2013 Ohio 5098
Ohio Ct. App.2013Background
- Mueller obtained a judgment against William Hammann but could not collect it.
- Mueller sued Richard and William alleging fraudulent transfer of 49 Hammann Enterprises shares and asset shielding.
- Richard failed to respond; no answer or pleading was filed on his behalf.
- Mueller sought default judgment; he did not serve Richard with the motion.
- Richard appeared at a settlement conference claiming no representation and no need for counsel.
- Trial court entered a default judgment; Richard moved under Civ.R. 60(B) to set aside the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 55(A) notice was required for the default | Mueller supported default for non-response; no Civ.R. 55(A) notice required due to lack of appearance. | Richard argues notice under Civ.R. 55(A) was required since he appeared in the action. | Notice not required; no abuse of discretion in default judgment. |
| Whether Civ.R. 60(B) relief was proper on the merits | 60(B) motion fails on merits; no meritorious defense and improper neglect. | Richard contends relief is appropriate under Civ.R. 60(B)(1)-(5) due to meritorious defense and excusable neglect. | Denied as to merits; abuse of discretion not shown for merits. |
| Whether Civ.R. 60(B) relief was proper as to damages | Damages were properly supported by record and pleadings against William; identical damages awarded. | Damages were not supported by evidence; not tied to Richard's actions; no hearing. | Damages portion vacated; remanded for a hearing on damages. |
Key Cases Cited
- AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88 (1984) (Civ.R. 55(A) notice requirement applies when party appears)
- Zuljevic v. Midland-Ross Corp. Unicast Div., 62 Ohio St.2d 116 (1980) (abuse of discretion standard for default judgments under Civ.R. 55)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard for decisions in domestic relations context)
- GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976) (attorney neglect imputed to client for Civ.R. 60(B)(1))
- Griffey v. Rajan, 33 Ohio St.3d 75 (1987) ( Civ.R. 60(B) standard and excusable neglect considerations)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (1996) (attorney neglect constitutes inexcusable neglect for Civ.R. 60(B))
- Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d 117 (1993) (appearance may be inferred from conduct; not required to plead to be deemed appearing)