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Geico General Insurance Co. v. Fleminster

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

GEICO GENERAL INSURANCE COMPANY PLAINTIFF-APPELLANT
v.
RENEE N. FLEMINSTER, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-863751

          ATTORNEY FOR APPELLANT Daran P. Kiefer Kreiner & Peters Co., L.P.A.

          FOR APPELLEES Phillip Clow, pro se Renee Fleminster, pro se.

          BEFORE: Blackmon, J., Keough, A.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE.

         {¶1} Plaintiff-appellant Geico General Insurance Co. ("Geico Insurance") appeals from the order of the trial court vacating a default judgment entered against defendant-appellee Phillip Clow ("Clow") in Geico Insurance's subrogation action. Geico Insurance assigns the following errors for our review:

I. The trial Court committed reversible error and abused its discretion granting [Clow's Civ.R. 60(B) motion as a substitute for an appeal].
II. Alternatively, the trial court abused its discretion in granting [Clow's Civ.R. 60(B) motion] without actual testimony, facts or evidence submitted at the hearing by appellee Clow.

         {¶2} Having reviewed the record and relevant law, we affirm the trial court's decision. The apposite facts follow.

         {¶3} On May 24, 2016, Geico Insurance filed a complaint for subrogation against Clow and Renee Fleminster ("Fleminster") to recover $12, 500 Geico paid to its insured, Henry Moore ("Moore"). Geico Insurance alleged that Clow negligently entrusted his vehicle to Fleminster, and that Fleminster negligently struck Moore while he was riding his bicycle in Cleveland.

         {¶4} Fleminster and Clow were both served with summons but did not file answers to the complaint. The record further reflects that a default hearing as to Clow was scheduled for November 18, 2016. On that date, however, the court issued the following order:

Plaintiffs counsel failed to appear for default hearing. Default hearing reset. Default hearing set for 12/15/16 at 1:45 p.m.

         However, the court immediately issued a nunc pro tunc order reflecting that this order, setting a December 15, 2016 default hearing, had been issued in error and pertained to a different case.

         {¶5} The court also corrected the record in the instant case to note that a default hearing actually took place in the ...


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