Guiley v. Dewalt
2017 Ohio 4151
| Ohio Ct. App. | 2017Background
- Richard Guiley, administrator of Audrey Wilhelm's estate, sued to sell real estate to pay debts and amended the complaint to add U.S. Bank, which held a valid mortgage (~$44,256.43) assigned from Residential Bancorp.
- Summons/service entries show the amended complaint was served on U.S. Bank via certified mail in early May 2016; return-receipt filed but unsigned and undated.
- Guiley moved for default judgment on June 10, 2016; his counsel served the motion on U.S. Bank by regular mail on June 8, 2016.
- U.S. Bank served its answer on plaintiff’s counsel on June 7, 2016 and filed the answer with the probate court on June 13, 2016 (after the default motion was filed), so the court found the answer untimely under Civ. R. 12(A).
- The probate court granted default judgment on July 15, 2016; U.S. Bank appealed, arguing (1) its answer was timely, (2) entry of default despite its answer was error, and (3) the court failed to give the 7-day Civil R. 55(A) notice of the default hearing after U.S. Bank had appeared.
Issues
| Issue | Plaintiff's Argument (Guiley) | Defendant's Argument (U.S. Bank) | Held |
|---|---|---|---|
| Timeliness of U.S. Bank’s answer | Service occurred in early May; answer deadline passed; default appropriate | Bank served answer on adversary June 7 and filed June 13; answer should be treated as timely or at least as an appearance | Court: Answer untimely under Civ. R.12(A); assignments I & II overruled |
| Whether filing/serving the untimely answer constituted an "appearance" under Civ. R.55(A) | N/A (Guiley treated answer as late and proceeded to default) | Serving and filing the untimely answer showed clear intent to defend and therefore constituted an appearance | Court: Serving the answer before the default motion's filing date/effect constituted an appearance for purposes of Civ. R.55(A) |
| Whether Civ. R.55(A) notice/hearing requirement was satisfied before entering default | Local Rule 78.7 and service of motion on Bank suffice; no separate hearing notice required | Bank never received written notice of the hearing date as required by Civ. R.55(A) after it had appeared | Court: Bank had appeared and was entitled to written notice of the application and hearing date; no specific hearing date or >7 days’ notice was given — third assignment sustained; default vacated in part and remanded |
Key Cases Cited
- Suki v. Blume, 9 Ohio App.3d 289 (8th Dist. 1983) (filing an untimely answer without leave of court may constitute an appearance for purposes of notice under Civ. R. 55)