Reese v. Proppe

• Decision Date: 30 July 1981
• Citation: 443 N.E.2d 992,3 Ohio App.3d 103,3 OBR 118
• Parties: , 3 O.B.R. 118 REESE, Appellee, v. PROPPE, Appellant.
• Court: Ohio Court of Appeals

Page 103

3 Ohio App.3d 103

443 N.E.2d 992, 3 O.B.R. 118

REESE, Appellee, v. PROPPE, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 30, 1981.

Syllabus by the Court

1. A default judgment, which obviates a plaintiff's burden of proof of the elements of the claim alleged, may only be rendered in conformance with Civ.R. 55. Civ.R. 55 allows for the awarding of a default judgment only when a defendant has failed to plead timely or otherwise defend a case such that the plaintiff's allegations are not at issue.

2. Once a defendant has answered the plaintiff's complaint and contested the allegations therein, no default judgment may be entered against that defendant. A case may also be placed at issue by a defendant, thus making a default judgment improper, by motions permitted by the Civil Rules to be made prior to or in lieu of an answer.

3. No sanction may be imposed upon a party for failure to comply with an order of the court to perform an act by a specific date unless the court has properly journalized an order specifying a date certain by which the act is to be performed. No sanction may be rendered for failure to appear at trial where the only journalized trial date is "the week of __/__/__."

4. A proper sanction for the failure of a party to obey a valid court order is to hold such party in contempt. Where a defendant has failed to appear at a pretrial hearing designed to ready the case for immediate resolution, or at the trial itself, a court does not err in holding that the case will proceed ex parte. The plaintiff must nonetheless present credible proof of each element of the claim.

5. Permitting the plaintiff to proceed ex parte is too harsh a sanction to impose upon a defendant who has failed to submit a trial memorandum.

John P. Hildebrand, Cleveland, for appellee.

Adrian J. Demer, Berea, for appellant.

KRENZLER, Presiding Judge.

On March 23, 1979 appellee Carol Ann Reese filed a complaint in the Cuyahoga County Court of Common Pleas against appellant Johanna N. Proppe seeking to recover damages for injuries sustained in an automobile accident allegedly caused by appellant. Appellant answered the complaint on May 2, 1979, denying appellee's allegations. No further pleadings or motions were filed by either party.

By a journal entry dated October 17, 1979 the court set the case for trial the "week of 11-26-79"; a subsequent entry of November 26, 1979 continued the trial to the "week of 1-21-80." No specific trial date was ever journalized by the trial court.

On December 10, 1979 a letter signed by the common pleas judge was sent to counsel for both parties. This letter reiterated that the case was set for trial the week of January 21, 1980, and stated that all parties were thereby ordered to submit trial memoranda to the court at least seven days prior to the trial date. The letter further stated that "[f]ailure to submit a trial memorandum in accordance with this trial order will result in appropriate sanctions by the Court, including dismissal, default, or referral to arbitration. * * * " No journal entry was made by the court ordering the submission of trial memoranda.

The next proceeding reflected in the record is a hearing held on January 23, 1980 at which the court heard evidence only on the damages sustained by appellee. The transcript of this hearing indicates that neither appellant nor her counsel was present at the hearing.

No hearing was held on appellant's liability to appellee for the damages sustained. The court nonetheless subsequently entered a judgment for appellee in the amount of $75,000. This judgment was denominated a "default judgment" by the court. The judgment entry did not reflect whether it was ordered as a sanction for appellant's failure to submit a trial memorandum or for her failure to appear at trial.

On February 4, 1980 appellant filed with the trial court a "Motion for Reconsideration and to Set Aside Default Judgment due to Mistake and Excusable Neglect" pursuant to Civ.R. 55(B) and 60(B). On February 21, 1980, before her Civ.R. 60(B) motion was ruled upon, appellant filed a notice of appeal to this court of the default judgment rendered January 24, 1980. That appeal is before this court as case No. 41998. Subsequently, the trial court overruled appellant's motion to set aside the default judgment, and this ruling was appealed to this court as Court of Appeals case No. 42248. Court of Appeals case Nos. 41998 and 42248 have been consolidated upon appeal.

In her consolidated appeal, appellant sets forth three assignments of error for our consideration:

"I. The trial court erred in granting a default judgment against the defendant-appellant.

"II. The conduct of the trial judge as revealed in the record clearly establishes such an abuse of discretion as to constitute reversible error.

