OHIO APPELLATE COURT."

                                            I

      {¶9}   Appellant claims the trial court erred in sua sponte dismissing the petition

for interpleader pursuant to Civ.R. 12(B)(1) and (H)(3). We agree.

      {¶10} As explained by this court in Flex Technologies v. American Electric Power

Co., Inc., 5th Dist. Tuscarawas No. 2015 AP 01 0004, 2015-Ohio-3456, ¶ 8:



             A Civ.R. 12(B)(1) motion allows a trial court to dismiss a complaint

      when the trial court lacks subject-matter jurisdiction at the time the
Richland County, Case No. 16CA12                                                         4


      complaint was filed. The issue under Civ.R. 12(B)(1) is "whether any cause

      of action cognizable by the forum has been raised in the complaint." State

      ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989), citing

      Avco Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67, 520 N.E.2d

      1378 (10th Dist.1987). Appellate courts review a decision to dismiss under

      such a motion de novo, employing the same standard as the trial court.

      Howard v. Supreme Court of Ohio, 10th Dist. Franklin Nos. 04AP-1093,

      04AP-1272, 2005-Ohio-2130, 2005 WL 1022911, ¶ 6, citing Kramer v.

      Installations Unlimited, Inc., 147 Ohio App.3d 350, 352, 2002-Ohio-1844,

      770 N.E.2d 632 (5th Dist.).



      {¶11} On January 25, 2016, appellant filed a petition for interpleader, seeking a

determination as to who was entitled to possess the named property. The property was

in the possession of the Richland County Sheriff's Office by virtue of "an emergency

committal for mental health reasons." Appellant named two individuals who may have a

right to claim ownership, Frank and Wendy Ritchie. Appellant also questioned whether

Frank and/or Wendy Ritchie could own the firearms pursuant to Ohio and Federal laws.

      {¶12} Civ.R. 22 governs interpleader and states the following:



             Persons having claims against the plaintiff may be joined as

      defendants and required to interplead when their claims are such that the

      plaintiff is or may be exposed to double or multiple liability. It is not ground

      for objection to the joinder that the claims of the several claimants or the
Richland County, Case No. 16CA12                                                        5


      titles on which their claims depend do not have a common origin or are not

      identical but are adverse to and independent of one another, or that the

      plaintiff avers that he is not liable in whole or in part to any or all of the

      claimants.    A defendant exposed to similar liability may obtain such

      interpleader by way of cross-claim or counterclaim. The provisions of this

      rule supplement and do not in any way limit the joinder of parties permitted

      in Rule 20.

             In such an action in which any part of the relief sought is a judgment

      for a sum of money or the disposition of a sum of money or the disposition

      of any other thing capable of delivery, a party may deposit all or any part of

      such sum or thing with the court upon notice to every other party and leave

      of court. The court may make an order for the safekeeping, payment or

      disposition of such sum or thing.



      {¶13} On February 2, 2016, Frank Ritchie filed a pro se, handwritten statement

claiming to be the rightful owner of the property. Wendy Ritchie did not file an answer or

otherwise respond. By judgment entry filed February 23, 2016, the trial court sua sponte,

without providing notice to appellant, dismissed the petition pursuant to Civ.R. 12(B)(1)

and (H)(3) which state the following:



             (B)(1) Every defense, in law or fact, to a claim for relief in any

      pleading, whether a claim, counterclaim, cross-claim, or third-party claim,

      shall be asserted in the responsive pleading thereto if one is required,
Richland County, Case No. 16CA12                                                           6


        except that the following defenses may at the option of the pleader be made

        by motion: (1) lack of jurisdiction over the subject matter.

               (H)(3) Whenever it appears by suggestion of the parties or otherwise

        that the court lacks jurisdiction on the subject matter, the court shall dismiss

        the action.



        {¶14} With Frank Ritchie's assertion claiming ownership, the trial court was vested

with subject matter jurisdiction and a dismissal was not warranted. After the filing of Frank

Ritchie's answer, the trial court could have set the matter for hearing and substantiated

the claim of ownership and the right to ownership under Ohio and Federal laws. After

such a determination, the trial court could have issued an order releasing the firearms

thereby resolving the issue and closing the case.

        {¶15} Assignment of Error I is granted. The remaining assignments of error are

moot.
Richland County, Case No. 16CA12                                                7


       {¶16} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.



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