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Dyer v. Schwan's Home Service, Inc.

Court of Appeals of Ohio, Tenth District

June 6, 2017

Douglas Dyer et al., Plaintiffs-Appellants/ Cross-Appellees,
v.
Schwan's Home Service, Inc. et al. Defendants-Appellees/ Cross-Appellants.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16JG-20111.

         On brief:

          Scott Elliot Smith, L.PA., and Scott E. Smith; Paul W. Flowers Co., L.PA., and Paul W. Flowers, for appellants/cross-appellees.

         Argued:

          Paul W. Flowers.

         On brief:

          Reminger Co., L.PA., Michael J. Valentine, and Melvin J. Davis, for appellees/cross-appellants.

         Argued:

          Melvin J. Davis.

          DECISION

          SADLER, J.

         {¶ 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.

         I. 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 pending.

         {¶ 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, 007.62.

         {¶ 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.[1] 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 garnishment action.

         {¶ 6} The Dyers timely appealed to this court from the August 5, 2016 entry granting a stay in the garnishment action.[2] 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.

         II. 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 ...

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