[Cite as Tillimon v. Bailey, 2020-Ohio-1243.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Duane J. Tillimon                                   Court of Appeals No. L-19-1072

        Appellant                                   Trial Court No. CVG-16-11128

v.

Eddie J. Bailey and Lyn J. Myles                    DECISION AND JUDGMENT

        Appellee                                    Decided: March 31, 2020

                                                *****

        Duane J. Tillimon, pro se.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Duane J. Tillimon, appeals from the March 29, 2019 judgment of

the Toledo Municipal Court, Housing Division, rejecting appellant’s objections to the

magistrate’s decision and adopting the magistrate’s decision. For the reasons which

follow, we reverse.
      {¶ 2} On appeal, appellant asserts three assignments of error:

             1. THE TRIAL COURT COMMITTED REVERSABLE [SIC]

      ERROR, AND ABUSED ITS [SIC] DISCRETION, BECAUSE THE

      JUDGMENT ENTRY AFFIRMING THE MAGISTRATE’S

      RECOMMENDATION AND DENYING THE APPELLANT’S

      OBJECTION AND REQUEST FOR A HEARING, AND THE

      MAGISTRATE’S RECOMMENDATION ITSELF, ARE AGAINST THE

      MANIFEST WEIGHT OF THE EVIDENCE THAT WAS BEFORE THE

      TRIAL COURT AT THE TIME OF THE MAGISTRATE’S

      RECOMMENDATION.

             2. THE TRIAL COURT COMMITTED REVERSABLE [SIC]

      ERROR, AND ABUSED ITS [SIC] DISCRETION, WHEN IT DENIED

      THE APPELLANT’S REQUEST FOR A HEARING ON HIS

      OBJECTION TO THE MAGISTRATE’S RECOMMENDATION.

             3. THE TRIAL COURT COMMITTED REVERSABLE [SIC]

      ERROR, AND ABUSED ITS [SIC] DISCRETION, BY DENYING THE

      MOTION FOR A STAY OF EXECUTION PENDING THE APPEAL.

      {¶ 3} Appellant is the former landlord and current judgment creditor of appellee,

Eddie J. Bailey and Lyn J. Myles. On January 13, 2017, appellant obtained a $1,376.57

money judgment against Bailey and Myles, plus statutory interest of 3 percent per

annum, commencing January 13, 2017, and court costs. On appeal, we reversed the




2.
findings of the municipal court and found that appellant was owed a total of $4,899.44.

Tillimon v. Myles and Bailey, 6th Dist. Lucas No. L-17-1032, 2018-Ohio-434, ¶ 42.

       {¶ 4} Appellant garnished the wages of Myles and Bailey and seized other assets

in an attempt to satisfy the money judgment pursuant to R.C. 2716.01. Appellant alleges

that in December 2018, he determined the court records indicated $968.58 had been

garnished and was being held by the clerk of courts, an amount which would satisfy the

judgment in full. Prior to receiving a final distribution check, appellant filed a praecipe

for release of the wage garnishment orders against Bailey’s employers on December 14,

2018. Appellant did not file a satisfaction entry because appellant had not yet received

the money from the court. The garnishments were released on December 17, 2018.

However, on December 27, 2018, the municipal court clerk returned the final garnished

wages to Bailey. Appellant asserts he contacted Bailey and attempted to convince him to

return the funds. When Bailey received the check, however, he cashed the check and

kept the money.

       {¶ 5} On January 15, 2019, appellant refiled the wage garnishments against Bailey

naming both employers as garnishees. Appellant attested he is a judgment creditor, the

“probable total amount” of the unpaid judgment is $990.32, and demanded garnishment

of Bailey’s personal wages. On January 22, 2019, the municipal court found the affidavit

satisfactory and ordered Bailey to provide the garnishment information. Bailey requested

a hearing without stating a reason. The hearing was held on February 20, 2019, and only

Bailey attended. Appellant asserts on appeal that he did not attend because he believed




3.
the only issue to be determined was whether Bailey’s wages were exempt from

garnishment. Appellant knew there could be no basis for this finding because

garnishment had been in effect in 2018.

