Deere & Co. v. Brown

[Cite as Deere & Co. v. Brown, 2022-Ohio-1898.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
DEERE & COMPANY, :
Appellee, : CASE NO. CA2021-12-069
: OPINION
- vs - 6/6/2022
:
JASON M. BROWN, :
Appellant. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2021 CVH 00330
Weltman, Weinberg & Reis Co., L.P.A., and Daniel A. Friedlander, for appellee.
Jason M. Brown, pro se.
S. POWELL, J.
{¶ 1} Appellant, Jason M. Brown, appeals the decisions of the Clermont County
Court of Common Pleas denying his motion to strike and granting the motion for default
judgment filed by appellee, Deere & Company ("Deere"). For the reasons outlined below,
Clermont CA2021-12-069
we affirm the common pleas court's decisions.1
Facts and Procedural History
{¶ 2} On February 28, 2020, Deere filed a complaint against Brown in the Court of
Common Pleas for Hamilton County, Ohio. Within its complaint, Deere alleged Brown had
defaulted on the terms and conditions of a loan contract/security agreement that it had
entered into with Brown on February 2, 2018. Deere also alleged within its complaint that,
because of Brown's default, Brown owed it a total amount of $37,959.77, plus interest at a
rate of 2.9% per annum, and court costs. Deere's complaint was signed by Attorney Andrew
Voorhees with the law firm Weltman, Weinberg & Reis Co., L.P.A.
{¶ 3} On March 16, 2020, Brown, appearing pro se, filed a motion to dismiss
Deere's complaint for lack of personal jurisdiction or, alternatively, improper venue. To
support his motion, Brown argued the Hamilton County Court of Common Pleas did not
have personal jurisdiction over him since he did not reside in Hamilton County, Ohio, "nor
did any of the alleged transactions occur within Hamilton County, Ohio."2
{¶ 4} On April 2, 2021, over a year after Deere filed its complaint against Brown, a
judge with the Hamilton County Court of Common Pleas issued an entry directing the
transfer of the case to the Clermont County Court of Common Pleas (hereinafter, "common
pleas court"). The record indicates this transfer was effectuated on April 12, 2021 after the
Clermont County Clerk of Courts sent letters to both Brown and Deere informing them of
the transfer. Brown does not dispute that he received this letter.
1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose
of issuing this opinion.
2. Despite Brown having filed a motion to dismiss Deere's complaint for lack of personal jurisdiction or,
alternatively, improper venue, the record indicates the service of summons and copy of Deere's complaint
had not been properly served on Brown. Because of this, on June 8, 2020, Deere filed a motion with the
Hamilton County Court of Common Pleas requesting it "reissue summons" and a copy of its complaint to
Brown via certified mail. The record indicates that Brown was thereafter served with the summons and copy
of Deere's complaint by certified mail on June 11, 2020.
-2-
Clermont CA2021-12-069
{¶ 5} On July 23, 2021, Deere filed a motion with the common pleas court seeking
a default judgment against Brown. Deere filed its motion pursuant to Civ.R. 55(A), which
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 therefore; 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 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.
{¶ 6} As required by Civ.R. 5(B)(4), Deere's motion for default judgment included a
certificate of service, which stated:
A copy of the foregoing Motion for Default Judgment was served
upon the Defendant, Jason M. Brown, at the address listed in
the Plaintiff's Complaint on this _19_ day of July, 2021 by
Regular U.S. Mail.
Just like Deere's complaint, Deere's motion for default judgment was also signed by
Attorney Voorhees with the law firm Weltman, Weinberg & Reis Co., L.P.A.
{¶ 7} On August 4, 2021, the common pleas court issued a notice to both Deere
and Brown informing them that a hearing on Deere's motion for default judgment was
scheduled to take place on August 20, 2021. Eight days later, on August 12, 2021, Brown
filed a motion to continue that hearing. In support of his motion, Brown stated:
On or around July 23, 2021 Deere filed a Motion for Default
Judgment however a copy of the motion was not received by
Brown. Therefore Brown has been unable to file a Response to
Deere's Motion for Default Judgment. A hearing has been
scheduled for August 20, 2021 on the Motion for Default
Judgment however Brown has never received a copy of the
motion from Deere. * * *
Brown respectfully requests that the Court order [Deere] to
-3-
Clermont CA2021-12-069
provide a copy of the Motion for Default Judgment so Brown can
respond to their motion. Furthermore, Brown requests a
continuance of the hearing currently scheduled for August 20,
2021 so Brown can receive and respond to Deere's Motion for
Default Judgment.
