Adlaka v. Montella , 2013 Ohio 1276 ( 2013 )

[Cite as Adlaka v. Montella, 2013-Ohio-1276.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
KAREN ADLAKA dba ) CASE NO. 11 MA 133
TRIAD ENTERPRISES )
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
KIM MONTELLA, et al. )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 94 CV 2790
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty. Patrick E. Parry
Urban Co., L.P.A.
434 High St. NE
P.O. Box 792
Warren, Ohio 44482
For Defendant-Appellee: Atty. Adam J. Russ
Frantz Ward LLP
2500 Key Center
127 Public Square
Cleveland, Ohio 44114-4230
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 29, 2013
[Cite as Adlaka v. Montella, 2013-Ohio-1276.]
WAITE, J.
{¶1} On June 1, 2011, Appellant Karen L. Adlaka filed a motion in the
Mahoning County Court of Common Pleas to revive a dormant judgment. The
judgment debtors were Kim Montella (a.k.a. Kimberly S. Sharshan), and Appellee
Carole A. Tirotta. The motion was granted. Appellee filed a motion for
reconsideration of the revival order. Appellee sought to have the judgment remain
dormant only with respect to her, not with respect to Ms. Montella. The trial court
granted the motion only as to Appellee. It is this part of the trial court's judgment that
is now under review.
{¶2} The parties agree that a judgment becomes dormant five years after the
date of the last execution on that judgment. R.C. 2329.07(A)(1). The parties also
agree that an action to revive a dormant judgment must be brought within 10 years
from the time the judgment became dormant. R.C. 2325.18(A). Appellant argues
that she filed a garnishment action against defendant Kim Montella on August 6,
1996. Appellant asserts that the garnishment action was an execution on the
judgment, and based on the date of the garnishment action, the judgment became
dormant on August 6, 2001. Appellant concludes that she had ten years from August
6, 2001, to revive the judgment, and that her motion to revive the judgment was filed
two months prior to that date. Appellant concludes that since she properly revived
the judgment, it is effective with respect to all defendants, including Appellee.
{¶3} Appellee argues that an execution on a judgment against one
defendant does not act as an execution on the judgment for all defendants, at least
with respect to the dormant judgment statute. Appellee submits that the date the
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judgment against her became dormant is not affected by the 1996 garnishment
action against Ms. Montella. She argues that the 1995 judgment became dormant
with respect to her in 2000 (five years after it was originally rendered). Hence, the
judgment had to be revived with respect to her by the year 2010. Appellant did not
attempt to revive the dormant judgment until 2011, which is beyond the limitations
period. Appellee is correct. The dormant judgment statute applies to each judgment
debtor individually, and an attempt to execute on the assets of one judgment debtor
does not reset the dormancy clock for other judgment debtors mentioned in the same
judgment entry. Appellant's attempt to revive the judgment against Appellee in 2011
was untimely, and the trial court correctly concluded that the judgment remains
dormant with respect to Appellee.
{¶4} Appellant also argues that she filed a motion to revive the judgment on
August 26, 2002, that the motion was never acted on by the trial court, and that the
filing of the 2002 motion should have preserved her right to revive the dormant
judgment against Appellee. There are several problems with this argument. This
argument was never presented to the trial court and is deemed waived. The 2002
motion to revive did not contain Appellee's correct name, and thus, would likely not
have been effective against Appellee even if it had been granted. Additionally,
Appellant did nothing in furtherance of the 2002 motion for nine years and appears to
have invited any error that may have occurred over the trial court's treatment of the
motion. There is no merit in Appellant's second line of argument. The trial court
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correctly decided not to revive the judgment with respect to Appellee, and the trial
court ruling is affirmed.
History of the Case
{¶5} Appellee Carole A. Tirotta and her late husband were co-signatories on
a commercial lease between Kimberly and Stephen Montella, II, and Karen Adlaka.
Kimberly and Stephen were later divorced, and her name is now Kimberly Sharshan.
On November 14, 1994, Appellant filed a complaint for failure to pay on the lease.
The case went to arbitration, and on July 5, 1995, the arbitrator awarded judgment of
$14,594.64 to Appellant. The judgment was issued against Stephen Montella, II, Kim
Montella, and Carol G. Tirotta (rather than Carole A. Tirotta). The arbitrator's award
was accepted and journalized by the Mahoning County Court of Common Pleas in a
judgment entry dated August 14, 1995.
