Patrick v. Ellman , 2020 Ohio 3312 ( 2020 )

[Cite as Patrick v. Ellman, 2020-Ohio-3312.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
CONNIE PATRICK, TREASURER OF :
BROWN COUNTY, OHIO,
: CASE NO. CA2019-07-010
Appellee,
: OPINION
6/15/2020
- vs - :
:
WANDA ELLMAN, DECEASED, et al.,
:
Appellants.
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. 2018-0635
Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, 510 East State
Street, Suite 2, Georgetown, Ohio 45121, for appellee
Blankenship Massey & Associates, Randy J. Blankenship, 504 Erlanger Road, Erlanger,
Kentucky, Ohio 41018, for appellants
S. POWELL, J.
{¶ 1} Appellants, Janice and Julie Ellman, the heirs of Wanda Ellman, and Julie
Ellman, as executor for the Estate of Wanda Ellman (collectively, the "Ellman sisters"),
appeal the decision of the Brown County Court of Common Pleas denying their motion to
intervene in this tax foreclosure action initiated by appellee, Connie Patrick, Treasurer of
Brown County, Ohio ("Brown County Treasurer"). For the reasons outlined below, we
Brown CA2019-07-010
reverse and remand to the trial court for further proceedings.
{¶ 2} On August 18, 2015, Wanda Ellman passed away. At the time of her death,
the record indicates Wanda lived at 5650 Folchi Road, Cincinnati, Hamilton County, Ohio
and owned property located at 11725 Stratton Road, Hamersville, Brown County, Ohio.
There is no dispute that the real estate taxes for the Hamersville property had been certified
as delinquent in 2010 having an unpaid balance of $7,682.39. Because the real estate
taxes remained unpaid for over eight years, including three years after Wanda's death, the
Brown County Treasurer filed a tax foreclosure complaint with the trial court on August 21,
2018. The complaint named Wanda as a defendant, as well as Wanda's unknown heirs,
devises, legatees, administrators, executors, spouses, successors, assigns, creditors, and
guardians, if any. No estate had been opened for Wanda in Brown County, or anywhere
else, at the time the Brown County Treasurer filed its complaint.
{¶ 3} On August 27, 2018, the Brown County Treasurer filed an affidavit and
request for service of its complaint by publication. The Brown County Treasurer averred
that service by publication was necessary because the names and residences of Wanda's
heirs, if any, "are unknown and cannot with reasonable diligence be ascertained." The trial
court granted the Brown County Treasurer's request for service by publication later that day.
The Brown County Treasurer's complaint was then published in the local newspaper, the
Brown County Press, on September 9, 16, and 23, 2018.
{¶ 4} On November 6, 2018, the Brown County Treasurer moved for default
judgment against Wanda's unknown heirs. Approximately three weeks later, on November
29, 2018, the trial court issued a judgment entry and decree of foreclosure that granted
default judgment to the Brown County Treasurer. As part of this entry, the trial court
specifically stated that it had found "service on the Defendants is in all respects proper
under the law and the Court adopts it as good service in this case."
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{¶ 5} On December 7, 2018, the Ellman sisters opened an estate for Wanda in the
Hamilton County Probate Court under Case No. 2018004863. Approximately three months
later, on February 25, 2019, the Hamersville property was sold at a sheriff's sale for
$24,000. Shortly thereafter, on March 7, 2019, the trial court issued an order confirming
the sale of the Hamersville property, directed a deed for the property be prepared for the
buyers, and ordered the proceeds from the sale be distributed. The proceeds were then
distributed as instructed by the trial court. This included a $14,506.14 check made out to
Wanda's unknown heirs.
{¶ 6} On March 25, 2019, the Ellman sisters went to the Brown County Recorder's
Office to record the certificate of transfer they had received from the Hamilton County
Probate Court as part of Wanda's estate. However, instead of recording the certificate of
transfer, the Ellman sisters learned that the Hamersville property had been sold at the
sheriff's sale conducted on February 25, 2019.1
{¶ 7} On April 12, 2019, the Ellman sisters filed a motion to intervene and vacate
the default judgment levied against them. The Ellman sisters' motion was brought pursuant
to Civ.R. 24 and Civ.R. 60. In support of their motion, the Ellman sisters claimed that there
was a lack of service of process since "no effort was made to serve notice on Julie Ellman
or her sister, despite having Julie and Janice Ellman's address the entire time."
