[Cite as Grimm v. Gumto, 2011-Ohio-2664.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                                   No. 95706




                                       TOD GRIMM
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                DANIELLE GUMTO
                                                    DEFENDANT-APPELLANT




                                JUDGMENT:
                          REVERSED AND REMANDED


                                      Civil Appeal from the
                                     Parma Municipal Court
                                     Case No. 09 CVG 04302

        BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEY FOR APPELLANT

Brian J. Williams
Brian J. Williams Co., L.P.A.
141 Broad Blvd., Suite 206
Cuyahoga Falls, OH 44221

ATTORNEY FOR APPELLEE

Jamie-Lyn Poh
1649 Laughton Circle
Broadview Heights, OH 44147



KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Danielle Gumto, appeals from the municipal

court’s decision granting default judgment against her and ordering her to pay

$14,636.66 to plaintiff-appellee, Tod Grimm. For the reasons that follow, we

reverse and remand.

                                         I

      {¶ 2} On October 15, 2009, Grimm filed a complaint in the Parma

Municipal Court for forcible entry and detainer against Gumto, his tenant of

approximately three years, and for back rent and damages in the amount of

$15,000.   The court subsequently granted a writ of restitution and ordered

that Gumto vacate the premises.

      {¶ 3} On December 30, 2009, Gumto timely answered the complaint for

damages and asserted various affirmative defenses. The court set a pretrial
conference for February 17, 2010; the record reflects that notice of the pretrial

was sent to Brian Williams, counsel for Gumto, and Grimm.              Williams

subsequently requested a continuance, which the trial court granted.         The

pretrial was reset two times (to March 10, 2010 and then April 28, 2010); each

time notices were sent to Williams and Grimm.          The court subsequently

denied Williams’s request to continue the April 28, 2010 pretrial conference,

but neither Williams nor Gumto appeared for the pretrial.

      {¶ 4} The court then set the matter for a show cause hearing on June 2,

2010, and ordered Williams to appear and show cause why he should not be

held in contempt for failing to appear on April 28, 2010. The court also set

another pretrial conference for June 2, 2010. Notices regarding the pretrial

were sent to both Williams and Grimm. The notice advised the parties that

the pretrial would go forward unless the court was advised that the case had

been settled and would be dismissed. The notice further stated: “The Court

further advises that the parties and their respective counsel are required to

appear at the pretrial conference. Failure of the defendant to appear could

result in a default judgment for the plaintiff; failure of plaintiff to appear

could result in an entry of dismissal of plaintiff’s complaint for want of

prosecution.”

      {¶ 5} The trial court subsequently granted Williams’s motion to

continue the show cause hearing and pretrial conference and rescheduled both
for June 16, 2010. Notices of both events were again sent to Williams and

Grimm. The notice of the rescheduled pretrial conference contained the same

advisement as set forth above regarding the consequences of a party’s failure

to appear.

     {¶ 6} On June 16, 2010, Williams appeared for the pretrial conference

and show cause hearing, but Gumto did not attend. The trial court granted

default judgment in favor of Grimm and scheduled an evidentiary hearing

regarding damages for July 27, 2010. 1     Notices regarding the evidentiary

hearing were sent to Williams and Grimm.

     {¶ 7} On July 27, 2010, Gumto appeared for the evidentiary hearing,

but Williams did not. Grimm gave the trial judge a copy of a letter dated

August 24, 2009, addressed to him and Gumto, in which the city of Parma

advised them that it had determined after inspection that the house Gumto

had been renting from Grimm was unsafe and unfit for human habitation, and

could not be occupied until the code violations had been corrrected. Gumto

admitted in open court but not under oath that she had allowed the property

to become so rundown while she was living there that it had been condemned.

     {¶ 8} Grimm also gave the judge copies of receipts regarding repairs he

had made to the home, as well as a two-page itemization of the expenses that

showed total repair expenses of $14,636.66. In addition, he gave the judge
copies of itemized descriptions by the handyman who made the repairs to the

home that identified the repairs made, the time it took to make the repairs,

and the cost of each repair.

      {¶ 9} Grimm then gave sworn testimony that the receipts were a fair

and accurate representation of the costs to repair the damages to the home.

Adam Kuklisin, who performed the repairs, likewise gave sworn testimony

that the itemized expenses were a fair and accurate representation of the work

he had performed at the home.                The judge granted judgment in favor of

Grimm and against Gumto in the amount of $14,636.66.                                 The court

subsequently denied Gumto’s Civ.R. 60(B) motion for relief from judgment

without a hearing.

                                                    II

      {¶ 10} In her first assignment of error, Gumto contends that the trial

court erred      in granting default judgment to Grimm.                          In her second

assignment of error, she asserts that the trial court erred in denying her

Civ.R. 60(B) motion to vacate the default judgment. We find merit to both

arguments.

      {¶ 11} Paragraph two of the syllabus in GTE Automatic Elec., Inc. v. ARC

Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, states:

      {¶ 12} “To prevail on a motion brought under Civ.R. 60(B), the movant


      After a hearing, the court dismissed the contempt citation against Williams.
      1
must demonstrate that: (1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party is entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),

(2), or (3), not more than one year after the judgment, order, or proceeding was

entered or taken.”

      {¶ 13} If any of these requirements is not met, the motion should be

overruled. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d

564. A court’s decision regarding a motion for relief from judgment under

Civ.R. 60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio

St.3d 172, 174,    1994-Ohio-107, 637 N.E.2d 914. Gumto’s motion met the

three GTE requirements and, therefore, the trial court erred in denying her

motion.

      {¶ 14} There is no dispute that Gumto’s motion was timely.         Further,

she satisfied the requirement of demonstrating a meritorious defense by filing

an answer and asserting affirmative defenses.       Mainor v. Jones, 190 Ohio

App.3d    300,   2010-Ohio-4001,   941   N.E.2d    1207,   ¶16,   citing Newark

Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122, 634 N.E.2d 278

and Bozo v. Clair (Mar. 29, 1979), 8th Dist. No. 38615. “It is not necessary

for [Gumto] to have proved [she] would ultimately prevail on the defense.”

Mainor, supra. See, also, Maxim Fin., Inc. v. Dzina (Dec. 2, 1993), 8th Dist.
No. 65206 (movant’s burden is to allege a meritorious defense; movant not

required to demonstrate he will prevail.)

      {¶ 15} She also established the remaining GTE requirement; specifically,

that she was entitled to relief from judgment under Civ.R. 60(B)(5). As this

court stated in 1373 East Blvd. Condo Assoc. v. Turner-Thompson, 8th Dist.

No. 90339, 2008-Ohio-3973, ¶7, where the trial court granted default

judgment against the defendants for their failure to attend a pretrial:

      {¶ 16} “Civ.R. 55(A) permits entry of a default judgment only upon

parties who have failed to plead or otherwise defend an action. [Defendants]

answered the complaint, so they appeared in the action.         Civ.R. 55(A) is

therefore inapplicable. Rather than granting a default judgment, the court

should have proceeded to trial ex parte and required the [plaintiff] to present

evidence in support of its claims.       Its failure to do so was error and

established the remaining element of the motion for relief from judgment.

Given the court’s error in granting a default judgment in the first instance, its

refusal to grant relief from that erroneous judgment constituted an abuse of

discretion.” (Internal citations omitted.)

      {¶ 17} Likewise, in this case, because Gumto answered the complaint and

asserted affirmative defenses, any default judgment entered for failure to

appear at a pretrial conference was improper.       Although we recognize the

trial court’s frustration with Gumto and her counsel, the case should have
been set for trial and Grimm should have been required to prove his claims.

Because the trial court erred in not doing so, its subsequent denial of Gumto’s

motion for relief from its erroneous judgment was an abuse of discretion. See

Mainor, supra (trial court should have granted motion for relief from default

judgment because once a party has answered or appeared, a default judgment

is improper.)

      {¶ 18} Appellant’s first and second assignments of error are sustained;

the judgment is vacated and the matter is remanded for further proceedings.

The third assignment of error, regarding whether Grimm adequately proved

his damages at the evidentiary hearing, is therefore moot and we need not

consider it. See App.R. 12(A)(1)(c).

      Reversed and remanded.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
