[Cite as Bank of America, N.A. v. Truax, 2018-Ohio-3101.]



             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                 MONROE COUNTY

                                  BANK OF AMERICA, N.A.,

                                         Plaintiff-Appellant,

                                                     v.

                                        LARRY E. TRUAX,

                                       Defendant-Appellee.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MO 0011


                                     Civil Appeal from the
                              County Court of Monroe County, Ohio
                                   Case No. CVF-1600-118

                                         BEFORE:
                 Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.


                                           JUDGMENT:
                                      Reversed and Remanded.

Atty. Yale R. Levy and
Atty. Krishna K. Velayudhan, Levy & Associates, LLC, 4645 Executive Drive, Columbus,
Ohio 43220, for Plaintiff-Appellant

Larry E. Truax, Pro se, 32876 County Road 14, Sycamore Valley, Ohio 43754.

                                         Dated: July 27, 2018


WAITE, J.
                                                                                          –2–


       {¶1}   Appellant, Bank of America N.A. (“BOA” or “bank”), appeals the entry of

default judgment in its favor and against Appellee, Larry E. Truax, in the amount of zero

dollars by the Monroe County Court in this breach of contract and unjust enrichment

action on a credit account. For the following reasons, the judgment is reversed and this

matter is remanded with instructions to the trial court to enter judgment in favor of BOA

in the amount of $5,603.92.

                               Facts and Procedural History

       {¶2}   BOA filed its complaint on October 7, 2016 seeking to recover $5,603.92

on a credit account issued to Truax.        Attached to the complaint was a credit card

statement with a due date of November 20, 2015 and a balance of $5,603.92. Truax

was served but did not file a responsive pleading.

       {¶3}   On March 16, 2017 BOA filed a motion for default judgment pursuant to

Civ.R. 55.    The same credit card statement that accompanied the complaint was

attached, as well as an affidavit stating that Truax had no military service.

       {¶4}   On March 17, 2017, the trial court issued a journal entry granting the

motion for default judgment in part, with respect to liability on the account, but denying it

in part, with respect to the amount due and unpaid. The trial court cited Farmers &

Merchants State & Sav. Bank v. Raymond G. Barr Enterprises, Inc., 6 Ohio App.3d 43,

452 N.E.2d 521 (4th Dist.1982), for the proposition that “the burden remains with

Plaintiff to prove the amount of damages, notwithstanding the fact that Plaintiff is

entitled to judgment as to liability.” (3/17/17 J.E., p. 1.) The trial court then cited Whittle

v. Davis, 12th Dist. No. CA2012-08-169, 2013-Ohio-1950, ¶ 13, an Ohio Consumer

Sales Practices Act and Ohio Motor Vehicle Sales Rule case, for the proposition that




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the bank’s failure to attach the underlying contract “may not bar default judgment as to

liability on the part of Defendants [sic]; however the contract is necessary as to the

issue of damages, given that [the bank] seeks an award of interest in excess of the

statutory rate.” (Emphasis deleted.) (3/17/17 J.E, p. 2.)

       {¶5}   In fact, the syllabus in Farmers reads, “[i]n an action on an account, the

amount alleged in the complaint to be due and unpaid on a promissory note is not

‘damages,’ as that term is used in Civ.R. 8(D), and is admitted by the failure to file an

answer.” Id. at syllabus, and 44 citing Dallas v. Ferneau, 25 Ohio St. 635, 638, 1874

WL 129 (1874) (amount due on account is not a matter of value or damage); see also

Natl. College Student Loan Tr. 2004-1 v. Irizarry, 7th Dist. No. 14 MA 50, 2015-Ohio-

1798, ¶ 25.   Based on the trial court’s misinterpretation of the law, it granted BOA

fourteen days to supplement the record “with respect to damages claimed,” and noted

that a hearing would be scheduled “depending upon what, if anything, [BOA] offers in

support of its claim for damages.” (3/17/17 J.E, p. 2.)

