Graham v. Stevens

2013 Ohio 3111

• Court: Ohio Court of Appeals
• Decided: July 10, 2013
• Docket: 13CA34
• Status: Published

Opinion

[Cite as Graham v. Stevens, 2013-Ohio-3111.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

NATHAN GRAHAM : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellant : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : KRISTEN STEVENS : Case No. 13CA34 : : Defendant - Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2012 CV 0033

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: July 10, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

NATHAN GRAHAM #384-747 KRISTEN STEVENS P.O. Box 788 457 Impala Dr., Apt. D 1150 North Main Street Mansfield, OH 44903 Mansfield, OH 44901 Richland County, Case No.13CA34 2

Baldwin, J.

{¶1} Appellant Nathan Graham appeals a judgment of the Richland County

Common Pleas Court denying his request for a debtor’s examination of appellee Kristen

Stevens.

STATEMENT OF FACTS AND CASE

{¶2} On June 4, 2012, appellant obtained a default judgment against appellee

in the amount of $1,100.00. Appellant filed a motion for a debtor’s examination of

appellee on January 3, 2013. The trial court overruled appellant’s motion, finding that

appellant, who was incarcerated, had no right to be brought to court for a debtor’s

examination:

{¶3} “Mancino set up a nine factor test to determine whether an inmate should

be permitted to be brought back for trial. Factor (4) is the potential danger and security

risk the prisoner’s presence might pose and factor (5) is the substantiality of the matter

at issue. In this case, Mr. Graham is serving a 49 year sentence which includes 12

years of gun specifications and 9 mandatory years. His prison term expires 12-19-

2059. To bring him to court for a debtor’s exam in a $1,100 case would be ludicrous.”

Judgment entry, January 23, 2013.

{¶4} Appellant filed a second motion for a debtor’s examination on March 4,

2013. In his motion, appellant stated that he wished to conduct the hearing by video

teleconference, which is how he participated in the hearing on damages in the

underlying case. The trial court summarily overruled the motion, stating that the motion Richland County, Case No.13CA34 3

lacked “demonstrated merit.” Judgment entry, April 1, 2013. Appellant assigns a single

error to this court on appeal:

{¶5} THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED

ITS DISCRETION WHEN IT REFUSED TO HOLD A JUDGMENT DEBTOR

EXAMINATION IN ACCORDANCE WITH OHIO REVISED CODE §2333.09 BY VIDEO-

CONFERENCE.

{¶6} R.C. 2333.09 provides:

{¶7} “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.”

{¶8} In Shepard Grain Company v. Creager, 160 Ohio App.3d 377, 2005-Ohio-

1717, 827 N.E.2d 392, ¶24, the Court of Appeals for the Second District found that the

trial court abused its discretion in summarily overruling an inmate’s request to be

present at a hearing via telephone conference, holding in pertinent part:

{¶9} “When prisoners are involved in civil actions in courts and the court does

not find it appropriate to transport the prisoner to the courthouse, a trial court should

consider innovative, alternative ways for the prisoner to participate in the action, such as

telephone conference calls, rather than rendering judgment against the prisoner, Richland County, Case No.13CA34 4

especially if the prisoner suggests an alternative means for participation. Laguta v.

Serieko (1988), 48 Ohio App.3d 266, 267, 549 N.E.2d 216; Elkins v. Elkins (Jan. 4,

1999), Clermont App. No. CA98–03–019, 1999 WL 939. Creager requested a hearing

on Shepard's complaint. The trial court denied his motion for the court to convey him to

the court for the hearing. As the trial court denied his motion to convey, it does not seem

unreasonable for the court to have Creager participate in the hearing via a telephone

conference call as he requests. Creager has made multiple filings in this case,

consistently demonstrating his interest in his funds. We find that the trial court did abuse

its discretion in failing to consider and, thus, denying Creager's motion to be heard via

telephone at the hearing.”

{¶10} R.C. 2333.09 provides that a judgment creditor shall be provided an order

allowing the examination of the judgment debtor. In the instant case, as in Shepard,

supra, the trial court overruled appellant’s motion without stating its reasons for failing to

allow appellant to participate in the debtor’s examination via video teleconference, as it

appears he was able to do for the damage hearing in the underlying case. We find the

trial court abused its discretion in overruling appellant’s motion. Richland County, Case No.13CA34 5

{¶11}

The assignment of error is sustained. The judgment of the Richland County

Common Pleas Court is reversed. This cause is remanded to that court for further

proceedings.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.

HON. CRAIG R. BALDWIN

HON. WILLIAM B. HOFFMAN

HON. PATRICIA A. DELANEY

CRB/rad [Cite as Graham v. Stevens, 2013-Ohio-3111.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

NATHAN GRAHAM : : Plaintiff - Appellant : : -vs- : JUDGMENT ENTRY : KRISTEN STEVENS : : Defendant - Appellee : CASE NO. 13CA34

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is reversed and

remanded. Costs assessed to appellee.