[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



         In April 2011, Lisboa filed another motion for the return of his property, and in May 2011, he
       1


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.,


         To the extent Lisboa states claims against the prosecuting attorney for the 2009 indictment,
       2


those claims are barred by prosecutorial immunity. Willitzer v. McCloud (1983), 6 Ohio St.3d 447,
449, 453 N.E.2d 693.

         Although not a basis for our decision, we further note that the court that heard Lisboa’s
       3


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