       {¶6}   On April 6, 2017, BOA filed a pleading captioned, “Submission of

Additional Evidence.” Attached to the submission was a copy of Truax’s credit card

application, which was dated February 11, 2013.

       {¶7}   On April 12, 2017, the trial court issued a second journal entry, which

reads, in pertinent part, “[u]pon due consideration of the unidentified document

submitted by [BOA], the Court finds that said documents lends no weight whatsoever to

[BOA’s] claim. That document appears to be nothing more than an application for

credit. It contains no terms and it certainly is not a contract.” (4/12/17 J.E., p. 1.) As a

consequence, the trial court set a hearing on damages for May 3, 2017.




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       {¶8}   Counsel for BOA sent by U.S. Mail a motion to continue the May 3rd

damages hearing to the trial court on May 2, 2017. The motion sought additional time

to collect the documents requested by the trial court and asserted that the May 3, 2017

hearing date placed an unfair burden on the bank. According to BOA’s appellate brief,

the motion for continuance was mailed the same day that counsel for BOA received the

hearing notice, however, this explanation was not provided in the motion.

       {¶9}   Although the motion was transmitted by facsimile to the trial court on May

2, 2017, it was not filed with the trial court until May 8, 2017. In a third journal entry,

dated May 10, 2017, the trial court wrote that the motion was not ruled on prior to the

hearing “but [BOA] failed to appear or otherwise contact the Court to ascertain the

status of the Motion.” (5/10/17 J.E.) The trial court observed that the filing of a motion

to continue one day before a hearing was unreasonable, because it does not afford the

non-moving party a meaningful opportunity to respond.         Finally, the trial court took

umbrage to the characterization of the hearing as an unfair burden on the bank. Citing

the interest of justice, the trial court rescheduled the damages hearing to May 17, 2017,

with the caveat that “[n]o further continuances by [BOA] will be granted and, should

[BOA] again fail to appear, the issue of damages will be dismissed for failure to

prosecute.” (5/10/17 J.E.)

       {¶10} On May 12, 2017, BOA filed a second pleading captioned, “Submission of

Evidence.” Included was the affidavit of a custodian of records at BOA, Marty J. Jarrell,

wherein Jarrell swore that the bank opened a credit account for Truax and that he failed

to make periodic payments. (Jarrell Aff., ¶ 4.) A charge off in the ordinary course of

business occurred on October 31, 2015, and the credit card statement that was




Case No. 17 MO 0011
                                                                                     –5–


previously attached to the complaint and the motion to dismiss was again attached to

the affidavit. (Jarrell Aff., ¶ 5.) In addition, credit card statements with payment dates

spanning October 19, 2014 to November 20, 2015 were included in the pleading.

       {¶11} Counsel for BOA failed to appear at the May 17, 2017 hearing, however,

Truax did appear. There is no indication whether any hearing was held. The trial court

filed a journal entry that same day that reads in its entirety, “[t]his matter came before

the Court on a Motion for Damages. [Truax] appeared and Counsel failed to appear.

Therefore, judgment will be granted for [BOA] in the amount of $0.00 damages.”

(5/17/17 J.E.)

                                        Analysis

       {¶12} BOA advances two “issues presented for review” which, for the purposes

of this appeal, will be construed as assignments of error. The first appears to raise a

due process challenge and the second asserts an error of law. However, BOA argues

in both assignments that the trial court erred as a matter of law when it failed to enter

default judgment in the amount of $5,603.92 based on Truax’s failure to file a

responsive pleading.     The assignments of error will be taken out of order for the

purpose of clarity.

                           ASSIGNMENT OF ERROR NO. 2

       THE       TRIAL   COURT   ERRED      WHEN      IT   FAILED    TO    GRANT

       APPELLANT’S UNOPPOSED MOTION FOR DEFAULT JUDGMENT AS

       TO DAMAGES AFTER APPELLANT FILED ITS AFFIDAVIT OF

       DAMAGES, SIGNED CREDIT CARD APPLICATION, AND CHARGE OFF

       STATEMENT PRIOR TO THE MAY 17, 2017 DAMAGES HEARING.




