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Gee v. Sun

December 4, 2008

ELIZABETH L. GEE PLAINTIFF-APPELLANT
v.
JIAN P. SUN, ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-608387, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: James J. Sweeney, A.J.

JOURNAL ENTRY AND OPINION

BEFORE: Sweeney, A.J., Rocco, J., and McMonagle, J.

{¶1} Plaintiff-appellant, Elizabeth L. Gee ("Gee"), appeals from the decisions of the trial court that denied her motion for default judgment and granted defendants-appellees, Jian P. Sun ("Sun") and Man P. Kwong's ("Kwong")(collectively referred to as "appellees"), motion for summary judgment on Gee's claims against them that arose from Gee's purchase of residential property from Sun. For the reasons that follow, we affirm the decision of the trial court.

{¶2} In 2005, Gee purchased from Sun residential property located on Richmond Road in Richmond Heights, Ohio (the "property"). Sun had owned the property since May 20, 2004 but claimed she had never resided in it.

{¶3} Sun listed the Property for sale in December 2004. She completed the Residential Property Disclosure Form required by the State of Ohio and indicated on it that she did not know of any problems with the sewer system and had no knowledge of any recent or proposed assessments that could affect the Property. This document was initialed by Gee and made part of the sales transaction. (R. 21, Ex. D, ¶11.)

{¶4} After Gee had purchased the Property, she learned that the City of Richmond Heights (the "City") had approved a sewer assessment that affected it. Gee received a notice on August 29, 2006 that the City had adopted a resolution on November 29, 2005 to improve properties by constructing sanitary sewers with connections at an estimated assessment cost of $13,375.44. (R. 21, Ex. G.) The assessment applied to the property Gee had purchased from Sun. Gee maintains that the City had been notifying all residents of the subject sewer assessment beginning in 2001.

{¶5} Gee appeals from both the trial court's decision that denied her motion for default judgment and the order that granted appellees' motion for summary judgment. We will address the assignments of error in the order they were presented.

{¶6} "I. The trial court erred in denying the plaintiff-appellant's motion for default judgment."

{¶7} The trial court's ruling on a motion for default judgment is reviewed under the abuse of discretion standard. Deutsche Bank Trust Co. Ams. v. Smith, Cuyahoga App. No. 89738, 2008-Ohio-2778, ¶30. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶8} Civ.R. 55(A) provides:

{¶9} "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. 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."

{¶10} In this case, Gee filed her complaint on November 28, 2006. Service was perfected on Sun and Kwong on December 8, 2006 and December 12, 2008 respectively. On January 3, 2007, these parties, through their attorney, responded with a motion for a more definite statement. Both parties attended the case management conference. However, after the trial court denied appellees' motion for a more definite statement, Gee moved for default judgment. Five days later, appellees' moved for leave to file their answer instanter, which the trial court granted. Under these circumstances, the trial court acted within its discretion when it denied Gee's motion for default judgment.

{ΒΆ11} Civ.R. 6(B)(2) allows the trial court to grant an extension for filing an answer upon a showing of excusable neglect. "A trial court's Civ.R. 6(B)(2) determination is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion." State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464, 465. "Neglect under Civ.R. 6(B)(2) has been described as conduct that falls substantially below what is ...


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