{¶6} On August 25, 1995, a certificate of judgment lien was filed against
Carol G. Tirotta.
{¶7} On June 28, 1996, a certificate of judgment lien was filed as to Carol G.
Triotta [sic] (two letters of her last name were transposed).
{¶8} On August 6, 1996, Appellant filed a notice of garnishment against only
defendant Kim Montella.
{¶9} On August 26, 2002, Appellant filed a motion to revive a dormant
judgment against Carol G. Tirotta, as well as against the other defendants. Not all of
the defendants were served with notice and the motion was not ruled on by the trial
court.
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{¶10} On November 27, 2007, Appellant filed a praecipe to issue and file a
certificate of judgment.
{¶11} On October 29, 2008, Appellant filed another praecipe to issue and file
a certificate of judgment.
{¶12} On December 3, 2010, Appellant filed a third praecipe to issue and file
a certificate of judgment.
{¶13} On June 1, 2011, Appellant filed a second motion to revive a dormant
judgment.
{¶14} On June 20, 2011, the court granted Appellant's second motion, issuing
a conditional order of revivor of judgment. The defendants were ordered to show
cause why the judgment should not be revived within 30 days.
{¶15} On July 7, 2011, Appellee filed a memorandum in response to the
motion to revive the judgment. Appellee framed the response as a motion for
reconsideration.
{¶16} On August 16, 2011, the trial court granted Appellee's motion for
reconsideration and vacated the June 20, 2011, order only as it pertained to her.
The judgment entry stated “there is no just cause for delay” as required by Civ.R.
54(B). This timely appeal followed.
ASSIGNMENT OF ERROR
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
GRANTING THE APPELLEE/DEFENDANT’S MOTION FOR
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RECONSIDERATION AND VACATING ITS PRIOR JUNE 20. 2011
JUDGMENT ENTRY.
{¶17} This appeal involves questions concerning the timing of dormant
judgments and the procedure to revive them. The parties agree on the basic statutes
that are involved in this appeal. The fundamental issue on appeal is whether, in a
judgment where there are multiple judgment debtors, steps taken to prevent the
judgment from becoming dormant against one judgment debtor will also act to
prevent the judgment from becoming dormant for all of the judgment debtors.
{¶18} Under the common law, it was generally understood that an attorney of
record had only one year and a day to satisfy a judgment, and if not satisfied in that
time period, the judgment became unenforceable:
By the common law a judgment became dormant if execution did not
issue within a year and a day from the time it was rendered[.] It was
also held that a year and a day having elapsed since the rendition of
the judgment, it was presumed paid. In 2 Blackstone's Com., 421, in
speaking of the various modes of enforcing judgments, the author says:
“But all these writs of execution must be sued out within a year and a
day after the judgment is entered, otherwise the court concludes prima
facie, that the judgment is satisfied and extinct.”
Simpson v. Hook, 2 Ohio C.D. 333, *2 (Ohio Cir.Ct.1891).
{¶19} Dormant judgments, and the revivor of dormant judgments, are now
governed by statute. Columbus Check Cashers v. Cary, 196 Ohio App.3d 132, 2011-
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Ohio-1091, 962 N.E.2d 812, ¶4 (10th Dist.). Under the dormant judgment statute,
instead of a year and day, the prevailing party has five years to collect the judgment
or otherwise preserve the right to collect on it. R.C. 2329.07(A)(1). An appellate
court applies a de novo standard of review of a lower court's interpretation and
application of a statute. Siegfried v. Farmers Ins. of Columbus, Inc., 187 Ohio
App.3d 710, 2010-Ohio-1173, 933 N.E.2d 815, ¶11 (9th Dist.). In interpreting
statutes, a reviewing court should make every effort to give effect to each word,
phrase and clause. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510,
2010-Ohio-2550, 929 N.E.2d 448, ¶ 21. In addition, “[s]tatutes must be construed, if
possible, to operate sensibly and not to accomplish foolish results.” State ex rel.
Saltsman v. Burton, 154 Ohio St. 262, 268, 95 N.E.2d 377 (1950). A court's primary
concern in statutory construction is the legislative intent in the statute's enactment,
which is normally found in the words and phrases of the statute, read in context
according to standard rules of grammar and common usage. State ex rel. Mager v.
