author: BRUNNER, J. SADLER, J., dissenting.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Andre D. HARPER, Defendant-Appellant.
    No. 17AP-762
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on June 28, 2018
    DECISION
   BRUNNER, J.

{¶ 1} Defendant-appellant, Andre D. Harper, appeals a decision of the Franklin County Court of Common Pleas entered on September 29, 2017 denying his motion for the trial court to consider void his previously imposed post-release control term and to order his immediate release. Because the judgment entry in Harper's case insufficiently notified him of consequences he could face if he violates conditions of post-release control on his release from prison, we remand the decision to the trial court for it to correct its entry nunc pro tunc in accordance with R.C. 2929.19(B)(2)(e) and State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 12, 2012, a Franklin County Grand Jury indicted Harper for two counts of robbery, felonies of the second and third degree respectively. (Apr. 12, 2012 Indictment.) Harper was charged for attempting to steal approximately $1,800 worth of merchandise from Macy's. (Feb. 13, 2013 Sentencing & Plea Tr. at 4-5, filed Dec. 1, 2017.) Loss prevention officers at Macy's apparently apprehended him during his attempt but, in the course of being apprehended, Harper bit one male officer on the shoulder and bit a female office once on the hand and twice on the face. Id. Harper initially pled "not guilty." (Apr. 16, 2012 Plea Form.)

{¶ 3} After a number of pre-trial proceedings, including one at which Harper failed to appear and was subsequently arrested on a capias order, he agreed to plead guilty to a third-degree felony robbery charge with a recommended sentence of three years in exchange for dismissal of the second-degree robbery charge and time served on his failure to appear case. (Nov. 2, 2012 Capias; Nov. 19, 2012 Capias Return; Feb. 15, 2013 Plea Form.) The trial court held a combined plea and sentencing hearing on February 13, 2013. At this hearing, the trial court heard testimony that was not transcribed until after the trial court issued its decision now under review and for which we declined to allow Harper to supplement the appellate record with the hearing transcript. (Sentencing & Plea Tr. at 12-14; Dec. 27, 2017 Entry Denying Supplement.) We thus presume the regularity of proceedings and that Harper was appropriately orally notified of post-release control. State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs. , 127 Ohio St.3d 202, 2010-Ohio-5073, 937 N.E.2d 1274, ¶ 14 ; Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶ 4} In addition to receiving presumptive oral notification, Harper signed a notice that reads as follows:

After you are released from prison you {will} mayhave a period of post-release control for 3 years following your release from prison. If you violate post-release control sanctions imposed upon you, any one or more of the following may result:
(1) The Parole Board may impose a more restrictive post-release control sanction upon you; and
(2) The Parole Board may increase the duration of the post-release control subject to a specified maximum; and
(3) The more restrictive sanction that the Parole Board may impose may consist of a prison term, provided that the prison term cannot exceed nine months and the maximum cumulative prison term so imposed for all violations during the period of post-release control cannot exceed one-half of the stated prison term originally imposed upon you; and
(4) If the violation of the sanction is a felony, you may be prosecuted for the felony and, in addition to any sentence it imposes on you for the new felony, the Court may impose a prison term, subject to a specified maximum, for the violation.

(Feb. 15, 2013 Notice.) Harper also signed a plea form that he would be subject to three years of mandatory post-release control:

I understand that a violation of post-release control conditions or the condition under R.C. 2967.131 could result in more restrictive non-prison sanctions, a longer period of supervision or control up to a specified maximum, and/or reimprisonment for up to nine months. The prison term(s) for all post-release control violations may not exceed one-half of the prison term originally imposed. I understand that I may be prosecuted, convicted, and sentenced to an additional prison term for a violation that is a felony. I also understand that such felony violation may result in a consecutive prison term of twelve months or the maximum period of unserved post-release control, whichever is greater. Prison terms imposed for violations or new felonies do not reduce the remaining postrelease control period(s) for the original offense(s).

(Feb. 15, 2013 Plea Form at 2.)

{¶ 5} In its judgment entry, the trial court did not again set forth all the parameters of post-release control but instead stated, "[t]he Court also notified the Defendant of the applicable period of 3 years mandatory post-release control pursuant to R.C. 2929.19(B)(3)(c), (d) and (e)." (Emphasis sic.) (Feb. 15, 2013 Jgmt. Entry at 2.) Harper did not appeal that entry.

{¶ 6} Approximately four and one-half years later, on July 7, 2017, Harper filed a motion for the court to vacate post-release control, alleging its imposition void for having been improperly imposed. (July 7, 2017 Mot. to Vacate Post Release Control.) Since Harper had completed his original prison sentence, he alleged in his motion that the appropriate remedy was to vacate post-release control and order his release from a subsequent prison term imposed for his performance on post-release control. Id. The trial court denied Harper's motion, inadvertently referencing former R.C. 2929.19(B)(3) rather than current R.C. 2929.19(B)(2) in its entry. (Sept. 29, 2017 Decision at 2.)

{¶ 7} Harper now appeals.

II. ASSIGNMENT OF ERROR

{¶ 8} Harper assigns a single error for review:

The trial court erred by denying the defendant-appellant's motion to vacate the post-release control part of his sentence.

III. DISCUSSION

{¶ 9} "[A] trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing" and "any sentence imposed without such notification is contrary to law." State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. "[S]tatutorily compliant notification" includes "notifying the defendant of the details of the postrelease control and the consequences of violating postrelease control." State v. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. The "preeminent purpose" of such notice is that "offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences." Watkins v. Collins , 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52. However, because a court is generally said to speak only through its journal, the trial court, in addition to oral notification at the sentencing hearing, is "required to incorporate that notice into its journal entry imposing sentence." Jordan at ¶¶ 6, 17, paragraph one of the syllabus.

{¶ 10} During the combined sentencing and plea hearing, Harper was appropriately notified both orally and in writing of the three-year mandatory term of post-release control and the consequences for violating its terms. (Feb. 15, 2013 Notice; Feb. 15, 2013 Plea Form at 2.) Bardwell at ¶ 14 ; Knapp at 199, 400 N.E.2d 384. The real question in this case is whether the trial court's journal entry sufficiently and lawfully incorporated notice of post-release control.

{¶ 11} Notification and incorporation in the judgment entry of the post-release control sanction are necessary to "empower[ ] the executive branch of government to exercise its discretion." Jordan at ¶ 22. Accordingly, "to validly impose postrelease control, a minimally compliant entry must provide the [Adult Parole Authority] the information it needs to execute the postrelease-control portion of the sentence." Grimes at ¶ 13. The Supreme Court of Ohio has explained that a "sentencing entry must contain the following information: (1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a statement to the effect that the Adult Parole Authority ("APA") will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute." Id. at ¶ 1.

{¶ 12} In Harper's case, the trial court's entry only included language that "[t]he Court also notified the Defendant of the applicable period of 3 years mandatory post-release control pursuant to R.C. 2929.19(B)(3)(c), (d) and (e)." (Emphasis sic.) (Feb. 15, 2013 Jgmt. Entry at 2.) The entry clearly specified the length of the term and the mandatory nature of the term. But whether the reference alone to " R.C. 2929.19(B)(3)(c), (d) and (e)" was sufficient notice to Harper and to instruct the APA is the issue for determination. Language should be included that informs the APA that it "will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute." Grimes at ¶ 1.

