In re Ball , 2012 Ohio 2095 ( 2012 )

[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
:
:
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OPINION
Rendered on the 11th day of May, 2012.
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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
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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
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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.
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{¶ 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
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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
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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.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Maureen C. Yuhas
Fernando Ball
John Hill
Hon. Mary L. Wiseman