      [Cite as In re $593 US Currency Seized From Moore, 2017-Ohio-7330.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: $593 U.S. CURRENCEY :                           APPEAL NO. C-160601
SEIZED FROM NOAH MOORE                                 TRIAL NO. M-1500742
                           :

                                             :          O P I N I O N.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 25, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jeremiah Seebohm,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffman, for
Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

          {¶1}   The primary issue in this case is whether an interested party’s actual

notice of a pending forfeiture action renders strict compliance with the notice

requirement in former R.C. 2981.05(B) unnecessary. Following Ohio Supreme Court

precedent, we hold that it does not. See Ohio Dept. of Liquor Control v. Sons of Italy

Lodge 0917, 65 Ohio St.3d 532, 605 N.E.2d 368 (1992), syllabus. However, our

holding does not entitle Moore to the funds at this time because provisional title

remains with the state. See State v. North, 2012-Ohio-5200, 980 N.E.2d 566, ¶ 12

(1st Dist.).

                                          Facts

          {¶2}   Noah Moore was indicted for trafficking in cocaine. He entered a

guilty plea to a reduced charge of attempted possession of cocaine.

          {¶3}   The state subsequently filed a civil action, requesting the forfeiture of

$593 seized by law enforcement officials from Moore’s home at 3111 Dresher Drive.

The state attempted certified mail service on Moore at that address. The certified

mail was returned as undeliverable. The state also attempted personal service, but

failed.

          {¶4}   Despite the lack of service, Moore became aware of the forfeiture

proceeding. He filed an “answer” to the state’s complaint, in which he raised the

affirmative defense of insufficiency of process under Civ.R. 12(B)(4).        By statute,

Moore should have filed a “petition” instead of an “answer.”            See former R.C.

2981.05(C). Further, it appears that Moore intended to raise the defense of

insufficiency of service of process under Civ.R. 12(B)(5), instead of insufficiency of

process under Civ.R. 12(B)(4). These procedural deficiencies were never raised.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Moore later moved the trial court for summary judgment under Civ.R.

56(C), asking the court to dismiss the complaint with prejudice for failing to perfect

service. In his motion, Moore claimed that the trial court was without jurisdiction to

proceed because he had not been served by certified mail or by personal service, in

accordance with the mandates of the forfeiture statute.

       {¶6}   A magistrate conducted a hearing on Moore’s summary judgment

motion and denied it. Moore did not object to the decision within 14 days, as set

forth in Civ.R. 53, and the trial court adopted the magistrate’s decision.

       {¶7}   The case proceeded to a forfeiture hearing before a magistrate. Moore

appeared and participated. Following the hearing, the magistrate ordered the money

forfeited. Moore timely objected, arguing: (1) the trial court lacked subject-matter

jurisdiction because Moore had never been properly served; and (2) the state failed

to meet its burden to prove that the money was subject to forfeiture based on the

commission of a trafficking offense. The trial court overruled these objections and

adopted the magistrate’s decision as a judgment of the court. This appeal followed.

                                      Argument

       {¶8}   In his first assignment of error, Moore contends that the trial court

lacked subject-matter jurisdiction to order a forfeiture because the state had not

strictly complied with the notice requirements of former R.C. 2981.05(B). He claims

that the court’s judgment was void ab initio, and that he is entitled to the $593 that

was the subject of the forfeiture hearing.

       {¶9}   We note that the forfeiture statutes have been amended and

renumbered, effective April 6, 2017. The notice provision in the current statute is

contained in R.C. 2981.05(F). There are no material differences between the notice

requirements in former R.C. 2981.05(B) and the current R.C. 2981.05(F).



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Regardless, we apply the statute in effect in June 2015, when the forfeiture action

was filed.

