Lamancusa v. Webb

[Cite as Lamancusa v. Webb, 

.]


                   IN THE COURT OF APPEALS OF OHIO
                    ELEVENTH APPELLATE DISTRICT
                          TRUMBULL COUNTY

SAM LAMANCUSA, TREASURER                       CASE NO. 2024-T-0080
TRUMBULL COUNTY, OHIO,

                 Plaintiff-Appellee,           Civil Appeal from the
                                               Court of Common Pleas
        - vs -

LESLIE C. WEBB,                                Trial Court No. 2022 CV 00157

                 Defendant,

UNKNOWN SPOUSE, HEIRS, NEXT
OF KIN AND ADMINISTRATORS
OF LESLIE C. WEBB, et al.,

                 Defendant-Appellant.


                          OPINION AND JUDGMENT ENTRY

                                  Decided: January 27, 2026
                              Judgment: Reversed and remanded


Dennis Watkins, Trumbull County Prosecutor, and Lynn B. Griffith, III, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael J. Fredericka, Neuman and Fredericka Law Office, L.L.C., 761 North Cedar
Avenue, Suite 1, Niles, OH 44446 (For Defendant-Appellant).


SCOTT LYNCH, J.

        {¶1}     Appellant, Heather Zeena (unknown heir and next of kin of Leslie C. Webb),

appeals the judgment of the Trumbull County Court of Common Pleas, denying her

Motion to Vacate Judgment. Because the Motion was denied without hearing, we reverse
the decision of the court below and remand for further proceedings consistent with this

Opinion.

       {¶2}    While the dissenting opinion raises what would be, in other situations, valid

concerns regarding Zeena’s apparent inaction and the forfeiture of her right to contest the

foreclosure, in the present case, she was denied a fair opportunity of doing so in the first

place. Zeena claims she did not receive service of the foreclosure and, when she

attempted to challenge the validity of service through her Motion to Vacate, was denied

a hearing on the merits of her claim. See Lundeen v. Turner, 

 (“to

the extent that a failure of service deprives a trial court of jurisdiction to proceed, even a

defendant with no actual notice of the pending action may obtain relief directly from the

trial court by petitioning the trial court to vacate the judgment on the ground that she was

not properly served”). Inasmuch as Zeena’s grounds for vacating the judgment stem from

a failure of service, her conduct does not suggest waiver or forfeiture. Compare State v.

Payne, 

, ¶ 23 (“[w]aiver is the intentional relinquishment or abandonment

of a right” but “forfeiture is a failure to preserve an objection”).

Substantive and Procedural History

       {¶3}    On February 7, 2022, plaintiff-appellee, Sam Lamancusa, acting in his

capacity as the treasurer of Trumbull County, filed a Complaint (Foreclosure of Lien for

Delinquent Land Taxes) against Leslie C. Webb (owner of the subject property); the

Unknown Spouse, Heirs, Next of Kin and Administrators of Leslie C. Webb; and Unknown

Tenants at 8700 Delin Thomas Road, Kinsman, Ohio 44428. Lamancusa sought to

foreclose the subject property to recover delinquent property taxes, penalties, and interest

in the amount of $18,097.49.



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Case No. 2024-T-0080
       {¶4}   On March 31, 2022, Lamancusa filed an Affidavit for Service by Publication

(Landbank), averring as follows:

                     Darlene Sudol, being first duly sworn, says that she is the
              Secretary for the Attorney of the Treasurer’s Office, Trumbull County,
              Ohio; that the usual place of residence of the Defendants Leslie C.
              Webb and Unknown Spouse, Heirs[,] Next of Kin and
              Administrators of Leslie C. Webb, cannot with reasonable
              diligence, (for reason certified mail returned by postmaster for
              attempt not known and unable to forward, local telephone directory,
              Warren/Youngstown Regional Telephone Book, Public records
              through the Internet & Intranet) be ascertained, and service of
              summons cannot be made within the State of Ohio upon the
              Defendants sought to be served, and that the Affiant has personal
              knowledge of the facts stated herein.

       {¶5}   On March 29, April 5 and 12, 2022, service was effected upon the

defendants identified in the affidavit by publication in The Trumbull County Legal News.

       {¶6}   On June 14, 2022, Lamancusa moved for default judgment.

       {¶7}   On August 5, 2022, the trial court ordered the foreclosure and sale of the

property. Subsequently, the subject property was appraised at $180,000. The court

determined the total amount due on the subject property, including current and estimated

taxes and costs, to be $26,283.35. The sheriff was ordered to advertise and sell the

subject property in accordance with R.C. 5721.19 and 5722.03. Notice was duly issued

that “sale of the parcel would be public, for cash, and would be sold to the highest bidder

with a bid sufficient to satisfy the ‘Minimum Bid’ of two-thirds (2/3) of the appraised value

of said premises, in the minimum amount of $120,000.00.”

       {¶8}   Public sales were held on December 1 and 15, 2022. No bids were received

at either sale.

       {¶9}   On January 17, 2023, Lamancusa moved for an order of confirmation of

sale and an order “that the subject property be transferred directly to Trumbull County

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Case No. 2024-T-0080
Land Reutilization Corporation, in accordance with R.C. 5721.19 and 5722.03.” The trial

court issued the requested orders on the same date.

       {¶10} On August 5, 2024, Zeena filed a Motion to Vacate on the following grounds:

The named defendant, Leslie C. Webb, died on September 25, 2017. As a judgment

cannot be taken against a deceased party, the foreclosure was improper. Secondly, as

the value of the property was significantly greater than the amount of delinquent tax

liability, the transfer of the subject property to the land bank constituted a taking without

just compensation. Finally, neither the filing of the action nor decree of foreclosure was

served upon Webb’s next of kin. Zeena sought “to vacate [the] judgment, apply as a

fiduciary of the estate of her late father, Leslie C. Webb, sell the property, and distribute

the proceeds to the next of kin of Leslie C. Webb after paying the back taxes upon sale.”

       {¶11} On September 4, 2024, the trial court denied the Motion to Vacate. The

court found: “The estate of Leslie C. Webb was a necessary party in the foreclosure

action. They [sic] were, in fact, listed and served.” The court also found that the “motion

fails to demonstrate with any facts or evidentiary material reasons she should be entitled

to relief; rather, the motion merely makes bare allegations of entitlement to relief.”

Assignments of Error

       {¶12} On October 4, 2024, Zeena filed a Notice of Appeal. On appeal, she raises

the following assignments of error:

       {¶13} “[1.] The Court erred in ruling that proper service was made on the parties

at interest, specifically the Estate of Leslie C. Webb was properly served.”

       {¶14} “[2.] The Court erred in allowing service by publication, as reasonable

diligence by the Plaintiff had not been specifically shown, or was under false pretenses.”



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Case No. 2024-T-0080
       {¶15} “[3.] The Court erred in not vacating the judgment or holding a hearing when

a constitutional issue of a taking was alleged in the Motion to Vacate.”

Motion to Vacate; Standard of Review

       {¶16} It is well-established that “[a] default judgment is void if service on the

parties is not proper.” McCullough Builders, Inc. v. Waterfield Fin. Corp., 2003-Ohio-

1583, ¶ 14 (11th Dist.); Tambe v. Montgomery, 

 (12th Dist.).

Accordingly, “a defendant’s motion to vacate a judgment for improper service need not

satisfy the requirements of Civ.R. 60(B).” McCullough Builders at ¶ 14; Corrao v. Bennett,

 (8th Dist.) (“a party who asserts improper service does not need to

meet the requirements of Civ.R. 60(B) because a default judgment rendered by a court

without obtaining proper service over the defendant is void and the defendant is entitled

to vacation of the judgment”). “When a judgment is challenged on the basis that the trial

court lacked jurisdiction for failure of service, the proper course for the trial court to take

is to hold a hearing on the motion.” Huntington Natl. Bank v. Dixon, 

 (8th Dist.).

       {¶17} “[T]he abuse of discretion standard applies 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.); Malaj v. Abeid, 

 (8th Dist.).

Service by Publication

       {¶18} Service by publication is statutorily authorized “[w]hen it appears by affidavit

that the name and residence of a necessary party are unknown to the plaintiff.” R.C.



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Case No. 2024-T-0080
2703.24; Fletcher v. First Natl. Bank of Zanesville, 

, 214 (1958) (R.C.

2703.24 authorizes “the usual procedure of obtaining service by publication on the

decedent’s ‘unknown heirs’”). “Before service by publication can be made, an affidavit of

the party requesting service or that party’s counsel shall be filed with the court. The

affidavit shall aver that service of summons cannot be made because the residence of

the party to be served is unknown to the affiant, all of the efforts made on behalf of the

party to ascertain the residence of the party to be served, and that the residence of the

party to be served cannot be ascertained with reasonable diligence.” Civ.R. 4.4(A)(1).

       {¶19} “[R]easonable diligence requires taking steps which an individual of

ordinary prudence would reasonably expect to be successful in locating a defendant’s

address.” In re Thompkins, 

, ¶ 25, citing Sizemore v. Smith, 

 (1983). “‘[W]hat constitutes reasonable diligence will depend on the facts and

circumstances of each particular case.’” 

 citing 

.

       {¶20} With respect to service, it is well-established that service by publication is a

method of “last resort” that requires “strict compliance” with the requirements of Civil Rule

4.4(A). Anstaett v. Benjamin, 

, ¶ 15 (1st Dist.); Patrick v. Ellman, 2020-

Ohio-3312, ¶ 18 (12th Dist.). “Filing an affidavit with averments that comply with Civ.R.

4.4(A)(1) ‘gives rise to a rebuttable presumption that reasonable diligence was

exercised.’” State v. Arroyo-Garcia, 

 (10th Dist.), citing 

.   “The averments in the affidavit, however, are not conclusive.”           

   “When

‘challenged’ by the defendant, the plaintiff ‘must support the fact that he or she used

reasonable diligence.’” 

 citing 

. Where there is a “deficiency of service

by publication to provide actual notice of pending litigation, due process demands that a



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Case No. 2024-T-0080
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.”

Patrick at ¶ 24.

       {¶21} We reiterate that, as grounds for vacating the default judgment, Zeena

argued in her Motion to Vacate a failure of service, i.e., she neither received the Complaint

nor the Decree of Foreclosure, and that service by publication “would not have been

sufficient being out of state.” This is sufficient to challenge the entry of default judgment.

Without proper service of process, a court lacks jurisdiction to enter a judgment against

a party. The dissenting opinion would have Zeena forfeit her right to challenge the

underlying judgment because she did not specifically challenge the sufficiency of the

affidavit in support of service by publication. Infra at ¶ 43. For purposes of vacating the

default judgment, it is enough to allege the failure of service. Regardless of why Zeena

believes she failed to receive service, it is “due process” which “requires the method of

service to be ‘reasonably calculated’ to inform the interested party of the pending action.”

Lacy v. State, 

 (11th Dist.).

       {¶22} The dissenting opinion would further deny Zeena relief on the grounds that

the affidavit in support of service by publication “necessarily meets the criteria of Civ.R.

4.4.” Infra at ¶ 48. The deficiencies of the affidavit are discussed below. For present

purposes, even if the affidavit satisfied the criteria of Civil Rule 4.4, it would only create a

rebuttable presumption of proper service. 

 (“[a] presumption of proper service

exists when the record reflects that the civil rules pertaining to service of process have

been followed”).       The dissenting opinion, however, would treat this rebuttable

presumption as conclusive with respect to sufficiency of service and so deny Zeena the



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Case No. 2024-T-0080
opportunity of challenging service. This is contrary to the authorities cited both above

and below. 

; Patrick at ¶ 24.

       {¶23} Finally, we are fully cognizant of the principle of appellate procedure that

review should be “limited to the issues actually raised and litigated in the trial court.” Infra

at ¶ 42. The import of our decision is that Zeena did not have the opportunity to raise and

litigate any issues relating to the foreclosure, rather than what the relative merit or lack of

merit of whatever those issues may be. She asserts that she did not receive notice of the

foreclosure. If so, she certainly did not have the opportunity to raise issues.

