CO - Monroe v. Berger (9/5/2001)

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CO - Monroe v. Berger (9/5/2001)

Postby Riser Adkisson LLP » Fri Jul 31, 2009 12:41 pm

Monroe v. Berger
2001.OH.0004166 (Ohio App. Dist.1 09/05/2001)

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

APPEAL No. C-980269

2001.OH.0004166

September 5, 2001

MURRAY S. MONROE AND WAYNE GUCKENBERGER, PLAINTIFFS- APPELLANTS,
v.
RICHARD K. BERGER, DEFENDANT- APPELLEE.

TRIAL NO. A-9103317

Gorman, P.J., Hildebrandt and Sundermann, JJ.

JUDGMENT ENTRY.

This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not
controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).

Plaintiffs-appellants, Murray S. Monroe and Wayne Guckenberger, appeal the judgment of the
Hamilton County Court of Common Pleas denying their motion to revive a dormant judgment against
defendant-appellee, Richard K. Berger. For the following reasons, we affirm the trial court's
judgment.

Monroe and Guckenberger are assignees of a judgment debt owed by Berger to Provident Bank. The
judgment was entered by the trial court in favor of Provident on April 12, 1991. On May 31, 1991,
the trial court issued a charging order pursuant to R.C. 1775.27 against Berger's interest in
Amelia Estates Limited Partnership.

In July 1991, Berger filed for Chapter 7 bankruptcy in Florida. On November 22, 1991, Berger was
granted a discharge of his debts in bankruptcy, and the amount of the judgment debt was allowed as
an unsecured claim.

On November 13, 1997, Monroe and Guckenberger filed a motion to revive the dormant judgment
pursuant to R.C. 2325.15. The trial court denied the motion, and the instant appeal followed.

In three assignments of error, Monroe and Guckenberger argue that the trial court erred in
overruling the revivor motion. They argue that the 1991 charging order created a lien that
survived bankruptcy and that they should be permitted to foreclose on the partnership assets.

We are not persuaded that the trial court erred. Although Monroe and Guckenberger argue
strenuously that the charging order created a lien that survived the bankruptcy discharge, the
relief that they sought in the trial court was the revivor of the underlying judgment. As Monroe
and Guckenberger themselves concede, the underlying judgment debt was discharged in bankruptcy.
*fn1 Their attempt to revive the judgment was therefore properly rejected by the trial court.

Because the only judgment on appeal is the denial of the revivor motion, we are foreclosed from
ruling upon the viability of the purported lien created by the 1991 charging order. As Monroe and
Guckenberger acknowledge in their brief, they could have attempted to foreclose on the lien
through the appointment of a receiver pursuant to R.C. 1775.27. The issues that such an action
would raise, however, are not before us at present. The three assignments of error are overruled,
and the judgment of the trial court is affirmed.

Enter upon the Journal of the Court on September 5, 2001


Opinion Footnotes

*fn1 See In Re Bursee (N.D.Ohio 1991) 142 B.R. 167.
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