[Cite as Manitou v. Woolum, 2019-Ohio-2674.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




 MANITOU AMERICAS, INC. fka GEHL                :     CASE NO. CA2018-05-103
 COMPANY,
                                                :            OPINION
         Appellee,                                            7/1/2019
                                                :

   - vs -                                       :

                                                :
 NOAH K. WOOLUM dba NOAH'S
 FARMS,                                         :

         Appellant.




            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2011-08-2972



Hochscheid & Associates, LLC, Tabitha M. Hochscheid, 810 Sycamore Street, Suite 420,
Cincinnati, Ohio 45202, for appellee

Holcomb & Hyde, LLC, Richard A. Hyde, 332 High Street, Hamilton, Ohio 45011, for
appellant



        M. POWELL, J.

        {¶ 1} Appellant, Noah K. Woolum dba Noah's Farms ("Woolum"), appeals an order

of the Butler County Court of Common Pleas reviving a dormant judgment against him.

        {¶ 2} On March 8, 2012, appellee, Manitou Americas, Inc. fka Gehl Company

("Manitou"), obtained a default judgment against Woolum in the amount of $26,943.15, plus
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interest at the rate of 4.5 percent per annum and court costs. The judgment became

dormant. On January 9, 2018, Manitou moved the trial court to revive the judgment. The

clerk of courts sent a summons and a copy of the motion for revivor to Woolum by certified

mail at an address on New London Road in Hamilton, Ohio. On January 18, 2018, service

was successfully made upon Woolum by certified mail. Woolum took no action.

       {¶ 3} On January 25, 2018, a magistrate issued a Conditional Order of Revivor and

Praecipe. The conditional order revived the judgment, scheduled a hearing for March 20,

2018, "at which time [Woolum] may show cause why the judgment should not be revived,"

and ordered that the conditional order be served upon Woolum by certified mail. The

conditional order further provided, "Upon service, [Woolum] shall have [28] days to file a

response with the Court or their right to challenge will be forfeited and this Conditional Order

shall become the final order of the Court."

       {¶ 4} The clerk of courts sent Woolum a copy of the conditional order by certified

mail on January 30, 2018. The order was sent to the same New London Road address

above. The certified mail was returned as "unclaimed." Subsequently, Woolum was

successfully served with the conditional order by ordinary mail on March 5, 2018. On March

21, 2018, Woolum's counsel filed a notice of appearance and an objection to the conditional

order of revivor, requesting a hearing. Woolum claimed his objection was timely filed

because he was not served with the conditional order of revivor until March 5, 2018.

       {¶ 5} On April 26, 2018, the trial court overruled Woolum's objection without a

hearing. The trial court found that Woolum was personally served with the motion for revivor

on January 18, 2018. The trial court further found that Woolum's "objection was not filed

until 62 days after he personally accepted receipt of the motion," and was therefore

untimely.

       {¶ 6} Woolum appeals, raising one assignment of error:

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      {¶ 7} THE TRIAL COURT DID COMMIT REVERSIBLE ERROR WHEN IT DENIED

APPELLANT'S OBJECTION AND MOTION FOR A HEARING.

      {¶ 8} Woolum argues he was denied procedural due process because the

conditional order was issued before the time frame for a response had passed, and the

dormant judgment was revived without giving him an opportunity to show cause as to why

the judgment should not be revived. Woolum acknowledges he was served with the motion

for revivor on January 18, 2018. Woolum asserts that he and his attorney appeared for the

March 20, 2018 hearing as scheduled in the conditional order, however no hearing was

held. The docket does not reflect that a hearing was held on March 20, 2018. The following

day, Woolum filed his objection to reviving the judgment. A month later, the trial court

overruled the objection as untimely and revived the judgment without a hearing.

      {¶ 9} A proceeding to revive a judgment is not a new action, but merely a motion in

the original action. State v. Jones, 12th Dist. Warren No. CA2000-02-015, 2000 Ohio App.

LEXIS 4802, *8 (Oct. 16, 2000); Omni Credit Servs. v. Leston, 2d Dist. Montgomery No.

25287, 2013-Ohio-304, ¶ 19. Revivor of a dormant judgment is a statutory proceeding

governed by R.C. 2325.15 and 2325.17. Leston at ¶ 21.

      {¶ 10} R.C. 2325.15 addresses the procedures set forth for reviving dormant

judgments and provides that "[w]hen a judgment * * * is dormant, * * * such judgment may

be revived * * * in the manner prescribed for reviving actions before judgment, or by action

in the court in which such judgment was rendered[.]"

      {¶ 11} R.C. 2325.17 addresses when a judgment can be considered revived and the

time frame in which a lien attaches to a judgment debtor's property once a dormant

judgment is revived:

             If sufficient cause is not shown to the contrary, the judgment * *
             * mentioned in [R.C.] 2325.15 shall stand revived, and thereafter
             may be made to operate as a lien upon the lands and tenements

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              of each judgment debtor for the amount which the court finds to
              be due and unsatisfied thereon to the same extent and in the
              same manner as judgments or findings rendered in any other
              action.

       {¶ 12} "Notice and hearing or an opportunity to be heard are essential elements of

due process of law." In re Sticklen, 12th Dist. Butler Nos. CA90-11-219 and CA91-02-024,

1992 Ohio App. LEXIS 3696, *6 (July 13, 1992), citing State ex rel. Allstate Ins. Co. v.

Bowen, 130 Ohio St. 347 (1936). It is settled law that a judgment debtor is entitled to notice

and a hearing before a dormant judgment is revived. State v. Graewe, 8th Dist. Cuyahoga

No. 77545, 2000 Ohio App. LEXIS 3511, *3 (Aug. 3, 2000).

