[Cite as Bryant v. Mehler, 2011-Ohio-1226.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
LORI BRYANT                                   :   William B. Hoffman, P.J.
                                              :   John W. Wise, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2010CA00107
                                              :
                                              :
DAVID MEHLER                                  :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Civil Appeal from Stark County
                                                   Court of Common Pleas,
                                                   Case No. 2009CV1427

JUDGMENT:                                          Reversed and Remanded

DATE OF JUDGMENT ENTRY:                            March 14, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

ROBERT A. PECCHIO                                  ARNOLD F. GLANTZ
2305 E. Aurora Road, Ste. A-1                      Glantz Law Offices
Twinsburg, Ohio 44087-1940                         4883 Dressler Road, N.W.
                                                   Canton, Ohio 44718
[Cite as Bryant v. Mehler, 2011-Ohio-1226.]


Edwards, J.

        {¶1}    Appellant, David Mehler, appeals a judgment of the Stark County

Common Pleas Court awarding appellee Lori Bryant compensatory damages of

$400,000.00 and punitive damages in the amount of $100,000.00 on her complaint for

sexual harassment.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    Appellee filed the instant action on April 10, 2009, alleging workplace

sexual harassment against appellant. Appellant filed an answer on June 3, 2009.

        {¶3}    On July 20, 2009, the court filed an assignment schedule setting pretrial

for August 21, 2009, at 8:50 a.m., for counsel only. The assignment included a note

which stated that failure to appear may result in an adverse judgment being entered

against the party not appearing or in default judgment being rendered where

appropriate.      The notice further reminded the parties of Local Rule 13.05 which

provides:

        {¶4}    “RULE 13.05. IN THE EVENT THAT NEITHER THE DEFENDANT NOR

COUNSEL APPEARS FOR SUCH PRETRIAL CONFERENCE, THE COURT, AT

PLAINTIFF’S REQUEST, MAY HEAR EVIDENCE AND DECIDE A CASE TRIABLE TO

THE COURT, OR IF IT BE A CASE TRIABLE TO A JURY, IT MAY ACCEPT

PLAINTIFF’S WAIVER OF TRIAL BY JURY, HEAR EVIDENCE AND DECIDE THE

CASE.”

        {¶5}    The assignment schedule was mailed to appellant’s attorney, Willard

Hanner.      Service of the assignment schedule was returned as not deliverable as

addressed and unable to forward.
Stark County App. Case No. 2010CA00107                                                 3


       {¶6}   Neither appellant nor his attorney appeared for the pretrial hearing. The

court granted default judgment on the issue of liability without hearing evidence and

scheduled a damages hearing for September 28, 2009. This order was filed on August

24, 2009. Again, service of that order failed and failure of service was docketed on

September 25, 2009.

       {¶7}   On September 28, 2009, the magistrate heard evidence on damages.

Again, neither counsel for appellant nor appellant appeared at the hearing.          The

magistrate awarded appellee damages in the amount of $400,000.00 for compensatory

damages and $100,000.00 in punitive damages by order filed September 29, 2009.

Once again, service of this entry failed.

       {¶8}   On November 2, 2009, the Stark County Sheriff personally served

appellant with the September 29, 2009, order. Appellant filed a notice of substitution of

counsel and objections to the magistrate’s report on November 12, 2009. Attached to

the objections was an affidavit of appellant stating that he was never notified by

Attorney Hanner of the trial date or damages hearing. He averred that he attempted to

contact Hanner upon receipt of the notice of judgment and discovered that his office

space was empty and there was no relocation information posted on the premises.

       {¶9}   The court noted that the objections to the magistrate’s report were

untimely filed, but nonetheless reviewed the opinion of the magistrate and found that the

opinion of the magistrate should be affirmed. Appellant assigns four errors:

       {¶10} “I. THE TRIAL COURT ERRED IN GRANTING ‘DEFAULT JUDGMENT’

ON THE ISSUE OF LIABILITY IN ACCORDANCE WITH LOC.R. 13.05 WITHOUT

TAKING EVIDENCE.
Stark County App. Case No. 2010CA00107                                                  4


      {¶11} “II. PROCEEDING WITH AN EX PARTE TRIAL UNDER LOC.R. 13.05 AS

A SANCTION FOR A DEFENDANT’S SINGLE MISSED PRETRIAL OF WHICH HE

WAS     NOT    NOTIFIED      IS   EXTREME,      NOT    CONSISTENT        WITH     OHIO’S

PREFERENCE TO RESOLVE CASES ON THEIR MERITS, AND AN ABUSE OF

DISCRETION.

      {¶12} “III. THE TRIAL COURT’S DECISION TO ENTER JUDGMENT IN FAVOR

OF BRYANT REGARDING LIABILITY VIOLATED MEHLER’S RIGHT TO DUE

PROCESS OF LAW BECAUSE HE WAS NOT NOTIFIED THAT HIS FAILURE TO

APPEAR FOR A PRETRIAL COULD RESULT IN AN EX PARTE JUDGMENT.

      {¶13} “IV. THE TRIAL COURT’S AWARD OF COMPENSATORY AND

PUNITIVE DAMAGES WAS CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                                I

      {¶14} Appellant argues that the court erred in entering default judgment against

him on the issue of liability pursuant to Loc. R. 13.05. We agree.

      {¶15} As quoted above, Loc. R. 13.05 provides that if the defendant does not

appear for a pretrial conference, the court may hear evidence and decide the case. In

the instant case, the court did not hear evidence, but entered default judgment against

appellant. Civ. R. 55(A) provides:

      {¶16} “(A) Entry of judgment. 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 therefore; but no judgment by default shall be entered against a minor or an
Stark County App. Case No. 2010CA00107                                                   5


incompetent person unless represented in the action by a guardian or other such

representative who has appeared therein. If the party against whom judgment by default

is sought has appeared in the action, he (or, if appearing by representative, his

representative) shall be served with written notice of the application for judgment at

least seven days prior to the hearing on such application. 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 or to establish the truth of any averment by evidence

or to make an investigation of any other matter, 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.”

       {¶17} Default judgment was not appropriate in the instant case because

appellant filed an answer as required by the Civil Rules.        The court failed to hear

evidence and decide the case as allowed by Loc. R. 13.05 when a party fails to appear

for a pretrial. The court therefore erred in entering default judgment on liability for

appellant’s failure to appear.

       {¶18} The first assignment of error is sustained.

                                                   II, III, IV

       {¶19} The second, third and fourth assignments of error are rendered moot

and/or premature by our decision on assignment of error one.
Stark County App. Case No. 2010CA00107                                         6


      {¶20} The judgment of the Stark County Common Pleas Court is reversed. This

cause is remanded to that court for further proceedings.




By: Edwards, J.

Hoffman, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                           JUDGES

JAE/r0124
[Cite as Bryant v. Mehler, 2011-Ohio-1226.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


LORI BRYANT                                      :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
DAVID MEHLER                                     :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2010CA00107




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is

reversed and this matter is remanded to the trial court for further proceedings. Costs

assessed to appellee.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
