West v. McGrath , 2014 Ohio 4096 ( 2014 )

[Cite as West v. McGrath, 2014-Ohio-4096.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101251
TIMOTHY WEST
PLAINTIFF-APPELLANT
vs.
MICHAEL MCGRATH
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-818707
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 18, 2014
FOR APPELLANT
Timothy West, pro se
#604-876
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
By: Linda M. Applebaum
Assistant Director of Law
City of Cleveland
Room 106
601 Lakeside Avenue
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Appellant Timothy West appeals the judgment of the Cuyahoga County Court
of Common Pleas that dismissed the case with prejudice pursuant to Civ.R. 12(B)(6).
For the reasons stated herein, we affirm.
{¶3} In September 2011, West was convicted of various drug-related offenses in
State v. West, Cuyahoga C.P. No. CR-11-548609-B (Sept. 26, 2011). A forfeiture order
was issued with regard to certain property that was seized in relation to the criminal
investigation. On appeal, this court found no error with regard to the forfeiture of his
automobile; however, the forfeiture order was reversed with regard to $1,313 that had
been seized from West’s residence. State v. West, 8th Dist. Cuyahoga Nos. 97391 and
97900, 2013-Ohio-96, ¶ 36, 41. The case was remanded for the merger of allied offenses
and the state’s election of which count to proceed with on resentencing. Id. at ¶ 46.
{¶4} On December 13, 2013, appellant filed the complaint in this action against
Michael McGrath, as chief of police of the city of Cleveland.1 The city of Cleveland was
not named as a defendant in the action. In his complaint, West sought to recover $7,000
as the reasonable market value of a 1995 Buick Century and HVAC tools that were seized
1
McGrath is no longer the chief of police and he is now the safety director
for the city of Cleveland.
in relation to the criminal case. He also sought the return of the $1,313 that was seized
from his residence, the forfeiture order for which was reversed in West. West at ¶ 46.
{¶5} In response to the complaint filed in this action, McGrath filed a motion to
dismiss pursuant to Civ.R. 12(B)(6). McGrath argued that the complaint asserted
nothing more than mere negligence against him for wrongfully possessing property, that
he is immune from tort liability, and that none of the exceptions to immunity under R.C.
2744.03(A)(6) are applicable. West did not oppose the motion to dismiss. Rather, West
filed an amended complaint under which he reasserted similar allegations to those in his
original complaint and sought replevin of the cash and the vehicle with HVAC tools, or
the cash value thereof. On March 13, 2014, the trial court ruled that McGrath’s motion
was unopposed and granted. The court dismissed the case with prejudice. This appeal
followed.
{¶6} Under his first assignment of error, West claims that there is no final
appealable order because his amended complaint superseded the original complaint and
the dismissal order was against the original complaint. Our review reflects that there is a
final appealable order because the trial court dismissed the entire case with prejudice.
{¶7} Under his second assignment of error, appellant claims that the trial court
prematurely dismissed the complaint before the time expired to amend the complaint of
right. Insofar as the amended complaint reasserted similar allegations to the original
complaint, we find any error by the trial court in failing to consider the amended
complaint was harmless. West did not name the city of Cleveland as a party and did not
challenge McGrath’s assertion of immunity from tort liability under R.C. 2744.03(A)(6).
{¶8} Further, the forfeiture of the vehicle and West’s right to possession of the
money are issues that were already decided in the appeal from his criminal case. See
West, 8th Dist. Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96. After the remand of the
criminal case, West filed a motion for return of property, requesting a return of the same
property at issue in this case. Upon resentencing West in Cuyahoga C.P. No.
CR-11-548609-B on July 25, 2014, the court ordered West to forfeit all items in the
furthermore specifications, but noted this court’s reversal of the forfeiture of the $1,313.
The court directed the state to return said amount in the form of a credit to the mandatory
$7,500 fine that was imposed upon West, thereby adjusting the mandatory fine to $6,187.
We find that this ruling effectively rendered West’s claims in this action moot.
{¶9} Accordingly, we find that the trial court did not err in dismissing the
complaint.
{¶10} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR