
    Bank One, Cleveland, N.A. v. Lincoln Electric Company, Inc. et al.
    (No. 179997
    Decided April 23, 1990.)
    Court of Common Pleas of Cuyahoga County.
    
      Weltman, Weinberg & Associates Co., L.P.A., and Richard M. May, for plaintiff.
    
      Glenn E. Forbes, for defendants Robert E. Reichert and Lincoln Electric Co.
   James J. McMonagle, J.

This matter came on for hearing on December 22, 1989. The parties stipulated that the Cuyahoga County Court of Common Pleas has jurisdiction over this case and that good service was obtained upon defendant Robert E. Reichert. Moreover, the parties stipulated that on or about December 23,1988, plaintiff recovered a judgment against defendant Reichert in Painesville Municipal Court in case No. 88-CIY-F-1675 in the sum of $3,373.97 plus interest at the rate of 19.8 percent per annum from June 27, 1988 to December 13,1988, amounting to $348.09 plus interest thereafter and court costs. Further, the parties stipulate that defendant Lincoln Electric Company, Inc. is holding a bonus which is due and owing to defendant Reichert in the gross amount of $4,696.12 less taxes in the sum of $1,550.18, leaving a net bonus amount of $3,145.94. An affidavit of Sue McNeice, an agent of Bank One, indicates that the balance due on the judgment as of December 20, 1989 is $4,408.52 plus interest at the rate of 19.8 percent per annum and court costs.

Plaintiffs petition for a creditor’s bill alleges that defendant Reichert has insufficient real or personal property to fully liquidate the judgment balance.

After obtaining judgment in the municipal court and before the filing of the instant creditor’s bill, plaintiff filed five garnishments of defendant Reichert’s personal earnings at his place of employment, Lincoln Electric Company, Inc. (“Lincoln Electric”). The answer of the employer to each of these garnishments was that the defendant-employee had insufficient earnings. This was particularly true once the deduction was made for defendant’s obligation to the Lake County Bureau of Support.

The issue confronting this court is whether defendant Reichert’s bonus, in the possession of defendant Lincoln Electric Company, Inc., is subject to the payment of plaintiff’s judgment by virtue of the filing of this creditor’s bill pursuant to R.C. 2333.01.

R.C. 2333.01 recites in pertinent part as follows:

“When a judgment debtor does not have sufficient personal or real property subject to levy on execution to satisfy the judgment, an equitable interest which he has in real estate as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint-stock company, or in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person or body politic or corporate, shall be subject to the payment of the judgment by action.”

A creditor’s bill action brought under this code section is equitable in nature. Gaib v. Gaib (1983), 14 Ohio App. 3d 97, 14 OBR 111, 470 N.E. 2d 189. Consequently, it is appropriately brought when a judgment debtor has insufficient real or personal property to levy on to satisfy the judgment. Lakeshore Motor Freight v. Glenway Industries (1981), 2 Ohio App. 3d 8, 2 OBR 8, 440 N.E. 2d 567; Gaib, supra. The mere filing of a creditor’s bill secures a lien on the assets of defendant which are enumerated in R.C. 2333.01, provided the plaintiff has satisfied the pleading requirement of insufficient real and personal property. Palumbo v. Indus. Comm. (App. 1941), 35 Ohio Law Abs. 169, 40 N.E. 2d 675; Gaib, supra.

The plaintiff herein, Bank One, Cleveland, N.A., has met this pleading burden and has alleged that the debtor, Robert E. Reichert, has insufficient real and personal property to satisfy the judgment it obtained against him in Painesville Municipal Court. Ohio courts have noted that an action in the nature of a creditor’s suit under R.C. 2333.01 allows a judgment creditor to reach:

“* * * equitable assets which, by reason of encumbrances thereon or uncertainties respecting title or valuation, cannot be effectively subjected under the ordinary legal process of execution by way of judgment liens, attachment or garnishment. Union Properties v. Patterson (1944), 143 Ohio St. 192 [28 O.O. 111]; Dunbar v. Harrison (1868), 18 Ohio St. 24; Terry v. Claypool (1945), 77 Ohio App. 87 [32 O.O. 353]. * * *” Lakeshore Motor Freight v. Glenway Industries, supra, at 9, 2 OBR at 10, 440 N.E. 2d at 569.

Herein, then, this court must reflect upon whether or not the bonus payable to Reichert by Lincoln Electric constitutes earnings. If it does, then garnishment is the appropriate tool and the amount of funds subject to garnishment is limited by state and federal statute. If it does not, then the bonus is an asset accessible only through a creditor’s bill, but reachable in the full amount.

“Earnings” is a broad term which encompasses more than wages. Riley v. Kessler (1982), 2 Ohio Misc. 2d 4, 2 OBR 351, 352, 441 N.E. 2d 638, 639. It has been held to mean the “returns from skill and labor in whatever way acquired.* * *” First National Bank of Wilkes-Barre v. Barnum (D. Pa. 1908), 160 F. 245, 247; Riley v. Kessler, supra, at 5, 2 OBR at 352, 441 N.E. 2d at 640.

With reference to garnishment, R.C. 2716.01 provides in part:

“(C) As used in this chapter:
“(1) ‘Employer’ means a person who is required to withhold taxes out of payments of personal earnings made to a judgment debtor.
“(2) ‘Personal earnings’ means money, or any other consideration or thing of value, that is paid or due to a person in exchange for work, labor, or personal services provided by the person to an employer.”

Congress frowns upon unrestricted garnishment of personal compensation, and for purposes of consumer credit protection, Section 1672(a), Title 15, U.S. Code, specifically provides:

“The term ‘earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.”

In the case of Gerry Elson Agency, Inc. v. Muck (Mo. App. 1974), 509 S.W. 2d 750, at 753, the court opined:

“It seems clear that in ruling [on] this matter the courts are not concerned with and should ignore any ‘label’ given to the money due, i.e. wages, salary, commission, etc. The sole criterion for the exemption is that the funds (‘earnings’) subject to the garnishment, in fact and in a strict sense, represent ‘compensation’ for ‘personal services.’ ”

Applying this rationale and looking at Ohio and federal law, the Ashtabula County Court of Appeals, in BancOhio National Bank v. Box (Aug. 4, 1989), Ashtabula App. No. 88-A-1418, unreported, held that a commission constituted personal earnings and that the trial court should have restricted the garnishment pursuant to federal standards:

“While the trial judge was correct in concluding Ohio law was not applicable, and that federal law was, it erred by failing to apply that law. Garnishments may be subject to both state and federal law. However, as previously noted, the more restrictive one, the one resulting in the smallest garnishment, is the one which is applicable.
“The federal law provides that up to ‘25 per cent [of an individual’s] disposable earnings for that week,’ may be subject to garnishment. 15 USCS § 1673. Thus, the court should have applied this law and determined what amount of the commission was subject to garnishment pursuant to the federal law.” Id. at 5-6.

In an independent analysis based solely upon testimony and evidence presented, the Court of Appeals for Cuyahoga County found that a bonus (coincidentally, also payable from Lincoln Electric) was “other than personal earnings” and thus unprotected from the reach of creditors even when trusteeship proceedings have been instituted. Kalasunas v. Brydle (June 18, 1987), Cuyahoga App. No. 52379, unreported. In the eyes of the court of appeals, the evidence presented was somewhat contradictory, but the court was persuaded by the testimony of J. Gilbert Fray, assistant personnel director of Lincoln Electric Company, in which he described the bonus system:

“* * * He indicated that the annual bonus is a function of an employee’s merit rating and money available from company profits for the year. The payment of the bonus is discretionary. The employee handbook specifies that the bonus is not a gift and that it does not happen automatically. It further indicates that no employee is entitled to a bonus or to a particular amount. It is designed to share the results of efficient operation on the basis of the contribution [of] each person to the success of the company each year.” Id. at 5.

Given this discretionary nature of the bonus, the appellate court affirmed the trial court’s decision that the Lincoln Electric bonus was other than personal earnings.

In view of the fact that the Kalasunas decision arose in the Eighth Appellate District of Cuyahoga County and that the court directly confronted the question of a bonus from Lincoln Electric, this court is bound by the Kalasunas determination. Therefore, this court holds that defendant Robert E. Reichert's bonus, in the possession of defendant Lincoln Electric Company, Inc., is other than personal earnings. Consequently, the bonus amount of $3,145.94 is hereby declared subject to the payment of plaintiffs judgment by virtue of the filing of this creditor’s bill pursuant to R.C. 2333.01.

Judgment for plaintiff.  