[Cite as Sylvester v. Keister, 2011-Ohio-778.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                         JUDGES:
ANTHONY SYLVESTER, ET AL                         :       Hon. Julie A. Edwards, P.J.
                                                 :       Hon. W. Scott Gwin, J.
                       Plaintiffs-Appellees      :       Hon. William B. Hoffman, J.
                                                 :
-vs-                                             :
                                                 :       Case No. 2010-CA-00078
AARON M. KEISTER                                 :
                                                 :
                     Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                             Civil appeal from the Stark County Court of
                                                     Common Pleas Court, Case
                                                     No.2009CV04855


JUDGMENT:                                            Affirmed




DATE OF JUDGMENT ENTRY:                              February 14, 2011




APPEARANCES:

For Plaintiffs-Appellees                             For Defendants-Appellants

DOUGLAS C. BOND                                      ADAM E. CARR
MORELLO & BOND                                       The Carr Law Office, LLC
700 Courtyard Centre                                 5824 Akron-Cleveland Rd., Ste. A
116 Cleveland Ave., N.W.                             Hudson, OH 44236
Canton, OH 44702
[Cite as Sylvester v. Keister, 2011-Ohio-778.]


Gwin, J.

        {¶1}     Defendant Aaron M. Keister appeals a default judgment of the Court of

Common Pleas of Stark County, Ohio, and the subsequent judgment awarding

damages to plaintiffs-appellees Anthony and Heather Sylvester. Appellant assigns four

errors to the trial court:

        {¶2}     “I. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT

WITHOUT THE HEARING REQUIRED BY CIV. R. 55 (A).

        {¶3}     “II. THE TRIAL COURT ERRED IN FAILING TO SET ASIDE ITS OWN

VOID DEFAULT JUDGMENT.

        {¶4}     “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

GRANT RELIEF FROM THE JUDGMENT.

        {¶5}     “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

EXCESSIVE DAMAGES.”

        {¶6}     The record indicates the case arose out of an automobile accident on

December 21, 2007. Appellees allege appellant drove his vehicle negligently, striking

the vehicle driven by appellee Anthony Sylvester with his wife, appellee Heather

Sylvester as a passenger. Attorney Douglas Bond became appellees’ counsel after

their original counsel withdrew from the case. Bond worked unsuccessfully with the

insurance adjuster for appellant’s insurance company to settle the case. Appellees filed

their complaint on December 18, 2009, and appellant was served on January 2, 2010.

        {¶7}     Sometime in late January or early February of 2010, Attorney Bond spoke

with the insurance adjuster, who offered a settlement of $10,000.00 for appellee
Stark County, Case No. 2010-CA-00078                                                     3


Heather Sylvester’s claim only. On February 3, 2010, Attorney Bond faxed a letter to

the insurance adjuster rejecting the offer. He included a courtesy copy of the complaint.

      {¶8}   On two occasions appellant personally called Attorney Bond’s office and

left messages. On the second occasion, he asked Attorney Bond if he needed an

attorney. On February 15 and 17, Attorney David Sims’ office called and left messages

referencing the case.     The messages did not indicate that Attorney Sims was

representing appellant.

      {¶9}   Appellees filed their motion for default judgment on February 16, 2010,

and the court sustained the motion the same day. The court scheduled a hearing on

damages for March 5, 2010.

      {¶10} On March 4, 2010, appellant filed a motion pursuant to Civ. R. 6 (B),

asking the court to vacate its default judgment because the motion for default judgment

stated appellant had not appeared in the action. Appellant alleged his failure to file a

timely answer was the result of excusable neglect.        Appellant also filed a motion

pursuant to Civ. R. 11, asking the court to strike appellees’ motion for default judgment

as sham, because, appellant alleged, the motion deliberately misled the court into

believing he had not appeared in the case in spite of his failure to answer the complaint.

      {¶11} The trial court conducted a hearing on the motions.            Attorney Bond

appeared pursuant to a subpoena duces tecum and testified regarding his contacts with

the insurance company, appellant, and Attorney Simms’ office.          Appellant did not

present any evidence except that he cross-examined Attorney Bond.