       {¶10} The plain error doctrine does not apply. At the outset, the

state argues that we should not address the merits of Moore’s argument because he

had failed to timely object to the magistrate’s decision finding that the court had

jurisdiction to proceed with the forfeiture hearing. Civ.R. 53(D)(3)(b)(iv) states that

“except for a claim of plain error, a party shall not assign as error on appeal the

court’s adoption of any factual finding or legal conclusion * * * unless the party has

objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Under

Civ.R. 53(D)(3)(b)(i), a party has fourteen days from the filing of a magistrate’s

decision to object to it. Based on this rule, we have held that where an appellant has

failed to object to a magistrate’s decision, absent plain error, he has forfeited the

right to argue error for the first time on appeal. See Souders v. Souders, 1st Dist.

Hamilton No. C-150552, 2016-Ohio-3522, ¶ 31.

             {¶11} It is true that Moore did not timely object to the magistrate’s

decision overruling his motion for summary judgment. He did, however, object

following the forfeiture hearing. The trial court considered the objection and ruled

on it. The state does not argue that the trial court lacked the authority to entertain

the objection.    Rather, the state contends that the plain error doctrine applies

because the objection was untimely. The plain error doctrine exists to review certain

types of serious error where such error was not brought to the attention of the trial

court. In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998), citing

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). Since the

error alleged here was brought to the attention of the trial court, and since the trial




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                    OHIO FIRST DISTRICT COURT OF APPEALS



court ruled on the objection despite the arguable untimeliness of it, the plain error

doctrine does not apply. We therefore address this assignment of error on its merits.

           {¶12} The trial court had subject-matter jurisdiction. Moore’s

argument pertaining to the court’s subject-matter jurisdiction is without merit.

“Subject-matter jurisdiction is the power of a court to entertain and adjudicate a

particular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-

Ohio-4275, 21 N.E.3d 1040, ¶ 19, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87,

290 N.E.2d 841 (1972). The court of common pleas has “such original jurisdiction

over all justiciable matters and such powers of review of proceedings of

administrative officers and agencies as may be provided by law.” Ohio Constitution

Article IV, Section 4(B). It is beyond dispute that the trial court had subject-matter

jurisdiction in this case. Former R.C. 2981.05(A) states that “[t]he prosecutor of the

political subdivision in which property * * * [sought to be forfeited] is located may

commence a civil forfeiture action by filing in the court of common pleas * * * a

complaint requesting an order that forfeits the property to the state or a political

subdivision.”

           {¶13} Moore cites Erie Cty. Sheriff’s Office v. Lacy, 6th Dist. Erie Nos.

E–14–023 and E–14–022, 2015-Ohio-72, ¶ 22, for its holding that “strict compliance

with the statutory [notice] requirements [in former R.C. 2981.05(B)] is necessary to

invoke the subject-matter jurisdiction of the trial court.” We reject this holding.

Notice is a concept wholly separate from subject-matter jurisdiction. Former R.C.

2981.05(A) unambiguously vested the trial court with subject-matter jurisdiction.

The state’s failure to perfect service impacts whether this particular proceeding was

properly commenced, and not whether the trial court has jurisdiction to hear this

class of cases.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



           {¶14} Just as Moore misidentified his petition as an answer, and his

Civ.R. 12(B)(5) notice-defense as a Civ.R. 12(B)(4) insufficiency-of-process defense,

Moore has misidentified a failure-of-service argument as a subject-matter

jurisdiction argument. While the trial court had subject-matter jurisdiction, we are

compelled to reverse its decision because the state failed to strictly comply with the

notice requirements in former R.C. 2981.05(B). See Sons of Italy, 65 Ohio St.3d 532,

605 N.E.2d 368, at syllabus.

           {¶15} Strict compliance with the notice requirements was

mandatory. In relevant part, former R.C. 2981.05(B) states that “[t]he prosecutor

shall give notice of the commencement of the civil action, together with a copy of the

complaint, to each person who is reasonably known to have any interest in the

property, by certified mail, return receipt requested, or by personal service.” In

interpreting a nearly identical forfeiture notice requirement in R.C. 2933.43(C),

which has since been repealed, the Ohio Supreme Court held in Sons of Italy that

strict compliance with the statute was mandatory, regardless of whether an

interested party had actual notice of the proceeding. Id. at syllabus.

