[Cite as Landau v. Sposato, 2013-Ohio-4568.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


JILL K. LANDAU,                                )
                                               )   CASE NO. 12 MA 46
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )         OPINION
                                               )
BEVERLY E. SPOSATO,                            )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from County Court
                                                   No. 5, Case No. 11 CVI 381 CNF.


JUDGMENT:                                          Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Roklyn DePerro Turner
                                                   3685 Stutz Drive, Suite 100
                                                   Canfield, OH 44406

For Defendant-Appellant:                           Attorney Tracey Laslo
                                                   325 East Main Street
                                                   Alliance, OH 44601




JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                   Dated: September 20, 2013
[Cite as Landau v. Sposato, 2013-Ohio-4568.]
DeGenaro, J.
        {¶1}    Defendant-Appellant, Beverly E. Sposato appeals the decision of the
Mahoning County Court No. 5 granting default judgment in favor of Plaintiff-Appellee,
Jill K. Landau, following Sposato's failure to appear at the hearing in a small claims
proceeding. On appeal, Sposato argues that the trial court erred in granting default
judgment against her because she did not receive notice of the application for default
judgment pursuant to Civ.R. 55(A). Alternatively, she argues that it was fundamentally
unfair for the trial court to grant her a continuance two days before trial, only to then
vacate the continuance because the request was untimely, and proceed with the trial
in her absence.
        {¶2}    The notice required by Civ.R. 55(A) before entering default judgment
does not apply to small claims; thus, this argument is meritless. However, Sposato's
argument asserting that the trial court granting judgment in favor of Landau in her
absence was fundamentally unfair is meritorious. The trial court granted Sposato's
continuance and the entry was time-stamped.              Reasonably relying upon this
information on the trial court's docket, Sposato did not appear for the trial because it
had been continued. Nonetheless, Landau appeared, and contrary to principles of due
process, the trial court vacated its previous order granting the continuance reasoning
the motion had been untimely, and proceeded with the trial. Accordingly, the trial
court's judgment in favor of Landau is reversed, and this cause is remanded for further
proceedings.
                                  Facts and Procedural History
        {¶3}    On October 14, 2011, Landau filed a small claims complaint against
Sposato requesting judgment of $2,915.40 for unpaid legal fees, plus interest and
costs. The matter was set for hearing for December 1, 2011. On October 19, 2011,
Sposato was served with the complaint, which stated that if she did not appear at trial,
judgment may be entered against her by default.
        {¶4}    Defense counsel filed a notice of appearance for Sposato on November
29, 2011. The trial court subsequently granted two continuances for the small claims
hearing; first, on Sposato's motion, resetting the hearing for January 13, 2012, and
then on Landau's motion, resetting the hearing for January 27, 2012.
                                                                                     -2-


       {¶5}   On January 25, 2012, Sposato filed, via facsimile, a motion for
continuance and request for transfer to the regular docket. She requested that the trial
court continue the January 27, 2012 hearing and that the matter be transferred to the
court's regular docket. She stated that Landau's counsel had been contacted and had
no objection to the continuance. On January 25, 2012, the trial court issued an order
transferring the matter to the court's regular docket. The order also stated that the
January 27, 2012 hearing was continued, but the spaces on the order for the new
hearing date were left blank.
       {¶6}   On January 26, 2012, Landau filed a memorandum in opposition to the
request to transfer the matter to the regular docket. She explained that her counsel
consented to a final continuance but was unaware of the request to transfer. Landau
argued that pursuant to Local Rule 12(D)(2), a motion to transfer must be made seven
days prior to trial and all fees and costs must be paid in advance or the request must
be denied. Further, if the request is made for purposes of delay, then default judgment
may be entered. Landau claimed that Sposato's motion to transfer was made for
purposes of delay and that Sposato had not paid any cost or fee for transferring the
matter. Thus, Landau requested the court deny the motion to transfer and render
default judgment against Sposato.
       {¶7}   Despite the continuance the matter came for hearing before the trial
court on January 27, 2012 at 9:00 a.m. Landau and her counsel were present, but
Sposato and her counsel did not attend. Immediately following the hearing, the trial
court issued two judgment entries on that date. In the first entry filed at 9:31 a.m., the
trial court, inter alia, vacated its January 25, 2012 order which had transferred the case
to the regular docket and continued the January 27th hearing. In the second entry
filed at 10:15 a.m., the trial court stated that Sposato failed to appear at the hearing
and "upon review of the file and evidence provided" default judgment was granted
against Sposato.
       {¶8}   On February 9, 2012, Sposato filed a motion to vacate the January 27,
2012 judgment pursuant to Civ.R. 60(B) and sought a stay. Landau opposed the
                                                                                     -3-


motion and the court set the matter for hearing on March 30, 2012.
       {¶9}      On February 24, 2012 Sposato filed a timely notice of appeal from the
trial court's second judgment entry issued on January 27, 2012.
       {¶10} On September 12, 2012, this court issued a judgment entry holding the
appeal in abeyance for 60 days and remanded this matter to the trial court to rule on
Sposato's February 9, 2012 motion to vacate.
       {¶11} On November 30, 2012, the trial court issued a judgment entry overruling
Sposato's motion to vacate. Sposato did not file a notice of appeal from this judgment.
                        Civ.R. 55(A) Inapplicable to Small Claims
       {¶12} In her sole assignment of error, Sposato alleges:
       {¶13} "The trial court erred in granting default judgment without service to
appellant in violation of Civ.R. 55(A)."
       {¶14} Sposato raises two arguments; first that the trial court improperly granted
default judgment against her because she had appeared in the action by her counsel
filing a notice of appearance, and thus was entitled to the notice and hearing
procedures of Civ.R. 55(A), which the trial court did not follow.       She alternatively
argues that it was fundamentally unfair for the trial court to grant a continuance two
days before the trial, only to proceed in her absence on the date the trial was originally
scheduled.
       {¶15} "A trial court's decision to grant or deny a motion for default judgment is
reviewed for an abuse of discretion." Fitworks Holding, L.L.C. v. Sciranko, 8th Dist.
No. 90593, 2008-Ohio-4861, ¶4. Abuse of discretion means an error in judgment
involving a decision that is unreasonable based upon the record; that the appellate
court merely may have reached a different result is not enough. In re S.S.L.S., 7th
Dist. Columbiana No. 12 CO 8, 2013-Ohio-3026, ¶22.
       {¶16} Pursuant to Civ.R. 1(C), the Ohio Rules of Civil Procedure do not apply
to small claims proceedings "to the extent that they would by their nature be clearly
inapplicable."     R.C. Chapter 1925, governing small claims matters, reiterates this
policy. "Except as inconsistent procedures are provided in this chapter or in rules of
                                                                                      -4-


court adopted in furtherance of the purposes of this chapter, * * * all proceedings in the
small claims division of a county court are subject to the Rules of Civil Procedure * * *."
R.C. 1925.16. Although "[m]any of the Rules of Civil Procedure apply to small claims
court and are clearly applicable and consistent, such as, notice of filing, service of
summons, and joinder of parties * * * [they] 'should be held clearly inapplicable only
when their use will alter the basic statutory purpose for which the specific procedure
was provided in the special statutory action.'" McDonough v. Noble, 7th Dist. No. 80
C.A. 96, 1981 WL 4728, *2 (June 17, 1981), quoting Harshal v. Farrell, 55 Ohio
App.2d 246, 247, 380 N.E.2d 749 (1977).
       {¶17} In that vein, several of our sister districts have held that the notice
provisions of Civ.R. 55(A) where default judgment is sought against a defendant who
has appeared, but was not present at the default hearing, do not apply to small claims
proceedings. See Tomety v. Dynamic Auto Serv., 10th Dist. No. 09AP-982, 2010-
Ohio-3699, ¶8-9 (defendant appeared for original trial which was continued; at
rescheduled trial, default judgment granted and affirmed over claim of lack of notice of
rescheduled trial date); Miller v. McStay, 9th Dist. No. 23369, 2007-Ohio-369, ¶13 ("we
find Civ.R. 55(A), by its nature, inapplicable to small claims matters"); Sheaff v.
Conese, 12th Dist. No. CA-2001-10-242, 2002-Ohio-5607, ¶36 (defendant's pending
motion to dismiss did not justify non-appearance at trial and did not preclude entry of
default judgment); Schafer v. McNeill Enterprises, 4th Dist. No. 1071, 1984 WL 5658,
*2 (Sept. 26, 1984) (defendant appeared for trial but left before case was called,
default judgment entered in his absence).
       {¶18} We are persuaded by the rationale of our sister districts. Consistent with
the rationale in Tomety, Miller, Sheaff and Shafer, Civ.R. 55(A) does not require prior
notice to a defendant before a trial court enters default judgment after a small claims
trial at which the defendant was not present, even where the defendant has answered
or otherwise appeared. Accordingly, Sposato's argument that Civ.R. 55(A) applies to
small claims proceedings is meritless. However, this does not mean that the trial court
did not err in entering judgment against Sposato.
                                                                                           -5-


