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Wiegand v. Fabrizi Trucking & Paving Co. Inc.

Court of Appeals of Ohio, Ninth District, Lorain

June 28, 2019

LOU ANN WIEGAND Appellant
v.
FABRIZI TRUCKING & PAVING CO. INC. Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CJ102658

          MARK E. STEPHENSON, Attorney at Law, for Appellant.

          JOHN R. CHRISTIE, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE

         {¶1} Plaintiff-Appellant, Lou Ann Wiegand, appeals the judgment of the Lorain County Court of Common Pleas directing the disbursement of funds to Defendant-Appellee, Fabrizi Trucking & Paving Co., Inc. ("Fabrizi").

         I.

         {¶2} On October 5, 2015, the Medina County Court of Common Pleas entered a judgment in Ms. Wiegand's favor and against Fabrizi in the amount of $60, 601.90. The Medina County Court of Common Pleas subsequently denied Ms. Wiegand's motion for a new trial and Ms. Wiegand appealed. This Court affirmed. See Wiegand v. Fabrizi Trucking & Paving Co., Inc., 9th Dist. Medina No. 16CA0015-M, 2017-Ohio-363, appeal not accepted, 151 Ohio St.3d 1425, 2017-Ohio-8371.

         {¶3} On January 8, 2018, approximately two months after the Supreme Court of Ohio declined jurisdiction of Ms. Wiegand's appeal, she filed a certificate of judgment with the clerk of Lorain County Court of Common Pleas, which was issued by the Medina County court in the underlying matter. The certificate of judgment stated, in part, that Ms. Wiegand was granted judgment against Fabrizi in the amount of $60, 201.90 plus 3% interest from October 5, 2015.

         {¶4} On February 26, 2018, Ms. Wiegand filed a motion for order of garnishment of property other than personal earnings and an affidavit for garnishment of property other than personal earnings in the Lorain County Court of Common Pleas, initiating the present matter. The trial court thereafter issued an order and notice of garnishment to the garnishee, Westfield Bank, FSB, ordering the bank to complete and return the answer of garnishee to the clerk of the Lorain County Court of Common Pleas together with the probable amount then due on the judgment of $64, 759.54. The trial court also scheduled a hearing as required by R.C. 2716.13(A). On March 1, 2018, pursuant to R.C. 2716.13, the clerk sent by certified mail, two copies of the notice to the judgment debtor form and two requests for hearing forms.

         {¶5} On March 14, 2018, Westfield Bank returned its answer of garnishee together with $64, 759.54 then belonging to Fabrizi. On March 20, 2018, Fabrizi filed a response to the garnishment order. Fabrizi did not contest the sum due on the underlying judgment, but argued that it had previously tendered payment in full to Ms. Wiegand's counsel and that Ms. Wiegand's counsel had rejected the payment. Therefore, Fabrizi argued, interest should have terminated upon the attempted tendering of the judgment amount. Ms. Wiegand replied to Fabrizi's response on April 9, 2018, arguing that the attempted tender of payment was rejected because the matter was still pending appeal and the tender was conditional and thus, the interest never stopped accruing.

         {¶6} On March 22, 2018, Fabrizi filed a motion for interpleader pursuant to Civ.R. 22 requesting the court allow Fabrizi's insurer to deposit funds in the total amount due in the underlying judgment and to refund the garnished funds to Fabrizi's account at Westfield Bank. Ms. Wiegand opposed the motion for interpleader and requested an order directing the clerk to disburse the garnished funds on March 28, 2018.

         {¶7} The lower court scheduled an oral hearing on June 15, 2018, to consider Ms. Wiegand's request for an order releasing funds and Fabrizi's motion for interpleader. On June 22, 2018, Fabrizi filed a motion disputing the amount of interest due on the underlying judgment. The court thereafter issued an order on June 29, 2018, noting that Fabrizi had withdrawn its motion for interpleader during the hearing and directing the disbursement of funds. The court ordered the clerk to return $4, 323.54 to Fabrizi and to pay Ms. Wiegand the balance of $60, 201.00 after the deduction of poundage.

         {¶8} On July 2, 2018, Ms. Wiegand filed a response to Fabrizi's motion disputing the amount of interest and stating that Ms. Wiegand's counsel had not been served with the motion disputing the interest due. The trial court vacated its previous order directing the clerk to disburse funds. Fabrizi thereafter filed a reply brief to Ms. Wiegand's response.

         {¶9} On August 8, 2018, the trial court again issued an order directing the disbursement of funds, ordering the clerk to return $4, 323.54 to Fabrizi and to pay Ms. Wiegand the balance of $60, 201.00 after the deduction of poundage. Neither the August 8, 2018 order nor the prior order disbursing funds contained any findings of fact or conclusions of law regarding the issue of ...


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