[Cite as Katz v. Grossman, 2019-Ohio-2582.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Larry Katz,                                     :

                Plaintiff-Appellant,            :
                                                                    No. 18AP-503
v.                                              :                (C.P.C. No. 15CV-2614)

Andrew S. Grossman, et al.,                     :            (REGULAR CALENDAR)

                Defendants-Appellees.           :



                                          D E C I S I O N

                                     Rendered on June 27, 2019


                On brief: Golden & Meizlish, Co., LPA, and Keith Golden, for
                appellant. Argued: Adam H. Karl.

                On brief: Reminger Co., LPA, and Matthew L. Schrader, for
                appellees. Argued: Matthew L. Schrader.

                 APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

        {¶ 1} Plaintiff-appellant, Larry Katz, appeals from a judgment by the Franklin

County Common Pleas Court denying his motion for leave to respond to appellees'

counterclaim, granting appellees' motion for default judgment on the counterclaim, and

overruling his objections to a magistrate's decision awarding damages on the counterclaim.

I. FACTS AND PROCEDURAL HISTORY

        {¶ 2} Appellant filed, pro se, a legal malpractice claim against appellees related to

appellees' representation of appellant in a divorce case and two related appeals.
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No. 18AP-503
       {¶ 3} On April 27, 2015, appellees filed an answer to the complaint. They also filed

a counterclaim for unpaid legal fees related to that representation. Appellant did not file an

answer to the counterclaim within the time period prescribed by rule.

       {¶ 4} On July 10, 2015, appellees filed a motion for default judgment on their

counterclaim. They also filed contemporaneously a motion for summary judgment on

appellant's claims against them.

       {¶ 5} On July 27, 2015, appellant filed a "Motion to File out of Rule" and

represented that it was "a response to the Defendant." To support his motion, appellant

stated that there were genuine issues of material fact to overcome the motion for summary

judgment. Appellant did not specifically mention the motion for default judgment.

       {¶ 6} On July 27, 2015, appellant filed a "Memorandum Contra [Appellees']

Motion for Judgment." In that filing, appellant argued that he has valid defenses to

appellees' counterclaim for attorney fees. He requested that the court overrule appellees'

motion for summary judgment.

       {¶ 7} On July 27, 2015, appellant filed "Motion for Extension of Time within which

to Move or Plead." Despite its title, the motion's substance was focused on responses to

appellees' discovery requests.

       {¶ 8} On August 3, 2015, appellees requested an extension of time to file reply

briefs in support of their motions. In their request for an extension of time, appellees

represented that appellant's July 27, 2015 memorandum contra "seemingly relates to the

Motion for Default Judgment."

       {¶ 9} On October 9, 2015, the trial court granted appellant's July 27, 2015 motion

to file out of rule, and instructed appellant that he had 14 additional days from the date of
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No. 18AP-503
the order to respond to the motion for summary judgment. The court did not mention

appellees' motion for default judgment in its entry.

        {¶ 10} On October 22, 2015, appellant retained counsel. Appellant's counsel filed a

motion for leave to reply to the counterclaim, instanter, and included a copy of the proposed

answer with the motion. This is the motion at issue in this appeal. The trial court denied

this motion on December 15, 2017.

        {¶ 11} When appellant retained counsel, he voluntarily dismissed his claims.

Nonetheless, appellees' counterclaims for legal fees remained pending.

        {¶ 12} On October 22, 2015, the trial court inadvertently terminated the entire case

based on appellant's voluntary dismissal of his claims.

        {¶ 13} In January 2016, both parties filed witness disclosures. Additional witness

disclosures were filed in April 2016.

        {¶ 14} On February 3, 2016, the trial court issued a notice stating that the motion

for default judgment would come before the court for a non-oral hearing on February 10,

2016.

        {¶ 15} The next day, on February 4, 2016, the trial court reinstated the case, noting

that it had been inadvertently terminated.

        {¶ 16} On October 20, 2016, appellant refiled his malpractice case. See Franklin C.P.

No. 16CV-9960. The two cases were consolidated.

        {¶ 17} The docket reflects that the parties continued to engage in discovery

throughout 2016 and into 2017.

        {¶ 18} On December 15, 2017, the trial court granted appellees' July 10, 2015 motion

for default judgment. The court denied appellant's October 22, 2015 motion for leave to
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No. 18AP-503
plead to appellees' counterclaim for legal fees. The trial court referred the matter to a

magistrate for a damages hearing on appellees' counterclaim for legal fees.

       {¶ 19} Appellant's legal malpractice claims were not part of the court's judgment.

On December 20, 2017, appellees moved to amend their answer to appellant's legal

malpractice claims to assert a claim for res judicata in light of the court’s decision granting

their motion for default judgment on their counterclaim for legal fees. Appellant opposed

this motion. The trial court granted the motion on January 22, 2018.

       {¶ 20} On February 16, 2018, appellees filed a motion for summary judgment on

appellant's legal malpractice claims based upon res judicata and the court's decision to

grant default judgment on their counterclaim for legal fees.

       {¶ 21} On March 8, 2018, the magistrate held a damages hearing on appellees' claim

for unpaid legal fees. Appellee, Andrew S. Grossman, testified at the hearing about his work

on appellant's divorce case and the fees still owed to appellees to represent appellant in that

action. Following the hearing, the magistrate awarded appellees all of their requested

damages, $14,180.06. Appellant filed objections to the decision.

       {¶ 22} On May 25, 2018, the trial court overruled appellant's objections, adopted the

magistrate's decision, and terminated the case. The consolidated case, Franklin C.P. No.

16CV-9960, representing appellant's claim for legal malpractice, is stayed pending

resolution of this matter.

       {¶ 23} Appellant has appealed the trial court's decision denying his motion for leave

to plead to appellees' counterclaim and its decision overruling his objections to the

magistrate's decision.

II. ASSIGNMENTS OF ERROR

       {¶ 24} Appellant presents the following two assignments of error:
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No. 18AP-503
              I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
              DENIED PLAINTIFF-APPELLANT'S MOTION FOR LEAVE
              TO FILE REPLY TO COUNTERCLAIM, INSTANTER, FILED
              OCTOBER 22, 2015 AND AS A RESULT SIMULTANEOUSLY
              GRANTED DEFENDANTS-APPELLEES' MOTION FOR
              DEFAULT JUDGMENT.

              II. THE TRIAL COURT ABUSED ITS DISCRETION AND
              COMMITTED PLAIN ERROR WHEN IT OVERRULED
              PLAINTIFF-APPELLANT'S   OBJECTIONS    TO    [THE]
              MAGISTRATE'S DECISION FILED MARCH 16, 2018.

III. STANDARD OF REVIEW

       {¶ 25} A trial court's denial of a motion for leave to file is reviewed for an abuse of

discretion. SER Lindenschmidt v. Bd. of Commrs., 72 Ohio St.3d 464 (1995). A trial court's

decision to overrule objections to a magistrate's decision is also reviewed for an abuse of

discretion. Pappas v. FM2, LLC, 10th Dist. No. 17AP-258, 2017-Ohio-8548, ¶ 31. Finally, a

decision to grant a motion for default judgment is reviewed for an abuse of discretion.

O'Brien v. Jirles-Clark, 10th Dist. No. 15AP-34, 2015-Ohio-3365, ¶ 6. Despite this

deferential standard, the law disfavors default judgments. The general policy in Ohio is to

decide cases on their merits. See AMCA Internl. Corp. v. Carlton, 10 Ohio St.3d 88 (1984).

       {¶ 26} "The term 'abuse of discretion' connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable." SER Lindenschmidt at 465, citing Rock v. Cabral, 67 Ohio St.3d 108, 112

(1993). As the Supreme Court of Ohio recognizes:

              [M]ost instances of 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 that would support that
              decision. It is not enough that the reviewing court, were it
              deciding the issue de novo, would not have found that
              reasoning process to be persuasive, perhaps in view of
              countervailing reasoning processes that would support a
              contrary result.
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No. 18AP-503
AAAA Ents., Inc. v. River Place Community. Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, (1990).

IV. LEGAL ANALYSIS

   A. The trial court did not abuse its discretion when it denied appellant's
      motion for leave and ultimately granted the motion for default
      judgment.

       {¶ 27} Civ.R. 6(B) governs motions for an extension of time. It states:

              When by these rules or by a notice given thereunder or by order
              of court 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 * * *.

