[Cite as Grimm v. Gumto, 2011-Ohio-2664.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95706
TOD GRIMM PLAINTIFF-APPELLEE
vs.
DANIELLE GUMTO DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Parma Municipal Court Case No. 09 CVG 04302
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 2, 2011 ATTORNEY FOR APPELLANT
Brian J. Williams Brian J. Williams Co., L.P.A. 141 Broad Blvd., Suite 206 Cuyahoga Falls, OH 44221
ATTORNEY FOR APPELLEE
Jamie-Lyn Poh 1649 Laughton Circle Broadview Heights, OH 44147
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Danielle Gumto, appeals from the municipal
court’s decision granting default judgment against her and ordering her to pay
$14,636.66 to plaintiff-appellee, Tod Grimm. For the reasons that follow, we
reverse and remand.
I
{¶ 2} On October 15, 2009, Grimm filed a complaint in the Parma
Municipal Court for forcible entry and detainer against Gumto, his tenant of
approximately three years, and for back rent and damages in the amount of
$15,000. The court subsequently granted a writ of restitution and ordered
that Gumto vacate the premises.
{¶ 3} On December 30, 2009, Gumto timely answered the complaint for
damages and asserted various affirmative defenses. The court set a pretrial conference for February 17, 2010; the record reflects that notice of the pretrial
was sent to Brian Williams, counsel for Gumto, and Grimm. Williams
subsequently requested a continuance, which the trial court granted. The
pretrial was reset two times (to March 10, 2010 and then April 28, 2010); each
time notices were sent to Williams and Grimm. The court subsequently
denied Williams’s request to continue the April 28, 2010 pretrial conference,
but neither Williams nor Gumto appeared for the pretrial.
{¶ 4} The court then set the matter for a show cause hearing on June 2,
2010, and ordered Williams to appear and show cause why he should not be
held in contempt for failing to appear on April 28, 2010. The court also set
another pretrial conference for June 2, 2010. Notices regarding the pretrial
were sent to both Williams and Grimm. The notice advised the parties that
the pretrial would go forward unless the court was advised that the case had
been settled and would be dismissed. The notice further stated: “The Court
further advises that the parties and their respective counsel are required to
appear at the pretrial conference. Failure of the defendant to appear could
result in a default judgment for the plaintiff; failure of plaintiff to appear
could result in an entry of dismissal of plaintiff’s complaint for want of
prosecution.”
{¶ 5} The trial court subsequently granted Williams’s motion to
continue the show cause hearing and pretrial conference and rescheduled both for June 16, 2010. Notices of both events were again sent to Williams and
Grimm. The notice of the rescheduled pretrial conference contained the same
advisement as set forth above regarding the consequences of a party’s failure
to appear.
{¶ 6} On June 16, 2010, Williams appeared for the pretrial conference
and show cause hearing, but Gumto did not attend. The trial court granted
default judgment in favor of Grimm and scheduled an evidentiary hearing
regarding damages for July 27, 2010. 1 Notices regarding the evidentiary
hearing were sent to Williams and Grimm.
{¶ 7} On July 27, 2010, Gumto appeared for the evidentiary hearing,
but Williams did not. Grimm gave the trial judge a copy of a letter dated
August 24, 2009, addressed to him and Gumto, in which the city of Parma
advised them that it had determined after inspection that the house Gumto
had been renting from Grimm was unsafe and unfit for human habitation, and
could not be occupied until the code violations had been corrrected. Gumto
admitted in open court but not under oath that she had allowed the property
to become so rundown while she was living there that it had been condemned.
{¶ 8} Grimm also gave the judge copies of receipts regarding repairs he
had made to the home, as well as a two-page itemization of the expenses that
showed total repair expenses of $14,636.66. In addition, he gave the judge copies of itemized descriptions by the handyman who made the repairs to the
home that identified the repairs made, the time it took to make the repairs,
and the cost of each repair.
{¶ 9} Grimm then gave sworn testimony that the receipts were a fair
and accurate representation of the costs to repair the damages to the home.
Adam Kuklisin, who performed the repairs, likewise gave sworn testimony
that the itemized expenses were a fair and accurate representation of the work
he had performed at the home. The judge granted judgment in favor of
Grimm and against Gumto in the amount of $14,636.66. The court
subsequently denied Gumto’s Civ.R. 60(B) motion for relief from judgment
without a hearing.
II
{¶ 10} In her first assignment of error, Gumto contends that the trial
court erred in granting default judgment to Grimm. In her second
assignment of error, she asserts that the trial court erred in denying her
Civ.R. 60(B) motion to vacate the default judgment. We find merit to both
arguments.
