Mansfield Truck Sales & Serv., Inc. v. Fortney

Jun 2, 2009
2008-COA-040
Versions:2009-Ohio-2686

APPEARANCES:

For Plaintiff-Appellee

STEVEN A. ANDERSON
Box 1014
140 Fair Ave. N.W.
New Philadelphia, OH 44663

For Defendant-Appellant

JOSIAH L. MASON
Box 345
153 West Main Street
Ashland, OH 44805

Gwin, J.,

{¶1} Defendants-appellants Shawn A. and Vicki Fortney appeal a judgment of the Court of Common Pleas of Ashland County, Ohio, which sustained the motion of plaintiff-appellee Mansfield Truck Sales & Service, Inc. formerly known as Heisler’s Truck Sales and Truck Service, Inc. to revive a judgment originally rendered on November 16, 2001. Appellants assign a single error to the trial court:

{¶2} “I. THE COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF THE PLAINTIFF-APPELLEE WITHOUT CONDUCTING A HEARING ON THE DEFENDANT-APPELLANT’S OBJECTION TO A MOTION TO REVIVE A JUDGMENT, ALLOWING THE INTRODUCTION OF EVIDENCE.”

{¶3} The record indicates on June 11, 2008 plaintiff-appellee filed a motion to revive a default judgment against appellants for $18,190.97. It was a deficiency judgment entered after appellee repossessed and sold appellants’ vehicle in 2001.

{¶4} 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.”

{¶5} Both parties cite Leroy Jenkins Evangelistic Association, Inc. v. Equities Diversified, Inc. (1989), 64 Ohio App. 3d 82, 580 N.E.2d 812, which held a trial court must give a judgment debtor an opportunity at a hearing to show cause why a judgment should not be revived. Appellants argue the trial court here failed to provide them with an opportunity to present evidence showing the judgment should not be revived. The court did conduct a hearing on October 2, 2008, but did not permit appellants to introduce evidence they were not notified of the correct date of the sale of the vehicle, and to show the deficiency judgment was inaccurate because the vehicle in question actually sold for more than appellee stated.

{¶6} The trial court cited Heselden Plumbing Co. v. Justice (March 13, 1986), Franklin App. No. 85AP-733. In the Heselden case, the Court of Appeals for the 10th Dist. explained a motion to revive a judgment can be defeated if the judgment debtor shows the judgment has been paid or settled, or is barred by the statute of limitations. Heselden Plumbing at 3, citing Van Nover v. Eshleman (1911), 14 Ohio C.C. (N.S.) 38 and Eshleman v. Van Nover (1913), 89 Ohio St. 48.

{¶7} If at the time it entered the original judgment, a court had subject matter jurisdiction and personal jurisdiction, any defense which could have been raised in the original action is waived and cannot asserted in a revivor proceeding. Heselden Plumbing at 1, citing Lathrem v. Foreman (Ohio App. 154), 145 N.E. 2d 837; McAllister v. The Schlemmer & Graber Co. (1930), 39 Ohio App. 434, 177 N.E. 841; Jackson v. Marshall (1947), 80 Ohio App. 280, 75 N.E.2d 78; and Nestelrode v. Foster (1893), 8 Ohio C.C. 70, 4 Ohio C.D. 385, 1 Ohio Dec. 429.

{¶8} We have reviewed the record, and we agree with the trial court appellants sought to collaterally attack the original judgment and introduce evidence of defenses potentially available to them in the original action but subsequently waived.

{¶9} We find the trial court did not err in sustaining the motion to revive the original judgment. Accordingly, the assignment of error is overruled.

{¶10} For the foregoing reasons, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.

By Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur

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HON. W. SCOTT GWIN

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HON. SHEILA G. FARMER

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HON. WILLIAM B. HOFFMAN

WSG:clw 0520

JUDGMENT ENTRY

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed. Costs to appellant.

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HON. W. SCOTT GWIN

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HON. SHEILA G. FARMER

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HON. WILLIAM B. HOFFMAN