from the Franklin County Court of Common Pleas C.P.C. No.
Elliot Smith, L.PA., and Scott E. Smith; Paul W. Flowers Co.,
L.PA., and Paul W. Flowers, for appellants/cross-appellees.
Reminger Co., L.PA., Michael J. Valentine, and Melvin J.
Davis, for appellees/cross-appellants.
1} Plaintiffs-appellants/cross-appellees, Douglas
and Brenda Dyer ("the Dyers"), appeal from a July
21, 2016 judgment of the Franklin County Court of Common
Pleas granting a motion to stay a garnishment proceeding
against defendant-appellant/cross-appellant Schwan's Home
Service, Inc. ("Schwan's") and ordering the
return of the garnished funds to Schwan's. Schwan's
and defendant-appellee/cross-appellant Debra Rosencrans
Roberts ("Roberts") cross-appeal from the same
judgment. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
2} Schwan's is a corporation with a principal
place of business in Minnesota and a business presence in
Ohio. On December 17, 2007, Roberts, while in the course and
scope of her employment with Schwan's, drove a
Schwan's delivery truck into a vehicle operated by
Douglas Dyer. Douglas Dyer suffered injuries in the accident.
On December 15, 2009, the Dyers commenced a personal injury
action against Schwan's and Roberts in the common pleas
court. A Franklin County jury found Roberts and Schwan's
liable to the Dyers and awarded damages of $10, 988, 793.11.
On June 8, 2016, Judge Stephen L. McIntosh issued a judgment
entry journalizing the jury verdict in favor of the Dyers in
the total amount of $10, 988, 793.11 plus court costs.
See Dyer v. Ohio Bur. of Workers' Comp.,
Franklin C.P. No. 09CVC-18581 (June 8, 2016) ("civil
action"). The June 8, 2016 judgment entry indicates that
it is not a final, appealable order. On June 9, 2016, the
Dyers filed a motion for prejudgment interest pursuant to
R.C. 1343.03(C). On July 7, 2016, Schwan's and Roberts
(hereinafter, collectively "Schwan's") filed a
motion for judgment notwithstanding the verdict and a motion
for new trial or remittitur. These post-trial motions remain
3} The Dyers commenced a separate garnishment
proceeding in the common pleas court on June 16, 2016. The
matter was assigned to Judge David Young. Dyer v.
Schwan's Home Serv., Inc., Franklin C.P. No.
16JG-20111 ("the garnishment action"). On July 5,
2016, the Dyers obtained notices and orders of garnishment of
certain funds held in Schwan's financial accounts. On
July 13, 2016, Schwan's filed a request for a hearing as
to each of the orders of garnishment issued by the trial
court. Beginning July 26, 2016, the garnishees filed answers
to the notices of garnishment and made deposits of garnished
funds with the Franklin County Clerk of Courts
("clerk") pursuant to the trial court's July 5,
2016 orders. The clerk received total deposits of $7, 856,
4} On July 14, 2016, Schwan's filed a motion,
pursuant to Civ.R. 62(A), seeking a stay of enforcement of
the judgment issued in the civil action. On July 19, 2016,
Schwan's filed a motion seeking a stay of proceedings in
the garnishment action. Judge McIntosh granted the July 14,
2016 motion to stay enforcement of judgement in the civil
action on July 21, 2016. The order prohibits the Dyers from
"executing or taking any actions relating to the June 8,
2016 judgment entry and the June 2, 2016 jury verdict."
(July 21, 2016 Jgmt. Entry at 2.) Schwan's subsequently
filed a motion to dismiss the garnishment proceeding on July
21, 2016 and attached to the motion a copy of Judge
McIntosh's July 21, 2016 decision and entry staying
enforcement of the judgment in the civil action.
5} On August 5, 2016, Judge Young issued a stay in
the garnishment action conditioned on the posting of a
supersedeas bond by Schwan's in an amount equal to the
funds deposited with the clerk. In the August 5, 2016 entry,
Judge Young ordered the clerk to return the previously
garnished funds to Schwan's, but he did not dismiss the
6} The Dyers timely appealed to this court from the
August 5, 2016 entry granting a stay in the garnishment
action. Schwan's filed a cross-appeal from the
same judgment claiming that Judge Young erred by failing to
dismiss the garnishment action. Thus, both the appeal and
cross-appeal pertain exclusively to Judge Young's August
5, 2016 order in the garnishment action.
ASSIGNMENTS OF ERROR
7} The Dyers assert the following as their sole
assignment of error:
BECAUSE THE TRIAL COURT EXCEEDED THE JURISDICTIONAL AUTHORITY
CONFERRED IN THIS GARNISHMENT ACTION UNDER R.C. CHAPTER 2716,
THE ORDER THAT WAS ISSUED ON AUGUST 5, 2016 IS VOID AB
INITIO AND THE PARTIES MUST BE RETURNED TO THE
STATUS QUO ANTE.
8} Schwan's asserts the following
cross-assignment of error:
Because it is well-established that a party cannot execute
upon a non-final judgment, the garnishment proceeding that
was improperly initiated by appellants should have been