Opinion

Camargo v. Toledo

2024 Ohio 488

Court: Ohio Court of Appeals
Filed: Feb 9, 2024
Status: Published
On the bench: Sulek
Cited by: 0 cases
Authority: More cited than 15.2%

The opinion

[Cite as Camargo v. Toledo, 2024-Ohio-488.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

Darlene Camargo Court of Appeals No. L-23-1056

Appellant Trial Court No. CI0202102744

City of Toledo DECISION AND JUDGMENT

Appellee Decided: February 9, 2024

*****

Jerome Phillips, for appellant.

Dale R. Emch, City of Toledo Director of Law, Jeffrey B.

Charles, and Edward T. Mohler, for appellee.

*****

SULEK, J.

{¶ 1} Appellant, Darlene Camargo, appeals the February 13, 2023 judgment of the

Lucas County Court of Common Pleas granting summary judgment in favor of appellee,

city of Toledo, in her action for damages relating to the seizure and detention of her 2017

Ford Explorer. Because no issues of fact as to the city’s immunity remain, the judgment

is affirmed.

I. Facts and Procedural History

{¶ 2} The key facts in this case are undisputed. On April 21, 2021, Camargo’s

2017 Ford Explorer was seized by Toledo Police. On that day, Toledo Police were

surveilling the Camargo residence in south Toledo based upon information that

Camargo’s son, Martin Camargo, Jr. (Camargo Jr.), was involved in the large-scale

distribution of Fentanyl. Police believed that all the Camargos at the south Toledo

address were involved in illegal drug activity. Police observed Camargo’s husband,

Martin Camargo, Sr. (Camargo Sr.), and Camargo, Jr., standing together in the driveway

when Camargo Jr. took two bags from his Dodge Avenger, put them in a gray bag, and

then put the bag in his Chevrolet pick-up truck. Camargo Sr. and Jr. then left the

Camargo residence in separate vehicles. Camargo Sr. was driving Camargo’s vehicle and

Camargo Jr. was in the pick-up truck. They proceeded in tandem northeast on the

Anthony Wayne Trail toward downtown Toledo with Camargo Sr. following behind

Camargo Jr. Camargo Sr. was stopped for what police described as a “blocking”

maneuver or attempt to impede police access to Camargo Jr.’s vehicle. Following the

traffic stop and an exterior search where a police K9 alerted to the cargo area, Camargo

Sr. was arrested and the vehicle impounded. Following a police chase, Camargo Jr. was

also arrested and his vehicle was impounded. Police recovered the bag he threw from his

vehicle containing two kilos of Fentanyl. Two additional kilos of Fentanyl and a total of

$710,000 were seized following a search of the Camargo residence; approximately

$30,000 to $40,000 was found in Camargo Sr.’s bedroom. Subsequent April 2021

searches of Camargo’s vehicle uncovered no additional evidence.

{¶ 3} On July 15, 2021, the Lucas County Grand Jury returned a no bill as to

Camargo Sr. During this time a federal criminal case was pending against Camargo Jr.

Thereafter, Camargo made multiple requests for the release of her vehicle, some with the

aid of counsel.

{¶ 4} On August 10, 2021, Camargo commenced an action against the city

demanding the return of her vehicle and requesting monetary damages for wrongful

detention of the vehicle. The vehicle was released by police on October 15, 2021,

Camargo then filed an amended complaint alleging damages to the vehicle in an

unspecified amount and raising constitutional, due process claims. The city raised the

affirmative defenses of immunity under R.C. Chapter 2744, and qualified immunity.

{¶ 5} The city’s April 11, 2022 motion for summary judgment argued that

Camargo failed to raise a cognizable tort claim. The city asserted that the vehicle was

lawfully detained pursuant to an ongoing, major drug smuggling investigation at the state

and federal level. The city argued that Camargo failed to avail herself of statutory return

remedies including a replevin action, R.C. 2737.03, and remedies under R.C. 2981.03(D),

relating to the return of property in police custody. Finally, the city asserted that it was

immune from liability under R.C. 2744.02(A).

{¶ 6} Camargo responded that issues of fact remained as to the city’s unlawful,

and constitutionally violative detention of her vehicle following the July 15, 2021 no bill

from the Grand Jury and the admission that as to the vehicle, no further investigative

action was taken. She further argued that as a public entity, the city could not rely on a

qualified immunity defense as it shields only the individual from liability in his or her

individual capacity.

{¶ 7} The parties memoranda were supported by affidavits and depositions of

Toledo Police officers involved in either the surveillance and arrest of Camargo Sr. and

Jr. or the search, seizure, and detention of the vehicle. The affidavits of Camargo and

Camargo Sr. and vehicle repair estimates were also submitted.