{¶ 8} On September 8, 2021, the common pleas court issued another notice to
Deere and Brown informing them that the hearing on Deere's motion for default judgment
had been rescheduled to take place on September 24, 2021. The record indicates Brown
appeared at this hearing pro se, whereas Attorney Scott Collister with the law firm Brock &
Scott, PLLC appeared on behalf of Deere. The record does not contain a transcript of the
hearing on Deere's motion for default judgment. However, despite the lack of transcript,
the record nevertheless indicates Brown did not object to Attorney Collister appearing and
making arguments on Deere's behalf at that hearing.
{¶ 9} On October 1, 2021, approximately one week after the hearing on Deere's
motion for default judgment concluded, Brown filed a "Document Request" asking the
common pleas court to fax him a copy of Deere's complaint and motion for default judgment.
Three days later, on October 4, 2021, Brown filed a motion to strike "all statements and
arguments made by Attorney Scott Collistter" at the September 24, 2021 hearing on Deere's
motion for default judgment. To support this motion, Brown argued:
Mr. Collister is not the attorney of record on this case nor does
Mr. Collister work for the law firm that is representing [Deere] in
this matter. * * * Mr. Collister has not entered a Notice of
Appearance in this case nor has the firm that Mr. Collister works
for entered a Notice of Appearance in this case. Therefore, Mr.
Collister had no authority to attend the hearing on September
24, 2021 on behalf of [Deere] and all statements and arguments
made by Mr. Collister should not be taken into consideration.
{¶ 10} On November 2, 2021, Brown, still appearing pro se, and without first
receiving leave, filed with the common pleas court an untimely answer to Deere's complaint
it had originally filed with the Hamilton County Court of Common Pleas on February 28,
-4-
Clermont CA2021-12-069
2020. In his answer, Brown generally denied Deere's allegations against him. This includes
Deere's allegations set forth within paragraph three of the complaint that Brown had
defaulted on the terms and conditions of the loan contract/security agreement "by failing to
make all payments as required." This is in addition to Brown arguing the loan
contract/security agreement was "not a valid, enforceable contract," as well as Brown
arguing the common pleas court did not have "proper subject matter and personal
jurisdiction" over him pursuant to the terms of the loan contract/security agreement.
{¶ 11} On November 22, 2021, the common pleas court issued a decision denying
Brown's motion to strike and granting Deere's motion for default judgment. In so holding,
the common pleas court stated in regard to Brown's motion to strike:
At the September 24, 2021 hearing, [Brown] made no objection
to the appearance of Scott Collister on behalf of [Deere].
Frankly, he has no grounds to object. Mr. Collister was there as
a representative of [Deere], not [Brown]. "One lawyer may
appear for another at a motion hearing without changing the
designation of the attorney in charge. Furthermore, the
requirements to withdraw or substitute counsel are to protect the
attorney's own client, not the opposing party." [Archie v.
Lynaugh, 2000 Tex. App. LEXIS 7629, *7-*8 (Nov. 9, 2000)]. As
pointed out in [Deere's] brief in opposition to [Brown's] motion to
strike, it is common practice for attorneys to cover hearings in
cases where they are not the attorney of record when that
attorney of record is unavailable.
{¶ 12} The common pleas court then stated in regard to Deere's motion for default
judgment against Brown, "[t]he court finds that default judgment against [Brown] is
warranted on the issue of damages because the defendant never asked for leave to file an
answer out of time and his failure to file was not due to excusable neglect." The common
pleas court also found "[Brown's] untimely-filed answer is not in good form and substance,
but rather represents a delaying tactic of attempting either a dismissal or second case
transfer, while acknowledging the existence of the loan contract between [Deere] and
[Brown]." Later explaining why that was, the common pleas court stated:
-5-
Clermont CA2021-12-069
In the case at bar, [Brown] is a pro se litigant. * * * While
recognizing that [Brown] is allowed reasonable leeway in his
pleadings, in the case at bar he is clearly demonstrating by his
conduct and pleadings that any additional leeway at this time
would be unreasonable. For example, if, in fact [Brown] did not
receive a copy of the motion for default judgment that [Deere's]
attorney certified was mailed to [him] when filed, then he
certainly was aware of the motion when he received the
notification of hearing date card from the clerk of courts for the
default hearing originally scheduled for August 20, 2021. At the
default hearing, which was continued to September 24, 2021,
[Brown] stated that he had received this notification of hearing
card. After that hearing, instead of stopping by the clerk's office
on his way out of the courthouse for a copy of the motion,
[Brown] waited a full week and filed his "Document Request" for
copies of the motion and complaint.
(Emphasis deleted.) Concluding, the common pleas court entered judgment against Brown
in favor of Deere in the requested amount of $37,959.77, plus interest at a rate of 2.9% per
annum, and court costs.