       {¶24} Moreover, the trial court denied her even the opportunity of challenging

notice (as explained below, there is only a presumption of valid service) and did so for

improper reasons. The court stated that Zeena failed “to demonstrate with any facts or

evidentiary material reasons she should be entitled to relief.” However, “a movant’s

burden is only to allege a meritorious defense, not to prove that he will prevail on that

defense.” Rose Chevrolet, Inc. v. Adams, 

 (1988). Furthermore, “[i]t

is true that neither Civ.R. 60(B) itself nor any decision from this court has required the

movant to submit evidence, in the form of affidavits or otherwise, in support of the motion,

although such evidence is certainly advisable in most cases.” 

. Accordingly,

it was improper to deny Zeena’s Motion because it was not supported by evidentiary

materials.

       {¶25} The trial court also makes the erroneous claim that “the estate of Leslie C.

Webb was …, in fact, listed and served.” This will be discussed more fully below. For

the present, it is enough that Zeena did not have the opportunity to challenge service (for




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Case No. 2024-T-0080
specious reasons), and, therefore, did not have the opportunity to challenge the

foreclosure on the merits.

First and Second Assignments of Error: the Trial Court Abused its Discretion by
Denying the Motion to Vacate

       {¶26} In her first two assignments of error, Zeena argues that service by

publication in the present case was improper. Whether the unknown heirs of Leslie C.

Webb were properly serviced by publication is not for this court to decide on appeal in the

first instance. However, the trial court did err and abuse its discretion by denying the

Motion to Vacate so that Lamancusa was not required to demonstrate the exercise of

reasonable diligence in discovering the identity of the unknown heirs. Additionally, the

trial court erred by finding that the non-existent estate of Leslie C. Webb was properly

served.

       {¶27} As explained above, the affidavit submitted by Lamancusa in support of

service by publication only created a rebuttable presumption that reasonable diligence

was exercised in ascertaining the residence of the unknown heirs. Since publication

failed to provide actual service, the trial court should have granted the Motion to Vacate.

The affidavit filed by the Secretary for the Attorney of the Treasurer’s Office in the present

case does not, on its face, demonstrate the exercise of reasonable diligence to locate

Webb, his spouse, heirs, next of kin, and/or administrators of his estate. The affidavit

describes the “reasonable diligence” exercised by the following parenthetical: “(for reason

certified mail returned by postmaster for attempt not known and unable to forward, local

telephone directory, Warren/Youngstown Regional Telephone Book, Public records




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Case No. 2024-T-0080
through the Internet & Intranet1).” This explanation is completely generic and describes

the efforts that would be made in any set of circumstances to demonstrate reasonable

diligence2. There is nothing in the affidavit that enlightens or applies to the facts and

circumstances of this particular case – no addresses, names, specific public records, or

anything about how the internet (and intranet) were utilized to identify persons who might

have an interest in the subject property.

        {¶28} On appeal, Zeena argues that a simple internet search of Leslie C. Webb’s

name produces his obituary and next of kin.                   Of course, there is no evidence to

substantiate her claim nor could there be in the absence of a hearing on the issue. The

law disfavors default judgments and service by publication (in 2025 to say the least) is

admittedly the last resort. Given these facts and the nature of the underlying issue (the

forfeiture of property rights), the interests of justice strongly favor having Lamancusa

substantiate his claims that reasonable diligence was exercised. The trial court should

have granted Zeena’s motion and, at the least, set the matter for hearing. Patrick, 2020-

Ohio-3312, at ¶ 25 (12th Dist.) (where publication failed to provide actual notice, “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”).

        {¶29} We further note that, in denying the Motion to Vacate, the trial court stated

that “[t]he estate of Leslie C. Webb was a necessary party in the foreclosure action” and

“[t]hey were, in fact, listed and served.” Recognizing the discrepancy, Zeena correctly



1. At oral argument it was explained that “Intranet” refers to the prosecutor’s “interoffice” database,
excluding Google and other public records.
2. It is difficult to imagine how consulting telephone directories could reasonably be expected to inform one
whether Webb was living and, if he was not, who the beneficiaries would be.

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Case No. 2024-T-0080
argues on appeal that “the estate cannot be properly served unless the fiduciary who has

been duly appointed is served.” The court’s ruling that Webb’s non-existent estate was

not only a necessary party but properly served is also error. Baker v. McKnight, 

 (1983) (“[i]t is accepted law that an action may only be brought against a

party who actually or legally exists”) (citation omitted). An estate that does not exist

cannot be served, and a necessary, non-existing estate cannot be served unless it is first

duly created and opened. Perry v. Eagle-Picher Indus., Inc., 

(1990) (“[i]f a decedent’s personal representative has not been substituted for the

decedent, the end result is a lawsuit with only one party”). Accordingly, Zeena properly

urged the creation of an estate for Leslie C. Webb as part of the relief in the Motion to

Vacate.

       {¶30} The dissenting opinion disputes the necessity of creating an estate for

Webb (as well as actually serving his spouse, heirs, or next of kin) on the grounds that a

tax foreclosure case is an in rem proceeding. The dissenting opinion relies on authority

for the proposition that, when the complaint does not seek a money judgment against the

decedent, the only necessary parties are the persons with an interest in the property.

Infra at ¶ 58, citing Chaco Credit Union, 2012-Ohio 1123, ¶ 12 (12th Dist.).

       {¶31} In a typical mortgage case, the dissenting opinion’s position might be valid

in that the interest of any beneficiaries of the estate would be protected. See R.C.

5721.20 (“any residue of moneys from the sale or foreclosure of lands … unclaimed by

such owner within sixty days from its receipt, shall be paid into the county treasury” and

“[t]he treasurer shall retain such excess in the treasury for the proper owner of such lands

upon which the foreclosure was had, and upon demand by such owner, within three years



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Case No. 2024-T-0080
from the date of receipt”). Here, however, the significant excess equity was not held for

the beneficiaries as ordinarily would happen in an in rem proceeding. Instead, the full

value of the unbid upon property was forfeit to the land bank, without any provision for the

owners or heirs to the excess equity. In the present case, therefore, reliance on the in

rem nature of the proceedings is neither valid nor just. Because the present proceedings

actually extinguished whatever interest the potential beneficiaries of the estate would

have had, an estate should have been created.

        {¶32} The first two assignments of error are with merit.

Third Assignment of Error: Zeena Raises a Legitimate Issue as to Whether the
Transfer of the Property to the Land Bank Constitutes an Unconstitutional Taking

        {¶33} In the third assignment of error, Zeena argues that “the government should

not be allowed to unilaterally transfer property owned by an estate to the land bank without

any compensation received by the estate.”                   Given the disposition of the first two

assignments of error, this issue is not appropriate for review at the present time 3.

