[Cite as April Ents., Inc. v. Estate of McCabe , 2011-Ohio-3271.]




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

APRIL ENTERPRISES, INC., dba :
THE WALNUT CREEK NURSING :                          Appellate Case No. 24065
CENTER                                              :
                                                    :      Trial Court Case No. 09-CV-5126
        Plaintiff-Appellee                          :
                                                    :
v.                                                  :      (Civil Appeal from
                                                    :      (Common Pleas Court)
THE ESTATE OF MARY McCABE and                       :
MAUREEN McCABE                                      :
                                                    :
        Defendant-Appellant                :
                                                  :
                                               ...........

                                               OPINION

                                Rendered on the 30th day of June, 2011.

                                               ...........

STEVEN C. KATCHMAN, Atty. Reg. #0042090, 137 North Main Street, Suite 610, Dayton,
Ohio 45402
       Attorney for Plaintiff-Appellee

MAUREEN McCABE, 7406 Cheshire Road, Dayton, Ohio 45459
    Defendant-Appellant, pro se

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

FAIN, J.

        {¶ 1} This is an appeal from a default judgment rendered against Maureen McCabe,

in the amount of $18,488.48, plus interest and costs. We conclude that the trial court erred by

rendering default judgment against McCabe, who had entered an appearance in the action,
                                                                                           2


without first having accorded her at least seven days notice and an opportunity to be heard, as

required by Civ. R. 55(A). Accordingly, the judgment of the trial court is Reversed, and this

cause is Remanded for further proceedings, in accordance with this opinion.



                                                    I

       {¶ 2} April Enterprises, Inc., dba the Walnut Center Creek Nursing Center, the

plaintiff-appellee, brought this action against Mary McCabe, a resident of the Center, and her

daughter, Maureen McCabe, the defendant-appellant. The action sounded in breach of a

contract for the care of Mary McCabe.

       {¶ 3} The contract upon which this action is predicated is attached to the complaint.

The contract recites that it is between the Center and the resident, Mary McCabe, “or, if

applicable, Resident’s Authorized Representative for and on behalf of Resident: NAME:

Maureen McCabe.” (Underlining in original, italics added.) The contract concludes with:

       {¶ 4} “IN WITNESS WHEREOF, the Resident of [sic] the Authorized

Representative, and The Walnut Creek Nursing Center have caused this Agreement to be daily

[sic] executed as of the day and year first above written.”

       {¶ 5} Below this, a signature on behalf of the Center appears; the signature line for

the Resident is blank; and Maureen McCabe’s signature appears directly beneath the words:

“AUTHORIZED REPRESENTATIVE.”

       {¶ 6} There is nothing in the contract attached to the complaint to indicate that

Maureen McCabe signed it, or otherwise agreed to it, in any capacity other than as a

representative of her mother, Mary McCabe. Paragraph 4.01, entitled: “RESPONSIBILITY
                                                                                        3


FOR PAYMENT,” provides that charges not covered by public benefits “shall be paid by the

Resident from the Resident’s assets or from any funds held by the Resident’s Authorized

Representative as fiduciary for the Resident.”

       {¶ 7} Maureen McCabe, pro se, filed an answer to the Center’s complaint.

       {¶ 8} Mary McCabe having died, the Center moved for leave to file an amended

complaint.    Leave was given, and the Center filed an amended complaint, essentially

substituting Mary McCabe’s estate as a defendant in place of the late Mary McCabe. The

same contract was attached as an exhibit to the amended complaint.

       {¶ 9} Despite the fact that Maureen McCabe would appear to have no individual

liability on the contract, the amended complaint sought judgment against both Maureen

McCabe and her mother’s estate in the amount of $18,488.48, plus interest and costs. Neither

Maureen McCabe nor her mother’s estate filed a responsive pleading to the amended

complaint.

       {¶ 10} On May 4, 2010, the Center filed a motion for default judgment. The next

day, the trial court rendered default judgment against both Maureen McCabe and her mother’s

estate, in the amount of $18,488.48, plus interest and costs.

       {¶ 11} From the default judgment rendered against her, Maureen McCabe appeals.

Her mother’s estate has not appealed.



                                                   II

       {¶ 12} Maureen McCabe filed a pro se brief, which consists of an account of the

efforts she has made to secure funds from various sources to pay her mother’s charges,
                                                                                                                                    4


together with an assertion that the Center did not use due diligence in seeking to secure

payment of its charges from other sources.

         {¶ 13} Upon review of the record, we noticed that Maureen McCabe did appear in this

action when she answered the original complaint, and that default judgment was taken against

her without seven days notice and an opportunity to be heard, which Civ. R. 55(A) requires

before a default judgment may be taken against a party who has appeared in the action. We

gave both parties an opportunity to file supplemental briefs addressing the issue of whether the

trial court erred by rendering default judgment against Maureen McCabe without notice and

an opportunity to be heard.

         {¶ 14} In its supplemental brief, the Center acknowledges that default judgment was

rendered against Maureen McCabe without compliance with Civ. R. 55(A), notes that

Maureen McCabe is still in default of answer to the amended complaint,1 and asks this court,

if it were to remand this cause, to limit the scope of the remand to a hearing on the motion for

default judgment. We agree that the merits of the underlying action are not before us.

         {¶ 15} The trial court erred when it rendered default judgment without the notice and

hearing required by Civ. R. 55(A). Accordingly, the judgment of the trial court against

Maureen McCabe is Reversed, and this cause is Remanded for consideration of the Center’s

motion for default judgment against Maureen McCabe. The default judgment taken against

the Estate of Mary McCabe is not within the scope of this appeal, is not affected by our

            1
              We can only speculate as to why Maureen McCabe did not respond to the amended complaint. Perhaps McCabe, who has
 appeared pro se in both the trial and appellate courts, thought that because her position in the action had not been changed by the
 amendment of the complaint, there was no need for her to file another answer. Her reasons, or lack thereof, for having failed to file an
 answer to the amended complaint, and whether her reasons, if any, militate against the rendering of a default judgment against her, will be for
 the trial court to determine.
                                                               5


judgment in this appeal, and remains intact.

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

FROELICH and HALL, JJ., concur.



Copies mailed to:

Steven C. Katchman
Maureen McCabe
Hon. Barbara P. Gorman
