Complete Lawn Servs. v. Chimney Hill, L.L.C.Complete Lawn Servs. v. Chimney Hill, L.L.C.
Case No. 14CVF02432
James P. Langendorf, 1081 North University Boulevard, Suite A, Middletown, Ohio 45042, for plaintiff-appellee
Joseph R. Matejkovic, 9078 Union Centre Boulevard, Suite 350, West Chester, Ohio 45069, for defendants-appellants
M. POWELL, P.J.
{¶ 1} Defendants-appellants, Chimney Hill, LLC (“Chimney Hill“), Kensington Ridge Partners, LLC (“Kensington Ridge“), and Piping Rock Partners, Inc. (“Piping Rock“) (collectively “appellants“), appeal from the Middletown Municipal Court‘s decision granting default judgment to plaintiff-appellee, Complete Lawn Services (“CLS“). For the reasons that follow, we reverse the default judgment granted to CLS and remand the matter to the
{¶ 2} CLS provides landscaping and snow removal services to commercial and residential properties. Chimney Hill and Kensington Ridge own apartment complexes in Middletown, Ohio. Piping Rock manages both apartment complexes.
{¶ 3} On November 7, 2014, CLS filed a complaint against appellants in the municipal court, alleging that it was not paid for services rendered to the Chimney Hill and Kensington Ridge apartment complexes. Service was perfected upon all appellants on November 13, 2014.
{¶ 4} On February 9, 2015, appellants’ counsel filed a notice of appearance in the action, and then filed an answer to CLS‘s complaint, without seeking leave to file the answer out of time. On February 11, 2015, a telephone report hearing was scheduled for late March 2015. Also on February 11, 2015, CLS served appellants’ counsel with several discovery requests, including its requests for admission. Appellants failed to respond. Consequently, on March 18, 2015, CLS moved to have its requests for admission considered admitted. The next day, appellants served responses to CLS‘s requests for admission.
{¶ 5} On March 27, 2015, the telephone report hearing was conducted, and appellants filed a memorandum in opposition to treating CLS‘s requests for admission as admitted. On April 6, 2015, appellants filed a motion for leave to file an amended answer and a proposed amended answer. The municipal court never ruled on appellants’ motion for leave to file an amended answer.
{¶ 6} The matter subsequently came before the magistrate for review. On June 4, 2015, the magistrate issued a decision finding as follows: (1) service of CLS‘s complaint on appellants was completed on November 13, 2014; (2) there was no docket entry for the motion for default filed by CLS sometime after that date; (3) no order was issued granting appellants an extension of time to file an answer; (4) appellants’ counsel entered an
{¶ 7} Five hours after the magistrate‘s decision was issued, CLS‘s motion for default judgment against appellants was filed, and file-stamped with the same date as that of the magistrate‘s decision, i.e., June 4, 2015. This motion for default judgment was, apparently, the one to which the magistrate had referred in its decision as (1) not having a docket entry, and (2) having been filed by CLS “sometime after” the date on which service of CLS’ complaint was completed. CLS alleged in its motion for default judgment that appellants had been properly served with its complaint but “none have appeared either in person or through counsel[,]” and therefore, CLS was entitled to default judgment against appellants in the amount of $11,249.44, plus interest and court costs.
{¶ 8} On June 9, 2015, the municipal court issued an order granting CLS‘s motion for default judgment and mandating that appellants pay CLS $11,249.44, plus post-judgment interest and costs. In the late afternoon of June 9, 2015, appellants filed a motion asking the municipal court to reconsider the magistrate‘s June 4 decision. On June 18, 2015, appellants filed (1) a memorandum in opposition to CLS‘s motion for default judgment filed on June 4, 2015, (2) a motion to vacate the municipal court‘s June 9 order granting CLS‘s motion for default judgment and damages, and (3) objections to the magistrate‘s June 4 decision.
{¶ 9} On July 6, 2015, the municipal court overruled appellants’ objections and
{¶ 10} On August 5, 2015, appellants filed a notice of appeal from the municipal court‘s July 6 judgment. On September 23, 2015, CLS moved pursuant to
{¶ 11} Appellants now raise the following assignments of error:
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS/APPELLANTS WHEN IT GRANTED DEFAULT JUDGMENT.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS/APPELLANTS WHEN IT ISSUED AN ORDER GRANTING JUDGMENT INSTEAD OF AN ENTRY GRANTING JUDGMENT.
{¶ 16} Before addressing appellants’ assignments of error, we must first rule on their objection to CLS‘s post-judgment motion in the municipal court to correct the record pursuant
{¶ 17}
(E) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified, filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.
{¶ 18} As stated in Leaseway Distrib. Ctrs., Inc. v. Dept. of Adm. Serv., 49 Ohio App.3d 99, 109 (10th Dist.1988), ”
{¶ 19} In their first assignment of error, appellants contend that the municipal court
{¶ 20} In their second and third arguments, appellants contend that the municipal court erred in granting CLS default judgment, because they were not served with written notice of CLS‘s application for default judgment at least seven days prior to the hearing on such application, as required by
{¶ 21} An appellate court reviews a trial court‘s decision to grant or deny a motion for default judgment under an abuse-of-discretion standard. Nix v. Robertson, 12th Dist. Butler No. CA2012-08-157, 2013-Ohio-777, ¶ 9. “An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Despite this deferential standard of review, courts of appeals and trial courts, alike, must be mindful that “[g]enerally, the law disfavors default judgments” and “[t]he general policy in Ohio is to decide cases on their merits whenever possible.” Baines v. Harwood, 87 Ohio App.3d 345, 347 (12th Dist.1993).
{¶ 22} Here, the municipal court granted default judgment because appellants failed to serve their answer to CLS‘s complaint within 28 days after service of the summons and complaint upon them, as required by
{¶ 23}
(A) Entry of judgment When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor * * *. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application.
(Emphasis added.) Here, it is clear that appellants “appeared” in the action, for purposes of
{¶ 24} In AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88, 90 (1984), the Ohio Supreme Court found that there was “little question” that an employer had made an “appearance” in the action, for purposes of
[T]his court‘s holding today is in keeping with the spirit of
Civ.R. 55(A) in particular and with the Civil Rules in general. A notice requirement similar to the one inCiv.R. 55 has been described as follows: It is ” * * * a device intended to protect those parties who, although delaying in a formal sense by failing to file [timely] pleadings * * *, have otherwise indicated to the moving party a clear purpose to defend the suit.” [Footnote omitted.] As
More generally, the policy underlying the modernization of the Civil Rules – i.e., the abandonment or relaxation of restrictive rules which prevent hearing of cases on their merits – is central to this issue and this court has long been mindful of this policy in its construction of the rules.
{¶ 25} In Baines, 87 Ohio App.3d 345, this court, citing AMCA Internatl. Corp., held that the appellants made an appearance in the action by having a telephone conversation with counsel for appellees in which they discussed a possible settlement of appellees’ lawsuit against them. Id. at 346-347. Other courts also have interpreted
{¶ 26} In Hiener v. Moretti, 11th Dist. Ashtabula No. 2009-A-0001, 2009-Ohio-5060, the court considered a situation similar to the one presently before us. In Hiener, the appellant filed a complaint seeking payment of attorney fees. Id. at ¶ 2. When the appellees failed to file an answer, appellant filed a motion for default judgment under
[A]ppellant is correct that an untimely filing of an answer does not act to fulfill a defendant‘s obligations under
Civ.R. 12(A)(1) . Rather, as appellant points out, an untimely answer may only be filed beyond the twenty-eight day period set forth underCiv.R. 12(A) after submission of a written motion and a finding of excusable neglect. SeeCiv.R. 7(B)(1) andCiv.R. 6(B) ; see, also, Miller v. Lint (1980), 62 Ohio St.2d 209, 214, 404 N.E.2d 752. However, a trial court‘s decision granting or denying a party leave to file an answer late is a legally different question from whether an untimely answer constitutes an “appearance.” Kime v. Dierksheide (May 24, 1985), 6th Dist. No. WD-85-7, 1985 Ohio App. LEXIS 7731, *4. Indeed, the distinction is implicit in the language ofCiv.R. 55(A) : The rule indicates a default judgment may be entered when a defendant has failed to plead or defend; however, once a defendant has “appeared” (without filing a responsive pleading or defending the action), he or she is then entitled to notice of at least seven days. While one necessarily “appears” via a proper pleading, one does not have to properly plead to “appear.”
