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Clements v. Brimfield TWP Police Department

Court of Appeals of Ohio, Eleventh District, Portage

June 12, 2017

THOMAS CLEMENTS, Plaintiff-Appellant,
v.
BRIMFIELD TWP POLICE DEPARTMENT, et al., Defendants-Appellees.

         Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV 0613.

          Thomas Clements, pro se, (Plaintiff-Appellant).

          Mel L Lute, Jr., Baker, Dublikar, Beck, Wiley & Mathews, (For Defendant-Appellees).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Thomas Clements, appeals the trial court's decision granting summary judgment in favor of appellees, the Brimfield Township Police Department, Chief David Oliver, Sergeant Matthew McCarty, and Officers Atha, Dumont, and Pettit, based on sovereign immunity. We affirm.

         {¶2} In June of 2010, Cheri Kuss contacted the Brimfield Police Department upon finding her cable box and modem missing from her residence. Officers responded and Kuss informed them that Clements had stolen the items along with her spare house key. She also told the police that Clements did not live there with her. Clements arrived at the residence and told police that he lived there with Kuss and that he had removed the cable box and modem to return them to the cable company. Neither Kuss nor Clements presented a written lease that day demonstrating tenancy. Officer Atha directed Clements to give Kuss the house key and leave the property. Officers also advised Clements he should raise the tenancy issue with the landlord.

         {¶3} Clements claims that he and Kuss rented the property together as boyfriend and girlfriend and that Kuss lied to the police to get Clements removed. A few days later, the police were again dispatched to the residence in response to an emergency call by Kuss. Clements had stabbed her in the arm during a domestic altercation. Clements was arrested and ultimately pleaded guilty to felonious assault and burglary. After posting bond but before pleading guilty, Sergeant McCarty reported seeing Clements in his vehicle following Kuss in hers. McCarty reported this to Officer Pettit, who included this in a report he was preparing regarding a no-contact order between Kuss and Clements. As a result of this report, Clements claims to have been charged with stalking.

         {¶4} Clements subsequently filed suit against Kuss, the Brimfield Township Police Department, Chief David Oliver, Sergeant Matthew McCarty, and Officers Atha, Dumont, and Pettit (collectively the Brimfield Police). Although less than clear, he asserted claims against the Brimfield Police for wrongful eviction, conversion, fraudulent misrepresentation, and a civil rights violation.

         {¶5} Following discovery, the Brimfield Police moved for summary judgment as to all of Clements' claims based on sovereign immunity, qualified immunity, and Clements' lack of standing to file suit for wrongful eviction. Clements filed two briefs in opposition, and the trial court granted the Brimfield Police summary judgment on all claims in August 2013.

         {¶6} The case proceeded to jury trial against Kuss only in 2016, and the jury ruled in Clements' favor, but did not award him any damages.

         {¶7} Clements appeals the decision granting the Brimfield Police summary judgment. He does not challenge the decision granting the Brimfield Police judgment on his purported civil rights claim. He asserts six pro se assigned errors:

         {¶8} "[1] The trial court committed prejudicial error in granting summary judgment to defendants-appellees' Sgt. Matthew McCarty and Officer John Pettit, finding that there is no genuine issue of material fact and that Sgt. Matthew McCarty and Officer John Pettit are entitled to judgment as a matter of law when no facts, evidence, or stipulation was submitted in defendants-appellees' summary judgment motion relative to the allegations against them in Counts 6, 7, & 8 of the Second Amended Complaint, of which evidence and stipulation is necessary to be submitted by movant under Ohio Rules of Civil Procedure 56(C) to enable a court to determine if granting summary judgment is appropriate. (Order and Journal Entry, T.d. 139, paragraph 7 and paragraph 8).

         {¶9} "[2] The trial court committed prejudicial error in granting summary judgment to Officer William Atha and Officer Jerry Dumont, relative to Count 1 in the Second Amended Complaint, by concluding that there was no genuine issue of material fact despite plaintiff-appellant Clements showing there was a genuine issue of material fact by submitting credible evidence demonstrating that the Month-to-Month Rental Agreement evidence submitted by defendant-appellees, which showed Cheri Kuss as the sole lessee of 4396 Edison Road, was actually a falsely dated document that could not have been signed on April 1, 2010 as defendant-appellees purport, but rather was signed by Cheri Kuss on a date after plaintiff-appellant Clements was unlawfully evicted on June 1, 2010. (Order and Journal Entry, T.d. 139, paragraph 7 and paragraph 8).

         {¶10} "[3] The trial court committed prejudicial error in granting summary judgment to defendant-appellees Officer William Atha and Officer Jerry Dumont, relative to Counts 1 & 3 in the Second Amended Complaint, and Chief David Oliver, relative to Counts 4 & 5 in the Second Amended Complaint, based upon finding that Clement's burglary conviction stemming from June 7, 2010, '. . . refutes any hearsay effort that Plaintiff made to demonstrate that he had standing to bring this cause of action' (Order and Journal Entry, T.d 139, paragraph 5), when there was credible evidence that a surrender of the premises had occurred subsequent to the unlawful ...


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