Natl. Check Bureau v. PriebeNatl. Check Bureau v. Priebe
{¶ 2} Defendant-appellant, JoAnne Priebe ("defendant"), appeals from the denial of her motion for relief from default judgment entered by the trial court after she failed to appear at two consecutive case management conferences. For the reasons that follow, we reverse and remand.
{¶ 3} Defendant appeared in the action by filing her answer. Defendant did not appear at the March 9, 2005 case management conference. The court issued an order on March 10, 2005 rescheduling the case managemеnt conference for March 29, 2005 and providing that failure to appear would result in default judgment. The computer docket indiсates "notice issued." Defendant did not appear at the March 29th conference and the trial court entered defаult judgment. Thereafter, the defendant filed, and the court denied, a motion for relief from judgment.
{¶ 4} The defendant now appeals rаising one assignment of error for our review:
{¶ 5} "I. Under Ohio law, where a defendant has placed a case in issue by filing an answer, defаult judgment is inappropriate. Defendant timely filed an answer to the complaint, yet the trial court granted default judgment in favor оf plaintiff. Since the trial court's denial of defendant's motion to vacate judgment was erroneous, this court should overrule the trial court, and remand the case for further proceedings."
{¶ 6}
{¶ 7} As with any motion for relief, the proponеnt has the burden of proof. "To prevail on a motion brought under
{¶ 8} We reject plaintiff's contention that this appeal was not timely filed because the notice of appeal was filed more than 30 days following the granting of default judgment. Defendant filed her notice of apрeal from the denial of her motion for relief from judgment not from the default judgment. "[A] judgment denying a motion for relief from judgment filed pursuant to
{¶ 9}
{¶ 10} In an analogous case, this Court observed that "the Ohio Supreme Court has interpreted this language as meaning that once a party pleads in a matter the provisions of
{¶ 11} In Fleck, as here, thе defendant answered the complaint but failed to appear at two consecutive case management cоnferences. This Court held it was error to enter default judgment instead of conducting an ex parte trial wherein the plaintiffs would prоduce evidence to prove their claims. "The proper action for a court to take when a defending party who has pleaded fails to show for trial is to require the party seeking relief to proceed ex parte in the oppоnent's absence." OhioValley,
{¶ 12} It is undisputed that defendant entered an appearance in this case and, therefore, in accordance with Fleck and Ohio Valley the trial court could not enter default judgment on behalf of plaintiff. For this reason, the trial court should have granted the motion for relief from judgment.
{¶ 13} Defendant's sole assignment of error is sustained.
{¶ 14} The default judgment is reversed and this cause is remanded to the trial court for further proceedings cоnsistent with this opinion.
It is ordered that appellant recover of appellee her costs herein taxed.
The Court finds therе were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Kenneth A. Rocco, J., and Christine T. McMonagle, J., concur.