[Cite as Luck v. Klayman, 2017-Ohio-8231.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 105239



                              STEPHANIE ANN LUCK

                                                      PLAINTIFF-APPELLEE

                                                vs.

                          LARRY ELLIOT KLAYMAN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                           Civil Appeal from the
                  Cuyahoga County Court of Common Pleas
                         Case No. CV-14-828766
        BEFORE: McCormack, P.J., Stewart, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                     October 19, 2017
FOR APPELLANT

Larry Klayman, pro se
2020 Pennsylvania Ave., N.W. #800
Washington, D.C. 20006


ATTORNEYS FOR APPELLEE

Robert B. Weltman
David S. Brown
Jack W. Hinneberg
Weltman Weinberg & Reis Co., L.P.A.
323 Lakeside Avenue, Ste. 200
Cleveland, OH 44113


ALSO LISTED

For Judicial Watch Inc.

Thomas J. Wilson
Comstock Springer & Wilson Co. L.P.A.
100 Federal Plaza East, Ste. 926
Youngstown, OH 44503-1811
TIM McCORMACK, P.J.:

       {¶1}   In this creditor’s bill action, defendant-appellant Larry Klayman appeals

from the decision of the trial court granting summary judgment for plaintiff-appellee

Stephanie Luck.    For the reasons that follow, we affirm.

Procedural and Substantive History

       {¶2} Klayman and Luck were married and had two children together.              Upon

their divorce in 2003, the two entered into a separation agreement.    A case was initiated

in the Cuyahoga County Domestic Relations Court that ultimately resulted in a judgment

in favor of Luck for $325,500 in 2011. This court upheld that judgment on appeal.

Klayman v. Luck, 8th Dist. Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354. This

2011 judgment remains unsatisfied.

       {¶3} In 2013, Klayman filed a defamation action against his former employer

Judicial Watch, Inc. (“Judicial Watch”) in the U.S. District Court for the Southern District

of Florida. A jury awarded Klayman $181,000 in damages.

       {¶4} On June 23, 2014, Luck filed a creditor’s bill against Klayman and Judicial

Watch seeking to enjoin Judicial Watch from paying Klayman anything due on the 2013

judgment in favor of applying the funds to Luck’s 2011 judgment.

       {¶5} On January 5, 2015, Luck propounded her first set of combined discovery

requests to Klayman in the creditor’s bill action. Included in these requests was Luck’s

request for admission No. 4, in which Luck requested that Klayman admit he had no real
or personal property sufficient to satisfy her 2011 judgment against him.            After

requesting multiple extensions to respond to Luck’s discovery requests, Klayman

responded to Luck’s request for admission No. 4 with a general objection.      On July 21,

2015, the trial court ordered Klayman to answer this request for admission with an

unqualified admission or denial. Klayman failed to respond.

       {¶6}       On December 5, 2016, the trial court granted Luck’s motion for summary

judgment and found that Luck’s request for admission No. 4 was deemed admitted and

established as a matter of law. The trial court found that Luck was entitled to judgment

as a matter of law on her creditor’s bill because she established all three elements

required under R.C. 2333.01, and no genuine issue of material fact existed as to any of the

three elements.

       {¶7} On appeal, Klayman raises three assignments of error for our review.        He

argues that the trial court erred in granting summary judgment in favor of Luck    because

(I) the trial court did not have jurisdiction to enjoin Klayman from receiving the proceeds

of a federal judgment, (ii) the trial court improperly disregarded Klayman’s right to

financial privacy, and (iii) there exists a genuine issue of material fact as to whether

Luck’s initial judgment against Klayman is valid.

Summary Judgment Review

      {¶8} We review the trial court’s summary judgment de novo, applying the same

standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
       {¶9} Under Civ.R. 56(C), summary judgment is appropriate when (1) there is no

genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of

law, and (3) after construing the evidence most favorably for the party against whom the

motion is made, reasonable minds can reach only a conclusion that is adverse to the

nonmoving party.

