[Cite as Albrechtsen v. Mad River Apts., 2017-Ohio-117.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 MARK ALBRECHTSEN                                      :
                                                       :
         Plaintiff-Appellant                           :   Appellate Case No. 27060
                                                       :
 v.                                                    :   Trial Court Case No. 14-CVI-1065
                                                       :
 MAD RIVER APARTMENTS                                  :   (Civil Appeal from Miamisburg
                                                       :    Municipal Court)
         Defendant-Appellee                            :
                                                       :

                                               ...........

                                              OPINION

                           Rendered on the 13th day of January, 2017.

                                               ...........

MARK ALBRECHTSEN, 2230 Stafford Road, Suite 115, Plainfield, Indiana 46168
    Plaintiff-Appellant, pro se

MAD RIVER APARTMENTS, 7477 Shady Water Lane, Dayton, Ohio 45459
     Defendant-Appellee, pro se

                                             .............

HALL, P.J.

        {¶ 1} Mark Albrechtsen appeals pro se from the trial court’s entry of judgment

against him on his small-claims complaint alleging constructive eviction by his former

landlord, appellee Mad River Apartments.
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       {¶ 2} Albrechtsen advances two assignments of error. First, he contends the trial

court erred in failing to enter a default judgment in his favor when no representative of

Mad River Apartments showed up for trial. Second, he claims the trial court erred in failing

to provide any “rational or supportive basis” for its decision. Specifically, he asserts that

the trial court should have issued findings of fact.

       {¶ 3} The record reflects that Albrechtsen sued Mad River Apartments in July 2014

alleging constructive eviction and seeking damages. The essence of his claim was that

Mad River Apartments violated the parties’ lease agreement by preventing him from

working out of his apartment as a licensed federal firearms dealer when the landlord

informed an inspector for the Federal Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) that Albrechtsen was not permitted to have a home office at the

apartment. Albrechtsen argues all of his business was by internet and did not involve

customers on the premises. As a result of the appellee’s refusal to allow him to purse this

home business, Albrechtsen moved elsewhere and sought damages for constructive

eviction. Acting through counsel, Mad River Apartments filed an answer and a

counterclaim. Following a hearing, a magistrate dismissed the case on the basis that

Albrechtsen purportedly had sued the wrong party. Albrechtsen filed an objection. The

trial court sustained the objection and set the case for a bench trial to be held on

November 4, 2015.1 Mad River Apartments then filed a motion to dismiss, which the trial


1With regard to the proper defendant, we note that Albrechtsen’s complaint named “Mad
River Apartments.” At the time of the alleged constructive eviction, the owner of the
apartment complex was “Mad River Apartments, LLC.” That entity was operating,
however, under the name “Mad River Apartments,” which was the name of the property
owner on the lease contract. As set forth above, counsel entered an appearance for “Mad
                                                                                             -3-


court overruled. Counsel for Mad River Apartments subsequently withdrew from the case.

       {¶ 4} The matter proceeded as scheduled on November 4, 2015. The trial court

discussed the case with Albrechtsen and gave him an opportunity to present evidence.

No representative of Mad River Apartments appeared for trial. Albrechtsen later

supplemented his trial presentation with a written memorandum in support of judgment

and accompanying exhibits. On February 19, 2016, the trial court filed a decision, entry,

and order entering judgment against Albrechtsen. In support, the trial court reasoned:

              Following a thorough and complete review of the record, and taking

       into consideration the character and demeanor of the Plaintiff, who provided

       the only testimony at the trial, THIS COURT FINDS that the Plaintiff has

       failed to meet his burden of proof that the Defendant breached the lease

       agreement, resulting in unjust enrichment by the Defendant.

(Doc. #30 at 2).

       {¶ 5} In his first assignment of error, Albrechtsen contends the trial court erred in

failing to enter a default judgment in his favor when no representative of Mad River

Apartments appeared for trial. We disagree. Mad River Apartments appeared in the action

through counsel and filed an answer. Although it failed to appear for trial, entering a

default judgment against Mad River Apartments would have been improper. Failing to

appear for trial, after filing a responsive pleading, does not constitute a “default” within the


River Apartments,” filing both an answer and a counterclaim. The answer included various
defenses, including failure to state a claim upon which relief could be granted under Civ.R.
12(B)(6). It did not, however, raise as a defense an alleged lack of jurisdiction over the
person, insufficiency of process, or insufficiency of service of process under Civ.R.
12(B)(2), (4), or (5). (See Doc. #7). In any event, resolution of the present appeal does
not require us to address the propriety of Albrechtsen suing “Mad River Apartments” as
opposed to “Mad River Apartments, LLC.”
                                                                                           -4-

meaning of Civ.R. 55(A). Ohio Valley Radiology Associates, Inc. v. Ohio Valley Hospital

Assn, 28 Ohio St.3d 118, 120-123, 502 N.E.2d 599 (1986). Once Mad River Apartments

appeared in the case and filed its answer, Albrechtsen bore the burden to prove his case

at trial, regardless of whether Mad River Apartments participated in it. Id.

              The requirement that a party whose non-defaulting opponent fails to

       appear for trial must prove his case even in the absence of the opposing

       party reflects the basic nature of the burden of proof requirements in our

       trial system. Under that system, the sole responsibility of a defendant who

       has effectively contested the claimant’s allegations by pleading is to refute

       the claimant’s case after the latter has established a prima facie case by

       proper evidence. * * * If the plaintiff cannot make out such a case, the

       defendant need not present any evidence at trial. Conversely, once a case

       is at issue, it is improper for a court to enter judgment against a defendant

       without requiring proof of the plaintiff’s claim. * * *

              The proper action for a court to take when a defending party who has

       pleaded fails to show for trial is to require the party seeking relief to proceed

       ex parte in the opponent’s absence. Such a procedure, which requires

       affirmative proof of the essential elements of a claim, is diametrically

       opposed to the concept of default, which is based upon admission and

       which therefore obviates the need for proof. * * * It is clear that any judgment

       based upon an ex parte trial is a judgment after trial pursuant to Civ.R. 58,

       and not a default judgment under Civ.R. 55. * * *

(Citations omitted) Id. at 122.
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       {¶ 6} Because Albrechtsen was obligated to prove his case at trial, regardless of

Mad River Apartments’ absence, the trial court did not err in failing to enter a default

judgment in his favor. Accordingly, the first assignment of error is overruled.

       {¶ 7} In his second assignment of error, Albrechtsen contends the trial court erred

in failing to provide any “rational or supportive basis” for its decision. In particular, he

claims the trial court should have issued findings of fact. Again, we disagree. After

allowing Albrechtsen to present his evidence, the trial court considered his “character and

demeanor” and held “that the Plaintiff has failed to meet his burden of proof that the

Defendant breached the lease agreement, resulting in unjust enrichment by the

Defendant.” (Doc. #30 at 2). Although Albrechtsen may disagree with this conclusion, the

trial court stated a basis for its ruling. In any event, the trial court was not required to state

its rationale or to provide findings of fact. “When questions of fact are tried by the court

without a jury, judgment may be general for the prevailing party unless one of the parties

in writing requests otherwise before the entry of judgment pursuant to Civ. R. 58, or not

later than seven days after the party filing the request has been given notice of the court’s

announcement of its decision, whichever is later, in which case, the court shall state in

writing the findings of fact found separately from the conclusions of law.” Civ.R. 52. Here

the record does not reflect any request for findings of fact. Therefore, a general judgment

was proper. The second assignment of error is overruled.

       {¶ 8} The judgment of the Miamisburg Municipal Court, Small Claims Division, is

affirmed.

                                        .............
                                        -6-


DONOVAN, J., and WELBAUM, J., concur.


Copies mailed to:

Mark Albrechtsen
Mad River Apartments
Hon. Robert W. Rettich, III
