[Cite as Howard v. Hawkins, 2017-Ohio-1473.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Tammy Howard                                       Court of Appeals No. L-16-1087

        Appellant                                  Trial Court No. CI0201401633

v.

Daniel Hawkins, et al.                             DECISION AND JUDGMENT

        Appellees                                  Decided: April 21, 2017

                                               *****

        Kevin R. Eff, for appellant.

        Vesper C. Williams II, for appellees.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Tammy Howard, appeals from the March 28, 2016 judgment of

the Lucas County Court of Common Pleas, in which the trial court found she failed to

satisfy her burden of proof in showing a contract existed between her and appellees,

Daniel and Joan Hawkins. For the reasons stated below, we affirm, in part, and reverse,

in part.
                                  Assignments of Error

      {¶ 2} Appellant sets forth the following assignments of error:

             1. The trial court abused its discretion in granting the Defendants

      leave to file their answer out of time (and, while motions for default

      judgment were pending) absent a showing of excusable neglect.

             2. The trial court abused its discretion in failing to grant Plaintiff’s

      motion for default judgment against the Defendants.

             3. The trial court erred, as a matter of law, in concluding that no

      contract existed between the Plaintiff and the Defendants.

             4. The trial court’s findings of fact are against the manifest weight

      of the evidence.

                                   Background Facts

      {¶ 3} On February 28, 2014, appellant filed a verified complaint against appellees

for breach of contract. Attached to the complaint was a “Purchase Agreement,” which

purported to reflect an agreement in which appellees were to transfer rights of a “New

Holland-Backhoe” and a “1982 Mac-Tri-axel Dump truck,” for the exchange of $27,000.

      {¶ 4} The complaint stated a praecipe to the clerk to serve appellees by certified

mail, return receipt. The complaint and summons were served on appellee Joan Hawkins

on March 10, 2014, and on appellee Daniel Hawkins on April 3, 2014.

      {¶ 5} On May 1, 2014, appellant moved the court for default judgment as to

appellee Joan Hawkins for failing to respond to the complaint. On May 2, 2014,




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appellant moved for default judgment against appellee Daniel Hawkins. On May 5,

appellees requested a first extension of time to file an answer, and the court granted the

request. The request stated, “Defendants Joan Hawkins and Daniel Hawkins request a

FIRST EXTENSION, not exceeding 28 days, to MOVE, PLEAD, OR OTHERWISE

RESPOND on or before the 1st day of June 2014.” The request did not otherwise

provide an excuse for the delay of filing.

       {¶ 6} Appellees requested a second extension on June 2, 2014, and the court also

granted this request. The second request was more detailed than the first, as it stated that

the delay and extension was necessary “due to the complexity of the issues involved in

this and the need to obtain additional information necessary to formulate their

response[.]”

       {¶ 7} Appellees filed their verified answer on June 9, 2014. As a result of the

filing, the court denied appellant’s motions for default judgment as moot.

       {¶ 8} In their answer, appellees asserted the affirmative defense of fraud, claiming

that plaintiff, through her agent-husband, procured appellee Daniel Hawkins’ signature

by forging it. Because of the forgery, appellees claimed there was never any valid,

written contract. The case proceeded to a bench trial on the merits.

       {¶ 9} At trial, the parties testified to the events surrounding the signing of the

submitted, written contract. Appellee Daniel Hawkins stated that he never signed the

contract and that appellant, through her husband, had an oral agreement with appellees

for the bargained for exchange, but never fulfilled payment as agreed. Appellee Joan




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Hawkins testified that, after 48 years of personally witnessing her husband’s signature,

the signature on the written contract was not her husband’s signature.

       {¶ 10} On March 28, 2016, the court issued a verdict entry which, in pertinent

part, stated as such:

              This case amounts, effectively, to a simple contract dispute between

       the parties. Generally, Plaintiffs alleged they had a contract with

       Defendants for the purchase of a backhoe and dump truck. Defendants

       countered that they entered into no such contract, and Plaintiffs claims were

       based on “Theft, Fraud, Larceny by Trick, Obtaining Property by False

       Pretenses, Conversion and Replevin.” Defendants also filed a counterclaim

       on the same basis, arguing that Plaintiffs impermissibly came onto

       Defendants’ property and stole a dump truck.

              Plaintiffs held the burden of proof in this matter to show by a

       preponderance of this evidence that a contract existed between themselves

       and Defendants. * * * After hearing and carefully considering all of the

       evidence presented, the Court cannot find that Plaintiffs or Defendants have

       satisfied their respective burdens of proof. As a result, the Court finds in

       favor of Defendants on Plaintiffs’ claim[.]”

       {¶ 11} On April 27, 2016, appellant timely filed her notice of appeal. She now

appeals from the March 28, 2016 judgment.




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                               Assignment of Error No. 1

       {¶ 12} In the first assignment of error, appellant argues the trial court abused

discretion in granting appellee leave to file an answer beyond 28 days without a showing

of excusable neglect. Appellees contend no discretion was abused because they made a

good faith attempt to comply with the rules and the case could then be decided fairly on

the merits.

       {¶ 13} “[A]fter the period for filing an answer prescribed in Civ.R. 12(A)(1) has

expired, an answer may be filed only upon motion for leave and a showing of excusable

neglect.” Hillman v. Edwards, 10th Dist. Franklin Nos. 08AP-1063, 08AP-1064, 2009-

Ohio-5087, ¶ 10. Civ.R. 12(A)(1) pertinently states, “[t]he defendant shall serve his

answer within twenty-eight days after service of the summons and complaint upon

him[.]” Civ.R. 6(B)(2) pertinently states, “[w]hen * * * an act is required or allowed to

be done at or within a specified time, the court for cause shown may at any time in its

discretion * * *(2) upon motion made after the expiration of the specified period permit

the act to be done where the failure to act was the result of excusable neglect[.]”

       {¶ 14} “Allowing a defendant to file an answer out of rule without moving for

leave to file and showing excusable neglect under Civ.R. 6(B) is an abuse of discretion.”

See Hillman at ¶ 8, citing Miller v. Lint, 62 Ohio St.2d 209, 214, 404 N.E.2d 752 (1980)

and Davis v. Immediate Med. Servs., Inc., 80 Ohio St.3d 10, 14-15, 684 N.E.2d 292

(1997). “Though a court may endeavor to quickly reach the merits of a controversy, the




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integrity of procedural rules is dependent upon consistent enforcement because the only

fair and reasonable alternative thereto is complete abandonment.” Id.

       {¶ 15} Here, the record reflects appellees’ motion for extension of time to answer

set forth no basis on which to find excusable neglect. Therefore, the trial court erred in

granting the extension without any inquiry into the excuse for the late filing. Limited

remand is necessary, and we note that “on remand, this conclusion does not prevent the

trial court from allowing defendants to file an answer[.]” Id. at ¶ 10.

       {¶ 16} Accordingly, we find appellant’s first assignment of error well-taken.

                               Assignment of Error No. 2

       {¶ 17} In the second assignment of error, appellant argues the trial court erred in

denying her motion for default judgment. Appellees contend appellant was not

prejudiced by any delay and the case was decided fairly and on its merits.

       {¶ 18} Default judgment may be awarded when a defendant fails to make an

appearance by filing an answer or otherwise defending an action. Civ.R. 55(A); see

Bayes v. Toledo Edison Co., 6th Dist. Lucas Nos. L-03-1177, L-03-1194, 2004-Ohio-

5752, ¶ 81.

       {¶ 19} Here, the June 16, 2014 judgments reflect the trial court did not rule on the

merit of the motion for default judgment, but instead, found the motion moot. We find

the second assigned error premature because the first assigned error was found well-

taken. On remand, the trial court is to determine whether appellees can demonstrate

excusable neglect. If so, then the court is to proceed to judgment as ordered in its




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March 28, 2016 decision. If not, the court is to strike appellees’ answer and grant the

default judgment. See Hillman, supra; see also Jenkins v. Clark, 7 Ohio App.3d 93, 454

N.E.2d 541 (2d Dist.1982).