However, the question of whether the transfer of property to the land bank in

circumstances such as the present ones is legitimately asked and merits comment.

        {¶34} There have been several significant federal cases in recent years

addressing the constitutional implications of land bank programs in the context of the

takings clause. In Tyler v. Hennepin Cty., Minnesota, 

 (2023), a taxpayer

brought suit against the county government after the county had forced the sale of her




3. The dissenting opinion agrees that this issue is not ripe for review, but believes that any discussion of it
is “advisory and inappropriate” given its “hypothetical nature.” On the contrary, while the service issue is
dispositive of the appeal, it is a fact that, at present, Zeena’s interest and that of any other potential
beneficiaries of Webb’s estate in the subject property is forfeit. If she ultimately succeeds in vacating the
underlying foreclosure a section 1983 becomes unnecessary. Certainly, it makes more sense to avoid the
harm (the forfeiture) rather than have to repair it (by a section 1983 action).

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Case No. 2024-T-0080
condominium to satisfy an outstanding property tax bill. The property sold for an amount

in excess of the tax liability and the county retained the full proceeds of the sale which,

under state law, it was entitled to do. The question before the United States Supreme

Court was “whether that remaining value [the surplus equity] is property under the Takings

Clause, protected from uncompensated appropriation by the State.”            Id. at 638.   A

unanimous court recognized that property “taxes are not themselves a taking,” and that

the states “may impose interest and late fees” as well as “seize and sell property, including

land, to recover the amount owed.” Id. at 637-638. However, the United States Supreme

Court ruled that the states did not have any right to retain amounts in excess of what was

owed:

              The County had the power to sell [the taxpayer’s] home to recover
              the unpaid property taxes. But it could not use the toehold of the tax
              debt to confiscate more property than was due. By doing so, it
              effected a ‘classic taking in which the government directly
              appropriates private property for its own use.’ Tahoe-Sierra
              Preservation Council, Inc. v. Tahoe Regional Planning Agency, 

, 

, 

 (2002) (internal
              quotation marks and alteration omitted). [The taxpayer] has stated a
              claim under the Takings Clause and is entitled to just compensation.

(Emphasis added.) Id. at 639.

        {¶35} The Sixth Circuit in Harrison v. Montgomery Cty., Ohio, 

 (6th

Cir.), reached a similar conclusion in a case, like the present one, involving the transfer

of property to the county land reutilization corporation or land bank. The plaintiff owned

an interest in property belonging to a deceased relative. The property was foreclosed for

unpaid property taxes and transferred to the land bank although the fair market value of

the property exceeded the tax liability. The plaintiff filed a section 1983 action in federal

court “alleging that the County violated the federal and state takings clauses by



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Case No. 2024-T-0080
extinguishing her surplus equity interest without providing just compensation.” 

;

Knick v. Twp. of Scott, Pennsylvania, 

 (2019) (“someone whose

property has been taken by a local government has a claim under § 1983 for a ‘deprivation

of [a] right[ ] ... secured by the Constitution’ that he may bring upon the taking in federal

court”). The suit was dismissed, inter alia, under the Tax Injunction Act which prohibits

federal courts from interfering with the assessment, levy or collection of taxes under state

law. The Sixth Circuit determined that the suit did not interfere with the exercise of Ohio’s

taxing power:

                [The plaintiff] does not challenge Ohio’s ‘collection’ of delinquent
                taxes. 

. She does not seek to halt foreclosures of
                tax-delinquent property or even to get her home back. [She]
                challenges only Ohio’s seizure of surplus equity, an amount in
                excess of taxes owed. Because Ohio’s seizure and extinguishment
                of surplus equity is not an ‘act of obtaining payment of taxes
                due,’ [Direct Marketing Assn. v.] Brohl, 575 U.S. [1,] 10, 

 [2016], the Act does not bar [the plaintiff’s] claims.

Id. at 651-652.

       {¶36} The Tyler and Harrison cases clearly establish that Zeena’s claim that the

transfer of her father’s property to the county land bank without compensation constitutes

an unconstitutional taking is viable. 

 (“[i]f a local government takes private

property without paying for it, that government has violated the Fifth Amendment—just as

the Takings Clause says—without regard to subsequent state court proceedings”). In the

present case, the property was transferred to the Trumbull County Land Reutilization

Corporation pursuant to R.C. 5722.03(D) which provides: “If any nonproductive land

selected by an electing subdivision is advertised and offered for sale at one sale pursuant

to this section but is not sold for want of a minimum bid, the electing subdivision that

selected the nonproductive land shall be deemed to have submitted the winning bid at

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Case No. 2024-T-0080
such sale, and the land is deemed sold to the electing subdivision for no consideration

other than the amounts charged [for fees and costs] under divisions (E) and (F) of this

section.” (Emphasis added.) The statute itself provides for local government to take

private property without paying for it – according to Chief Justice Roberts, “a classic

taking.” Tyler, 598 U.S. at 639.

       {¶37} Programs such as Ohio’s land bank program have been strongly

denounced as “home equity theft”: “Equity is a protected property interest. State counties

cannot be permitted to simply forego a property sale and extinguish the homeowner’s

surplus equity by transferring the property to a land bank. The Sixth Circuit’s persuasive

reasoning in Harrison is an appropriate model for other federal courts to provide a clear

path for property owners to recover their confiscated surplus equity.” Black, Taking the

American Dream - A Remedy for Home Equity Theft Following the Sixth Circuit’s Ruling

in Harrison v. Montgomery County, Ohio, 91 U.Cin.L.Rev. 829, 855 (2023). There is even

a website dedicated to challenging such laws. See homeequitytheft.org. One need not

agree with such a characterization of land bank laws to appreciate the potential for their

abuse.   Taking the present case for example, the decedent Webb’s property was

auctioned with a minimum bid amount of $120,000, representing two-thirds of the fair

market value of the property. Ostensibly, as conceded by Lamancusa at oral argument,

the minimum bid amount is required to protect the equity in the property. However, when

no bids were received, the whole of the property was forfeit despite the actual tax liability

being far below the statutorily mandated minimum bid. When coupled with the fact that




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Case No. 2024-T-0080
service was effected by recourse to ineffectual service by publication, the justice of

Zeena’s complaint is manifest4.

