[Cite as Hamilton Cty. Treasurer v. Scott, 2022-Ohio-1467.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

TREASURER, HAMILTON COUNTY, 

OHIO, 

 Plaintiff-Appellant,

 vs.

KENNETH SHANE SCOTT,

 Defendant-Appellee,

 and

JANE DOE, UNKNOWN SPOUSE OF 

KENNETH SHANE SCOTT, et al.,

 Defendants.

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APPEAL NO. C-200438

TRIAL NO. A-1602940

 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 4, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, Michael Florez and Jesse K. 

Daley, Assistant Prosecuting Attorneys, for Plaintiff-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Judge.

{¶1} Plaintiff-appellant Hamilton County Treasurer (“Treasurer”) appeals 

from an entry of the Hamilton County Court of Common Pleas, which ordered the 

distribution of excess proceeds remaining after a judicial sale in a tax foreclosure 

action to defendant-appellee Kenneth Shane Scott. For the following reasons, we 

affirm the judgment of the trial court. 

Procedural and Factual Background

{¶2} On May 19, 2016, Treasurer initiated a tax foreclosure action against 

Scott, the unknown spouse of Scott, and Huntington Bank. Huntington Bank filed an 

answer, asserting an interest in the property “by way of certain mortgages.” Neither 

Scott nor the unknown spouse answered the complaint. 

{¶3} Following the entry of judgment in favor of Treasurer, the trial court 

ordered that the property be sold, and the property was sold on April 27, 2017. A 

decree of confirmation of the sale was entered by the trial court on May 11, 2017, and 

an entry distributing the sale proceeds was entered on June 2, 2017. The sale proceeds 

amounted to $12,700. Per the order of distribution, $1,026.70 was to be paid to the 

clerk of courts for court costs, $6,600.23 was to be paid to Treasurer for real estate

taxes, and $5,073.07 was to be paid to the clerk of courts “to be held until further order 

of the court.” 

{¶4} The excess proceeds were deposited with the clerk of courts on June 29, 

2017. Notice of the excess proceeds was issued via certified mail to Scott and the 

unknown spouse the following day. On August 18, 2017, the certified mail notice to 

the unknown spouse was returned unclaimed and another notice was issued via 

regular mail. On September 11, 2017, the certified mail notice to Scott was returned 

unclaimed and another notice was issued via regular mail. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶5} On August 3, 2020, Treasurer filed a motion for “entry of forfeiture and 

order of disbursement of residue and excess moneys from tax foreclosure” pursuant 

to R.C. 5721.20. At Treasurer’s request, the motion was served on all parties via 

regular mail on August 4, 2020. A hearing on the motion was held before the 

magistrate on August 26, 2020. However, there is no transcript of this hearing in our

record. The magistrate entered a decision on August 28, 2020. In the decision, the 

magistrate noted that Scott appeared at the hearing and requested that the funds be 

released to him. However, the magistrate found that Scott was notified of the excess 

funds via regular mail on September 11, 2017, and found that more than three years 

had passed with no claim made for the funds. Therefore, the magistrate granted 

Treasurer’s motion and ordered that the excess funds be distributed to Treasurer. 

{¶6} Scott filed objections to the magistrate’s decision on September 10, 

2020, arguing that the magistrate’s decision was “contrary to applicable statute” and 

arguing that he did not receive notice of the excess funds. The cause came before the 

trial court on October 6, 2020, and October 27, 2020. Here on appeal, no transcript 

was included in the record of the initial proceeding before the court; however, the 

transcript of the proceeding on October 27, 2020 was included. At the start of this 

transcript, the trial court summarized what had occurred procedurally so far regarding 

the excess funds. In regard to the initial hearing, the transcript indicated that Scott 

obtained new counsel for the objections and indicated that, in addition to arguing that 

he did not receive notice of the excess funds, Scott argued that the applicable time 

period under the statute never started to run because the excess funds remained with 

the clerk and were never transferred to the treasury as required by R.C. 5121.20. 

Because the Treasurer and the court were not prepared to address this statutory 

argument, the cause was continued until October 27, 2020. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶7} At the proceeding on October 27, 2020, Treasurer presented the

testimony of two witnesses, the chief deputy treasurer from the Hamilton County 

Treasurer’s office and the assistant chief deputy from the Hamilton County Clerk of 

Courts-Common Pleas Division, to address whether there was an understanding 

between the clerk’s office and the treasurer’s office about the process for holding such 

excess funds. The chief deputy treasurer testified that the treasurer’s office does not 

hold excess funds from sheriff’s sales and does not have accounts set up to hold 

unclaimed funds. He testified that the clerk of courts holds these funds on behalf of 

the treasurer pursuant to an oral agreement. The assistant chief deputy for the clerk 

of courts also testified that there was an oral agreement for the clerk of courts to hold 

the excess funds from sheriff’s sales and explained the process in Hamilton County for 

holding these funds. First, the sheriff deposits the excess funds with the clerk of courts

per the order of distribution. Then, the clerk of courts holds these funds until further 

order from the court. If someone comes in to claim the funds “within the statutory 

time limit,” the clerk obtains an order from the court to distribute the money to the 

person or entity making the claim. If the money is not claimed “within the statutory 

time,” the prosecutor’s office will present an entry to the clerk of courts to move the 

money “statutorily” to the county. 

{¶8} At the conclusion of the hearing, the trial court found that strict 

compliance with R.C. 5721.20 regarding where the excess funds were deposited was 

not necessary. However, the trial court did not rely on R.C. 5721.20 in making its 

determination. Rather, it went on to say that the question comes down to, “did Mr. 

Scott know about this money? His money.” The trial court ultimately granted Scott’s 

objections to the magistrate’s decision after noting that the court is a system of due 

process and finding that Scott did not receive the notice of the excess funds. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Accordingly, the trial court found that Scott was not on notice of the three-year period 

so his request “was not untimely.” The trial court entered its decision on December 8, 

2020, rejecting the magistrate’s decision and finding that Scott made a timely demand 

for payment of the excess funds. Treasurer timely appealed the trial court’s decision. 

No appellee brief was filed with this court. 

Law and Analysis

{¶9} The standard of review applicable to a trial court’s decision to accept or 

reject the magistrate’s decision is abuse of discretion. See In re Estate of Zeak, 10th 

Dist. Franklin No. 20A-310, 2022-Ohio-951, ¶ 13, citing Lenoir v. Ohio Dept. of Rehab. 

& Corr., 10th Dist. Franklin No. 19AP-94, 2020-Ohio-387, ¶ 10. “An abuse of 

discretion occurs when a court’s decision is unreasonable, arbitrary, or 

unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). “Questions of law are reviewed de novo on appeal.” Id., citing 

Lenoir at ¶ 10. 

{¶10} This action was brought pursuant to R.C. Chapter 5721. Pursuant to 

R.C. 5721.18, the county prosecuting attorney may institute foreclosure proceedings,

in the name of the county treasurer, to foreclose a lien of the state for delinquent taxes. 

Under R.C. 5721.19, once the court orders that a parcel be sold and the sale is 

confirmed, the proceeds of the sale are to be applied as follows:

(1) The costs incurred in any proceeding filed against the parcel 

pursuant to R.C. 5721.18 of the Revised Code shall be paid first.

(2) Following the payment required by division (D)(1) of this section, 

the part of the proceeds that is equal to five percent of the taxes and 

assessments due shall be deposited in equal shares into each of the 

delinquent tax and assessment collection funds created pursuant to 
OHIO FIRST DISTRICT COURT OF APPEALS

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section 321.261 of the Revised Code. If a county land reutilization 

corporation is operating in the county, the board of county 

commissions, by resolution, may provide that an additional amount, not 

to exceed five per cent of such taxes and assessments, shall be credited 

to the county land reutilization corporation fund created by section 

321.263 of the Revised Code to pay for the corporation’s expenses. If 

such a resolution is in effect, the percentage of such taxes and 

assessments so provided shall be credited to that fund. 

(3) Following the payment required by division (D)(2) of this section, 

the amount found due for taxes, assessments, charges, penalties, and 

interest shall be paid, including all taxes, assessments, charges, 

penalties, and interest payable subsequent to the delivery to the county 

prosecuting attorney of the delinquent land tax certificate or master list 

of delinquent tracts and prior to the transfer of the deed of the parcel to 

the purchaser following confirmation of sale. * * *. 

R.C. 5721.19(D). 

{¶11} 5721.20 provides: 

Except in cases where the property is transferred without sale to 

a municipal corporation, township, county, community development 

organization, or county land reutilization corporation pursuant to the 

alternative redemption period procedures contained in section 323.78 

of the revised code, any residue of moneys from the sale or foreclosure 

of lands remaining to the owner on the order of distribution, and 

unclaimed by such owner within sixty days from its receipt, shall be paid 

into the county treasury and shall be charged separately to the county 
OHIO FIRST DISTRICT COURT OF APPEALS

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treasurer by the county auditor, in the name of the supposed owner. The 

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 from the date of receipt, shall pay such 

excess to the owner. If the owner does not demand payment of the 

excess within three years, then the excess shall be forfeited to the 

delinquent tax and assessment collection fund created under section 

323.261 of the Revised Code, or in counties that have established a 

county land reutilization corporation fund under section 323.263 of the 

Revised Code, to the county land reutilization corporation fund. 