Brown's Appeal and Single Assignment of Error
{¶ 13} On December 15, 2021, Brown filed a timely notice of appeal from the
common pleas court's decisions denying his motion to strike and granting Deere's motion
for default judgment. Oral argument was thereafter held before this court on May 9, 2022.
Brown's appeal now properly before this court for decision, Brown has raised the following
single assignment of error for review.
{¶ 14} THE TRIAL COURT ERRED WHEN IT GRANTED DEERE & COMPANY'S
MOTION FOR DEFAULT JUDGMENT AND DENIED JASON M. BROWN'S MOTION TO
STRIKE.
{¶ 15} In his single assignment of error, Brown argues the common pleas court erred
by denying his motion to strike and by granting Deere's motion for default judgment. We
disagree.
Brown's Motion to Strike
-6-
Clermont CA2021-12-069
{¶ 16} "The determination of a motion to strike is within the trial court's broad
discretion." Bank of N.Y. Mellon v. Putman, 12th Dist. Butler No. CA2012-12-267, 2014-
Ohio-1796, ¶ 9, citing Ireton v. JTD Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-
04-023, 2011-Ohio-670, ¶ 19. Because of this, "[a]n appellate court reviews a trial court's
decision granting or denying a motion to strike under an abuse-of-discretion standard of
review." New Residential Mtge. LLC v. Barnes, 12th Dist. Warren No. CA2020-04-027,
2020-Ohio-6907, ¶ 16. An abuse of discretion is more than an error of law or judgment.
First Horizon Homes Loans v. Sims, 12th Dist. Warren No. CA2009-08-117, 2010-Ohio-
847, ¶ 11. An abuse of discretion implies the common pleas court's attitude was
unreasonable, arbitrary, or unconscionable. Complete Lawn Servs. v. Chimney Hill, LLC,
12th Dist. Butler No. CA2015-08-149, 2016-Ohio-997, ¶ 21. "Under this standard, an
appellate court may not substitute its judgment for that of the trial court." Figetakis v. My
Pillow, 9th Dist. Summit No. 29843, 2022-Ohio-1078, ¶ 16, citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶ 17} Brown argues it was error for the common pleas court to deny his motion to
strike all of the statements and arguments advanced by Attorney Collister at the September
24, 2021 hearing on Deere's motion for default judgment. This is because, according to
Brown, it was only the attorney of record, Attorney Voorhees, or another attorney with whom
Attorney Voorhees worked with at Weltman, Weinberg & Reis Co., L.P.A., who could enter
an appearance at that hearing and make arguments on Deere's behalf. However, as the
record indicates, Brown never objected to Attorney Collister entering an appearance on
Deere's behalf at the September 24, 2021 hearing until ten days after that hearing
concluded on October 4, 2021. But, even if Brown had initially objected to Attorney
Collister's appearance, Brown cannot demonstrate any resulting prejudice therefrom. This
is particularly true here when considering Brown did not provide this court with a transcript
-7-
Clermont CA2021-12-069
of the September 24, 2021 hearing at issue. Under these circumstances, this court must
presume the regularity of those proceedings of which Brown now complains.
{¶ 18} In so holding, we note our agreement with the common pleas court's decision
finding Brown did not have any grounds to object to Attorney Collister appearing and
arguing on Deere's behalf at the September 24, 2021 hearing. This is because, just as the
common pleas court stated when denying Brown's motion to strike, "Mr. Collister was there
as a representative of [Deere], not [Brown]." We also note our agreement with the common
pleas court's decision finding it common practice for attorneys to cover hearings in cases
where they are not the attorney of record when the attorney of record is otherwise
unavailable. For Brown, a pro se litigant, to claim otherwise is simply incorrect and serves
as yet another example of Brown's misunderstanding of the way properly licensed attorneys
practice law within this district, this state, and across this country. Therefore, finding no
error, Brown's first argument alleging the common pleas court erred by denying his motion
to strike lacks merit.
Deere's Motion for Default Judgment
{¶ 19} "Default judgments are not favored in the law." Engelhart v. Bluett, 1st Dist.
Hamilton No. C-160189, 2016-Ohio-7237, ¶ 19. This is because granting a default
judgment is analogous to granting a dismissal. Freedom Mortg. Corp. v. Petty, 8th Dist.