{¶ 11} Paragraph two of the syllabus in GTE Automatic Elec., Inc. v. ARC
Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, states:
{¶ 12} “To prevail on a motion brought under Civ.R. 60(B), the movant
After a hearing, the court dismissed the contempt citation against Williams. 1 must demonstrate that: (1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made
within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),
(2), or (3), not more than one year after the judgment, order, or proceeding was
entered or taken.”
{¶ 13} If any of these requirements is not met, the motion should be
overruled. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d
564. A court’s decision regarding a motion for relief from judgment under
Civ.R. 60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio
St.3d 172, 174, 1994-Ohio-107, 637 N.E.2d 914. Gumto’s motion met the
three GTE requirements and, therefore, the trial court erred in denying her
motion.
{¶ 14} There is no dispute that Gumto’s motion was timely. Further,
she satisfied the requirement of demonstrating a meritorious defense by filing
an answer and asserting affirmative defenses. Mainor v. Jones, 190 Ohio
App.3d 300, 2010-Ohio-4001, 941 N.E.2d 1207, ¶16, citing Newark
Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122, 634 N.E.2d 278
and Bozo v. Clair (Mar. 29, 1979), 8th Dist. No. 38615. “It is not necessary
for [Gumto] to have proved [she] would ultimately prevail on the defense.”
Mainor, supra.
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[Cite as Grimm v. Gumto, 2011-Ohio-2664.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95706
TOD GRIMM PLAINTIFF-APPELLEE
vs.
DANIELLE GUMTO DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Parma Municipal Court Case No. 09 CVG 04302
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 2, 2011 ATTORNEY FOR APPELLANT
Brian J. Williams Brian J. Williams Co., L.P.A. 141 Broad Blvd., Suite 206 Cuyahoga Falls, OH 44221
ATTORNEY FOR APPELLEE
Jamie-Lyn Poh 1649 Laughton Circle Broadview Heights, OH 44147
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Danielle Gumto, appeals from the municipal
court’s decision granting default judgment against her and ordering her to pay
$14,636.66 to plaintiff-appellee, Tod Grimm. For the reasons that follow, we
reverse and remand.
I
{¶ 2} On October 15, 2009, Grimm filed a complaint in the Parma
Municipal Court for forcible entry and detainer against Gumto, his tenant of
approximately three years, and for back rent and damages in the amount of
$15,000. The court subsequently granted a writ of restitution and ordered
that Gumto vacate the premises.
{¶ 3} On December 30, 2009, Gumto timely answered the complaint for
damages and asserted various affirmative defenses. The court set a pretrial conference for February 17, 2010; the record reflects that notice of the pretrial
was sent to Brian Williams, counsel for Gumto, and Grimm. Williams
subsequently requested a continuance, which the trial court granted. The
pretrial was reset two times (to March 10, 2010 and then April 28, 2010); each
time notices were sent to Williams and Grimm. The court subsequently
denied Williams’s request to continue the April 28, 2010 pretrial conference,
but neither Williams nor Gumto appeared for the pretrial.
{¶ 4} The court then set the matter for a show cause hearing on June 2,
2010, and ordered Williams to appear and show cause why he should not be
held in contempt for failing to appear on April 28, 2010. The court also set
another pretrial conference for June 2, 2010. Notices regarding the pretrial
were sent to both Williams and Grimm. The notice advised the parties that
the pretrial would go forward unless the court was advised that the case had
been settled and would be dismissed. The notice further stated: “The Court
further advises that the parties and their respective counsel are required to
appear at the pretrial conference. Failure of the defendant to appear could
result in a default judgment for the plaintiff; failure of plaintiff to appear
could result in an entry of dismissal of plaintiff’s complaint for want of
prosecution.”
{¶ 5} The trial court subsequently granted Williams’s motion to
continue the show cause hearing and pretrial conference and rescheduled both for June 16, 2010. Notices of both events were again sent to Williams and
Grimm. The notice of the rescheduled pretrial conference contained the same
advisement as set forth above regarding the consequences of a party’s failure
to appear.
{¶ 6} On June 16, 2010, Williams appeared for the pretrial conference
and show cause hearing, but Gumto did not attend. The trial court granted
default judgment in favor of Grimm and scheduled an evidentiary hearing
regarding damages for July 27, 2010. 1 Notices regarding the evidentiary
hearing were sent to Williams and Grimm.
{¶ 7} On July 27, 2010, Gumto appeared for the evidentiary hearing,
but Williams did not. Grimm gave the trial judge a copy of a letter dated
August 24, 2009, addressed to him and Gumto, in which the city of Parma
advised them that it had determined after inspection that the house Gumto
had been renting from Grimm was unsafe and unfit for human habitation, and
could not be occupied until the code violations had been corrrected. Gumto
admitted in open court but not under oath that she had allowed the property
to become so rundown while she was living there that it had been condemned.
{¶ 8} Grimm also gave the judge copies of receipts regarding repairs he
had made to the home, as well as a two-page itemization of the expenses that
showed total repair expenses of $14,636.66. In addition, he gave the judge copies of itemized descriptions by the handyman who made the repairs to the
home that identified the repairs made, the time it took to make the repairs,
and the cost of each repair.
{¶ 9} Grimm then gave sworn testimony that the receipts were a fair
and accurate representation of the costs to repair the damages to the home.
Adam Kuklisin, who performed the repairs, likewise gave sworn testimony
that the itemized expenses were a fair and accurate representation of the work
he had performed at the home. The judge granted judgment in favor of
Grimm and against Gumto in the amount of $14,636.66. The court
subsequently denied Gumto’s Civ.R. 60(B) motion for relief from judgment
without a hearing.
II
{¶ 10} In her first assignment of error, Gumto contends that the trial
court erred in granting default judgment to Grimm. In her second
assignment of error, she asserts that the trial court erred in denying her
Civ.R. 60(B) motion to vacate the default judgment. We find merit to both
arguments.
{¶ 11} Paragraph two of the syllabus in GTE Automatic Elec., Inc. v. ARC
Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, states:
{¶ 12} “To prevail on a motion brought under Civ.R. 60(B), the movant
After a hearing, the court dismissed the contempt citation against Williams. 1 must demonstrate that: (1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made
within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),
(2), or (3), not more than one year after the judgment, order, or proceeding was
entered or taken.”
{¶ 13} If any of these requirements is not met, the motion should be
overruled. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d
564. A court’s decision regarding a motion for relief from judgment under
Civ.R. 60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio
St.3d 172, 174, 1994-Ohio-107, 637 N.E.2d 914. Gumto’s motion met the
three GTE requirements and, therefore, the trial court erred in denying her
motion.
{¶ 14} There is no dispute that Gumto’s motion was timely. Further,
she satisfied the requirement of demonstrating a meritorious defense by filing
an answer and asserting affirmative defenses. Mainor v. Jones, 190 Ohio
App.3d 300, 2010-Ohio-4001, 941 N.E.2d 1207, ¶16, citing Newark
Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122, 634 N.E.2d 278
and Bozo v. Clair (Mar. 29, 1979), 8th Dist. No. 38615. “It is not necessary
for [Gumto] to have proved [she] would ultimately prevail on the defense.”
Mainor, supra. See, also, Maxim Fin., Inc. v. Dzina (Dec. 2, 1993), 8th Dist. No. 65206 (movant’s burden is to allege a meritorious defense; movant not
required to demonstrate he will prevail.)
{¶ 15} She also established the remaining GTE requirement; specifically,
that she was entitled to relief from judgment under Civ.R. 60(B)(5). As this
court stated in 1373 East Blvd. Condo Assoc. v. Turner-Thompson, 8th Dist.
No. 90339, 2008-Ohio-3973, ¶7, where the trial court granted default
judgment against the defendants for their failure to attend a pretrial:
{¶ 16} “Civ.R. 55(A) permits entry of a default judgment only upon
parties who have failed to plead or otherwise defend an action. [Defendants]
answered the complaint, so they appeared in the action. Civ.R. 55(A) is
therefore inapplicable. Rather than granting a default judgment, the court
should have proceeded to trial ex parte and required the [plaintiff] to present
evidence in support of its claims. Its failure to do so was error and
established the remaining element of the motion for relief from judgment.
Given the court’s error in granting a default judgment in the first instance, its
refusal to grant relief from that erroneous judgment constituted an abuse of
discretion.” (Internal citations omitted.)
{¶ 17} Likewise, in this case, because Gumto answered the complaint and
asserted affirmative defenses, any default judgment entered for failure to
appear at a pretrial conference was improper. Although we recognize the
trial court’s frustration with Gumto and her counsel, the case should have been set for trial and Grimm should have been required to prove his claims.
Because the trial court erred in not doing so, its subsequent denial of Gumto’s
motion for relief from its erroneous judgment was an abuse of discretion. See
Mainor, supra (trial court should have granted motion for relief from default
judgment because once a party has answered or appeared, a default judgment
is improper.)
{¶ 18} Appellant’s first and second assignments of error are sustained;
the judgment is vacated and the matter is remanded for further proceedings.
The third assignment of error, regarding whether Grimm adequately proved
his damages at the evidentiary hearing, is therefore moot and we need not
consider it. See App.R. 12(A)(1)(c).
Reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE JAMES J. SWEENEY, P.J., and EILEEN A. GALLAGHER, J., CONCUR