{¶ 13} In Grimes , the Supreme Court found the following judgment entry language sufficient:

The Court further notified the Defendant that 'Post Release Control' is mandatory in this case for three (03) years as well as the consequences for violating conditions of post release control imposed by Parole Board under Revised Code § 2967.28. The Defendant is ordered to serve as part of this sentence any term for violation of that post release control.

(Emphasis sic.) Grimes at ¶¶ 2, 25. By contrast, the Eighth District Court of Appeals, relying on Grimes , found the following trial court language to be insufficient: "Postrelease control is part of this prison sentence for 3 years for the above felony(s) under R.C. 2967.28." State v. Tolbert , 8th Dist., 2017-Ohio-9159, 103 N.E.3d 245, ¶¶ 4, 28-30.

{¶ 14} Comparing Harper's sentencing language to that used by courts in Grimes and Tolbert , we find that Harper's judgment entry did not contain language that minimally set forth the consequences of violating post-release control. The trial court did not at all mention in its entry the consequences of violating the terms of post-release control and did not cite the statute that establishes the consequences for violation, R.C. 2967.28. (Feb. 15, 2013 Jgmt. Entry at 2.) Harper's judgment entry did cite R.C. 2929.19 and, in denying Harper's motion to vacate, the trial court noted that R.C. 2929.19 includes references to supervision pursuant to R.C. 2967.28. (Sept. 29, 2017 Decision at 2.) See also R.C. 2929.19(B)(2)(c) through (e). Even if we were to hold that language to be sufficient, the trial court's entry in Harper's case did not cite the proper division of R.C. 2929.19. The trial court cited " R.C. 2929.19(B)(3)(c), (d) and (e)," but the proper division, both at the time Harper was sentenced, and now, is R.C. 2929.19(B)(2). See 2011 Am.Sub.H.B. No. 86. Thus, the trial court's judgment entry in Harper's case did not mention consequences of any kind, did not cite the statute that provides for such consequences, and referenced the wrong division of the sentencing statute as applicable to Harper. Under Grimes , the trial court's judgment entry insufficiently incorporated notice of post-release control.

{¶ 15} The State argues that the Grimes decision should not be applied "retroactively" to Harper's case. (State's Brief at 4-7.) The Supreme Court has recognized that "[a] new judicial ruling may be applied only to cases that are pending on the announcement date." Ali v. State , 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6, citing State v. Evans , 32 Ohio St.2d 185, 186, 291 N.E.2d 466 (1972). That is, a "new judicial ruling may not be applied retroactively to a conviction that has become final, i.e., where the accused has exhausted all of his appellate remedies." Ali at ¶ 6, citing Transamerica Ins. Co. v. Nolan , 72 Ohio St.3d 320, 323, 649 N.E.2d 1229 (1995) ; Doe v. Trumbull Cty. Children Serv. Bd. , 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph one of the syllabus; Evans at 186, 291 N.E.2d 466 ; State v. Lynn , 5 Ohio St.2d 106, 108, 214 N.E.2d 226 (1966) ; State v. Gonzalez , 138 Ohio App.3d 853, 859, 742 N.E.2d 710 (1st Dist.2000). But the Supreme Court has also embraced a view that a failure to properly impose post-release control renders a sentence void in relevant part and therefore open to challenge at any time, irrespective of finality or other principles of res judicata. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraphs one and two of the syllabus. So for this limited purpose, finality and res judicata do not bar relief for Harper under Grimes . Tolbert at ¶¶ 33-35 (applying Grimes retroactively); see also State v. Schroeder , 151 Ohio St.3d 345, 2017-Ohio-7858, 88 N.E.3d 957 (retroactively applying Grimes to an appeal pending when Grimes was decided); but c.f. , State v. Madrid , 6th Dist. No. L-17-1299, 2018-Ohio-1873, 2018 WL 2175496, ¶¶ 15-16 (distinguishing Schroeder and affirming a trial court decision that declined to retroactively apply Grimes ).

{¶ 16} Harper argues, having completed his original prison term, that post-release control may not now be reimposed and that he must be released from post-release control or from confinement for violation of it. (Harper's Brief at 18.) The Supreme Court has "recognize[d]" that "unless a sentencing entry that did not include notification of the imposition of postrelease control is corrected before the defendant completed the prison term for the offense for which postrelease control was to be imposed, postrelease control cannot be imposed." Qualls at ¶ 16, citing Hernandez v. Kelly , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶¶ 28-30 ; Watkins at ¶ 48-51. We note that principle from Qualls is based on a case where post-release control was not imposed at all in the entry and no notification was given. See Hernandez at ¶¶ 1, 28. In Harper's case, a mandatory three-year term of post-release control was duly imposed and Harper received repeated notices both in writing and orally about the terms of post-release control. (Sentencing & Plea Tr. at 12-14; Feb. 15, 2013 Notice; Feb. 15, 2013 Plea Form at 2; Feb. 15, 2013 Jgmt. Entry at 2.) The only problem with Harper's sentencing entry is that the consequences of violating post-release control were not specifically mentioned in the judgment entry. (Feb. 15, 2013 Jgmt. Entry at 2.)

{¶ 17} The situation in this case is therefore not on all fours with Hernandez and is more analogous to the situation in Watkins . In Watkins , multiple prisoners, all of whom had finished their original prison sentences but were still under post-release control, sought writs of habeas corpus because the judgment entries that imposed post-release control were ambiguous about whether it was mandatory or discretionary. Watkins at ¶¶ 25, 42, 50. In that circumstance, the Supreme Court distinguished Hernandez and declined to grant the writ ordering the prisoners' release because it found that they could have raised the issue in a direct appeal and that post-release control was validly imposed following completion of their original prison terms, notwithstanding the problems in the entries. Id. at ¶¶ 49-53 ; Qualls at ¶ 16.

{¶ 18} In Harper's case, although the imposition of post-release control in the judgment entry was defective under Grimes , it stated enough information (length and mandatory nature of the post-release control term) to impose post-release control and permit the APA to begin administering it after he completed his original prison term. As a consequence, like those in Watkins and unlike the defendant in Hernandez , Harper remains validly under sentence, even though it may not have been perfectly imposed. This finding is also consistent with R.C. 2929.19(B)(2)(e), which provides in relevant part, "the failure of a court to notify the offender * * * that the parole board may impose a prison term * * * for a violation of that supervision or a condition of post-release control * * * or to include in the judgment of conviction * * * a statement to that effect does not negate, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature."

{¶ 19} Harper's assignment of error is sustained insofar as the judgment entry should be corrected. Releasing him is not warranted under the circumstances, because we conclude that the appropriate remedy in this case is that a nunc pro tunc entry be issued correcting the deficiency in the judgment entry as defined in Grimes . Accordingly, we remand the matter to the trial court to correct Harper's judgment entry nunc pro tunc.

IV. CONCLUSION

{¶ 20} Supreme Court of Ohio precedent renders judgment entries partially void if post-release control is not appropriately imposed and consequently enables the relevant parts of such entries to be challenged at any time. Because challenge may occur at any time concerning this issue, and because the judgment entry in this case imposes the appropriate term of mandatory post-release control but does not at all mention the consequences to the offender for violating post-release control, we remand to the Franklin County Court of Common Pleas for the issuance of a nunc pro tunc entry that complies with Grimes .

Judgment affirmed and cause remanded for nunc pro tunc entry.

HORTON, J., concurs.

SADLER, J., dissents.

SADLER, J., dissenting.

