[Cite as Tarr v. Am. Flooring Transport, Inc., 2013-Ohio-3694.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CLIFFORD TARR, DBA                                 :              JUDGES:
CARPET EXPRESS INC.                                :              Hon. Sheila G. Farmer, P.J.
                                                   :              Hon. John W. Wise, J.
        Plaintiff-Appellee                         :              Hon. Craig R. Baldwin, J.
                                                   :
-vs-                                               :
                                                   :
AMERICAN FLOORING                                  :              Case No. 2013CA00002
TRANSPORT INC., ET AL.                             :
                                                   :
        Defendants-Appellants                      :              OPINION



CHARACTER OF PROCEEDING:                                          Appeal from the Court of Common
                                                                  Pleas, Case No. 2012CV02355


JUDGMENT:                                                         Affirmed/Reversed in Part and
                                                                  Remanded


DATE OF JUDGMENT:                                                 August 26, 2013



APPEARANCES:

For Plaintiff-Appellee                                            For Defendants-Appellants

JEFFREY R. JAKMIDES                                               DOUGLAS C. BOND
325 East Main Street                                              700 Courtyard Centre
Alliance, OH 44601                                                116 Cleveland Avenue, NW
                                                                  Canton, OH 44702

                                                                  DEAN L. GRASE
                                                                  703 Courtyard Centre
                                                                  116 Cleveland Avenue, NW
                                                                  Canton, OH 44702
Stark County, Case No. 2013CA00002                                                     2

Farmer, P.J.

      {¶1}     Appellants, George Morris, Jr. and his corporation, American Flooring

Transport, Inc. (hereinafter "AFT"), were in the business of hauling carpet. Appellee,

Clifford Tarr, dba Carpet Express, Inc., was in the business of selling carpet. In the

spring and summer of 2012, the parties had a business relationship wherein appellants

would haul carpet for appellee. A dispute arose as to the whereabouts of certain rolls of

carpet.

      {¶2}     On July 26, 2012, appellee filed a complaint against appellants, alleging

appellants had stolen the carpet. Appellant Morris filed a pro se answer on September

7, 2012, and attended a pretrial on September 24, 2012.         By judgment entry filed

September 25, 2012, the trial court ordered appellant Morris to secure counsel for the

corporation.

      {¶3}     On October 18, 2012, appellee filed a motion for default judgment against

appellants, claiming appellant Morris failed to secure counsel for the corporation and

failed to defend the action. A hearing was held on November 26, 2012. Appellants did

not appear. By judgment entry filed December 4, 2012, the trial court granted the

motion and entered judgment for appellee as against appellants, jointly and severally, in

the amount of $21,079.53.

      {¶4}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶5}     "THE TRIAL COURT ERRED IN GRANTING A DEFAULT JUDGMENT

AGAINST MORRIS WHERE MORRIS TIMELY FILED A RESPONSIVE ANSWER TO
Stark County, Case No. 2013CA00002                                                      3


THE COMPLAINT WHICH WAS NOT STRICKEN AND FURTHER APPEARED AT

THE SEPTEMBER 24 PRETRIAL."

                                            II

      {¶6}   "THE TRIAL COURT ERRED BY ENTERING A DEFAULT JUDGMENT

AGAINST MORRIS WHERE MORRIS APPEARED IN HIS INDIVIDUAL CAPACITY AT

THE SEPTEMBER 24, 2012 PRE-TRIAL BUT WAS NOT SERVED WITH NOTICE OF

THE APPLICATION FOR DEFAULT JUDGMENT AS REQUIRED BY CIVIL RULE

55(A)."

                                            III

      {¶7}   "THE TRIAL COURT ERRED BY ENTERING A DEFAULT JUDGMENT

AGAINST CORPORATE DEFENDANT AFT WHERE AFT APPEARED AT THE

SEPTEMBER 24, 2012 PRE-TRIAL, BUT WAS NOT SERVED WITH NOTICE OF THE

APPLICATION FOR DEFAULT JUDGMENT AS REQUIRED BY CIVIL RULE 55(A)."

                                           I, II

      {¶8}   Appellant Morris claims the trial court erred in entering a default judgment

against him. We agree.

