[Cite as Ohio Dept. of Taxation v. Tolliver, 2016-Ohio-7223.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 103799 and 103800



       STATE OF OHIO DEPARTMENT OF TAXATION
                                                            PLAINTIFF-APPELLANT

                                                      vs.

                         DARYL L. TOLLIVER, ET AL.
                                                                DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                            Case Nos. JL-13-623065 and JL-14-672854

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: October 6, 2016
ATTORNEYS FOR APPELLANT

Mary Spahia-Carducci
Robert J. Mann
Mann & Carducci Co., L.P.A.
1335 Dublin Rd., Suite 212-A
Columbus, OH 43215


FOR APPELLEES

Daryl and Tonya Tolliver, pro se
18912 Scottsdale Blvd.
Cleveland, OH 44122

William J. Amos, pro se
4920 Commerce Pkwy., Suite 3
Cleveland, OH 44128
MELODY J. STEWART, J.:

      {¶1} This appeal is before the court on the accelerated docket pursuant to App.R.

11.1 and Loc. App.R. 11.1.      Accordingly, the plaintiff-appellant, the State of Ohio

Department of Taxation (“DOT”), agrees to this court’s rendering an opinion in brief and

conclusory form. See State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735,

¶ 1. The subject of the two cases consolidated in this appeal is whether DOT may avail

itself of post-judgment discovery under Civ.R. 69 to aid in the execution of its judgment

lien, or whether post-judgment discovery is limited to requesting an order from the trial

court in aid of execution under R.C. 2333.09.

      {¶2} DOT obtained money judgments for unpaid taxes from appellees in their

respective cases. DOT filed judgment liens against appellees under R.C. 5739.13(C) and

5747.13 for unpaid sales and income taxes. DOT requested discovery from appellees

pursuant to Civ.R. 26, 34, and 69. When appellees failed to respond, DOT filed motions

to compel discovery with the court. The court denied the motions, reasoning that DOT

was required to conduct discovery pursuant to R.C. 2333.09 and not Civ.R. 69. DOT

appeals both orders denying its motions to compel. Prior to oral argument, this court’s

administrative judge issued a sua sponte order stating that the denial of the motions to

compel in this case were final appealable orders under R.C. 2505.02.
      {¶3}     A trial court has broad discretion to regulate discovery proceedings.

Accordingly, appellate courts review the decision of the trial court on such matters for an

abuse of discretion. However, where a court’s ruling on a discovery motion is based on

an incorrect legal assumption, appellate courts may review the ruling de novo and correct

the legal error. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d

340, 346, 604 N.E.2d 808 (2d Dist.1992). Because this appeal presents a purely legal

question, we proceed by reviewing the question of law de novo.

      {¶4} Civ.R. 69 states that:

      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.

      {¶5} R.C. 2333.09 states:

      A judgment creditor shall be entitled to an order for the examination of a

      judgment debtor concerning his property, income, or other means of

      satisfying the judgment upon proof by affidavit that such judgment is

      unpaid in whole or in part. Such order shall be issued by a probate judge or
      a judge of the court of common pleas in the county in which the judgment

      was rendered or in which the debtor resides, requiring such debtor to appear

      and answer concerning his property before such judge, or a referee

      appointed by him, at a time and place within the county to be specified in

      the order.

      {¶6} By its terms, R.C. 2333.09 is a permissive statute that allows the judgment

creditor to seek an examination order from the court if the judgment creditor so chooses.

The judgment creditor does not have to use a debtor’s examination to obtain the debtor’s

financial information or other discovery items necessary for executing on a judgment.

Rather, the debtor also has the option of conducting discovery pursuant to the civil rules.

Accord Gordon Constr., Inc. v. Peterbilt of Cincinnati, Inc., 12th Dist. Clermont No.

CA2004-03-018, 2004-Ohio-6662, ¶ 10 (stating, “a judgment creditor is entitled to

enforce its judgment by any means provided by law, including pursuant to Civ. R. 69 or

pursuant to R.C. 2333.09.”); see also Carter-Jones Lumber Co. v. Jewell, 3d Dist. Van

Wert No. 15-08-05, 2008-Ohio-4782, ¶ 14; Dept. of Taxation v. Mason, 12th Dist.

Clermont No. CA2015-08-072, 2016-Ohio-1289, ¶ 13.

       {¶7} Accordingly, we reverse the order of the trial court denying DOT’s motion to

compel.

       {¶8} Judgment reversed and remanded.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