      {¶12} The trial court overruled the motion to set aside the default judgment, and

awarded damages to appellees.
Stark County, Case No. 2010-CA-00078                                                      4


                                                I.

       {¶13} In his first assignment of error, appellant argues he was entitled to notice

at least seven days before the hearing on the motion for default.

       {¶14} Civ. R. 55 (A) provides in pertinent part:

       {¶15} “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 the party

against whom judgment by default is sought has appeared in the action, he*** shall be

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

hearing on such application. ***”

       {¶16} The law disfavors default judgments. Suki v. Blume (1983), 9 Ohio App.

3d 289, 459 N.E. 2d 1311. Cases should be decided on their merits whenever possible.

National Mutual Insurance Company v. Papenhagen (1987), 30 Ohio St. 3d 14, 15, 505

N.E. 2d 980.

       {¶17} Courts have frequently addressed the issue of when a party has made an

appearance sufficient to trigger the requirement of notice before a default judgment is

entered. In AMCA International Corporation v. Carlton (1984), 10 Ohio St. 3d 88, 461

N.E. 2d 1282, the Ohio Supreme Court found a party who filed a notice of appeal from

an order of the Industrial Commission, and later conducted a telephone conversation

with opposing counsel with regard to a default judgment motion, has made opposing

counsel sufficiently aware the party intended to defend the action. The Ohio Supreme

Court found under these conditions, the party had made an “appearance” and was

entitled to the seven day notice. The Supreme Court recognized Civ. R. 55’s notice
Stark County, Case No. 2010-CA-00078                                                     5


requirement is intended to protect parties who failed to appear in a formal sense by

timely filing a pleading, but have otherwise indicated to the opposing party a clear

purpose to defend the suit. AMCA, supra, at 91.

      {¶18} In Kebler v Prudential Property & Casualty Insurance Company,

Muskingum App. No. CT2002-0036, 2003-Ohio-2145, an estate had notice the

opposing party was represented by counsel. The estate did not notify the court of this

when it filed for default judgment. This court ruled the default judgment was premature

and invalid

      {¶19} A defendant who appears at a case management conference pro se has

entered an appearance even though he has not filed an answer. Mattress Distributors,

Inc. v. Cook, Cuyahoga App. No. 81794, 2003-Ohio-1361. Courts have found even

where a defendant’s filing is subsequent to the plaintiff’s motion for default but prior to

the court’s ruling on it, the defendant has made an appearance. See Hartmann v. Ohio

Crime Victims Reparations Fund (2000), 138 Ohio App. 3d 235, 741 N.E. 2d 149;

Lexus-Nexus Division of Reed Elsevier, Inc. v. Robert Binns Association, Inc.

(December 1, 1998), Franklin App. No. 98 AP-228.

      {¶20} By contrast, where a corporate officer telephoned the employee’s

attorney, this did not constitute appearance on behalf of the employee, because the call

was merely to inform the employee’s attorney the corporation’s counsel was unavailable

for a court appearance.    Alliance Group, Inc. v. Rosenfield (1996), 115 Ohio App. 3d

380, 685 N.E. 2d 570. Likewise, a phone call made to the county prosecutor’s office

two years after an in rem foreclosure action was filed, and one month after the sheriff’s

sale of the property, did not demonstrate a clear intention to defend the foreclosure
Stark County, Case No. 2010-CA-00078                                                     6

action or to redeem the property. Hall v. Trapper John’s Canoe Livery, Inc. (1996), 15

Ohio App. 3d 162, 684 N.E. 2d 1277.

       {¶21} The record in this case demonstrates appellant personally called Attorney

Bond on two occasions, the second time leaving a message to ask if he needed a

lawyer. Neither of these messages demonstrates a clear intent to defend the lawsuit.

Likewise, the contact between the insurance adjuster and counsel, while constituting

efforts to settle the case, did not demonstrate a clear intent to defend, particularly when

the adjuster received a courtesy copy of the complaint but apparently did nothing in

response. Finally, the messages from Attorney David Sims’ office referenced the case

but did not indicate Sims or appellant had a specific intent to defend.