Cuyahoga No. 95834, 2011-Ohio-3067, ¶ 50. "This reasoning lies in their origins being
rooted in procedure-based technicalities, rather than the submission of adequate evidence,
triggering liability." Edgecomb v. Toledo Nights, Inc., 6th Dist. Lucas No. L-19-1022, 2019-
Ohio-5274, ¶ 12. Therefore, because granting a default judgment is considered a harsh
remedy that is generally disfavored in the law, "[w]hen possible, cases should be decided
on their merits rather than on procedural grounds." Pitts v. DiLabbio, 6th Dist. Lucas No.
L-12-1343, 2013-Ohio-3854, ¶ 8, citing Fowler v. Coleman, 10th Dist. Franklin No. 99AP-
-8-
Clermont CA2021-12-069
319, 1999 Ohio App. LEXIS 6480 (Dec. 28, 1999).
{¶ 20} "Default judgments are governed by the defining and notice provisions of
Civ.R. 55(A)." Northland Ins. Co. v. Poulos, 7th Dist. Mahoning No. 06 MA 160, 2007-Ohio-
7208, ¶ 42. As noted above, Civ.R. 55(A) 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 therefore; 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 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.
"An appellate court reviews a trial court's decision to grant or deny a motion for default
judgment under an abuse-of-discretion standard." Lemasters v. Lemasters, 12th Dist.
Madison No. CA2018-06-018, 2019-Ohio-4395, ¶ 22, citing Nix v. Robertson, 12th Dist.
Butler No. CA2012-08-157, 2013-Ohio-777, ¶ 9.
{¶ 21} Brown argues it was error for the common pleas court to grant Deere's motion
for default judgment because the letter sent to him by the Clermont County Clerk of Courts
on April 12, 2021 notifying him that the case had been transferred to Clermont County did
not comply with Civ.R. 3(D)(3) in that it "failed to inform him that he had twenty-eight days
from the receipt of the notice to answer in the transferred action." The record is devoid of
any evidence indicating Brown raised this issue to the common pleas court. This is
significant given the well-established principle that a party may not raise new issues or legal
theories for the first time on appeal. BAC Home Loans Servicing, LP v. Mullins, 12th Dist.
Preble No. CA2013-12-015, 2014-Ohio-4761, ¶ 33.
{¶ 22} However, even when assuming Brown did not waive this issue by raising it for
-9-
Clermont CA2021-12-069
the first time on appeal, the plain language set forth in Civ.R. 3(D)(3) clearly indicates the
special 28-day notice Brown claims was missing from the Clermont County Clerk of Court's
letter must be provided to the defendant only "in an action in which the defendant has not
appeared." The record is clear that Brown "appeared" in this action for purposes of Civ.R.
3(D)(3) early on by filing a motion to dismiss Deere's complaint for lack of personal
jurisdiction or, alternatively, improper venue. Therefore, given the record properly before
this court, Brown's claim the common pleas court erred by granting Deere's motion for
default judgment because the letter sent to him by the Clermont County Clerk of Courts did
not comply with Civ.R. 3(D)(3) lacks merit.
{¶ 23} In reaching this decision, we note Brown's claim that he was "under the
assumption" a new complaint "would be served in the case with the proper case caption
showing the case was not in Clermont County." Brown also claims that "he was simply
unaware of the time requirements due to a clerical error by the clerk of courts." However,
although we allow pro se litigants reasonable leeway in their pleadings, see New Falls Corp.
v. Pierson, 12th Dist. Clermont No. CA2013-03-023, 2014-Ohio-567, ¶ 6, pro se litigants
like Brown "are expected, as attorneys are, to abide by the relevant rules of procedure and
substantive laws, regardless of their familiarity with the law." Fontain v. H&R Cincy Props.,
LLC, 12th Dist. Warren No. CA2021-02-015, 2022-Ohio-1000, ¶ 26. Pro se litigants are
also "not to be accorded greater rights and must accept the results of their own mistakes
and errors, including those related to correct legal procedure." Cox v. Zimmerman, 12th
Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 21. Therefore, this court must hold
Brown "to the same obligations and standards set forth in the appellate rules that apply to
all litigants." Adena at Miami Bluffs Condominium Owners' Assn., Inc. v. R. Hugh
Woodward, 12th Dist. Warren No. CA2020-08-044, 2021-Ohio-3872, ¶ 20.
{¶ 24} Brown also argues it was error for the common pleas court to grant Deere's
- 10 -
Clermont CA2021-12-069
motion for default judgment because Deere's motion was filed with the common pleas court
one day later than what was required by Civ.R. 5(D).3 However, just like Brown's prior
argument related to Civ.R. 3(D)(3) addressed more fully above, the record is also devoid of
any evidence indicating Brown raised this issue with the common pleas court. But, even
when again assuming Brown did not waive this issue by raising it for the first time on appeal,
Brown has failed to establish how he may have been prejudiced by Deere filing its motion
one day later then what was required by Civ.R. 5(D). Therefore, given the record properly
before this court, Brown's claim the common pleas court erred by granting Deere's motion
for default judgment because Deere's motion was filed with the common pleas court one
day later than what was required by Civ.R. 5(D) lacks merit.