Case No. 17 MO 0011
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       {¶13} A trial court’s decision to grant or deny a motion for default judgment is

reviewed on appeal for an abuse of discretion. Marafiote v. Estate of Marafiote, 7th

Dist. No. 14 MA 0130, 2016-Ohio-4809, 68 N.E.3d 238, ¶ 22. “Abuse of discretion” has

been defined as an attitude that is unreasonable, arbitrary or unconscionable. AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597, 601 (1990).

       {¶14} In most instances, an abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable or arbitrary.            A

decision is unreasonable if there is no sound reasoning process to support that

decision. Id.

       {¶15} The resolution of the second assignment of error turns on the interaction

of two civil rules. Civ.R. 55, captioned “Default,” reads, in pertinent part:

       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

       therefor; * * * 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.

In other words, the trial court has broad discretion to conduct a hearing prior to the entry

of default judgment.




Case No. 17 MO 0011
                                                                                      –7–


      {¶16} Civ.R. 8(D), captioned, “Effect of Failure to Deny” provides:

      Averments in a pleading to which a responsive pleading is required, other

      than those as to the amount of damage, are admitted when not denied in

      the responsive pleading. Averments in a pleading to which no responsive

      pleading is required or permitted shall be taken as denied or avoided.

      {¶17} For more than a century, the rule in Ohio has been that an amount alleged

in a complaint to be due and unpaid on a promissory note is not a claim for damages,

and is admitted when not denied in a responsive pleading.         Irizarry, ¶ 25.   Hence,

despite the trial court’s repeated pronouncements, no hearing on damages was

required.

      {¶18} The facts in Discover Bank v. Hicks, 4th Dist. No. 06CA55, 2007-Ohio-

4448, are analogous to the facts in this case. Discover Bank filed an action on a credit

account, and attached a recent credit card statement and the terms and conditions of

the credit agreement to its complaint. When no answer was filed, Discover Bank filed a

motion for default judgment. The trial court held a hearing on the motion and concluded

that there was nothing in the record containing Hicks’ signature to indicate that he

authorized the account. Based on this, the trial court entered judgment for Hicks.

      {¶19} The Fourth District provided the following summary of Ohio law:

      When an action is brought on an account, the allegation of the amount

      due is not “an allegation of value or damage, but is a specific allegation on

      the amount due on the account * * * and must be controverted by answer.”

      Farmers & Merchants State and Savings Bank v. Raymond G. Barr Ent.,

      Inc. (1982), 6 Ohio App.3d 43, 44, 452 N.E.2d 521. Applying this rule to




Case No. 17 MO 0011
                                                                                    –8–


       the case sub judice, the Appellee failed to deny that he owed $4,317.58

       on his Discover credit card account, either by answer or appearance.

       Because a responsive pleading is required in a case of this nature, and

       the Appellant’s allegation of the amount due by the Appellee is not an

       allegation of damage under Civ.R. 8(D), the averments set forth in the

       Appellant’s complaint are admitted. Thus, the Appellant admitted that he

       owes $4,317.58 to Discover Bank.

Id. ¶ 7.

       {¶20} Hence, the trial court in Hicks based its judgment on its determination that

the record lacked evidence, but Hicks had admitted by operation of law that he owed

Discover Bank $4,317.58 pursuant to Civ.R. 8. The Fourth District held that the trial

court abused its discretion when it denied Discover Bank’s motion for a default

judgment. Id. at ¶ 9. The same rationale applies here.

       {¶21} In this case, the trial court committed an error of law when it found that a

hearing on damages was required. BOA was entitled to judgment in the amount alleged

in the complaint. Compounding this error, it appears that the trial court awarded zero

damages to BOA as a sanction for the behavior of BOA’s counsel. While the trial court

did not dismiss BOA’s case for want of prosecution, it achieved the same result by

granting judgment in favor of BOA for zero dollars.

