2016 Ohio 997
Ohio Ct. App.2016Background
- CLS sued Chimney Hill, Kensington Ridge, and Piping Rock in Middletown Municipal Court for unpaid landscaping services; service was completed November 13, 2014.
- CLS filed a motion for default judgment (later shown to have been filed Dec. 23, 2014). Defendants’ counsel entered appearance and filed an answer on February 9, 2015 (untimely and without leave).
- After discovery exchanges and a telephone report hearing, the magistrate issued a decision on June 4, 2015 granting default judgment to CLS; the municipal court adopted the magistrate’s decision and entered judgment for CLS on June 9 / July 6, 2015.
- Defendants argued they had “appeared” for purposes of Civ.R. 55(A) and therefore were entitled to 7 days’ written notice of any hearing on a default-judgment application, which they did not receive.
- Defendants appealed; the court of appeals reversed and remanded, concluding the trial court erred by granting default judgment without the required Civ.R. 55(A) notice and directing the trial court to consider whether CLS had waived its right to default judgment by delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants "appeared" under Civ.R. 55(A) | CLS argued default was proper because defendants failed to timely plead per Civ.R. 12(A) | Defendants argued their counsel’s appearance, answer, discovery responses, and participation in a conference constituted an "appearance" entitling them to 7 days' written notice before default judgment | Court: Defendants had appeared for Civ.R. 55(A) purposes and were thus entitled to written notice |
| Whether trial court complied with Civ.R. 55(A) notice requirement before granting default | CLS relied on defendants’ untimely answer and procedural default | Defendants contended they received no 7‑day written notice of the default‑judgment application and were unaware a hearing was held | Court: Municipal court erred by granting default judgment without providing required notice |
| Whether plaintiff waived right to seek default by delay and litigation conduct | CLS did not timely press the default and later corrected record date; argued rules violated by defendants’ late answer | Defendants argued CLS litigated for months (discovery, hearing), waited ~4 months after defendant’s answer before obtaining default, and thus impliedly waived the right to default judgment | Court: Remanded for trial court to decide whether CLS impliedly waived default judgment by its delay and conduct; if not, trial court must give Civ.R. 55(A) notice before proceeding |
| Procedural form of judgment (order vs. entry) | CLS did not materially dispute form | Defendants argued judgment was issued as an "order" rather than an "entry" | Held: Moot in view of reversal on primary issue; court did not decide it |
Key Cases Cited
- AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88 (Ohio 1984) (defendant can "appear" without timely pleading; appearance triggers Civ.R. 55(A) notice protection)
- Baines v. Harwood, 87 Ohio App.3d 345 (12th Dist. 1993) (Ohio policy disfavors default judgments; cases should be decided on merits when possible)
- Suki v. Blume, 9 Ohio App.3d 289 (8th Dist. 1983) (where late answer remains on the record, default judgment should not be entered solely because answer was untimely)
- Miller v. Lint, 62 Ohio St.2d 209 (Ohio 1980) (procedural rules governing leave for late pleadings and excusable neglect)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion review)