[Cite as Complete Lawn Servs. v. Chimney Hill, L.L.C., 2016-Ohio-997.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




COMPLETE LAWN SERVICES,                                :
                                                                   CASE NO. CA2015-08-149
        Plaintiff-Appellee,                            :
                                                                         OPINION
                                                       :                  3/14/2016
   - vs -
                                                       :

CHIMNEY HILL, LLC, et al.,                             :

        Defendants-Appellants.                         :



                  CIVIL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
                                 Case No. 14CVF02432



James P. Langendorf, 1081 North University Boulevard, Suite A, Middletown, Ohio 45042, for
plaintiff-appellee

Joseph R. Matejkovic, 9078 Union Centre Boulevard, Suite 350, West Chester, Ohio 45069,
for defendants-appellants



        M. POWELL, P.J.

        {¶ 1} Defendants-appellants, Chimney Hill, LLC ("Chimney Hill"), Kensington Ridge

Partners, LLC ("Kensington Ridge"), and Piping Rock Partners, Inc. ("Piping Rock")

(collectively "appellants"), appeal from the Middletown Municipal Court's decision granting

default judgment to plaintiff-appellee, Complete Lawn Services ("CLS"). For the reasons that

follow, we reverse the default judgment granted to CLS and remand the matter to the
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municipal court for further proceedings.

      {¶ 2} CLS provides landscaping and snow removal services to commercial and

residential properties. Chimney Hill and Kensington Ridge own apartment complexes in

Middletown, Ohio. Piping Rock manages both apartment complexes.

      {¶ 3} On November 7, 2014, CLS filed a complaint against appellants in the

municipal court, alleging that it was not paid for services rendered to the Chimney Hill and

Kensington Ridge apartment complexes. Service was perfected upon all appellants on

November 13, 2014.

      {¶ 4} On February 9, 2015, appellants' counsel filed a notice of appearance in the

action, and then filed an answer to CLS's complaint, without seeking leave to file the answer

out of time. On February 11, 2015, a telephone report hearing was scheduled for late March

2015. Also on February 11, 2015, CLS served appellants' counsel with several discovery

requests, including its requests for admission. Appellants failed to respond. Consequently,

on March 18, 2015, CLS moved to have its requests for admission considered admitted. The

next day, appellants served responses to CLS's requests for admission.

      {¶ 5} On March 27, 2015, the telephone report hearing was conducted, and

appellants filed a memorandum in opposition to treating CLS's requests for admission as

admitted. On April 6, 2015, appellants filed a motion for leave to file an amended answer and

a proposed amended answer. The municipal court never ruled on appellants' motion for

leave to file an amended answer.

      {¶ 6} The matter subsequently came before the magistrate for review. On June 4,

2015, the magistrate issued a decision finding as follows: (1) service of CLS's complaint on

appellants was completed on November 13, 2014; (2) there was no docket entry for the

motion for default filed by CLS sometime after that date; (3) no order was issued granting

appellants an extension of time to file an answer; (4) appellants' counsel entered an
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appearance on February 9, 2015, which was "well after the date of default"; (5) the parties

filed numerous pleadings regarding discovery, but no orders had been issued concerning

discovery or trial; (6) it is unknown why CLS did not follow up on its motion for default

judgment. The magistrate noted that "[w]hile it is preferred that a case be decided on its

merits, it is also clear that a disregard of the Rules of Procedure is not to be tolerated." The

magistrate ordered that CLS's motion for default judgment "be entered of record

immediately[,]" and then granted the motion. The municipal court adopted the magistrate's

decision as the judgment of the court at the same time the decision was issued.

       {¶ 7} Five hours after the magistrate's decision was issued, CLS's motion for default

judgment against appellants was filed, and file-stamped with the same date as that of the

magistrate's decision, i.e., June 4, 2015. This motion for default judgment was, apparently,

the one to which the magistrate had referred in its decision as (1) not having a docket entry,

and (2) having been filed by CLS "sometime after" the date on which service of CLS'

complaint was completed. CLS alleged in its motion for default judgment that appellants had

been properly served with its complaint but "none have appeared either in person or through

counsel[,]" and therefore, CLS was entitled to default judgment against appellants in the

amount of $11,249.44, plus interest and court costs.

