Muskingum Cty. v. Melvin

• Decision Date: 15 October 1990
• Docket Number: No. CA-90-8,CA-90-8
• Citation: 591 N.E.2d 1302,69 Ohio App.3d 811
• Parties: MUSKINGUM COUNTY, Appellee, v. MELVIN et al., Appellants.
• Court: Ohio Court of Appeals

Page 811

69 Ohio App.3d 811

591 N.E.2d 1302

MUSKINGUM COUNTY, Appellee, v. MELVIN et al., Appellants.

No. CA-90-8.

Court of Appeals of Ohio, Fifth District, Muskingum County.

Decided Oct. 15, 1990.

Thomas A. Lewis, Zanesville, for appellee.

Robert L. McCarty, Columbus, for appellants.

GWIN, Judge.

Defendants-appellants, Ronald L. Melvin and Ruth Melvin, appeal from two judgments entered in the Court of Common Pleas, Muskingum County, to-wit: (1) a February 2, 1990 journal entry granting a default judgment in favor of plaintiff-appellee, the County of Muskingum, Ohio; and (2) a March 5, 1990 journal entry overruling appellants' motion for leave to file their answer out of rule. ¹ Appellants seek our review and assign the following as error:

"I. Trial court abused its discretion in failing to afford defendants a hearing on the motion for leave to file their answer out of rule.

"II. Trial court committed prejudicial error in denying defendants' motion for leave to file answer out of rule.

"III. Defendants were denied due process in failing to receive notice of hearing on the default judgment taken by plaintiff and opportunity to present its evidence at a hearing.

"IV. Trial court committed prejudicial error in granting default judgment to plaintiff without requiring (1) seven days notice prior to the hearing as required by rule 55, O.R.C.P. and (2) in failing to require plaintiff to give notice to defendant of any hearing on default judgment."

Appellee filed a complaint on December 11, 1989, seeking the appropriation of easements on appellants' property for the purpose of installing and operating sewer pipelines. Service by certified mail was achieved on December 29, 1989. On January 29, 1990, four days after the twenty-eight-day time period expired, appellants filed for leave to file their answer out of rule. On February 2, 1990, appellee moved for a default judgment, and the trial court granted the same by judgment entry dated February 2, 1990. Finally, on March 5, 1990, the trial court overruled appellants' motion for leave to file their answer out of rule because of Civ.R. 6 noncompliance.

We now turn to appellants' assignments of error.

Appellants argue through their first two assignments that the trial court erred in overruling their motion for leave to file their answer out of rule.

R.C. 163.08 governs the filing of answers in appropriation actions. That section requires an answer to be filed within twenty-eight days after service of the summons and complaint as mandated in Civ.R. 12. It is undisputed that appellants failed to file their answer within the above time period.

Civ.R. 6(B)(2) provides that upon motion the trial court may in its discretion permit the filing of an answer out of rule if the nonfiling of the answer was the result of excusable neglect. Defendants, in their memorandum in support of the motion for leave, stated:

"Counsel for Defendant have been requested by Melvin's [sic ] to file an answer in this case. Since time for answer has elapsed request is made for leave to file out of rule."

Based upon the reasons given by appellants' counsel, we find the trial court did not abuse its discretion in finding appellants failed to demonstrate excusable neglect for the nonfiling of their answer within the twenty-eight-day period.

Appellants also argue through these assignments that the trial court erred in failing to hold a hearing on appellants' motion for leave to file their answer so to determine whether there was excusable neglect.

Muskingum County Loc.R. 5(C) states that "[a]ll motions shall be submitted without oral argument on the memoranda filed with the Clerk" unless the Ohio Civil Rules require a hearing. That local rule under subsection (D) provides that, notwithstanding subsection (C), a party may file a demand for an oral hearing on a motion. In the instant case, Civ.R. 6 does not require the trial court to hold a hearing to determine if there was excusable neglect and appellants never filed a demand for such a hearing.

Accordingly, the trial court did not err in overruling appellants' motion for leave to file their answer out of rule because of appellants' failure to demonstrate excusable neglect and appellants' failure to demand a hearing on said motion.

Assignments of error one and two are hereby overruled.

By their third and fourth assignments, appellants claim the trial court erred in granting a default judgment against them without requiring...