{¶ 21} The majority opinion, in essence, holds that this court is required to remand, for the issuance of a nunc pro tunc entry, any sentencing entry issued prior to the Supreme Court of Ohio's 2017 decision in State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, that does not comply with Grimes requirements. Because I believe Grimes does not apply retroactively to require a nunc pro tunc entry in this case, I dissent.

{¶ 22} The majority opinion at paragraph 15 justifies retroactively applying Grimes by citing to State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and its invocation of the voidness doctrine to remedy improperly imposed post-release control. While I recognize the "voidness" doctrine exists as precedent in this area of law, I nonetheless do not believe the voidness doctrine means that Grimes must be applied retroactively here.

{¶ 23} First, Grimes itself is silent on its retroactive application, and the majority opinion in Grimes expressly refused to address the issue of whether such entries are void or merely voidable. Second, the majority opinion's reasoning-that Grimes applies retroactively because the sentencing entry is improper (and partially void) under Grimes -seems circular. To me, a judgment entry that is void under the law at the time it was imposed, and therefore correctable at any time, is different conceptually from a judgment entry that was properly imposed under the law at the time but at odds with a later judicial opinion. In the later scenario, I believe the general retroactivity rule for new judicial opinions stated in Ali v. State , 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, should be applied, even within this unique strain of post-release control law. As recognized by the majority opinion, at least one other appellate district has concluded the same. See , e.g. , State v. Madrid , 6th Dist. No. L-17-1299, 2018-Ohio-1873, 2018 WL 2175496, ¶¶ 12-17 (concluding, under Ali , the appellant's conviction was final and not subject to retroactive application of Grimes ). To do otherwise invites a perpetual wave of collateral challenges to otherwise final judgment entries each time a nuance is added to post-release control jurisprudence.

{¶ 24} In this case, Harper was provided statutorily compliant notification regarding post-release control at his hearing. At the time the trial court entered its sentencing entry in February 2013, it was required to "incorporate into the sentencing entry the postrelease-control notice to reflect the notification that was given at the sentencing hearing." State v. Qualls , 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 19, citing State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus. However, until Grimes , the Supreme Court had "not decided whether-and if so, how-notice of the consequences of violating a condition of postrelease control must also be incorporated into the sentencing entry." Id. at ¶ 11.

{¶ 25} As Harper exhausted all his appellate remedies, pursuant to Ali , I would not apply Grimes retroactively and would not find the sentencing entry here insufficient for failing to set forth consequences for violating post-release control under law at the time it was issued. Therefore, I would overrule Harper's assignment of error. Because the majority opinion holds otherwise, I respectfully dissent.

      We note that this presumption is a reasonable one because, although it is not technically before us, the transcript reflects the following exchange:
      THE COURT: Now, the three years in prison is not the end of your problems with the legal system for this crime. You will be supervised by a parole officer for three more years after you get out of prison. That's covered on the top of page 2. It's called post-release control.
      THE DEFENDANT: [My attorney] explained it to me.
      THE COURT: I assume you know, because the form covers this, but I want to make sure.
      While you're supervised after prison for three years, you'll have to see a parole officer, not do drugs, not commit new crimes, not run away from the state or hide from your parole officer or do anything stupid. Do you understand that?
      THE DEFENDANT: Yes, sir.
      THE COURT: If you break those rules of the Adult Parole Authority during that three-year period, they will not call me and they won't call [your attorney], but they'll punish you with more jail time or prison time for not doing the three-year-supervision period correctly. Do you understand?
      THE DEFENDANT: Uh-hum.
      THE COURT: Is that a yes?
      THE DEFENDANT: Yes.
      THE COURT: All right. Because we can't write down "uh-hum" very well, so I need you to articulate.
      That could add up to another year and a half to your jail sentence, or your prison sentence, depending on where they punish you, if you do bad stuff during that three-year-supervision period. They can add up to half again onto my original three-year sentence, okay? Do you understand, sir?
      THE DEFENDANT: Yes.
      (Sentencing & Plea Tr. at 12-14.)

      See also State v. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶¶ 35-36, noting that, rather than provide a de novo sentencing hearing, courts may apply corrective procedures as set forth in R.C. 2929.191.

      Reported online as 2011 Ohio HB 86.

      Though we and others have previously raised questions about the "voidness" doctrine that the Supreme Court has created in this context, until the Supreme Court revisits that line of jurisprudence, it remains the law of Ohio. State v. Banks , 10th Dist. No. 15AP-653, 2015-Ohio-5372, 2015 WL 9393887, ¶ 16, fn. 1 ; see also Grimes at ¶ 34-39 (DeWine, J., concurring in judgment only); Fischer at ¶¶ 41-57 (Lanzinger, J., dissenting).

      In line with the concurring opinions of JJ. DeWine and French in Grimes , I believe that traditional principles of res judicata should apply to post-release control sentencing errors. See generally Grimes at ¶¶ 27-63 (DeWine and French, JJ., concurring in judgment only). I further agree with the concerns expressed by the concurring opinions of JJ. Kennedy and DeWine in Grimes regarding the growing disconnect between postrelease control judicial decisions and the plain language of the statutory scheme. By retroactively applying new judicial opinions on post-release control as a matter of course, as the majority opinion does here, we compound this problem and risk enabling a judicial system whereby new case law continuously applies to revive otherwise final judgments.

      The state cites as supplemental authority State ex rel. Oliver v. Turner , 153 Ohio St.3d 605, 2018-Ohio-2102, 109 N.E.3d 1204. In Oliver , the Supreme Court determined in part that a writ of habeas could issue where a petitioner-inmate claims the Bureau of Sentence Computation misunderstood the legal effect of a sentencing entry when it added two years to his maximum release date, as opposed to claiming an error in the sentencing entry amenable to remedy by direct appeal. Because I do not find Oliver determinative to resolving the assignment of error in this case, I decline to address it here.


source: Caselaw Access Project

author: Cunningham, Presiding Judge.

license: Public Domain

text:
    Irene DANOPULOS, Plaintiff-Appellant, v. AMERICAN TRADING II, LLC, Defendant-Appellee.
    NO. C-170461
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: June 29, 2018
    W. Michael Conway, for Plaintiff-Appellant,
    Crehan & Thumann, LLC, and Robert J. Thumann, Cincinnati, for Defendant-Appellee.
   Cunningham, Presiding Judge.

{¶ 1} Plaintiff-appellant Irene Danopulos appeals from the judgment of the Hamilton County Court of Common Pleas entered in favor of defendant-appellee American Trading II, LLC, ("American Trading") on Danopulos' claim for conversion related to her stolen jewelry that American Trading had purchased and resold as scrap before Danopulos had demanded its return. In her sole assignment of error, Danopulos claims it was error for the trial court to find for American Trading, and against her, when she undisputedly established the elements of her claim. Because we agree, we reverse the trial court's judgment and remand the cause for the trial court to enter judgment for Danopulos on the issue of liability and to determine her damages.

I. Background Facts and Procedure

{¶ 2} This is the second appeal of this case involving three pieces of jewelry stolen from Danopulos' Montgomery County residence on June 21, 2014. American Trading, a licensed pawnbroker located in Cheviot, Hamilton County, then purchased the jewelry from an accomplice of the burglar for $2,125 and reported its purchase of the items to the Hamilton County Sheriff's Office. American Trading held on to the items for at least 15 days, disassembled the items, and then sold the parts for $7,064.70.

