         [Cite as Hoffman v. Hoffman, 2018-Ohio-3029.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


RONALD HOFFMAN,                                 :          APPEAL NOS. C-170640
                                                                       C-170641
DON HOFFMAN,                                    :          TRIAL NOS. 201700205
                                                                      201700206
KEN HOFFMAN,                                    :
                                                                O P I N I O N.
RANDALL S. HOFFMAN,                             :

TODD C. HOFFMAN,
                                                :
 and
                                                :
ALICIA J. PITCHER,
                                                :
        Plaintiffs-Appellees,
                                                :
  vs.

WAYNE HOFFMAN,                                  :

PAMELA HOFFMAN,                                 :

  and                                           :

GERALD BRAUNSTEIN,                              :

    Defendants-Appellants.                      :


Civil Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 1, 2018


Paul R. Shugar and Ian D. Mitchell, for Plaintiffs-Appellees,

Christopher R. Heekin, for Defendants-Appellants.
                    OHIO FIRST DISTRICT COURT OF APPEALS


M ILLER , Judge.

       {¶1}   Wayne     Hoffman,    Pamela    Hoffman,    and    Gerald    Braunstein

(“Appellants”) appeal from the trial court’s judgment denying their motions to vacate

default judgment entered in two cases, 201700205 and 201700206.            Appellants

separately appealed both cases, and the appeals were consolidated by this court. We

reverse the trial court’s judgments and remand the cause because neither the

motions for a default judgment, nor a notice of the hearing, were ever served on

Appellants.

                        Procedural Posture and Facts

       {¶2}   On January 17, 2017, Ronald Hoffman, Don Hoffman, Ken Hoffman,

Randall S. Hoffman, Todd C. Hoffman, and Alicia J. Pitcher (“Appellees”) filed a

complaint to contest the Last Will and Testament of Malvon W. Hoffman against

Appellants in the case numbered 201700205. That same day, Appellees filed a separate

complaint for a declaratory judgment against Appellants in the case numbered

201700206. On February 20, 2017, Wayne Hoffman called counsel for Appellees and

requested a 30-day extension of time for deadlines in each case, to which Appellees’

counsel agreed.   There is some dispute as to what deadlines Hoffman asked

Appellees’ counsel to extend—Hoffman claims he asked for an extension to answer

the complaint, while Appellees’ counsel claims Hoffman asked for an extension for

discovery.

       {¶3}   On February 23, 2017, Appellees filed a motion for a default judgment in

each case, but did not serve either motion on Appellants. A hearing on the motions was

held before a magistrate on March 13, 2017. Appellants were not afforded notice of the

hearing, nor did they attend. The magistrate entered default judgments in both cases

on March 14, 2017. Appellants filed motions to vacate the default judgments and



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motions for leave to file answers out of time on April 12, 2017. After a hearing, the

magistrate entered a decision denying Appellants’ motion to vacate the default

judgment in 201700206. No decision was entered in 201700205. Appellants filed

objections in 201700206. The trial court deemed the magistrate’s decision to have also

been entered in 201700205, adopted the magistrate’s decision, denied Appellants’

objections, and entered judgment in both cases. Appellants now appeal.

       {¶4}    In their sole assignment of error, Appellants argue that the trial court

erred in denying Appellants’ objections to the magistrate’s decision. Specifically,

Appellants contend that the magistrate should have applied Civ.R. 60(B) liberally to

provide them relief from the default judgments; Civ.R. 55(A) required notice of the

default judgment at least seven days prior to a hearing on the motion; Civ.R. 5(B)(4)

required the filing of a certificate of service of the motions; and the magistrate’s

decision is self-contradictory in its application of the facts.

          The Absence of a Magistrate’s Decision in 201700205

       {¶5}    Magistrate’s decisions are governed by Civ.R. 53. Under that rule, “a

magistrate shall prepare a magistrate’s decision respecting any matter referred under

Civ.R. 53(D)(1).” Civ.R. 53(D)(3)(a). “If one or more objections to a magistrate’s

decision are timely filed, the court shall rule on those objections,” undertaking an

independent review as to the objected matters to ascertain that the magistrate has

properly determined the factual issues and appropriately applied the law. Civ.R.