Thus, the proper standard by which a trial court analyzes such a motion for leave to plead

out of rule is that of excusable neglect. Marion Prod. Credit Assn v. Cochran, 40 Ohio St.3d

265, 271 (1998), citing Miller v. Lint, 62 Ohio St.2d 209, 214 (1980). Regarding "excusable

neglect," the Supreme Court has explained:

              The determination of whether neglect is excusable or
              inexcusable must take into consideration all the surrounding
              facts and circumstances, and courts must be mindful of the
              admonition that cases should be decided on their merits, where
              possible, rather than procedural grounds. Although excusable
              neglect cannot be defined in the abstract, the test for excusable
              neglect under Civ.R. 6(B)(2) is less stringent than that applied
              under Civ.R. 60(B).

(internal citations omitted.); SER Lindenschmidt at 466 see also Marion Prod. at 271. But

" 'the term " 'excusable neglect' is an elusive concept which has been difficult to define and

to apply." Gamble v. Hartshorn, LLC v. Lee, 10th Dist. No. 17AP-35, 2018-Ohio-980, ¶ 21

(analyzing "excusable neglect" in the context of a Civ.R. 60(B) motion), quoting Natl. City

Bank v. Calvey, 10th Dist. No. 05AP-1229, 2006-Ohio-3101, ¶ 8.
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No. 18AP-503
       {¶ 28} We and the Supreme Court have recognized that "neglect is inexcusable when

the movant's inaction 'reveals a complete disregard for the judicial system and the rights of

the appellee.' " Id., quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d

146, 153 (1976). We have also held " '[u]nusual or special circumstances can justify neglect,

but if the party could have controlled or guarded against the happening or event [he or] she

later seeks to excuse, the neglect is not excusable.' " Id., quoting Calvey at ¶ 8.

       {¶ 29} The same analysis applies even when a party is proceeding pro se. Neither

lack of counsel nor ignorance of the legal system constitutes "excusable neglect." Gamble

at ¶ 26, citing Dayton Power & Light v. Holdren, 4th Dist. No. 07CA21, 2008-Ohio-5121,

¶ 12. Rather, pro se litigants are presumed to have knowledge of the law and legal

procedures, and they are held to the same standard as litigants who are represented by

counsel. Id.; State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, ¶ 10;

Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654 (10th Dist.2001).

       {¶ 30} Appellees filed their counterclaim for legal fees on April 27, 2015. Appellant

did not move or plead in response to that counterclaim within the time permitted by rule.

Appellant has never suggested, in this case that he himself initiated, that he was not served

with the counterclaim. Appellees then moved for default judgment on their counterclaim

on July 10, 2015. Despite this second notice that there was a counterclaim pending,

appellant still, for months, did not move for leave to respond to the counterclaim. Although

he was proceeding pro se at that point, appellant was not confused about how to file

documents with the court or that he needed to respond to appellees' filings in general. He

filed numerous documents in response to appellees' other filings before he eventually

retained counsel. Although appellant's counsel moved for leave to plead on October 22,

2015, the only justification he gave for appellant's failure to respond timely to the
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No. 18AP-503
counterclaim was appellant's pro se status and unfamiliarity with the civil rules. Appellant

contends that he believed that he was not required to respond to the counterclaim because

his complaint and the subsequent filings made clear that he denied the appellees'

allegations. Appellant's other justifications for why the court should grant his motion for

leave to plead did not address the justification for his failure to respond to the counterclaim,

but rather went to the totality of the circumstances, that default judgment had not yet been

granted, appellant filed a responsive pleading with his motion for leave, appellees would

not be prejudiced by granting leave to respond because the trial date was 15 months away,

and cases should be decided on their merits.

       {¶ 31} The trial court found that appellant failed to show excusable neglect. Despite

his pro se status, the court noted that appellant is held to the same standard as a party

represented by counsel. Even if appellant did not understand that he needed to respond to

the counterclaim, he should have been alerted to that fact when appellees filed their motion

for default judgment. The trial court found that appellant failed to explain this neglect and

failed to explain why he still waited three months after the motion for default was filed to

retain counsel and seek leave to respond. The trial court provided a sufficient explanation

for its discretionary decision, and we can find nothing unreasonable, arbitrary, or

unconscionable in the trial court's denial of leave.