{¶ 8} On June 27, 2019, the trial court issued a decision overruling the Ellman
sisters' motion in its entirety. In so holding, the trial court noted that the Ellman sisters'
motion "was only a Motion to Intervene and contained no proposed answer or other
pleading as required by Civil Rule 24(C)." The trial court also noted that the Ellman sisters'
1. The Ellman sisters claim they learned the Hamersville property had been sold after "a prosecutor reached
out" to their attorney on March 25, 2019 to inform them of the sale. For ease of discussion, this court will use
that date as the date the Ellman sisters attempted to record the certificate of transfer with the Brown County
Recorder's Office.
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motion was untimely when considering the Brown County Treasurer had "complied with the
statutory and civil rules concerning service by publication" and that "the heirs of the Ellman
Estate had several years to take care of the tax issues with respect to the property in
question and ignored their responsibilities. They are not to be rewarded for failing to act."
{¶ 9} The Ellman sisters now appeal the trial court's decision, raising the following
single assignment of error for review.
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN
GRANTING DEFAULT JUDGMENT AGAINST THEM WHEN THEY WERE NOT
PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT.
{¶ 11} In their single assignment of error, the Ellman sisters argue that the trial court
erred by denying their motion to intervene and vacate the default judgment levied against
them. However, although the motion was captioned as a motion to intervene and vacate
default judgment, the true purpose of the Ellman sisters' motion was to enter an appearance
and challenge the trial court's decision finding "service on the Defendants [was] in all
respects proper under the law and the Court adopts it as good service in this case."
{¶ 12} Because the Ellman sisters were already a named party in the Brown County
Treasurer's complaint, i.e., Wanda's "unknown heirs," the Ellman sisters did not need to file
a Civ.R. 24 motion to intervene before they could enter an appearance and challenge the
trial court's decision finding service by publication on them was proper. This is because a
Civ.R. 24 motion to intervene is only necessary for a nonparty who is attempting to intervene
in an action. See Citizens Bank, N.A. v. David, 8th Dist. Cuyahoga No. 106575, 2018-Ohio-
3676, ¶ 7-9; see also Whitehall v. Olander, 10th Dist. No. 14AP-6, 2014-Ohio-4066, ¶ 27
("Civ.R. 24 allows a non-party to file a motion to intervene and contains specific
requirements for such a motion"); 1970 Staff Note, Civ.R. 24 ("Intervention under Rule 24
'rounds out' joinder of parties theories of the rules of procedure. Thus, a potential party who
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is not a party to the action may, under certain circumstances and by his own initiative,
intervene in the action as a party").
{¶ 13} Because the Brown County Treasurer sought to serve them by publication,
the Brown County Treasurer clearly considered the Ellman sisters, i.e., Wanda's "unknown
heirs," to be parties to the litigation pursuant to R.C. 2703.24. By its terms, R.C. 2703.24
recognizes the "party" status of persons whose names and residences are unknown and
are served with the summons and complaint by publication. Indeed, service of process
upon nonparties is unnecessary. Therefore, because they were already a named party in
the Brown County Treasurer's complaint, the Ellman sisters were entitled to appear,
answer, and defend against the allegations without the need to seek intervention under
Civ.R. 24. Accordingly, the question that needs to be answered, but which was not fully
litigated below, was wether the Brown County Treasurer had actually "complied with the
statutory and civil rules concerning service by publication" as the trial court found when
overruling the Ellman sisters' motion to intervene and vacate the default judgment.
{¶ 14} In so holding, we note that the Brown County Treasurer emphasizes the
different formalities required for service by publication pursuant to Civ.R. 4.4 with those
required by R.C. 2703.24. For example, the Brown County Treasurer notes that Civ.R. 4.4
applies where a known party's residence is unknown, whereas R.C. 2703.24 applies where
neither the party nor the party's residence are known. Civ.R. 4.4. requires that the affidavit
for service by publication include averments detailing the diligent efforts undertaken by the
party requesting service to discover the residence of the party to be served. R.C. 2703.24
does not require the affidavit to include averments of the diligent efforts undertaken to
discover the party's name and residence. The Brown County Treasurer asserts that this
case is controlled by R.C. 2703.24 because the names of Wanda's unknown heirs were not
known.
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{¶ 15} However, compliance with the formalities of R.C. 2703.24 does not
necessarily conform with constitutional due process. An affidavit's bare averment that a
party's name and residence are unknown does not relieve the party requesting service of
its responsibility to demonstrate due diligence to discover the party's name and residence,
if challenged. To hold otherwise would encourage deliberate ignorance of a party's identity
to permit service by publication and offend the principles of procedural due process. "'The
fundamental requisite of due process of law is the opportunity to be heard.' Grannis v.
Ordean, 234 U.S. 385, 394 [1914]. This right to be heard has little reality or worth unless
one is informed that the matter is pending and can choose for himself whether to appear or
default, acquiesce or contest." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314, 70 S.Ct. 652 (1950).
{¶ 16} Applying Mullane, the United States Supreme Court subsequently observed
that:
Measured by the principles stated in the Mullane case, we think
that the notice by publication here falls short of the requirements
of due process. It is common knowledge that mere newspaper
publication rarely informs a landowner of proceedings against
his property. In Mullane we pointed out many of the infirmities
of such notice and emphasized the advantage of some kind of
personal notice to interested parties.
Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200 (1956).
{¶ 17} Also applying Mullane, the Ohio Supreme Court thereafter observed:
Publication does play a legitimate, and necessary, role in our
system of justice, however, when used as a substitute in cases
where it is not reasonably possible or practicable to give more
adequate warning. The corollary to the above, and the general
rule which emerges from Mullane, is that notice by publication
is not adequate with respect to a person whose name and
address are known or easily ascertainable and whose legally
protected interests are directly affected by the proceedings in
question.
In re Foreclosure of Liens for Delinquent Taxes, 62 Ohio St.2d 333, 336-337 (1980), citing
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Mullane at 317.
{¶ 18} These cases demonstrate that service by publication may be utilized as a last
resort in circumstances where no other method of service is likely to provide actual notice
of pending litigation. So, where the identity and residence of a party are discoverable
through reasonable diligence, service of process by means of publication violates
procedural due process. It is the party requesting service who must demonstrate that
service by publication is proper. A conclusory averment in an affidavit that a party's name
and residence cannot be ascertained is inadequate to rebut a challenge to the propriety of
service by publication. Sizemore v. Smith, 6 Ohio St.3d 330, 332 (1983); In re Goldberg,
12th Dist. Warren Nos. CA2001-04-026 and CA2001-05-047, 2001 Ohio App. LEXIS 4141,
*8 (Sept. 17, 2001).
{¶ 19} Similar to R.C. 2703.24, a former version of Civ. R. 4.4 did not require an
averment of the efforts undertaken to ascertain the residence of the party to be served.
Nevertheless, cases construing the now former Civ.R. 4.4 establish that the absence of this
language does not relieve a party requesting service by publication of its responsibility to
exercise diligence to discover the residence of the party to be served. For instance, in
Sizemore, the Ohio Supreme Court ruled that "a bare allegation in an affidavit is not
conclusive on the subject" of whether reasonable diligence has been exercised to discover
a party's residence:
From the plain and unambiguous language of Civ. R. 4.4(A) it is
axiomatic that a plaintiff must exercise reasonable diligence in
his attempt to locate a defendant before he is entitled to service
by publication. If the defendant cannot be located, plaintiff or
his counsel may file an affidavit with the court. The required
contents of the affidavit are amply set forth in Civ. R. 4.4(A): that
defendant's residence is unknown and that it cannot be
discovered with reasonable diligence. Such an averment in the
affidavit gives rise to a rebuttable presumption that reasonable
diligence was exercised. This court notes that, although there
exists some measure of confusion on the point, * * * facts
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demonstrating the diligence used to ascertain the address of the
defendant are not required to be set forth in the affidavit itself.
However, a bare allegation in an affidavit is not conclusive on
the subject. Plaintiff, when challenged, must support the fact
that he or she used reasonable diligence.