State Teachers Retirement Sys. of Ohio, 123 Ohio St.3d 195, 2009-Ohio-4908, 915
N.E.2d 320, ¶14.
{¶20} R.C. 2329.07(A)(1), sets forth the time periods governing a dormant
judgment and the methods for preventing the judgment from becoming dormant:
If neither execution on a judgment rendered in a court of record or
certified to the clerk of the court of common pleas in the county in
which the judgment was rendered is issued, nor a certificate of
judgment for obtaining a lien upon lands and tenements is issued
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and filed, as provided in sections 2329.02 and 2329.04 of the
Revised Code, within five years from the date of the judgment or
within five years from the date of the issuance of the last execution
thereon or the issuance and filing of the last such certificate,
whichever is later, then * * * the judgment shall be dormant and
shall not operate as a lien upon the estate of the judgment debtor.
{¶21} Pursuant to the statute, a judgment creditor may stop a judgment from
becoming dormant within five years of the date of the judgment by: (1) execution on
the judgment, or (2) the issuing and filing of a certificate of judgment for obtaining a
lien upon lands and tenements as provided in R.C. 2329.02 and 2329.04. Execution
on a judgment is defined as the “seizing and selling [of] property of the debtor.”
Black's Law Dictionary 568 (6th Ed.1990). For purposes of this appeal, we will
assume arguendo that garnishment is an execution on a judgment under R.C.
2329.07(A)(1) that can prevent a judgment from becoming dormant.
{¶22} “[U]pon becoming dormant, the judgment may not be enforced, and is
thus without legal effect, unless the judgment is revived in accordance with O.R.C. §
2325.15.” In re Stoddard, 248 B.R. 111, 116-117 (Bkrtcy.N.D.Ohio 2000). There is a
ten-year period in which to revive the judgment after it has become dormant. See
R.C. 2325.18(A). When Appellant received her judgment on August 14, 1995, the
time period for reviving a dormant judgment was 21 years, but R.C. 2325.18 was
amended on June 2, 2004, and the time limit for revivor of a dormant judgment is
now ten years.
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{¶23} In this case, there were three judgment debtors as part of the original
judgment: Kimberly Montella (now known as Kimberly Sharshan); Stephen Montella,
II; and Appellee. Appellant's June 1, 2011, motion sought to revive the judgment
against Kimberly Sharshan and Appellee Carole A. Tirotta.
{¶24} Appellant argues that she took actions against at least one of the
judgment debtors within ten years of the most recent date that the judgment became
dormant, and that these actions should have preserved her rights with respect to all
the defendants. Appellant refers to an alleged garnishment action in 2002, but there
is no garnishment action reflected in the record for that year. The only garnishment
action found in the record was filed on August 6, 1996, against Kimberly Montella.
Appellant appears to argue that the August 6, 1996, garnishment action prevented
the judgment from becoming dormant for five years, until August 6, 2001. Appellant
then submits that she had ten years to revive the judgment after that, allowing her
until August 6, 2011, to file a motion to revive the judgment. Appellant filed the
motion to revive judgment on June 1, 2011, and it was provisionally granted on June
20, 2011. Appellant concludes that since she revived the judgment against one
defendant, it is revived as to all defendants.
{¶25} As already noted, R.C. 2325.15, et seq., provides the procedure for
reviving a dormant judgment. Pursuant to R.C. 2325.18(A), an action to revive a
dormant judgment “can only be brought within ten years from the time it became
dormant”. Thus, the starting point for the period of limitations is the date that the
judgment became dormant.
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{¶26} Appellant contends that dormancy does not occur until five years after
any execution on the judgment against any judgment debtor listed in the judgment,
essentially asking us to look at the word “judgment” in R.C. 2329.07(A)(1) in isolation
and to interpret it as broadly as possible in favor of the judgment creditor. Appellant
contends that there is no ambiguity in the statute and that it should simply be applied.
Appellant is incorrect. R.C. 2329.07(A)(1) speaks in terms of “the judgment debtor,”
and does not expressly explain how the statute operates when there are multiple
judgment debtors listed in the same judgment entry. The use of the singular term
“the judgment debtor” in and of itself reasonably implies that the rights, defenses, and
procedure set forth in the dormancy statute apply to each judgment debtor
individually.