        {¶38} The third assignment of error is without merit.

        {¶39} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, denying Zeena’s Motion to Vacate Judgment is reversed and this matter

is remanded for further proceedings consistent with this opinion. Costs to be taxed

against the appellee.



MATT LYNCH, P.J., concurs,

ROBERT J. PATTON, J., dissents with a Dissenting Opinion.



                      _________________________________________________




ROBERT J. PATTON, J., dissents with a Dissenting Opinion.

        {¶40} I respectfully dissent from the majority’s disposition of Zeena’s appeal and

would affirm the judgment of the Trumbull County Court of Common Pleas.

        {¶41} In the court below, nearly 19 months after the confirmation of sale of real

property located at 8700 Delin Thomas Road, Kinsman, OH 44428 (the “Property”),

Zeena sought to vacate the decree of foreclosure and confirmation of sale on the grounds

of improper service and an alleged unconstitutional taking. Zeena’s motion alleged three

grounds for relief: 1) judgment was improper against Leslie C. Webb (“decedent”)


4. We note that House Bill 315, effective April 3, 2025, essentially prevents the forfeiture of home equity
as has occurred in the present case by requiring that “the excess proceeds [from the sale of property by a
land reutilization corporation] shall be treated in the same manner as surplus funds under section 5721.20
of the Revised Code.” R.C. 323.78(D)(2).

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Case No. 2024-T-0080
because he was deceased; 2) the transfer of the Property to the Trumbull County Land

Bank (“Land Bank”) where the value of the Property exceeded the tax debt amounted to

an unconstitutional taking; and 3) service by publication was not sufficient against out-of-

state next of kin.

                     Zeena Failed to Argue Sufficiency of the Affidavit

       {¶42} Conspicuously absent from Zeena’s motion was any claim that the affidavit

filed in support of the Treasurer’s motion for service by publication was insufficient.

Generally, appellate courts will not consider, on appeal, issues not presented to the trial

court. Washington Mut. Bank v. Cowles, 

 (11th Dist.), citing Brown

v. Gabram, 

, ¶ 22 (11th Dist.). Indeed, this court’s review is limited to the

issues actually raised and litigated in the trial court.

       {¶43} Zeena argued, in a single sentence, in her motion to vacate in the trial court,

that service by publication “would not have been sufficient being out of state.” As Zeena

failed to raise the sufficiency of the affidavit in her motion in the court below, that issue is

not properly before this court. Natl. City Bank v. Brousil, 

, ¶ 28 (11th Dist.)

(fraud and promissory estoppel were not raised in the Civ.R. 60(B) motion made at the

trial court level and as a result, were not properly before the court and were considered

waived by appellants). See Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Stds. and

Bldg. Appeals, 

 (1975) (“errors which arise during the course of a

trial, which are not brought to the attention of the trial court by objection or otherwise, are

waived and may not be raised upon appeal”). The majority ignores this well-established

principle. Instead, the majority concludes that the trial court erred when it denied Zeena’s

motion to vacate and failed to require the Treasurer to demonstrate the exercise of



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reasonable diligence in discovering the identity of the unknown heirs. The majority’s

position would be accurate had Zeena raised an issue with the sufficiency of the affidavit

and argued that the Treasurer did not exercise reasonable diligence in ascertaining the

name or location of the decedent’s next of kin. Zeena did not raise either issue in the court

below, thus the trial court did not address it. Neither should we.

       {¶44} The majority ignores the application of the doctrine of waiver through

repeated accusations that: “the dissent would have Zeena forfeit her right to challenge

the underlying judgment . . . ”; “[t]he dissent would further deny Zeena relief on the

grounds . . . ”; and “[t]he dissent, however would treat this rebuttable presumption as

conclusive with respect to sufficiency of service and so deny Zeena the opportunity of

challenging service.” Majority opinion, ¶ 21-22. This dissent is rooted in the time-honored

appellate principle embodied in the doctrine of waiver that requires a litigant to first raise

an argument to a trial court, thereby giving a trial judge an opportunity to consider and

make a ruling, before appellate review. In doing so, the majority not only ignores well-

established appellate principles, but this court’s own precedent. Dolan v. Dolan, 2002-

Ohio-2440, ¶ 7 (11th Dist.), citing Stores Realty Co., 

 (1975). See

Cawley JV, L.L.C. v. Wall St. Recycling, L.L.C., 

, ¶ 17 (8th Dist.).

       {¶45} Even if we disregard this well-established appellate principle, which the

majority chooses to do, I would conclude that the affidavit presented by the Treasurer

detailed the steps taken to ascertain the addresses and that such steps were sufficient to

obtain service by publication, absent any argument to the contrary in the court below.




                                       PAGE 18 OF 31

Case No. 2024-T-0080
                          Service by Publication Was Proper

       {¶46} Before requesting service by publication, a plaintiff must exercise

reasonable diligence, which can be established when the plaintiff “tak[es] steps which an

individual of ordinary prudence would reasonably expect to be successful in locating a

defendant's address.” Sizemore v. Smith, 

 (1983); accord In re

Thompkins, 

, ¶ 25-26. The Supreme Court of Ohio did not establish a

mandatory checklist, but concluded that counsel must use common and readily available

sources when looking for the defendant's residence. 

; 

.

A plaintiff is required to conduct a reasonably diligent search, not an exhaustive search.

See Hein Bros. v. Reynolds, 

, ¶ 92 (7th Dist.). The determination

regarding whether a plaintiff exercised reasonable diligence will be based on the

individual facts of each case. 

. In sum, Ohio law requires reasonable

diligence in a search for locating and naming defendants rather than extraordinary efforts.

       {¶47} In a factually similar case, the Twelfth District Court of Appeals concluded

that “[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.” Patrick v. Ellman, 

 (12th Dist.), citing Sizemore at

332; In re Adoption of Goldberg, 

, *3 (12th Dist. Sept. 17, 2001). The

court of appeals explained that:

              [S]ervice 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.



                                      PAGE 19 OF 31

Case No. 2024-T-0080


 Accordingly, service by publication is the final option when all other avenues for service

have been exhausted.

