[Cite as N. Trust Bank FSB v. Bolognue Holdings Inc., 2012-Ohio-2610.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

NORTHERN TRUST BANK FSB                                  C.A. No.        26210

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
BOLOGNUE HOLDINGS INC., et al.                           AKRON MUNICIPAL COURT
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   11 CVH 06233

                                DECISION AND JOURNAL ENTRY

Dated: June 13, 2012



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}    Josephine Bolognue tried to intervene in this municipal court action that was

instituted by Northern Trust Bank in order to execute on the judgment it had obtained against

several defendants in Summit County Common Pleas Court. Although Ms. Bolognue was not

involved in the underlying common pleas case, her son, Frank Bolognue II, was one of the

defendants against whom Northern Trust obtained a judgment in excess of two million dollars.

Ms. Bolognue argued that she should be permitted to intervene in the municipal court action

because some of her funds had been garnished in satisfaction of the judgment against her son.

She testified by affidavit that the money was hers alone, although it was taken from joint bank

accounts that she shared with Frank.           The municipal court denied the motion because it

determined that it did not have jurisdiction to rule on it. Because the municipal court incorrectly

determined that it lacked jurisdiction, we reverse and remand the matter for the court to apply
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Rule 24 of the Ohio Rules of Civil Procedure to determine whether Ms. Bolognue should be

granted leave to intervene.

                                       BACKGROUND

       {¶2}    In July 2011, Northern Trust Bank FSB obtained a judgment in the amount of

$2,191,899.04 plus interest against various companies and individuals, including Frank T.

Bolognue II. After the bank transferred that judgment from the common pleas court to municipal

court for execution, the court issued garnishment orders to several banks regarding fifteen

different accounts held in the names of various defendants in the underlying action. Three of

those accounts were in Mr. Bolognue’s name. His mother moved to intervene in the municipal

court action to oppose the attachment of those accounts. In support of her motion to intervene as

of right, Ms. Bolognue argued that several bank accounts that contain only her funds had been

garnished to satisfy the judgment against her son. By affidavit, she testified that she had added

her son’s name to her accounts for the sake of convenience because she is ninety-three years old

and living in a nursing home. She also moved for relief from the garnishment orders under Rule

60(B) of the Ohio Rules Civil Procedure.

       {¶3}    Northern Trust Bank opposed Ms. Bolognue’s motions, arguing that it had

obtained evidence tending to contradict her claim that she is the sole owner of the contested

funds, including records of several “highly unusual debits from the [a]ccounts.” Northern Trust

argued that the motions should be denied or additional time should be granted for further

discovery because “substantial factual issues remain” regarding whether the garnished funds

belonged to Mr. Bolognue. The municipal court denied both motions because it determined they

“would disturb the judgment rendered and are NOT PROPER to be ruled on by this Court.” It
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based its determination on the 1962 decision of the Sixth District Court of Appeals in Perdrix

Machinery Sales Inc. v. Papp, 116 Ohio App. 291 (6th Dist. 1962).

                                    MOTION TO INTERVENE

       {¶4}    Ms. Bolognue’s first assignment of error is that the municipal court incorrectly

denied her motion to intervene. Under Rule 24(A)(2) of the Ohio Rules of Civil Procedure,

“anyone shall be permitted to intervene in an action” if she timely applies and “claims an interest

relating to the property or transaction that is the subject of the action and . . . is so situated that

the disposition of the action may as a practical matter impair or impede [her] ability to protect

that interest, unless [her] interest is adequately represented by existing parties.”   In this case,

the trial court denied Ms. Bolognue’s motions because it determined that it did not have

jurisdiction to rule on them. Relying on Perdrix Machinery, it wrote that it was improper for it

to rule on such motions because “[a] transfer [of a judgment] does not have the effect of

removing all postjudgment proceedings from [the] transferor court[.]” The municipal court

determined that “any filings that would disturb the judgment rendered should be filed with the

Summit County Court of Common Pleas,” which had issued the judgment and transferred it to

the municipal court.

       {¶5}    The municipal court incorrectly refused to allow Ms. Bolognue to intervene in the

collection proceeding on that basis because her motion to intervene did not pose any threat to the

judgment rendered by the common pleas court. Ms. Bolognue sought to intervene in the

collection proceeding to protect a claimed right to certain funds garnished to pay the judgment

against her son. In Perdix Machinery, the appellate court considered a trial court’s dismissal of a

party’s petition to vacate a judgment and a denial of the party’s motion to discharge the

proceedings in aid of execution on that judgment. In this case, Ms. Bolognue did not ask the
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municipal court to vacate the common pleas court’s judgment in favor of Northern Trust Bank

nor did she ask the municipal court to discharge the proceedings in aid of execution of that

judgment. According to her motions, she sought an opportunity to prove that her personal funds

had mistakenly been garnished to pay a debt owed by her son.

       {¶6}    Ms. Bolognue asked to intervene as of right under Civil Rule 24(A). Assuming

she would be granted leave to intervene, Ms. Bolognue also moved for relief from the

garnishment orders affecting the bank accounts that she shares with her son Frank. As the Sixth

District pointed out in Perdrix Machinery, the Ohio Revised Code provides that, following the

transfer of a judgment, “[a]ny proceedings for collection may be had on such judgment the same

as if it had been issued by the transferee court.” Perdrix Machinery Sales Inc. v. Papp, 116 Ohio

App. 291, 294 (6th Dist. 1962) (quoting R.C. 2329.02). Thus, the municipal court incorrectly

determined that it lacked jurisdiction to consider Ms. Bolognue’s motion to intervene. This

Court remands the matter for the trial court to apply Civil Rule 24(A) and determine in the first

instance whether Ms. Bolognue should be granted leave to intervene. Ms. Bolognue’s first

assignment of error is sustained.

                          MOTION FOR RELIEF FROM JUDGMENT

       {¶7}    Ms. Bolognue’s second assignment of error is that the trial court incorrectly

denied her motion for relief from judgment. This assignment of error is overruled based on our

disposition of the first assignment of error.

                                          CONCLUSION

       {¶8}    Ms. Bolognue’s first assignment of error is sustained because the municipal court

incorrectly determined that it lacked jurisdiction to rule on her motion to intervene. Her second
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assignment of error is overruled. The judgment of the Akron Municipal Court is reversed, and

this cause is remanded for proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



CARR, P. J.
BELFANCE, J.
CONCUR.
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APPEARANCES:

JOSEPH A. KACYON, Attorney at Law, for Appellant.

ROBERT R. KRACHT and DANIEL M. SINGERMAN, Attorneys at Law, for Appellee.
