Wilhelm v. Dunford

2014 Ohio 484

Opinion

[Cite as Wilhelm v. Dunford, 2014-Ohio-484.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

RANDALL S. WILHELM JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2013CA00088 CHRISTOPHER DUNFORD, ET AL.

Defendants-Appellants OPINION

NUNC PRO TUNC

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2013CVG1454

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: February 10, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

CRAIG E. CHESSLER DOUGLAS C. BOND 803 Courtyard Centre Morello & Bond, Ltd. 116 Cleveland Avenue N.W. 700 Courtyard Centre Canton, Ohio 44702 116 Cleveland Avenue N.W. Canton, Ohio 44702 Stark County, Case No. 2013CA00088 2

Hoffman, P.J.

{¶1} Defendants-appellants Christopher Dunford and Kalli Young appeal the

April 8, 2013 Judgment Entry entered by the Canton Municipal Court which granted

default judgment against them in the amount of $10,370.10, and in favor of plaintiff-

appellee Randall S. Wilhelm.1

STATEMENT OF THE CASE2

{¶2} On March 8, 2013, Appellee filed a complaint against Appellants. The first

cause of action was for forcible entry and detainer. A second cause of action was to

recover money. The trial court scheduled a hearing on the complaint for March 18,

2013.

{¶3} On March 11, 2013, Appellants filed a document on a form apparently

prepared by the court or clerk and checked the box indicating “OTHER”, adding in

handwriting in the space provided “Stop Eviction, and lawsuits”. This was followed by a

handwritten section further explaining their request to stop the evictions.

{¶4} On March 18, 2013, Appellant Young filed notice of an updated address

for Appellants.

{¶5} On March 18, 2013, a Report of the Magistrate C.R.53 was filed which

indicated both Appellants had appeared at the hearing. Appellee voluntarily dismissed

his first cause of action and the second cause of action was continued.

{¶6} Appellee filed a Motion for Default Judgment on April 8, 2013. The proof

of service indicated a copy was sent to the Defendant(s) on April 9, 2013. Via

1 Appellee has not filed a brief in this appeal. 2 A rendition of the facts is unnecessary for our resolution of this appeal. Stark County, Case No. 2013CA00088 3

Judgment Entry filed April 8, 2013, the trial court granted default judgment against

Appellants in the amount of $10,370.10. It is from that judgment Appellants prosecute

this appeal, assigning as error:

{¶7} “I. THE TRIAL COURT ERRED IN GRANTING DEFAULT JUDGMENT IN

FAVOR OF APPELLANT AFTER APPELLANTS HAD FILED A RESPONSIVE

PLEADING AND APPEARED IN THE CASE.”

{¶8} Civ.R. 55(A) states:

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 by written notice of the application for

judgment at least seven (7) days prior to the hearing on such application.

{¶9} We find the record clearly demonstrates Appellants had appeared in the

action prior to Appellee’s Motion for Default Judgment. The trial court entered default

judgment the same day Appellee’s filed his motion, which is in violation of Civ.R. 55(A).

{¶10} Appellants’ sole assignment of error is sustained. The judgment of the

trial court is reversed and the matter remanded to that court for further proceedings.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur