Equable Ascent Financial, L.L.C. v. Christian

962 N.E.2d 322, 196 Ohio App. 3d 34
CourtOhio Court of Appeals
DecidedAugust 2, 2011
DocketNo. 10AP-1120
StatusPublished
Cited by7 cases

This text of 962 N.E.2d 322 (Equable Ascent Financial, L.L.C. v. Christian) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equable Ascent Financial, L.L.C. v. Christian, 962 N.E.2d 322, 196 Ohio App. 3d 34 (Ohio Ct. App. 2011).

Opinion

Bryant, Presiding Judge.

{¶ 1} Defendant-appellant, Sue Ann Christian, appeals from a judgment of the Franklin County Municipal Court granting the Civ.R. 55(A) motion for default judgment of plaintiff-appellee, Equable Ascent Financial, L.L.C. Because the trial court wrongly granted a default judgment against defendant who had defended against Equable’s complaint, we reverse.

I. Facts and Procedural History

2} Equable filed a complaint against defendant on March 24, 2010, seeking $5,653.22 in credit card debt that defendant allegedly owed to Wells Fargo; Equable alleged that it owned the account through purchase. On April 13, 2010, defendant filed a motion for a more definite statement, and the trial court granted it on June 18, 2010. In response, Equable filed an amended complaint on July 14, 2010.

{¶ 3} On July 23, 2010, defendant filed a motion to dismiss or for summary judgment, and a motion for sanctions. Defendant’s motion alleged that Equable had failed to comply with Civ.R. 10(D)(1), that Equable lacked standing, that Equable’s claims were barred under theories of champerty and unjust enrichment, and that a court sanction properly should issue against Equable for engaging in frivolous conduct. Equable filed a memorandum opposing defendant’s motions, and defendant filed a reply memorandum.

[36]*36{¶ 4} The trial court overruled defendant’s motions on October 7, 2010. According to Civ.R. 12(A)(2)(a), defendant had 14 days to file her answer but did not, prompting Equable to file a motion for default judgment on October 25, 2010. The trial court granted Equable’s motion on November 16, 2010, concluding that defendant had failed to file “a proper answer within the time period contemplated by the Civil Rules.”

II. Assignments of Error

{¶ 5} Defendant appeals, assigning four errors:

Assignment of Error No 1:

The trial court erred by finding that the plaintiff-appellee’s amended complaint satisfied the requirements of Civ.R. 10(D)(1).

Assignment of Error No 2:

The trial court erred by finding that the plaintiff-appellee is a valid assignee of the “contract” underlying the “account.”

Assignment of Error No 3:

The trial court abused it’s [sic] discretion when it granted the plaintiff-appellee’s motion for default judgment.

Assignment of Error No 4:

The trial court erred when it found that the defendant-appellant failed to meet her burden of proof, with respect to the motion to dismiss, when the motion presented raised only questions of law and the scope of the motion was limited to the face of the pleadings.

III. Civ.R. 55 — Default Judgment

{¶ 6} Civ.R. 55(A) provides: “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 therefore.” A trial court’s decision to grant or deny a motion for default judgment will not be reversed absent an abuse of discretion. Huffer v. Cicero (1995), 107 Ohio App.3d 65, 74, 667 N.E.2d 1031. At issue here is the language in the rule referring to a failure to “otherwise defend.”

{¶ 7} “The phrase ‘otherwise defend’ is not defined in Civ.R. 55(A),” but is generally considered to refer “ ‘ “to attacks on the service, or motions to dismiss, or for better particulars, and the like, which may prevent default without presently pleading to the merits.” ’ ” Black v. Oakes (June 26, 2001), 10th Dist. No. 00AP-1133, 2001 WL 710105, quoting Reese v. Proppe (1981), 3 Ohio App.3d 103, 106, 443 N.E.2d 992, quoting Bass v. Hoagland (C.A.5, 1949), 172 F.2d 205, 210. Although an answer to the complaint precludes a default judgment, “[a] [37]*37case 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.” Reese at paragraph two of the syllabus.

{¶ 8} “A default by a defendant consequently arises only when the defendant has failed to contest the allegations raised in the complaint,” making default judgment proper against the defendant when “liability has been admitted or ‘confessed’ by the omission of statements refuting the plaintiffs claims.” Reese at 105; Heritage Realtors v. Kahmann (Apr. 26, 1993), 12th Dist. No. CA92-09-082, 1993 WL 128116 (deciding that by contesting the case through a motion for change of venue, the defendant had “otherwise defend[ed]” so as to avoid default judgment); Ramsey v. Rutherford, 4th Dist. No. 09CA3094, 2009-Ohio-5146, 2009 WL 3112018 (concluding that the various motions that the defendant had filed, including motions to dismiss under Civ.R. 12(B)(6) and (7) and motions to vacate and for reconsideration, meant the defendant had not failed to “otherwise defend” under Civ.R. 55); Murphy v. Alhajj (June 3, 1999), 8th Dist. No. 74198, 1999 WL 359197 (determining that the defendant’s motion to consolidate three small-claims cases and transfer them to the general division of the civil docket, to which the defendant attached an affidavit from his attorney explaining why the plaintiff was not entitled to the money he sought, coupled with the defendant’s presence at the first hearing in the small-claims court, “indicated that the complaint was contested,” the defendant otherwise defended, and default judgment was not proper); Stradiot Specialty, Inc. v. Am. Calendar Co., Inc., 11th Dist. NO.2004-L-162, 2007-Ohio-3364, 2007 WL 1881309 (stating that a defendant’s “motion to dismiss and a motion to transfer the matter to a foreign jurisdiction” as well as the defendant’s attempt “to file an untimely answer” and “motion for summary judgment” meant that the defendant had otherwise defended against the plaintiffs claims and “could not be held in default”).

{¶ 9} Pursuant to those cases, defendant otherwise defended under Civ.R. 55. Defendant’s motion to dismiss or for summary judgment and motion for sanctions were properly captioned to the municipal court case. They responded to Equable’s complaint, contested its allegations, and specifically refused to assent to Equable’s claim for money owed. In addition, defendant’s motions not only disputed Equable’s claim that it owned the account and Equable’s standing but also asserted that the credit card statements attached to the original and amended complaints failed to comply with Civ.R. 10(D)(1). Lastly, defendant asserted that Equable’s claim against her was barred under theories of champerty and unjust enrichment.

{¶ 10} Because defendant’s filings respond to all of Equable’s allegations in the complaint, defendant otherwise defended, and default judgment should not have [38]*38been entered against her. Goodyear v. Waco Holdings, Inc., 8th Dist. No. 91432, 2009-Ohio-619, 2009 WL 344993, ¶ 24 (noting that “in the absence of pleading, ‘defending’ an action means contesting the claimant’s allegations”). Cf. Discover Bank v. Schiefer, 10th Dist. No.

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Bluebook (online)
962 N.E.2d 322, 196 Ohio App. 3d 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equable-ascent-financial-llc-v-christian-ohioctapp-2011.