Auto Now Acceptance Co., L.L.C. , 2020 Ohio 3447 ( 2020 )

[Cite as Auto Now Acceptance Co., L.L.C., 2020-Ohio-3447.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
AUTO NOW ACCEPTANCE CO., LLC, :
Plaintiff-Appellant, : Case No. 19CA3883
vs. :
SHAWNA BRICKEY, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
APPEARANCES:
Chadwick K. Sayre, Portsmouth, Ohio, for appellant.
Shawna Brickey, New Boston, Ohio, pro se appellee.1
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 6-17-20
ABELE, J.
{¶ 1} This is an appeal from a Portsmouth Municipal Court judgment that denied a
request by Auto Now Acceptance Co., LLC, plaintiff below and appellant herein, to garnish
personal earnings. Appellant assigns the following error for review:
“THE TRIAL COURT ERRED IN DENYING AN ORDER OF
GARNISHMENT BASED UPON AN INCORRECT
INTERPRETATION OF OHIO REVISED CODE 2716.031(A).”
{¶ 2} In April 2006, appellant filed a complaint against Shawna Brickey, defendant below
and appellee herein, to collect on a debt. The parties later entered into an agreed judgment and
1
Appellee did not enter an appearance in this appeal.
SCIOTO, 19CA3883 2
appellee confessed judgment in the amount of $3,424.48 plus interest, at the rate of 19.95% from
January 20, 2006. Appellee also agreed to pay $50 per month until she satisfied the judgment.
The trial court subsequently issued a garnishment order to appellee’s employer, Small Steps Day
Care and the employer filed interim reports and answers through September 21, 2009. No
further activity occurred in the case until December 14, 2018.
{¶ 3} On December 14, 2018, appellant filed a motion to revive the 2006 judgment. The
trial court granted appellant’s motion. On April 8, 2019, appellant filed a notice and affidavit to
appellee of the current balance due on the account. Appellee did not respond.
{¶ 4} On May 28, 2019, appellant filed an affidavit for garnishment of appellee’s
personal earnings. However, on June 13, 2019, the trial court denied appellant’s request to
garnish appellee’s personal earnings because, as the court determined, appellant had not
complied with R.C. 2716.031(A) and filed annual accountings with the court. This appeal
followed.
I.
{¶ 5} In its sole assignment of error, appellant asserts that the trial court erred by denying
appellant’s request to garnish appellee’s wages. In particular, appellant contends that the trial
court incorrectly determined that R.C. 2716.031(A) required appellant to continue to file an
annual affidavit of balance due, even when the judgment became dormant.
{¶ 6} R.C. 2716.01(A) authorizes a judgment creditor to garnish a judgment debtor’s
personal earnings “only through a proceeding in garnishment of personal earnings and only in
accordance with this chapter.” The garnishment statutes require a person seeking a
personal-earnings garnishment order to give the judgment debtor a written demand for the
SCIOTO, 19CA3883 3
amount of the judgment that exceeds any exempt personal earnings. R.C. 2716.02(A). If the
judgment debtor fails to comply with the written demand within the specified time period, then
the judgment creditor may begin garnishment proceedings.
{¶ 7} R.C. 2716.03(A) sets forth the requirements for a garnishment proceeding. The
statute provides that a judgment creditor may seek a personal-earnings garnishment by filing a
written affidavit that contains all of the following:
(1) The name of the judgment debtor whose personal earnings the
judgment creditor seeks to garnish;
(2) The name and address of the garnishee who may be an employer of the
judgment debtor and who may have personal earnings of the judgment debtor;
(3) That the demand in writing, as required by section 2716.02 of the
Revised Code, has been made;
(4) That the payment demanded in the notice required by section 2716.02
of the Revised Code has not been made, and a sufficient portion of the payment
demanded has not been made to prevent the garnishment of personal earnings as
described in section 2716.02 of the Revised Code;
(5) That the affiant has no knowledge of any application by the judgment
debtor for the appointment of a trustee so as to preclude the garnishment of the
judgment debtor’s personal earnings;
(6) That the affiant has no knowledge that the debt to which the affidavit
pertains is the subject of a debt scheduling agreement of a nature that precludes
the garnishment of the personal earnings of the judgment debtor under division
(B) of this section.
{¶ 8} After a court issues a personal-earnings garnishment order, the court must notify the
garnishee and the judgment debtor. R.C. 2716.03(C). Additionally, R.C. 2716.031(A) requires
a judgment creditor to “file with the court, the garnishee, and the judgment debtor an affidavit of
current balance due on garnishment order that contains the current balance due on the order.”