       {¶ 8} On June 9, 2015, the municipal court issued an order granting CLS's motion for

default judgment and mandating that appellants pay CLS $11,249.44, plus post-judgment

interest and costs. In the late afternoon of June 9, 2015, appellants filed a motion asking the

municipal court to reconsider the magistrate's June 4 decision. On June 18, 2015, appellants

filed (1) a memorandum in opposition to CLS's motion for default judgment filed on June 4,

2015, (2) a motion to vacate the municipal court's June 9 order granting CLS's motion for

default judgment and damages, and (3) objections to the magistrate's June 4 decision.

       {¶ 9} On July 6, 2015, the municipal court overruled appellants' objections and
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adopted the findings of fact and conclusions of law in the magistrate's June 4 decision in their

entirety. The municipal court entered default judgment against appellants in the amount of

$11,259.44, plus interest and costs.

       {¶ 10} On August 5, 2015, appellants filed a notice of appeal from the municipal

court's July 6 judgment. On September 23, 2015, CLS moved pursuant to App.R. 9(E) to

correct the municipal court's record. CLS stated that it did not file its motion for default

judgment against appellants on June 4, 2015, but instead, on December 23, 2014. CLS

noted that the municipal court had "included" a copy of CLS's motion for default judgment

when it granted default judgment to CLS on June 4, 2015. CLS stated that it was a surprise

to it that its motion for default judgment was file-stamped June 4, 2015, which CLS asserted

"was clearly not the correct date." Consequently, CLS asked the municipal court to correct

the record to have it reflect that CLS's default judgment motion was filed on December 23,

2014 rather than June 4, 2015, as the record currently indicated. On October 21, 2015, the

municipal court granted CLS's motion and ordered that the record be corrected to show that

CLS's motion for default judgment was filed on December 23, 2014.

       {¶ 11} Appellants now raise the following assignments of error:

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE      TRIAL      COURT       ERRED       TO      THE      PREJUDICE        OF

DEFENDANTS/APPELLANTS WHEN IT GRANTED DEFAULT JUDGMENT.

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE      TRIAL      COURT       ERRED       TO      THE      PREJUDICE        OF

DEFENDANTS/APPELLANTS WHEN IT ISSUED AN ORDER GRANTING JUDGMENT

INSTEAD OF AN ENTRY GRANTING JUDGMENT.

       {¶ 16} Before addressing appellants' assignments of error, we must first rule on their

objection to CLS's post-judgment motion in the municipal court to correct the record pursuant
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to App.R. 9(E). Appellants assert that CLS could not bring a motion to correct the record

under App.R. 9(E), since the "Rules of Appellate Procedure clearly apply only to appellate

proceedings in the Court of Appeals[.]" We find this argument unpersuasive.

       {¶ 17} App.R. 9(E) states as follows:

              (E) Correction or modification of the record.
              If any difference arises as to whether the record truly discloses
              what occurred in the trial court, the difference shall be submitted
              to and settled by the trial court and the record made to conform
              to the truth. If anything material to either party is omitted from
              the record by error or accident or is misstated, the parties by
              stipulation, or the trial court, either before or after the record is
              transmitted to the court of appeals, or the court of appeals, on
              proper suggestion or of its own initiative, may direct that omission
              or misstatement be corrected, and if necessary that a
              supplemental record be certified, filed, and transmitted. All other
              questions as to the form and content of the record shall be
              presented to the court of appeals.

       {¶ 18} As stated in Leaseway Distrib. Ctrs., Inc. v. Dept. of Adm. Serv., 49 Ohio

App.3d 99, 109 (10th Dist.1988), "App.R. 9(E) allows a trial court, after a record is

transmitted to the court of appeals, to correct or modify its record." The plain language of

App.R. 9(E) shows that the rule applies to trial courts as well as courts of appeals. Lebanon

v. Dennis, 12th Dist. Warren No. CA93-08-063, 1994 WL 160172 (trial court may sua sponte

supplement the record on appeal). Additionally, since App.R. 9(E) permits the trial court to

direct that an omission or misstatement be corrected "either before or after the record is

transmitted to the court of appeals[,]" the rule clearly contemplates that a situation may arise

in which a trial court is asked by one of the parties to correct the record during the pendency

of an appeal. See State v. Wilson, 12th Dist. Butler No. CA87-10-140, 1988 WL 59424

(prosecuting attorney requesting trial court to correct record on appeal). See also State v.

Lowe, 12th Dist. Fayette No. CA89-12-032, 1991 WL 153321. We now turn to appellants'

assignments of error.

       {¶ 19} In their first assignment of error, appellants contend that the municipal court
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erred in granting default judgment to CLS on its complaint. They present several arguments

in support of this assignment of error. We shall address those arguments in an order and

manner that will facilitate our analysis of the issues raised by this assignment of error.

       {¶ 20} In their second and third arguments, appellants contend that the municipal

court erred in granting CLS default judgment, because they were not served with written

notice of CLS's application for default judgment at least seven days prior to the hearing on

such application, as required by Civ.R. 55(A), even though they had "appeared" in the action,

for purposes of that rule. Appellants further contend that not only did they not receive the

seven-day written notice of CLS's application for default judgment as required by Civ.R.

55(A), they were not provided with any notice that the municipal court was considering

awarding default judgment against them at the time that it did. We find these arguments

persuasive.

       {¶ 21} An appellate court reviews a trial court's decision to grant or deny a motion for

default judgment under an abuse-of-discretion standard. Nix v. Robertson, 12th Dist. Butler

No. CA2012-08-157, 2013-Ohio-777, ¶ 9. "An abuse of discretion is more than an error of

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

unconscionable." Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Despite

this deferential standard of review, courts of appeals and trial courts, alike, must be mindful

that "[g]enerally, the law disfavors default judgments" and "[t]he general policy in Ohio is to

decide cases on their merits whenever possible." Baines v. Harwood, 87 Ohio App.3d 345,

347 (12th Dist.1993).

       {¶ 22} Here, the municipal court granted default judgment because appellants failed to

serve their answer to CLS's complaint within 28 days after service of the summons and

complaint upon them, as required by Civ.R. 12(A)(1), and "a disregard of the Rules of

Procedure is not to be tolerated." However, the record shows that the municipal court failed
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to comply with the notice requirements of Civ.R. 55(A) before granting default judgment.

       {¶ 23} Civ.R. 55(A) states, in pertinent part, as follows:

              (A) Entry of judgment
              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 (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.

(Emphasis added.) Here, it is clear that appellants "appeared" in the action, for purposes of

Civ.R. 55(A), and therefore they were entitled to written notice of CLS's application for default

judgment at least seven days prior to the hearing on such application.

       {¶ 24} In AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88, 90 (1984), the Ohio

Supreme Court found that there was "little question" that an employer had made an

"appearance" in the action, for purposes of Civ.R. 55(A), by initiating the cause that was

before the court, namely, the employer's appeal from the Industrial Commission's order

awarding a claimant additional workers' compensation for an aggravation of a pre-existing

condition, and by having a telephone conversation in which the claimant's attorney was made

sufficiently aware of the employer's intention to defend the suit. The court determined that

because the employer had appeared in the action, he was entitled under the "plain language"

of Civ.R. 55(A) to receive notice of the application for default judgment at least seven days

prior to the hearing on the application. Id. The court explained the rationale for its decision

as follows:

              [T]his court's holding today is in keeping with the spirit of Civ.R.
              55(A) in particular and with the Civil Rules in general. A notice
              requirement similar to the one in Civ.R. 55 has been described
              as follows: It is " * * * a device intended to protect those parties
              who, although delaying in a formal sense by failing to file [timely]
              pleadings * * *, have otherwise indicated to the moving party a
              clear purpose to defend the suit." [Footnote omitted.] As
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              discussed above, appellant-employer made clear its purpose to
              defend the suit. The purpose of the notice requirement will be
              emasculated if appellant-employer is not given sufficient time
              (i.e., seven days) to show cause why it should be allowed to file a
              late answer and to show that it had a meritorious defense.

              More generally, the policy underlying the modernization of the
              Civil Rules – i.e., the abandonment or relaxation of restrictive
              rules which prevent hearing of cases on their merits – is central
              to this issue and this court has long been mindful of this policy in
              its construction of the rules.

AMCA Internatl. Corp. at 91.

       {¶ 25} In Baines, 87 Ohio App.3d 345, this court, citing AMCA Internatl. Corp., held

that the appellants made an appearance in the action by having a telephone conversation

with counsel for appellees in which they discussed a possible settlement of appellees' lawsuit

against them. Id. at 346-347. Other courts also have interpreted Civ.R. 55(A)'s phrase

"appeared in the action" liberally or broadly. See, e.g., GMAC Mtge., L.L.C. v. Lee, 10th Dist.

Franklin No. 11AP-796, 2012-Ohio-1157, ¶ 11-12 (despite failure to file an answer,

defendant's actions constituted an appearance where defendant filed a formal request for

mediation and an extension of time to answer the complaint and also participated in the

requested mediation).

       {¶ 26} In Hiener v. Moretti, 11th Dist. Ashtabula No. 2009-A-0001, 2009-Ohio-5060,

the court considered a situation similar to the one presently before us. In Hiener, the

appellant filed a complaint seeking payment of attorney fees. Id. at ¶ 2. When the appellees

failed to file an answer, appellant filed a motion for default judgment under Civ.R. 55. Id.

Appellees then filed a late answer. Id. at ¶ 2-3. The trial court granted appellant's motion for

default judgment without providing notice to appellees. Id. Appellees then filed a Civ.R.

60(B) motion for relief from judgment, arguing they were entitled to relief because, even

though they filed their answer late, their untimeliness was the result of excusable neglect. Id.

at ¶ 3. The trial court granted appellees' motion, concluding relief was appropriate because,
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as a result of their untimely filing of an answer, appellees made an "appearance in the

action," and therefore, pursuant to Civ.R. 55(A), were entitled to notice of a hearing on

appellant's application for default judgment. Id. Appellant then appealed to the Eleventh

District Court of Appeals. Id. at ¶ 4. The Eleventh District affirmed the trial court's decision,

reasoning as follows:

              [A]ppellant is correct that an untimely filing of an answer does not
              act to fulfill a defendant's obligations under Civ.R. 12(A)(1).
              Rather, as appellant points out, an untimely answer may only be
              filed beyond the twenty-eight day period set forth under Civ.R.
              12(A) after submission of a written motion and a finding of
              excusable neglect. See Civ.R. 7(B)(1) and Civ.R. 6(B); see,
              also, Miller v. Lint (1980), 62 Ohio St.2d 209, 214, 404 N.E.2d
              752. However, a trial court's decision granting or denying a party
              leave to file an answer late is a legally different question from
              whether an untimely answer constitutes an "appearance." Kime
              v. Dierksheide (May 24, 1985), 6th Dist. No. WD-85-7, 1985 Ohio
              App. LEXIS 7731, *4. Indeed, the distinction is implicit in the
              language of Civ.R. 55(A): The rule indicates a default judgment
              may be entered when a defendant has failed to plead or defend;
              however, once a defendant has "appeared" (without filing a
              responsive pleading or defending the action), he or she is then
              entitled to notice of at least seven days. While one necessarily
              "appears" via a proper pleading, one does not have to properly
              plead to "appear."

Hiener at ¶ 12.

       {¶ 27} Here, the record shows that appellants' counsel (1) filed a notice of

appearance, an answer, a motion for leave to file an amended answer, and a proposed

amended answer, (2) engaged in discovery with CLS's counsel, and (3) participated in a

telephone report hearing with the municipal court and CLS's counsel, all before the municipal

court rendered default judgment against appellants. We conclude that the record shows that

appellants "appeared" in the action for purposes of Civ.R. 55(A).

       {¶ 28} We further conclude that the record supports appellants' claim that the

municipal court granted default judgment to CLS without providing any notice to appellants

that it was considering CLS's motion. In fact, appellants would have been completely

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unaware of the pendency of CLS's default judgment motion, since the motion was filed prior

to their counsel's appearance in the action, the motion was never served on appellants, and

the motion was not noted in the municipal court's docket until after appellants filed their

notice of appeal. Additionally, while it is true that appellants' answer was untimely and they

never sought leave to file an answer out of time, neither did CLS move to strike the answer.

See Suki v. Blume, 9 Ohio App.3d 289, 290-291 (8th Dist.1983) (where a party files an

answer out of time and without leave, default judgment should not be granted as long as the

answer stands as part of the record).

       {¶ 29} In light of the foregoing, we conclude that appellants appeared in the matter, for

purposes of Civ.R. 55(A), and therefore were entitled under that rule to be served with written

notice of CLS's application for default judgment at least seven days prior to the hearing on

such application. Since appellants never received such notice, the municipal court erred in

granting default judgment against them.

       {¶ 30} In their first argument under this assignment of error, appellants note that

granting default judgment under Civ.R. 55(A) is proper only when a party "has failed to plead

or otherwise defend as provided by these rules[.]" Appellants assert that they "absolutely

pled and defended this action" since their counsel (1) filed a notice of appearance, an

answer, a response to CLS's requests for admission, a motion for leave to file an amended

answer, and a proposed amended answer, (2) participated in a telephone conference with

the municipal court and CLS's counsel, and (3) exchanged more than a dozen

communications with CLS's counsel. Appellants observe that more than four months

elapsed between the time they filed their answer to CLS's complaint and the time default

judgment was granted to CLS. Appellants contend that, in light of the foregoing, the trial

court erred by granting default judgment against them four months after they filed an answer

to CLS's complaint.
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       {¶ 31} While they have not characterized it as such, appellants' argument essentially

amounts to a claim that CLS should be deemed to have "waived" its right to default judgment

by not exercising it in a prompt manner. While there does not appear to be much authority in

this state on this issue, there is a substantial amount of authority outside this state regarding

waiver of the right to default judgment.1

       {¶ 32} Some states do not recognize that a party may waive his or her right to default

judgment. See, e.g., Lewis v. Crowe, 296 Ark. 175, 177-179 (1988) (a trial court abuses its

discretion by refusing to grant a default judgment after the period for an answer has expired

in the absence of excusable neglect, unavoidable casualty, or other just cause). However,

other states have recognized that, in certain instances, a party may be found to have

impliedly waived its right to a default judgment.

       {¶ 33} For example, in Ewing v. Johnston, 175 Ga.App. 760 (1985), the court held that

the "statutory right to judgment following default" is not an "indefeasible right," but instead,

may be asserted or waived by a plaintiff who proceeds with the action without taking

advantage of his or her right to judgment in a timely and proper manner. Id. at 764. The

court noted that "such a waiver need not be expressed, but may be implied in law by conduct

or circumstances inconsistent with the right to judgment." Id. The court listed a number of

acts that have been held by various states to constitute an implied waiver of the right to

default judgment, including (1) allowing the defaulting party to plead, (2) extending the time to

plead, (3) going to trial on the merits, and (4) announcing ready for trial and introducing

evidence on the merits. Id. at 764-65. After finding that "[a]ll of these indicia of waiver [we]re

present" in the case before it, the court determined that the appellant had waived his right to

default judgment. Id. at 765.