       {¶ 32} Appellant has not otherwise argued that the trial court failed to satisfy a

requirement to grant default judgment. See Civ.R. 55(A). Rather, he argues only that the

court's decision to grant default judgment should be reversed because the court abused its

discretion in failing to grant him leave to respond to appellees' counterclaim. Because we

find that the trial court did not abuse its discretion in denying the motion for leave, we
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No. 18AP-503
overrule appellant's first assignment of error and affirm the trial court's decision to deny

appellant's motion for leave and grant default judgment to appellees on their counterclaim.

   B. The trial court did not abuse its discretion or commit plain error when
      it overruled appellant's objections to themagistrate'sdecision.

       {¶ 33} Appellant argues that the magistrate acted improperly by presumably

admitting evidence constituting business records without requiring that a proper

foundation be laid for the records. Specifically, appellant identifies three exhibits he alleges

were improperly admitted: the parties' engagement agreement, an itemized account

history, and the most recent billing statement. Appellant argues that appellees failed to

provide testimony that the records were "made at or near the time" of the events, such that

the records should have been excluded. Appellant contends that there is no evidence that

he owes any legal fees to appellees without this impermissible hearsay evidence. The trial

court found that the engagement agreement and final fee statement were already part of

the record because they were attached to the counterclaim, and that Grossman's testimony

regarding his personal knowledge of the exhibits and his familiarity with the billing

practices was sufficient to support admission of the exhibits.

       {¶ 34} Upon review, this court finds that a damages hearing, although prudent, was

unnecessary in this matter. Civ.R. 55 provides that "[i]f, 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 * * *, the court may conduct such hearings or order such references as

it deems necessary and proper." Thus, a Civ.R. 55(A) is permissive, not mandatory, and it

is wholly unnecessary if the damages are able to be easily determined. Am.

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

citing Nationwide Mut. Fire Ins. Co. v. Barrett, 7th Dist. No. 08 MA 130, 2008-Ohio-6588,
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No. 18AP-503
¶ 26. " '[W]hen the complaint and the motion for default judgment clearly set forth the

amount of 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." Id. at ¶ 16, quoting

Barrett at ¶ 26. But if " '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. Plainly, a default

hearing is not required for liquidated damages as such damages " 'can be determined with

exactness from the agreement between the parties or by arithmetical process or by the

application of definite rules of law.' " Faulkner v. Integrated Servs. Network, Inc., 8th Dist.

No. 81877, 2003-Ohio-6474, ¶ 27, quoting Huo Chin Yin v. Amino Prods. Co., 141 Ohio St.

21, 29 (1943); see also Keller & Kehoe, L.L.P. v. Smart Media of Delaware, Inc., 8th Dist.

No. 103607, 2016-Ohio-5409, ¶ 30.

       {¶ 35} Here, the counterclaim averred that appellees were owed $14,180.06 from

appellant for unpaid legal fees. (Counterclaim at ¶ 6-7.) Appellees attached the parties'

engagement agreement to their counterclaim, along with the final account statement that

showed an unpaid balance of $14,180.06. The damages were ascertainable from the

counterclaim, and no hearing was necessary. In any event, Grossman testified based upon

his personal knowledge that the amount owed by appellant was $14,180.06. Although

appellees may have also been proffering his testimony as that of an expert and a records

custodian, it is uncontroverted that Grossman had personal knowledge as the person who

signed the engagement agreement with appellant and one of the attorneys who worked on

appellant's divorce case. The court finds no abuse of discretion in the trial court's

determination regarding the amount of damages owed to appellees on their counterclaim.
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No. 18AP-503
We overrule appellant's second assignment of error, and we affirm the trial court's decision

to overrule appellant's objections to the magistrate's decision and award damages to

appellees in the amount of $14,180.06 on their counterclaim against appellant.

V. CONCLUSION

       {¶ 36} Because the trial court did not abuse its discretion in denying appellant's

October 22, 2015 motion for leave and awarding damages to appellees on their

counterclaim, we overrule appellant's two assignments of error and we affirm the judgment

of the Franklin County Court of Common Pleas.

                                                                      Judgment affirmed.
                          BRUNNER and NELSON, JJ., concur.