       {¶ 6} However, at the hearing, Bailey told the magistrate that the judgment had

been paid in full based on Bailey’s garnishment records, he was continuing to be

garnished, and appellant was trying to get more money. The garnishee’s interim report

indicated that $205.17 had already been garnished as of February 2, 2019, under the

second garnishment order. Bailey presented his pay stub indicating that $5,057.41 had

been garnished in 2018. Based on Bailey’s statements and his documentation, the

magistrate found the first garnishment had been released and Bailey had paid the debt in

full. Therefore, the magistrate ordered the clerk to release the garnished funds of $251.36

to Bailey.

       {¶ 7} On February 21, 2019, appellant filed his affidavit attesting the balance due

on the judgment was $992.14. Appellant also filed objections to the magistrate’s

recommendation on the ground that it was based on perjured testimony. Appellant

asserted he had not received any disbursements since November 27, 2018, and that the

final amount due on the judgment, $968.58, had been collected under the prior

garnishment order but erroneously disbursed to Bailey by the clerk on December 27,

2018. Bailey filed a response asserting he was not responsible for the court’s

recordkeeping and he had never received notice from the municipal court that an error

had been made.




4.
       {¶ 8} On March 29, 2019, the municipal court approved the magistrate’s

recommendation. The municipal court found that by failing to attend the hearing on the

garnishment of Bailey’s wages, appellant waived his right to challenge the claims of the

judgment debtor. Appellant sought a stay of execution, but it was denied.

       {¶ 9} In his first assignment of error, appellant argues the municipal court abused

its discretion by approving the magistrate’s decision when the findings are contrary to the

manifest weight of the evidence.

       {¶ 10} When a trial court considers objections to a magistrate’s decision, the trial

court must “undertake an independent review as to the objected matters to ascertain that

the magistrate has properly determined the factual issues and appropriately applied the

law.” Civ.R. 53(D)(4)(d). The trial court has a responsibility “‘to critically review and

verify to its own satisfaction the correctness of [a magistrate’s decision].’” Shelly

Materials, Inc. v. City of Streetsboro Planning & Zoning Comm., Slip Opinion No.

2018-0237, 2019-Ohio-4499, ¶ 24, quoting Normandy Place Assocs. v. Beyer, 2 Ohio

St.3d 102, 105, 443 N.E.2d 161 (1982). On appeal, an appellate court applies an abuse of

discretion standard of review. A.D., nka B. v. S.P., 6th Dist. Huron No. H-18-007, 2019-

Ohio-653, ¶ 13. Rendering a decision which is “arbitrary, unreasonable, or

unconscionable” constitutes an abuse of discretion. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 11} Pursuant to R.C. 2716.06(C), if a judgment debtor disputes the judgment

creditor’s right to garnish personal earnings, because such earnings are exempt or the




5.
order is improper, the debtor can request a hearing. At the hearing, the debtor must prove

the garnishment is unlawful. Id. The scope of the hearing is limited to the issue of the

amount of personal earnings which can be used in satisfaction of the debt owed to the

judgment creditor. Id.; Credit Invests., Inc. v. Addis, 2d Dist. Montgomery No. 26081,

2014-Ohio-4249, ¶ 6, citing Merchants Acceptance, Inc. v. Bucholz, 2d Dist.

Montgomery No. 24425, 2011-Ohio-5556, ¶ 31-33. While the debtor cannot challenge

the underlying debt, the debtor can assert any reason for disputing the creditor’s right to

garnish the funds. R.C. 2716.06(C). The debtor can assert the debt has been satisfied.

