[Cite as Davis v. Canton, 2014-Ohio-195.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
CHRISTOPHER A. DAVIS                          :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
               Plaintiff-Appellant            :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 2013CA00080
CITY OF CANTON, ET AL                         :
                                              :
              Defendants-Appellees            :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Stark County Court of
                                                  Common Pleas, Case No. 2012CV02755

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           January 21, 2014

APPEARANCES:

For Plaintiff-Appellant                           For Defendants-Appellees

BRADLEY IAMS                                      JOHN FERRERO
220 Market Ave. S., Ste. 400                      STARK COUNTY PROSECUTOR
Canton, OH 44702                                  BY: STEPHAN BABIK
                                                  110 Central Plaza South, Ste 510
                                                  Canton, OH 44702

                                                  DAVID SMITH
                                                  Canton Law Department
                                                  218 Cleveland Avenue S.W., 7th Floor
                                                  Canton, OH 44702
[Cite as Davis v. Canton, 2014-Ohio-195.]


Gwin, P.J.

        {¶1}    Appellant appeals the April 15, 2013 judgment entry of the Stark County

Court of Common Pleas granting appellees’ motion for judgment on the pleadings.

                                            Facts and Procedural History

        {¶2}    On January 14, 2007, plaintiff-appellant Christopher A. Davis was arrested

on a charge of unlawfully possessing a firearm. The items seized by the Canton Police

Department at the time of appellant’s arrest were as follows:               a 1970 Oldsmobile

Cutlass, a 1998 Chrysler Sebring, a 2001 Dodge Stratus, a 2005 Chrysler 300, four

Hancock tires with chrome rims, and $765.00 in U.S. currency. On February 13, 2007,

appellant was indicted on a federal firearms charge.                 As a result of the federal

indictment, the state charge against appellant of unlawfully possessing a firearm was

dismissed.

        {¶3}    On May 11, 2007, the Stark County Prosecutor filed a forfeiture action

against the above-listed property and a residence located at 2000 Spring Avenue N.E.

in Canton. Appellant filed an answer to the forfeiture complaint on June 4, 2007. In his

answer, appellant disputed that the taking of his property was lawful, requested the trial

court dismiss the forfeiture complaint, and sought an order that the property taken from

him was wrongfully taken. On April 24, 2008, the trial court held a trial on the forfeiture

case. Counsel for appellant appeared at the forfeiture trial. The magistrate entered a

decision rendering judgment for the State of Ohio on the forfeiture complaint on April 25,

2008. The magistrate’s decision was affirmed by the trial court and a judgment entry of

distribution was filed on April 30, 2008.
Stark County, Case No. 2013CA00080                                                      3


      {¶4}   On May 28, 2008, appellant filed an appeal of the trial court’s decision, but

did not request or obtain a stay of execution of the forfeiture judgment. Subsequently,

appellant was sentenced to seventy-seven (77) months in prison on October 22, 2008.

While appellant’s appeal of the forfeiture judgment was pending, the Canton Police

Department auctioned or otherwise disposed of the property. On December 18, 2008,

the proceeds from the auction were distributed as follows: $13,594.27 to the Canton

Police Department, $5,826.11 to the Stark County Prosecutor, and $17,985.23 to the

City of Canton.    The Stark County Clerk of Courts issued new titles for the three

forfeited vehicles to the Canton Police Department on May 7, 2008, and the Canton

Police Department deposited the forfeited currency with the Clerk of Courts on June 19,

2008 after the vehicles were sold.

      {¶5}   On February 17, 2009, this Court issued an opinion reversing the trial

court’s forfeiture decision. State v. $765 in United States Currency, 5th Dist. Stark No.

2008CA00116, 2009-Ohio-711. We found that the trial court’s decision that the items

seized were derived directly or indirectly from the commission of a felony was not

supported by the evidence, sustained the assignment of error, and stated that the

“judgment of the court of Common Pleas of Stark County, Ohio, is hereby reversed.” Id.

The claim against the 2000 Spring Avenue N.E. real estate was settled by the parties

asserting an interest in the residence in a June 30, 2008 stipulated judgment entry and

was not a part of the 2009 appeal or this appeal.

      {¶6}   On July 13, 2012, appellant filed a motion for return of property in the

forfeiture case.   Subsequently on August 30, 2012, appellant filed a complaint for

conversion against appellees City of Canton and the Stark County Board of
Stark County, Case No. 2013CA00080                                                      4


Commissioners seeking monetary damages from the conversion of appellant’s property.