{¶ 3} On July 14, a detective with the Montgomery County Sheriff's Office investigating the theft learned that the stolen items had been sold to American Trading. He advised American Trading that the items were stolen and that Danopulos wanted them returned to her. American Trading refused, as it had already disposed of the property.

{¶ 4} Danopulos then filed this lawsuit against American Trading and proceeded on a claim of conversion. Danopulos v. Am. Trading II, LLC , 2016-Ohio-5014, 69 N.E.3d 157 (1st Dist.) (" Danopulos I "). American Trading moved for summary judgment on the claim, taking the position that it had had legal title to the items by virtue of its compliance with two provisions of R.C. Chapter 4727, which governs pawnbrokers in Ohio. American Trading argued that such compliance shielded American Trading from any claim by Danopulos with respect to the stolen items, including conversion. Id. at ¶ 4. The trial court agreed and granted summary judgment for American Trading, reasoning that American Trading's compliance with the relevant provisions of R.C. Chapter 4727 vested American Trading with ownership rights in the stolen property superior to those of Danopulos. Id. at ¶ 6. The trial court also denied Danopulos' motions for leave to amend her complaint to add other causes of action, including one for negligence. Id. at ¶ 7.

{¶ 5} On appeal, this court reversed the trial court's summary judgment for American Trading and its denial of the motions for leave to amend. We determined that R.C. Chapter 4727 served a regulatory function, id. at ¶ 16, and did not modify the common law rule that "a thief does not acquire good title to stolen property and, therefore, 'one who purchases or acquires property from a thief,' even in good faith, does not have a right to the possession of the goods against 'the rightful owner.' " Id. at ¶ 12, quoting Wacksman v. Harrell , 174 Ohio St. 338, 340, 189 N.E.2d 146 (1963). We then remanded the cause for further proceedings, including for the trial court to rule on Danopulos' motions to amend her complaint in light of our decision. Danopulos I at ¶ 28.

{¶ 6} On remand, Danopulos withdrew her motions to amend the complaint, and the case proceeded to a trial before the court on Danopulos' conversion claim. The trial court issued findings of fact and conclusions of law. Despite finding, based on the undisputed evidence, that American Trading had disassembled and sold Danopulos' stolen property without her consent, the court determined that Danopulos could not prevail on her claim absent evidence that she had made a demand for her property when it was still in American Trading's possession or control, because American Trading's possession of the jewelry was "lawful." As the evidence showed Danopulos'

demand occurred when American Trading no longer had possession of the property, the court entered judgment for American Trading and against Danopulos on the conversion claim. Danopulos now appeals from this judgment.

II. Analysis

{¶ 7} The first appeal in this case involved whether a pawnbroker's purported compliance with R.C. Chapter 4727 in acquiring and disposing of stolen property vested the pawnbroker with a right of possession superior to that of the owner, in derogation of the common law. We answered that question in the negative, and reaffirmed the principal that a thief cannot convey good title to stolen property. Danopulos I , 2016-Ohio-5014, 69 N.E.3d 157, at ¶ 12, citing Wacksman at 340, 189 N.E.2d 146, Allan Nott Ents. v. Nicholas Starr Auto, L.L.C. , 110 Ohio St.3d 112, 2006-Ohio-3819, 851 N.E.2d 479, and M. & M. Hotel Co. v. Nichols , 21 Ohio Law Abs. 66, 32 N.E.2d 463 (1st Dist.1935). See Pate v. Elliott , 61 Ohio App.2d 144, 146, 400 N.E.2d 910 (10th Dist.1978) ; Rudolph Wurlitzer Co. v. Corbett , 3 Ohio Law Abs. 432 (8th Dist.1925).

{¶ 8} This appeal, on the other hand, primarily involves the elements of a conversion claim. Conversion is a common-law tort relating to the wrongful exercise of dominion or control over property in exclusion of the owner's right, or the withholding of property from the owner's possession under a claim inconsistent with the owner's rights. Danopulos I at ¶ 11 ; Gillespie & McCulley v. Holland , 26 Ohio C.D. 220, 222-223, 36 Ohio C.C. 220, 20 Ohio C.C.(N.S.) 17, 3 Ohio App. 116 (7th Dist.1914).

{¶ 9} A wrongful purpose or intent is not a necessary element of conversion, as a defendant may be liable even if acting under a misapprehension or mistake. State Farm Mut. Auto Ins. Co. v. Loken , 5th Dist. Fairfield No. 04-CA-40, 2004-Ohio-5074, 2004 WL 2260709, ¶ 40, citing Fulks v. Fulks , 95 Ohio App. 515, 518-519, 121 N.E.2d 180 (4th Dist.1953). See Baltimore & Ohio RR. Co. v. O'Donnell , 49 Ohio St. 489, 32 N.E. 476 (1892), paragraph five of the syllabus.

{¶ 10} Thus, one who purchases property in good faith from a party lacking title and the right to sell may be liable for conversion. See, e.g. , Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts , Section 15, 97, (5th Ed.1984); Fid. & Deposit Co. of Maryland v. Farmers & Citizens Bank of Lancaster , 72 Ohio App. 432, 435, 52 N.E.2d 549 (5th Dist.1943) ; Hall v. Peter Pan Stables, Inc. , 8th Dist. Cuyahoga No. 76450, 2000 WL 1594095, *4 (Oct. 26, 2000) ; Regent Alliance Ltd. v. Rabizadeh , 231 Cal.App.4th 1177, 1181, 180 Cal.Rptr.3d 610 (Cal.App.2014) ; Shaw's D.B. & L., Inc. v. Fletcher , 580 S.W.2d 91, 95 (Tex.App.1979) ; Pease v. Smith , 61 N.Y. 477, 480 (1875). To that end, the Restatement of Torts provides

One who receives possession of chattel from another with the intent to acquire for himself or for a third person a proprietary interest in the chattel which the other has not the power to transfer is subject to liability for conversion to a third person then entitled to the immediate possession of the chattel.

2 Restatement of the Law 2d, Torts, Section 229 (1965).

{¶ 11} In conversion cases involving a defendant who lawfully came into possession of the property, the plaintiff may need to present evidence of a demand and a refusal to establish the element of an act of dominion or control inconsistent with the plaintiff's ownership. See O'Donnell , 49 Ohio St. 489, 32 N.E. 476, at paragraph two of the syllabus;

Ohio Tel. Equip. & Sales, Inc. v. Hadler Realty Co. , 24 Ohio App.3d 91, 93-94, 493 N.E.2d 289 (10th Dist.1985), cited in Cozmyk Ents., Inc. v. Hoy , 10th Dist. Franklin No. 96APE10-1380, 1997 WL 358816, *4 (June 30, 1997), and Kiss v. Dick Baker Dodge , 6th Dist. Erie No. E-98-027, 1998 WL 904920, *3 (Dec. 31, 1998) ; Drakoules v. Dairy Queen of Whitehall, Inc. , 10th Dist. Franklin Nos. 76AP-961 and 77AP-157, 1977 WL 200345, *5 (Aug. 9, 1977). This is because bare possession of another's property that rightfully came into one's possession is not a conversion. Farmers & Citizens Bank of Lancaster , 72 Ohio App. at 434, 52 N.E.2d 549. But if there was an "act of dominion and control" inconsistent with plaintiff's ownership, a demand and refusal would not be necessary, even though the acquisition of the property was lawful. Hadler Realty Co. at 94, 493 N.E.2d 289 ; O'Donnell at paragraph two of the syllabus. See Nelen v. Cowell , 45 R.I. 465, 123 A. 897 (1924).