{¶12} Treasurer argues that that trial court erred in ordering that the excess 

funds be given to Scott because Scott did not make a timely demand for payment under 

R.C. 5721.20. In doing so, Treasurer argues that the money should have been 

automatically forfeited to the state, without further motion or notice, three years from 

the date of receipt. We note that the anticipated subject of R.C. 5721.20 is not excess 

proceeds left indefinitely with the clerk of courts. The statute anticipates that the 

excess proceeds will be left to the owner on the order of distribution and then 

transferred to the county treasury, in the name of the supposed owner, for the 

remaining time period if no demand for payment is made by the owner within 60 days

of receipt. Had that happened here, the argument for automatic forfeiture might be 

stronger because the money would already be in the hands of the county treasury. 

However, because the funds remained with the clerk, automatic forfeiture could not

occur here. The clerk of courts acts under the direction of the court. See R.C. 2303.26. 

Thus, to move the funds, a court order was required. Treasurer necessarily argues 
OHIO FIRST DISTRICT COURT OF APPEALS

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that, despite the claimed noncompliance with the statute, the trial court was still 

required to order forfeiture of the funds to the state under R.C. 5721.20. 

{¶13} We find that we need not answer this question. The trial court stated

that strict compliance with the statute was not necessary, but this has not been 

challenged here on appeal. What the trial court ultimately determined, and what is 

now, in essence, being challenged here on appeal, is that due process required notice 

to Scott of the excess funds and Scott did not receive such notice. We limit our analysis 

to this issue being challenged by Treasurer here on appeal as it applies to this case. 

See App.R. 18(C); App.R. 12(A). 

{¶14} Treasurer first argues that, because R.C. 5721.20 does not expressly 

require notice, the only notice to Scott that was required was notice of the foreclosure 

action. However, Treasurer does not seem to dispute that Scott was entitled to the 

excess funds prior to expiration of the three-year period following deposit of the excess 

money with the clerk. Accordingly, with this in mind, we find that the property interest 

in question here is no longer Scott’s interest in the parcel subject to the foreclosure but

is now Scott’s property interest in the remaining moneys that Treasurer seems to 

concede that Scott was entitled to, had he made a timely demand.

{¶15} Due process requires, at a minimum, that judicial deprivations of 

property be preceded by notice and an opportunity to be heard appropriate to the case. 

Cent. Trust Co., N.A. v. Jensen, 67 Ohio St.3d 140, 142, 616 N.E.2d 873 (1993), citing 

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 

(1950). Here, the trial court determined that due process required notice to Scott of 

the excess funds to which he was entitled before the funds could be forfeited to the 

state, and Scott did not receive such notice. Based on the specific facts of this case and 
OHIO FIRST DISTRICT COURT OF APPEALS

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the arguments presented here on appeal, we agree with the trial court that due process 

required notice to Scott of the excess funds.

{¶16} To the extent that Treasurer appears to argue that the trial court erred

in finding that Scott did not receive such notice, we note that the record before us only 

contains a partial transcript of the proceedings before the trial court. The sole 

transcript in the record covers only the second proceeding before the trial court on 

Scott’s objections, where local county officials testified on behalf of the treasurer as to 

their process for holding excess funds remaining from judicial sales and where the trial 

court provided the rationale for its decision. Without transcripts of the other 

proceedings, we cannot ascertain what evidence was put before the court regarding 

notice. It is the appellant’s burden to provide the necessary transcripts for appellate 

review. See App.R. 9; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 

384 (1980). “When portions of the transcript necessary for resolution of assigned 

errors are omitted from the record, the reviewing court has nothing to pass upon and 

thus, as to those assigned errors, the court has no choice but to presume the validity 

of the lower court’s proceedings, and affirm.” Knapp at 199. Thus, we must presume 

the regularity of the prior proceeding before the trial court and affirm the trial court’s 

determination that Scott did not receive notice as we have no way of knowing what 

evidence was presented in that regard. Accordingly, Treasurer’s sole assignment of 

error is overruled. We note again that our holding in this case is limited to the specific 

facts and circumstances before us. We make no determination beyond that. 

Conclusion

{¶17} Having overruled the sole assignment of error, we affirm the judgment 

of the trial court.
OHIO FIRST DISTRICT COURT OF APPEALS

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Judgment affirmed.

MYERS, P.J., and CROUSE, J., concur.

Please note: 

The court has recorded its own entry this date.