Johnson v. Dattilo Investors, L.L.C.

2015 Ohio 317

• Court: Ohio Court of Appeals
• Decided: January 29, 2015
• Docket: 101486
• Status: Published

Opinion

[Cite as Johnson v. Dattilo Investors, L.L.C., 2015-Ohio-317.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101486

PRECIOUS T. JOHNSON, ET AL.

PLAINTIFFS-APPELLEES

vs.

DATTILO INVESTORS, L.L.C., ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cleveland Municipal Court Case No. 2012 CVG 009576

BEFORE: S. Gallagher, P.J., Blackmon, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: January 29, 2015 ATTORNEY FOR APPELLANTS

David M. Lynch David M. Lynch, Attorney at Law 333 Babbitt Road Suite 333 Euclid, OH 44123

FOR APPELLEES

Precious T. Johnson, pro se 10414 Pierpont Avenue Cleveland, OH 44108

Marcus Hall, pro se 10414 Pierpont Avenue Cleveland, OH 44108 SEAN C. GALLAGHER, P.J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1

and Loc.R. 11.1. Defendants-appellants Dattilo Investors, L.L.C., et al., appeal the decision of

the trial court that denied the motion to return funds of Anthony L. Dattilo (“Dattilo”). For the

reasons stated herein, we affirm.

{¶2} Plaintiffs Precious T. Johnson and Marcus Hall obtained a judgment in the

Cleveland Municipal Court, Housing Division against Dattilo Investors, L.L.C. in the amount of

$12,700.1 The judgment was awarded after the trial court determined that Dattilo, as an agent of

Dattilo Investors, L.L.C., had unreasonably entered property rented to the plaintiffs without

giving prior notice, shot the plaintiffs’ dog, made no attempt to find the dog or contact the

plaintiffs, and later boasted cruelly to the plaintiffs that he had shot the dog.

{¶3} In June 2013, pursuant to an order of garnishment for other than personal earnings,

funds were garnished from an account at Charter One Bank in partial satisfaction of the

judgment. Eight months later, Dattilo filed a motion to return funds. His sole claim was that

the funds had been taken from his personal account. The trial court denied the motion.

{¶4} The trial court recognized that a judgment creditor is permitted to garnish other than

personal earnings from a third party. The court further indicated that it was found that Dattilo

was acting as an agent of Dattilo Investors, L.L.C., when he committed the acts that were the

basis of liability, that it appeared the funds were held by an agent of the judgment debtor, and

that the plaintiffs were entitled to garnish funds that he held on behalf of the company. The trial

court also noted that Dattilo Investors, L.L.C., did not challenge the garnishment when notice of

1 We note that the underlying judgment was entered against Dattilo Investors, L.L.C. The action was originally filed against Dattilo Investment Group, L.L.C. it was issued in June 2013, that Dattilo did not bring a challenge under R.C. 2715.40 or 2329.84,

and that the garnished funds had been disbursed to the plaintiffs.

{¶5} Dattilo timely filed this appeal. Under his sole assignment of error, Dattilo claims

the trial court erred in permitting garnishment of his personal account without determining the

personal account contained corporate funds. We find no merit to his argument under the

circumstances of this case.

{¶6} As this court has previously recognized, R.C. 2716.01(B) allows a judgment creditor

to garnish the property of a judgment debtor even when the property is “in the possession of a

person other than the person against whom judgment was obtained.” Sky Bank v. Lenart &

Assocs., 8th Dist. Cuyahoga No. 99403, 2013-Ohio-5122, ¶ 9, citing Januzzi v. Hickman, 61

Ohio St.3d 40, 572 N.E.2d 642 (1991). In this case, any funds of Dattilo Investors, L.L.C., that

were in the possession of Dattilo, as an agent thereof, were subject to garnishment. To the

extent Dattilo wishes to challenge ownership of the funds, “issues pertaining to the ownership of

garnished funds are strictly governed by statute.” Sky Bank at ¶ 21.

{¶7} A judgment debtor may challenge a garnishment and may demand a hearing

pursuant to R.C. 2716.06 and 2716.13. Dattilo Investors, L.L.C., never challenged the

garnishment order.

{¶8} A third party who claims ownership of funds may bring a challenge under R.C.

2715.40 and 2329.84. Dattilo does not claim that he did not have notice of the garnishment

order. If Dattilo, as a person other than the judgment debtor, wished to challenge the

garnishment, he should have filed a third-party claim pursuant to R.C. 2715.40 or 2329.84.

Dattilo never brought a claim under these provisions and never claimed that he did not hold

funds in the account on behalf of the judgment debtor. {¶9} Accordingly, we find the trial court properly ordered garnishment of the funds and

denied Dattilo’s motion.

{¶10} Judgment affirmed.

It is ordered that appellees recover of appellants 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 municipal 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.

SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and EILEEN T. GALLAGHER, J., CONCUR