BOEHM, KURTZ & LOWRY v. EVANS LANDSCAPING, INC.
APPEAL NO. C-140597
TRIAL NO. 13CV-17090
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 2, 2015
[Cite as Bohem, Kurtz & Lowry v. Evans Landscaping, Inc., 2015-Ohio-2692.]
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: July 2, 2015
Boehm, Kurtz & Lowry and John P. Lowry, and Montgomery, Rennie & Jonson and George D. Jonson, for Plaintiff-Appellee,
Anthony J. Muto, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Evans Landscaping, Inc., appeals the decision of the Hamilton County Municipal Court overruling its
{¶2} The record shows that plaintiff-appellee Boehm, Kurtz & Lowry (“BKL“) is a law firm that had represented Evans in some of its business dealings. BKL filed a complaint against Evans, seeking to recover $2,920 in unpaid legal fees, pre- and postjudgment interest, and costs. Evans filed a timely answer, and the trial court scheduled a case-management conference.
{¶3} When Evans failed to appear at the case-management conference, the trial court sua sponte entered judgment in favor of BKL. The handwritten entry, entitled, “Entry of Default Judgment,” stated that “upon failure to appear for the scheduled September 25, 2013, Case Management Conference, Judgment is granted to Plaintiff on its claims in the amount of $2,920, together with prejudgment interest, statutory postjudgment interest, and costs of this action.”
{¶4} On July 18, 2014, the day before a scheduled judgment-debtor exam, Evans filed a
{¶5} In its sole assignment of error, Evans contends that the trial court erred in overruling its motion for relief from judgment because it had met all of the requirements of
{¶6} The judgment is void for another reason.
The proper action for a court to take when a defending party who has pleaded fails to appear for trial is to require the party seeking relief to proceed ex parte in the opponent‘s absence. Such a procedure, which requires the plaintiff to prove the essential elements of his or her claim, is diametrically opposed to the concept of default, which is based upon an admission and which, therefore, obviates the need for proof. Any judgment based upon an ex parte trial is a judgment after trial pursuant to
Civ.R. 58 and not a default judgment underCiv.R. 55 .
(Citations omitted.) Crabtree at *6-7, citing Ohio Valley Radiology Assoc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 122, 502 N.E.2d 599 (1986), and Providian Natl. Bank v. Stone, 11th Dist. Portage No. 2000-P-0117, 2001 Ohio App. LEXIS 4412, *2-4 (Sept. 28, 2001).
{¶8} BKL correctly argues that a court has inherent power to control its docket. See Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998); State ex rel. Givaudan Flavors Corp. v. Nadel, 1st Dist. Hamilton No. C-070673, 2007-Ohio-5971, ¶ 10. An entry of a default judgment, however, without a hearing is a draconian action taking away a party‘s right to a trial, and is not favored under the law. Heard v. Dubose, 1st Dist. Hamilton No. C-060265, 2007-Ohio-551, ¶ 20. This does not mean that default judgments, under the correct circumstances, will not be enforced. See Lyons v. Kindell, 1st Dist. Hamilton No. C-140160, 2015-Ohio-1709, ¶ 25-27 and 57-65 (Fischer, J., concurring separately); Burdge v. On Guard Sec. Serv., Inc., 1st Dist. Hamilton No. C-050522, 2006-Ohio-2092, ¶ 6-8; Cale Prod., Inc. v. Orrville Bronze & Aluminum Co., 8 Ohio App.3d 375, 378, 457 N.E.2d 854 (9th Dist.1982).
{¶9} Because the trial court was without authority to enter a
Judgment reversed and cause remanded.
HENDON, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry this date.