53(D)(4)(d).    The purpose for the procedures set forth in Civ.R. 53 is to afford

litigants with a meaningful opportunity to file objections. Pinkerson v. Pinkerson, 7

Ohio App.3d 319, 455 N.E.2d 693 (1st Dist.1982). “A trial court’s failure to comply

with Civ.R. 53 constitutes grounds for reversal only if the appellant shows the alleged

error has merit and the error worked to the prejudice of the appellant.” In re Estate



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of Hughes, 94 Ohio App.3d 551, 554, 641 N.E.2d 248 (9th Dist.1994). Here, a

magistrate’s decision was never prepared or journalized in 201700205.              The

magistrate entered a decision in 201700206, and the decision references only that

case throughout.

       {¶6}   Absent a decision by the magistrate in 201700205, the trial court was

permitted to rule on Appellants’ motion in the first instance, even after a referral to

the magistrate. Civ.R. 53(D)(4)(b); see Yantek v. Coach Builders Ltd., Inc., 1st Dist.

Hamilton No. C-060601, 2007-Ohio-5126, ¶ 11; Donofrio v. Whitman, 191 Ohio

App.3d 727, 2010-Ohio-6406, 947 N.E.2d 715, ¶ 21 (7th Dist.). Thus, the court’s

entry of judgment in 201700205 did not run afoul of Civ.R. 53. The court’s entry

simply recognized that the issues are identical in both cases and ruled on Appellants’

motion to vacate the default judgment, albeit by taking the unusual step of deeming

the magistrate’s decision in 201700206 to have been properly filed in 201700205.

The court essentially recognized that the reasoning in 201700206 was equally

applicable to 201700205. The trial court’s decision prejudices no one and neither

party argues otherwise. Our treatment of the court’s entry in 201700205 as an

independent judgment most accurately reflects what occurred below. Accordingly,

we review the cases together.

                                Standards of Review

       {¶7}   “Appellate courts ‘generally review a trial court’s adoption, denial or

modification of a magistrate’s decision for an abuse of discretion.’ ” In re D.S., 10th

Dist. Franklin No. 15AP-487, 2016-Ohio-2810, ¶ 9, quoting Brunetto v. Curtis, 10th

Dist. Franklin No. 10AP-799, 2011-Ohio-1610, ¶ 10. “However, where the appeal

from the trial court’s action on a magistrate’s decision presents only a question of

law, the standard of review is de novo.” In re D.S. at ¶ 9. The standard of review of a



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                    OHIO FIRST DISTRICT COURT OF APPEALS


court’s decision with respect to a Civ.R. 60(B) motion is an abuse of discretion. See

Hansen v. Hansen, 132 Ohio App.3d 795, 802, 726 N.E.2d 557 (1st Dist.1999).

                                 Civil Rule 55(A)

       {¶8}   Under Civ.R. 55(A), “[i]f the party against whom judgment by default

is sought has appeared in the action, he * * * shall be served with written notice of

the application for judgment at least seven days prior to the hearing on such

application.” For purposes of the notice requirement, a party “appears” in an action

where that party has demonstrated a clear intent to defend the action. Mueller v.

Hammann, 1st Dist. Hamilton No. C-120799, 2013-Ohio-5098, ¶ 9, citing Miami

Sys. Corp. v. Drycleaning Computer Sys., Inc., 90 Ohio App.3d 181, 185, 628 N.E.2d

122 (1st Dist.1993). “A court filing is unnecessary to constitute an ‘appearance,’ but

in the absence of an answer or other pleading a defendant must have otherwise

manifested a clear intent to defend the lawsuit.” Id.; see Baines v. Harwood, 87

Ohio App.3d 345, 622 N.E.2d 372 (12th Dist.1993). A default judgment entered in

contravention of this rule must be reversed on appeal.       Ohio Valley Radiology

Assoc., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121, 502 N.E.2d 599

(1986); AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88, 92, 461 N.E.2d 1282

(1984).

       {¶9}   Appellants contend that, because Wayne Hoffman called Appellees’

counsel and requested an extension of deadlines, they signaled their intent to defend

the cases and were entitled to notice of Appellees’ motions for default judgment. The

trial court overruled Appellants’ objection on this issue, finding that they did not

manifest a clear intent to defend the cases. While there is some dispute as to what

deadlines Hoffman asked Appellees’ counsel to extend, it is clear under either

scenario that Hoffman “appeared” and intended to defend the cases to some extent.



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A defendant would not contact a plaintiff’s attorney requesting an extension of time

to comply with deadlines otherwise.

       {¶10} Furthermore,      a    telephone   conversation   has   qualified   as     an

“appearance” for the purposes of this rule. See, e.g., AMCA Internatl. Corp. at 92

(during a telephone conversation with plaintiff’s counsel, defendant understood that

he would be afforded a reasonable amount of time to prepare and serve his answer,

and the court found he was entitled to notice under Civ.R. 55(A)); Baines v.

Harwood at 347 (during a telephone conversation with plaintiff’s counsel, defendant

requested additional time to discuss a possible settlement of the suit with his

codefendant, and plaintiff’s counsel agreed, and the court found he was entitled to

notice under Civ.R. 55(A)).        Hoffman’s telephone conversation with Appellees’

counsel was sufficient to indicate Appellants’ intent to defend against the lawsuits.

       {¶11} Therefore, because the entries of default judgment were in violation of

the provisions of Civ.R. 55(A), the judgment of the trial court denying Appellants’

motions to vacate the default judgments is hereby reversed and the cause is

remanded for further proceedings.

                                      Civil Rule 5

       {¶12} Separately and independently, even if notice of the applications for

default judgment was not required seven days in advance of the hearing on the

applications under Civ.R. 55(A), service of the motions for default judgment was still

required under Civ.R. 5. Civ.R. 5(A) provides that “every written motion * * * shall

be served upon a party.” Civ.R. 7(B) provides that “[a] written motion * * * shall be

served in accordance with Civ.R. 5 unless the motion may be heard ex parte.” Civ.R.

5(B)(4) states that “Documents filed with the court shall not be considered until

proof of service is endorsed thereon or separately filed.” No certificates of service of



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                     OHIO FIRST DISTRICT COURT OF APPEALS


the motions were filed in this case. And the parties agree that the motions were not

served.

       {¶13} Inapplicability of the notice-of-hearing requirement under Civ.R.

55(A) does not negate the Civ.R. 5 service requirement of the motion itself. Service

of the motion and notice of the hearing are separate concepts that should not be

conflated. Civ.R. 55(A) does not authorize a party to file a motion for default in

secret. In fact, the notice-of-hearing requirement provides additional procedural

protections to defendants who have appeared. Any other reading of these rules

would be out of line with longstanding precedent disfavoring default judgments. See,

e.g., AMCA Internatl. Corp., 10 Ohio St.3d at 92, 461 N.E.2d 1282; Suki v. Blume, 9

Ohio App.3d 289, 459 N.E.2d 1311 (8th Dist.1983).

       {¶14} Accordingly, because the motions for default judgment were not

served in accordance with Civ.R. 5, the trial court erred in considering them. This

affords an independent ground to reverse the judgment of the trial court. See, e.g.,

In re Coyle, 5th Dist. Stark No. 2005CA00111, 2006-Ohio-827.

                                     Conclusion

       {¶15} In conclusion, we sustain the sole assignment of error, reverse the trial

court’s judgment in both cases, and remand this cause with instructions to grant

Appellants’ motions to vacate the default judgments and for further proceedings

consistent with law and this opinion.


                                             Judgments reversed and cause remanded.

C UNNINGHAM , P.J., and M YERS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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