[Cite as In re $770 in US Currency, $1,289.04 in US Currency, Safe Containing Approximately $12,500 in
US Currency, $1,236 in US Currency, $177 in US Currency, 2016-Ohio-4872.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. Sheila G. Farmer, P.J.
$770 IN US CURRENCY Hon. William B. Hoffman, J.
$1,289.04 IN US CURRENCY Hon. John W. Wise, J.
SAFE CONTAINING APPROXIMATELY
$12,500 IN US CURRENCY Case No. 16CA9
$1,236 IN US CURRENCY
$177 IN US CURRENCY
OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 15CV1104R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 5, 2016
APPEARANCES:
For Respondent-Appellee For Petitioner-Appellant
Gary L. Hood The State of Ohio
NICHOLAS D. ATTERHOLT MICHAEL C. BEAR
Weldon, Huston & Keyser, L.L.P. Assistant Prosecuting Attorney
76 North Mulberry Street Richland County Prosecutor's Office
Mansfield, Ohio 44902 38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 16CA9 2
Hoffman, J.
{¶1} Petitioner/Appellant the state of Ohio appeals the January 12, 2016
Judgment Entry entered by the Richland County Court of Common Pleas granting
judgment in favor of Respondent/Appellee Gary L. Hood.
STATEMENT OF THE CASE
{¶2} On September 2, 2015, the state of Ohio filed a Complaint/Petition for the
Disposal of Abandoned Property pursuant to Ohio Revised Code Section 2981.12,
involving four different amounts of currency and also a safe containing $12,500. It is the
safe and its $12,500 contents which is the subject of this appeal.
{¶3} On September 28, 2015, Appellee, through counsel, filed a motion for leave
to plead.
{¶4} On October 8, 2015, the State filed a motion for partial default judgment as
to the four amounts of currency other than the safe and its contents. The trial court granted
the State’s motion for partial default judgment via Judgment Entry on October 12, 2015.
{¶5} On October 29, 2015, the State moved the trial court for default judgment
as to the safe containing $12,500. Appellee filed an Answer/Response to the
Petition/Complaint on November 6, 2015.
{¶6} On November 10, 2015, the state filed a motion for summary judgment. The
state attached a Financial Affidavit executed by Appellee in his criminal case on August
11, 2011, asserting he was indigent. Therein, Appellee stated his total income for the last
twelve months was $12,732.00 and all his cash and bank accounts totaled $22.00. He
further averred no one owed him money or held money in his name, and he had no legal
Richland County, Case No. 16CA9 3
actions or claims against any persons. Appellee did not mention or assert a claim therein
for the $12,500 in a safe.
{¶7} In the criminal action in which Appellant entered a plea of guilty to several
drug offenses, Appellee had counsel appointed based upon his sworn affidavit of
indigency. Appellee was not required to pay for his counsel, and his $5,000 fine was
waived based upon the affidavit of indigency.
{¶8} Appellee filed a response to the motion for summary judgment and the state
filed a surreply pleading.
{¶9} Via Judgment Entry on Motion for Summary Judgment entered January 12,
2016, the trial court denied the state’s motion for summary judgment. The judgment entry
went further and denied the state’s petition for disposal of unclaimed property with regards
to the $12,500 cash removed from the safe, and ordered the money returned to Appellee
pursuant to R.C. 2981.11(C).
{¶10} The state appeals, assigning as error,
{¶11} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE STATE’S
‘MOTION FOR DEFAULT JUDGMENT’ FILED ON OCTOBER 29, 2015.
{¶12} “II. THE TRIAL COURT ERRED IN NOT GRANTING THE STATE’S
‘MOTION FOR SUMMARY JUDGMENT’ FILED ON NOVEMBER 10, 2015.
{¶13} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO MR. HOOD DESPITE HIS NEVER FILING FOR SUMMARY JUDGMENT.
{¶14} “IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO MR. HOOD, AS THE INCONSISTENCIES BETWEEN HIS TWO (2) AFFIDAVITS
Richland County, Case No. 16CA9 4
CREATED, AT A MINIMUM, A DISPUTED ISSUE OF MATERIAL FACT PRECLUDING
THE GRANTING OF SUMMARY JUDGMENT IN HIS FAVOR.”
