[Cite as Ohio Dept. of Taxation v. Mason, 2016-Ohio-1289.]

                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




STATE OF OHIO, DEPARTMENT                              :
OF TAXATION,                                                   CASE NO. CA2015-08-072
                                                       :
        Appellant,                                                     OPINION
                                                       :                3/28/2016

   - vs -                                              :

                                                       :
TIMOTHY L. MASON,
                                                       :
        Appellee.
                                                       :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2010-ST-0991



Mann & Carducci Co., LPA, Mary Spahia-Carducci and Robert J. Mann, 1335 Dublin Road,
Suite 212-A, Columbus, Ohio 43215, for appellant

Timothy L. Mason, 1200 Forest Run Drive, Batavia, Ohio 45103, appellee, pro se



        S. POWELL, J.

        {¶ 1} Appellant, State of Ohio, Department of Taxation ("Department"), appeals from

the decision of the Clermont County Court of Common Pleas denying its motion to compel

discovery from appellee, Timothy L. Mason. For the reasons outlined below, we reverse and

remand for further proceedings.1


1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar.
                                                                               Clermont CA2015-08-072

        {¶ 2} This case involves the Department's post-judgment attempt to collect on one of

several tax judgment liens filed against Mason for unpaid personal income tax liability owed

to the state totaling more than $250,000. As relevant here, on February 16, 2010, the

Department filed a praecipe with the trial court certifying that a tax judgment lien against

Mason amounting to $56, 431.77 had become final by operation of law. Several years later,

on December 19, 2014, the Department served Mason with a request for production of

documents in accordance with Civ.R. 26, 34, and 69, specifically asking Mason to respond to

its discovery request "within twenty-eight (28) days of service herein."

        {¶ 3} On July 1, 2015, after Mason failed to respond to the Department's request, the

Department filed a motion to compel in accordance with Civ.R 37(D). The trial court,

however, denied the Department's motion by finding "[i]t is clear that [the Department] failed

to designate a period of time in which [Mason] was to respond to the requests consistent with

[Civ.R. 26, 34, and 69]." The trial court also determined that the Department "shortened the

response time without leave of court by stating that the responses were due within twenty-

eight (28) days from service of each."

        {¶ 4} The Department now appeals from the trial court's decision denying its motion

to compel, raising three assignments of error for review. For ease of discussion, we will

address the Department's three assignments of error together.2

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE LOWER COURT ERRED AS A MATTER OF LAW IN DENYING [THE

DEPARTMENT'S] MOTION TO COMPEL ON THE ALLEGED GROUNDS THAT THE

REQUEST FOR PRODUCTION OF DOCUMENTS FAILED TO DESIGNATE A PERIOD OF



2. We note that Mason did not file an appellate brief for our consideration in this matter. Pursuant to App.R.
18(C), when an appellee fails to file a brief, "in determining the appeal, the court may accept the appellant's
statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to
sustain such action."
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TIME IN WHICH TO RESPOND.

        {¶ 7} Assignment of Error No. 2:

        {¶ 8} THE LOWER COURT ERRED AS A MATTER OF LAW IN DENYING [THE

DEPARTMENT'S] MOTION TO COMPEL ON THE GROUNDS THAT THE REQUEST FOR

PRODUCTION OF DOCUMENTS FAILED TO PROVIDE THE RESPONSE TIME

PERMITTED UNDER RULE 34 OF THE OHIO RULES OF CIVIL PROCEDURE.

        {¶ 9} Assignment of Error No. 3:

        {¶ 10} THE LOWER COURT ERRED IN FAILING TO GRANT [THE DEPARTMENT'S]

MOTION TO COMPEL.

        {¶ 11} In its three assignments of error, the Department argues the trial court erred by

denying its motion to compel.3 We agree.

        {¶ 12} Generally, trial courts are given broad discretion in the management of

discovery. Baker v. Meijer Stores Ltd. Partnership, 12th Dist. Warren No. CA2008-11-136,

2009-Ohio-4681, ¶ 11. As a result, "an appellate court will not reverse a trial court's decision

to sustain or overrule a motion to compel discovery absent an abuse of discretion." Stark v.

Govt. Accounting Solutions, Inc., 10th Dist. Franklin No. 08AP-987, 2009-Ohio-5201, ¶ 14.

However, "where a trial court's order is based on a misconstruction of law, it is not

appropriate for a reviewing court to use an abuse-of-discretion standard." Van-Am. Ins. Co.

v. Schiappa, 132 Ohio App.3d 325, 330 (7th Dist.1999), citing Castlebrook, Ltd. v. Dayton

Properties Ltd. Partnership, 78 Ohio App.3d 340, 346 (2d Dist.1992). Rather, this court will

apply a de novo standard of review. Myosky v. Myosky, 6th Dist. Ottawa No. OT-14-002,




3. This court originally dismissed this appeal after finding the order appealed from was not a final and
appealable order. However, on reconsideration, this court reinstated the appeal, concluding the order appealed
was a final and appealable order from a post-judgment collection action where there were no further matters
pending before the trial court. Ohio Dept. of Taxation v. Mason, 12th Dist. Clermont No. CA2015-08-072 (Nov.
12, 2015) (Entry Granting Application for Reconsideration and Reinstating Appeal).
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2014-Ohio-4398, ¶ 11. In conducting a de novo review, "this court independently reviews the

record without giving deference to the trial court's decision." Roberts v. Mike's Trucking, Ltd.,

12th Dist. Madison Nos. CA2013-04-011 and CA2013-04-014, 2014-Ohio-766, ¶ 24.

       {¶ 13} "Civ.R. 69 controls the process to enforce a money judgment after it is entered."

Gordon Constr., Inc. v. Peterbilt of Cincinnati, Inc., 12th Dist. Clermont No. CA2004-03-018,

2004-Ohio-6662, ¶ 8. Civ.R. 69 provides:

              Process to enforce a judgment for the payment of money shall
              be a writ of execution, unless the court directs otherwise. The
              procedure on execution, in proceedings supplementary to and in
              aid of a judgment, and in proceedings on and in aid of execution
              shall be as provided by law. In aid of the judgment or execution,
              the judgment creditor or his successor in interest when that
              interest appears of record, may also obtain discovery from any
              person, including the judgment debtor, in the manner provided in
              these rules.

Civ.R. 69, therefore, "expressly permits a judgment creditor to conduct post judgment

discovery." Carter-Jones Lumber Co. v. Jewell, 3d Dist. Van Wert No. 15-08-05, 2008-Ohio-

4782, ¶ 14. This can be done through the use of all discovery devices set forth within the

Ohio Rules of Civil Procedure. Schluter v. PSL Motors, Inc., 5th Dist. Richland No. 99 CA 67,

2000 WL 964965, *3 (June 29, 2000).

       {¶ 14} As noted above, on December 19, 2014, the Department served Mason with a

request for production of documents in accordance with Civ.R. 26, 34, and 69, specifically

asking Mason to respond to its discovery request "within twenty-eight (28) days of service

herein." The trial court, however, found the Department's request was invalid because it did

not comply with the requirements of the Civil Rules, particularly that of Civ.R. 34(B)(1), which

provides, in pertinent part:

              The party upon whom the request is served shall serve a written
              response within a period designated in the request that is not
              less than twenty-eight days after the service of the request or
              within a shorter or longer time as the court may allow.


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(Emphasis added.)

       {¶ 15} Although not directly on point, the Ohio Supreme Court dealt with a similar

issue in Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66 (1985), as it relates to a request for

admissions under Civ.R. 36. Pursuant to Civ.R. 36(A)(1):

                Each matter of which an admission is requested shall be
                separately set forth. The party to whom the requests for
                admissions have been directed shall quote each request for
                admission immediately preceding the corresponding answer or
                objection. The matter is admitted unless, within a period
                designated in the request, not less than twenty-eight days after
                service of the request or within such shorter or longer time as the
                court may allow, the party to whom the request is directed serves
                upon the party requesting the admission a written answer or
                objection addressed to the matter, signed by the party or by the
                party's attorney.

(Emphasis added.)

       {¶ 16} In Willis, appellant was served with a request for admissions that required a

response "within twenty-eight 28 days," the same language contained in the Department's

request for production of documents at issue here. Id. at 66. Appellant, however, failed to

file a timely response, thus rendering the admissions deemed admitted. Id. The matter was

then appealed, where appellant argued the admissions should not be deemed admitted since

"the instruction with respect to the response time for the requests was improper and that a

proper instruction would have read 'within thirty-two (32) days.'" Id. at 68.

       {¶ 17} In support of this argument, appellant relied on a municipal court opinion in

Buckeye Union Ins. Co. v. McGraw, 64 Ohio Misc. 61 (M.C.1980), which found "the minimum

time prescribed by the rules for response to requests to admit which are served by mail is

thirty-two days." The Supreme Court, however, disagreed with the holding in McGraw and

the municipal court's interpretation and construction of Civ.R. 36. In so holding, the Supreme

Court stated:

                In Buckeye Union Ins. Co. v. McGraw, supra, the court stated
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                                                                   Clermont CA2015-08-072

              that the minimum time prescribed by the rules for response to
              requests to admit which are served by mail is thirty-two days.
              The court calculated the minimum prescribed time by adding the
              twenty-eight days provided for in Civ.R. 36(A) to the additional
              three days provided for in Civ.R. 6(E) when notice is received by
              mail and then adding a day based on its interpretation of the
              preposition "within" as used in Civ.R. 36(A). The court stated
              that if the instruction with respect to the response time for
              requests to admit fails to give the minimum prescribed time
              period the party served may ignore the requests.

              We disagree with the municipal court's interpretation and
              construction of the rules. Civ.R. 36(A) states that responses are
              due "within a period designated in the request, not less than
              twenty-eight days." A designated period of twenty-eight days
              satisfies the requirement of the rule.

(Emphasis added.)

       {¶ 18} In light of the Supreme Court's decision in Willis, and because Civ.R. 34(B)(1)

and 36(A)(1) contain identical language indicating the recipient was to respond "not less than

twenty-eight days after service of the request," we find the trial court erred by denying the

Department's motion to compel. In reaching this decision, we note that the two cases relied

on by the trial court, McGreevy v. Bassler, 10th Dist. Franklin No. 07AP-283, 2008-Ohio-328;

and Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist. Montgomery No. 23792, 2010-Ohio-4762,

are distinguishable from the case at bar since both cases deal with situations where there

was no established date upon which the recipient was to respond, whereas in this case, the

Department's discovery request specifically provided Mason with a designated period of 28

days. Therefore, because we find trial court erred by denying the Department's motion to

compel, the Department's three assignments of error are sustained, the trial court's decision

is reversed, and this matter is remanded for further proceedings.

       {¶ 19} Judgment reversed and remanded.


       PIPER, P.J., and HENDRICKSON, J., concur.



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