       {¶48} Notably, the Twelfth District did not find the judgment to be void. Instead,

the court of appeals remanded the matter to the trial court “to conduct a hearing to

determine if the Brown County Treasurer exercised reasonable diligence in identifying

[the decedent]’s unknown heirs and ascertaining their residences.” 

. The

court of appeals noted that the Brown County Treasurer’s assertion in the appellate brief

“that it had sought to identify Wanda's unknown heirs by ‘searching the probate court’ and

‘the internet for an obituary’” was “not supported by the record.” Id. at ¶ 23.

              “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.”

Id. In the case sub judice, the affidavit submitted with the Treasurer’s motion for service

by publication contained more than a conclusory averment that a party's name and

residence could not be ascertained. The affidavit filed on March 21, 2022, provided that

“for reason certified mail returned by postmaster for attempt not known and unable to

forward, local telephone directory, Warren/Youngstown Regional Telephone Book, Public

records through the Internet & Intranet,” the usual place of residence for decedent and

unknown spouse, heirs, next of kin and administrators of decedent’s estate could not be

ascertained. The affidavit established that the Treasurer used common and readily

available sources, including the internet, to attempt to identify an address. As the affidavit




                                       PAGE 20 OF 31

Case No. 2024-T-0080
included these specific steps taken by the Treasurer, the affidavit necessarily meets the

criteria of Civ.R. 4.4 which requires “all of the efforts” be contained in the affidavit.

       {¶49} “A sufficient averment in the affidavit for publication filed under Civ.R. 4.4(A)

‘gives rise to a rebuttable presumption that reasonable diligence was exercised.’” Ellman,

 (12th Dist.), quoting Sizemore, 

 (1983),

citing Am. Tax Funding, L.L.C. v. Robertson Sandusky Properties, 

, ¶ 28

(7th Dist.). “When ‘challenged’ by the defendant, the plaintiff must ‘support the fact that

he or she used reasonable diligence.’” (Emphasis added). 

 quoting 

;

Am. Tax Funding at ¶ 28. Once challenged, “a defendant may then ‘bring in independent

evidence to contradict the reasonable diligence of the plaintiff's search[.]’” 

 quoting

Brooks v. Rollins, 

 (1984).

       {¶50} Lamancusa, as Trumbull County Treasurer, was required to conduct a

reasonably diligent search, not an exhaustive search. The affidavit presented by the

Treasurer detailed the efforts undertaken, which gave rise to a rebuttable presumption

that the Treasurer exercised reasonable diligence in attempting to ascertain he addresses

of the unknown heirs. Zeena did not challenge the affidavit or the rebuttable presumption

that reasonable diligence was exercised and therefore such claim is now waived. See

Franks v. Reynolds, 

 (7th Dist.) (“finding that appellants waived a

claim regarding the staleness of diligence of a search conducted by failing to raise the

claim in the trial court, and declining to find plain error”); see also In re D.S., 2009-Ohio-

3167, ¶ 18 (9th Dist.) (“Because Mother failed to challenge service in the trial court, she

failed to rebut the presumption that CSB had used reasonable diligence to locate Mother

at her current address. Service by publication was therefore valid.”).



                                        PAGE 21 OF 31

Case No. 2024-T-0080
       {¶51} Indeed, Zeena only argued that service by publication was improper as to

out-of-state next of kin. This single statement falls short of making a credible challenge to

the averments made by the Treasurer in support of the request for service by publication.

A plain reading of Civ.R. 4.4 indicates the rule applies where the residence is not known.

Only if the residence is known and the party is not a resident of Ohio does the court look

to Civ.R. 4.3(B). Therefore, service by publication is permissible and proper when the

residence is unknown, whether that residence is somewhere in Ohio or in another state.

       {¶52} Further, “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.” R.C. 5721.18(B). That subsection

further requires that the prosecuting attorney cause a title search to be conducted for the

purpose of identifying any lienholders or other persons with interests in the property

subject to foreclosure, prior to filing such an action in rem.

       {¶53} Additionally, R.C. 5721.18(B) provides:

              After the final newspaper publication, the publisher shall file with the
              clerk of the court an affidavit stating the fact of the publication and
              including a copy of the notice of foreclosure as published. Two weeks
              after the clerk causes the notice to be published on the selected web
              site, if proceeding under division (B)(1)(b) of this section, the
              prosecuting attorney shall file with the clerk an affidavit stating the
              fact of the publication and including a copy of the notice of
              foreclosure and forfeiture as published. Service of process for
              purposes of the action in rem shall be considered as complete on the
              date of the third newspaper publication or the date that is two weeks
              after the clerk causes the notice to be published on the selected web
              site, as applicable.

Therefore, the claim that Zeena “neither received the complaint nor the decree of

foreclosure” does little to support the majority’s position the Zeena was denied an

opportunity to assert her claims. It is undisputed that Zeena did not receive either the

                                        PAGE 22 OF 31

Case No. 2024-T-0080
complaint or the decree to her mailbox. Instead, Zeena was served with the complaint by

way of publication and service was completed at the expiration of three weeks after the

date of the first publication.

       {¶54} Accordingly, the question before the court is not whether Zeena was served,

but whether service by publication was proper. Contrary to the majority’s position, upon

filing her motion to vacate, Zeena had the opportunity to challenge the sufficiency of the

affidavit and rebut the presumption of reasonable diligence exercised by the Treasurer.

However, she did not do so in her motion.

       {¶55} While the majority takes issue with the “generic” nature of the affidavit, any

alleged inadequacies of the affidavit should have been raised by Zeena in the court below.

Zeena was required to actually challenge the sufficiency of the affidavit to warrant a

hearing in this case. See Corrao v. Bennett, 

 (8th Dist.) (finding that

the trial court properly denied the motion to vacate default judgment without conducting

an evidentiary hearing because there were no operative facts warranting relief regarding

the efforts utilized to ascertain the address of defendant). The Treasurer’s affidavit was

sufficient to establish a rebuttable presumption that reasonable diligence was exercised.

As Zeena did not challenge the presumption, I would conclude that the trial court did not

err or abuse its discretion in denying Zeena’s motion to vacate without affording her a

hearing as there was no legal requirement to do so based on the claims actually raised

in Zeena’s motion.