                                      Fundamental Fairness
       {¶19} Sposato next contends that it was fundamentally unfair for the trial court
to grant a continuance two days prior to a scheduled trial, only to then proceed with
the trial in her absence and grant judgment in favor of Landau. Sposato argues she
did not appear because she relied upon the continuance, and that counsel for Landau
failed to advise the trial court that Sposato intended to defend the suit and that the
hearing had been continued.
       {¶20} Although small claims cases by their nature are informal and the Rules of
Civil Procedure not applicable in their entirety or the Rules of Evidence at all,
fundamental due process principles still apply. See, Winkler v. Smith, 5th Dist. No.
06CA16, 2008-Ohio-1701, ¶10; Jones v. Cynet, Inc., 8th Dist. No. 9769, 2002-Ohio-
2617, ¶31.     "A fundamental requirement of due process is 'the opportunity to be
heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783. It is an opportunity
which must be granted at a meaningful time and in a meaningful manner." Armstrong
v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). Sposato
was deprived of her opportunity to be heard in violation of her right to due process.
       {¶21} Admittedly, Sposato did not file the continuance motion more than seven
days before scheduled date as required by Local Rule 12.                Further, there is no
provision in the trial court's local rules for filing via facsimile, and this court has rejected
such filings in the absence of a local rule permitting same. Rutushin v. Arditi, 7th Dist.
No. 12MA144, 2013-Ohio-1427, reconsideration denied, 2013-Ohio-2167 (notice of
appeal not timely when filed by facsimile and proper paper filing was beyond 30 day
appeal time).     However, the trial court not only accepted the electronic filing of
Sposato's motion for a continuance two days before the scheduled trial date, it granted
the motion that day and continued the matter, all in contravention of the local rule.
Moreover, the trial court's January 25th entry was time-stamped on that date, and the
docket reveals that the January 27th trial had been continued as of January 25th.
Thus, Sposato reasonably relied upon that information and did not appear.
       {¶22} The trial court's decision to vacate the continuance and proceed with the
                                                                                     -6-


trial in Sposato's absence was fundamentally unfair and contrary to principles of due
process. Despite the fact that the trial court had considered and granted the untimely
motion two days before the scheduled trial date, it nonetheless vacated the
continuance, reasoning Sposato had not filed the motion at least seven days prior to
trial. Accordingly, this argument is meritorious; the trial court abused its discretion by
proceeding with the trial in Sposato's absence and granting judgment in favor of
Landau.
                                          Conclusion
       {¶23} The notice required by Civ.R. 55(A) before entering default judgment
does not apply to small claims proceedings; thus, this argument is meritless.
However, Sposato's argument asserting that the trial court granting judgment in favor
of Landau in her absence was fundamentally unfair is meritorious. The trial court
granted Sposato's continuance and the entry was time-stamped. Reasonably relying
upon this information on the trial court's docket, Sposato did not appear for the trial
because it had been continued.       Nonetheless, Landau appeared, and contrary to
principles of due process, the trial court vacated its previous order granting the
continuance reasoning the motion had been untimely, and proceeded with the trial.
Accordingly, the trial court's judgment in favor of Landau is reversed, and this cause is
remanded for further proceedings.
Vukovich, J., concurs.
Waite, J., concurs.
