AUTO NOW ACCEPTANCE CO., LLC, vs. SHAWNA BRICKEY

} 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

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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.

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{¶ 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.

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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.

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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.

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.