[Cite as Whittle v. Davis, 2013-Ohio-1950.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




ANTONIO WHITTLE, JR.,                               :
                                                          CASE NO. CA2012-08-169
        Plaintiff-Appellee,                         :
                                                               OPINION
                                                    :           5/13/2013
    - vs -
                                                    :

DANIELLE DAVIS, et al.,                             :

        Defendants-Appellants.                      :




             CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                               Case No. CV2011-11-3900


Ronald L. Burdge, 2299 Miamisburg-Centerville Road, Centerville, Ohio 45459, for plaintiff-
appellee

Richard L. Hurchanik, 110 North Third Street, Hamilton, Ohio 45011, for defendants-
appellants



        S. POWELL, J.

        {¶ 1} Defendants-appellants, Danielle Davis, Mohammed T. Al Barbarawi, Falcon

Automobile Sales, Inc., and Falcon Auto Sales, Inc. (collectively, "Falcon Auto Sales"),

appeal a decision of the Butler County Common Pleas Court awarding damages in the

amount of $20,999.60 to plaintiff-appellee, Antonio Whittle, Jr., upon a finding of default

judgment.
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         {¶ 2} On November 3, 2011, Whittle filed a complaint against Falcon Auto Sales

alleging several violations of the Ohio Consumer Sales Practices Act, R.C. 1345.01, et seq.

("CSPA"), and violations of the Ohio Motor Vehicle Sales Rule, Ohio Admin.Code 109:4-3-16,

et seq., regarding the sale of a 2003 BMW 325 motor vehicle (the "BMW") from Falcon Auto

Sales.

         {¶ 3} According to the complaint, in July 2011, Whittle entered into a consumer

transaction and financing agreement with Falcon Auto Sales for the purchase of the BMW.

Falcon Auto Sales represented to Whittle that financing for the transaction had been

approved and that he could pay off the balance owed on the BMW over a period of time.

However, according to the complaint, Whittle later learned that financing had never been

approved for the transaction.

         {¶ 4} Also as part of the transaction, Falcon Auto Sales agreed to accept Whittle's

2005 Lexus IS300 motor vehicle (the "Lexus") as a trade-in, giving Whittle a trade-in

allowance of $2,000 towards the purchase of the BMW. Falcon Auto Sales also agreed to

pay off the balance owed on the loan for the Lexus totaling $8,000. Importantly, Whittle

never attached a copy of the sales contract or financing agreement to the complaint, stating

that Falcon Auto Sales "ha[d] a copy" or "ha[d] access to a copy" and that one could be

"provided upon request."

         {¶ 5} The complaint further stated that Barbarawi represented to Whittle that the

BMW was in good mechanical condition and free from malfunctions and defects when, in

reality, the BMW was defective and unfit to drive. Specifically, the complaint alleged the

BMW had brakes that were "not effective in stopping the vehicle," one of the BMW's windows

"fell off track," and noises "emanated from under the vehicle."

         {¶ 6} On August 4, 2011, Whittle returned the BMW to Falcon Auto Sales due to its

defective condition and the lack of financing. Falcon Auto Sales accepted the return of the
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vehicle but refused to give Whittle back his $2,000 trade-in value or return the Lexus,

claiming the Lexus had already been sold. According to the complaint, however, Whittle

discovered the Lexus was not sold until October 2011 for a purchase price of $12,872, which

was $2,872 more than what Falcon Auto Sales had paid Whittle for the Lexus.

       {¶ 7} Whittle's complaint further stated that he was forced to go without a vehicle for

almost five months and had to borrow his mother's vehicle when it was available. This

caused him "significant stress and frustration" due to worrying about how he was going to get

to work and other places. As such, Whittle sought "not more than $25,000 [in] actual

damages or $200 [in] statutory damages or three times actual damages, whichever is

greater" for one violation of the CSPA and an additional damage award of "not more than

$25,000 [in] actual damages or $200 [in] statutory damages or three times actual damages,

whichever is greater" for "violation of the Motor Vehicle Sales Rule and the [CSPA]."

       {¶ 8} Falcon Auto Sales failed to timely respond to the complaint and default

judgment on the issue of liability was entered against them on August 2, 2012. Also on

August 2, 2012, and based upon the affidavits of Whittle and his attorney attached to

Whittle's motion for default judgment (the "affidavits"), the trial court awarded Whittle the

amount of $20,999.60 plus court costs and interest due to Falcon Auto Sales' unfair and

deceptive breach of contract in violation of the CSPA. The damages award was broken

down as follows: (1) $2,000 as a result of Falcon Auto Sales' breach of contract, trebled

pursuant to R.C. 1345.09(B) for a total of $6,000; (2) $2,872, the difference between

Whittle's trade-in allowance and the market value of the Lexus, due to Falcon Auto Sales'

violation R.C. 1345.03(B)(6); (3) $5,000 in noneconomic damages for Whittle's stress and

frustration pursuant to R.C. 1345.09(B); (4) five awards of $200 each for various "additional"

CSPA violations totaling $1,000; and (5) $6,127.60 in attorney's fees and court costs.

       {¶ 9} From the trial court's final judgment entry, Falcon Auto Sales appeals, raising
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four assignments of error.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE [TRIAL] COURT ABUSED ITS DISCRETION WHEN IT PROCEEDED TO

ISSUE A JUDGMENT WITHOUT A DAMAGE HEARING BASED UPON A BREACH OF

CONTRACT AND [WHITTLE] ALLEGED A WRITTEN CONTRACT EXISTED AND

[WHITTLE]'S REASON FOR THE NOT (sic) ATTACHING THE CONTRACT TO THE

COMPLAINT WAS "[FALCON AUTO SALES] HAD A COPY" SO THAT THE [TRIAL]

COURT DID NOT EVER HAVE A COPY OF THE CONTRACT TO REVIEW.

       {¶ 12} In its first assignment of error, Falcon Auto Sales argues the trial court erred by

awarding damages to Whittle where the trial court was unable to review the contract at issue

and failed to hold a damages hearing pursuant to Civ.R. 55(A).

       {¶ 13} "It is well established that even though a party defaults and admits the

allegations of the complaint or stipulates to liability, a plaintiff must still prove his or her

damages." Henry v. Richardson, 193 Ohio App.3d 375, 2011-Ohio-2098, ¶ 8 (12th Dist.),

citing McIntosh v. Willis, 12th Dist. No. CA2004-03-076, 2005-Ohio-1925. Civ.R. 55(A)

provides, in pertinent part:

              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 * * *.

Thus, Civ.R. 55(A) "'clearly indicates that a court may conduct a hearing when it deems that

it is necessary.    A hearing is permissive, not mandatory.'"            (Emphasis sic.)    Am.

Communications of Ohio, Inc. v. Hussein, 10th Dist. No. 11AP-352, 2011-Ohio-6766, ¶ 15,

quoting Nationwide Mut. Fire Ins. Co. v. Barrett, 7th Dist. No. 08 MA 130, 2008-Ohio-6588, ¶

26. Due to the discretionary nature of the trial court's authority to hold a hearing on

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damages, we review the trial court's decision under the abuse of discretion standard of

review. Id. An abuse of discretion is more than an error of judgment; it means the trial court

was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       {¶ 14} "'[W]hen the complaint and the motion for default judgment clearly set forth the

amount of [liquidated] damages,' and reveal the amount to be ascertainable, 'the trial court

does not abuse its discretion in relying on the amount asserted' in the complaint." Hussein at

¶ 16, quoting Barrett at ¶ 26. "If, by contrast, 'the determination of damages necessarily

requires consideration of information outside a written instrument, the trial court abuses its

discretion in failing to hold an evidentiary hearing to determine the exact amount of

damages.'" Id., quoting L.S. Industries v. Coe, 9th Dist. No. Civ.A 22603, 2005-Ohio-6736, ¶

20, appeal not allowed, 109 Ohio St.3d 1457, 2006-Ohio-2226.

       {¶ 15} "Liquidated damages" are defined as "[a]n amount contractually stipulated as a

reasonable estimation of actual damages to be recovered by one party if the other party

breaches." Coe at ¶ 22, citing Black's Law Dictionary (7 Ed.1999) 395. "'A liquidated claim is

one that can be determined with exactness from the agreement between the parties or by

arithmetical process or by the application of definite rules of law.'" Id., quoting Huo Chin Yin

v. Amino Prods. Co., 141 Ohio St. 21, 29 (1943).

       {¶ 16} Here, the trial court did not hold a damages hearing, even though the written

instrument upon which the damages award was based was not attached to the complaint in

compliance with Civ.R. 10(D). Civ.R. 10(D) provides that "[w]hen any claim or defense is

founded on an account or other written instrument, a copy of the account or written

instrument must be attached to the pleading. If the account or written instrument is not

attached, the reason for the omission must be stated in the pleading."

       {¶ 17} Whittle claims in the complaint that the reason he did not attach the contract
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was because Falcon Auto Sales "has a copy" or has "access to a copy" of the contract and

that Whittle would "provide a copy" of the contract upon request. However, this reason for

omission does not satisfy the requirements of Civ.R. 10(D) and fails to provide the trial court

with a copy of the contract. Point Rental Co. v. Posani, 52 Ohio App.2d 183, 185 (10th

Dist.1976) (holding that a plaintiff's "statement of belief that the defendant has a copy" of the

written instrument is "an insufficient reason" for the failure to attach the written instrument to

the complaint). It should be noted that the failure of Whittle to properly attach a copy of the

contract to the complaint pursuant to Civ.R. 10(D) does not bar a grant of default judgment

as to liability, as the remedy for a Civ.R. 10(D) violation is to file a motion for more definite

statement pursuant to Civ.R. 12(E). See Denlinger, Rosenthal & Greenberg, LPA v. Cohen,

12th Dist. No. CA2012-03-019, 2012-Ohio-4774, ¶ 14, fn. 2; Hudson & Keyse, LLC v.

Carson, 10th Dist. No. 07AP-936, 2008-Ohio-2570, ¶ 10; Campbell v. Aepli, 5th Dist. Nos.

CT06-0069, CT06-0063, 2007-Ohio-3688, ¶ 43.

       {¶ 18} Nevertheless, in addressing the issue of damages upon a finding of default

judgment, the trial court was without the written instrument necessarily required to determine

the amount of liquidated and non-liquidated damages owed to Whittle. Instead, the trial court

relied solely upon the complaint and the affidavits of Whittle and his trial counsel. The

complaint and affidavits allege that Whittle suffered actual damages in the amount of $2,000

for Falcon Auto Sales' breach of contract and failure to return the Lexus or reimburse Whittle

his trade-in value, as well as $2,872 for Falcon Auto Sales' misrepresentation that the Lexus

had already been sold when it had not been sold. The complaint and affidavits also allege

that Falcon Auto Sales' breach of contract was an unfair and deceptive act in violation of the

CSPA. The affidavit of Whittle's trial counsel provides that Whittle spent $522.10 on court

costs and $5,605.50 on attorneys' fees. Whittle's own affidavit asserts that he suffered "a

significant amount of frustration and stress" for five months when he was without a vehicle
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and was required to rely upon his mother for rides to work and other places. Yet, Whittle's

affidavit is uninformative as to the distance between Whittle's home and his mother's, how

often he was forced to use his mother's vehicle, and how often he was without a vehicle

altogether. Finally, the complaint concludes that Whittle seeks "no more than $25,000 [in]

actual damages or $200 [in] statutory damages or three times actual damages, whichever is

greater" for two CSPA violations and for a violation of the Ohio Motor Vehicle Sales Rule.

       {¶ 19} Without being able to review the written instrument upon which Whittle's claims

are based, the trial court abused its discretion in awarding damages without holding a

hearing pursuant to Civ.R. 55(A). See Hussein, 2011-Ohio-6766 at ¶ 17 (finding the trial

court abused its discretion in granting default judgment without a damages hearing where the

plaintiff attached an incomplete copy of the contract to the complaint); Coe at ¶ 23 (holding

the trial court abused its discretion in not holding a damages hearing where the plain

language of the complaint and the absence of any note, account, or other contract appended

to the complaint failed to provide that the damages at issue were not liquidated). Without the

contract, it is unclear what economic damages are liquidated and what are not. However, at

the very least, it is clear that Whittle's claim for noneconomic damages due to frustration and

stress are non-liquidated damages, as they cannot be ascertained through the contract or

through a definite rule of law. We note that R.C. 1345.09(B) only provides that "an amount

not exceeding" $5,000 may be awarded for noneconomic damages, not that $5,000 must be

awarded.

       {¶ 20} Where, as here, the damages claim is based upon damages which are not

liquidated, or only partially liquidated, it is reversible error for the trial court to enter a default

judgment without holding a hearing on the damages issue. Hull v. Clem D's Auto Sales, 2d

Dist. No. 2011 CA 6, 2012-Ohio-629, ¶ 7, citing Mid-American Acceptance Co. v. Reedy,

11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29, 1990); see also, e.g.,
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Qualchoice, Inc. v. Brennan, 11th Dist. Lake No.2008-L-143, 2009-Ohio-2533, ¶ 21; W2

Properties, LLC v. Haboush, 1st Dist. No. C-100698, 2011-Ohio-4231, ¶ 29. In this case,

given the nature of the damages sought, coupled with the absence of the written contract, the

trial court should have held a hearing to determine an appropriate damages award. Thus,

Falcon Auto Sales' first assignment of error is well-taken and sustained.

      {¶ 21} Assignment of Error No. 2:

      {¶ 22} THE [TRIAL] COURT ERRED IN AWARDING DAMAGES AS A DEFAULT

JUDGMENT WITHOUT HAVING A DAMAGE HEARING AND WITHOUT HAVING A COPY

OF THE WRITTEN CONTRACT AND THE ENTRY INCLUDES AMOUNTS AND CLAIMS

NOT IN THE COMPLAINT NOR AFFIDAVIT AND THE ATTORNEY AFFIDAVIT WAS

NOTARIZED BY AN ATTORNEY WHO SEEKS ATTORNEY FEES.

      {¶ 23} Assignment of Error No. 3:

      {¶ 24} THE [TRIAL] COURT ERRED WHEN IT FOUND A BREACH OF CONTRACT

SO SERIOUS THAT IT WAS UNFAIR AND DECEPTIVE, TO VIOLATE EARNEST V.

CROWN CHEVROLET, INC., WITHIN (sic) ANY EVIDENCE OF THE OFFENDING

BREACH.

      {¶ 25} Assignment of Error No. 4:

      {¶ 26} THE [TRIAL] COURT ERRED WHEN IT AWARDED A COMPLEX FINAL

ENTRY WITHOUT A DAMAGE HEARING NEEDED TO "MAKE AN INVESTIGATION OF

ANY OTHER MATTER" OR "TO ESTABLISH THE TRUTH OF ANY AVERMENT."

      {¶ 27} Having sustained Falcon Auto Sales' first assignment of error, the remaining

assignments of error are rendered moot.




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       {¶ 28} Judgment reversed and cause remanded for further proceedings consistent

with this opinion.


       HENDRICKSON, P.J. and RINGLAND, J., concur.




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