      {¶9}   Civ.R. 55 governs default. Subsection (A) states the following:



             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; but no judgment by default shall be entered against a

      minor or an incompetent person unless represented in the action by a
Stark County, Case No. 2013CA00002                                                     4


      guardian or other such representative who has appeared therein. If the

      party against whom judgment by default is sought has appeared in the

      action, he (or, if appearing by representative, his representative) shall be

      served with written notice of the application for judgment at least seven

      days prior to the hearing on such application. 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.



      {¶10} Appellant Morris filed a pro se answer to the complaint on September 7,

2012, and attended a pretrial on September 24, 2012. Clearly he "appeared in the

action" for purposes of Civ.R. 55. Pursuant to said rule, appellant was to be "served

with written notice of the application for judgment at least seven days prior to the

hearing on such application." The motion for default judgment filed on October 18, 2012

contains a request for service, asking the clerk of courts to serve appellants, but does

not contain a proof of service. By judgment entry filed October 19, 2012, a hearing on

the motion was set for November 26, 2012. Appellants failed to appear.

      {¶11} There is no evidence in the record to establish that appellants received a

written notice of the application for judgment or the hearing notice. The docket entry
Stark County, Case No. 2013CA00002                                                    5


regarding the motion for default judgment erroneously states it was filed "with proof of

service."

       {¶12} Upon review, we find the provisions of Civ.R. 55 have not been met. The

December 4, 2012 default judgment is vacated as against appellant Morris.

       {¶13} Assignments of Error I and II are granted.

                                           III

       {¶14} Appellant AFT claims the trial court erred in entering a default judgment

against it. We disagree.

       {¶15} As stated above, appellant Morris filed a pro se answer on September 7,

2012. The answer was signed in his individual capacity. Following the pretrial on

September 24, 2012, the trial court filed a judgment entry on September 25, 2012,

stating the following:



              This matter came before the Court for a pretrial conference on

       September 24, 2012. Defendant, representing themselves, did appear;

       before the pretrial commenced, it was determined that Mr. Morris attended

       the pretrial on behalf of himself and American Flooring Transport, Inc.

       Under Ohio law, however, a corporation can maintain litigation or appear

       in court only through an attorney admitted to the practice of law and may

       not do so through an officer of the corporation or some other appointed

       agent. (Citation omitted.)

              Accordingly, the Court orders Defendant to retain counsel duly

       licensed to practice law in the State of Ohio and have that counsel
Stark County, Case No. 2013CA00002                                                       6


      enter an appearance in this case on or before October 5, 2012.

      Failure to do so may result in the Court granting default judgment against

      Defendant, American Flooring Transport, Inc., and in favor of Plaintiff on

      its Complaint.



      {¶16} Appellant AFT did not retain counsel, enter an appearance, or file an

answer to the complaint by October 5, 2012. As a result, appellee filed a motion for

default judgment almost two weeks later, on October 18, 2012, which the trial court

granted on December 4, 2012.

      {¶17} Upon review, we find appellant AFT failed to defend the action per the trial

court's order and therefore default judgment was appropriate as against appellant AFT.

      {¶18} Assignment of Error III is denied.
Stark County, Case No. 2013CA00002                                                7


      {¶19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                                _______________________________
                                                Hon. Sheila G. Farmer



                                                _______________________________
                                                Hon. John W. Wise



                                                _______________________________
                                                Hon. Craig R. Baldwin


SGF/sg 731
[Cite as Tarr v. Am. Flooring Transport, Inc., 2013-Ohio-3694.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



CLIFFORD TARR, DBA                                     :
CARPET EXPRESS INC.                                    :
                                                       :
        Plaintiff-Appellee                             :
                                                       :
-vs-                                                   :          JUDGMENT ENTRY
                                                       :
AMERICAN FLOORING                                      :
TRANSPORT INC., ET AL.                                 :
                                                       :
        Defendants-Appellants                          :          CASE NO. 2013CA00002




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part and

reversed in part.         The matter is remanded to said court for further proceedings

consistent with this opinion. Costs to appellee.




                                                       _______________________________
                                                       Hon. Sheila G. Farmer



                                                       _______________________________
                                                       Hon. John W. Wise



                                                       _______________________________
                                                       Hon. Craig R. Baldwin
