Zerger v. Schafer

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[Cite as Zerger v. Schafer, 2020-Ohio-4817.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT NOBLE COUNTY TRAVIS ZERGER dba ZERGER CONSTRUCTION, L.L.C. Plaintiff-Appellee, v. KAY SCHAFER, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 18 NO 0465 Civil Appeal from the County Court of Noble County, Ohio Case No. 18 CVF 107 BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges. JUDGMENT: Affirmed in part; Reversed in part. Trial Court order modified. Atty. William B. Summers, 3301 Dudley Avenue, Parkersburg, West Virginia 26104, for Plaintiff-Appellee, No Brief Filed. Kay Schafer, Pro se, 45718 Summit Avenue, Caldwell, Ohio 43724, for DefendantAppellant. –2– Dated: September 28, 2020 WAITE, P.J. {¶1} Pro se Appellant Kay Schafer appeals the judgment of the Noble County Court granting a default judgment in favor of Appellee, Travis Zerger dba Zerger Construction, L.L.C. Appellant, apparently confused regarding a default judgment versus summary judgment, argues the trial court erred in granting summary judgment because Appellee failed to complete the construction of her pool deck. Based on the following, we conclude that the trial court did not err in granting default judgment in favor of Appellee, as Appellant failed to appear or defend the action in the trial court, where she was required to dispute Appellee’s claims or present evidence in her favor if she so intended. The trial court did, however, err in awarding Appellee attorney fees in this matter. Therefore, Appellant’s assignment of error is overruled in part and sustained in part, and the judgment of the trial court is affirmed except with respect to that portion of the order awarding attorney fees. The order of the trial court is hereby modified to remove the $1,500 attorney fee award from the total sum, reducing it to $6,040.23. Factual and Procedural History {¶2} Sometime in the spring of 2016, Appellant contacted Appellee about constructing a deck around her swimming pool. The two met at Appellant’s home so Appellee could inspect the property. Appellee obtained samples of materials which he shared with Appellant. Appellant wrote Appellee a check for $20,000 for materials and supplies and Appellee began construction. Appellee requested another $10,000 for additional materials approximately half way through the project. Case No. 18 NO 0465 –3– {¶3} While the deck was under construction, Appellant hired a lawn care company to kill all of the grass under the deck. She also requested that Appellee include the addition of lattice around the deck to keep her dogs from going under it. Appellee special ordered a vinyl lattice for the project. When he arrived to install the lattice, Appellant informed him that she did not like it and requested a white lattice instead. When Appellee obtained the new lattice and began to install it, Appellant informed him that she did not approve of the second lattice either. Appellee returned the lattice but was subject to a restocking fee, which Appellant refused to pay. Appellee began work on another job while waiting for instructions from Appellant as to how she wanted to proceed. The parties reached an impasse and Appellant refused to pay the outstanding amount for materials and costs of $6,040.23. {¶4} On July 16, 2018, Appellee filed a complaint in the Noble County Court asserting that he had completed Appellant’s deck and was seeking the outstanding payment of $6,040.23 along with costs, interest, and attorney’s fees in the amount of $1,500. The complaint was served on Appellant on July 27, 2018 by certified mail and was sent to the address where Appellant resided. Appellant failed to respond in any manner to the complaint. On October 15, 2018, Appellee filed a motion for default judgment. The trial court granted Appellee’s motion that day and awarded Appellee the amount of $7,540.23. {¶5} Appellant filed this timely appeal. ASSIGNMENT OF ERROR The trial court erred in granting in favor of Ugation [sic] against AppellantKay Schafer. Case No. 18 NO 0465 –4– {¶6} Appellant contends the trial court erred in granting judgment because Appellee failed to complete the pool deck, requiring her to hire another company to finish the project. {¶7} An appellate court reviews a trial court’s decision to grant a motion for default judgment for an abuse of discretion. Marafiote v. Estate of Marafiote, 2016-Ohio4809, 68 N.E.3d 238, ¶ 22 (7th Dist.). “An abuse of discretion implies more than an error of judgment; it connotes that the trial court's attitude was unreasonable, arbitrary or unconscionable. In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 5, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).” State v. Tonkinson, 7th Dist. Columbiana No. 19 CO 0016, 2020-Ohio3623, ¶ 18. A default judgment, similar to a dismissal, is a harsh remedy that should only be imposed when the defaulting party acts in such a manner as to create the presumption of willfulness. Hale v. Steri-Tec Services, Inc., 11th Dist. Geauga No. 2008-G-2876, 2009-Ohio-3935, ¶ 25. {¶8} Civ.R. 55 governs when default judgment may be entered and provides: (A) Entry of judgment. 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; 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, Case No. 18 NO 0465 –5– 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. {¶9} In an action where a party fails to plead or otherwise appear, a default judgment may be entered. Pabin v. Eberle, 7th Dist. Monroe Nos. 18 MO 0008, 18 MO 0009, 2019-Ohio-2728, ¶ 59; Davis v. Immediate Med. Serv. Inc., 80 Ohio St.3d 10, 14, 684 N.E.2d 292 (1997). A default by a defendant occurs when, “the defendant has failed to contest the allegations raised in the complaint and it is thus proper to render a default judgment against the defendant as liability has been admitted or ‘confessed’ by the omission of statements refuting the plaintiff’s claims[.]” Reese v. Proppe, 3 Ohio App.3d 103, 105, 443 N.E.2d 992 (8th Dist.1981). Because, pursuant to Civ.R. 8(D), allegations in a complaint to which a responsive pleading is required are deemed admitted unless denied in a properly filed responsive pleading, when a defendant fails to deny allegations in a pleading they are considered admissions. Id. {¶10} This record reveals Appellant was properly served with Appellee’s complaint but failed to respond or in any other manner to appear in the action. Appellant’s first appearance was her filing of a notice of appeal, approximately two weeks after the default judgment was granted. Appellant does not dispute that she was served with the Case No. 18 NO 0465 –6– complaint. She was also served with the motion for default judgment, although this was not required because she was a party in default who had never made an appearance in the action. Civ.R. 5(A). Appellant has filed an appellate brief in which she offers no explanation and cites to no evidence in the record justifying her failure to appear in the action. DG Indus. v. McClure, 7th Dist. Mahoning Nos. 11 MA 59, 11 MA 69, 2012-Ohio4035, ¶ 13. In reviewing the trial court’s decision to grant default judgment, our role as an appellate court is limited to whether the trial court abused its discretion or properly granted judgment based on the evidence presented. Id. In so doing, we are limited to analyzing the record that was before the trial court and cannot consider any new evidence submitted on appeal. Fernwalt v. Our Lady of Kilgore, 2017-Ohio-1260, 88 N.E.3d 499, ¶ 34 (7th Dist.). The time to dispute Appellee’s claims, if Appellant wanted to dispute them, was while the matter was pending in the trial court. {¶11} In the complaint Appellee alleged that the parties had an agreement for Appellee to build a deck around Appellant’s pool. Appellee submitted copies of a ledger which included invoices submitted to Appellant for itemized lists of materials purchased as well as payments submitted by Appellant. The ledger showed there was a balance due and owing of $6,040.23. (7/16/18 Complaint.) Appellee also submitted a detailed summary listing worked performed, names of workers present and numbers of hours worked, as well as supply costs for each day. The summary consists of nineteen entries beginning on June 16, 2016 and ending on August 25, 2016. {¶12} Appellant argues on appeal that the deck was not completed, materials were left on her property and the portions of the deck that were finished were poorly constructed. She attempted to submit photographs allegedly revealing the condition of Case No. 18 NO 0465 –7– the deck. These photographs were not submitted to the trial court, as Appellant did not make an appearance. When an action is brought against a party who has been properly served, that party cannot sit back and ignore the action. To avoid a default judgment, the party against whom the claim is sought must either “plead” or “otherwise defend” themselves in the trial court. Discover Bank v. Schiefer, 10th Dist. No. 09AP-1178, 2010Ohio-2980, ¶ 7. Appellant was required to file an answer in the trial court in order to address the claim brought against her. Civ.R. 5(A). An appellate court is limited to the record made in the trial court and may not consider any evidence that was not first presented there. Absent a showing that Appellant did, in fact, file an answer or otherwise defend this matter, Appellee was entitled to default judgment. {¶13} In its judgment entry, the trial court awarded Appellee damages for the work performed on Appellant’s deck based on the evidence presented. The trial court also awarded Appellee’s attorney fees. Appellee presented a billing statement from his attorney to the trial court. The Ohio Supreme Court adheres to the American Rule, which prohibits the prevailing party’s recovery of attorney fees as part of the cost of civil litigation except: (1) where there is statutory authorization; (2) the unsuccessful party acts in bad faith; or (3) the parties in a noncommercial action agree to a fee shifting requiring the losing party to pay the prevailing party’s attorney fees. Nottingdale Homeowner’s Assn. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987). A trial court’s award of attorney fees can be overruled using the plain error rule in order to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268, 275, 480 N.E.2d 794 (1985). Case No. 18 NO 0465 –8– {¶14} In this matter, while the record reflects that Appellant failed to appear, answer, or defend Appellee’s complaint, the record is silent as to any evidence of bad faith on her part. The record is likewise silent as to any agreement the parties may have entered relative to attorney fees. Further, assuming Appellee could prove bad faith in order to allow an award of attorney fees, aside from counsel’s written bill there is no evidence in this record that the hours spent or the fees charged were reasonable and necessary. Therefore, the record does not support a deviation from the American Rule in this matter and the trial court erred in awarding Appellee attorney fees. {¶15} Based on the foregoing, Appellant’s assignment of error partially has merit. The trial court did not abuse its discretion in granting Appellee’s motion for default judgment and, with respect to the damages suffered by Appellee, evidence was presented in support of these damages to the trial court. However, the trial court was without jurisdiction to award attorney fees in this matter and the award of those fees, $1,500, is hereby vacated. The judgment of the trial court is affirmed in part and reversed in part and we hereby modify the order of the trial court by removing the award of $1,500 in attorney fees, reducing the award to a total sum of $6,040.23. Robb, J., concurs. D’Apolito, J., concurs. Case No. 18 NO 0465 [Cite as Zerger v. Schafer, 2020-Ohio-4817.] For the reasons stated in the Opinion rendered herein, the assignment of error is sustained in part and overruled in part. It is the final judgment and order of this Court that the judgment of the County Court of Noble County, Ohio, is affirmed in part and reversed in part and we hereby modify the order of the trial court by removing the award of $1,500 in attorney fees, reducing the award to a total sum of $6,040.23. Costs to be divided equally between the parties. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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