[Cite as Dancy v. Bergemann, 2011-Ohio-3571.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RUTH ANN DANCY, ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiffs-Appellees Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs-
CHRISTENA ANN BERGEMANN Case No. 2010CA00345
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV02695
JUDGMENT: October 27, 2010 Judgment Entry Affirmed; November 17, 2010 Judgment Entry Vacated; Remanded
DATE OF JUDGMENT ENTRY: July 18, 2011
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
ROBERT E. SOLES, JR. CHRISTENA ANN BERGEMANN, PRO SE KARA DODSON 4689 Kirby Avenue, NE 6945 Market Avenue North No. 27 North Canton, OH 44721 Canton, OH 44705 Stark County, Case No. 2010CA00345 2
Farmer, J.
{¶1} On July 21, 2010, appellees, Ruth Ann Dancy and Face-Up Skin Care &
Salon, Inc., filed a complaint against appellant, Christena Ann Bergemann, alleging
defamation, slander, and libel. The complaint arose from appellant's actions following a
cosmetic procedure she received from appellees.
{¶2} On September 24, 2010, appellees filed a motion for default judgment for
appellant's failure to file an answer. On September 30, 2010, the trial court ordered
appellant to file an appropriate answer before October 14, 2010. Because appellant
failed to file an answer by said date, the trial court granted appellees' motion for default
judgment on October 27, 2010. The trial court set a damages hearing for November 15,
2010.
{¶3} A hearing was held on November 15, 2010 wherein appellant failed to
appear. By judgment entry filed November 17, 2010, the trial court awarded appellees
as against appellant $25,000.00 in compensatory damages and $25,000.00 in punitive
damages. Appellant was also ordered to pay appellees' attorney fees.
{¶4} On December 1, 2010, appellees filed a motion for judgment debtor's
exam. By judgment entry filed December 3, 2010, the trial court set a debtor's exam for
December 21, 2010.
{¶5} Appellant filed an appeal on December 21, 2010. At the outset, we feel
compelled to first address the contents of appellant's appellate brief. Although we are
mindful that appellant is pro se, this does not give her carte blanche to ignore the
appellate rules. Appellant's brief as filed fails to conform to the mandates of App.R.
16(A). The most glaring error is the failure to set forth an assignment of error. This Stark County, Case No. 2010CA00345 3
failure places the burden on appellees to decipher what the issues are that appellant is
choosing to appeal.
{¶6} In her amended docketing statement filed February 1, 2011, appellant
claimed the following under "PROBABLE ISSUES FOR REVIEW":
{¶7} "VIOLATIONS OF DUE PROCESS 5TH AMENDMENT, AND 1ST
AMENDMENT RIGHTS, GIVING RISE TO PLAINTIFF NEVER REQUIRED TO PROVE
ALLEGATIONS/CLAIMS IN 1ST CAUSE OF ACTION."
{¶8} Under "ACTION BROUGHT IN LOWER COURT" appellant listed "A
DEFAULT JUDGMENT AGAINST THE DEFEDANT (W/OUT NOTICE TO HER OF
DECISION OF OCT. 27) FOR $50,000.00 PLUS ATTY.'S FEES."
{¶9} Based upon appellant's amended docketing statement, we formulate the
following assignment of error:
I
{¶10} "THE TRIAL COURT ERRED IN FAILING TO GIVE APPELLANT NOTICE
OF THE SEPTEMBER 24, 2010 MOTION FOR DEFAULT JUDGMENT, THE
OCTOBER 27, 2010 JUDGMENT ENTRY GRANTING APPELLEES DEFAULT
JUDGMENT, AND THE DAMAGES HEARING SET FOR NOVEMBER 15, 2010.
{¶11} Appellant claims the trial court erred in failing to give her notice of the
default motion, the judgment entered against her, and the damages hearing scheduled
for November 15, 2010. We agree in part.
{¶12} Civ.R. 55 governs default. Subsection (A) states the following in pertinent
part: Stark County, Case No. 2010CA00345 4
{¶13} "When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules, the party entitled to a
judgment by default shall apply in writing or orally to the court therefor;***If the party
against whom judgment by default is sought has appeared in the action, he (or, if
appearing by representative, his representative) shall be served with written notice of
the application for judgment at least seven days prior to the hearing on such application.
If, in order to enable the court to enter 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."
{¶14} The first inquiry is whether appellant "has appeared in the action." We
answer in the affirmative for the following reasons. On August 24, 2010, by joint
stipulation of the parties, the trial court granted appellant leave to plead by September
19, 2010. At the time, appellant was represented by counsel. Subsequently,
appellant's attorney sought leave to withdraw which the trial court granted on
September 16, 2010.
{¶15} A day prior to granting the motion to withdraw, the trial court filed a
judgment entry/pretrial order wherein appellant was referenced as "PRO SE" and was
listed as present. In her brief at page 3, appellant stated she was present in person as
opposed to the telephone.
{¶16} On September 24, 2010, the motion for default was filed due to appellant's
failure to file an answer by September 16, 2010. The motion was not served upon Stark County, Case No. 2010CA00345 5
appellant. Pursuant to a judgment entry filed by the trial court on September 30, 2010,
appellant attempted to file an answer on September 27, 2010, however, the trial court
found the purported answer failed to comply with the Ohio Rules of Civil Procedure. We
note the "answer" was not docketed nor placed in the record. The trial court ordered
appellant to do the following:
{¶17} "Accordingly, Defendant is ordered to file an appropriate Answer,
which complies with Rule 8, and any other applicable rule, of the Ohio Rules of
Civil Procedure on or before October 14, 2010. Plaintiff's Motion for Default
Judgment will be held in abeyance by the Court until such time."
{¶18} Based upon the procedural history of the case, we find appellant had
appeared in the action by the joint stipulation for leave to plead, being present for the
pretrial, filing a purported answer, and the trial court granting her another extension to
file an answer. We note appellant has completely failed to file an answer in the
proceedings.
{¶19} The second inquiry is whether appellant was "served with written notice of
the application for judgment at least seven days prior to the hearing on such
application." Civ.R. 55(A) does not require that the actual motion for default be served,
only that written notice of the application for judgment be served. We find the trial
court's September 30, 2010 judgment entry as cited supra gave appellant such notice.
{¶20} By judgment entry filed October 27, 2010, the trial court granted the
motion for default judgment and set a damages hearing for November 15, 2010. The
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[Cite as Dancy v. Bergemann, 2011-Ohio-3571.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RUTH ANN DANCY, ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiffs-Appellees Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs-
CHRISTENA ANN BERGEMANN Case No. 2010CA00345
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV02695
JUDGMENT: October 27, 2010 Judgment Entry Affirmed; November 17, 2010 Judgment Entry Vacated; Remanded
DATE OF JUDGMENT ENTRY: July 18, 2011
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
ROBERT E. SOLES, JR. CHRISTENA ANN BERGEMANN, PRO SE KARA DODSON 4689 Kirby Avenue, NE 6945 Market Avenue North No. 27 North Canton, OH 44721 Canton, OH 44705 Stark County, Case No. 2010CA00345 2
Farmer, J.
{¶1} On July 21, 2010, appellees, Ruth Ann Dancy and Face-Up Skin Care &
Salon, Inc., filed a complaint against appellant, Christena Ann Bergemann, alleging
defamation, slander, and libel. The complaint arose from appellant's actions following a
cosmetic procedure she received from appellees.
{¶2} On September 24, 2010, appellees filed a motion for default judgment for
appellant's failure to file an answer. On September 30, 2010, the trial court ordered
appellant to file an appropriate answer before October 14, 2010. Because appellant
failed to file an answer by said date, the trial court granted appellees' motion for default
judgment on October 27, 2010. The trial court set a damages hearing for November 15,
2010.
{¶3} A hearing was held on November 15, 2010 wherein appellant failed to
appear. By judgment entry filed November 17, 2010, the trial court awarded appellees
as against appellant $25,000.00 in compensatory damages and $25,000.00 in punitive
damages. Appellant was also ordered to pay appellees' attorney fees.
{¶4} On December 1, 2010, appellees filed a motion for judgment debtor's
exam. By judgment entry filed December 3, 2010, the trial court set a debtor's exam for
December 21, 2010.
{¶5} Appellant filed an appeal on December 21, 2010. At the outset, we feel
compelled to first address the contents of appellant's appellate brief. Although we are
mindful that appellant is pro se, this does not give her carte blanche to ignore the
appellate rules. Appellant's brief as filed fails to conform to the mandates of App.R.
16(A). The most glaring error is the failure to set forth an assignment of error. This Stark County, Case No. 2010CA00345 3
failure places the burden on appellees to decipher what the issues are that appellant is
choosing to appeal.
{¶6} In her amended docketing statement filed February 1, 2011, appellant
claimed the following under "PROBABLE ISSUES FOR REVIEW":
{¶7} "VIOLATIONS OF DUE PROCESS 5TH AMENDMENT, AND 1ST
AMENDMENT RIGHTS, GIVING RISE TO PLAINTIFF NEVER REQUIRED TO PROVE
ALLEGATIONS/CLAIMS IN 1ST CAUSE OF ACTION."
{¶8} Under "ACTION BROUGHT IN LOWER COURT" appellant listed "A
DEFAULT JUDGMENT AGAINST THE DEFEDANT (W/OUT NOTICE TO HER OF
DECISION OF OCT. 27) FOR $50,000.00 PLUS ATTY.'S FEES."
