[Cite as TBS Transp., L.L.C. v. Tri-State Used Auto Sales, 2020-Ohio-2710.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


TBS TRANSPORTATION, LLC.,                         :                APPEAL NO. C-190254
                                                                   TRIAL NO. A-1505817
   and                                            :
                                                                         O P I N I O N.
TROY W. SUBLETT,                                  :

        Plaintiffs-Appellees,                     :

  vs.                                             :

TRI-STATE USED AUTO SALES, d.b.a. :
TRI-STATE AUTO SALES,
                                  :
PIERRE JACKSON,
                                  :
  and
                                  :
KRISHAUN GILMORE,

        Defendants-Appellants.                    :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 29, 2020



Crawford Glankler, LLC, and John R. Glankler, for Plaintiffs-Appellees,

Linn & Grendell and James Grendell, for Defendants-Appellants.
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M OCK , Presiding Judge.

       {¶1}    In this case, we address the question of whether a trial court may

properly award a default judgment when the defending parties have filed an answer

in the proceeding. Since it may not, we reverse the judgment of the trial court.

                       Purchase of Auto Results in Litigation

       {¶2}    Plaintiffs-appellees TBS Transportation, LLC., and Troy Sublett

(“TBS”) filed a lawsuit against defendant-appellant Tri-State Used Auto Sales, d.b.a.

Tri-State Auto Sales, and its owners, defendants-appellants Pierre Jackson and

Krishaun Gilmore (collectively “Tri-State”). The suit alleged that TBS purchased a

Porsche from Tri-State. The agreement was not committed to writing. According to

the complaint, the parties had agreed on a sales price of $13,000, with payments of

$500 per month. According to the complaint, TBS had made the monthly payments

timely, until the balance reached $1500. At that point, TBS contacted Tri-State to

ask to completely pay off the vehicle. Tri-State informed TBS that TBS actually owed

more than $13,000 on the vehicle, and refused to release their lien or accept $1500

as final payment. Tri-State later repossessed the vehicle.

       {¶3}    TBS alleged that Tri-State violated the Ohio Consumer Sales Practices

Act (“CSPA”) by committing a deceptive act by repossessing the vehicle even though

TBS had made payments on the vehicle and had honored the agreement.                TBS

alleged other statutory claims, breach of contract, fraud, unlawful repossession, and

conversion. The matter was set for trial on July 30, 2018. Prior to that date, counsel

for Tri-State withdrew. The July 30 trial date was vacated when counsel for TBS had

a family emergency, and a case-management conference was set for August 9. While

the court record indicates that a conference was held on that date, no entry was

generated by the court reflecting a new trial date. The next entry on the docket after

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the entry setting the case-management conference is a judgment entry setting forth

the results of a trial held on March 18, 2019. The entry states that the defendants

failed to appear and, “as a result, an entry of default judgment was granted against

Defendants. As a result, the allegations made in Plaintiffs’ Complaint are hereby

deemed true * * *.” The entry further states that, on March 18, a hearing was held on

the issue of plaintiffs’ damages, at which hearing “evidence and testimony was

presented.” Even though the entry states that judgment was entered on all the

claims, it only awarded damages on the CSPA claim.

       {¶4}    Tri-State now appeals, raising three assignments of error.

                             The Trial Court Improperly
                             Entered Default Judgment

       {¶5}    In their first assignment of error, Tri-State claims that the trial court

improperly entered a default judgment against them without prior notice. TBS

counters that a default judgment was not entered, but rather an ex parte trial was

conducted in the absence of Tri-State.

       {¶6}    The record does not support TBS’s claim. The very first statement

made by the trial court at the March 18 hearing was “Plaintiffs move for default

judgment. Defendants notified for trial. March 18th, 11:05, nobody is here. The case

is set at 9:00. The Plaintiffs’ motion for default judgment is granted. What sort of

damages are you seeking?” Further, the trial court’s entry specifically states that it

had granted the motion for a default judgment and had deemed the allegations in the

complaint to be true.