           {¶16} In Sons of Italy, Ohio Department of Liquor control agents, acting

upon a complaint of illegal gambling and alcohol consumption, seized video draw

poker machines and money from the Sons of Italy Lodge 0917 (“the Lodge”). The

department later petitioned for a forfeiture of this property. It served the Lodge by

regular mail, and the Lodge appeared at the forfeiture hearing.          Following the

hearing, the trial court ordered the machines and money forfeited to the department.

           {¶17} On appeal, the Lodge argued that because the department had

failed to strictly comply with the mandatory notice requirements in former R.C.

2933.43(C), the trial court had erred by ordering a forfeiture. In relevant part,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



former R.C. 2933.43(C), which for all practical purposes is identical to former R.C.

2981.05(B) applicable here, provided that “[t]he petitioner then shall give notice of

the forfeiture proceedings by personal service or by certified mail, return receipt

requested, to any persons known * * * to have an ownership or security interest in

the property * * *.” In holding that actual notice did not suffice, the Supreme Court

reasoned that forfeiture statutes are in derogation of private property rights and,

therefore, must be strictly construed to avoid forfeiture. Id. at 534. The Court

declined to entertain whether “something less than strict compliance” might meet

due process requirements.      Id. at 536. It determined that the statutory notice

requirements were mandatory.

          {¶18} It is undisputed that the prosecutor failed to serve a copy of the

forfeiture complaint on Moore via certified mail or by personal service. The state

attempted each type of service, but was unsuccessful. It is also undisputed that

Moore had actual notice of the proceeding. But because the prosecutor failed to

serve Moore as required by statute, we have no choice but to hold that the trial court

erred by ordering a forfeiture. See In re 1990 Lexus, 1st Dist. Hamilton No. C-

990403, 2000 WL 331627 (March 31, 2000) (holding that strict compliance with the

notice requirements of the former forfeiture statute was mandatory); State v. Rosa,

8th Dist. Cuyahoga No. 90921, 2008-Ohio-5267 (holding that the trial court properly

denied the state’s petition for forfeiture where the interested party had actual notice

of the proceeding and appeared at the hearing, but where the state failed to strictly

comply with statutory notice requirements).

          {¶19} We are cognizant that an interested party could frustrate the state’s

attempts at a forfeiture award by refusing certified mail service.      However, the




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                      OHIO FIRST DISTRICT COURT OF APPEALS



supreme court precedent is clear, and the state has the option to personally serve

interested parties.

           {¶20} Moore is not entitled to the $593 seized. While Moore is

correct that the trial court erred by ordering a forfeiture, the state’s failure to strictly

comply with the notice requirements in former R.C. 2981.05(B) does not entitle

Moore to the $593, as he contends.          Former R.C. 2981.03(A)(2) permits a law

enforcement officer to seize property that the officer has probable cause to believe is

subject to forfeiture. Once this occurs, and before a final forfeiture adjudication, the

state or political subdivision holds provisional title to the property. North, 2012-

Ohio-5200, 980 N.E.2d 566, at ¶ 12, citing former R.C. 2981.03(A)(1). The state,

therefore, still holds provisional title to the $593. We find no law, and Moore cites

none, that would automatically entitle him to an award of this money.

           {¶21} Weight and sufficiency challenges are moot.                         In his

second assignment of error, Moore argues that the trial court’s judgment is not

supported by sufficient evidence, and that it is against the manifest weight of the

evidence. Resolution of Moore’s first assignment of error renders the second moot.

See App.R. 12(A)(1)(c).

                                            Conclusion

           {¶22} We therefore sustain Moore’s first assignment of error to the extent

that the trial court erred by ordering a forfeiture on the ground that the state had

failed to strictly comply with the mandatory notice requirements in the forfeiture

statute. We overrule it to the extent that Moore contends the trial court was without

subject-matter jurisdiction to order a forfeiture.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



          {¶23} We reverse the trial court’s judgment and remand this cause for the

trial court to (1) enter an order vacating its judgment ordering a forfeiture, and (2)

dismiss the case numbered M-1500742.

                                                               Judgment accordingly.

M YERS , P.J., and D ETERS , J., concur.




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