       {¶22} Although we review Civ.R. 41 dismissals for an abuse of discretion,

dismissals with prejudice are subject to heightened scrutiny. Quonset Hut, Inc. v. Ford

Motor Co., 80 Ohio St.3d 46, 47-48, 684 N.E.2d 319 (1997). The Supreme Court of

Ohio elaborated:




Case No. 17 MO 0011
                                                                                        –9–


       [T]he extremely harsh sanction of dismissal should be reserved for cases

       when an attorney's conduct falls substantially below what is reasonable

       under the circumstances evidencing a complete disregard for the judicial

       system or the rights of the opposing party. In other words, dismissal is

       reserved for those cases in which the conduct of a party is so negligent,

       irresponsible, contumacious, or dilatory as to provide substantial grounds

       for a dismissal with prejudice for a failure to prosecute or obey a court

       order. Absent such extreme circumstances, a court should first consider

       lesser sanctions before dismissing a case with prejudice.            (Internal

       citations omitted.)

Sazima v. Chalko, 86 Ohio St.3d 151, 158, 712 N.E.2d 729 (1999). Proper factors for

consideration in a Civ.R. 41(B)(1) dismissal with prejudice include the drawn-out history

of the litigation and other evidence that a plaintiff is deliberately proceeding in dilatory

fashion or has done so in a previously filed, and voluntarily dismissed, action. Jones v.

Hartranft, 78 Ohio St.3d 368, 372, 678 N.E.2d 530 (1997).

       {¶23} Counsel’s failure to appear in this case, though careless and perhaps

disrespectful, falls far short of the level of conduct required for the harsh sanction of

dismissal, or the functional equivalent here, a zero-dollar judgment. This record clearly

reflects that the judgment sought in its complaint should have been awarded to BOA.

Accordingly, we find that BOA’s second assignment of error has merit and is sustained.

The trial court abused its discretion in granting judgment in favor of BOA and against

Truax for zero dollars.

                             ASSIGNMENT OF ERROR NO. 1




Case No. 17 MO 0011
                                                                                    – 10 –


       THE TRIAL COURT ABUSED ITS DISCRETION WHEN GRANTING

       JUDGMENT IN FAVOR OF APPELLANT IN THE AMOUNT OF ZERO

       DOLLARS WHEN IT STATED IN ITS DOCKET AND JOURNAL ENTRY

       DATED MAY 10, 2017 THAT IT WOULD DISMISS THE ISSUE OF

       DAMAGES FOR FAILURE TO PROSECUTE IF APPELLANT FAILED TO

       APPEAR FOR THE DAMAGES HEARING ON MAY 17, 2017.

       {¶24} Because the trial court abused its discretion when it entered default

judgment in favor of BOA for zero dollars, the first assignment of error is moot.

                                       Conclusion

       {¶25} For the foregoing reasons, the judgment of the trial court is reversed and

this matter is remanded with instructions to the trial court to enter judgment in favor of

BOA and against Truax in the amount of $5,603.92.


Robb, P.J., concurs.

Bartlett, J., concurs.




Case No. 17 MO 0011
[Cite as Bank of America, N.A. v. Truax, 2018-Ohio-3101.]




        For the reasons stated in the Opinion rendered herein, Appellant’s first

assignment of error is sustained and its second assignment is moot. It is the final

judgment and order of this Court that the judgment of the County Court of Monroe

County, Ohio, is reversed. We hereby remand this matter with instructions to the trial

court to enter judgment in favor of Bank of America and against Truax in the amount of

$5,603.92 according to law and consistent with this Court’s Opinion. Costs to be taxed

against the Appellee.

        A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.



JUDGE CHERYL L. WAITE


JUDGE CAROL ANN ROBB


JUDGE KATHLEEN BARTLETT




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
