McMahan v. Mabberly

[Cite as McMahan v. Mabberly, 2014-Ohio-1448.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
DON A. McMAHAN :
dba McMAHAN’S MOBILE HOME PARK
Plaintiff-Appellee : C.A. CASE NO. 25998
v. : T.C. NO. 13CVG766
DREMA MABBERLY : (Civil appeal from
Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of April , 2014.
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RICHARD G. KNOSTMAN, Atty. Reg. No. 0007212, 4428 N. Dixie Drive, Dayton, Ohio
45414
Attorney for Plaintiff-Appellee
DREMA MABBERLY, 50 Bond Street, Dayton, Ohio 45405
Defendant-Appellant
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FROELICH, P.J.
{¶ 1} Drema K. Mabberly appeals from a judgment of the Mongtomery
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County Municipal Court, Eastern Division, which granted a default judgment to Don
McMahan, dba McMahan’s Mobile Home Park, in his forcible entry and detainer action.
For the following reasons, the trial court’s judgment will be affirmed.
{¶ 2} According to the complaint, Mabberly was a month-to-month tenant at 3344
Paramount Avenue, located within McMahan’s Mobile Home Park in Riverside, Ohio.
Mabberly allegedly failed to pay rent and utilities in full. On August 19, 2013, McMahan
provided written notice to Mabberly to vacate the premises.
{¶ 3} On September 3, 2013, McMahan brought suit against Mabberly seeking
restitution of the premises and all back rent, unpaid utilities, and late charges up to the date
that the premises are returned to him. McMahan alleged that Mabberly owed $1,401.85 for
unpaid rent and utilities to September 30, 2013, and would owe $15 per day from that date
until the premises are returned.
{¶ 4} The record reflects that on September 4, 2013, Mabberly was served, by
residential service, with the complaint and a summons to appear for a hearing on September
19, 2013. The complaint and summons were also served by certified mail and were signed
for by Vicky Long on September 12, 2013.
{¶ 5} A restitution hearing was held, as scheduled, on September 19; there is no
indication in the record that Mabberly appeared for the hearing. On the same day, the trial
court granted restitution of the premises to McMahan. Filed at the same time as the
judgment of restitution was (1) an affidavit by McMahan, indicating that Mabberly had
breached their rental agreement by failing to pay rent and utilities and that McMahan had
provided the required written notice to vacate, and (2) a “breakdown of charges,” showing
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that Mabberly owed $1,968.91 for rent, utilities, cleaning charges, and attorney fees.
{¶ 6} Mabberly did not respond to the complaint. On October 10, 2013,
McMahan moved for a default judgment, asserting that more than 28 days had elapsed since
service upon Mabberly and that she had failed to file an answer. On October 16, 2013, the
trial court granted judgment to McMahan in the amount of $1,968.91, plus interest.
{¶ 7} Mabberly appeals from the trial court’s judgment. She states that she was
misinformed about the date by which “to file a motion * * * against the default judgment
originally filed against me by Don McMahan.” Mabberly says that she “was told” that she
“had until September 17, 2013, but the deadline was September 10, 2013.” She asks for an
opportunity to prove that she does not owe the amount claimed by McMahan.
{¶ 8} Default judgments are governed by Civ.R. 55. That Rule provides:
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[.] * * * 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 * * *, 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.
The decision to grant a default judgment is reviewed for an abuse of discretion. Wright
State Univ. v. Williams, 2d Dist. Greene No. 2012 CA 37, 2012-Ohio-5095, ¶ 5. An abuse
of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably.
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Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} Civ.R. 12(A)(1) provides that a defendant must file an answer to a complaint
within 28 days after service of the complaint and summons.1 Proper methods of service
include residential service and service by certified mail. Civ.R. 4.1(A) and (C).
{¶ 10} The record reflects that Mabberly was properly served by residential service
on September 4, 2013, and that she was required to file an answer to McMahan’s monetary
claim (or to request an extension of time for filing an answer) by October 2, 2013.
Mabberly failed to do so. Accordingly, McMahan was entitled to move for a default
judgment on October 10, and the trial court properly granted his motion.
{¶ 11} The trial court was not required to hold a hearing on damages, because
McMahan’s breakdown of charges, which was filed on September 19, 2013, set forth the
amount of damages and demonstrated that the amount was ascertainable. In re Ball, 2d
Dist. Montgomery No. 24786, 2012-Ohio-2095, ¶ 8.
{¶ 12} Mabberly’s sole assignment of error is without merit.
{¶ 13} We note that Civ.R. 55(B) states that “[i]f 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
1
R.C. 1923.06(H), which governs forcible entry and detainer actions,
similarly provides that, for any claim filed with the claim for restitution of the
property, the deadline for filing an answer is 28 days from the date that service is
deemed complete.
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within a reasonable 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 Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus.
{¶ 14} If Mabberly believes that grounds exist for setting aside the default
judgment, she may be able to 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.
{¶ 15} The trial court's judgment will be affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Richard G. Knostman
Drema Mabberly
Hon. James D. Piergies