       {¶10} R.C. 2333.01 sets forth the criteria for a sufficient creditor’s bill as follows:

       When a judgment debtor does not have sufficient personal or real property
       subject to levy on execution to satisfy the judgment, any equitable interest
       which he has in real estate as mortgagor, mortgagee, or otherwise, or any
       interest he has in a banking, turnpike, bridge, or other joint-stock company,
       or in a money contract, claim, or chose in action, due or to become due to
       him, or in a judgment or order, or money, goods, or effects which he has in
       the possession of any person or body politic or corporate, shall be subject to
       the payment of the judgment by action.

The three essential elements to a claim under R.C. 2333.01 are:        (1) the existence of a

valid judgment against a debtor, (2) the existence of an interest in the debtor of the type

enumerated in the statute, and (3) a showing that the debtor does not have sufficient

assets to satisfy the judgment against him. Harris v. Craig, 8th Dist. Cuyahoga No.

79934, 2002-Ohio-5063, ¶ 18.

Jurisdiction

       {¶11} Klayman’s first assignment of error argues that the trial court did not have

jurisdiction over the enforcement of Klayman’s federal judgment against Judicial Watch

because the state and federal court systems are independent of each other.

       {¶12} Klayman offers two arguments in support of this assignment of error.

First, Klayman discusses the “old and well-established judicially declared rule that state
courts are completely without power to restrain federal-court proceedings in in personam

actions.” Donovan v. Dallas, 377 U.S. 408, 413, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964).

 The Supreme Court in Donovan was referring to a state court’s inability to limit the right

of a plaintiff to prosecute his case in federal court.     The Supreme Court further noted

that the fact that a state court’s injunction issues only to the parties before a federal court,

and not the federal court itself, is irrelevant. Donovan at 413.

       {¶13} Ohio courts have echoed this interpretation.        In a case with a similar fact

pattern to the case at hand, when a plaintiff was unable to execute upon a default

judgment obtained against a defendant in municipal court, a judgment debtor examination

found that the defendant’s only asset was a breach of contract claim then pending in the

United States District Court for the Southern District of Ohio. Lakeshore Motor Freight

(Co.) v. Glenway Industries, Inc., 2 Ohio App.3d 8, 440 N.E.2d 567 (1st Dist.1981).

The municipal court subsequently ordered that any judgment rendered against the

defendant in that action shall be in favor of the municipal court plaintiff and, further,

“that the said Plaintiff may, through counsel, prosecute the breach of contract claim.”

Id.

       {¶14} The First District Court of Appeals agreed with the defendant-appellant in

the Lakeshore Motor Freight case that a trial court is without “authority to allow the

judgment creditor to usurp prosecution of a chose in action belonging to the judgment

debtor, but must instead limit any order to the debtor’s equitable interest, i.e., the potential

proceeds, in any such action.” Id. at 9. See also Wheaton v. Lee Rd. Dev. Ltd. Liab.
Co., 11th Dist. Lake No. 2000-L-075, 2001 Ohio App. LEXIS 3549 (Aug. 10, 2001)

(proceeds from judgment debtor’s chose in action is subject to attachment or

encumbrance by way of a creditor’s bill; however, the right to prosecute the

chose-in-action is not subject to attachment or encumbrance.)

        {¶15} Based on the foregoing, Klayman’s reliance on Donovan, 377 U.S. 408, 84

S.Ct. 1579, 12 L.Ed.2d 409, is misplaced. Klayman was able to exercise his right to

litigate a defamation action against Judicial Watch in the United States District Court for

the Southern District of Florida. The trial court’s order enjoining Judicial Watch from

paying Klayman pursuant to his judgment did not usurp Klayman’s prosecution of his

case.

        {¶16} Second, Klayman relies on the Supremacy Clause to argue that even when a

state law is not in direct conflict with a federal law, the state law could still be found

unconstitutional if it “is an obstacle to the accomplishment and execution of Congress’s

full purposes and objectives.”   Crosby v. Natl. Foreign Trade Council, 530 U.S. 363,

366, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Klayman appears to be arguing that his

right to receive payment on a federal judgment is superior to Luck’s right to receive

payment on a state court judgment.    This argument fails.   While Klayman goes to great

lengths to emphasize the federal nature of his judgment against Judicial Watch, he makes

no attempt to articulate how proceeds from a federal judgment are immune to a valid lien

under R.C. 2333.01.
       {¶17} “A creditor’s bill action enables a judgment creditor to secure a lien on those

assets of the judgment debtor that cannot be reached by the mere execution of the

judgment.”      Am. Transfer Corp. v. Talent Trans., Inc., 8th Dist. No. 94980,

2011-Ohio-112, ¶ 8, citing Union Properties, Inc. v. Patterson, 143 Ohio St. 192, 54

N.E.2d 668 (1944). Specifically, the statute provides that any interest a judgment debtor

has in a judgment or order shall be subject to the payment of the judgment by action.