       {¶7}    But the trial court was not permitted to enter a default judgment

against Tri-State, because Tri-State had filed an answer in the action. As the Ohio

Supreme Court explained:


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              Default, under both pre-Civil Rule decisions and under Civ.R.

      55(A), is a clearly defined concept. A default judgment is a judgment

      entered against a defendant who has failed to timely plead in response

      to an affirmative pleading. * * * “A default by a defendant * * * arises

      only when the defendant has failed to contest the allegations raised in

      the complaint and it is thus proper to render a default judgment

      against the defendant as liability has been admitted or ‘confessed’ by

      the omission of statements refuting the plaintiff’s claims.” It is only

      when the party against whom a claim is sought fails to contest the

      opposing party’s allegations by either pleading or “otherwise

      defend[ing]” that a default arises. This rule applies to original claims

      as well as to counterclaims (Civ.R. 55[C] ), and is logically consistent

      with the general rule of pleading contained in Civ.R. 8(D), which reads

      in part that “[a]verments in a pleading to which a responsive pleading

      is required * * * are admitted when not denied in the responsive

      pleading.”

              Because a default under Civ.R. 55(A) only applies to those

      uncontested cases where one party has “failed to plead or otherwise

      defend,” the notice requirements of Civ.R. 55(A) have generally been

      held inapplicable to cases in which a defending party who has

      previously pleaded later fails to appear for a trial or pretrial

      conference.

(Citations omitted.) Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn.,

28 Ohio St.3d 118, 122-123, 502 N.E.2d 599 (1986).




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          {¶8}    Since Tri-State had filed an answer in the proceedings, the trial court

did not have the authority to resolve TBS’s claims through a default proceeding.

“The proper action for a court to take when a defending party who has pleaded fails

to show for trial is to require the party seeking relief to proceed ex parte in the

opponent’s absence.” Id. at 123. Such a procedure, which requires affirmative proof

of the essential elements of a claim, is “diametrically opposed to the concept of

default, which is based upon admission and which therefore obviates the need for

proof.” Id. The reason a trial is required stems from the basic nature of the burden-

of-proof requirements of our trial system.

          Under that system, the sole responsibility of a defendant who has

          effectively contested the claimant’s allegations by pleading is to refute

          the claimant’s case after the latter has established a prima facie case by

          proper evidence. If the plaintiff cannot make out such a case, the

          defendant need not present any evidence at trial. Conversely, once a

          case is at issue, it is improper for a court to enter judgment against a

          defendant without requiring proof of the plaintiff’s claim.

Id. at 122. In other words, once the defendant has answered a complaint denying the

allegations, the next step in the process is for the plaintiff to put forth its case at trial.

If it does not do so, the defendant does not need to present anything at trial or even

attend.

          {¶9}    It is clear that what occurred in this case was not a true ex parte trial.

There was no affirmative proof of the essential elements of the claims. In fact, the

trial court expressly deemed the allegations true without further proof required.

What the trial court conducted was a postdefault damages hearing.                  TBS only

presented evidence related to damages. No testimony was presented relating to the


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nature of the claims TBS was making that would track the elements of any of the

causes of action.

       {¶10}   Because the trial court improperly granted TBS’s motion for a default

judgment and did not conduct a proper ex parte trial, we sustain Tri-State’s first

assignment of error.

                            Remaining Assignments Moot

       {¶11}   In the second assignment of error, Tri-State claims that the trial

court’s decision that the underlying transaction was a consumer transaction was

against the manifest weight of the evidence. In the third assignment of error, Tri-

State challenges the trial court’s finding that Tri-State committed fraud. Both of

these assignments of error address claims relating to the result of the hearing that we

have determined to have been improperly conducted in the resolution of the first

assignment of error.     The resolution of that assignment of error renders the

remaining assignments of error moot, and we decline to address them.

                                      Conclusion

       {¶12}   Because the trial court improperly granted TBS’s motion for a default

judgment and failed to conduct a proper trial on the merits of TBS’s causes of action,

we reverse the trial court’s judgment and remand this cause for further proceedings.


                                                Judgment reversed and cause remanded.

ZAYAS and BERGERON, JJ., concur.

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




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