{¶27} Additionally, the statute is very specific about the two, and only two,
methods for preventing a judgment from becoming dormant more than five years
after the judgment is issued: execution on the judgment, or the issuing and filing of a
certificate of judgment for obtaining a lien upon lands and tenements. Under either
method, only the judgment debtors listed in the related court documents are affected.
Assuming that garnishment is an “execution on the judgment,” a garnishment against
defendant A has no effect on defendant B. A garnishment order involves execution
only on the property of the judgment debtor whose property is being garnished. As
stated in R.C. 2716.11(A): “A proceeding for garnishment of property * * * may be
commenced after a judgment has been obtained by a judgment creditor by the filing
of an affidavit in writing * * * setting forth all of the following: (A) The name of the
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judgment debtor whose property the judgment creditor seeks to garnish * * *.”
(Emphasis added.) “[A]n attachment covers only the interest of the defendant in the
property levied on existing at the time of the levy and that it does not extend to
property previously transferred or to an interest in property subsequently acquired by
the defendant. Similarly, it is generally held that a garnishment reaches only the
property or credits of the principal debtor in possession of or owing by the garnishee
at the time of the service of garnishment and that it does not bind property or credits
which have been previously transferred or assigned to another nor reach property or
debts subsequently acquired or owed by the garnishee.” Holly v. Dayton View
Terrace Imp. Corp., 25 Ohio Misc. 57, 66, 263 N.E.2d 337 (C.P.1970).
{¶28} A recorded certificate of judgment for lien upon lands and tenements
must have the judgment debtor's correct name in order to be effective. National
Packaging Corp. v. Belmont, 47 Ohio App.3d 86, 547 N.E.2d 373 (1st Dist.1988);
R.C. 2329.02. Even a minor misspelling of a person's name in a document
pertaining to a recorded judgment lien will invalidate the lien with respect to that
person. Kay Gee Product Co. v. Salem, 120 Ohio App.3d 529, 532, 698 N.E.2d 485(8th Dist.1997). It is difficult to understand how an execution on a judgment or a
certificate of judgment lien that does not mention the name of the judgment debtor
could possibly be used to extend the period for reviving a judgment against that
particular judgment debtor.
{¶29} Throughout R.C. Chapter 2329, the individual rights of each judgment
debtor are meticulously preserved by means of filing requirements, numerous notice
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provisions throughout each stage of the process, hearings, the right of the debtor to
establish exemptions to execution or sale of property, publication requirements for
the sale of the debtor's property, independent appraisal of the property, and so on. It
would be inapposite to assume that the state legislature intended R.C. 2329.07(A)(1)
to be interpreted and applied to defeat or denigrate the rights of the individual
judgment debtor when R.C. Chapter 2329 has gone to such pains to preserve those
rights.
{¶30} Further, “the purpose of a statute of limitations is to promote justice by
preventing surprise through the revival of claims that parties have declined to pursue
until evidence has been lost and memories have faded.” Cavin v. Smith, 4th Dist.
No. 01CA5, 2001 WL 994117, at *2. This purpose could not be served if the
dormancy and revivor statutes of limitations are interpreted to allow a judgment to be
revived against a judgment debtor long after the judgment creditor has shown any
interest in that specific judgment debtor's property. In cases where there are multiple
judgment debtors, one judgment debtor would likely have no notice of any attempts
to execute against the property of another judgment debtor (and no means of raising
defenses against this execution). Under Appellant's interpretation, this principle is
ignored. According to Appellant, the judgment creditor could file garnishment actions
(or certificates of judgment for obtaining a lien upon lands and tenements) against
one of several judgment debtors for 50 years, and then finally decide to enforce the
original judgment lien against one of the other judgment debtors. If we were to take
this approach, we would be entering that territory of “foolish results” that we are
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encouraged to avoid in the process of statutory interpretation. State ex rel. Saltsman
v. Burton, 154 Ohio St. at 268, 95 N.E.2d 377. Certainly we would be ignoring the
purpose and principles on which these statutes are based.
{¶31} There is nothing in the record that reflects that Appellant took any
effective action to execute upon the personal or real property of Appellee. Thus the
judgment against Appellee became dormant on August 14, 2000, five years after the
initial judgment was final. Appellant had until August 14, 2010, to revive the dormant
judgment against Appellee. Appellant missed this statute of limitations and the trial
court was correct in determining that the judgment was not revived with respect to
Appellee.
{¶32} Appellant presents a second line of argument that relates to a motion to
revive judgment filed on August 26, 2002. This motion was never heard by the trial
court and there is nothing in the record to indicate that the court ruled on the motion.
Appellant contends that this motion was filed well within the ten-year period for
reviving a dormant judgment, and that the filing of the motion itself should have
preserved her right to revive the judgment against Appellee. There are numerous
difficulties with this argument.
{¶33} First, Appellant did not present this argument to the trial court. Issues
that could have been raised and resolved in the trial court cannot be raised for the
first time on appeal and are deemed to be waived. Litva v. Richmond, 172 Ohio
App.3d 349, 2007-Ohio-3499, 874 N.E.2d 1243, ¶18 (7th Dist.); Abraham v. National
City Bank Corp., 50 Ohio St.3d 175, 176, 553 N.E.2d 619 (1990).
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{¶34} Second, the case Appellant cites in support of the notion that the mere
filing of motion to revive dormant judgment in 2002 continued to preserve that right in
2011 does not speak to the issue at all. Tube City, Inc. v. Holishak, 8th Dist. No.
91440, 2008-Ohio-6951. Tube City, Inc. actually dealt with a judgment creditor's
attempt to revive a Pennsylvania judgment, and the case primarily interprets and
applies Pennsylvania law, rather than Ohio law, governing dormant judgments.
{¶35} Third, Appellant misspelled Appellee's name in the motion to revive
judgment and in the attached certificate of judgment for lien upon lands and
tenements. As earlier discussed, without Appellee's correct name on either
document, it is highly doubtful the trial court could have granted the motion.
{¶36} Fourth, Appellant's filing of a new motion to revive dormant judgment on
June 1, 2011, was not characterized in any way as renewal of the earlier motion or a
request to act on that earlier motion. Appellant filed praecipes for the issuance of
new certificates of judgment in 2007, 2008, and 2010, without ever requesting any
action from the court on the 2002 motion. Given Appellant's failure to prosecute the
motion for nine years, failure to notify the court of the stale motion when there was
opportunity to do so, and active pursuance of a new motion to revive a dormant
judgment, this record leads us to conclude that any error that might have been
committed by the trial court would be invited error. “ ‘Under the invited-error doctrine,
a party will not be permitted to take advantage of an error which he himself invited or
induced the court to make.’ ” State ex rel. O'Beirne v. Geauga Cty. Bd. of Elections,
80 Ohio St.3d 176, 181, 685 N.E.2d 502 (1997), quoting State ex rel. Bitter v. Missig,
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72 Ohio St.3d 249, 254, 648 N.E.2d 1355 (1995). For all these reasons, we are not
persuaded by Appellant's argument regarding the significance of the 2002 motion to
revive the dormant judgment.
{¶37} There is an additional reason, here, to affirm the judgment of the trial
court. The arbitrator's award of July 5, 1995, which forms the basis for the judgment
against Appellee, did not contain Appellee's correct name of Carole A. Tirotta.
Neither did two subsequent certificates of judgment for obtaining a lien upon lands
and tenements. The August 14, 1995, judgment entry affirming the arbitrator's award
did not have Appellee's name on it at all. It is difficult to imagine how a judgment
could be “revived” against a person whose legal name cannot be found on the basic
operative documents being reviewed on appeal. It is possible to affirm the trial court
ruling for the simple reason that the original judgment was not even properly issued
against Appellee in the first place. There was nothing to revive under the revivor
statute.
{¶38} In conclusion, we hold that an execution on the judgment taken against
one defendant, in a case where a monetary judgment is rendered against multiple
defendants, does not stop the judgment from becoming dormant with respect to the
remaining judgment debtors. Pursuant to R.C. 2329.07(A)(1), a judgment creditor
must preserve its rights against each individual judgment debtor in order to prevent
the judgment from becoming dormant with respect to that judgment debtor. Appellant
took no action against Appellee or her property for more than five years, and the
monetary judgment against her became dormant on August 14, 2000. A dormant
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judgment may only be revived within ten years after it became dormant, and
Appellant did not revive the judgment with respect to Appellee within that time period.
The trial court was correct in vacating the conditional order of revivor of judgment
with respect to Appellee Carole A. Tirotta, and the judgment is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.