COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68238 ED PIERSON, d.b.a. CHOICE : LANDSCAPING : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION NEIL JOHNSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING Civil appeal from Parma Municipal Court Case No. 94-CVF-0090 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JULIA RYAN SULLIVAN, ESQ. THOMAS E. GIFFELS, ESQ. 5638 Ridge Road Flanagan, Blackie & Giffels Parma, Ohio 44129 Co., L.P.A. 55 Public Square, Suite 1331 Cleveland, Ohio 44113-1901 - 2 - JAMES M. PORTER, J., Defendant-appellant Neil Johnson appeals from a default judgment of $1,369.45 entered against him in favor of plaintiff- appellee Ed Pierson by the Parma Municipal Court on October 12, 1994. This case arose out of plaintiff's suit to recover for excavating work done in attempting to correct a water leak in the basement of Johnson's home. Johnson filed a timely answer denying plaintiff's allegations, raising affirmative defenses and asserting a three-count counterclaim and demand for judgment in excess of $12,000. We reverse and remand. Plaintiff filed suit in the Parma Municipal Court alleging that Johnson owed him a balance of $1,369.45 for excavation work at Johnson's home. Johnson timely answered denying Pierson's allegations, raised several affirmative defenses and asserted a counterclaim for breach of warranty, negligence, fraud, and deceptive trade practices. Johnson prayed for compensatory damages of $2,000 and punitive damages of $10,000 plus interest, attorney fees and treble damages under R.C. 1345 for deceptive trade practices. Discovery and other pretrial activity proceeded. A pretrial was held on May 25, 1994 and attended by the parties and their counsel. The court continued the trial date on two occasions at the request of the parties and trial was eventually scheduled for October 12, 1994 at 1:00 p.m. The trial notice did not specify that the parties were to be present and Johnson was not subpoenaed - 3 - to appear at the trial. Attempts to continue the trial further were unsuccessful. At 1:47 p.m., the case was called for trial after the judge's efforts to settle were unsuccessful. Johnson was not present at that time, although his counsel and Johnson's wife (who was to be a witness) were in the courtroom. Johnson, the Superintendent of the Brecksville-Broadview Heights City School District, was late delivering a speech at a luncheon meeting of the local Chamber of Commerce in support of a school levy. He left the luncheon at 1:15 p.m. and then got lost on the way to the courthouse, delaying him further. He finally arrived at the courthouse at 2:00 p.m. Before Johnson arrived, the trial court entertained and initially granted a motion for summary judgment in favor of plaintiff. Upon a request from Johnson's counsel to cross-examine Pierson, the court took a recess to determine whether cross- examination of Pierson should proceed. Upon reconvening, the court vacated the summary judgment entry and stated it would entertain a motion for default judgment, which was promptly made by plaintiff's counsel. At this time, Johnson arrived. His counsel argued that the default was cured and the trial should proceed as scheduled. The court denied this request and proceeded with the default hearing. The judge prescribed that the cross-examination of plaintiff would proceed only "on the default judgment." After cross-examination of plaintiff, Johnson's counsel requested permission to have Johnson explain the circumstances for - 4 - his late arrival on the record. This request was denied. The court entered default judgment in plaintiff's favor on all issues for the amount of his prayer. Afterwards Johnson explained his reasons for being late. The court threatened to hold Johnson in contempt of court and dismissed his explanation as indicating a "blatant disrespect" for the court and the proceedings. The trial court maintained that default judgment was appropriate despite the fact that there was no subpoena or court order compelling Johnson to be at trial at any specific time and despite the fact he was, at all times, represented by counsel who was prepared to proceed. On October 13, 1994, the trial court journalized its judgment entry, declaring "Plaintiff's Motion for Default granted," awarding judgment for plaintiff in the amount of $1,369.45 on the complaint and awarding judgment for Pierson on Johnson's counterclaim. A timely appeal to this Court ensued. We will address defendant's assignments of error in the order presented. I. THE PARMA MUNICIPAL COURT ERRED IN ENTERING DEFAULT JUDGMENT AGAINST THE APPELLANT PURSUANT TO CIV. R. 55(A). A. APPELLANT WAS AT NO TIME IN DEFAULT WITHIN THE MEANING OF CIV. R. 55(A) BECAUSE HE HAD FILED A TIMELY ANSWER, APPEARED IN THE ACTION, AND WAS PREPARED TO PRESENT HIS DEFENSE AT THE TIME THE CASE WAS CALLED FOR TRIAL. - 5 - B. APPELLANT APPEARED AT TRIAL THROUGH COUNSEL AND THERE WAS NO BASIS FOR THE TRIAL COURT TO ENTER DEFAULT JUDGMENT ON THE BASIS THAT APPELLANT HIMSELF WAS NOT PRESENT AT THE TIME THE CASE WAS CALLED FOR TRIAL. C. APPELLANT HAVING APPEARED IN THE ACTION WAS ENTITLED, PURSUANT TO CIV. R. 55(A), TO WRITTEN NOTICE OF THE APPLICATION FOR DEFAULT JUDGMENT AT LEAST SEVEN DAYS PRIOR TO A HEARING ON THE APPLICATION. THE TRIAL COURT'S DEFAULT JUDGMENT IN FAVOR OF PIERSON WAS INVALID AND DENIED DEFENDANT DUE PROCESS OF LAW SINCE DEFENDANT JOHNSON WAS NOT PROVIDED THE REQUIRED NOTICE OR TIME BEFORE THE HEARING ON APPELLEE'S APPLICATION. Civ. R. 55(A) governing default judgments, 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. Generally, the law disfavors default judgment. Baines v. Harwood (1993), 87 Ohio App.3d 345, 347; Suki v. Blume (1983), 9 Ohio App.3d 289, 290. "Fairness and justice are best served when a court disposes of cases on the merits." Dehart v. Life Ins. Co. (1982), 69 Ohio St.2d 189, 193. Therefore, the general policy in Ohio is to decide cases on their merits whenever possible, after giving parties their day in court. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3; Hawkens v. Marion Correctional Inst. (1986), 28 - 6 - Ohio St.3d 4, 5; Nationwide Mutual Ins. Co. v. Papenhagan (1987), 30 Ohio St.3d 14, 15; Hopkins v. Quality Chevrolet (1992), 79 Ohio App.3d 578, 583. The Ohio Supreme Court has held that the spirit of Civ. R. 55(A) should be consistent with the policy underlying the modernization of the Civil Rules, which favors the abandonment or relaxation of restrictive rules which prevent hearing cases on their merits. AMCA International Corp. v. Carlton (1984), 10 Ohio St.3d 88, 91. In recognition of this well-established policy, this Court has held that default judgment may be entered "when, and only when, a defendant has not contested the plaintiff's allegations by pleading or defend[ing] such that no issues are present in the case." Reese v. Proppe (1981), 3 Ohio App.3d 103, 105; see, also, Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assoc. (1986), 28 Ohio St.3d 118; Dallas v. Childs (Dec. 17, 1992), Cuyahoga App. No. 63452, unreported; Resolution Trust Corp. v. Bruce Edward Comm. (Dec. 17, 1992), Cuyahoga App. No. 63950, unreported; Eisenberg v. Nakon (May 9, 1991), Cuyahoga App. No. 60489, unreported; Dupal v. Daedlow (1989), 61 Ohio App.3d 46, 48; Gibbons v. Price (1986), 33 Ohio App.3d 4, 9. Once a defendant answers a plaintiff's complaint, default judgment cannot be entered against him under Civ. R. 55. In this case, defendant Johnson was never in default within the meaning of Civ. R. 55(A). He answered the complaint in a timely manner and denied the allegations; asserted affirmative - 7 - defenses and presented a counterclaim. The fact that Johnson arrived late for trial when he was not subpoenaed or required by court order to be present, cannot alter the fact that Johnson had defended as provided by the Civil Rules and was fully represented by counsel when the case was called for trial. Williams v. Bolding (1982), 6 Ohio App.3d 48, 49. The plaintiff argues that the judgment was proper; that it was not really a default judgment, but rather a final judgment after an ex parte trial on the merits, at which defendant was able to cross examine Pierson. It is axiomatic that a court speaks only through its journal entries. State v. King (1994), 70 Ohio St.3d 158, 162; Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 83; Snouffer v. Snouffer (1993), 87 Ohio App.3d 89, 91. The judgment entry herein specifically states "plaintiff's motion for default granted." Furthermore, this was hardly a "trial" which would meet due process requirements when only plaintiff was allowed to testify and defendant was not allowed to call any witnesses. Plaintiff also argues that the default judgment entered against defendant was not a harsh sanction as defendant had "flagrantly disregarded" the rules of the court by making the court wait 48 minutes. The record indicates, however, that settlement proceedings were attempted by the court in defendant's absence; the time spent on the settlement proceedings is unknown. Furthermore, after defendant arrived and before the court entered default judgment, defendant's counsel requested that the trial commence as - 8 - planned, yet the court denied the request and only permitted defendant's counsel to cross-examine plaintiff on the default judgment regarding the amount due and owing. Even if defendant did not appear, proceeding with trial would have been the appropriate action by the court. As stated in Williams v. Bolding (1982), 6 Ohio App.3d 48, 49 held: The record clearly indicates that all parties were present through counsel and that the trial could proceed. There is no requirement in a civil case that the party to that action personally be in the courtroom during trial. The trial court did not issue a subpoena for the appearance of defendant, Vinson, which would be a prerequisite to requiring her presence at the trial. Plaintiff contends that the case herein is distinguishable from Williams as defense counsel represented to the court that defendant would appear. There is however, no evidence regarding this representation to the court. Plaintiff's Assignment of Error I is sustained. His other assignment of error is moot and need not be considered. App. R. 12(A)(1)(c). The granting of the default judgment was error and we reverse and vacate the judgment below and remand for further proceedings in accordance with law. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein taxed. It is ordered that a special mandate be sent to the Parma Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and KARPINSKI, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .