Bill Swad Chevrolet, Inc. v. Dunson

[Cite as Bill Swad Chevrolet, Inc. v. Dunson, 2019-Ohio-680.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bill Swad Chevrolet, Inc., :
Plaintiff-Appellant, :
v. : No. 18AP-233
(M.C. No. 2002CVF5950)
Ingrid Dunson, :
(REGULAR CALENDAR)
Defendant-Appellee. :
MEMORANDUM DECISION
Rendered on February 26, 2019
On brief: Kevin O'Brien & Associates Co., L.P.A., and Kevin
O'Brien, for appellant.
On brief: The Legal Aid Society of Columbus, Jacqueline
Gutter and Scott Torguson, for appellee. Argued: Jacqueline
Gutter.
APPEAL from the Franklin County Municipal Court
HORTON, J.
{¶ 1} This matter stems from the trial court's granting of a motion to revive filed by
a judgment creditor, and a subsequent order setting aside that judgment pursuant to a
motion for relief from judgment brought by the debtor.
{¶ 2} Plaintiff-appellant, Bill Swad Chevrolet, obtained default judgment against
defendant-appellee, Ingrid Dunson, on June 12, 2002 in the amount of $4,253.95 plus
court costs and interest. Swad did not execute on its judgment, and pursuant to R.C.
2329.07(A)(1), Swad's judgment became dormant on June 12, 2007—five years after entry
of judgment.
No. 18AP-233 2
{¶ 3} At the time Swad obtained its judgment, R.C. 2325.18(A), governing the
statute of limitations for revival of a dormant judgment, provided that a creditor could
revive a judgment within 21 years from the time it became dormant.
{¶ 4} After Swad obtained default judgment against Dunson, but before that
judgment became dormant, the legislature amended R.C. 2325.18(A) to reduce the reviver
period from 21 to 10 years. The effective date of the amendment was June 2, 2004. 2003
Am.Sub.H.B. No. 212. Swad filed a motion to revive its dormant judgment on August 14,
2017, more than 10 years but less than 21 years after the judgment had become dormant.
This created the central issue in the case, requiring the trial court to determine whether the
former 21 year or current 10 year limitation in the reviver statute applied to this dormant
judgment.
{¶ 5} On November 3, 2017, the trial court granted the motion for reviver. Dunson
filed a notice of appeal to this court, followed by a motion in the trial court for relief from
judgment pursuant to Civ.R. 60(B). We granted a motion to remand the matter to the trial
court for consideration of the Civ.R. 60(B) motion, which the trial court granted by
judgment entered March 5, 2018. The trial court ruled that Swad's time to revive its
judgment was subject to the 10-year statute of limitations of the amended statute in effect
at the time the judgment became dormant, rather than the 21-year statute in effect at the
time the judgment was obtained. Dunson then dismissed her initial appeal to this court.
The present appeal by Swad ensued.
{¶ 6} Swad brings the following sole assignment of error:
THE TRIAL COURT ERRED WHEN IT SUSTAINED THE
DEFENDANT-APPELLEE'S MOTION FOR RELIEF FROM
JUDGMENT.
{¶ 7} The present appeal is therefore from the trial court's grant of relief from
judgment under Civ.R. 60(B). The party seeking relief from judgment pursuant to Civ.R.
60(B) must demonstrate that (1) the party has a meritorious defense or claim to present if
relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time. GTE Automatic
Elec., Inc. v. Arc Industries, 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. A
movant must establish all three of these requirements to obtain relief from judgment. Bank
No. 18AP-233 3
of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, ¶ 14. On appeal, we
review a trial court's decision to grant or deny Civ.R. 60(B) relief pursuant to an abuse of
discretion standard. Id.{¶ 8} The trial court found that Dunson's motion presented a meritorious defense,
could be brought under Civ.R. 60(B)(3), and was timely. The issue raised on appeal is the
existence of a meritorious defense to oppose Swad's motion for reviver.
{¶ 9} Swad argues that the trial court's interpretation and application of the
statutes represents an impermissible and unconstitutional retroactive application of the
2004 amendments. We agree that the amendment to R.C. 2325.18 does not contain a clear
express legislative intent to apply the statute retroactively. We further find, however, that
the trial court here correctly determined that the statute is not being applied retroactively
in the present matter, because the rights that would be curtailed by application of the
statute did not arise at the time the judgment was obtained, but at the time the judgment
became dormant.
{¶ 10} "The general assembly shall have no power to pass retroactive laws, or laws
impairing the obligation of contracts." Article II, Section 28, Ohio Constitution. If "there is
no clear indication of retroactive application, then the statute may only apply to cases which
arise subsequent to its enactment." Kiser v. Coleman, 28 Ohio St.3d 259, 262 (1986). As a
result, a law may be applied retroactively only if (1) the legislature has clearly expressed the
intent that it be so applied and (2) it affects a remedial, rather than substantive, right. State
ex rel. Romans v. Elder Beerman Stores Corp., 100 Ohio St.3d 165, 2003-Ohio-5363; Van
Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100 (1988).
{¶ 11} Because the amendments to R.C. 2329.07(A)(1) reveal no express legislative
intent to apply them retroactively, we do not reach the question of whether the amendment
curtails a remedial rather than substantive right. Cadles of Grassy Meadows, II, LLC v.
Kistner, 6th Dist. No. L-09-1267, 2010-Ohio-2251, ¶ 17. We are left only with the question
of whether the statute is here applied retroactively, which would be impermissible, or
merely prospectively.
{¶ 12} Swad argues that its right to a 21-year reviver period vested at the time it
obtained its judgment in 2002, and may not be curtailed by the 2004 amendment. Dunson
argues to the contrary that it is the date on which the judgment becomes dormant that
No. 18AP-233 4
determines which version of R.C. 2325.18 must apply. This is a question of first impression
in Ohio, at least as to these exact facts.
{¶ 13} Several Ohio courts have addressed the question of which reviver limitation
must apply to a judgment already dormant at the time of the 2004 amendments. On the
whole, courts have found that the former version of R.C. 2325.18 must govern, the right to
a given duration for reviver having vested at the time the judgment became dormant.
Cadles; Franks v. Meyers, 6th Dist. No. WD-14-035, 2015-Ohio-703; Selwyn v. Grimes,
8th Dist. No. 101252, 2014-Ohio-5147. One case, however, held to the contrary, opining that
a judgment that became dormant in 2001 was nonetheless subject to the 2004 amendments
and 10-year limitation, although ultimately the motion for reviver was timely under either
standard. Thomson v. Scott Bayer dba Bayer Plumbing & Heating, 5th Dist. No. 08-CA-
89, 2009-Ohio-4955.
{¶ 14} Significantly, in Franks, the Sixth District Court of Appeals expressed in dicta
a clear intimation that amended R.C. 2325.18(A) would apply to judgments that became
dormant after the effective date of the amendments: " '[R.C. 2325.18(A)] was not intended
to apply to dormant judgments that existed as of June 2, 2004. Therefore, the prior version
of the statute, which provided for a 21-year statute of limitation, controls this case.' " Franks
at ¶ 8, quoting Cadles at ¶ 17.
{¶ 15} Only accrued causes of action present vested, substantive rights that the
legislature cannot retroactively extinguish through imposition or modification of a statute
of limitations or repose. Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, ¶ 24, 29;
Gregory v. Flowers, 32 Ohio St.2d 48, 58 (1972). The cause of action here is not the
underlying action on a debt; it is the right to revive a dormant judgment. That cause of
action cannot vest until there is a dormant judgment to revive, just as a cause of action for
medical malpractice cannot vest until injury is discovered. See generally, Ruther at ¶ 25.
There is no property or contractual right in an unaccrued claim. Id. Swad accrued no
statutory right of reviver under either version of the statute until its judgment became
dormant. At that time, the amended statute had taken effect and the applicable statute of
limitations for revival was 10 years. The trial court did not err in so holding.
{¶ 16} Under the above interpretation of the statutory amendments, we find that
Dunson met the requirements for relief from judgment under Civ.R. 60(B), and the trial
No. 18AP-233 5
court did not abuse its discretion in granting such relief. Dunson presented a meritorious
defense in the form of the statute of limitations that would bar reviver, she was entitled to
relief under Civ.R. 60(B)(5), and made her motion within a reasonable time. The trial
court's judgment denying revival of Swad's judgment is affirmed and the sole assignment
of error is overruled.
Judgment affirmed.
BRUNNER, J., concurs.
DORRIAN, J., concurs in judgment only.
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