{¶ 12} In this case, the trial court found that American Trading had lawfully possessed the jewelry because it had reported its purchase of the jewelry to the Hamilton County Sheriff's Office, in substantial compliance with the statutory reporting requirement of R.C. 4727.09. It further determined that American Trading had retained the property for the statutorily required period found in R.C. 4727.12, and that American Trading could not comply with Danopulos' demand for the return of the property because it no longer possessed it. Because of these facts, the court determined that American Trading could not be liable for conversion.

{¶ 13} In setting forth what it believed to be the applicable law, the trial court cited Wolf v. Lakewood Hosp. , 73 Ohio App.3d 709, 716, 598 N.E.2d 160 (8th Dist.1991), where it quoted the rule summarized in Prosser and Keeton on the Law of Torts that applies to some "lawful" possessors who cannot comply with a demand:

Not every failure to deliver upon demand, however, will constitute a conversion. The defendant does not become a converter when the goods are no longer in his possession or control, so that the defendant is unable to comply with the demand, even though they may have been lost or destroyed through the defendant's own fault. The remedy in such a case is an action for negligence.

Keeton, Dobbs, Keeton & Owen, Section 15, at 99.

{¶ 14} This negligence rule, when applied in the proper context, recognizes that liability in conversion results only from a defendant's "conduct intended to affect the chattel," and not "merely negligent interference" with the owner's possession. (Emphasis added.) Id. at Section 15, 92. See 2 Restatement, Section 224.

{¶ 15} Typically, then, if a defendant lawfully possessed property, "the accidental loss or destruction" of the property would not be a conversion, although the plaintiff may have a negligence claim. Salt Springs Nat. Bank v. Wheeler , 48 N.Y. 492 (1872), cited in Keeton, Dobbs, Keeton & Owen, at Section 15, 99, fn. 10; Wamsley v. Atlas S.S. Co., Ltd. , 168 N.Y. 533, 61 N.E. 896 (1901), cited in Keeton, Dobbs, Keeton & Owen, at Section 15, 99, fn. 10 (holding that "the theft or loss of [a passenger's] goods through the mere non-feasance of the [common] carrier does not render him liable in conversion.").

{¶ 16} While the negligence rule is a correct statement of the law, it did not apply in this case. Even if we assume that American Trading was a "lawful" possessor of Danopulos' stolen jewelry, due to its substantial compliance with the provisions of R.C. Chapter 4727, it was undisputed that the reason American Trading no longer had possession of Danopulos' jewelry when she demanded its return was because American Trading had intentionally disassembled the jewelry and sold the parts under a claim of title they did not have, all without the permission of Danopulos, the true owner, resulting in a serious invasion of her right to possession and, thus, a conversion. See Pease , 61 N.Y. at 481.

{¶ 17} If the trial court had applied the correct law, it would have entered judgment for Danopulos on the issue of American Trading's liability for conversion. Consequently, we find merit to Danopulos' argument that the trial court erred by not entering judgment in her favor when she established all the elements of conversion.

{¶ 18} Danopulos argues also that the trial court erred by not finding for her on her negligence claim. But the record demonstrates that Danopulos did not plead a claim in negligence. Thus, the trial court did not err in this regard.

III. Conclusion

{¶ 19} We hold that American Trading's intentional disassembly and sale of Danopulos' stolen property, after acquiring it from a person who lacked the power to transfer a propriety interest to American Trading, and without Danopulos' permission, established American Trading's conversion of Danopulos' property. Therefore, the trial court erred by entering judgment for American Trading and against Danopulos on her claim for conversion, and we sustain her assignment of error on this basis.

{¶ 20} Accordingly, we reverse the trial court's judgment, and we remand the cause for the trial court to enter judgment for Danopulos on the issue of liability and to determine the amount of her damages.

Judgment reversed and cause remanded.

Zayas and Deters, JJ., concur.


author: TEODOSIO, Judge.

text:
    Heather ALICEA, et al., Appellants v. CITY OF LORAIN, Appellee
    No. 17CA011182
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: June 29, 2018
    JOHN J. GILL, Attorney at Law, for Appellants.
    PATRICK D. RILEY and JOSEPH T. LAVECK, Attorneys at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Judge.

{¶ 1} Plaintiffs-Appellants, Heather Alicea and Ramon Alicea ("the Aliceas"), appeal from the order of the Lorain County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, the City of Lorain ("the City"). This Court affirms.

I.

{¶ 2} On the night of July 4, 2014, the Aliceas and two of their children attended a fireworks show in downtown Lorain. While walking home afterward, Ms. Alicea tripped and fell on a sidewalk abutting Victory Park, injuring her knee and the side of her face. The Aliceas filed a personal injury complaint against the City of Lorain for negligent maintenance and repair of the sidewalk, seeking damages for medical expenses, pain and suffering, and loss of consortium as a result of the injuries sustained.

{¶ 3} The City filed a motion for summary judgment claiming immunity under R.C. Chapter 2744 because it is a political subdivision, the maintenance and repair of sidewalks is a governmental - not proprietary - function, and none of the exceptions listed under R.C. 2744.02(B) apply. The Aliceas responded in opposition to summary judgment, disputing the immunity claim and arguing that the City owed a duty of care to Ms. Alicea, it breached that duty by failing to properly maintain the sidewalk or warn her of the dangerous condition, and Ms. Alicea suffered permanent injury as a direct and proximate result of that breach. The trial court granted summary judgment in favor of the City.

{¶ 4} The Aliceas now appeal from the trial court's order granting summary judgment and raise two assignments of error for this Court's review.

{¶ 5} For ease of analysis, we will consolidate the assignments of error.

II.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT BY FINDING THAT AN EXCEPTION TO POLITICAL SUBDIVISION IMMUNITY UNDER [ R.C. 2744.02(B)(5) DID NOT APPLY].

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED SUMMARY JUDGMENT AND CONCLUDED THAT CODIFIED ORDINANCES OF LORAIN, OHIO, SECTIONS 903.07 AND 521.06 DID NOT APPLY.

{¶ 6} In their first and second assignments of error, the Aliceas argue that the trial court erred in granting summary judgment by finding that the R.C. 2744.02(B)(5) exception to political-subdivision immunity as well as Lorain Codified Ordinances 903.07 and 521.06 did not apply in this case. We disagree.

{¶ 7} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C). A court must view the facts in the light most favorable to the nonmoving party and must resolve any doubt in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the nonmoving party's favor. Perez v. Scripps-Howard Broadcasting Co. , 35 Ohio St.3d 215, 218, 520 N.E.2d 198 (1988).

{¶ 8} The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

{¶ 9} Ohio's Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in R.C. 2744.01 et seq. McNamara v. City of Rittman , 125 Ohio App.3d 33, 43, 707 N.E.2d 967 (9th Dist.1998). "In order to determine whether a political subdivision is immune from liability, we engage in a three-tiered analysis."

Moss v. Lorain Cty. Bd. of Mental Retardation , 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, 2014 WL 1345429, ¶ 10, citing Cater v. Cleveland , 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). First, "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." R.C. 2744.02(A)(1). Second, "this comprehensive immunity can be abrogated pursuant to any of the five exceptions set forth at R.C. 2744.02(B)." Shalkhauser v. Medina , 148 Ohio App.3d 41, 46, 772 N.E.2d 129 (9th Dist.2002). Third, "immunity may be restored, and the political subdivision will not be liable, if one of the defenses enumerated in R.C. 2744.03(A) applies." Moss at ¶ 10.

{¶ 10} It is undisputed in this case that the City is a political subdivision. See Wolford v. Sanchez , 9th Dist. Lorain No. 05CA008674, 2005-Ohio-6992, 2005 WL 3556681, ¶ 28. See also R.C. 2744.01(F) (defining "political subdivision."). Moreover, the definition of "governmental function" includes the maintenance and repair of sidewalks. R.C. 2744.01(C)(2)(e) ; Hahn v. Redmond , 9th Dist. Summit No. 23491, 2008-Ohio-5002, 2008 WL 4409459, ¶ 16. The City is therefore immune from liability for injuries or loss allegedly caused by any act or omission of the City or an employee of the City in connection with the maintenance and repair of sidewalks unless one of the R.C. 2744.02(B) exceptions applies.

{¶ 11} Although the Aliceas argued at the trial court level that multiple exceptions under R.C. 2744.02(B) applied in this case, they only argue on appeal that the specific exception provided for under R.C. 2744.02(B)(5) applies. Pursuant to R.C. 2744.02(B)(5) :

[A] political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function * * * when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code * * *. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term "shall" in a provision pertaining to a political subdivision.

The Aliceas argued that R.C. 723.011"provides the City with the opportunity to impose such liability" because it states: "The legislative authority of a municipal corporation * * * may require, by ordinance, * * * that the owners and occupants of abutting lots and lands shall keep the sidewalks, curbs, and gutters in repair and free from snow or any nuisance." They further argued that the City took action to impose such liability by enacting Lorain Codified Ordinances 521.06 and 903.07. Pursuant to Lorain Codified Ordinances 521.06, "[n]o owner or occupant of abutting lands shall fail to keep the sidewalks, curbs or gutters in repair and free from snow, ice or any nuisance. * * * Whoever violates this section is guilty of a minor misdemeanor." Pursuant to Lorain Codified Ordinances 903.07:

All owners whose property abuts upon sidewalks shall keep such sidewalks in good repair and free from defects and other obstructions or dangerous conditions. The ground between the walk and street curb or gutter shall be kept graded so that water will drain from sidewalks. If the sidewalks become defective, dangerous or obstructed in any way, the Director of Public Service may proceed to remove the defects, dangerous conditions or obstructions and grade the areas between the walk and curb so that water will drain from the walks.

{¶ 12} The trial court found that the R.C. 2744.02(B)(5) exception and Lorain Codified Ordinances 521.06 and 903.07 do not apply to the facts of this case. The court stated that the ordinances allow the City to repair sidewalks and pass the costs onto an abutting homeowner. However, the property owner in this case is the City, not a private landowner, and the City is immune from issues or negligence relating to the maintenance of sidewalks. Furthermore, the court noted that R.C. 2744.02(B)(5) states civil liability shall not be construed to exist merely because another Revised Code section imposes a responsibility or mandatory duty upon a political subdivision. R.C. 723.011 provides that the City may require owners and occupants to keep sidewalks in repair, and Lorain Codified Ordinances 903.07 provides that the Director of Public Service may proceed to remove the defects, dangerous conditions, or obstructions. Thus, the court determined that R.C. 723.011 and Lorain Codified Ordinances 903.07 are not couched in mandatory terms and do not place a mandatory duty upon the City.

{¶ 13} We conclude that the exception contained within R.C. 2744.02(B)(5) does not apply when another statute such as R.C. 723.011 simply provides a political subdivision with the "opportunity to impose" civil liability, as the Aliceas have argued. Instead, the plain language of R.C. 2744.02(B)(5) requires the statute to "expressly impose" civil liability upon the political subdivision. R.C. 723.011 does not expressly impose civil liability, but instead simply provides that the legislative authority "may require" owners and occupants of abutting properties to keep the sidewalks in repair and free from snow or any nuisance. R.C. 2744.02(B)(5) further elucidates that civil liability shall not be construed to exist merely: (1) because the statute imposes a responsibility or mandatory duty upon a political subdivision, (2) because that section provides for a criminal penalty, (3) because of a general authorization in that section that the political subdivision may sue and be sued, or (4) because that section uses the term "shall" in a provision pertaining to a political subdivision. Although Lorain Codified Ordinances 521.06 and 903.07 may have been enacted pursuant to R.C. 723.011, neither ordinance expressly imposes civil liability and, based on the plain language of R.C. 2744.02(B)(5), we will not construe civil liability to exist merely because one ordinance provides for a criminal penalty and uses the word "shall" while the other imposes a responsibility or duty and uses the word "shall." Because we conclude that the R.C. 2744.02(B)(5) exception is inapplicable to the facts of this case and because the Aliceas have not argued on appeal that any other R.C. 2744.02(B) exception to the general immunity afforded to the City applies, we need not address the third tier of the analysis. See Dunfee v. Oberlin , 9th Dist. Lorain No. 08CA009497, 2009-Ohio-3406, 2009 WL 2005363, ¶ 12. See also Davis v. City of Akron , 9th Dist. Summit No. 22428, 2005-Ohio-3629, 2005 WL 1684704, ¶ 11.

{¶ 14} In construing the evidence in a light most favorable to the Aliceas, we conclude that no genuine issue of material fact remains. The exception to political-subdivision immunity under R.C. 2744.02(B)(5) and Lorain Codified Ordinances 521.06 and 903.07 do not apply to the facts of this case. The City is immune from liability and we therefore conclude that the trial court did not err in granting summary judgment in this matter.

{¶ 15} Accordingly, the Aliceas' first and second assignments of error are overruled.

III.

{¶ 16} The Aliceas' first and second assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

HENSAL, J.

CONCUR.


author: CALLAHAN, Judge.

text:
    Anthony BONKOSKI, Appellee v. LORAIN COUNTY, Ohio, et al., Appellants
    No. 17CA011094 17CA011120 17CA011122
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: June 29, 2018
    JOHN T. MCLANDRICH and ROBERT F. CATHCART, Attorneys at Law, for Appellant.
    GERALD A. INNES, Attorney at Law, for Appellant.
    BRIAN D. SULLIVAN, Attorney at Law, for Appellant.
    BARRY MURNER, Attorney at Law, for Appellant.
    JONATHAN E. ROSENBAUM, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} In this consolidated appeal, Lorain County appeals an order of the Lorain County Court of Common Pleas pursuant to R.C. 2744.02(C) that denied its motion for summary judgment. Timothy Abraham and the Estate of Raymond Bechtel appeal the trial court's orders that granted summary judgment to Anthony Bonkoski, Trustee of the Bonkoski Family Trust, on his trespass claim, and subsequently granted a permanent injunction. This Court reverses with respect to all appellants.

I.

{¶ 2} The Bonkoski Family Trust owns land that lies west of Vermillion Road. The Estate of Raymond Bechtel owns farmland east of Vermillion Road, and Timothy Abraham farms that property under a lease. Since the early 1900s, the Bechtel property and other land east of Vermillion Road have drained to the west toward Vermillion Road and the Bonkoski property. Sometime between 1900 and 1950, a system of drainage tiles was installed on the Bechtel property. In 1951, the former owners of the Bonkoski property created a man-made lake located at the bottom of a steep ravine just west of Vermillion Road. Around 1970, Lorain County constructed a thirty-six-inch culvert underneath Vermillion Road that drains the water that flows east to west from the Bechtel property and other properties toward Vermillion Road and onto the Bonkoski property. Around 2005, Lorain County installed a new cap on the side of the culvert that also measured thirty-six inches in diameter.