I.,II, III. and IV.
{¶15} Appellant’s assigned errors raise common and interrelated arguments;
therefore, we will address the assignments of error together.
{¶16} As set forth in the Statement of the Case, supra, the state initiated these
proceedings pursuant to R.C. 2981.12 for Disposal of Property.
{¶17} Ohio Revised Code Section 2981.12 reads,
(A) Unclaimed or forfeited property in the custody of a law enforcement
agency, other than property described in division (A)(2) of section 2981.11
of the Revised Code, shall be disposed of by order of any court of record
that has territorial jurisdiction over the political subdivision that employs the
law enforcement agency, as follows:
***
(B) Unclaimed or forfeited property that is not described in division (A) of
this section or division (A)(2) of section 2981.11 of the Revised Code, with
court approval, may be used by the law enforcement agency in possession
of it. If it is not used by the agency, it may be sold without appraisal at a
public auction to the highest bidder for cash or disposed of in another
manner that the court considers proper.
{¶18} R.C. 2981.11 reads,
Richland County, Case No. 16CA9 5
(A)(1) Any property that has been lost, abandoned, stolen, seized pursuant
to a search warrant, or otherwise lawfully seized or forfeited 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, and shall be disposed of pursuant to sections 2981.12 and
2981.13 of the Revised Code.
***
(B)(1) Each law enforcement agency that has custody of any property that
is subject to this section shall adopt and comply with a written internal
control policy that does all of the following:
(a) Provides for keeping detailed records as to the amount of property
acquired by the agency and the date property was acquired;
***
(C) A law enforcement agency with custody of property to be disposed of
under section 2981.12 or 2981.13 of the Revised Code shall make a
reasonable effort to locate persons entitled to possession of the property,
to notify them of when and where it may be claimed, and to return the
property to them at the earliest possible time. In the absence of evidence
identifying persons entitled to possession, it is sufficient notice to advertise
in a newspaper of general circulation in the county and to briefly describe
the nature of the property in custody and inviting persons to view and
establish their right to it.
Richland County, Case No. 16CA9 6
{¶19} We find R.C. 2981.11 creates a special statutory proceeding for a law
enforcement agency to return property in its custody to persons entitled to possession of
the property. The statute does not require Appellee to file an answer, but merely assert
and establish his right to possession. The statute does not establish any formal hearing
process. As such, we find the civil rules inapplicable.
{¶20} Special statutory proceedings are not governed by the civil rules. Civil Rule
1(C) provides,
(A) Applicability. These rules prescribe the procedure to be followed in all
courts of this state in the exercise of civil jurisdiction at law or in equity, with
the exceptions stated in division (C) of this rule.
***(C) Exceptions.
These rules, to the extent that they would by their nature be clearly
inapplicable, shall not apply to procedure ***(8) in all other special statutory
proceedings; provided, that where any statute provides for procedure by a
general or specific reference to all the statutes governing procedure in civil
actions such procedure shall be in accordance with these rules.
{¶21} Therefore, the civil rules governing default judgments and summary
judgment are not applicable herein.
{¶22} Rather, R.C. 2981.11(C) provides the law enforcement agency with custody
of the property shall make a reasonable effort to locate persons entitled to possession of
the property, notify them of when and where the property may be claimed, and to return
the property to them at the earliest possible time. The statute provides, in the absence of
evidence identifying persons entitled to possession, the law enforcement agency may
Richland County, Case No. 16CA9 7
advertise in a newspaper of general circulation, and invite persons to view and establish
their right to the property.
{¶23} Here, the Richland County Prosecutor’s office recognized Appellee as the
person in possession of the property at the time it was seized. We find the trial court
properly found Appellee entitled to return of the property. Whether or not the information
submitted in the Financial Affidavit during Appellee’s criminal proceedings was false at
the time it was submitted does not change the fact the only relevant evidence
demonstrates Appellee was in possession of the safe and its contents at the time it was
seized.
{¶24} We find the trial court properly ordered the money returned to Appellee
pursuant to R.C. 2981.11(C).
{¶25} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, J.
Farmer, P.J. and
Wise, J. concur