Ashtabula Cty. Med. Ctr. v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836,

*2 (June 3, 1988). The creditor, who does not appear and present contrary evidence,

waives the right to challenge the debtor’s claims of exemption or that the debt has been

satisfied. Phoenix Fin. Sols., Inc. v. Gonzales, 5th Dist. Muskingum No. CT2013-0056,

2014-Ohio-3897, ¶ 11.

       {¶ 12} However, there is no requirement under R.C. 2716 that the judgment

creditor attend the hearing. Id., citing Ashtabula; Springleaf Fin. Servs. of Ohio, Inc. v.

Bayly, 5th Dist. Guernsey No. 16-CA-26, 2017-Ohio-5546, ¶ 15; Monogram Credit Card

Bank of Georgia v. Hoffman, 3d Dist. Union No. 14-02-24, 2003-Ohio-1578, ¶ 13.

Therefore, a garnishment and debt cannot be released simply because the creditor did not

appear. Springleaf.

       {¶ 13} In this case, appellant alleged that the magistrate did not properly consider

the evidence because the evidence in the record indicated that the debt was owed despite




6.
Bailey’s assertions. First, the record included the clerk’s disbursement record, which

indicated that while $5,869.49 had been garnished, only $4,900.91 was disbursed to

appellant and $968.58 had been returned to Bailey. Second, although appellant had

released the first garnishment, he had not filed a satisfaction of the judgment. Third,

appellant had initiated a second garnishment order and attested the debt was owed, he had

good reason to believe the garnishment was proper, and the debtor’s wages were not

exempt. Therefore, it was clear that while $5,870.48 had been garnished from Bailey’s

wages, those funds had not been properly disbursed to appellant to satisfy the judgment.

The record did not support Bailey’s assertions.

       {¶ 14} We find, in light of the objections and the court records, that the municipal

court abused its discretion when it affirmed the magistrate’s decision. While the

magistrate could have been misled by the confusion in the record, appellant’s objections

sufficiently identified the clerk’s error so that the municipal court could have determined

from the record that the debt had not been satisfied and that the reinstatement of the

garnishment was necessary to correct the clerk’s error. Therefore, we find appellant’s

first assignment of error well-taken.

       {¶ 15} In his second assignment of error, appellant argues the municipal court

abused its discretion by denying his request for a hearing on his objections to the

magistrate’s decision in order to take testimony to determine if Bailey committed perjury.

Civ.R. 53(D)(4)(d) provides that when the trial court considers the objections of a party

to the magistrate’s order, it “may hear additional evidence but may refuse to do so unless




7.
the objecting party demonstrates that the party could not, with reasonable diligence, have

produced that evidence for consideration by the magistrate.” There is no requirement that

the trial court hold a hearing before ruling on the objections.

       {¶ 16} Since all of the information needed to rule on the objections was before the

municipal court, we find the trial court did not abuse its discretion by refusing to hold an

evidentiary hearing before ruling on the motion. Appellant’s second assignment of error

is not well-taken.

       {¶ 17} In his third assignment of error, appellant argues the trial court abused its

discretion by denying his motion for a stay of execution pending appeal.

       {¶ 18} Civ.R. 62(B) and App.R. 7 govern the procedure for obtaining a stay of a

judgment pending appeal. After the trial court denied appellant’s motion for a stay filed

pursuant to App.R. 7, appellant could have sought a stay in the court of appeals. App.R.

7(A). Because appellant did not, we find he has waived any error of the trial court in

failing to grant his request for a stay. Therefore, appellant’s third assignment of error is

not well-taken.

       {¶ 19} Having found that the trial court did commit error prejudicial to appellant

and that substantial justice has not been done, the judgment of the Toledo Municipal

Court, Housing Division, is reversed. This matter is remanded for proceedings consistent

with this decision. Appellee is ordered to pay the costs of this appeal pursuant to

App.R. 24.

                                                                           Judgment reversed
                                                                              and remanded.



8.
                                                                      Tillimon v. Bailey
                                                                      C.A. No. L-19-1072




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




9.
