COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68674 ZELLMER & GRUBER : : Plaintiff-appellee/ : cross-appellant : : JOURNAL ENTRY vs. : and : OPINION MARK M. GEORGE : : Defendant-appellant/ : cross-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 8, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 94-CVF-3926 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee/ JEFFREY P. POSNER cross-appellant : Attorney at Law 1400 Leader Building Cleveland, Ohio 44114 For defendant-appellant/ MARK M. GEORGE, pro se cross-appellee : Attorney at Law 9119 Brookpark Road Parma, Ohio 44129 TIMOTHY E. McMONAGLE, J.: Attorney Mark M. George appeals from the default judgment rendered against him in Zellmer & Gruber's collection action. Zellmer & Gruber cross-appeals and challenges the court's ruling on its motions for sanctions. For the reasons set forth below, the judgment of the trial court is affirmed. On February 18, 1994, the law offices of Zellmer & Gruber filed a complaint against defendant Mark George for $2,555.04 for legal services allegedly rendered to Broadview Beverage at defen- dant's request that Zellmer & Gruber serve as his co-counsel. The record next reflects that service was obtained on defendant on March 1, 1994. On March 25, 1994, defendant filed a Consent to Move or Plead, which indicated that plaintiff had authorized defendant to respond to the complaint by April 27, 1994. Defen- dant did not answer by this date, and on May 18, 1994, plaintiff filed a motion for default judgment. Thereafter, defendant filed a second Consent to Move or Plead, which purportedly authorized him to answer the complaint by June 21, 1994. Plaintiff then filed a motion "For Sanctions and/or Compelling Discovery." On June 28, 1994, plaintiff filed a second motion for default judgment. On this same date, defendant filed an answer in which he averred that the legal services were not rendered on his behalf and - 3 - that plaintiff did not have a contract or retainer agreement with him. In addition, he filed a motion for leave to file a cross- claim against third-party defendants Joseph Rizk and Broadview Beverage. The trial court subsequently notified the parties that it was holding a hearing on plaintiff's motion for default judgment, and the matter then proceeded to hearing before a referee on September 7, 1994 and November 3, 1994. The referee issued a report which provided in relevant part as follows: *** Defendant *** stated that the Clerk's office advised him that he had an additional seven day period beyond the deadline of his leave within which to file a responsive pleading, such as an answer. In response to this argument, I explained that our Local Rule 6.07 and Civil Rule 6(B) authorize the Clerk to grant one leave. In this case, leave was granted until 4-27-94. In addition, a second leave was granted to 6-24-94. According to our Local Rule this second leave was not authorized. Nevertheless, despite this second leave to plead, the Defendant's answer would have been deemed timely if he had filed it on or before 6-24-94. Therefore, Defendant's answer of 6-28-94 shall be treated as a communication. * * * Plaintiff and Defendant stipulated to the amount of damages which is $2555.04 plus pre- judgment interest of 10% from 1-17-92 on the balance of $1626.05 and pre-judgment interest of 10% from 7-20-92 on the balance of $929.99. The plaintiff is claiming that the Defendant contacted this lawfirm and asked this lawfirm to co-counsel with him. The Plaintiff ex- plained that they agreed to provide legal services to Mark George in assisting him with his representation of his client known as Broadview Beverage. The Plaintiff argued that - 4 - there was an oral agreement between the Plaintiff lawfirm and Mark George and that the Plaintiff treated Mark George as a client. The Plaintiff argued that there was no privity of contract between the lawfirm and Broadview Beverage. The Plaintiff explained that Broadview Beverage was at all times a client of Defendant Mark George. The Plaintiff said that the Defendant agreed to pay Plaintiff for all of the co-counseling fees. It was the Plaintiff's understanding that the Defendant would then bill Broadview Beverage for his attorney fees. There is no dispute that Plaintiff rendered services and the amount of damages. The remaining dispute is whether there was a contract between the Plaintiff and the Defendant. The Defendant argued that there was no con- tract between him and the Plaintiff. He argued that the contract was between the Plaintiff and Broadview Beverage. He stated that the Plaintiff should have billed Broadview Beverage directly. The Defendant stated that he never agreed to pay the Plaintiff for his [sic] legal services. In rebuttal, the Plaintiff argued that this lawfirm never had any contact with Broadview Beverage except for a couple of hearings. The Plaintiff stated that it received $500.00 from Broadview Beverage directly but that was at the direction of the Defendant. Broadview Beverage's owner, Joseph Rizk, tes- tified that he never entered into a contract with the Plaintiff. He stated that he hired the Defendant to be his attorney and never expected to receive [a] bill from the Plain- tiff. In response, the Defendant stated that Broad- view Beverage initially contacted him. He further stated that although there was never a written agreement between himself and Broadview Beverage, he did send letters to Broadview Beverage suggesting an attorney/client relationship. - 5 - As a matter of law, the Plaintiff established that there was an oral agreement between the lawfirm and the Defendant. There was no pri- vity of contract between the Plaintiff and Broadview Beverage. At most Broadview Bever- age was a third party beneficiary to this contract. Accordingly, the Defendant is obligated to pay the Plaintiff for its ser- vices. * * * RECOMMENDATION: Judgment for Plaintiff against Defendant in the amount of $2,555.04 plus 10% interest from 7- 20-92 and costs. *** The court subsequently adopted the report of the referee, and plaintiff moved for recovery of its fees and costs pursuant to Civ.R. 11 and R.C. 2323.51. The trial court denied plaintiff's motion, and both parties now appeal. I. Defendant's Appeal A. Defendant's first and third assignments of error are interre- lated and state: DEFAULT JUDGMENT SHOULD NOT BE ENTERED AGAINST DEFENDANT WHEN AN ANSWER FILED IN REASONABLE TIME CONTESTING ISSUES BEFORE JUDGMENT IS ENTERED. THE REFEREE IMPROPERLY CITED THE LOCAL RULE. The entry of default judgments is governed by Civ.R. 55(A), which provides in relevant part as follows: - 6 - 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 guardian or other such repre- sentative 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 representa- tive) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. *** A defendant to an action is in default when he fails to plead within the time allowed by law for that purpose. Suki v. Blume (1983), 9 Ohio App.3d 289, 290. Civ.R. 12(A)(1) expressly provides that a defendant must serve his answer within twenty-eight days after service of summons and complaint upon him. In addition, Rule 6.07 of the Cleveland Municipal Court states in relevant part as follows: 6.07 Leaves to Move or Plead. Extension of time to move or plead before call shall be granted by request to the court for a period not to exceed twenty-eight (28) days. Movant shall be required to timely notify the non- moving party(s) of the filing of any request for extensions of time. A second extension of time to plead for a period not to exceed fourteen (14) days may be granted by a stipulation duly and properly filed with the clerk in rule. No further leave shall be obtained or granted except upon motion in writing supported by affidavit showing good cause duly filed with the clerk and accompanied by proof of notice to the adverse party or parties in conformity with the Ohio Rules of Civil Procedure, unless the opposite party, or - 7 - his/her attorney, expressly waives such requirement. No motion or pleading shall be filed out of rule, nor shall a pleading be amended, except as provided by the Ohio Rules of Civil Procedure or with leave of court. In Miller v. Lint (1980), 62 Ohio St.2d 209, 214, the court determined that where the defendant failed to serve her answer within twenty-eight days after service of the summons and com- plaint upon her, then filed her answer late but not "upon motion" and with a demonstration that "the failure to act was the result of excusable neglect," as required by Civ.R. 6(B)(2), the defendant was subject to default judgment pursuant to Civ.R. 55(A). Accord McDonald v. Berry (1992), 84 Ohio App.3d 6, 9-10; Farmers & Merchants State & Savings Bank v. Raymond G. Barr Enterprises, Inc. (1982), 6 Ohio App.3d 43, 44. In this instance, the record reveals a dispute as to whether plaintiff, in fact, consented to the two leaves to plead which defendant filed. In any event, assuming consent to have been properly obtained, the record nonetheless reveals that defendant's answer was not filed within the time limits established by these documents. In addition, defendant did not file his answer "upon motion" and with a demonstration that "the failure to act was the result of excusable neglect," as required by the Civil Rules, and defendant likewise did not file a motion for an additional leave for good cause shown, as required by Rule 6.07 of the Cleveland Municipal Court. Accordingly, the trial court's entry of a default - 8 - judgment in this instance fully comported with both Civ.R. 55(A) and Rule 6.07. Defendant's first and third assignments of error are over- ruled. B. Defendant's second assignment of error states: THE LOWER COURT IMPROPERLY HELD A HEARING ON THE MERITS WITHOUT GIVING DEFENDANT OPPORTU- NITY TO PRESENT EVIDENCE AFTER A SHORT HEARING ON THE ISSUES OF PLEADINGS BEING TIMELY. Civ.R. 55(A) provides in relevant part: *** 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. Therefore, in accordance with this language of Civ.R. 55(A), the lower court has wide discretion as to the scope and nature of a default hearing. 1 Baldwin's Ohio Civil Practice (1988) 313, Section T 25.02. Thus, from the plain language of the rule, defendant was clearly on notice that the merits of plaintiff's claims could be considered. Moreover, it is clear that the court deemed it necessary and proper to determine the truth of plaintiff's allegation that the legal services were rendered at defendant's request. Since this issue was the focus of plaintiff's claim for relief, the court was - 9 - well with in its discretion in making the factual determination as to whether Broadview Beverage or defendant contracted with plain- tiff. As a further matter, we note that the statute of frauds does not bar recovery in this instance. R.C. 1335.05 provides in relevant part as follows: No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person *** unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. In Wilson Floors Co. v. Sciota Park, Ltd. (1978), 54 Ohio St.2d 451, syllabus, the supreme court stated: When the leading object of the promisor is not to answer for another's debt but to subserve some pecuniary or business purpose of his own involving a benefit to himself, his promise is not within the statute of frauds, although the original debtor may remain liable. In the instant action, the lower court determined that defen- dant did make an oral agreement to pay plaintiff's fees, and the evidence established that this agreement was made to assist defen- dant with his representation of Broadview Beverage. Therefore, there was evidence that the leading object of the promise was to subserve defendant's business purpose. Defendant's second assignment of error is overruled. II. - 10 - Plaintiff's Cross-Appeal A. Plaintiff's first, second and third cross-assignments of error state: THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF SUMMARY JUDGMENT. THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SECOND LEAVE AND FOR DEFAULT OF MAY 18, 1994 AND JUNE 28, 1994. THE COURT ERRED IN FAILING TO GRANT SANCTIONS OR TO ORDER DEFENDANT TO PROVIDE DISCOVERY. In light of this court's affirmance of the lower court's entry of default judgment, these assignments of error are moot, and we will not address them. App.R. 12(A)(1)(c). B. Plaintiff's fourth cross-assignment of error states: THE TRIAL COURT ERRED IN FAILING TO AWARD PLAINTIFF ATTORNEY FEES FOR THE R. 37 MOTION. The management of the discovery process lies solely within the sound discretion of the trial court and, absent an abuse of that discretion, the court's decision will not be reversed by a reviewing court. Glick v. Marler (1992), 82 Ohio App.3d 752, 758. In this instance, there is no basis for this court to conclude that the court abused its discretion since this matter proceeded below chiefly upon the issue of whether a default judgment would be granted. Plaintiff's fourth cross-assignment of error is overruled. - 11 - C. Plaintiff's fifth cross-assignment of error states: THE TRIAL COURT ERRED IN FAILING TO HOLD HEARINGS ON PLAINTIFF'S R. 11 AND O.R.C. 2323.51 REQUESTS. This court extensively analyzed R.C. 2323.51 in Pisani v. Pisani (1995), 101 Ohio App.3d 83, and held that a hearing is mandatory under R.C. 2323.51 only when sanctions are imposed and is not necessary when the court determines, upon consideration of the motion and in its discretion, that it lacks merit. Accord Justice v. Lutheran Social Services of Central Ohio (1992), 79 Ohio App.3d 439, 444, motion to certify overruled in 65 Ohio St.3d 1421 (1992). Similarly, Civ.R. 11 does not contain a provision mandating that a hearing is held. Schwartz v. General Accident Ins. of America (1993), 91 Ohio App.3d 603, 606. Plaintiff's fifth cross-assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland 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. SARA J. HARPER, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .