Tillimon v. Bailey

[Cite as Tillimon v. Bailey, 2020-Ohio-1243.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Duane J. Tillimon Court of Appeals No. L-19-1072
Appellant Trial Court No. CVG-16-11128
v.
Eddie J. Bailey and Lyn J. Myles DECISION AND JUDGMENT
Appellee Decided: March 31, 2020
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Duane J. Tillimon, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Duane J. Tillimon, appeals from the March 29, 2019 judgment of
the Toledo Municipal Court, Housing Division, rejecting appellant’s objections to the
magistrate’s decision and adopting the magistrate’s decision. For the reasons which
follow, we reverse.
{¶ 2} On appeal, appellant asserts three assignments of error:
1. THE TRIAL COURT COMMITTED REVERSABLE [SIC]
ERROR, AND ABUSED ITS [SIC] DISCRETION, BECAUSE THE
JUDGMENT ENTRY AFFIRMING THE MAGISTRATE’S
RECOMMENDATION AND DENYING THE APPELLANT’S
OBJECTION AND REQUEST FOR A HEARING, AND THE
MAGISTRATE’S RECOMMENDATION ITSELF, ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE THAT WAS BEFORE THE
TRIAL COURT AT THE TIME OF THE MAGISTRATE’S
RECOMMENDATION.
2. THE TRIAL COURT COMMITTED REVERSABLE [SIC]
ERROR, AND ABUSED ITS [SIC] DISCRETION, WHEN IT DENIED
THE APPELLANT’S REQUEST FOR A HEARING ON HIS
OBJECTION TO THE MAGISTRATE’S RECOMMENDATION.
3. THE TRIAL COURT COMMITTED REVERSABLE [SIC]
ERROR, AND ABUSED ITS [SIC] DISCRETION, BY DENYING THE
MOTION FOR A STAY OF EXECUTION PENDING THE APPEAL.
{¶ 3} Appellant is the former landlord and current judgment creditor of appellee,
Eddie J. Bailey and Lyn J. Myles. On January 13, 2017, appellant obtained a $1,376.57
money judgment against Bailey and Myles, plus statutory interest of 3 percent per
annum, commencing January 13, 2017, and court costs. On appeal, we reversed the
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findings of the municipal court and found that appellant was owed a total of $4,899.44.
Tillimon v. Myles and Bailey, 6th Dist. Lucas No. L-17-1032, 2018-Ohio-434, ¶ 42.
{¶ 4} Appellant garnished the wages of Myles and Bailey and seized other assets
in an attempt to satisfy the money judgment pursuant to R.C. 2716.01. Appellant alleges
that in December 2018, he determined the court records indicated $968.58 had been
garnished and was being held by the clerk of courts, an amount which would satisfy the
judgment in full. Prior to receiving a final distribution check, appellant filed a praecipe
for release of the wage garnishment orders against Bailey’s employers on December 14,
2018. Appellant did not file a satisfaction entry because appellant had not yet received
the money from the court. The garnishments were released on December 17, 2018.
However, on December 27, 2018, the municipal court clerk returned the final garnished
wages to Bailey. Appellant asserts he contacted Bailey and attempted to convince him to
return the funds. When Bailey received the check, however, he cashed the check and
kept the money.
{¶ 5} On January 15, 2019, appellant refiled the wage garnishments against Bailey
naming both employers as garnishees. Appellant attested he is a judgment creditor, the
“probable total amount” of the unpaid judgment is $990.32, and demanded garnishment
of Bailey’s personal wages. On January 22, 2019, the municipal court found the affidavit
satisfactory and ordered Bailey to provide the garnishment information. Bailey requested
a hearing without stating a reason. The hearing was held on February 20, 2019, and only
Bailey attended. Appellant asserts on appeal that he did not attend because he believed
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the only issue to be determined was whether Bailey’s wages were exempt from
garnishment. Appellant knew there could be no basis for this finding because
garnishment had been in effect in 2018.
{¶ 6} However, at the hearing, Bailey told the magistrate that the judgment had
been paid in full based on Bailey’s garnishment records, he was continuing to be
garnished, and appellant was trying to get more money. The garnishee’s interim report
indicated that $205.17 had already been garnished as of February 2, 2019, under the
second garnishment order. Bailey presented his pay stub indicating that $5,057.41 had
been garnished in 2018. Based on Bailey’s statements and his documentation, the
magistrate found the first garnishment had been released and Bailey had paid the debt in
full. Therefore, the magistrate ordered the clerk to release the garnished funds of $251.36
to Bailey.
{¶ 7} On February 21, 2019, appellant filed his affidavit attesting the balance due
on the judgment was $992.14. Appellant also filed objections to the magistrate’s
recommendation on the ground that it was based on perjured testimony. Appellant
asserted he had not received any disbursements since November 27, 2018, and that the
final amount due on the judgment, $968.58, had been collected under the prior
garnishment order but erroneously disbursed to Bailey by the clerk on December 27,
2018. Bailey filed a response asserting he was not responsible for the court’s
recordkeeping and he had never received notice from the municipal court that an error
had been made.
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{¶ 8} On March 29, 2019, the municipal court approved the magistrate’s
recommendation. The municipal court found that by failing to attend the hearing on the
garnishment of Bailey’s wages, appellant waived his right to challenge the claims of the
judgment debtor. Appellant sought a stay of execution, but it was denied.
{¶ 9} In his first assignment of error, appellant argues the municipal court abused
its discretion by approving the magistrate’s decision when the findings are contrary to the
manifest weight of the evidence.
{¶ 10} When a trial court considers objections to a magistrate’s decision, the trial
court must “undertake an independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately applied the
law.” Civ.R. 53(D)(4)(d). The trial court has a responsibility “‘to critically review and
verify to its own satisfaction the correctness of [a magistrate’s decision].’” Shelly
Materials, Inc. v. City of Streetsboro Planning & Zoning Comm., Slip Opinion No.
2018-0237, 2019-Ohio-4499, ¶ 24, quoting Normandy Place Assocs. v. Beyer, 2 Ohio
St.3d 102, 105, 443 N.E.2d 161 (1982). On appeal, an appellate court applies an abuse of
discretion standard of review. A.D., nka B. v. S.P., 6th Dist. Huron No. H-18-007, 2019-
Ohio-653, ¶ 13. Rendering a decision which is “arbitrary, unreasonable, or
unconscionable” constitutes an abuse of discretion. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} Pursuant to R.C. 2716.06(C), if a judgment debtor disputes the judgment
creditor’s right to garnish personal earnings, because such earnings are exempt or the
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order is improper, the debtor can request a hearing. At the hearing, the debtor must prove
the garnishment is unlawful. Id. The scope of the hearing is limited to the issue of the
amount of personal earnings which can be used in satisfaction of the debt owed to the
judgment creditor. Id.; Credit Invests., Inc. v. Addis, 2d Dist. Montgomery No. 26081,
2014-Ohio-4249, ¶ 6, citing Merchants Acceptance, Inc. v. Bucholz, 2d Dist.
Montgomery No. 24425, 2011-Ohio-5556, ¶ 31-33. While the debtor cannot challenge
the underlying debt, the debtor can assert any reason for disputing the creditor’s right to
garnish the funds. R.C. 2716.06(C). The debtor can assert the debt has been satisfied.
Ashtabula Cty. Med. Ctr. v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836,
*2 (June 3, 1988). The creditor, who does not appear and present contrary evidence,
waives the right to challenge the debtor’s claims of exemption or that the debt has been
satisfied. Phoenix Fin. Sols., Inc. v. Gonzales, 5th Dist. Muskingum No. CT2013-0056,
2014-Ohio-3897, ¶ 11.
{¶ 12} However, there is no requirement under R.C. 2716 that the judgment
creditor attend the hearing. Id., citing Ashtabula; Springleaf Fin. Servs. of Ohio, Inc. v.
Bayly, 5th Dist. Guernsey No. 16-CA-26, 2017-Ohio-5546, ¶ 15; Monogram Credit Card
Bank of Georgia v. Hoffman, 3d Dist. Union No. 14-02-24, 2003-Ohio-1578, ¶ 13.
Therefore, a garnishment and debt cannot be released simply because the creditor did not
appear. Springleaf.
{¶ 13} In this case, appellant alleged that the magistrate did not properly consider
the evidence because the evidence in the record indicated that the debt was owed despite
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Bailey’s assertions. First, the record included the clerk’s disbursement record, which
indicated that while $5,869.49 had been garnished, only $4,900.91 was disbursed to
appellant and $968.58 had been returned to Bailey. Second, although appellant had
released the first garnishment, he had not filed a satisfaction of the judgment. Third,
appellant had initiated a second garnishment order and attested the debt was owed, he had
good reason to believe the garnishment was proper, and the debtor’s wages were not
exempt. Therefore, it was clear that while $5,870.48 had been garnished from Bailey’s
wages, those funds had not been properly disbursed to appellant to satisfy the judgment.
The record did not support Bailey’s assertions.
{¶ 14} We find, in light of the objections and the court records, that the municipal
court abused its discretion when it affirmed the magistrate’s decision. While the
magistrate could have been misled by the confusion in the record, appellant’s objections
sufficiently identified the clerk’s error so that the municipal court could have determined
from the record that the debt had not been satisfied and that the reinstatement of the
garnishment was necessary to correct the clerk’s error. Therefore, we find appellant’s
first assignment of error well-taken.
{¶ 15} In his second assignment of error, appellant argues the municipal court
abused its discretion by denying his request for a hearing on his objections to the
magistrate’s decision in order to take testimony to determine if Bailey committed perjury.
Civ.R. 53(D)(4)(d) provides that when the trial court considers the objections of a party
to the magistrate’s order, it “may hear additional evidence but may refuse to do so unless
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the objecting party demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.” There is no requirement that
the trial court hold a hearing before ruling on the objections.
{¶ 16} Since all of the information needed to rule on the objections was before the
municipal court, we find the trial court did not abuse its discretion by refusing to hold an
evidentiary hearing before ruling on the motion. Appellant’s second assignment of error
is not well-taken.
{¶ 17} In his third assignment of error, appellant argues the trial court abused its
discretion by denying his motion for a stay of execution pending appeal.
{¶ 18} Civ.R. 62(B) and App.R. 7 govern the procedure for obtaining a stay of a
judgment pending appeal. After the trial court denied appellant’s motion for a stay filed
pursuant to App.R. 7, appellant could have sought a stay in the court of appeals. App.R.
7(A). Because appellant did not, we find he has waived any error of the trial court in
failing to grant his request for a stay. Therefore, appellant’s third assignment of error is
not well-taken.
{¶ 19} Having found that the trial court did commit error prejudicial to appellant
and that substantial justice has not been done, the judgment of the Toledo Municipal
Court, Housing Division, is reversed. This matter is remanded for proceedings consistent
with this decision. Appellee is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment reversed
and remanded.
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Tillimon v. Bailey
C.A. No. L-19-1072
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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