{¶ 25} Brown further argues it was error for the common pleas court to grant Deere's
motion for default judgment because "[t]he case at hand did not proceed beyond the
pleading stage," and because he "did not show a complete disregard for the judicial system
by filing a late answer" when considering Deere had filed "untimely responses" and motions
that were prejudicial to him. Although couched in slightly different terms, Brown's argument
is essentially that the common pleas court erred by finding his failure to file a timely answer
to Deere's complaint was not the result of excusable neglect. We disagree.
{¶ 26} "Civ.R. 6(B)[2] permits a court to extend the time prescribed by the civil rules
for performing an act upon a showing of excusable neglect." Napier v. Cieslak, 12th Dist.
Butler No. CA2014-12-242, 2015-Ohio-2574, ¶ 6. Specifically, Civ.R. 6(B)(2) provides:
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
3. Pursuant to Civ.R. 5(D), "[a]ny paper after the complaint that is required to be served shall be filed with the
court within three days after service." The purpose of Civ.R. 5(D) is to 'ensure that the opposing party is
promptly served with filings.'" Carelli v. Canfield Local Sch. Dist. Bd. of Educ., 7th Dist. Mahoning No. 18 MA
0012, 2019-Ohio-1096, ¶ 26, quoting Sovey v. Lending Group of Ohio, 8th Dist. Cuyahoga No. 84823, 2005-
Ohio-195, ¶ 16. "The rule is not meant be a sanction." Sovey at ¶ 18. The subsequent filing is instead
considered to be a "secondary act." Nosal v. Szabo, 8th Dist. Cuyahoga Nos. 83974 and 83975, 2004-Ohio-
4076, ¶17.
- 11 -
Clermont CA2021-12-069
specified time, the court for cause shown may at any time in its
discretion * * * , or * * * 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 * * *.
{¶ 27} "The determination of whether neglect is excusable or inexcusable must take
into consideration all the surrounding facts and circumstances." Esken v. Zurich American
Ins. Co., 12th Dist. Preble No. CA2003-11-022, 2004-Ohio-3668, ¶ 9. Neglect is considered
inexcusable if the neglect "falls substantially below what is reasonable under the
circumstances." Zugg v. Wisby, 12th Dist. Warren No. CA2010-08-079, 2011-Ohio-2468,
¶ 10, citing State ex rel. Weiss v. Indus. Comm., 65 Ohio St. 3d 470, 473 (1992). Neglect
is also considered inexcusable if the neglect "can be regarded as a 'complete disregard for
the judicial system.'" Id., quoting Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996).
"Although excusable neglect cannot be defined in the abstract, the test for excusable
neglect under Civ.R. 6(B)(2) is less stringent than that applied under Civ.R. 60(B)." State
ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466 (1995).
"Because the court's decision to grant or deny an extension rests within its discretion, a
reviewing court will not disturb the decision of the lower court absent an abuse of that
discretion." State ex rel. Doe v. Register, 12th Dist. Clermont No. CA2008-08-081, 2009-
Ohio-2448, ¶ 12.
{¶ 28} In this case, when taking into consideration all the surrounding facts and
circumstances presented, we find no error in the common pleas court's decision finding
Brown's failure to file a timely answer to Deere's complaint was not the result of excusable
neglect. Just as the common pleas court found, and with which we agree, "defendant's
untimely-filed answer is not in good form and substance, but rather represents a delaying
tactic of attempting either a dismissal or second case transfer, while acknowledging the
existence of the loan contract between the plaintiff and the defendant." Rather than simply
- 12 -
Clermont CA2021-12-069
filing an answer, Brown's tactics have now delayed the inevitable for over two years.
Nothing about Brown's conduct in failing to file a timely answer to Deere's complaint can be
considered excusable when Brown's liability on the loan contract/security agreement has
been so clearly established by the evidence in the record. The common pleas court's
decision has effectively put a stop to Brown's continued efforts to avoid paying Deere what
Deere is owed on the loan contract/security agreement at issue. Therefore, given the record
properly before this court, Brown's claim that the common pleas court erred by finding his
failure to file a timely answer to Deere's complaint was not the result of excusable neglect
lacks merit.
Conclusion
{¶ 29} For the reasons outlined above, and finding no merit to any of the arguments
raised by Brown herein, Brown's single assignment of error lacks merit and is overruled.
{¶ 30} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
- 13 -