                       Decedent’s Estate Was Not a Necessary Party

       {¶56} Zeena asserted, in support of her motion to vacate, that the complaint could

not name the decedent as a defendant because he was deceased. Zeena also



                                      PAGE 23 OF 31

Case No. 2024-T-0080
suggested, without any legal authority, that the Treasurer was required to initiate the

probate process when it sought to foreclose on the Property of a deceased individual

where an estate had not yet been opened.

       {¶57} It is undisputed that Leslie C. Webb died in September 2017, over four years

before the filing of the tax foreclosure complaint. Generally, a decedent cannot be a party

to an action because a party must actually or legally exist. Baker v. McKnight, 

 (1983). See Chaco Credit Union, Inc. v. Perry, 

, ¶ 12

(12th Dist.). Zeena alleged that in order for the trial court to foreclose on the Property, the

Treasurer was required to serve the fiduciary of Webb’s estate. Zeena cited Lake Ski I-

80 v. Habowski, 

 (11th Dist.), in support of her position. Habowski is

inapplicable to the case at bar. In Habowski, this court determined that the trial court

lacked jurisdiction to enter judgment against a deceased property owner prior to the

substitution of the administrator of the owner's estate. The complaint in Habowski did not

name any other defendant in the case, wherein Lake Ski I-80 sought to collect damages

from Habowski in the amount of $62,500. Id. at ¶ 6. Habowski is distinguishable from the

case sub judice. Here, the Treasurer filed the foreclosure action naming the decedent

and his unknown heirs and did not seek to collect damages from the decedent.

       {¶58} This is a tax foreclosure case and an in rem proceeding. R.C. 5721.18(B).

              [T]axes on real estate are not an estate debt, “[a] proceeding to
              foreclose a tax lien … is essentially one in rem and not in personam;
              it operates on the land itself and not on the title of the one in whose
              name the property is listed for taxation.” Hunter v. Grier (1962), 

, 161, 

 (citations omitted). This is
              because “a proceeding to foreclose a tax lien on property
              materializes only when the nonpayment of taxes has extended over
              a period of years.” Id. at 162, 

. Since such
              proceedings “are not … proceedings against parties,” but rather
              “have regard to the land itself[,] … [any time] the owners are named

                                        PAGE 24 OF 31

Case No. 2024-T-0080
              in the proceedings and personal notice is provided … [it is done]
              rather from tenderness to their interests … than from any necessity
              ….” Id. at 161-162, 

 (citation omitted).

Long v. Long, 

 (11th Dist.). Therefore, where no estate has been

opened, the naming of the unknown heirs and devisees of the decedent is sufficient in a

foreclosure case. CapitalSource Bank v. Hnatiuk, 

 (8th Dist.), citing

BAC Home Loans Servicing, L.P. v. Komorowski, 

 (8th Dist.); see

CitiMortgage, Inc. v. Bumphus, 

, ¶ 25 (6th Dist.). Notice to unknown heirs

is all that is required when a foreclosure action is one in rem and an unopened estate is

not a necessary party. Chaco Credit Union, Inc. at ¶ 12.

       {¶59} In Chaco Credit Union, Inc., the credit union filed a complaint in foreclosure

against Mary Ellen Perry. Perry had died four months prior to the filing of the complaint

and no estate was opened following her death. Id. at ¶ 2-3. The complaint named Perry

along with her daughter, Tonya Payne, and Perry’s “[u]nknown heirs, legatees, devisees,

executors, executrixes, administrators, administratrixes, and assignees.” Id. at ¶ 4. Payne

filed a motion to dismiss in the trial court and asserted that the foreclosure action was a

nullity because the action was brought against a deceased person instead of Perry’s

unopened estate. Id. at ¶ 11. Perry’s motion was denied and she appealed.

       {¶60} The Twelfth District Court of Appeals explained that “‘[a] mortgagee is not

required to make a deceased mortgagor's estate a party unless it seeks to hold the estate

liable for the debt.’ Ohio Sav. Bank v. Virden, 9th Dist. App. No. 17885, 

,

*2 (Feb. 26, 1997), citing McMahon v. Davis, 

, 

, *3 (1899).

In other words, ‘[i]t is only when the mortgagee seeks a money judgment that the estate

must be made a party to the action.’ CitiMortgage, Inc. v. Bumphus, 6th Dist. No. E–10–



                                      PAGE 25 OF 31

Case No. 2024-T-0080
066, 2011–Ohio–4858, ¶ 25.” Chaco Credit Union Inc. at ¶ 12. Because Chaco Credit

Union was not seeking to hold either the deceased party or their estate liable for a debt,

the Twelfth District Court of Appeals concluded that “the only necessary parties to the

foreclosure action were Perry's ‘heirs, devisees, grantees, or assignee[s], for these are

the only persons interested in the equity that is to be foreclosed.’” Id. at ¶ 14, citing Ohio

Sav. Bank v. Virden, 

, *2 (9th Dist. Feb. 26, 1997); see CitiMortgage, Inc.

v. Bumphus, 

, ¶ 26–27 (6th Dist.); Rinehart v. Wilkes, 

,

*2 (10th Dist. May 23, 1985).

       {¶61} Similarly, in the case sub judice, the Treasurer was not seeking to hold the

decedent or his estate liable for a debt. The complaint in foreclosure named the

decedent’s unknown heirs, which according to Zeena, included her. As no estate was

opened in this case, the Treasurer named the appropriate parties to the underlying

foreclosure action. The tax foreclosure case is an in rem proceeding which operates on

the land itself. The trial court clearly had jurisdiction over the action because the Property

was located in Trumbull County, Ohio. There is no statutory or legal obligation that the

Treasurer open an estate for a deceased land owner prior to pursuing a tax foreclosure.

       {¶62} Accordingly, the trial court properly concluded that the naming of the

decedent’s unknown heirs was sufficient in this case. It is inconsequential that the trial

court stated decedent’s “estate” was served as all necessary parties to the underlying

action were named in the complaint.

                Takings Claim Is Not Grounds for a Motion to Vacate

       {¶63} A property owner’s takings claim becomes ripe when the property is

transferred and where there is a retention of excess funds, or in this case, excess equity.



