In re Ball

2012 Ohio 2095

• Court: Ohio Court of Appeals
• Decided: May 11, 2012
• Docket: 24786
• Status: Published

Opinion

[Cite as In re Ball, 2012-Ohio-2095.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: : : Appellate Case No. 24786 Forfeiture of Property of: : : Trial Court Case No. 11-CV-3947 FERNANDO BALL, et al. : : (Civil Appeal from : (Common Pleas Court : : ........... OPINION Rendered on the 11th day of May, 2012. ...........

MATHIAS H. HECK, JR., by MAUREEN C. YUHAS, Atty. Reg. #0037361, 301 West Third Street, Post Office Box 972, Dayton, Ohio 45422 Attorney for Petitioner-Appellee

FERNANDO BALL, 152 Cromwell Place, Apartment 1, Dayton, Ohio 45405 Respondent-Appellee, pro se

JOHN HILL, 150 Westwood Avenue, Dayton, Ohio 45417 Respondent-Appellant, pro se

.............

FAIN, J.

I. Introduction

{¶ 1} Respondent-appellant John Hill appeals, pro se, from a default judgment

ordering forfeiture of $806 in currency seized from Hill. Hill contends that the trial court 2

erred in granting default judgment in favor of petitioner-appellee State of Ohio.

{¶ 2} We conclude that the trial court did not abuse its discretion in granting a

default judgment. After being served with the complaint and summons, Hill failed to timely

file either an answer or a motion for extension of time to answer the complaint. Accordingly,

the judgment of the trial court is Affirmed.

II. Facts and Discussion

{¶ 3} Hill has not presented a specific assignment of error in his brief. We glean

from his brief that his assignment of error is that the trial court erred in ordering a default

judgment of forfeiture. In his brief, Hill contends that he was visiting with a friend, Fernando

Ball, when Ball’s home was raided by the police. Hill was not arrested, but was searched.

The police found $806 in Hill’s pocket, and seized it. Hill explained to the police that he had

just been paid the day before, and had his pay stub in his pocket. Nonetheless, the police took

the money. Hill was subsequently informed that the police were keeping the money because

they “had a case against” Ball. Although Hill attempted to recover his money from the police,

he was unsuccessful.

{¶ 4} The State of Ohio filed a forfeiture action on June 2, 2011, against Ball, Hill,

and another individual named John Williams. The State contended that the sum of $806,

along with two other sums of money, was contraband, proceeds, and or an instrumentality with

a relationship to the underlying case, and was also possessed, concealed, or transported by its

owners, who were described as “John Hill and/or Billy Williams and/or Fernando Ball.”

Complaint, ¶ 7. 3

{¶ 5} Service was initially attempted on Hill, but was not perfected, because the

listed address was vacant. The State then filed a request for service on Hill at a different

address, and service was perfected on June 15, 2011, by certified mail. The certified mail

receipt bore Hill’s purported signature. See Docket # 17. On July 29, 2011, the State filed a

motion for default judgment against Hill, noting that Hill had failed to move or plead within

the time permitted by the Ohio Civil Rules. A default judgment entry and decree of forfeiture

was filed on August 1, 2011, ordering $890 in currency forfeited to the State of Ohio. This

included the amount seized from Hill and another small sum seized from Ball.

{¶ 6} On August 2, 2011, Hill, acting pro se, filed a document with the trial court,

indicating that he had never been served with the complaint. Hill stated that the signature on

the certified mail receipt was not his signature. Hill then filed a notice of appeal from the

default judgment on August 23, 2011.

{¶ 7} Civ.R. 55(A) provides that:

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; but no judgment by default shall be entered against a minor or an

incompetent person unless represented in the action by a guardian or other such

representative who has appeared therein. * * * 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 4

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.

{¶ 8} Decisions to grant default judgments are reviewed for abuse of discretion.

See, e.g., Huffer v. Cicero, 107 Ohio App.3d 65, 74, 667 N.E.2d 1031 (4th Dist.1995).

Accord, Wells Fargo Fin. Natl. Bank v. Douglas, 2d Dist. Montgomery No. 24349,

2011-Ohio-3739, ¶ 17.

{¶ 9} Civ.R. 12(A)(1) provides that defendants must file answers to complaints

within twenty-eight days after service of the complaint and summons. Hill was therefore

required either to file an answer or to request an extension of time for filing an answer, by July

12, 2011. When Hill failed to take any action, the trial court properly granted the State’s

motion for default judgment.

{¶ 10} The trial court was also not required to hold a hearing on damages, because

the complaint and motion for default judgment clearly set forth the amount of damages and

show that the amount is ascertainable. Nationwide Mut. Fire Ins. Co. v. Barrett, 7th Dist.

Mahoning No. 08 MA 130, 2008-Ohio-6588, ¶ 26, citing Palisades Collections, L.L.C. v.

Grieshop, 3d Dist. Auglaize No. 2-07-13, 2007-Ohio-5766, ¶ 16-18. Accordingly, Hill’s sole

assignment of error is without merit.

{¶ 11} We do note that Civ.R. 55(B) states that “If a judgment by default has been

entered, the court may set it aside in accordance with Rule 60(B).” “To prevail on a motion

brought under Civ.R. 60(B), the movant 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 5

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.” GTE Automatic Elec., Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus.

{¶ 12} A year has not yet elapsed from the time that the default judgment was entered

against Hill. Therefore, if Hill believes that grounds exist for setting aside the default

judgment, he may file a motion with the trial court, setting forth reasons why the default

judgment should be set aside. We express no opinion on the merits of such a motion.

III. Conclusion

{¶ 13} Hill’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck, Jr. Maureen C. Yuhas Fernando Ball John Hill Hon. Mary L. Wiseman