{¶ 27} Here, the record shows that appellants’ counsel (1) filed a notice of appearance, an answer, a motion for leave to file an amended answer, and a proposed amended answer, (2) engaged in discovery with CLS‘s counsel, and (3) participated in a telephone report hearing with the municipal court and CLS‘s counsel, all before the municipal court rendered default judgment against appellants. We conclude that the record shows that appellants “appeared” in the action for purposes of
{¶ 28} We further conclude that the record supports appellants’ claim that the municipal court granted default judgment to CLS without providing any notice to appellants that it was considering CLS‘s motion. In fact, appellants would have been completely
{¶ 29} In light of the foregoing, we conclude that appellants appeared in the matter, for purposes of
{¶ 30} In their first argument under this assignment of error, appellants note that granting default judgment under
{¶ 32} Some states do not recognize that a party may waive his or her right to default judgment. See, e.g., Lewis v. Crowe, 296 Ark. 175, 177-179 (1988) (a trial court abuses its discretion by refusing to grant a default judgment after the period for an answer has expired in the absence of excusable neglect, unavoidable casualty, or other just cause). However, other states have recognized that, in certain instances, a party may be found to have impliedly waived its right to a default judgment.
{¶ 33} For example, in Ewing v. Johnston, 175 Ga.App. 760 (1985), the court held that the “statutory right to judgment following default” is not an “indefeasible right,” but instead, may be asserted or waived by a plaintiff who proceeds with the action without taking advantage of his or her right to judgment in a timely and proper manner. Id. at 764. The court noted that “such a waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment.” Id. The court listed a number of acts that have been held by various states to constitute an implied waiver of the right to default judgment, including (1) allowing the defaulting party to plead, (2) extending the time to plead, (3) going to trial on the merits, and (4) announcing ready for trial and introducing evidence on the merits. Id. at 764-65. After finding that “[a]ll of these indicia of waiver [we]re present” in the case before it, the court determined that the appellant had waived his right to default judgment. Id. at 765.
{¶ 35} In the case presently before us, the magistrate‘s decision, which was adopted by the municipal court in its entirety, mentions that, after appellants’ counsel filed his entry of appearance in the case, “numerous pleadings were filed by both parties regarding admissions, interrogatories[,] and production of documents[,]” and that “[n]o orders have been issued concerning discovery or trial.” This language indicates that the municipal court believed that this case had not progressed to a point at which CLS could be viewed as having waived its right to default judgment. However, the municipal court did not actually rule on the question of whether CLS should be deemed to have waived its right to default judgment as a result of its litigating this case for four months, and without moving on its motion for default judgment, objecting to appellants’ untimely answer, or moving to strike
{¶ 36} Consequently, we reverse the default judgment and remand this matter to the municipal court, with instructions that it consider whether it should deny CLS‘s motion for default judgment for the reason that CLS impliedly waived its right to default judgment by: (1) failing to follow up on its motion for default judgment filed on December 23, 2014; (2) allowing four months to pass between the time appellants filed their untimely answer and the time the municipal court awarded CLS default judgment, without raising an objection to appellants’ untimely answer or moving to strike it from the record; and (3) engaging in several months of discovery with appellants and participating in a telephone report hearing with the municipal court and appellants. Should the trial court determine that appellee has not waived its right to default judgment, it shall provide appellants with the notice required by
{¶ 37} Accordingly, appellants’ first assignment of error is sustained.2
{¶ 38} In their second assignment of error, appellants contend that the municipal court erred to their prejudice by issuing an “order” granting judgment, rather than an “entry” granting judgment. Appellants’ second assignment of error has been rendered moot in view of our resolution of their first assignment of error, and therefore we need not decide it. See
{¶ 39} The judgment of the municipal court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
RINGLAND and HENDRICKSON, JJ., concur.