Dietrich v. Dobos
2014 Ohio 4023
Ohio Ct. App.2014Background
- Dietrich sued Dobos, Lora Dobos, and Sheridan Worldwise in Sept 2012 for an unpaid loan; service by certified mail showed Dobos received the complaint Sept 29, 2012, creating an Oct 29, 2012 deadline to answer.
- Only Lora Dobos answered; Sheridan Worldwise did not, leading Dietrich to seek default against Sheridan.
- Default against Sheridan Worldwise was entered Feb 26, 2013, awarding Dietrich $150,000 plus interest and costs.
- Dobos filed a bankruptcy suggestion on Oct 30, 2012, indicating a Title 11 relief and stay; the bankruptcy stay remained in effect until later termination.
- Dietrich notified the court Nov 7, 2013 that the bankruptcy stay had terminated, attaching a 2013 Bankruptcy Court order stating the debt was not discharged.
- Five days after termination notice, Dietrich moved for default against Dobos; service of the motion was by ordinary mail on Nov 12, 2013; the trial court entered default judgment on Nov 19, 2013 without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dobos appeared in the action triggering Civ.R. 55(A) notice. | Dietrich argues Dobos appeared via the Suggestion of Bankruptcy. | Dobos contends no appearance occurred beyond bankruptcy discourse. | Dobos appeared; Civ.R. 55(A) notice was required. |
| Whether the trial court erred by granting default without a hearing or seven days’ notice. | Dietrich contends notice/hearing requirements apply once appearance is found. | Dobos maintains lack of hearing/notice violated Civ.R. 55(A). | Judgment vacated; default hearing and notice required. |
| Whether the local rule change required scheduling a default-judgment hearing when a defendant appeared. | Dietrich relied on procedural timelines for hearings. | Dobos relies on appearance and notice requirements. | Court erred in not scheduling a default-judgment hearing. |
Key Cases Cited
- Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn., 48 Ohio St.3d 160 (1987 (1987)) (default judgment without appearance requires notice; with appearance, seven days' notice and hearing are required)
- Breeding v. Herberger, 81 Ohio App.3d 419 (1992) (seven-days notice prerequisite for default hearing when appearance exists)
- GMAC Mortgage, LLC v. Lee, 2012-Ohio-1157 (10th Dist. Ohio 2012) (appearance analyzed for Civ.R. 55(A) notice)
- Am. Sec. Processing, Inc. v. Hussein, 2011-Ohio-6766 (10th Dist. Ohio 2011) (appearance may be shown by informal acts on the record)
- Bostic v. Meglan & Co., Ltd., 2006-Ohio-2270 (10th Dist. Ohio 2006) (appearance and notice requirements for default judgments)
- CitiMortgage, Inc. v. Fangman, 2013-Ohio-3316 (12th Dist. Ohio 2013) (Civ.R. 55(A) requires a hearing and seven days notice for appearing defendants)
- Plant Equip., Inc. v. Nationwide Control Serv., Inc., 2003-Ohio-5395 (1st Dist. Ohio 2003) (plain language requires a hearing and notice prior to liability)
- State Farm Ins. Co. v. Valentino, 2003-Ohio-3487 (7th Dist. Ohio 2003) (trial court must hold a hearing and provide seven days notice when defendant appeared)