Bryant v. Mehler ( 2011 )

[Cite as Bryant v. Mehler, 2011-Ohio-1226.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
LORI BRYANT : William B. Hoffman, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2010CA00107
:
:
DAVID MEHLER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas,
Case No. 2009CV1427
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT A. PECCHIO ARNOLD F. GLANTZ
2305 E. Aurora Road, Ste. A-1 Glantz Law Offices
Twinsburg, Ohio 44087-1940 4883 Dressler Road, N.W.
Canton, Ohio 44718
[Cite as Bryant v. Mehler, 2011-Ohio-1226.]
Edwards, J.
{¶1} Appellant, David Mehler, appeals a judgment of the Stark County
Common Pleas Court awarding appellee Lori Bryant compensatory damages of
$400,000.00 and punitive damages in the amount of $100,000.00 on her complaint for
sexual harassment.
STATEMENT OF FACTS AND CASE
{¶2} Appellee filed the instant action on April 10, 2009, alleging workplace
sexual harassment against appellant. Appellant filed an answer on June 3, 2009.
{¶3} On July 20, 2009, the court filed an assignment schedule setting pretrial
for August 21, 2009, at 8:50 a.m., for counsel only. The assignment included a note
which stated that failure to appear may result in an adverse judgment being entered
against the party not appearing or in default judgment being rendered where
appropriate. The notice further reminded the parties of Local Rule 13.05 which
provides:
{¶4} “RULE 13.05. IN THE EVENT THAT NEITHER THE DEFENDANT NOR
COUNSEL APPEARS FOR SUCH PRETRIAL CONFERENCE, THE COURT, AT
PLAINTIFF’S REQUEST, MAY HEAR EVIDENCE AND DECIDE A CASE TRIABLE TO
THE COURT, OR IF IT BE A CASE TRIABLE TO A JURY, IT MAY ACCEPT
PLAINTIFF’S WAIVER OF TRIAL BY JURY, HEAR EVIDENCE AND DECIDE THE
CASE.”
{¶5} The assignment schedule was mailed to appellant’s attorney, Willard
Hanner. Service of the assignment schedule was returned as not deliverable as
addressed and unable to forward.
Stark County App. Case No. 2010CA00107 3
{¶6} Neither appellant nor his attorney appeared for the pretrial hearing. The
court granted default judgment on the issue of liability without hearing evidence and
scheduled a damages hearing for September 28, 2009. This order was filed on August
24, 2009. Again, service of that order failed and failure of service was docketed on
September 25, 2009.
{¶7} On September 28, 2009, the magistrate heard evidence on damages.
Again, neither counsel for appellant nor appellant appeared at the hearing. The
magistrate awarded appellee damages in the amount of $400,000.00 for compensatory
damages and $100,000.00 in punitive damages by order filed September 29, 2009.
Once again, service of this entry failed.
{¶8} On November 2, 2009, the Stark County Sheriff personally served
appellant with the September 29, 2009, order. Appellant filed a notice of substitution of
counsel and objections to the magistrate’s report on November 12, 2009. Attached to
the objections was an affidavit of appellant stating that he was never notified by
Attorney Hanner of the trial date or damages hearing. He averred that he attempted to
contact Hanner upon receipt of the notice of judgment and discovered that his office
space was empty and there was no relocation information posted on the premises.
{¶9} The court noted that the objections to the magistrate’s report were
untimely filed, but nonetheless reviewed the opinion of the magistrate and found that the
opinion of the magistrate should be affirmed. Appellant assigns four errors:
{¶10} “I. THE TRIAL COURT ERRED IN GRANTING ‘DEFAULT JUDGMENT’
ON THE ISSUE OF LIABILITY IN ACCORDANCE WITH LOC.R. 13.05 WITHOUT
TAKING EVIDENCE.
Stark County App. Case No. 2010CA00107 4
{¶11} “II. PROCEEDING WITH AN EX PARTE TRIAL UNDER LOC.R. 13.05 AS
A SANCTION FOR A DEFENDANT’S SINGLE MISSED PRETRIAL OF WHICH HE
WAS NOT NOTIFIED IS EXTREME, NOT CONSISTENT WITH OHIO’S
PREFERENCE TO RESOLVE CASES ON THEIR MERITS, AND AN ABUSE OF
DISCRETION.
{¶12} “III. THE TRIAL COURT’S DECISION TO ENTER JUDGMENT IN FAVOR
OF BRYANT REGARDING LIABILITY VIOLATED MEHLER’S RIGHT TO DUE
PROCESS OF LAW BECAUSE HE WAS NOT NOTIFIED THAT HIS FAILURE TO
APPEAR FOR A PRETRIAL COULD RESULT IN AN EX PARTE JUDGMENT.
{¶13} “IV. THE TRIAL COURT’S AWARD OF COMPENSATORY AND
PUNITIVE DAMAGES WAS CONTRARY TO THE MANIFEST WEIGHT OF THE
EVIDENCE.”
I
{¶14} Appellant argues that the court erred in entering default judgment against
him on the issue of liability pursuant to Loc. R. 13.05. We agree.
{¶15} As quoted above, Loc. R. 13.05 provides that if the defendant does not
appear for a pretrial conference, the court may hear evidence and decide the case. In
the instant case, the court did not hear evidence, but entered default judgment against
appellant. Civ. R. 55(A) provides:
{¶16} “(A) Entry of judgment. 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; but no judgment by default shall be entered against a minor or an
Stark County App. Case No. 2010CA00107 5
incompetent person unless represented in the action by a 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.”
{¶17} Default judgment was not appropriate in the instant case because
appellant filed an answer as required by the Civil Rules. The court failed to hear
evidence and decide the case as allowed by Loc. R. 13.05 when a party fails to appear
for a pretrial. The court therefore erred in entering default judgment on liability for
appellant’s failure to appear.
{¶18} The first assignment of error is sustained.
II, III, IV
{¶19} The second, third and fourth assignments of error are rendered moot
and/or premature by our decision on assignment of error one.
Stark County App. Case No. 2010CA00107 6
{¶20} The judgment of the Stark County Common Pleas Court is reversed. This
cause is remanded to that court for further proceedings.
By: Edwards, J.
Hoffman, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0124
[Cite as Bryant v. Mehler, 2011-Ohio-1226.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LORI BRYANT :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DAVID MEHLER :
:
Defendant-Appellant : CASE NO. 2010CA00107
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is
reversed and this matter is remanded to the trial court for further proceedings. Costs
assessed to appellee.
_________________________________
_________________________________
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JUDGES