Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County No. 18CV-19406 Municipal Court
Appealed From Is: Reversed and Cause Remanded
Charles H. Bartlett, Jr., for Plaintiff-Appellee,
L. Austin, pro se.
Defendant-appellant Clyde Austin appeals from the trial
court's February 13 order overruling his motion to set
aside the judgment. For the reasons set forth below, we
reverse the trial court's judgment and remand for further
On August 14, 2018, plaintiff-appellee Oliver Baker brought
an eviction action against Austin. In his complaint, Baker
sought a writ of eviction, damages for unpaid rent, and
damages for waste and destruction of the premises. Austin
filed an answer and a jury demand on August 24, 2018. The
trial court scheduled the cause for a jury trial on February
4, 2019, at 10:00 a.m.
Austin failed to appear at the February 4 trial. Austin
alleges that his failure to appear was due to a conflicting
hearing in the Hamilton County Court of Common Pleas,
Domestic Relations Division. According to the "Order
Overruling Motion to Set Aside Judgment," the trial
court "waited until after 11:00 AM. and [Austin]
appeared sometime after default judgment was rendered."
Austin filed a motion to set aside the judgment later that
The matter was then set for a default-judgment hearing four
days later, on February 8, 2019. Following the presentation
of evidence, the trial court entered a default judgment
against Austin. On February 12, 2019, Austin filed a
premature notice of appeal from the trial court's order
overruling his motion to set aside the default judgment. The
following day, the trial court entered its "Order
Overruling Motion to Set Aside Judgment."
On appeal, Austin raises five assignments of error. In essence,
Austin argues that the trial court erred in overruling his
motion to set aside the judgment. We combine his assignments
of error, and find that the trial court did err, although not
for the reasons advanced by Austin. For the following
reasons, Austin's assignments of error are sustained.
Pursuant to Civ.R. 55(A), a plaintiff may seek a default
judgment against a party who has "failed to plead or
otherwise defend." "A default arises only when a
party has failed to contest the allegations raised in the
complaint." In re Crabtree, 1st Dist. Hamilton
No. C-010290, 2002 WL 397736, *2 (Mar. 15, 2002); see
Bohem, Kurtz & Lowry v. Evans Landscaping, Inc., 1st
Dist. Hamilton No. C-140597, 2015-Ohio-2692, ¶ 6.
Therefore, no default can occur when a party has filed a
responsive pleading. Ohio Valley Radiology Assoc. v. Ohio
Valley Hosp. Assn., 28 Ohio St.3d 118, 123, 502 N.E.2d
599 (1986). Consequently, a court cannot enter a default
judgment against a party who has filed an answer but failed
to appear for trial. Id.
"The proper action for a court to take when a defending
party who has pleaded fails to appear for trial is to require
the party seeking relief to proceed ex parte in the
opponent's absence." Bohem, Kurtz &
Lowry at ¶ 6, quoting Office of Disciplinary
Counsel v. Jackson, 81 Ohio St.3d 308, 311, 691 N.E.2d
262 (1998). A judgment based upon an ex parte trial is
considered a judgment after trial pursuant to Civ.R. 58, not
a default judgment under Civ.R. 55. In re Crabtree
In In re Crabtree, the trial court entered a default
judgment against a defendant-mother who had filed an answer
but failed to appear at the child-support hearing. This
court, citing Ohio Valley Radiology Assoc, found
that no default had occurred and that the trial court could
not enter a default judgment against the mother. However,
because the plaintiff-father proved the essential elements of
his claim at the default-judgment hearing, this court chose
to construe the hearing as an ex parte trial. Accordingly,
this court evaluated the trial court's judgment under
Civ.R. 58, rather than Civ.R. 55.
In this case, Austin filed an answer on August 24, 2018.
Therefore, Austin timely filed a responsive pleading and no
default occurred. Although referred to as such, the judgment
entered by the trial court on February 8, 2019, was not a
default judgment pursuant to Civ.R. 55, it ...