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In re $593 U.S. Currencey Seized From Noah Moore

Court of Appeals of Ohio, First District, Hamilton

August 25, 2017

IN RE: $593 U.S. CURRENCEY SEIZED FROM NOAH MOORE

         Civil Appeal From: Hamilton County Court of Common Pleas TRIAL NO. M-1500742

          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.

          OPINION

          Miller, 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.

         {¶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 ...


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