Qualchoice, Inc. v. BrennanQualchoice, Inc. v. Brennan
Plaintiff-Appellee, :
- vs - :
MARY JANE BRENNAN, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 CV 001594.
Judgment: Affirmed.
Shaun D. Byroads, James M. Peters, and Todd W. Smith, Kreiner & Peters Co., L.P.A., 6047 Frantz Road, #203, Dublin, OH 43017 (For Plaintiff-Appellee).
Joshua R. Angelotta, Williams, Moliterno & Scully Co., L.P.A., 2241 Pinnacle Parkway, Twinsburg, OH 44087 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Mary Jane Brennan, appeals the August 22, 2008 Judgment Entry of the Lake County Court of Common Pleas, denying her Motion for Relief from Judgment Pursuant to
{¶2} On May 14, 2008, plaintiff-appellant, Qualchoice, Inc., filed a Complaint against Brennan. The Complaint alleged that on May 18, 2006, Rachel Burnette was
{¶3} On May 17, 2008, Brennan was served with a copy of the Complaint by certified mail.
{¶4} On June 27, 2008, Qualchoice filed a Motion for Default Judgment on the grounds that Brennan had “failed to plead or otherwise defend as required by the Civil Rules.” Attached to the motion was a System Claim Report identifying payments made on Burnette‘s behalf by date of service, claim number, and provider‘s name, and an affidavit affirming service of summons of the complaint and that Brennan “is not a minor, incompetent, or in the military.”
{¶5} On July 2, 2008, the trial court granted Qualchoice‘s Motion and entered Judgment in its favor in the amount of $2,108.25.
{¶6} On July 31, 2008, Brennan filed a Defendant‘s Motion for Relief from Judgment Pursuant to
{¶7} On August 22, 2008, the trial court denied Brennan‘s Motion. With respect to the Motion for Relief from Judgment, the court found “Defendant fails to explain any unusual or special circumstances justifying her neglect in failing to answer the Complaint in this case.” With respect to the request for a hearing on damages, the court held “that a hearing is not required in this case because an Affidavit relative to
{¶8} On September 19, 2008, Brennan filed her Notice of Appeal. She raises the following assignments of error:
{¶9} “[1.] The trial court abused its discretion when it denied appellant‘s Motion for Relief from Default Judgment pursuant to
{¶10} “[2.] Appellant was entitled to a hearing on damages despite the granting of default judgment.”
{¶11} The Ohio Supreme Court set forth the standard for granting a
{¶12} The decision to grant or deny a
{¶13} “Where the movant alleges inadvertence and excusable neglect as grounds for relief from judgment under
{¶14} Brennan asserts “[i]t is the position of appellant that failure to file an answer to plaintiff‘s Complaint in a timely manner constitutes ‘excusable neglect.‘” We disagree. The failure to file a Answer to Qualchoice‘s Complaint constitutes neglect. In the absence of any operative facts explaining this failure, such neglect is not excusable.
{¶15} Brennan did not set forth any explanation as to why an Answer was not filed. In the Motion for Relief, she cited a couple of cases for the proposition that “miscommunication *** in defense counsel‘s office” constitutes excusable neglect. See Scruggs v. Value City Furniture, 11th Dist. No. 90-G-2259, 2000 Ohio App. LEXIS 6104, at *6-*7. Brennan offered no explanation, however, as to any of the actual circumstances of her case.
{¶16} Given this record, we have no choice but to affirm. “A mere allegation that the movant‘s failure to file a timely answer was due to ‘excusable neglect and inadvertence,’ without any elucidation, cannot be expected to warrant relief.” Adams, 36 Ohio St.3d at 21. In Scruggs, this court noted that “an unique set of circumstances combined to contribute to the failure of appellees to file a timely answer” and, therefore, relief was warranted. 2000 Ohio App. LEXIS 6104, at *6. In the present case, the trial court was not provided with any information that would have allowed it to make a similar conclusion.
{¶17} The first assignment of error is without merit.
{¶18} In the second assignment of error, Brennan claims the trial court erred by not holding a hearing on damages, inasmuch as “pain and suffering, if any, legitimacy of medical bills claimed and property damage are unliquidated damages.”
{¶19} “If, in order to enable the court to enter [default] judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties.”
{¶20} The decision to hold a hearing on damages when granting a default judgment is discretionary with the trial court. Mid-Am. Acceptance Co. v. Reedy, 11th Dist. No. 89-L-14-072, 1990 Ohio App. LEXIS 2712, at *6.
{¶21} “Proof of damages is not required before a default judgment can be granted in an action filed upon a liquidated damage claim based upon an account.” Id.
{¶22} We disagree with Brennan that Qualchoice‘s claim is for unliquidated damages. Contrary to Brennan‘s position, Qualchoice seeks no compensation for underlying pain and suffering or property damage, only for medical expenses paid on behalf of its insured. Moreover, the legitimacy of these expenses is not in issue by virtue of Brennan‘s failure to Answer the Complaint. See
{¶23} As to the amount of the medical expenses, Qualchoice submitted proof in the form of an affidavit and claim report. “A liquidated claim is one that can be determined with exactness from the agreement between the parties or by arithmetical process or by the application of definite rules of law.” L.S. Industries v. Coe, 9th Dist. No. 22603, 2005-Ohio-6736, at ¶22, quoting Huo Chin Yin v. Amino Prods. Co. (1943), 141 Ohio St. 21, 29; Faulkner v. Integrated Servs. Network, Inc., 8th Dist. Nos. 81877 and 83083, 2003-Ohio-6474, at ¶27 (the same). Accordingly, “it is within the discretion
{¶24} Qualchoice‘s claim was based on an account of monies paid to medical providers on behalf of its insured. We find no abuse of discretion in the failure to conduct a hearing on damages. Professional Serv. Industries, Inc. v. Asphalt Specialists, Inc., 11th Dist. No. 91-T-4633, 1992 Ohio App. LEXIS 5046, at *6 (default judgment entered in an action on an account without hearing); E.K. Concrete, Inc. v. Ross, 11th Dist. No. 2794, 1980 Ohio App. LEXIS 13173, at *4 (the same).
{¶25} The second assignment of error is without merit.
{¶26} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, denying Brennan‘s Motion for Relief from Judgment Pursuant to
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
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{¶27} I do not think that QualChoice proved its damages, as a matter of law. Hence, I would find that default judgment was improvidently granted, and reverse and remand for further proceedings.
{¶28} This court was recently faced with a similar case, QualChoice, Inc. v. Nationwide Ins. Co., 11th Dist. No. 2007-L-172, 2008-Ohio-6979. QualChoice allegedly paid the medical bills of its insured, attendant upon an automobile accident, then filed its subrogation claim against the insured automobile liability carrier, Nationwide, seeking payment under the med pay provisions of the insured automobile policy. Id. at ¶2-3. QualChoice eventually moved for summary judgment, which the trial court granted. Id. at ¶4. On appeal, Nationwide asserted that QualChoice had failed to prove its damages. We foud merit in this assignment of error, holding as follows:
{¶29} “As support for its damage claim, QualChoice submitted the affidavit of Yvonne Harris, one of its subrogation analysts. Attached to the affidavit is a single page document, ***, denominated a ‘System Claim Report,’ and dated August 16, 2007. This report contains information regarding services provided to [the insured] from January 4, 2005, through January 6, 2005. There are seven entries for these dates. Each entry contains the following information: (1) date of service; (2) the claim number; (3) the patient‘s name; (4) the total bill for the service; (5) the amount actually paid by QualChoice; (6) the ‘ICD9 Code‘; and (7) the name of the service provider.
{¶30} “‘Proof of the amount paid or the amount of the bill rendered and of the nature of the services performed constitutes prima facie evidence of the necessity and reasonableness of the charges for medical and hospital services. (***)’ Wagner v.McDaniels (1984), 9 Ohio St.3d 184, ***, at paragraph one of the syllabus. (Emphasis added.) In this case, the ‘System Claim Report’ submitted by QualChoice is simply insufficient, under Wagner and
{¶31} Similarly in this case, QualChoice relied solely on its System Claim Report to prove damages. Even in default proceedings, I believe this document is insufficient pursuant to Wagner. Some elemental description of the services rendered is required to make a prima facie case.
{¶32} I respectfully dissent.