{¶ 3} Mr. Bonkoski filed a complaint on behalf of the Bonkoski Family Trust against Raymond Bechtel (now deceased), Timothy Abraham, who farms the Bechtel property, and Lorain County, alleging negligence and trespass and seeking a permanent injunction to stop the flow of water through the culvert and onto the Bonkoski property. Lorain County moved for summary judgment, alleging that it was immune from suit under R.C. Chapter 2744. Mr. Bonkoski moved for summary judgment as to liability against each defendant; Mr. Bechtel and Mr. Abraham, in turn, moved for summary judgment on each of Mr. Bonkoski's claims.

{¶ 4} On January 26, 2017, the trial court ruled on the parties' motions for summary judgment. The trial court dismissed Mr. Bonkoski's negligence claims against each defendant based on the statute of limitations. With respect to Lorain County, the trial court determined that various aspects of Ohio law imposed liability upon the County for trespass and denied the County's motion for summary judgment on that basis. With respect to all defendants, the trial court concluded that the water that flows from the Bechtel property through the culvert is not "surface water" and granted summary judgment on liability to Mr. Bonkoski. Lorain County immediately appealed the trial court's decision regarding immunity under R.C. 2744.02(C).

{¶ 5} After the trial court granted the motion for summary judgment on the defendants' liability for trespass, Mr. Bonkoski moved for a permanent injunction against all defendants. Lorain County opposed the motion because, among other reasons, its immunity appeal was pending in this Court at the time. On March 20, 2017, the trial court entered a permanent injunction against all defendants:

Therefore, it is hereby Ordered that the Defendants immediately stop the drain tile water from the Bechtel property from entering Lorain County's catch basin and flowing onto [Mr. Bonkonski's] property. It is hereby Ordered that Defendants Timothy Abraham and Raymond Bechtel immediately disconnect or plug the drain tile pipes that flow into Lorain County's catch basin.

Mr. Bechtel and Mr. Abraham appealed, and on April 28, 2017, the trial court journalized an order providing that there is no just cause for delay. See Wisintainer v. Elcen Power Strut Co. , 67 Ohio St.3d 352, 356, 617 N.E.2d 1136 (1993) ; Ferraro v. B.F. Goodrich Co. , 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282, ¶ 11 (9th Dist.2002). This Court consolidated their appeals with Lorain County's appeal for purposes of briefing, oral argument, and decision.

II.

Lorain County's Appeal

LORAIN COUNTY'S FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT/APPELLANT LORAIN COUNTY IMMUNITY UNDER R.C. CHAPTER 2744 AND SUMMARY JUDGMENT ON PLAINTIFF/APPELLEE'S TRESPASS CLAIM.

{¶ 6} In its first assignment of error, Lorain County argues that the trial court erred by considering immunity issues related to claims that Mr. Bonkoski did not assert, by determining that the County did not have a prescriptive easement to drain water onto the Bonkoski land, and by concluding that civil liability was expressly imposed upon the County by a section of the Ohio Revised Code under R.C. 2744.02(B)(5). Because Lorain County has appealed from an order denying summary judgment under R.C. 2744.02(C), its argument regarding the existence of a prescriptive easement is beyond the scope of this appeal. Our discussion is limited to Lorain County's arguments regarding immunity, and in that respect, we agree with the County's final argument.

{¶ 7} Under Civ.R. 56(C), "[s]ummary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law." Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. This Court reviews an order granting summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

{¶ 8} As a general rule, political subdivisions are "not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." R.C. 2744.02(A)(1). This immunity, however, is subject to the exceptions described in R.C. 2744.02(B). Because " '[t]he exceptions of R.C. 2744.02(B)(1) through (B)(4) are limited to negligent conduct,' " the only exception that could apply to an intentional tort claim for trespass is R.C. 2744.02(B)(5). Barge v. St. Bernard , 195 Ohio App.3d 28, 2011-Ohio-3573, 958 N.E.2d 636, ¶ 19 (1st.Dist.), quoting Bucey v. Carlisle , 1st Dist. Hamilton No. C-090252, 2010-Ohio-2262, 2010 WL 2018376, ¶ 27. See also Cramer v. Auglaize Acres , 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 19 ("Unlike sections R.C. 2744.02(B)(1) through (4), R.C. 2744.02(B)(5) is not limited to negligent actions.").

{¶ 9} R.C. 2744.02(B)(5) provides:

In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term "shall" in a provision pertaining to a political subdivision.

"If the General Assembly expressly imposes liability on a political subdivision in another section of the Revised Code, a political subdivision is liable for injury, death, or loss to person or property." Cramer at ¶ 20. It is not sufficient that a statute imposes civil liability in general for R.C. 2744.02(B)(5) to apply; a statute must "expressly" impose liability upon political subdivisions. Moore v. Lorain Metro. Hous. Auth. , 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, ¶ 21. See also O'Toole v. Denihan , 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 67 (concluding that statutory language that imposed liability upon a "person" without mentioning political subdivisions did not expressly impose immunity under R.C. 2744.02(B)(5).) Moreover, the liability must be expressly imposed "by a section of the Revised Code." R.C. 2744.02(B)(5). Neither general constitutional guarantees nor congressional action, for example, remove the general grant of immunity to political subdivisions under R.C. 2744.02(B)(5). See Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities , 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶¶ 20-26.

{¶ 10} No section of the Revised Code expressly imposes liability upon a political subdivision for trespass. In this case, the trial court implicitly recognized as much, but concluded that general constitutional guarantees and principles embodied in the Revised Code sufficed to create an exception to immunity:

The County contends that Plaintiff's claims do not involve a statute that expressly imposes liability upon the County. However, the essence of Plaintiff's claim of trespass against the County is that the County has used Plaintiff's private land as a deposit station for the County's storm water system and that such use has caused damage. The Constitution and Ohio Revised Code prohibit public use of private land without just compensation. This is a rudimentary issue. The County cannot hide under the auspices of R.C. 2744 and violate basic property ownership rights protected by the U.S. Constitution, Ohio Constitution and the Ohio Revised Code. As such, this Court finds that R.C. 2744.02(B)(5) does provide an applicable exception to immunity in this matter, specifically under the prohibitions of R.C. 163 et seq., the U.S. Constitution and the Ohio Constitution.

Neither "basic property ownership rights" set forth in the U.S. and Ohio Constitutions nor the general principles to be gleaned from R.C. Chapter 163 constitute "civil liability * * * expressly imposed upon the political subdivision by a section of the Revised Code" under R.C. 2744.02(B)(5). The trial court erred by determining that an exception to immunity applied to the County and, therefore, by denying the County's motion for summary judgment on the grounds of immunity with respect to Mr. Bonkoski's trespass claim.

{¶ 11} The County's first assignment of error is sustained.

LORAIN COUNTY'S SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT IMPROPERLY GRANTED PLAINTIFF/ APPELLEE'S SUMMARY JUDGMENT ON HIS TRESPASS CLAIM AGAINST DEFENDANT/APPELLANT LORAIN COUNTY.

