COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71122 CHISARA S. NWABARA : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION AUBREY WILLACY, et al. : : Defendants-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 95-CVH-21800 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MICHAEL TROY WATSON Attorney at Law Watson & Watson 1367 East Sixth Street Cleveland, Ohio 44114 For defendant-appellant TIMOTHY A. MARCOVY Aubrey Willacy : Attorney at Law Willacy, LoPresti & Marcovy 700 Western Reserve Building 1468 West Ninth Street Cleveland, Ohio 44113 (Continued) APPEARANCES: (Cont.) For third-party claimant HAZEL M. WILLACY appellant, pro se : Attorney at Law 3337 Brainard Road Pepper Pike, Ohio 44124 - 3 - PRYATEL, J.: Defendant-appellant, Aubrey Willacy ("Willacy"), and his wife, third-party complainant-appellant Hazel Willacy ("Hazel"), appeal the judgment of the Cleveland Municipal Court, which gar-nished funds held in accounts in their names at First National Bank. For the reasons that follow, we reverse and remand this case to the lower court. This case has a long and tortuous history. In February 1992, plaintiff-appellee Chisara S. Nwabara ("Nwabara") instituted a paternity proceeding against Willacy in the Cuyahoga County Court of Common Pleas, Juvenile Division, claiming that he was the father of her child, Maxim Chidi Nwabara. In January 1993, the juvenile court issued temporary orders for custody and support after determining that Willacy was the father of Maxim. Willacy appealed this decision. In dismissing the appeal, this court determined that the judgment of the juvenile court was not immediately reviewable because the juvenile court had yet to make a deter- mination of past child support, current child support and perma- nent custody. An order for past child support, inter alia, was issued on October 26, 1995, wherein the juvenile court ordered Willacy to pay Nwabara $34,003 for past support and $5,000 for attorney fees. The parties were also ordered to equally pay the $1,842.02 expert - 4 - witness fee. In an attempt to enforce this judgment, Nwabara filed with the Cleveland Municipal Court a certificate of judgment in the amount of $34,003 on October 30, 1995. Willacy simul-taneously filed in this court a notice of appeal of that judgment and request 1 for extraordinary relief in prohibition and manda-mus. While the appeal and writs were pending, First National Bank 2 deposited with the municipal court $446.72, which allegedly represented $246.13 held in an account in Willacy's name and $200.59 held in an account in Hazel's name. In response to the attachment of funds in her account, Hazel filed a third-party claim seeking reimbursement, asserting that the attached account was in her name alone and that her husband was only a signatory on the account in the event she should predecease him. The third-party claim was set for hearing on May 28, 1996, whereupon Hazel was to produce documentary evidence supporting her claim. Instead, Willacy submitted an affidavit in support of Hazel's third-party claim before the scheduled hearing. When Hazel failed to appear at the hearing and present her evidence, the municipal court denied her third-party claim. Objections to this decision were overruled. 1 Willacy's request for extraordinary relief in prohibition and mandamus was denied by this court on June 20, 1996. This decision was upheld on appeal to the Supreme Court of Ohio. See State ex rel. Willacy v. Smith (1997), 78 Ohio St.3d 47. 2 The record reflects that Ohio Savings Bank likewise depos- ited funds into the municipal court in the amount of $39.97. The record is unclear, however, whether the funds disbursed to Nwabara included this amount. - 5 - Willacy requested a hearing and sought to dismiss the gar- nishment action against him on the basis that the municipal court lacked jurisdiction to enforce a judgment that exceeded its mone- tary jurisdiction. He further sought sanctions against Nwabara, claiming that she was aware of this alleged jurisdictional defect and filed the action nonetheless. In his decision journalized May 3, 1996, the magistrate determined that the municipal court had jurisdiction over the garnishment action under R.C. 1901.19(D), which specifically provides that the Cleveland Municipal Court has jurisdiction in aid-of-execution actions irrespective of the amount of the judgment. Finding Willacy's arguments without merit, the municipal court denied the motion and request for sanctions. Willacy filed objections to this decision, which were overruled on July 12, 1996. At the same time, the stay of execution previously entered was terminated, and funds held on deposit with the municipal court were eventually disbursed on July 30, 1996. On August 9, 1996, appellants filed a motion for relief from judgment based on the intervening decision of this court, released June 13, 1996, which determined that the juvenile court order from which Nwabara sought garnishment was not a final, appealable order. See Nwabara v. Willacy (June 13, 1996), Cuyahoga App. No. 69786, unreported. Specifically, this court determined that there remained unresolved issues as to current child support and perma- nent custody; therefore, the order determining past support only was not immediately reviewable. The record does not reflect that - 6 - appellants' motion was ruled upon nor did the appellants request remand to the trial court for ruling. See Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 147; Dempsey v. Chicago Title Ins. Co. (1985), 20 Ohio App.3d 90, 94; Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, 161. As a consequence, we will consider the motion denied for purposes of this appeal. See Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 389; Newman v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166, 169; State v. Walker (1990), 66 Ohio App.3d 518, 522; Mancino v. Lakewood (1987), 36 Ohio App.3d 219, 222; Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347, 351-352. This appeal follows, wherein appellants assert the following errors for our review: I. THE MUNICIPAL COURT EXCEEDED THE EXPRESS, "TEN THOUSAND DOLLARS," MONETARY LIMITATION UPON ITS JURISDICTION, AS SET FORTH IN R.C. 1901.17, BY ACCEPTING PLAINTIFF'S COMPLAINT FOR FILING AND PROCEEDING TO JUDGMENT AGAINST APPELLANTS THEREON, WHERE THE AMOUNT SOUGHT TO BE RECOVERED WAS $34,003.00. II. THE MUNICIPAL COURT ERRED TO APPELLANTS' PREJUDICE BY ENTERTAINING PLAINTIFF'S SUBJECT ACTION WHEN A PRIOR-FILED, IDEN- TICAL ACTION BETWEEN THE SAME PARTIES PLAINTIFF AND DEFENDANT WAS SIMUL- TANEOUSLY PENDING. - 7 - III. THE MUNICIPAL COURT ERRED TO DEFENDANT- APPELLANT'S PREJUDICE BY DISMISSING HIS REQUEST FOR R.C. 2323.51 AND CIVIL RULE 11 SANCTIONS AGAINST PLAINTIFF AND HER ATTORNEY ON ACCOUNT OF SUCH PERSONS' FRIVOLOUS INSTITUTION OF TWO SEPARATE LAWSUITS UPON A SINGLE CLAIMED CAUSE OF ACTION. IV. THE MUNICIPAL COURT ERRED TO APPELLANT'S PREJUDICE BY GRANTING PLAINTIFF'S PRAYER FOR ENFORCEMENT OF A NON-FINAL JUDGMENT. V. THE MUNICIPAL COURT ERRED TO THE PREJU- DICE OF APPELLANT-THIRD PARTY CLAIMANT IN DETERMINING THAT THE SUM OF TWO HUNDRED DOLLARS AND FIFTY-NINE CENTS ($200.59) SEIZED FROM HER SAVINGS ACCOUNT AT FIRST NATIONAL/FIRST MERIT BANK WAS NOT WHOLLY AND SOLELY HER PROPERTY AND, THUS, WAS SUBJECT TO GARNISHMENT FOR DEFENDANT'S ALLEGED INDEBTEDNESS. I. We find that appellants' fourth assignment of error is dis- positive of this appeal. In that assignment of error, appellants contend that the municipal court could not enforce a non-final judgment through an aid-in-execution proceeding. Specifically, they argue that this court has previously determined that the October 26, 1995, judgment is not a final appealable order; hence, a garnishment action is premature. We agree. Nwabara brought this garnishment action under R.C. 2716.11, which provides that "a proceeding for garnishment of property, other than personal earnings, may be commenced after a judgment has been obtained by a judgment creditor ***." Although Nwabara obtained a judgment for past support from the juvenile court, this - 8 - court previously determined that that judgment was not a final, appealable order because issues of permanent custody and permanent support remained to be determined. It is axiomatic that a non- final, interlocutory order is not capable of execution. Towner v. Wells (1837), 8 Ohio 136, 140; Tyler Refrig. Equip. Co. v. Stonick (1981), 3 Ohio App.3d 167, 168; see, also, State ex rel. Electrolert, Inc. v. Lindeman (1994), 99 Ohio App.3d 154, 155 (court unlawfully issued orders in aid of execution of an interlocutory cognovit judgment). Consequently, it was error for the municipal court to issue orders for garnishment based on what was held to be an interlocutory judgment. We note that Nwabara has failed to file a brief in this court. Under App.R. 18(C), this court "may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." See State v. Middleton (1993), 85 Ohio App.3d 403, 409; George v. Fannin (1990), 67 Ohio App.3d 703, 706. Finding appellants' fourth assignment of error meritorious, we hereby reverse the order for garnishment based on an interlocutory judg- ment and remand for further proceedings consistent with this opinion. II. Because we sustained appellant's fourth assignment of error, it is not necessary for this court to address appellants' remaining assignments of error. See App.R. 12(A)(1)(c). - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said 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. DAVID T. MATIA, P.J. and ANN DYKE, J. CONCUR JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District, sitting by assignment of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .