Graham v. Stevens ( 2013 )

[Cite as Graham v. Stevens, 2013-Ohio-3111.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NATHAN GRAHAM : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
KRISTEN STEVENS : Case No. 13CA34
:
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2012 CV 0033
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: July 10, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
NATHAN GRAHAM #384-747 KRISTEN STEVENS
P.O. Box 788 457 Impala Dr., Apt. D
1150 North Main Street Mansfield, OH 44903
Mansfield, OH 44901
Richland County, Case No.13CA34 2
Baldwin, J.
{¶1} Appellant Nathan Graham appeals a judgment of the Richland County
Common Pleas Court denying his request for a debtor’s examination of appellee Kristen
Stevens.
STATEMENT OF FACTS AND CASE
{¶2} On June 4, 2012, appellant obtained a default judgment against appellee
in the amount of $1,100.00. Appellant filed a motion for a debtor’s examination of
appellee on January 3, 2013. The trial court overruled appellant’s motion, finding that
appellant, who was incarcerated, had no right to be brought to court for a debtor’s
examination:
{¶3} “Mancino set up a nine factor test to determine whether an inmate should
be permitted to be brought back for trial. Factor (4) is the potential danger and security
risk the prisoner’s presence might pose and factor (5) is the substantiality of the matter
at issue. In this case, Mr. Graham is serving a 49 year sentence which includes 12
years of gun specifications and 9 mandatory years. His prison term expires 12-19-
2059. To bring him to court for a debtor’s exam in a $1,100 case would be ludicrous.”
Judgment entry, January 23, 2013.
{¶4} Appellant filed a second motion for a debtor’s examination on March 4,
2013. In his motion, appellant stated that he wished to conduct the hearing by video
teleconference, which is how he participated in the hearing on damages in the
underlying case. The trial court summarily overruled the motion, stating that the motion
Richland County, Case No.13CA34 3
lacked “demonstrated merit.” Judgment entry, April 1, 2013. Appellant assigns a single
error to this court on appeal:
{¶5} THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED
ITS DISCRETION WHEN IT REFUSED TO HOLD A JUDGMENT DEBTOR
EXAMINATION IN ACCORDANCE WITH OHIO REVISED CODE §2333.09 BY VIDEO-
CONFERENCE.
{¶6} R.C. 2333.09 provides:
{¶7} “A judgment creditor shall be entitled to an order for the examination of a
judgment debtor concerning his property, income, or other means of satisfying the
judgment upon proof by affidavit that such judgment is unpaid in whole or in part. Such
order shall be issued by a probate judge or a judge of the court of common pleas in the
county in which the judgment was rendered or in which the debtor resides, requiring
such debtor to appear and answer concerning his property before such judge, or a
referee appointed by him, at a time and place within the county to be specified in the
order.”
{¶8} In Shepard Grain Company v. Creager, 160 Ohio App.3d 377, 2005-Ohio-
1717, 827 N.E.2d 392, ¶24, the Court of Appeals for the Second District found that the
trial court abused its discretion in summarily overruling an inmate’s request to be
present at a hearing via telephone conference, holding in pertinent part:
{¶9} “When prisoners are involved in civil actions in courts and the court does
not find it appropriate to transport the prisoner to the courthouse, a trial court should
consider innovative, alternative ways for the prisoner to participate in the action, such as
telephone conference calls, rather than rendering judgment against the prisoner,
Richland County, Case No.13CA34 4
especially if the prisoner suggests an alternative means for participation. Laguta v.
Serieko (1988), 48 Ohio App.3d 266, 267, 549 N.E.2d 216; Elkins v. Elkins (Jan. 4,
1999), Clermont App. No. CA98–03–019, 1999 WL 939. Creager requested a hearing
on Shepard's complaint. The trial court denied his motion for the court to convey him to
the court for the hearing. As the trial court denied his motion to convey, it does not seem
unreasonable for the court to have Creager participate in the hearing via a telephone
conference call as he requests. Creager has made multiple filings in this case,
consistently demonstrating his interest in his funds. We find that the trial court did abuse
its discretion in failing to consider and, thus, denying Creager's motion to be heard via
telephone at the hearing.”
{¶10} R.C. 2333.09 provides that a judgment creditor shall be provided an order
allowing the examination of the judgment debtor. In the instant case, as in Shepard,
supra, the trial court overruled appellant’s motion without stating its reasons for failing to
allow appellant to participate in the debtor’s examination via video teleconference, as it
appears he was able to do for the damage hearing in the underlying case. We find the
trial court abused its discretion in overruling appellant’s motion.
Richland County, Case No.13CA34 5
{¶11}
The assignment of error is sustained. The judgment of the Richland County
Common Pleas Court is reversed. This cause is remanded to that court for further
proceedings.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/rad
[Cite as Graham v. Stevens, 2013-Ohio-3111.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NATHAN GRAHAM :
:
Plaintiff - Appellant :
:
-vs- : JUDGMENT ENTRY
:
KRISTEN STEVENS :
:
Defendant - Appellee : CASE NO. 13CA34
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is reversed and
remanded. Costs assessed to appellee.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY