[Cite as Hull v. Clem D’s Auto Sales, 2012-Ohio-629.]




             IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

RONDA HULL, et al.                                         :

        Plaintiffs-Appellees                               :            C.A. CASE NO. 2011 CA 6

v.                                                         :            T.C. NO.   10-CVF-001-1343

CLEM D’s AUTO SALES                                        :            (Civil appeal from
                                                                         Municipal Court)
        Defendant-Appellant                     :

                                                           :

                                             ..........

                                            OPINION

                         Rendered on the            17th       day of      February     , 2012.

                                             ..........

JAY M. LOPEZ, Atty. Reg. No. 0080819, 18 East Water Street, Troy, Ohio 45373
     Attorney for Plaintiffs-Appellees

RICHARD A. F. LIPOWICZ, Atty. Reg. No. 0018241, 130 W. Second Street, Suite 1900,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

        {¶ 1} Clem D’s Auto Sales appeals from a judgment of the Darke County

Municipal Court, which granted a default judgment to Tom Hull and Ronda Hull in the

amount of $15,000.

        {¶ 2} According to the Hulls, in March 2010, the Hulls and Clem D’s Auto Sales
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entered into a written contract for the purchase of a 2000 Pontiac Montana from Clem D’s

Auto Sales for $2,669.38. The Hulls paid a $2,000 deposit. When the Hulls returned in

March to pay the remaining balance, they were told that the purchase price had increased to

$4,000, and their payment was refused. In June 2010, Clem D’s Auto Sales filed paperwork

with the Ohio Bureau of Motor Vehicles to repossess the title, and the company

subsequently repossessed the car from the Hulls’ residence.

        {¶ 3} In December 2010, the Hulls filed a complaint against Clem D’s Auto Sales

in the municipal court, alleging breach of contract, unlawful possession of the automobile,

fraud, and violation of the Ohio Consumer Sales Practices Act. For the first, second, and

third claims, the Hulls sought damages “in an amount to be determined at trial, but believed

not to be in excess of $15,000.00.” With respect to the Ohio Consumer Sales Practices Act

claim, they sought damages “in an amount to be determined at trial plus treble damages and

attorney fees as allowed under Ohio law.” The Hulls further requested post-judgment

interest, court costs, all attorney fees, and any other relief available to them.

        {¶ 4} Clem D’s Auto Sales was served by certified mail on December 15, 2010.

The company did not file an answer or otherwise respond to the complaint. On January 20,

2011, the Hulls filed a motion for a default judgment in the amount of $15,000, plus

statutory interest, the return of the 2000 Pontiac Montana, and court costs. The same day,

the court granted the motion and entered a judgment ordering the requested relief. The

Hulls subsequently moved for an order directing the Ohio Bureau of Motor Vehicles to

convey title of the Pontiac Montana to Ronda Hull. The court also granted that motion.

        {¶ 5} Clem D’s Auto Sales appeals from the trial court’s judgment.          Its sole
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assignment of error states: “The Trial Court Erred by Not Conducting a Hearing on Damages

or Requiring an Affidavit or Other Proof of Damages Before Awarding Plaintiffs-Appellees

a Default Judgment.”

       {¶ 6} Default judgments are governed by Civ.R. 55, which provides, in part:

               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[.] * * * 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 * * *, 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. Civ.R. 55(A).

       {¶ 7} The trial court has the discretion to determine whether a hearing on damages

is necessary upon a default judgment. Id.; e.g., Thomason v. Hamilton, 2d Dist. Greene No.

07-CA-60, 2008-Ohio-3492, ¶6, citing Myers & Frayne Co., LPA v. Ivory, 175 Ohio App.3d

43, 45, 2008-Ohio-428, 884 N.E.2d 1145 (2d Dist.) “Proof of damages is not required

before a default judgment can be granted in an action filed upon a liquidated damage claim

based upon an account. However, when the judgment is not liquidated, or only partially

liquidated, it is reversible error for the trial court to enter a default judgment without holding

a hearing on the damages issue.” (Citations omitted.) Mid-American Acceptance Co. v.

Reedy, 11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29, 1990); see also, e.g.,

Qualchoice, Inc. v. Brennan, 11th Dist. Lake No. 2008-L-143, 2009-Ohio-2533, ¶ 21; W2
                                                                                              4

Properties, LLC v. Haboush, 1st Dist. Hamilton No. C-100698, 2011-Ohio-4231, ¶ 29. As

stated by the Tenth District:

               “[W]hen the complaint and the motion for default judgment clearly

       set forth the amount of damages” and reveal the amount to be ascertainable,

       “the trial court does not abuse its discretion in relying on the amount

       asserted” in the complaint. If, by contrast, “the determination of damages

       necessarily requires consideration of information outside a written

       instrument, the trial court abuses its discretion in failing to hold an

       evidentiary hearing to determine the exact amount of damages.” (Citations

       omitted.) Am. Communications of Ohio, Inc. v. Hussein, 10th Dist. Franklin

       No. 11AP-352, 2011-Ohio-6766, ¶ 16.

       {¶ 8} In this case, three of the Hulls’ claims alleged damages in an amount to be

determined at trial, but not more than $15,000, the jurisdictional limit of the municipal court.

 See R.C. 1901.17. For the Ohio Consumer Sales Practices Act claim, the Hulls also

requested an unspecified amount of damages, plus treble damages and attorney fees. The

Hulls did not detail the amount of damages that they had suffered for each claim, and

nothing in the record indicated the amount of attorney fees that had been expended on the

Ohio Consumer Sales Practices Act claim.

       {¶ 9} There is nothing in the record to support the trial court’s judgment against

Clem D’s Auto Sales in the amount of $15,000. That amount appears to be based on the

jurisdictional limits of the municipal court, rather than the actual damages suffered by the

Hulls. In the absence of any support in the record for the amount of damages, the trial court
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abused its discretion in entering judgment against Clem D’s Auto Sales for $15,000 without

first conducting an evidentiary hearing on damages.

       {¶ 10} The assignment of error is sustained.

       {¶ 11} The trial court’s judgment will be reversed, and the matter will be remanded

for a hearing on monetary damages.

                                           ..........

       GRADY, P.J. and HALL, J., concur.

       Copies mailed to:

       Jay M. Lopez
       Richard A. F. Lipowicz
       Hon. Julie L. Monnin