       {¶22} We find the trial court did not err in finding appellant failed to show his

failure to answer was caused by excusable neglect, and therefore, he was not entitled

to notice in the hearing required in Civ. R. 55 (A).

       {¶23} The first assignment of error is overruled.

                                                  II.

       {¶24} In his second assignment of error appellant argues the trial court should

have set aside the default judgment because it was void. Based upon our findings in I,

supra, we find the default judgment was not void.

       {¶25} The second assignment of error is overruled.

                                                 III.

       {¶26} In his third assignment of error, appellant argues the trial court abused its

discretion in failing to grant relief from judgment.

       {¶27} Civ. R. 6 (B) states:
Stark County, Case No. 2010-CA-00078                                                    7


      {¶28} “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 (1) with or without motion or notice order

the period enlarged if request therefore is made before the expiration of the period

originally prescribed or as extended by a previous order, or (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; but it may not extend the time for taking any action

under Rule 50(B), Rule 59(B), Rule 59(D), and Rule 60(B), except to the extent and

under the conditions stated in them.”

      {¶29} Appellant cites us to Civ. R. 60 (B). Actually, appellant’s motion was made

pursuant to Civ. R. 6 (B). Civ. R. 60(B) also permits a court to grant relief from a final

judgment for various reasons, including excusable neglect. Appellant’s motion pursuant

to Civ. R. 6 was the appropriate one, because a default judgment without an award of

damages was not a final order, and a motion based upon Civ. R. 60 (B) would have

been premature.

      {¶30} The Rules specifically state a motion made pursuant to Civ. R. 6 is

directed to the trial court’s discretion. This court cannot reverse a trial court’s

determination on a motion made pursuant to Civ. R. 6 (B), unless we find the trial court

abused its discretion. The Supreme Court has repeatedly defined the term abuse of

discretion as demonstrating the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219,

450 N.E. 2d 1170.
Stark County, Case No. 2010-CA-00078                                                      8


      {¶31} Based upon our reasoning in I, supra, we find the trial court did not abuse

its discretion in determining there was no excusable neglect or fraud on the part of

appellees when they filed for default judgment representing appellant had not

appeared in the case.

      {¶32} The third assignment of error is overruled.

                                              IV

      {¶33} In his fourth assignment of error appellant asserts the court’s damage

award was excessive. Appellee Anthony Sylvester received $25,000; his medical bills

were approximately $365 and lost income was at least $8,000. Heather Sylvester

received $95,700; her medical bills were $10,720. Both appellees also had claims for

lost consortium. The court found that although Anthony Sylvester’s injuries, pain, and

suffering had resolved by the time of the damage hearing, Heather Sylvester had

continuing severe pain and disability.

      {¶34} The assessment of damages is within the province of the trier of fact, and

a reviewing court may not reverse the trier of fact's assessment absent an affirmative

finding of passion and prejudice or a finding that the award is manifestly excessive.

See Moskovitz v. Mt. Sinai Medical. Center (1994), 69 Ohio St.3d 638, 655, 635 N.E.2d

331, citing Toledo, Columbus & Ohio River RR. Co. v. Miller (1923), 108 Ohio St. 388,

402-03, 140 N.E. 617.

      {¶35} We have reviewed the record and find the court’s findings are supported

by the record. We conclude the trial court did not err in calculating the damage award.

      {¶36} The fourth assignment of error is overruled.
Stark County, Case No. 2010-CA-00078                                             9


      {¶37} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, J.,

Edwards, P.J., and

Hoffman, J., concur


                                          _________________________________
                                          HON. W. SCOTT GWIN

                                          _________________________________
                                          HON. JULIE A. EDWARDS

                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN
WSG:clw 0208
[Cite as Sylvester v. Keister, 2011-Ohio-778.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


ANTHONY SYLVESTER, ET AL                          :
                                                  :
                           Plaintiffs-Appellees   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
AARON M. KEISTER                                  :
                                                  :
                                                  :
                         Defendant-Appellant      :       CASE NO. 2010-CA-00078




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

 judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to

 appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS

                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN
