Schuster v. Hoover

[Cite as Schuster vs. Hoover, 2016-Ohio-7932.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARGERY SCHUSTER JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellant Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 16 CA 55
DONALD HOOVER, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 16 CV 559
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 29, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MARGERY SCHUSTER NICHOLAS D. ATTERHOLT
PRO SE WELDON, HUSTON & KEYSER LLP
1013 Laurelwood Road 76 North Mulberry Street
Mansfield, Ohio 44907 Mansfield, Ohio 44902
Richland County, Case No. 16 CA 55 2
Wise, J.
{¶1} Appellant Margery Schuster appeals the decision of the Richland County,
Court of Common Pleas, which overruled her motion for default judgment and further
granted dismissal of her pro se interference with contract action in favor of Appellees
Donald Hoover and David Cress. The relevant facts leading to this appeal are as follows:
{¶2} On June 1, 2016, appellant filed a pro se complaint in the Richland County
Court of Common Pleas, alleging that appellees had “pressured and coerced [appellant]
to sign a written contract under extreme duress as so noted in plaintiff’s hand under
plaintiff’s signature, thereby causing said contract to be invalid.” Appellant therein sought
monetary damages of $1,500,000.00 against appellees, individually, along with punitive
damages, reasonable costs of the suit, and other relief.
{¶3} Appellee Hoover was served with the complaint by certified mail on June
13, 2016. Appellee Cress was apparently not successfully served by certified mail.
{¶4} On July 12, 2016, prior to filing any answers to the complaint, appellees
jointly filed a motion to dismiss, alleging appellant had failed to state a claim upon which
relief could be granted.
{¶5} On July 14, 2016, appellant filed a motion for default judgment. In addition,
on July 18, 2016, she filed a response to appellees’ motion to dismiss.
{¶6} On July 27, 2016, appellees, apparently recognizing the issue of the answer
date for Appellee Hoover, filed a motion to file their motion to dismiss instanter.
{¶7} On July 29, 2016, the trial court granted appellees leave to file for dismissal
instanter, therein tolling the required answer date for fourteen days.
Richland County, Case No. 16 CA 55 3
{¶8} On August 2, 2016, appellant filed a motion for default judgment instanter.
On August 5, 2016, appellant filed a “motion to substantiate its previously filed motion for
default judgment.”
{¶9} On August 10, 2016, the trial court filed a final judgment entry captioned
“Order on Motion to Dismiss.” The trial court therein denied appellant’s motion for default
judgment and granted appellees’ motion to dismiss, stating that appellant had failed to
state a claim upon which relief could be granted and that the statute of limitations had
expired.
{¶10} Appellant filed a notice of appeal on September 1, 2016. She herein raises
the following sole Assignment of Error:
{¶11} “I. RICHLAND COUNTY COMMON PLEAS COURT JUDGE JAMES
DEWEESE MADE A REVERSIBLE ERROR OF LAW IN HIS ORDER ON MOTION TO
DISMISS BY NOT GRANTING PLAINTIFF MARGERY SCHUSTER THE DEFAULT
JUDGMENT SHE DEMANDED PURSUANT TO OHIO CIVIL RULE 6(D).”
I.
{¶12} In her sole Assignment of Error, appellant contends the trial court erred in
declining to enter a default judgment against appellees on her complaint for interference
with contract. We disagree.
{¶13} Civ.R. 55(A) states in pertinent part: “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 ***.”
Richland County, Case No. 16 CA 55 4
{¶14} An appellate court will not disturb a trial court's decision regarding a motion
for default judgment unless the trial court abused its discretion. Wampum Hardware Co.
v. Moss, 5th Dist. Guernsey Nos. 14 CA 17, 14 CA 20, 2015-Ohio-2564, ¶ 20, citing Dye
v. Smith, 189 Ohio App. 3d 116, 937 N.E.2d 628, 2010–Ohio–3539, ¶ 7 (4th Dist.). A
reviewing court will thus uphold a trial court's decision regarding a motion for default
judgment so long as the court did not act in an unreasonable, unconscionable, or arbitrary
manner. Id., citing State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).
{¶15} As noted in our recitation of facts, appellant filed her complaint on June 1,
2016, and Appellee Hoover was served with the complaint by certified mail on June 13,
2016. Appellees presently concede their motion to dismiss of July 12, 2016 was one day
past the twenty-eight day deadline to respond to the complaint. See Appellee’s Brief at 5.
On July 14, 2016, with no answers or responsive pleadings having been timely filed,
appellant filed her motion for default judgment.
{¶16} The text of appellant’s limited argument in her brief sets forth her position
that the granting of default judgment was mandatory because Civ.R. 6(D) allegedly
forbids any extensions of time for responding to a service of summons. However, the
basic purpose of Civ.R. 6(D) is to give a party three additional days to respond if a motion
is served by mail. See City of Akron v. Heller, 9th Dist. Summit No. 26969, 2013-Ohio-
5228, ¶ 6. We recognize this portion of the rule “does not apply to responses to service
of summons under Civ.R. 4 through Civ.R. 4.6.” Nonetheless, appellant’s interpretation
of Civ.R. 6(D) is completely dispelled by Civ.R. 6(B)(2), which states: “When by these
rules or by a notice given thereunder or by order of court an act is required or allowed to
be done at or within a specified time, the court for cause shown may at any time in its
Richland County, Case No. 16 CA 55 5
discretion *** upon motion made after the expiration of the specified period permit the act
to be done where the failure to act was the result of excusable neglect ***.”
{¶17} Thus, this Court has determined that it is within a trial court's discretion to
grant a defendant’s motion for leave to plead and to overrule a plaintiff’s motion for default
judgment upon a showing of excusable neglect. See Hopkins v. Dyer, 5th Dist.
Tuscarawas Nos. 2001AP080087, 2001AP080088, 2002-Ohio-1576. Furthermore: “In
determining whether neglect is excusable or inexcusable, all the surrounding facts and
circumstances must be taken into consideration. Neglect under Civ.R. 6(B)(2) has been
described as conduct that falls substantially below what is reasonable under the
circumstances.” Id.
{¶18} We note the argument section of appellant's present brief consists of just
two sentences and lacks any significant citations to authorities, statutes, and portions of
the record on which she relies, as required by App.R. 16(A)(7). Thus, she makes no real
attempt to dispute that appellees’ conduct was anything other than excusable neglect, or,
as the trial court phrased it, that appellees lacked a “serious disregard for the answer
date.” Judgment Entry, August 10, 2016, at 3. Nor does appellant challenge the trial
court’s conclusion that her complaint failed to state a cognizable claim for relief in regard
to Civ.R. 12(B)(6). It is not the duty of an Ohio appellate court to create arguments for the
parties and search the record for evidence to support them. See Sisson v. Ohio
Department of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.
Richland County, Case No. 16 CA 55 6
{¶19} Appellant’s sole Assignment of Error is therefore overruled.
{¶20} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Richland County, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
JWW/d 1107