"III. The trial court's overruling of the defendant-appellant's motion for reconsideration and to set aside default judgment due to mistake and excusable neglect establishes such an abuse of discretion as to constitute reversible error."

I

Appellant's third assignment of error asserts an abuse of discretion by the trial court in overruling her motion to set aside the default judgment. It is evident, however, that this assignment of error may not be considered by this court on its merits as the court of common pleas was without jurisdiction to rule upon appellant's Civ.R. 60(B) motion.

A trial court does not have jurisdiction to determine a motion for relief from judgment during the pendency of an appeal, and any action then taken upon a Civ.R. 60(B) motion is null and void. Vavrina v. Greczanik (1974), 40 Ohio App.2d 129, 318 N.E.2d 408 . When appellant filed her notice of appeal of the January 24, 1980 default judgment on February 21, 1980, the trial court was divested of jurisdiction to rule upon the February 4, 1980 motion to set aside the default judgment. The trial court's purported ruling upon the motion was therefore void. As no appeal lies from a void judgment, Court of Appeals case No. 42248 is hereby dismissed. Appellant's third assignment of error is not well taken.

II

Appellant's first and second assignments of error argue that the trial court erred and abused its discretion in rendering a default judgment against her, and shall be discussed together.

It is necessary to clarify, at the outset, that the judgment rendered against appellant was not a default judgment, and the provisions of Civ.R. 55 determining the procedure for obtaining default judgments are therefore inapplicable.

Pre-Civil Rule decisions developed the concept of the default judgment as a judgment entered against a defendant who has failed to timely plead in response to the plaintiff's complaint. McCabe v. Tom (1929), 35 Ohio App. 73, 171 N.E. 868. A default by a defendant consequently arises only when the defendant has failed to contest the allegations raised in the complaint and it is thus proper to render a default judgment against the defendant as liability has been admitted or "confessed" by the omission of statements refuting the plaintiff's claims. ¹ Any other use of a "default" judgment is conceptually infeasible as the defendant is not in default.

Prior to the adoption of the Civil Rules, this limited applicability of default judgments was also legislatively approved in Ohio: "[J]udgment may be taken, as upon a default, for so much of the demand as is not in issue, * * * " R.C. 2323.10 (repealed in Am.H.B. No. 1201, 133 Ohio Laws, Part III, 3017, 3020, in response to the promulgation of the Civil Rules). See, generally, Note, Default Judgments in Ohio (1961), 12 W.Res.L.Rev. 747.

Current Civ.R. 55(A) also incorporates this long-standing concept that a default judgment is proper when, and only when, a defendant has not contested the plaintiff's allegations by pleading or "otherwise defend[ing]" such that no issues are present in the case. Civ.R. 55(A) provides that a default judgment may be rendered "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules * * *." Significantly, the Staff Note to Civ.R. 55 cites with approval a case in which the recognition of the default judgment's applicability only as a means of disposing of noncontested cases was crucial. In Coulas v. Smith (1964), 96 Ariz. 325, 395 P.2d 527, the Arizona Supreme Court was faced with the issue of whether a judgment entered against a defendant when he failed to appear at trial was a "default judgment" within the meaning of Arizona's Civil Rule 55(a) ² such that the rule's notice provisions applied. Sitting en banc, the Arizona court held that the judgment could not be a default judgment since the case was at issue, the defendant having filed an answer and counterclaim. Id., 96 Ariz., at 328, 395 P.2d, at 529. The incorporation of the common law limited applicability of default judgments into the Federal Rules of Civil Procedure was also recognized in Bass v. Hoagland (C.A. 5, 1949), 172 F.2d 205, certiorari denied (1949), 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494, in which, in interpreting Fed.R.Civ.P. 55(a), after which Ohio Civ.R. 55(A) is worded, ³ the court held:

" * * * When [defendant] filed a denial of the plaintiff's case neither the clerk nor the judge could enter a default against him. * * * When [defendant did not appear] at the trial, no default was generated; the case was not confessed. * * * " 172 F.2d at 210. (Emphasis added.)

In the instant case, therefore, when appellant answered the complaint of appellee, no default judgment could be entered against her.

We note further that appellant failed to file a trial memorandum, nor does the record indicate that appellant appeared for trial the "week of 1-21-80." Neither the failure to file a trial memorandum nor to appear for trial, however, renders a defendant susceptible to a default judgment for "failure to defend" the action. In this...