1. See Annotation, Waiver of Right to Default Judgment, 64 A.L.R.5th 163 (1998).


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       {¶ 34} Additionally, in Doe v. Legacy Broadcasting of Minnesota, Inc., 504 N.W.2d 527

(Minn.Ct.App.1993), the court reversed the trial court's decision awarding default judgment to

respondent on her complaint against appellant alleging that appellant and several other men

had sexually assaulted her in a hotel room. Id. at 528. In that case, four months passed

between appellant filing an untimely answer to respondent's complaint and respondent filing

a motion for default judgment, during which time the parties' attorneys contacted each other

and participated in mediation, and scheduled depositions of some of the witnesses who

would testify at trial. Id. The court found that "[b]ased on these facts, respondent cannot

now be heard to object to the untimeliness of an answer that she had already accepted as

the prerequisite to proceed to trial[,]" and held "that respondent waived her objections to the

untimeliness of appellant's answer." Id. at 529. The court based its decision to reverse the

default judgment on "(1) the significant amount of time [i.e., four months] between

respondent's receipt of appellant's answer and respondent's motion for default judgment, and

(2) the parties' mediation and trial preparation, which demonstrated that respondent waived

her objection to appellant's late answer." Id.

       {¶ 35} In the case presently before us, the magistrate's decision, which was adopted

by the municipal court in its entirety, mentions that, after appellants' counsel filed his entry of

appearance in the case, "numerous pleadings were filed by both parties regarding

admissions, interrogatories[,] and production of documents[,]" and that "[n]o orders have

been issued concerning discovery or trial." This language indicates that the municipal court

believed that this case had not progressed to a point at which CLS could be viewed as

having waived its right to default judgment. However, the municipal court did not actually rule

on the question of whether CLS should be deemed to have waived its right to default

judgment as a result of its litigating this case for four months, and without moving on its

motion for default judgment, objecting to appellants' untimely answer, or moving to strike
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appellants' untimely answer. Additionally, appellants, who clearly "appeared" in the action,

were not served with written notice of CLS's application for default judgment at least seven

days prior to the hearing on such application as required by Civ.R. 55(A), and therefore

appellants were deprived of a fair opportunity to argue this issue in the municipal court.

        {¶ 36} Consequently, we reverse the default judgment and remand this matter to the

municipal court, with instructions that it consider whether it should deny CLS's motion for

default judgment for the reason that CLS impliedly waived its right to default judgment by: (1)

failing to follow up on its motion for default judgment filed on December 23, 2014; (2) allowing

four months to pass between the time appellants filed their untimely answer and the time the

municipal court awarded CLS default judgment, without raising an objection to appellants'

untimely answer or moving to strike it from the record; and (3) engaging in several months of

discovery with appellants and participating in a telephone report hearing with the municipal

court and appellants. Should the trial court determine that appellee has not waived its right

to default judgment, it shall provide appellants with the notice required by Civ.R. 55(A) before

proceeding with its consideration of the motion for default judgment.

        {¶ 37} Accordingly, appellants' first assignment of error is sustained.2

        {¶ 38} In their second assignment of error, appellants contend that the municipal court

erred to their prejudice by issuing an "order" granting judgment, rather than an "entry"

granting judgment. Appellants' second assignment of error has been rendered moot in view

of our resolution of their first assignment of error, and therefore we need not decide it. See



2. Appellants also raise a fourth argument in support of their first assignment of error in which they contend that
this is not a case where the defendant in the action failed to file any answer or waited until a motion for default
judgment was pending before filing an answer; rather, they filed their answer before CLS raised the issue of a
possible default and before the municipal court granted default judgment against them, sua sponte. However,
this argument is of little or no avail to appellants, since this is a case where the "defendants" in the action (i.e.,
appellants) failed to file their answer until almost two months after it was due and without seeking leave to file an
answer out of time.


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App.R. 12(A)(1)(c).

       {¶ 39} The judgment of the municipal court is reversed, and this cause is remanded

for further proceedings consistent with this opinion.


       RINGLAND and HENDRICKSON, JJ., concur.




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