                                Assignment of Error No. 3

       {¶ 20} In the third assignment of error, appellant argues the trial court erred in

holding no lawful contract existed between the parties. Appellees contend the court

properly ruled based on evidence presented at trial.

       {¶ 21} “Fraud in the execution of the instrument has always been admitted in a

court of law, as where it has been misread, or some other fraud or imposition has been

practiced upon the party in procuring his signature and seal.” (Citation omitted.) Perry

v. M. O’Neil & Co., 78 Ohio St. 200, 209-210, 85 N.E. 41 (1908). “The fraud in this

aspect goes to the question whether or not the instrument ever had any legal existence.”

Id.; see also R.C. Olmstead, Inc. v. GBS Corp., 7th Dist. Mahoning No. 08 MA 83, 2009-

Ohio-6808, ¶ 38 (“[F]orgery is just another way of saying that the defendant never signed

a contract and thus no contract ever existed”).

       {¶ 22} Here, we first note that although appellant attempts in her brief to argue for

the existence of either an oral or written contract, the record supports that her position at

trial was grounded in the existence of a written contract. The alleged original was

actually submitted to the court and is part of the record as plaintiff’s exhibit. Appellees

claim the written contract was forged and therefore void. The trial court was in the best

position to evaluate the credibility of the witnesses. Thus, because appellant did not raise




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the issue of the existence of an oral contract in the trial court, we will address whether the

court erred in determining the written contract to be invalid. See, e.g., Stoll v. United

Magazine Co., 10th Dist. Franklin No. 03AP-752, 2004-Ohio-2523, ¶ 25 (implying

waiver applies when an issue is not raised below).

       {¶ 23} In that regard, appellee Daniel Hawkins testified he never signed any

contract and that appellant’s agent and husband, Habib Howard, facilitated and forged his

signature on the alleged contract. Appellee Joan Hawkins testified and confirmed, after

viewing her husband’s signature for the previous 48 years, that the signature on the

contract was not his. Therefore, we find there is evidence fraud or forgery was practiced

upon appellee in procuring his signature. Based on the record, the trial court did not err

in determining the written contract to be invalid.

       {¶ 24} Accordingly, the third assignment of error is found not well-taken.

                                Assignment of Error No. 4

       {¶ 25} In the fourth assignment of error, appellant argues the findings of fact on

record are against the manifest weight of the evidence. Appellees contend competent,

credible evidence amply supports the judgment.

       {¶ 26} The standard of review for manifest weight is the same in a criminal case

as in a civil case, and an appellate court’s function is to determine whether the greater

amount of credible evidence supports the conviction. See Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing State v. Thompkins, 78 Ohio




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St.3d 380, 387, 678 N.E.2d 541 (1997). The appellate court, as if the “thirteenth juror”

must review the record, weigh the evidence and all reasonable inferences drawn from it,

consider the witnesses’ credibility and decide, in resolving any conflicts in the evidence,

whether the trier-of-fact “clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” See State v.

Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.); see

also Vill. of Seaman v. Altus Metals, Inc., 4th Dist. Adams Case No. 99 CA 683, 2000

Ohio App. LEXIS 1424, *6-7 (Mar. 24, 2000).

       {¶ 27} Here, there is competent, credible evidence to support the judgment

rendered below. As articulated above, there was ample evidence presented at trial for the

court to determine that no contract existed. We find this is not the exceptional case in

which the evidence weighs heavily against the findings and conclusions.

       {¶ 28} Accordingly, the fourth assigned error is found not well-taken.

                                        Conclusion

       {¶ 29} The judgment of the Lucas County Court of Common Pleas is affirmed, in

part, and reversed, in part. On remand the trial court is to permit appellees to enter a

motion for leave to file an answer instanter, with an attached answer. If the trial court

finds the motion demonstrates excusable neglect under the standard of Civ.R. 6, then the

affirmed final judgment ruling should be reinstated. If the trial court finds appellees are




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unable to demonstrate excusable neglect to support their motion, then default judgment

should be entered for appellant. Appellant and appellees are ordered to split the costs of

this appeal pursuant to App.R. 24.


                                                               Judgment affirmed, in part,
                                                                    and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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