Equable Ascent Financial, L.L.C. v. Christian
196 Ohio App. 3d 34
| Ohio Ct. App. | 2011Background
- Equable filed suit against Christian on March 24, 2010 seeking $5,653.22 for alleged Wells Fargo credit card debt.
- Defendant moved for a more definite statement; court granted, and Equable filed an amended complaint on July 14, 2010.
- Defendant moved to dismiss or for summary judgment and for sanctions; court overruled these motions on October 7, 2010.
- Equable sought default judgment on October 25, 2010; the court granted it on November 16, 2010.
- Appellant argued the default judgment was improper because Christian defended via Civ.R. 12 motions; the court later reversed in part, noting Civ.R. 10(D)(1) deficiencies and that the account attachment was inadequate.
- Court reversed the default judgment and remanded for further proceedings, including potential amendment of the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Christian 'otherwise defended' preventing default | Equable argues defendant’s pre-answer motions did not constitute a defense to the merits | Christian defended by filing motions contesting the allegations and seeking dismissal/sanctions | Default judgment improper; defendant 'otherwise defended' |
| Whether the amended complaint satisfied Civ.R. 10(D)(1) pleading requirements for an account | Equable contends attached statements support the account claim | Christian contends the attached items do not constitute a proper account under Civ.R. 10(D)(1) | Amended complaint insufficient under Civ.R. 10(D)(1); remand for proper pleading |
| Whether Equable attached a proper account under Civ.R. 10(D)(1) | Equable asserts the attached statements reasonably constitute the account | Christian argues the statements do not show a valid account or attach the underlying contract | Equable failed to attach a proper account; remedy on remand |
| Remand efficacy and potential amendment | Equable may amend to plead an account with proper documents or breach of contract with attached contract | Christian would contest the new pleading on remand | Remand permitted for amendment to satisfy Civ.R. 10(D)(1) or to plead breach of contract with attached contract |
Key Cases Cited
- Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123 (Ohio Ct. App. 1967) (account must show party charged and evolving balance)
- Reese v. Proppe, 3 Ohio App.3d 103 (Ohio Ct. App. 1981) (defendant may place case at issue with pre-answer motions; 'otherwise defend' doctrine)
- Hudson & Keyse, L.L.C. v. Carson, 2008-Ohio-2570 (Ohio Ct. App. 2008) (compliance with Civ.R.10(D)(1) can be satisfied by non-traditional account attachments)
- Goodyear v. Waco Holdings, Inc., No. 91432 (Ohio Ct. App. 2009) (defendant’s pre-answer defenses can preclude default where properly defending)
- Huffer v. Cicero, 107 Ohio App.3d 65 (Ohio Ct. App. 1995) (standard of review for Civ.R. 55(A) default judgments; abuse of discretion)
- Natl. Check Bur. v. Buerger, 2006-Ohio-6673 (Ohio Ct. App. 2006) (Civ.R. 10(D) account requirements and attachments; admissible documents)