Bolon v. BowersBolon v. Bowers
Atty. Robert Herron, Columbiana County Prosecutor and Atty. Krista R. Peddicord, Columbiana County Assistant Prosecutor, 105 South Market Street, 3rd Floor, Lisbon, Ohio 44432 for Plaintiff-Appellee and
Atty. Emily White, Atty. Marc E. Dann, DannLaw, 15000 Madison Avenue, Lakewood, Ohio 44107 for Defendant-Appellant.
{¶1} Defendant-Appellant, Alan Bowers, appeals from a Columbiana County Common Pleas Court judgment denying his motion to vacate the foreclosure judgment and confirmation of sale entered against him and in favor of plaintiff-appellee, Linda S. Bolon, Treаsurer of Columbiana County.
{¶2} Appellant was the owner of the residence and property located at 14387 Seigler Road in Salineville, Ohio (the property).
{¶3} Appellee filed a complaint against appellant on March 9, 2020, for collection of delinquent taxes owed on the property along with assessments, penalties, interest, foreclosure, and equitable relief. The complaint listed appellant‘s address as “P.O. Box 7542, Canton, Ohio 444705” and stated, “Also serve at: P.O. Box 772 SALEM, OH 44460.” Both notices were returned and marked “returned to sender” and “unable to forward.”
{¶4} Appellee then attempted to serve appellant by publication in the Farm and Dairy newspaper. When appellant did not respond to the notice by publication, appellee filed a motion for default judgment on July 30, 2020.
{¶5} The trial court granted appellee‘s motion the next day and entered judgment against appellant in the amount of $10,584.58. It further stated that unless aрpellant paid the judgment within three days, his property would be foreclosed upon and would be sold. Appellant did not pay the judgment and the property was foreclosed upon. The property was then sold at auction on October 27, 2020. The court authorized service of a writ of possession by posting it to the door of the residence. The writ was posted on the door on December 8, 2020 (although it listed “14384” instead of “14387” as the address, it was posted on the correct door).
{¶6} On April 23, 2021, appellant filed a motion to vacate the judgment against him. He argued he was never properly served with the summons and complaint аnd that his first notice of the existence of the lawsuit was an eviction notice on his door. Appellee filed a response in opposition.
{¶8} Appellant filed a timely notice of appeal on August 2, 2021. He now raises a single assignment of error for our review.
{¶9} Appellant‘s sole assignment of error states:
THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO VACATE JUDGMENT.
{¶10} Appellant argues the trial court should have granted his motion to vacate default judgment. He claims he was never properly served with the complaint and, therefore, the judgment is void. Appellant asserts service by publication in this case was constitutionally inadequate because appellee‘s efforts to ascertain his address and perfect service were unreasonable. He claims appellee had actual knowledge of his address because he supplied it to appellee months before the commencement of this action when he paid property taxes on an adjacent parcel. Nonetheless, appellant points out, appellee did not attempt to serve him at that address he provided. And he states that his address was listed on his Ohio‘s driver‘s license and had been for years. Under these circumstances, appellant argues, the default judgment was void.
{¶11} This court applies an abuse of disсretion standard when reviewing a trial court‘s decision on a motion to vacate a void judgment for lack of personal jurisdiction where the question is whether reasonable diligence was exercised before service by publication. Franks v. Reynolds, 7th Dist. Belmont No. 21 BE 0004, 2021-Ohio-3247, ¶ 39. Abuse of discretion implies the trial court‘s decision is unreasonablе, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶12} Before the state can take property and sell it, due process requires the state to provide the property owner with notice of the action affecting the property. In re Foreclosure of Lien for Delinquent Taxes by Action in Rem, 7th Dist. Jefferson No. 06-
(B) Foreclosure proceedings constituting an action in rem may be commenced by the filing of a complaint after the end of the second year from the date on which the delinquency was first certified by the auditor. * * *
(1) Within thirty days after the filing of a complaint, the clerk of the court in which the complaint was filed shall cause a noticе of foreclosure substantially in the form of the notice set forth in division (B) of section 5721.181 of the Revised Code to be published once a week for three consecutive weeks in a newspaper of general circulation in the county.
* * *
Within thirty days after the filing of a complaint and before the final date of publication of the notice of foreclosure, the clerk of the court also shall cause a copy of a notice substantially in the form of the notice set forth in division (C) of section 5721.181 of the Revised Code to be mailed by certified mail, with postage prepaid, to each person named in the complaint as being the last known owner of a parcel included in it, or as being a lienholder or other person with an interest in a parcel included in it. The notice shall be sent to the address of each such person, as set forth in the complaint, and the clerk shall enter the fact of such mailing upon the appearance docket. If the name and address of the last known owner of a parcel included in a complaint is not set forth in it, the auditor shall file an affidavit with the clerk stating that the name and address of the last known owner does not appear on the general tax list.
{¶13} Pursuant to
{¶14} The address used to provide notice must be such that a taxpayer may be “reasonably calculated” to be in receipt of the notice. In re Foreclosure of Liens for Delinquent Taxes, 62 Ohio St.2d 333, 337, 405 N.E.2d 1030 (1980).