R.C. 2333.01.    For Klayman’s argument here to succeed, a “judgment” under R.C.

2333.01 would need to be interpreted to exclude federal judgments. Because nothing in

the statutory language or relevant case law supports such an interpretation, this

assignment of error is overruled.

Discoverability of Financial Information

       {¶18} In his second assignment of error, Klayman argues that the trial court erred

when it deemed admitted a request for admission that he did not have sufficient assets to

satisfy Luck’s 2011 judgment. Specifically, Klayman asserts that he has a substantial

interest in maintaining his financial privacy that overrides Luck’s interest in conducting

discovery pursuant to the Ohio Rules of Civil Procedure.

       {¶19} Civ.R. 26(B)(1) provides:

       Parties may obtain discovery regarding any matter, not privileged, which is

       relevant to the subject matter involved in the pending action, whether it

       relates to the claim or defense of the party seeking discovery or to the claim

       or defense of any other party, including the existence, description, nature,
        custody, condition and location of any books, documents, electronically

        stored information, or other tangible things and the identity and location of

        persons having knowledge of any discoverable matter. It is not ground for

        objection that the information sought will be inadmissible at the trial if the

        information sought appears reasonably calculated to lead to the discovery of

        admissible evidence.

        {¶20} The third element for a claim under R.C. 2333.01 is a showing that the

debtor does not have sufficient assets to satisfy the judgment against him. Harris v.

Craig, 8th Dist. Cuyahoga No. 79934, 2002-Ohio-5063, at ¶ 18.                A request for

admission that mirrors the third element of Luck’s claim here would be permissible under

Civ.R. 26(B)(1), because it directly relates to an essential element of Luck’s claim.

        {¶21} While privileged material is clearly excluded from the scope of discovery,

Klayman does not attempt to argue that the information sought was in any way privileged.

 Instead, he attempts to craft a separate exception to discoverable matter under Civ.R.

26(B)(1) using irrelevant case law.      Klayman’s attempt fails.     Because his financial

status was clearly relevant to the creditor’s bill action, and the information was not

privileged or otherwise exempt from discovery, Klayman’s second assignment of error is

overruled.

Fraud

        {¶22} In Klayman’s third and final assignment of error, he argues that a genuine

issue of material fact existed in the creditor’s bill action.   Specifically, Klayman argues
that the trial court erred by finding that Luck had a valid lien because the underlying

judgment was obtained through fraud. In support of this assignment of error, Klayman

only notes that he has appealed the validity of Luck’s judgment in the United States Court

of Appeals for the Eleventh Circuit.

       {¶23} “A final judgment is conclusive and binding on the parties and can only be

attacked on direct appeal, not collaterally.” Fed. Deposit Ins. Co. v. Willoughby, 19

Ohio App.3d 51, 53, 482 N.E.2d 1267 (8th Dist.1984). The Ohio Supreme Court has

held that “in our jurisprudence, there is a firm and longstanding principle that final

judgments are meant to be just that — final.”         Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 8. The court

further determined that the reasons for disfavoring collateral attacks do not apply in two

principal circumstances — when the issuing court lacked jurisdiction or when the order

was the product of fraud.   Id. at ¶ 9.

       {¶24} Klayman’s direct appeal of Luck’s 2011 judgment was appealed to this

court, and all seven assignments of error were overruled. Klayman v. Luck, 8th Dist.

Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354. The pending appeal Klayman refers

to in support of his argument is the most recent in a series of unsuccessful attempts to

undermine Luck’s 2011 judgment.           In the absence of any genuine support for the

assertion that the 2011 judgment was obtained through fraud, Klayman’s third assignment

of error is overruled.

       {¶25} Judgment affirmed.
       It is ordered that appellee recover of appellant 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.



________________________________________
TIM McCORMACK, PRESIDING JUDGE

MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR
