 [Cite as HRM, L.L.C. v. Shopsmith, Inc., 2013-Ohio-3276.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 HRM, LLC, dba EXTENDED STAY HOTELS

         Plaintiff-Appellee

 v.

 SHOPSMITH, INC.


         Defendant-Appellant


 Appellate Case No.       25374

 Trial Court Case No. 2010-CVF-179

 (Civil Appeal from
 (Municipal Court)
                                                ...........

                                               OPINION

                                  Rendered on the 26th day of July, 2013.

                                                ...........

JAMES Y. OH, Atty. Reg. No. 0070325, 1100 Superior Avenue, 19th Floor, Cleveland, Ohio
44114-2581, STEVEN E. ALSIP, Atty. Reg. No. 83565, 700 Walnut Street, Suite 300, Cincinnati,
Ohio 45202
       Attorneys for Plaintiff-Appellee

JOHN R. FOLKERTH, JR., Atty. Reg. No. 16366, 109 North Main Street, 500 Performance Place,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                               .............
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WELBAUM, J.

        {¶ 1}     Appellant, Robert Folkerth, in his capacity as a former corporate officer of

 Shopsmith, Inc., appeals from the trial court’s Order and Entry requiring him to attend and bring

 financial documents to a debtor examination.          Folkerth contends that the trial court lacks

 personal jurisdiction over him because he was not a party to the underlying lawsuit against

 Shopsmith, Inc. However, Folkerth concedes that, pursuant to R.C. 2333.17 and Civ.R. 69, the

 trial court has jurisdiction to order him to attend a debtor examination.

        {¶ 2}     Folkerth also contends that the trial court exceeded its jurisdiction when it

 ordered him to bring documentation to a debtor examination without a subpoena. Folkerth did

 not present his second argument to the trial court, but he claims that it is still subject to appellate

 review under the plain-error doctrine.

        {¶ 3}     We conclude that, pursuant to R.C. 2333.17 and Civ.R. 69, the trial court had

 jurisdiction over Folkerth.     We also conclude that Folkerth waived his second argument

 regarding the trial court’s ability to order him to bring documentation to a debtor examination

 without the court having issued a subpoena, because Folkerth failed to present the argument to

 the trial court. We further conclude that the plain-error doctrine does not apply to permit

 appellate review of Folkerth’s waived argument, because the plain-error doctrine is not favored in

 civil cases, and the trial court’s order did not create a manifest miscarriage of justice.

 Accordingly, the decision of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

        {¶ 4}    On January 29, 2010, HRM, LLC d/b/a Extended Stay Hotels, (“Extended Stay”)
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filed a Complaint in the Vandalia Municipal Court against Shopsmith, Inc., (“Shopsmith”) for an

overdue account balance of $6,339.10, plus interest.     Service of the Complaint was perfected on

February 1, 2010, and Shopsmith failed to file an Answer. On October 19, 2010, Extended Stay

obtained a default judgment against Shopsmith and attempted post-judgment collection.

       {¶ 5}     On July 31, 2012, Extended Stay filed a Motion for Debtor Examination of

Robert Folkerth, who was the president of Shopsmith until the corporation dissolved in

December 2009.      The motion instructed Folkerth to bring W-2's, 1099s, a pay stub, bank

statements, and any other documentation concerning his income to the debtor examination. The

trial court granted the motion and ordered Folkerth to appear at court on September 11, 2012, for

the debtor examination. Folkerth was personally served notice of the proceeding by the court

bailiff on August 6, 2012.

       {¶ 6}     On August 21, 2012, Folkerth filed a Motion to Vacate Judgment Order in Aid of

Execution on grounds that the trial court lacked personal jurisdiction because he was not a party

in the lawsuit against Shopsmith. On September 10, 2012, the trial court overruled Folkerth’s

motion and ordered him to appear at the debtor examination with the requested financial

documentation.     Folkerth did not appear at the debtor examination, and he did not produce the

requested documentation. Instead, Folkerth appealed the trial court’s order.



II. Did the Trial Court Err in Ordering the Appellant to Attend and Bring Documents to

                                     a Debtor Examination?

       {¶ 7}     Folkerth states the following as his sole assignment of error:

               The Municipal Court Erred by Issuing an Order for Robert Folkerth to
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       Appear for a Debtor’s Examination and Bring Documents, as the Municipal Court

       Lacks Personal Jurisdiction Over Mr. Folkerth.

       {¶ 8}    Under this assignment of error, Folkerth argues that: (1) the trial court lacked

personal jurisdiction over him because he was not a party to the underlying lawsuit against

Shopsmith; and (2) the trial court exceeded its jurisdiction when it ordered him to bring financial

documentation to a debtor examination without the court having issued a subpoena.

       {¶ 9}    With respect to Folkerth’s first argument regarding personal jurisdiction,

Folkerth conceded in his brief that R.C. 2333.17 empowers the trial court to order his appearance

at the debtor examination. R.C. 2333.17 provides that in a proceeding in aid of execution, such

as a debtor examination, “a party or witness may be compelled, by an order of the judge or by a

subpoena, to attend, before a judge or referee, to testify.” (Emphasis added.) Additionally,

Civ.R. 69 provides that “[i]n aid of the judgment or execution, the judgment creditor * * * may *

* * obtain discovery from any person * * *.”          (Emphasis added.)      Other districts have

exercised jurisdiction over non-parties for purposes of obtaining testimony or other materials to

aid in the execution of a judgment. See Gordon Constr. v. Peterbilt of Cincinnati, Inc., 12th

Dist. Clermont No. CA2004-03-018, 2004-Ohio-6662, ¶ 8; Carter-Jones Lumber Co. v. Jewell,

3d Dist. Van Wert No. 15-08-05, 2008-Ohio-4782, ¶ 13; Schluter v. PSL Motors, Inc., 5th Dist.

Richland No. 99 CA 67, 2000 WL 964965, *2 (June 29, 2000). Accordingly, the fact that

Folkerth was not a party to the underlying lawsuit against Shopsmith does not prevent the trial

court from ordering him to appear at a debtor examination.

       {¶ 10} Folkerth’s second argument claims that the trial court exceeded its jurisdiction

when it ordered him to bring financial documentation to the debtor examination. Folkerth
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contends that he could only be compelled to bring documentation to the debtor examination upon

the issuance of a subpoena pursuant to Civ.R. 34(C) and Civ.R. 45.

          {¶ 11} Folkerth did not assert his second argument at the trial court level. Folkerth only

argued that the trial court did not have personal jurisdiction over him because he was not a party

to the underlying lawsuit against Shopsmith. As a result, the trial court was not given the

opportunity to consider whether it exceeded its jurisdiction by compelling Folkerth to produce

documents without a subpoena.

          {¶ 12}   “ ‘Ordinarily, reviewing courts do not consider questions not presented to the

court whose judgment is sought to be reversed.’ ” State ex rel. Quarto Mining Co. v. Foreman,

79 Ohio St.3d 78, 81, 679 N.E.2d 706 (1997), quoting Goldberg v. Industrial Commission of

Ohio, 131 Ohio St. 399, 404, 3 N.E.2d 364 (1936). (Other citations omitted.) “Nor do appellate

courts have to consider an error which the complaining party ‘could have called, but did not call,

to the trial court’s attention at a time when such error could have been avoided or corrected by

the trial court.’ ” Id., quoting State v. Williams, 51 Ohio St.2d 112, 117, 364 N.E.2d 1364

(1977).

          {¶ 13}   In this case, Folkerth concedes that he failed to present his second argument to

the trial court. Furthermore, Folkerth could have brought the subpoena issue to the trial court’s

attention in his Motion to Vacate Judgment Order in Aid of Execution. Regardless, Folkerth

claims that his argument is still reviewable on appeal because the trial court’s order amounts to

plain error.

          {¶ 14}   “A plain error is an obvious error which is prejudicial to the accused and which,

if allowed to stand, would have a substantial adverse impact on the integrity of and the
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confidence in judicial proceedings.” State v. Allen, 2d Dist. Greene No. 95-CA-38, 1996 WL

86231, *4 (Mar. 1, 1996), citing State v. Craft, 52 Ohio App.2d 1, 367 N.E.2d 1221 (1st Dist.

1977). The plain-error doctrine “allows recognition of some few errors even when not objected

to at the trial level,” and “is applicable to civil cases where necessary to prevent a manifest

miscarriage of justice.” Gregg v. Phillips, 2d Dist. Montgomery No. CA14441, 1995 WL

140718, *3 (Mar. 29, 1995), citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 480 N.E.2d 802

(1985). However, it is well established that:

       The plain-error doctrine is not favored in appeals of civil cases, “and may be

       applied only in the extremely rare case involving exceptional circumstances where

       error, to which no objection was made at the trial court, seriously affects the basic

       fairness, integrity, or public reputation of the judicial process, thereby challenging

       the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79

       Ohio St.3d 116, 1997–Ohio–401. Stewart v. Nazir, 2d Dist. Montgomery No.

       23806, 2010–Ohio–6346, ¶ 26.

       {¶ 15} In this case, the trial court’s order for Folkerth to bring documentation with him

to a debtor examination without the court having issued a subpoena does not create a manifest

miscarriage of justice, as it does not seriously affect the basic fairness, integrity, or public

reputation of the judicial process.   As previously discussed, R.C. 2333.17 permits a party to be

compelled by an order of the court to attend a debtor examination. While the statute does not

directly mention the court’s ability to compel a judgment debtor to bring documentation to the

debtor examination, the statute may be construed to include this authority because:

       statutes pertaining to attachment and execution are remedial in nature and,
                                                                                           7


       therefore, [are] to be construed liberally for the benefit of the judgment creditor.

       Weirick v. Mansfield Lumber Co. (1917), 96 Ohio St. 386, at 395, 117 N.E. 362;

       Hart v. Andrews (1921), 103 Ohio St. 218, 132 N.E. 846, paragraph two of the

       syllabus; State Natl. Bank v. Fryman (1971), 27 Ohio Misc. 12, 13, 272 N.E.2d

       217 (citations omitted). In doing so, the rules may be “so applied as to extend the

       statute beyond its actual language to cases within its reason and general intent.”

       Rice v. Wheeling Dollar Sav. & Trust Co. (1951), 155 Ohio St. 391, 396, 99

       N.E.2d 301 (citation omitted); Fryman, 27 Ohio Misc. at 13, 272 N.E.2d 217

       (citations omitted). Bates v. Midland Title of Ashtabula County, Inc., 11th Dist.

       Lake No. 2003-L-127, 2004-Ohio-6325, ¶ 41.

       {¶ 16} Construing R.C. 2333.17 to mean that a trial court may additionally order a

debtor to produce financial documents during a debtor examination is within the statute’s reason

and general intent because the purpose of a debtor examination is to obtain information regarding

the judgment debtor’s assets.     This interpretation also benefits the judgment creditor, as it

permits the creditor to obtain specific information about the debtor’s assets.

       {¶ 17} The fact that the documentation was not requested by a subpoena, [which is the

mechanism for obtaining documentation from non-parties pursuant to Civ. R. 34(C) and Civ. R.

45] does not prejudice Folkerth.      The requested documentation was listed and attached to

Extended Stay’s Motion for Debtor Examination, and the motion was personally served on

Folkerth. The trial court reviewed the list of requested documents, and subsequently ordered

Folkerth to appear and produce the documents. The same procedure has been implemented by

other trial courts in Ohio. See Bates at ¶ 8, fn. 1; Wolfrom v. Wolfrom, 10th Dist. Franklin No.
                                                                                          8


96APE10-1308, 1997 WL 253832, *2 (May13, 1997). Furthermore, the outcome would have

been the same had a subpoena been filed, as the subpoena would have also ordered Folkerth to

appear and produce documents.

       {¶ 18} For the foregoing reasons, Folkerth is not prejudiced by the trial court ordering

him to bring documents to a debtor examination. The order also does not have a substantial,

adverse impact on the integrity of and the confidence in judicial proceedings, because a creditor

is permitted to obtain discovery from any person in aid of execution. Accordingly, there is no

manifest miscarriage of justice and this case does not present a rare, exceptional circumstance in

which the plain error doctrine should be applied. We will therefore treat Folkerth’s second

argument as having been waived.

       {¶ 19}     As there are no other arguments left to be considered, we overrule Folkerth’s

sole assignment of error.



                                        III. Conclusion

       {¶ 20} Having overruled Robert Folkerth’s sole assignment of error, the trial court’s

Order and Entry requiring Folkerth to attend a debtor examination with financial documentation

is affirmed.

                                         .............

FAIN, P.J. and FROELICH, J., concur.



Copies mailed to:

James Y. Oh
Steven E. Alsip
                        9


John R. Folkerth, Jr.
Hon. Cynthia M. Heck
