State Farm Mut. Auto. Ins. Co. v. Peller, No. 55194

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: PAUL H. MITROVICH; JOHN V. CORRIGAN; KRUPANSKY; PAUL H. MITROVICH; KRUPANSKY
• Citation: 63 Ohio App.3d 357,578 N.E.2d 874
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee, et al., v. PELLER, a Minor, et al., Appellants; Great Northern Mall, Appellee.
• Docket Number: No. 55194
• Decision Date: 26 June 1989

Page 357

63 Ohio App.3d 357 578 N.E.2d 874 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee, et al.,
v.
PELLER, a Minor, et al., Appellants;
Great Northern Mall, Appellee. No. 55194. Court of Appeals of Ohio, Eighth District, Cuyahoga County. Decided June 26, 1989.

[578 N.E.2d 875]

Page 358

Robert J. Olender, Cleveland, for appellee.

Teresa G. Stanford, Lakewood, for third-party appellee.

John P. Fox Co., L.P.A., and John P. Fox, Cleveland, for appellants.

PAUL H. MITROVICH, Judge.

This is an appeal from the Rocky River Municipal Court's judgment in favor of the plaintiffs on the plaintiffs' complaint and dismissing defendants' counterclaim and third-party complaint.

Plaintiffs State Farm Mutual Automobile Insurance Company and Ernest L. Papp filed a complaint against defendants Andrea Peller and Miklos Peller as a result of an automobile accident. Defendants filed a counterclaim and third-party complaint against Great Northern Mall. After being rescheduled three

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times, trial on the matter was held on December 15, 1987. Plaintiffs and third-party defendant appeared, but defendants were not present. Judgment was rendered in favor of plaintiffs on their complaint, and defendants' third-party complaint and counterclaim were dismissed.

Defendants presently appeal that decision, raising two assignments of error.

I

Appellants' first assignment of error is:

"The trial court abused its discretion when it entered judgment for the plaintiff [sic ] when defendant Peller's [sic ] counsel was not notified of the trial date and the instant case proceeded without the defendants."

Appellants argue that the court erred in proceeding to trial without appellants' counsel as appellants' counsel was not notified by the court of the December 15 trial date.

Upon our review of the record, we find no merit to this contention.

The record of the court proceedings below indicates that notice was sent to all parties. If in fact notice never reached counsel, the result in this case would not change. It was incumbent on counsel to check the docket. In light of the fact that the case had been rescheduled three times, counsel should have been particularly aware that a new date would be set.

This case raises some conflict with past decisions of this court regarding when it is necessary to journalize hearing dates. This court has ascribed to the proposition that a court can only speak through its journal as hornbook law. Carter v. Johnson (1978), 55 Ohio App.2d 157, 9 O.O.3d 323, 380 N.E.2d 758; Wolff v. Kreiger (1976), 48 Ohio App.2d 153, 2 O.O.3d 118, 356 N.E.2d 316. We do not wish to change this general rule. However, it is necessary to speak to its application.

We held in Robertson v. Robertson (Mar. 9, 1989), Cuyahoga App. No. 56089, unreported, 1989 WL 21396 at 1, that "[i]n order to give the parties proper notice of a proceeding, a Court at the least must journalize the date of proceeding." (Emphasis added.) We also held in Reese v. Proppe (1981), 3 Ohio App.3d 103, 3 OBR 118, 443 N.E.2d 992, where a trial court advised the attorneys to submit trial briefs by a specific date, sanctions may not be imposed for failure to comply where the court's order is not journalized. This position has been reflected in a number of recent cases decided by this court.

In the case sub judice the minority submits the rule established ought to be applied here, namely, that even though notice appears on the court record, the

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notices were not journalized, therefore, no sanctions by way of ex parte judgment may be taken. See Rose Park Nursing Home v. Sneed (Mar. 16, 1989), Cuyahoga App. No. 56041, unreported, 1989 WL 24954; Sub Trenching Co. v. Nida Construction (Dec. [578 N.E.2d 876] 11, 1986), Cuyahoga App. No. 51361, unreported, 1986 WL 14498. The majority, however, disagrees with this position and holds the court is not required to journalize its trial dates beyond giving notice to the respective parties.

This issue in the view of the majority has been settled by the Ohio Supreme Court in Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 28 OBR 216, 502 N.E.2d 599. The court held an entry of the trial date on the court's docket constitutes reasonable, constructive notice of the fact. Even though the plaintiff did not receive notice except by the constructive notice of the docket, the court held the due process requirements had been met. The parties are responsible to be informed about their cases. In further reliance of Ohio Valley, supra, and Wolff, supra, we held in Dupal v. Daedlow (1989), 61 Ohio App.3d 46, 572 N.E.2d 147, the correct procedure is ex parte hearings where the opposing party fails to appear.

In reliance of Ohio Valley, supra, this court also ruled in Maintenance Unlimited, Inc. v. Ozanne Constr. Co. (Mar. 23, 1989), Cuyahoga App. No. 55958, unreported, at 2, 1989 WL 27767, "It is a reasonable notice of a trial date that is required to satisfy due process, not necessarily written notice."

In Ries Flooring Co. v. Dileno Constr. Co. (1977), 53 Ohio App.2d 255, 259, 7 O.O.3d 320, 322, 373 N.E.2d 1266, 1269, the court listed the position of other states on this matter:

"Notice to the parties of a lawsuit is an elementary essential of a judicial proceeding, Town of Lake Hamilton v. Hughes (1948), 160 Fla. 646, 36 So.2d 260; Wharton v. Cole (Ky.1964), 374 S.W.2d 498; Indian Head Millwork Corp. v. Glendale Homes, Inc. (1962), 104 N.H. 312, 185 A.2d 259; State, ex rel. Hall, v. Cowie (1951), 259 Wis. 123, 47 N.W.2d 309; Brooker v. Smith (Fla.App.1958), 101 So.2d 607; Siano v. Spindel (1975), 136 Ga.App. 288, 220 S.E.2d 718 and is required by due process, McClintock v. Serv-Us Bakers (1968), 103 Ariz. 72, 436 P.2d 891; Wolfe v. Ruggle [sic, Riggle] (1962), 407 Pa. 172, 180 A.2d 220; Brooker v. Smith, supra.

"While it is clear...