{¶15} In support of its judgment, the trial court cited to this court‘s decision in In re Foreclosure of Lien for Delinquent Taxes by Action in Rem, 7th Dist. Jefferson No. 06-JE-40, 2008-Ohio-1173. In that case, the defendant company operated television and radio stations in Jefferson County and purchased property on which it located its antennae for its stations. The county treasurer later filed a complaint seeking foreclosure of the defendant‘s property based on delinquent taxes. The treasurеr mailed notice by ordinary and certified mail to the address listed by the defendant as the tax bill mailing address. Both were returned marked, “Not Deliverable As Addressed-Unable To Forward-Return To Sender.” The clerk of courts next searched the local phone book for an address or telephone number for the defendant and found nothing. Finally, notice was attempted by publication in compliance with
{¶16} On appeal, this court found there was no dispute that the clerk of courts complied with
There is no evidence in the record to indicate that the Clerk of Court‘s office in this case had actual knowledge of these addresses. The addresses were kept by offices separate from the Clerk of Court‘s office-the Jefferson County Recycling office and thе Jefferson County Auditor‘s office. There is no evidence to indicate that these offices shared information or that they were allowed or able to.
Moreover, pursuant to
R.C. 323.13 , it was incumbent on Keymarket to notify the county treasurer in writing of any change in the mailing address of any tax bill. This it failed to do. Where the treasurer complied withR.C. 5721.18 in effecting service and the property owner did not comply with the obligations underR.C. 323.13 , it has been held that a trial court did not err in denying the property owner‘s motion for relief from judgment of foreclosure. J. Terry Evans Licking County Treasurer v. Jallaq (Aug. 22, 1996), 5th Dist. No. 95CA–127.
Id. at 38-39. Because we found that the treasurer complied with
{¶18} Likewise, in this case, we find that appellee complied with
{¶19} In support of his motion to vacate, appеllant attached his own affidavit where he averred to the following. From October 2006 until December 2020, appellant resided at 14387 Seigler Road. (Bowers Aff. ¶ 2). His home address, 14387 Seigler Road, was listed on his driver‘s license. (Bowers Aff. ¶ 4, Ex. A). Because the home is in a rural setting, appellant has used a post office box to ensure thаt he receives all of his mail securely. (Bowers Aff. ¶ 5). From 2000 to 2012, he used P.O. Box 0772, Salem, Ohio. (Bowers Aff. ¶ 6). From 2012 to 2017, he used P.O. Box 7542, Canton, Ohio. (Bowers Aff. ¶ 7). From 2017 to the present, he has used P.O. Box 0208, Tallmadge, Ohio. (Bowers Aff. ¶ 8). From 2019 to the present, he has additionally used P.O. Box
{¶20} Appellant further averred that in August 2019, he paid property taxes to the county treasurer‘s office via money order. (Bowers Aff. ¶ 11). The money order listed his mailing address as P.O. Box 0141, Mogadore, Ohio. (Bowers Aff. ¶ 11, Ex, B). The property tаxes he paid were for a different parcel of property located at 14323 Seigler Road. (Bowers Aff. Ex. B).
{¶21} In response, appellee submitted her affidavit where she averred to the following. Appellant had never provided her office with a written request to change his tax mailing address to P.O. Box 141, Mogadоre, Ohio. (Bolon Aff. ¶ 9). From the filing of the complaint to the date of judgment granting foreclosure, her office was not aware that appellant was receiving mail at P.O. Box 0141, Mogadore, Ohio. (Bolon Aff. ¶ 10). From March 9, 2020 to July 31, 2020, employees from her office conducted a records search and found only P.O. Box 772, Salem, Ohiо and P.O. Box, 7542 Canton, Ohio as potential addresses for appellant. (Bolon Aff. ¶ 12).
{¶22} Appellee also relied on the Affidavit for Service by Publication filed on April 6, 2020, by Assistant Prosecutor Krista Peddicord. Peddicord averred that summons could not be made on appellant because his current residence and all оther addresses were unknown and could not be ascertained with reasonable diligence. (Peddicord Aff.). She further averred as to the efforts made on appellee‘s behalf to ascertain appellant‘s residence: (1) checking with the treasurer‘s office; (2) checking available phone books; (3) searching www.whitepages.com; (4) searching www.google.com; (5) checking the county clerk of courts records; (6) checking the county probate court records; and (6) sending notice to appellant‘s last known address. (Peddicord Aff.).
{¶23} Appellant contends that because he listed his return address as P.O. Box 0141, Mogadore, Ohio on money orders he mailed to appellee to pay taxes on a different parcel of property, this constituted written notice to change his mailing address for tax purposes for the property at issue.
{¶24} But as appellee argues, her office receives thousands of envelopes, checks, and money orders from property owners paying their taxes. It would be
{¶25} Pursuant to
{¶26} And while appellant points out that his driver‘s license lists his residence address, thеre is no indication that appellee had access to appellant‘s driver‘s license.
{¶27} Appellee undertook extensive search efforts to ascertain appellant‘s address after the two summons she sent were returned as unable to forward. The prosecutor‘s office, on her behаlf, searched county records, phone books, and the internet in an attempt to determine appellant‘s address. Agreeing with this court, the Ninth District has held, “when the county treasurer complies with the service procedures outlined in
{¶28} Accordingly, appеllant‘s sole assignment of error is without merit and is overruled.
{¶29} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
Waite, J., concurs.
Robb, J., concurs
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.