{¶ 8} The trial court’s February 13, 2023 judgment entry granted the city’s

motion. The trial court found that the city’s detention of Camargo’s vehicle beyond the

July 15, 2021 no bill was in performance of a governmental function because it could

have reasonably been assumed that the detention was supported by the ongoing

investigation and prosecution of Camargo Jr. In support, the trial court distinguished

Ledbetter v. Dayton, 2d Dist. Montgomery No. CA-12249, 1991 WL 38871 (Mar. 22,

1991), where the court found that the continued detention of a seized vehicle was no

longer a governmental function and the city was not entitled to immunity. The trial court

noted that unlike the present case, in Ledbetter the vehicle was held in violation of a court

order and that there was no ongoing, criminal investigation potentially involving the

vehicle. The court then concluded that the city was immune from liability under R.C.

2744.02(B), and that no exceptions to immunity applied.

{¶ 9} This appeal followed.

II. Assignment of Error

Assignment of Error No. 1: The trial court erred in granting

summary judgment in favor of Appellee as to the claims in Appellant’s

Complaint on the basis of statutory immunity as conflicting evidence in the

record as to Appellee’s good faith compliance with Ohio Rev. Code Ann. §

2981.11 creates a genuine issue of material fact.

III. Analysis

{¶ 10} An appellate court reviews the grant or denial of a motion for summary

judgment de novo, applying the same standard as the trial court. Bliss v. Johns Manville,

172 Ohio St.3d 367, 2022-Ohio-4366, 244 N.E.3d 22, ¶ 12. Under Civ.R. 56(C), a court

shall grant summary judgment only where (1) no genuine issue of 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.

{¶ 11} Camargo argues that the trial court erred in awarding summary judgment in

the city’s favor because issues of fact remain as to the city’s good faith compliance with

R.C. 2981.11 and, thus, the availability of immunity under R.C. 2744.02. Camargo

further asserts that the trial court erred in rejecting her claims based upon its reliance on

Ledbetter, supra, in finding that because the vehicle was not held in contravention of a

court order, the city was immune from liability. Camargo asserts that this interpretation

renders the mandates under R.C. 2981.11 superfluous in that it requires that an aggrieved

party commence a lawsuit before it can be determined that police detention of property

ceased being a governmental function.

{¶ 12} The city simply argues that it was engaged in a governmental function

when it seized the vehicle for a legitimate purpose, it was detained during an ongoing

police investigation, and that the governmental function continued until the vehicle’s

return in October 2021. The city asserts that Camargo fails to delineate any R.C.

2744.02(B) exceptions to the city’s immunity for seizing and detaining the vehicle.

{¶ 13} R.C. Chapter 2744 generally provides for immunity for political

subdivisions and their employees. R.C. Chapter 2744 provides a three-tiered analysis for

determining whether a political subdivision may be immune from liability. Lambert v.

Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 17. Specifically, R.C.

2744.02(A)(1) provides that “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.”

{¶ 14} R.C. 2744.02(B) establishes the following five exceptions to this immunity:

(1) Except as otherwise provided in this division, political

subdivisions are liable for injury, death, or loss to person or property caused

by the negligent operation of any motor vehicle by their employees when

the employees are engaged within the scope of their employment and

authority. The following are full defenses to that liability:

(a) A member of a municipal corporation police department or any

other police agency was operating a motor vehicle while responding to an

emergency call and the operation of the vehicle did not constitute willful or

wanton misconduct;

(b) A member of a municipal corporation fire department or any

other firefighting agency was operating a motor vehicle while engaged in

duty at a fire, proceeding toward a place where a fire is in progress or is

believed to be in progress, or answering any other emergency alarm and the

operation of the vehicle did not constitute willful or wanton misconduct;

by a political subdivision was operating a motor vehicle while responding

to or completing a call for emergency medical care or treatment, the

member was holding a valid commercial driver’s license issued pursuant to

Chapter 4506. or a driver’s license issued pursuant to Chapter 4507. of the

Revised Code, the operation of the vehicle did not constitute willful or

wanton misconduct, and the operation complies with the precautions of

section 4511.03 of the Revised Code.

(2) Except as otherwise provided in sections 3314.07 and 3746.24 of

the Revised Code, political subdivisions are liable for injury, death, or loss

to person or property caused by the negligent performance of acts by their

employees with respect to proprietary functions of the political

subdivisions.

(3) Except as otherwise provided in section 3746.24 of the Revised

Code, political subdivisions are liable for injury, death, or loss to person or

property caused by their negligent failure to keep public roads in repair and

other negligent failure to remove obstructions from public roads, except

that it is a full defense to that liability, when a bridge within a municipal

corporation is involved, that the municipal corporation does not have the

responsibility for maintaining or inspecting the bridge.

(4) Except as otherwise provided in section 3746.24 of the Revised

Code, political subdivisions are liable for injury, death, or loss to person or

property that is caused by the negligence of their employees and that occurs

within or on the grounds of, and is due to physical defects within or on the

grounds of, buildings that are used in connection with the performance of a

governmental function, including, but not limited to, office buildings and

courthouses, but not including jails, places of juvenile detention,

workhouses, or any other detention facility, as defined in section 2921.01 of

the Revised Code.

(5) 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.

{¶ 15} If any of these exceptions to immunity applies, then R.C. 2744.03 provides

additional liability defenses.

{¶ 16} It is undisputed that the city is a political subdivision under R.C.

2744.02(A). See R.C. 2744.01(F) (defining political subdivision to include, e.g.,

municipal corporations). Further, “governmental functions” include, among other things,

“[t]he provision or nonprovision of police * * * services or protection.” R.C.

2744.01(C)(2)(a). Relevantly, “police power to impound a vehicle constitutes a

governmental function.” Emery v. City of Ashland Police Department, 5th Dist. Ashland

No. 18-COA-029, 2019-Ohio-1206, ¶ 33, citing Pavlik v. Cleveland, 8th Dist. Cuyahoga

No. 92176, 2009-Ohio-3073, ¶ 18. With immunity presumptively established, whether

any exceptions to immunity under R.C. 2744.02(B) must be determined.

{¶ 17} Camargo fails to argue the availability of any R.C. 2744.02(B) exceptions

to immunity. Rather, Camargo maintains that the city is not entitled to immunity under

R.C. 2744.02 because it acted in bad faith and violated R.C. 2981.11 when it failed to

release the vehicle after the investigation of Camargo Sr. concluded or, at the latest, upon

the no bill.

{¶ 18} R.C. 2981.11 provides: “Any property that has been * * * seized pursuant

to a search warrant * * * and that is in the custody of a law enforcement agency shall be

kept safely by the agency, pending the time it no longer is needed as evidence or for

another lawful purpose.” This statute imposes an affirmative duty on law enforcement to

“‘ensure that the seized property is returned to the lawful owner without unnecessary

delay.’” State v. Grace, 2023-Ohio-165, 205 N.E.3d 1255, ¶ 21 (6th Dist.), quoting State

v. Freeman, 8th Dist. Cuyahoga No. 111209, 2022-Ohio-2364, ¶ 3.

{¶ 19} Although not specifically relied upon by Camargo, R.C. 2744.02(B)(5)

states “a political subdivision is liable for injury death, or loss to person or property when

10.

civil liability is expressly imposed upon the political subdivision by a section of the

revised code.” “Civil liability,” however, “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.” R.C. 2744.02(B)(5).

{¶ 20} Thus, even though R.C. 2981.11 imposed a mandatory duty on the city to

return Camargo’s vehicle at the earliest possible time, “‘there is no language in the statute

that imposes an express liability on the city for its failure to carry out that duty. Without

direct or unmistakable terms imposing civil liability upon the city, R.C. 2744.02(B)(5)

does not apply.’” Pavlik at ¶ 26, quoting Swanson v. Cleveland, 8th Dist. Cuyahoga No.

89490, 2008-Ohio-1254, ¶ 23 (interpreting the near-identical language of R.C.

2933.44(A)(1), repealed).

{¶ 21} Camargo asserts that the city’s failure to release her vehicle until after she

commenced a court action further evidenced bad faith. Her bad faith argument is

premised on R.C. 2744.03(A)(6) which provides that “an employee” is immune from

liability unless “[t]he employee’s acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner[.]” In addition to Camargo’s failure to raise this

exception to immunity in the trial court, R.C. 2744.02(A)(6) “‘applies only to individual

employees and not to political subdivisions.’” Minaya v. NVR, Inc., 2017-Ohio-9019,

103 N.E.3d 160, ¶ 24 (8th Dist.) quoting Fabrey v. McDonald Village Police Dept., 70

Ohio St.3d 351, 356, 639 N.E.2d 31 (1994); Sudnik v. Crimi, 117 Ohio App.3d 394, 398,

11.

690 N.E.2d 925 (8th Dist.1996). See David v. Matter, 2017-Ohio-7351, 96 N.E.3d 1012,

¶ 12 (6th Dist.). R.C. 2744.03(A)(6), therefore, does not apply to the city.

{¶ 22} Because the city was immune from liability under R.C. 2744.02(A)(1) and

none of the exceptions to immunity under R.C. 2744.02(B) apply, and because no

individual city employees were named in the complaint, there is no genuine issue of

material fact as to the city’s immunity and as a matter of law the city is entitled to

judgment. Therefore, the trial court did not err in granting the city’s motion for summary

judgment. Camargo’s assignment of error is not well-taken.

IV. Conclusion

{¶ 23} On consideration whereof, the February 13, 2023 judgment of the Lucas

County Court of Common Pleas is affirmed. Pursuant to App.R. 24, Camargo is ordered

to pay the costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.