Appellant’s motion to return property in the forfeiture case was denied on September

11, 2012 as moot because the conversion action was pending. Appellant filed a motion

to file an amended complaint in the conversion action on January 17, 2013, which was

granted by the trial court on January 18, 2013. Appellant filed his amended complaint

on January 24, 2013 and added that appellees’ actions were an unconstitutional taking

of property without due process or just compensation in violation of the Fifth and

Fourteenth Amendments of the U.S. Constitution.        Appellee Stark County Board of

Commissioners filed a motion for judgment on the pleadings pursuant to Civil Rule

12(C) on February 25, 2013. Appellee City of Canton filed a motion to join the motion

for judgment on the pleadings on March 11, 2013. The trial court granted the City of

Canton’s motion to join on March 13, 2013.

      {¶7}   After a response filed by appellant on March 11, 2013, the trial court, in an

April 15, 2013 judgment entry, granted appellees’ motion for judgment on the pleadings.

The trial court determined that no demand and refusal was required to trigger the

statute of limitations because the original taking was not rightful and that an action of

dominion inconsistent with ownership of the property had taken place. Further, that

appellant’s cause of action accrued when he discovered, or, in the exercise of

reasonable care, should have discovered the injury, and that the latest point at which

the discovery could have occurred was February 17, 2009, when this Court reversed

the forfeiture judgment.   The trial court held that appellant had two years from the

February 17, 2009 date to bring his complaint for conversion and that his complaint for

conversion was time-barred because the filing date of August 30, 2012 was well beyond
Stark County, Case No. 2013CA00080                                                      5


the February 2011 expiration of the statute of limitations. The trial court further found

that R.C. 2305.10 bars appellant’s Fifth and Fourteenth Amendment claims.

      {¶8}   Appellant appeals the judgment entry of the Stark County Common Pleas

Court and assigns the following as error:

      {¶9}   “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

COMPLAINT ON THE PLEADINGS.”

                        Motion for Judgment on the Pleadings Standard

      {¶10} A motion for judgment on the pleadings presents only questions of law.

Luthy v. Dover, 5th Dist. No. 2011AP030011, 2011-Ohio-4604, citing Dearth v. Stanley,

2nd Dist. No. 22180, 2008-Ohio-487.         In ruling on a motion for judgment on the

pleadings, the trial court must construe the material allegations in the complaint and any

reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can

prove no set of facts entitling plaintiff to relief, the court must sustain a motion for

judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010-

CA-00120, 2011-Ohio-580, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000-Ohio-230,

733 N.E.2d 1161. However, the complaint must allege sufficient facts to support any

conclusions, and unsupported conclusions are not presumed to be true. Id.

      {¶11} Judgment on the pleadings may be granted where no material factual

issue exists. However, it is axiomatic that a motion for judgment on the pleadings is

restricted solely to the allegations contained in those pleadings. Giesberger v. Alliance

Police Dept., 5th Dist. No. 2011 CA 00070, 2011-Ohio-5940, citing Flanagan v.

Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (4th Dist. 1993).
Stark County, Case No. 2013CA00080                                                        6


       {¶12} Our review of the trial court’s decision on a judgment on the pleadings is

de novo. See State v. Sunfronko, 105 Ohio App.3d 504, 644 N.E.2d 596 (4th Dist.

1995). When reviewing a matter de novo, this Court does not give deference to the trial

court’s decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 809 N.E.2d

1161, 2004-Ohio-829 (9th Dist. 2004). “Under Civ.R. 12(C), dismissal is appropriate

where a court (1) construes the material allegations in the complaint, with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds

beyond doubt, that the plaintiff could prove no set of facts in support of his claim that

would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio

St.3d 565, 570, 664 N.E.2d 931 (1996).

                                           Conversion

       {¶13} Appellant argues the trial court erred in finding his claim for conversion is

time-barred pursuant to the applicable statute of limitations. We disagree.

       {¶14} There is no dispute between the parties that even though R.C. 2305.09

provides a four-year statute of limitations for conversion claims, the applicable statute of

limitations for appellant’s claim for conversion is two years pursuant to R.C. 2744.04.

R.C. 2744.04(A) provides that, “[a]n action against a political subdivision to recover

damages for * * * loss to person or property allegedly caused by any act or omission in

connection with a governmental or proprietary function * * * shall be brought within two

years after the cause of action accrues.” R.C. 2744.04(A).

       {¶15} Appellant first argues his cause of action did not accrue until a demand

and refusal occurred. The tort of conversion is defined as the “wrongful exercise of

dominion over property to the exclusion of the rights of the owner, or withholding it from
Stark County, Case No. 2013CA00080                                                           7

his possession under a claim inconsistent with his rights.” Bush v. Signals Power and

Grounding Specialists, Inc., 5th Dist. Richland No. 08 CA 88, 2009-Ohio-5095. The

elements required for conversion are: (1) a defendant’s exercise of dominion or control;

(2) over a plaintiff’s property; and (3) in a manner inconsistent with the plaintiff’s right of

ownership. Id.

       {¶16} In Bush v. Signals Power & Grounding Specialists, Inc., this Court

distinguished between two types of conversion. 5th Dist. Richland No. 08 CA 88, 2009-

Ohio-5095. In the first type of conversion, the wrongful possessor properly acquires the

property, but then refuses to return it upon demand.            Id.   In the second type of

conversion, the wrongful possessor unlawfully acquires the property. Id. As stated in

Bush v. Signals Power, the demand and refusal elements are conditional and are

necessary only in the first type of conversion “if the original taking was rightful and no

act of dominion or control inconsistent with the [owner’s] ownership had taken place.”

Id.   If possession is obtained against the will of the owner of the property and a

possessor exercises dominion or control inconsistent with the ownership interests of the

actual owner, no demand and refusal is required. Id. Further, though a demand and

refusal is usually required to prove conversion, acts that are “inconsistent with the right

of the plaintiff’s ownership are sufficient to satisfy this requirement.” Tinter v. Lucik, 172

Ohio App.3d 692, 2007-Ohio-4437, 876 N.E.2d 1026 (8th Dist. 2007).

       {¶17} In this case, the Canton Police Department seized appellant’s property

pursuant to arrest, stored that property, and ultimately sold the property after the trial

court’s forfeiture judgment. These actions were inconsistent with appellant’s ownership

of the property and demonstrate the possessor in this case exercised dominion and
Stark County, Case No. 2013CA00080                                                        8


control over the property. Appellant did not consent to his property being seized, as

evidenced by his answer in the forfeiture case disputing the taking of his property was

lawful and demanding return of his property, his defense against the forfeiture action at

trial, and his subsequent appeal of the forfeiture action. We agree with the trial court

that, due to the actions of the possessor, no demand and refusal was required for

appellant to realize he must assert legal rights against those who seized his property.

      {¶18} Appellant next argues that, pursuant to the “discovery rule,” the statute of

limitations did not commence until appellant was reasonably on notice that his property

would not be returned to him and that such date is within the statute of limitations. We

disagree.

      {¶19} The “discovery rule” is an exception to a general statute of limitations and

provides that “a cause of action accrues when the plaintiff discovers, or in the exercise

of reasonable care should have discovered, that he or she was injured by the wrongful

conduct of the defendant.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546

N.E.2d 206 (1989). The running of the statute of limitations is delayed until triggered by

a “cognizable event” that would alert a reasonable person that injury has occurred.

Hutchinson v. Lehigh, 5th Dist. Tuscarawas No. 2005AP020013, 2005-Ohio-6215.

Further, “constructive knowledge of facts, rather than the actual knowledge of their

significance, is enough to start the statute of limitations running under the discovery

rule.” Waikem v. Cleveland Clinic Foundation, 5th Dist. Stark No. 2011 CA 00234,

2012-Ohio-5620, quoting Flowers v. Walker, 63 Ohio St.3d 546, 589 N.E.2d 1284

(1992).
Stark County, Case No. 2013CA00080                                                        9


       {¶20} We note that there is some question as to whether the “discovery rule”

applies to R.C. 2744.04 as detailed by appellee Stark County Commissioners in their

appellate brief. However, we find that even if we apply the broader “discovery rule” to

the instant case, appellant’s conversion claim is beyond the applicable statute of

limitations.

       {¶21} In this case, the property appellant argues was converted was taken from

appellant upon his arrest on January 14, 2007. Appellant filed an answer to the State of

Ohio’s forfeiture complaint on June 4, 2007 in which appellant disputed the taking of his

property was lawful and stated the property was wrongfully taken from him. Counsel for

appellant appeared at the forfeiture trial to argue against the seizure of the property. A

judgment entry of distribution was entered on April 30, 2008. While appellant filed a

notice of appeal, he failed to request or obtain a stay of execution of the forfeiture

judgment. On February 17, 2009, this Court reversed the forfeiture judgment. Though

appellant states the date at which he realized he would need to sue to recover his

property was within the statute of limitations, appellant fails to specify what date

triggered the statute of limitations and there is no indication when this realization of his

need to sue occurred. To adopt appellant’s argument would result in an open-ended

limitations period in contradiction of Ohio law regarding the “discovery rule.” Here, the

latest possible “cognizable event” which would alert a reasonable person that an injury

had occurred was on February 17, 2009, when this Court reversed the forfeiture

judgment.      Thus, even utilizing the “discovery rule,” the statute of limitations for

appellant’s conversion claim expired two years after the February 17, 2009 cognizable
Stark County, Case No. 2013CA00080                                                         10


event. Accordingly, the trial court did not err in finding that the filing date of appellant’s

complaint for conversion, August 30, 2012, is beyond the two-year statute of limitations.

       {¶22} Appellant finally argues that his conversion claim is not time-barred

because R.C. 2981.03(C) prohibits other types of claims from being filed until the

forfeiture lawsuit is resolved. We disagree. R.C. 2981.03(C) provides that, “[e]xcept as

otherwise provided in division (E) of this section, any replevin, conversion, or other civil

action brought concerning property subject to a criminal or civil forfeiture under this

chapter shall be stayed until the forfeiture action is resolved.” R.C. 2981.03(C).

       {¶23} The plain language of the statute does not prohibit or bar an injured party

from filing claims for conversion when a civil or criminal forfeiture is pending or instruct

parties that they must wait until a forfeiture action is completed to file a complaint for

conversion. Rather, the statute provides that if a complaint for conversion is filed by a

party while a criminal or civil forfeiture is pending, the civil complaint for conversion is

stayed until the forfeiture action is resolved. Thus, R.C. 2981.03(C) does not prevent

appellant’s complaint for conversion from being time-barred. In addition, the forfeiture

action was resolved on February 17, 2009, when this Court reversed the forfeiture

judgment of the trial court. Accordingly, R.C. 2981.03(C) would not have prevented

appellant from filing his complaint for conversion after February 17, 2009.

                        Violations of the Fifth and Fourteenth Amendment

       {¶24} We further agree with appellees that appellant’s reliance on the Fifth and

Fourteenth Amendments of the U.S. Constitution for his claim does not extend the

statute of limitations. In Nadra v. Mbah, the Ohio Supreme Court provided that the

applicable statute of limitations for 42 U.S.C. 1983 (“Section 1983”) claims brought in
Stark County, Case No. 2013CA00080                                                        11


Ohio is Ohio’s general statute of limitations for personal injury found in R.C. 2305.10.

119 Ohio St.3d 305, 2008-Ohio-3918, 893 N.E.2d 829. R.C. 2305.10 provides that, “* *

* an action for bodily injury or injuring personal property shall be brought within two

years after the cause of action accrues.” R.C. 2305.10. “[T]he accrual date of a § 1983

cause of action is a question of federal law that is not resolved by reference to state

law.”   Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).

Pursuant to federal law, the date of accrual is the date when a party “knows or has

reason to know of the injury which is the basis of his action” and the party must exercise

reasonable diligence to discover the existence of the injury. Sevier v. Turner, 742 F.2d

262 (6th Cir. 1984).

        {¶25} In this case, the property appellant argues was unconstitutionally seized

from him was taken from appellant upon his arrest on January 14, 2007. In his June 4,

2007 answer to the forfeiture complaint, appellant disputed the taking of his property

was lawful and stated the property was wrongfully taken from him.               Counsel for

appellant appeared at the forfeiture trial to argue against the State of Ohio’s seizure of

the property. This Court reversed the forfeiture judgment on February 17, 2009 and

appellant knew the property had been disposed of prior to this Court’s reversal of the

forfeiture judgment. Even if we utilize the latest date when appellant knew or had

reason to know of the injury of the wrongful seizure of his property, February 17, 2009,

appellant’s August 30, 2012 complaint was filed outside the applicable two year statute

of limitations contained in R.C. 2305.10. Accordingly, the trial court did not err in finding

appellant’s claim for violations of the Fifth and Fourteenth Amendments is time-barred.
Stark County, Case No. 2013CA00080                                                 12


      {¶26} Based on the foregoing, we overrule appellant’s assignment of error and

affirm the April 15, 2013 judgment entry of the Stark County Common Pleas Court.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