       {¶ 13} Regarding notice, Civ.R. 4(F) provides that upon the filing of a motion to revive

a dormant judgment,

              the clerk shall forthwith issue a summons for service upon each
              judgment debtor. The summons, with a copy of the motion
              attached, shall be in the same form and served in the same
              manner as provided in these rules for service of summons with
              complaint attached, shall command the judgment debtor to
              serve and file a response to the motion within the same time as
              provided by these rules for service and filing of an answer to a
              complaint, and shall notify the judgment debtor that in case of
              failure to respond the judgment will be revived.

       {¶ 14} Thus, pursuant to Civ.R. 4(F), a judgment debtor has 28 days to file an answer

after service of the summons and motion upon him. If no answer is filed, the dormant

judgment is revived. See Larney v. Vlahos, 11th Dist. Trumbull No. 2015-T-0103, 2016-

Ohio-1371.

       {¶ 15} Regarding an opportunity to be heard, "R.C. 2325.17 requires the judgment

debtor be granted an opportunity to show cause why the judgment should not be revived,

which could only be done at a hearing before the court." Leroy Jenkins Evangelistic Assn.,

Inc. v. Equities Diversified, Inc., 64 Ohio App.3d 82, 88 (10th Dist.1989). "Although an

action to revive a judgment and a show cause hearing may be summary in nature, such an


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opportunity must be granted to meet fundamental requirements of due process." Id. See

also Vlahos; Leston, 2013-Ohio-304.

       {¶ 16} Woolum was personally served with a copy of the motion for revivor on

January 18, 2018. He was therefore "notified of the existence and nature of the proceeding

and given an opportunity to respond." Jones, 2000 Ohio App. LEXIS 4802 at *4. That is,

Woolum "was clearly on notice that [Manitou] sought to revive" the dormant judgment.

Leston at ¶ 27. Consequently, Woolum was required to respond by February 15, 2018,

pursuant to Civ.R. 4(F). Woolum took no action at all in response to the motion and instead

simply filed an objection on March 21, 2018. Woolum's objection was clearly untimely and

the trial court did not err in so finding.

       {¶ 17} Woolum nevertheless asserts he was "denied the opportunity to present his

case before the [trial] court" because the hearing scheduled for March 20, 2018, in the

conditional order never took place.

       {¶ 18} Regarding the conditional order issued by the magistrate on January 25,

2018, we note that as written, R.C. 2325.15 ostensibly provides two methods for reviving a

judgment, one by following the procedure for reviving an action prior to judgment, and the

other by an action in the court in which the judgment was granted. Leroy, 64 Ohio App.3d

at 86. Manitou utilized the latter procedure when it filed its motion for revivor. The other

procedure, one for reviving an action prior to judgment, was set forth in R.C. 2311.27 and

2311.28.    Id.   Prior to their repeal in 1971, these two statutes "expressly authorized

conditional orders of revivor." Columbus Check Cashers, Inc. v. Jordan, 10th Dist. Franklin

No. 13AP-980, 2014-Ohio-2541, ¶ 9.

       {¶ 19} By contrast, R.C. 2325.15 and 2325.17, the applicable statutes in this case,

are "devoid of any language regarding a conditional order of revivor." Id. "The plain

language of R.C. 2325.15 and 2325.17 state that, unless sufficient cause is established

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otherwise, a dormant judgment can be revived upon action in the court in which said

judgment was rendered." Id. at ¶ 13. These statutes "do not establish that the trial court

must grant a conditional order of revivor subsequent to the filing of a motion to revive a

dormant judgment." Id. Their plain language likewise "do[es] not provide for the use of

granting of conditional orders of reviver [sic]." Id.; Columbus Rehab. Care v. Peck, Franklin

C.P. No. 05 CVH-529, 2015 Ohio Misc. LEXIS 12090 (July 27, 2015).

       {¶ 20} Notwithstanding the conditional order issued by the magistrate, Civ.R. 4(F)

required Woolum to respond to Manitou's motion for revivor by February 15, 2018. As

stated above, Woolum took no action until March 21, 2018. Furthermore, as Woolum was

not served with the conditional order until March 5, 2018, he may not claim that he relied

upon the conditional order in failing to respond timely to the motion for revivor as set forth

in the summons served upon him on January 18, 2018. Thus, pursuant to R.C. 2325.17

and in accordance with the dictates of procedural due process, the judgment was revived

as of February 15, 2018. See Vlahos, 2016-Ohio-1371.

       {¶ 21} Contrary to Woolum's assertion, this is not a case where a party was denied

a meaningful opportunity to assert his opposition to the motion for revivor and show cause

why the dormant judgment should not be revived.          Rather, the predicament in which

Woolum finds himself was of his own doing. A party involved in litigation cannot sit on his

hands and ignore the proceedings only to later claim an unfair disadvantage. See Bank of

Am., N.A. v. Mark, 12th Dist. Butler No. CA2013-01-012, 2013-Ohio-3575.

       {¶ 22} In light of the foregoing, we conclude that the trial court properly granted

Woolum notice and an opportunity to show cause why the dormant judgment against him

should not be revived, and that upon receiving the motion for revivor and then receiving the

conditional order, Woolum chose to do nothing until late March 2018 when he appeared for

a hearing and filed an objection the next day. Accordingly, the trial court properly revived

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the dormant judgment.

      {¶ 23} Woolum's assignment of error is overruled.

      {¶ 24} Judgment affirmed.


      RINGLAND, P.J. and MYERS, J., concur.




      Myers, J. of the First Appellate District, sitting by assignment of the Chief Justice,
pursuant to Section 5(A) (3), Article IV of the Ohio Constitution.




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