{¶9} Based upon appellant's amended docketing statement, we formulate the
following assignment of error:
I
{¶10} "THE TRIAL COURT ERRED IN FAILING TO GIVE APPELLANT NOTICE
OF THE SEPTEMBER 24, 2010 MOTION FOR DEFAULT JUDGMENT, THE
OCTOBER 27, 2010 JUDGMENT ENTRY GRANTING APPELLEES DEFAULT
JUDGMENT, AND THE DAMAGES HEARING SET FOR NOVEMBER 15, 2010.
{¶11} Appellant claims the trial court erred in failing to give her notice of the
default motion, the judgment entered against her, and the damages hearing scheduled
for November 15, 2010. We agree in part.
{¶12} Civ.R. 55 governs default. Subsection (A) states the following in pertinent
part: Stark County, Case No. 2010CA00345 4
{¶13} "When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules, the party entitled to a
judgment by default shall apply in writing or orally to the court therefor;***If the party
against whom judgment by default is sought has appeared in the action, he (or, if
appearing by representative, his representative) shall be served with written notice of
the application for judgment at least seven days prior to the hearing on such application.
If, in order to enable the court to enter 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."
{¶14} The first inquiry is whether appellant "has appeared in the action." We
answer in the affirmative for the following reasons. On August 24, 2010, by joint
stipulation of the parties, the trial court granted appellant leave to plead by September
19, 2010. At the time, appellant was represented by counsel. Subsequently,
appellant's attorney sought leave to withdraw which the trial court granted on
September 16, 2010.
{¶15} A day prior to granting the motion to withdraw, the trial court filed a
judgment entry/pretrial order wherein appellant was referenced as "PRO SE" and was
listed as present. In her brief at page 3, appellant stated she was present in person as
opposed to the telephone.
{¶16} On September 24, 2010, the motion for default was filed due to appellant's
failure to file an answer by September 16, 2010. The motion was not served upon Stark County, Case No. 2010CA00345 5
appellant. Pursuant to a judgment entry filed by the trial court on September 30, 2010,
appellant attempted to file an answer on September 27, 2010, however, the trial court
found the purported answer failed to comply with the Ohio Rules of Civil Procedure. We
note the "answer" was not docketed nor placed in the record. The trial court ordered
appellant to do the following:
{¶17} "Accordingly, Defendant is ordered to file an appropriate Answer,
which complies with Rule 8, and any other applicable rule, of the Ohio Rules of
Civil Procedure on or before October 14, 2010. Plaintiff's Motion for Default
Judgment will be held in abeyance by the Court until such time."
{¶18} Based upon the procedural history of the case, we find appellant had
appeared in the action by the joint stipulation for leave to plead, being present for the
pretrial, filing a purported answer, and the trial court granting her another extension to
file an answer. We note appellant has completely failed to file an answer in the
proceedings.
{¶19} The second inquiry is whether appellant was "served with written notice of
the application for judgment at least seven days prior to the hearing on such
application." Civ.R. 55(A) does not require that the actual motion for default be served,
only that written notice of the application for judgment be served. We find the trial
court's September 30, 2010 judgment entry as cited supra gave appellant such notice.
{¶20} By judgment entry filed October 27, 2010, the trial court granted the
motion for default judgment and set a damages hearing for November 15, 2010. The
entry included the following order: Stark County, Case No. 2010CA00345 6
{¶21} "COUNSEL WHO PREPARED THIS ENTRY SHALL PRESENT A COPY
OF THIS ENTRY TO ALL OTHER COUNSEL OF RECORD PURSUANT TO LOC.
R18."
{¶22} There is no evidence to establish that this entry or any other notice of the
damages hearing was ever given to appellant. We therefore conclude that appellees'
failure to give appellant notice of the default judgment and the scheduled damages
hearing was error. The trial court's November 17, 2010 judgment entry on damages is
vacated. The trial court's October 27, 2010 judgment entry on default is valid and
affirmed. The matter is remanded to the trial court for a damages only hearing after
proper notice is given to appellant.
{¶23} The sole assignment of error is granted in part and denied in part.
{¶24} The October 27, 2010 judgment entry of the Court of Common Pleas of
Stark County, Ohio is hereby affirmed; the November 17, 2010 judgment entry is
vacated.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 627 Stark County, Case No. 2010CA00345 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RUTH ANN DANCY, ET AL. : : Plaintiffs-Appellees : : -vs- : JUDGMENT ENTRY : CHRISTENA ANN BERGEMANN : : Defendant-Appellant : CASE NO. 2010CA00345
For the reasons stated in our accompanying Memorandum-Opinion, the October
27, 2010 judgment entry of the Court of Common Pleas of Stark County, Ohio is
affirmed; the November 17, 2010 judgment entry is vacated. The matter is remanded to
the trial court for further proceedings consistent with this opinion. Costs to be divided
equally between parties: 50% from appellant and 50% from appellees.