{¶ 12} Lorain County's second assignment of error is that the trial court erred by granting summary judgment to Mr. Bonkoski on the merits of his trespass claim. An appeal taken under R.C. 2744.02(C), however, is limited to the issue of immunity. Riffle v. Physicians & Surgeons Ambulance , 9th Dist. Summit No. 27449, 2016-Ohio-94, 2016 WL 196975, ¶ 10. Lorain County's second assignment of error is not properly before the Court in this appeal.

Mr. Abraham's and Mr. Bechtel's Appeals

MR. BECHTEL'S FIRST ASSIGNMENT OF ERROR

WHETHER THE TRIAL COURT ERRED IN GRANTING [MR. BONKOSKI'S] MOTION FOR PARTIAL SUMMARY JUDGMENT AFTER DETERMINING
AS A MATTER OF LAW THAT THE DOCTRINE OF REASONABLE USE DID NOT APPLY TO RAYMOND BECHTEL'S LAND BECAUSE THE WATER AT ISSUE WAS NOT "SURFACE WATER."

MR. ABRAHAM'S THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT INCORRECTLY DETERMINED THAT THE DRAIN TILE WATER FROM MR. BECHTEL'S PROPERTY DID NOT CONSTITUTE SURFACE WATER.

{¶ 13} Mr. Bechtel's first assignment of error and Mr. Abraham's third assignment of error argue that the trial court erred by granting summary judgment to Mr. Bonkoski on his trespass claims because the trial court determined that the water that drained from Mr. Bechtel's property is not "surface water" and, as a result, failed to apply the reasonable use doctrine. This Court agrees.

{¶ 14} "Trespass is an invasion of the possessory interest in property." Crown Property Dev., Inc. v. Omega Oil Co. , 113 Ohio App.3d 647, 658, 681 N.E.2d 1343 (12th Dist.1996). " 'One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally enters land in the possession of the other or causes a thing or a third person to do so * * *.' " (Emphasis omitted.) Baker v. Shymkiv , 6 Ohio St.3d 151, 153, 451 N.E.2d 811 (1983), quoting Restatement of the Law 2d, Torts, Section 158, at 277 (1965). When a claim for trespass involves the flow of surface water, Ohio courts apply a standard of reasonable use:

[A] possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, and the possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable.

McGlashan v. Spade Rockledge Terrace Condo Dev. Corp. , 62 Ohio St.2d 55, 402 N.E.2d 1196 (1980), syllabus. See also Williams v. Portage Country Club Co. , 9th Dist. Summit No. 28445, 2017-Ohio-8986, 2017 WL 6374629, ¶ 12.

{¶ 15} "Surface water" is defined as:

[water that] is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well defined channel in which it is accustomed to, and does flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface water.

Reith v. McGill Smith Punshon, Inc. , 163 Ohio App.3d 709, 2005-Ohio-4852, 840 N.E.2d 226, ¶ 25 (1st Dist.), quoting Crawford v. Rambo , 44 Ohio St. 279, 282, 7 N.E. 429 (1886). Surface water does not cease to be so merely because it percolates into the ground and is carried by underground conduits. See Reith at ¶ 24. See also Myers v. Encompass Indemn. Co. , 169 Ohio App.3d 545, 2006-Ohio-6076, 863 N.E.2d 1083, ¶¶ 25-26 (12th Dist.) (for purposes of applying an insurance exclusion, rain water that flowed into a drain that backed up and dispersed onto the claimant's property retained its character as surface water); Mays v. Moran , 4th Dist. Ross Nos. 97CA2385, 97CA2386, 1999 WL 181400, *5-6 (Ohio App.) (accumulating rainfall retained its characterization as surface water as it flowed across property over a dike until it reached its defined watercourse); Emminger v. Bergman , 2d Dist. Montgomery No. CA 7772, 1982 WL 3901, *3-4 (Ohio App.) (rain water that fell upon the ground, collected into a drainage pipe, and flowed into property on the other side of a road retained the character of surface water).

{¶ 16} In this case, the evidence demonstrated that water accumulated on the Bechtel property, percolated beneath the surface, drained into the culvert via subsurface drainage tiles, and flowed onto the Bonkoski property. This water did not lose its character as surface water when it percolated below ground, drained across the subsurface drainage tile, or reached the culvert from which it flowed toward a natural outlet. The trial court erred by concluding that the water in this case lost its character as surface water and, consequently, erred by granting summary judgment to Mr. Bonkoski on his trespass claims against Mr. Bechtel and Mr. Abraham without analyzing those claims under the reasonable use standard set forth above.

{¶ 17} Mr. Bechtel's first assignment of error and Mr. Abraham's third assignment of error are sustained.

MR. BECHTEL'S SECOND ASSIGNMENT OF ERROR

WHETHER THE TRIAL COURT ERRED IN DENYING [MR. BECHTEL'S] MOTION FOR SUMMARY JUDGMENT ON THE TRESPASS CLAIM.

MR. BECHTEL'S THIRD ASSIGNMENT OF ERROR

WHETHER THE TRIAL COURT ERRED IN GRANTING MR. BONKOSKI A PERMANENT IN JUNCTION BASED UPON A PARTIAL SUMMARY JUDGMENT RULING THAT WAS CONTRARY TO THE LAW AND UNDISPUTED EVIDENCE.

MR. ABRAHAM'S FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT INCORRECTLY PERMANENTLY ENJOINED [MR. ABRAHAM AND MR. BECHTEL] FROM DISCHARGING WATER FROM [MR. BECHTEL'S] DRAIN TILES INTO THE COUNTY CATCH BASIN.

MR. ABRAHAM'S SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT INCORRECTLY DETERMINED THAT [MR. ABRAHAM] WAS LIABLE FOR A CONTINUING TRESPASS AS A MATTER OF LAW.

{¶ 18} In light of this Court's disposition of Mr. Bechtel's first and Mr. Abraham's third assignments of error, their remaining assignments of error are premature.

III.

The Permanent Injunction against Lorain County

{¶ 19} This Court has concluded that the trial court erred by denying summary judgment to Lorain County on the basis of immunity. In addition, however, and for purposes of clarity, this Court notes that once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal.

In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, at ¶ 9. When a trial court acts beyond its jurisdiction while an appeal is pending, its order is void. Ormandy v. Dudzinski, 9th Dist. Lorain No. 09CA009713, 2010-Ohio-2017, 2010 WL 1839111, ¶ 11. Lorain County's appeal under R.C. 2744.02(C) pertained to whether the County was immune from liability altogether. The trial court's order that purported to enter a permanent injunction notwithstanding the pending appeal was an ultimate disposition of the merits of Bonkoski's claims-the very claims from which Lorain County sought to be immune. As such, the trial court's permanent injunction was void from its inception with respect to Lorain County.

IV.

{¶ 20} All outstanding motions are denied.

{¶ 21} Lorain County's first assignment of error is sustained, and the trial court's judgment that denied immunity to Lorain County is reversed.

{¶ 22} Mr. Bechtel's first assignment of error and Mr. Abraham's third assignment of error are sustained. The trial court's order that granted summary judgment to Mr. Bonkoski on his trespass claims is reversed, and this matter is remanded so that the trial court may apply the analysis described herein.

Judgment reversed and cause remanded.

SCHAFER, P. J.

TEODOSIO, J.

CONCUR.

      R.C. Chapter 163 sets forth the procedure for appropriation of private land. There are no appropriation proceedings at issue in this case.