The statute further provides that “[t]he judgment creditor * * * shall file the affidavit on an
annual basis.” Id.SCIOTO, 19CA3883 4
{¶ 9} In the case sub judice, the trial court determined that because appellant did not file
the R.C. 2716.031(A) affidavit on an annual basis, appellant cannot now request a new
personal-earnings garnishment order upon reviving the dormant judgment. We believe,
however, that this view does not conform with the law that governs the nature of dormant and
revived judgments. Instead, the law governing revived judgments indicates that a revived
judgment is not a continuation of a dormant judgment, but in essence creates a new judgment
that a judgment creditor may seek to enforce. A dormant judgment “may not be enforced, and is
thus without legal effect, unless the judgment is revived in accordance with R.C. 2325.15.” In
re Stoddard, 248 B.R. 111, 116–17, 2000 WL 419843 (Bankr. N.D. Ohio 2000), citing 62 Ohio
Jur.3d Judgments, Section 153.
{¶ 10} In the case sub judice, no issue has been raised as to whether the original
garnishment had become dormant. Because it had become dormant, it was without legal effect
and filing an R.C. 2716.031(A) annual affidavit on a dormant garnishment order would have no
significance and appears to be a legal nullity. Moreover, the revival of a dormant judgment does
not automatically revive any liens or garnishments attached to that dormant judgment.
Thompson v. Slone, 68 Ohio App.3d 575, 589 N.E.2d 118 (10th Dist. 1991). “R.C. 2325.15
speaks in terms of the judgment being revived, not the lien itself being revived.”2 Id. at 578.
2
R.C. 2325.15 states:
When a judgment, including judgments rendered by a judge of a county court or mayor, a
transcript of which has been filed in the court of common pleas for execution, is dormant, or when
a finding for money in equitable proceedings remains unpaid in whole or in part, under the order of
the court therein made, such judgment may be revived, or such finding made subject to execution
as judgments at law are, in the manner prescribed for reviving actions before judgment, or by
action in the court in which such judgment was rendered or finding made, or in which transcript of
judgment was filed.
SCIOTO, 19CA3883 5
Additionally, R.C. 2325.17 “implies that the reviving of a judgment does not literally revive a
lien but allows for the creation of a new one.”3 Id. Consequently, a judgment creditor must take
action to execute upon the revived judgment.
{¶ 11} We also recognize that other courts have held that the revivor statutes, R.C.
2325.15 and R.C. 2325.17, “do not require the judgment creditor to provide proof, at the time of
the revivor, regarding the amount due and unsatisfied on the original judgment.” Columbus
Check Cashers, Inc. v. Cary, 196 Ohio App.3d 132, 2011-Ohio-1091, 962 N.E.2d 812 (10th Dist.
Franklin); accord Huntington Natl. Bank v. Haas, 5th Dist. No. 2018CA00182, 2019-Ohio-2556,
139 N.E.3d 601, 2019 WL 2613462, ¶¶ 23-25. The Columbus Check Cashers court noted that
R.C. 2325.17 states that the judgment shall stand revived, and “thereafter may be made to operate
as a lien upon the lands and tenements of each judgment debtor for the amount which the court
finds to be due and unsatisfied.” Id. at ¶ 17. The court interpreted R.C. 2325.17 “to mean that
upon revival of the dormant judgment, a judgment creditor may execute upon the judgment, and
at that time, the amount remaining due and unsatisfied must be disclosed to the trial court and the
judgment debtor.” Id.
{¶ 12} After our review in the case sub judice, we do not agree with the trial court’s
determination that appellant’s failure to file an R.C. 2316.031(A) annual affidavit now precludes
appellant from seeking to execute upon a revived judgment. Instead, when a judgment and
3
R.C. 2325.17 provides:
If sufficient cause is not shown to the contrary, the judgment or finding mentioned in
section 2325.15 of the Revised Code shall stand revived, and thereafter may be made to operate as
a lien upon the lands and tenements of each judgment debtor for the amount which the court finds
to be due and unsatisfied thereon to the same extent and in the same manner as judgments or
findings rendered in any other action.
SCIOTO, 19CA3883 6
garnishment order has become dormant, a judgment creditor need not continue to file an R.C.
2316.031(A) annual affidavit. We also point out that R.C. 2716.08 provides that a continuous
order of garnishment of personal earnings ceases to remain in effect if the judgment debtor’s
employment with the garnishee is terminated. Although the record in the case sub judice does
not clearly show that appellee’s employment with the original garnishee was terminated, the last
filing from the garnishee occurred in September 2009. After that filing, the next filing is
appellant’s December 2018 motion to revive the judgment. Thus, because the record suggests
that the original garnishment order had ceased to remain in effect, appellant did not have a duty
to file an R.C. 2316.031(A) annual affidavit.
{¶ 13} Accordingly, based upon the foregoing reasons, we sustain appellant’s sole
assignment of error, reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
SCIOTO, 19CA3883 7
JUDGMENT ENTRY
It is ordered that the judgment be reversed and remanded for further proceedings
consistent with this opinion. Appellant shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Portsmouth
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
SCIOTO, 19CA3883 8
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.