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Manitou Americas, Inc. v. Woolum

Court of Appeals of Ohio, Twelfth District, Butler

July 1, 2019

MANITOU AMERICAS, INC. fka GEHL COMPANY, Appellee,
v.
NOAH K. WOOLUM dba NOAH'S FARMS, Appellant.

          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2011-08-2972

          Hochscheid & Associates, LLC, Tabitha M. Hochscheid, for appellee

          Holcomb & Hyde, LLC, Richard A. Hyde, for appellant

          OPINION

          M. POWELL, J.

         {¶ 1} Appellant, Noah K. Woolum dba Noah's Farms ("Woolum"), appeals an order of the Butler County Court of Common Pleas reviving a dormant judgment against him.

         {¶ 2} On March 8, 2012, appellee, Manitou Americas, Inc. fka Gehl Company ("Manitou"), obtained a default judgment against Woolum in the amount of $26, 943.15, plus interest at the rate of 4.5 percent per annum and court costs. The judgment became dormant. On January 9, 2018, Manitou moved the trial court to revive the judgment. The clerk of courts sent a summons and a copy of the motion for revivor to Woolum by certified mail at an address on New London Road in Hamilton, Ohio. On January 18, 2018, service was successfully made upon Woolum by certified mail. Woolum took no action.

         {¶ 3} On January 25, 2018, a magistrate issued a Conditional Order of Revivor and Praecipe. The conditional order revived the judgment, scheduled a hearing for March 20, 2018, "at which time [Woolum] may show cause why the judgment should not be revived," and ordered that the conditional order be served upon Woolum by certified mail. The conditional order further provided, "Upon service, [Woolum] shall have [28] days to file a response with the Court or their right to challenge will be forfeited and this Conditional Order shall become the final order of the Court."

         {¶ 4} The clerk of courts sent Woolum a copy of the conditional order by certified mail on January 30, 2018. The order was sent to the same New London Road address above. The certified mail was returned as "unclaimed." Subsequently, Woolum was successfully served with the conditional order by ordinary mail on March 5, 2018. On March 21, 2018, Woolum's counsel filed a notice of appearance and an objection to the conditional order of revivor, requesting a hearing. Woolum claimed his objection was timely filed because he was not served with the conditional order of revivor until March 5, 2018.

         {¶ 5} On April 26, 2018, the trial court overruled Woolum's objection without a hearing. The trial court found that Woolum was personally served with the motion for revivor on January 18, 2018. The trial court further found that Woolum's "objection was not filed until 62 days after he personally accepted receipt of the motion," and was therefore untimely.

         {¶ 6} Woolum appeals, raising one assignment of error:

         {¶ 7} THE TRIAL COURT DID COMMIT REVERSIBLE ERROR WHEN IT DENIED APPELLANT'S OBJECTION AND MOTION FOR A HEARING.

         {¶ 8} Woolum argues he was denied procedural due process because the conditional order was issued before the time frame for a response had passed, and the dormant judgment was revived without giving him an opportunity to show cause as to why the judgment should not be revived. Woolum acknowledges he was served with the motion for revivor on January 18, 2018. Woolum asserts that he and his attorney appeared for the March 20, 2018 hearing as scheduled in the conditional order, however no hearing was held. The docket does not reflect that a hearing was held on March 20, 2018. The following day, Woolum filed his objection to reviving the judgment. A month later, the trial court overruled the objection as untimely and revived the judgment without a hearing.

         {¶ 9} A proceeding to revive a judgment is not a new action, but merely a motion in the original action. State v. Jones, 12th Dist. Warren No. CA2000-02-015, 2000 Ohio App. LEXIS 4802, *8 (Oct. 16, 2000); Omni Credit Servs. v. Leston, 2d Dist. Montgomery No. 25287, 2013-Ohio-304, ¶ 19. Revivor of a dormant judgment is a statutory proceeding governed by R.C. 2325.15 and 2325.17. Leston at ¶ 21.

         {¶ 10} R.C. 2325.15 addresses the procedures set forth for reviving dormant judgments and provides that "[w]hen a judgment * * * is dormant, * * * such judgment may be revived * * * in the manner prescribed for reviving actions before judgment, ...


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