Tarr v. Am. Flooring Transport, Inc.
This text of 2013 Ohio 3694 (Tarr v. Am. Flooring Transport, Inc.) 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.
Opinion
[Cite as Tarr v. Am. Flooring Transport, Inc., 2013-Ohio-3694.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CLIFFORD TARR, DBA : JUDGES: CARPET EXPRESS INC. : Hon. Sheila G. Farmer, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : AMERICAN FLOORING : Case No. 2013CA00002 TRANSPORT INC., ET AL. : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012CV02355
JUDGMENT: Affirmed/Reversed in Part and Remanded
DATE OF JUDGMENT: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
JEFFREY R. JAKMIDES DOUGLAS C. BOND 325 East Main Street 700 Courtyard Centre Alliance, OH 44601 116 Cleveland Avenue, NW Canton, OH 44702
DEAN L. GRASE 703 Courtyard Centre 116 Cleveland Avenue, NW Canton, OH 44702 Stark County, Case No. 2013CA00002 2
Farmer, P.J.
{¶1} Appellants, George Morris, Jr. and his corporation, American Flooring
Transport, Inc. (hereinafter "AFT"), were in the business of hauling carpet. Appellee,
Clifford Tarr, dba Carpet Express, Inc., was in the business of selling carpet. In the
spring and summer of 2012, the parties had a business relationship wherein appellants
would haul carpet for appellee. A dispute arose as to the whereabouts of certain rolls of
carpet.
{¶2} On July 26, 2012, appellee filed a complaint against appellants, alleging
appellants had stolen the carpet. Appellant Morris filed a pro se answer on September
7, 2012, and attended a pretrial on September 24, 2012. By judgment entry filed
September 25, 2012, the trial court ordered appellant Morris to secure counsel for the
corporation.
{¶3} On October 18, 2012, appellee filed a motion for default judgment against
appellants, claiming appellant Morris failed to secure counsel for the corporation and
failed to defend the action. A hearing was held on November 26, 2012. Appellants did
not appear. By judgment entry filed December 4, 2012, the trial court granted the
motion and entered judgment for appellee as against appellants, jointly and severally, in
the amount of $21,079.53.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRED IN GRANTING A DEFAULT JUDGMENT
AGAINST MORRIS WHERE MORRIS TIMELY FILED A RESPONSIVE ANSWER TO Stark County, Case No. 2013CA00002 3
THE COMPLAINT WHICH WAS NOT STRICKEN AND FURTHER APPEARED AT
THE SEPTEMBER 24 PRETRIAL."
II
{¶6} "THE TRIAL COURT ERRED BY ENTERING A DEFAULT JUDGMENT
AGAINST MORRIS WHERE MORRIS APPEARED IN HIS INDIVIDUAL CAPACITY AT
THE SEPTEMBER 24, 2012 PRE-TRIAL BUT WAS NOT SERVED WITH NOTICE OF
THE APPLICATION FOR DEFAULT JUDGMENT AS REQUIRED BY CIVIL RULE
55(A)."
III
{¶7} "THE TRIAL COURT ERRED BY ENTERING A DEFAULT JUDGMENT
AGAINST CORPORATE DEFENDANT AFT WHERE AFT APPEARED AT THE
SEPTEMBER 24, 2012 PRE-TRIAL, BUT WAS NOT SERVED WITH NOTICE OF THE
APPLICATION FOR DEFAULT JUDGMENT AS REQUIRED BY CIVIL RULE 55(A)."
I, II
{¶8} Appellant Morris claims the trial court erred in entering a default judgment
against him. We agree.
{¶9} Civ.R. 55 governs default. Subsection (A) states the following:
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 Stark County, Case No. 2013CA00002 4
guardian or other such representative who has appeared therein. 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.
{¶10} Appellant Morris filed a pro se answer to the complaint on September 7,
2012, and attended a pretrial on September 24, 2012. Clearly he "appeared in the
action" for purposes of Civ.R. 55. Pursuant to said rule, appellant was to be "served
with written notice of the application for judgment at least seven days prior to the
hearing on such application." The motion for default judgment filed on October 18, 2012
contains a request for service, asking the clerk of courts to serve appellants, but does
not contain a proof of service. By judgment entry filed October 19, 2012, a hearing on
the motion was set for November 26, 2012. Appellants failed to appear.
{¶11} There is no evidence in the record to establish that appellants received a
written notice of the application for judgment or the hearing notice. The docket entry Stark County, Case No. 2013CA00002 5
regarding the motion for default judgment erroneously states it was filed "with proof of
service."
{¶12} Upon review, we find the provisions of Civ.R. 55 have not been met. The
December 4, 2012 default judgment is vacated as against appellant Morris.
{¶13} Assignments of Error I and II are granted.
{¶14} Appellant AFT claims the trial court erred in entering a default judgment
against it. We disagree.
{¶15} As stated above, appellant Morris filed a pro se answer on September 7,
2012. The answer was signed in his individual capacity. Following the pretrial on
September 24, 2012, the trial court filed a judgment entry on September 25, 2012,
stating the following:
This matter came before the Court for a pretrial conference on
September 24, 2012. Defendant, representing themselves, did appear;
before the pretrial commenced, it was determined that Mr. Morris attended
the pretrial on behalf of himself and American Flooring Transport, Inc.
Under Ohio law, however, a corporation can maintain litigation or appear
in court only through an attorney admitted to the practice of law and may
not do so through an officer of the corporation or some other appointed
agent. (Citation omitted.)
Accordingly, the Court orders Defendant to retain counsel duly
licensed to practice law in the State of Ohio and have that counsel Stark County, Case No. 2013CA00002 6
enter an appearance in this case on or before October 5, 2012.
Failure to do so may result in the Court granting default judgment against
Defendant, American Flooring Transport, Inc., and in favor of Plaintiff on
its Complaint.
{¶16} Appellant AFT did not retain counsel, enter an appearance, or file an
answer to the complaint by October 5, 2012. As a result, appellee filed a motion for
default judgment almost two weeks later, on October 18, 2012, which the trial court
granted on December 4, 2012.
{¶17} Upon review, we find appellant AFT failed to defend the action per the trial
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