(Emphasis added.) Id., 6 Ohio St.3d at 331-332.
{¶ 20} Construing the same version of Civ.R. 4.4 as it had in Sizemore, the Ohio
Supreme Court later held that:
In order to use service by publication, a plaintiff must first use
reasonable diligence in his attempt to locate a defendant.
Appellee's counsel asked other parties to this action and one
attorney about the whereabouts of appellant. The record
discloses no other actions taken by appellee. This minimal effort
cannot be said to be reasonable diligence, and therefore service
by publication was not proper.
First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 318 (1984), citing Sizemore; and Brooks
v. Rollins, 9 Ohio St. 3d 8 (1984).
{¶ 21} The Brown County Treasurer does not argue that R.C. 2703.24 relieves her
of the responsibility of exercising diligence to discover the names and residences of
Wanda's "unknown heirs." The Brown County Treasurer instead states that:
Because this case could be disposed of on the motion to
intervene, [the Treasurer] only addressed the motion to
intervene in the trial court. It was [the Brown County
Treasurer's] intention to address the merits of the motion to
vacate the default judgment, including providing the steps taken
to ascertain the identity of any potential heirs of Wanda Ellman,
only if the Appellants were successful in the motion to intervene.
As the trial court denied the Appellants' motion to intervene, no
further evidence was presented as to the efforts undertaken to
ascertain the unknown heirs' names and/or addresses.
(Emphasis added.)
{¶ 22} As noted above, the record reflects that the Brown County Treasurer was
aware that Wanda last resided at 5650 Folchi Road, Cincinnati, Hamilton County, Ohio,
owned the Hamersville property, and may have heirs, such as children, and that Wanda's
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estate was not filed at the time service was requested. However, by the Brown County
Treasurer's own admission, the record does not reflect the efforts she undertook to identify
Wanda's unknown heirs and ascertain their addresses. That is to say, the Brown County
Treasurer's affidavit and request for service of its complaint by publication did not include
an averment of the efforts she undertook to identify Wanda's unknown heirs and ascertain
their addresses; the memorandum opposing the vacation of the default judgment did not
include assertions concerning such efforts or evidentiary materials relating to such efforts;
and there was no hearing upon the Ellman sisters' motion to vacate the default judgment at
which the efforts the Brown County Treasurer undertook to identify Wanda's unknown heirs
could have been offered.
{¶ 23} The Brown County Treasurer's brief merely asserts that it had sought to
identify Wanda's unknown heirs by "searching the probate court" and "the internet for an
obituary." This assertion is not supported by the record. Nowhere in the record is there
evidence of the efforts undertaken to identify Wanda's unknown heirs as a prerequisite to
serving them with the summons and complaint by publication. Therefore, given this lack of
evidence, the trial court's decision finding the Brown County Treasurer "complied with the
statutory and civil rules concerning service by publication" is not supported by the record.
The trial court abused its discretion in so finding. See Khatib v. Peters, 8th Dist. Cuyahoga
No. 102663, 2015-Ohio-5144; Nationstar Mtge., L.L.C. v. Williams, 5th Dist. Delaware No.
14 CAE 04 0029, 2014-Ohio-4553.
{¶ 24} Due to the deficiency of service by publication to provide actual notice of
pending litigation, due process demands that a party requesting service demonstrate the
exercise of diligence in discovering the name and residence of a party to be served as a
necessary predicate to service by publication. Absent the exercise of such diligence,
service by publication is not proper. Despite the lack of language in R.C. 2703.24 that the
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affidavit includes an averment of the efforts undertaken to discover a party's name and
residence, Sizemore, First Bank of Marietta, and Goldberg make clear that the serving party
retains the burden of demonstrating proper service of process. The record does not
establish the Brown County Treasurer's diligence in this regard.
{¶ 25} Based upon the foregoing, this matter must be reversed and remanded to the
trial court to conduct a hearing to determine if the Brown County Treasurer exercised
reasonable diligence in identifying Wanda's unknown heirs and ascertaining their
residences. Therefore, to the extent outlined above, the Ellman's sisters' single assignment
of error is sustained and this matter is reversed and remanded to the trial court for further
proceedings.
{¶ 26} Judgment reversed and remanded.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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