                                       PAGE 26 OF 31

Case No. 2024-T-0080
While the majority posits that Zeena’s unconstitutional takings claim is viable, the majority

ignores a crucial point. A takings claim, by its very nature, does not arise until the sale or

transfer of property and funds in excess of the amount owed are retained. Therefore, an

unconstitutional taking should be raised in a separate claim in a separate action. It cannot

serve as the basis for a motion to vacate an otherwise procedurally sound and proper

foreclosure case.

       {¶64} “A property owner has an actionable Fifth Amendment takings claim when

the government takes his property without paying for it.” Knick v. Twp. of Scott,

Pennsylvania, 

 (2019). A takings claim may arise in the context of a tax

foreclosure case when the proceeds of the sale exceed the amount owed in taxes or

where there is a loss in equity due to the seizure of the property by the government. In

other words, a property owner’s takings claim becomes ripe when the property is

transferred and there is a retention of excess funds or excess equity. See Harrison v.

Montgomery Cnty., 

 (6th Cir. 2021) (no taking occurred until it became clear

the State would seize plaintiff's surplus equity by transferring title when the foreclosure

was adjudicated).

       {¶65} Zeena’s alleged takings claim would have become ripe at the point of the

confirmation of sale transferring the Property to the Land Bank and should have been

raised in a direct appeal. See State ex rel. US Bank Trust, Natl. Assn. v. Trumbull Cty.,

Bd. of Commrs., 

 (11th Dist.). Zeena did not appeal from the

confirmation of sale. A Civ.R. 60(B) motion is not a substitute for a direct appeal under

these circumstances. Moreover, it is not grounds for a motion to vacate an otherwise valid

in rem tax foreclosure proceeding.



                                       PAGE 27 OF 31

Case No. 2024-T-0080
       {¶66} Due to the hypothetical nature of Zeena’s purported takings claim, the

majority’s discussion on this issue is advisory and inappropriate. While a set of facts may

exist which would allow Zeena to pursue a takings claim, assuming she could establish

standing to bring the claim, those facts are not present in this case, on this record, from

a judgment entry denying a motion to vacate, and the question was not “legitimately

asked.” Avenues exist to prosecute a takings claim, but the avenue is not this appeal.

       {¶67} The cases cited by the majority involve property owners raising federal

takings claims in accordance with 42 U.S.C. 1983, or in actions separate from the

underlying foreclosure action. See Harrison v. Montgomery Cty., Ohio, 

 (6th

Cir. 2021). See also Tyler v. Hennepin Cty., Minnesota, 

, 635 (2023) (a state

court suit which was removed to federal court). None of these cases support or even

suggest that a takings claim is grounds for relief pursuant to Civ.R. 60. Moreover, both

cases involve factually different scenarios.

       {¶68} In Tyler, the owner of a condominium filed a takings claim where state law

provided no means for the disbursement of surplus funds to the property owner after a

foreclosure sale. Tyler at 644. The action was removed from state court. Tyler is both

factually distinguishable and inapplicable. In the instant case, there was no sale, thus no

excess proceeds to disburse. Further, unlike in Minnesota’s statutory framework, Ohio

statutes provide for the disbursement of surplus funds after a foreclosure sale.

       {¶69} In Harrison, the plaintiff alleged a federal takings claim on behalf of herself

and others similarly situated. Harrison argued an unconstitutional taking and loss in equity

after the county board of revision foreclosed on the property in accordance with R.C.

323.65. The United States Court of Appeals for the Sixth Circuit noted “the one option the



                                      PAGE 28 OF 31

Case No. 2024-T-0080
landowner does not have under the statute is to obtain any excess equity in the property

after it goes to the land bank. The Ohio statute offers no way to capture that property

interest.” 

. While procedurally different, there are some parallels that can

be drawn between the process outlined in Harrison and the process employed in this tax

foreclosure action. However, the Sixth Circuit aptly recognized that the route Ohio offers

to property owners for bringing state law takings claims is a writ of mandamus to compel

the county to pay compensation. 

 Neither Tyler nor Harrison stand for the proposition

that such a claim can be used as a mechanism to vacate an otherwise proper foreclosure

action years after a property was transferred to the Land Bank.

        {¶70} While the majority may feel inclined to address the potential for abuse by

county governments by utilizing a land bank to commit “home equity theft,” such abuse

has not been raised or even suggested in this case.5 Despite how tempting it may be to

postulate the fairness or lack of fairness in these cases, Zeena’s claim should be raised

in federal court or in a mandamus action, and it is not appropriately before this court, in

this appeal, on the denial of a motion to vacate a tax foreclosure.

        {¶71} It is this writer’s position that the trial court appropriately denied Zeena’s

belated and unfounded motion to vacate without a hearing. The majority disregards

proper appellate procedure in favor of advancing arguments Zeena failed to raise in the

trial court to find error where there is none. Accordingly, I would affirm the trial court’s




5. The majority recognizes in a footnote that the legislature recently passed House Bill 315, which amended
R.C. 323.78 to include a provision to account for any excess proceeds after a foreclosure sale in tax
foreclosure cases that result in the transfer of the property to the Land Bank. While this provision recognizes
an avenue for relief in cases where the property’s value exceeds the tax obligation, it does not support
Zeena’s assertion that the mere possibility of excess proceeds provides her with sufficient grounds to vacate
the judgment in foreclosure.

                                              PAGE 29 OF 31

Case No. 2024-T-0080
denial of Zeena’s motion to vacate, maintain the procedural integrity of civil tax

foreclosure cases, and limit appellate review only to issues properly raised.

       {¶72} Based on the foregoing, I respectfully dissent.




                                      PAGE 30 OF 31

Case No. 2024-T-0080
                               JUDGMENT ENTRY



       For the reasons stated in the Opinion of this court, the first two assignments of

error are with merit and the third is without merit. The order of this court is that the

judgment of the Trumbull County Court of Common Pleas is reversed and this matter is

remanded for further proceedings consistent with this Opinion.

       Costs to be taxed against appellee.




                                                  JUDGE SCOTT LYNCH



                                             PRESIDING JUDGE MATT LYNCH,
                                                        concurs



                                               JUDGE ROBERT J. PATTON,
                                             dissents with a Dissenting Opinion


           THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

    A certified copy of this opinion and judgment entry shall constitute the mandate
              pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.




                                     PAGE 31 OF 31

Case No. 2024-T-0080