COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69802 ROBERT E. ROSS, ET AL. : ACCELERATED DOCKET : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION OHIO SAVINGS BANK : : Defendant-appellee : PER CURIAM : DATE OF ANNOUNCEMENT : AUGUST 1, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-278831 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: THOMAS P. ALDRICH, III, ESQ. ROY E. LACHMAN, ESQ. 1060 Greyton Road Ohio Savings Plaza Cleveland Heights, OH 44112 1801 East 9th Street, 2nd Fl. Cleveland, OH 44114-3186 MARCIA J. MACON, ESQ. 101 East Town Street Columbus, OH 43215-5148 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs and oral arguments of counsel. Plaintiffs Robert and Belinda Ross filed a complaint seeking damages allegedly resulting from defendant Ohio Savings Bank, F.S.B.'s breach of a home mortgage agreement. The bank counterclaimed for five years of unpaid mortgage payments; reimbursement for payments it made due to plaintiffs' failure to pay real estate taxes and insurance on the subject property; and interest. It appears the bank accelerated plaintiffs' payments on a home mortgage note (secured by an open-ended mortgage) after plaintiffs defaulted on their monthly payments. Plaintiffs maintained principles of estoppel foreclosed the bank's action since the bank refused to accept tendered payments during a period following plaintiffs' bankruptcy. The bank admitted returning several mortgage payments tendered in late 1990, but claimed it did so to rectify an error in the computation of plaintiffs' loan balance and at no time did it agree to permit plaintiffs to stop payments for five years. When plaintiffs and counsel failed to appear on the previously scheduled trial date, the court proceeded with trial ex parte and - 3 - heard testimony presented by the bank. The trial court entered 1 judgment "by default" in favor of the bank on its counterclaim. In their first assignment of error, plaintiffs complain the court entered judgment on facts that were contrary to those presented in the parties' pleadings. This assignment is overruled for the reason that plaintiffs have failed to present any record of the trial. With the absence of a record of the proceedings below, it is impossible for us to determine if the trial court erroneously relied upon improper evidence, so we must presume the regularity of the proceedings. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. The second assignment of error complains the trial court abused its discretion by failing to grant a continuance when plaintiffs and their counsel failed to appear on the scheduled date of trial. Implicit in an ex parte trial is the idea that a trial court need not give notice to an opposing party who fails to attend trial. In this case, the trial court's journal entries clearly 1 A point of clarification is necessary. Although the trial court rendered judgment "by default," that terminology is a misnomer because plaintiffs appeared in the action; consequently, Civ.R. 55(A) default notice procedures were inapplicable. See Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 121-123. When a party who has filed a responsive pleading to a pleading seeking affirmative relief fails to appear for trial, the trial court may not grant a default judgment, but it may proceed with an ex parte trial. Id. at 123; Dupal v. Daedlow (1989), 61 Ohio App.3d 46, 48; Eisenberg v. Nakon (May 9, 1991), Cuyahoga App. No. 60489, unreported. We find the trial court's journal entries clearly demonstrate the court proceeded ex parte and did not render judgment by default. - 4 - show trial was set and neither plaintiffs nor counsel appeared. Consequently, the trial court proceeded to hear evidence in their absence and granted judgment to the bank on plaintiffs' complaint. Because plaintiffs did not seek relief from the judgment, the record contains no information detailing their reasons for not appearing (counsel states he was ill). Plaintiffs' counsel does not argue he lacked notice of the trial date, and concedes the court telephoned his office when he failed to appear for trial. Even were we to assume the veracity of counsel's reason for missing trial, he fails to explain why he made no contingency arrangements with his office to inform the court of his absence. Of course, this does not explain why plaintiffs themselves failed to attend trial. The logical inferences are (a) they were unaware of the trial date or (b) were told not to attend. Neither inference justifies their absence, however, and we find under the circumstances presented that the trial court did not abuse its discretion by proceeding with an ex parte trial. The second assignment of error is overruled. The third assignment of error claims the trial judge violated Canon 3 of the Code of Judicial Conduct by failing to perform his duties of office in an impartial and diligent manner. A party who questions the bias or prejudice of a judge may seek to disqualify the judge by filing an affidavit of prejudice with the chief justice of the supreme court. See R.C. 2701.03. But, "[t]he statutory right to seek disqualification of a judge is - 5 - an extraordinary remedy not to be used in a frivolous manner." In re Disqualification of Hunter (1988), 36 Ohio St.3d 607, 608. In this case, plaintiffs did not file an affidavit of prejudice, nor does the record indicate they bore a grievance prior to judgment. This court has no authority to pass upon the disqualification of a judge or to void a judgment on that basis. See Beer v. Griffith (1978), 54 Ohio St.2d 440, 442; Neal v. Hamilton Cty. (1993), 87 Ohio App.3d 670, 680. 2 Moreover, the allegations plaintiffs do make are unsub- stantiated by evidence of prior rulings and the circumstances prompting those rulings. Vague and unsubstantiated allegations are insufficient for a finding of bias or prejudice. See In re Disqualification of Walker (1988), 36 Ohio St.3d 606. As to their claim that the judge's impartiality may be called into question by the adverse judgment against them, we note "[d]isatisfaction or disagreement with a judge's ruling of law are 2 The entire allegation of impartiality follows: "Appellant Robert Ross was the subject of a criminal case before the lower Court Judge some ten years ago. The Judge found the Appellant guilty. At the same time, the lower court Judge found Appellant's counsel in contempt in 1993 for a sarcastic comment made after the case was concluded and placed him in jail for three hours. Appellant and Appellant's counsel believe thoroughly that the lower court Judge acted with partiality toward Appellee, particularly in light of the contradictory facts presented." (emphasis in original). - 6 - legal issues subject to appeal. A trial judge's opinions of law, even if erroneous, are not by themselves evidence of bias or prejudice and thus are not grounds for disqualification." In re Disqualification of Murphy (1988), 36 Ohio St.3d 605 (citation omitted). Finally, if plaintiffs had presented evidence of their claims, those claims would be waived since they failed to raise an objection to the trial judge's qualifications in a timely manner. "In the absence of extraordinary circumstances, an affidavit of disqualification should not be used to disqualify a judge after lengthy proceedings have taken place in a case." In re Disqualification of Pepple (1989), 47 Ohio St.3d 606, 607, citing In re Disqualification of Light (1988), 36 Ohio St.3d 60. Having shown no basis for their allegations of bias or prejudice by the trial judge, plaintiffs' third assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants 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 Court of Common Pleas 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. ANN DYKE, JUDGE JOHN T. PATTON, JUDGE SARA J. HARPER, PRESIDING JUDGE DISSENTS. (SEE DISSENTING OPINION ATTACHED). 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, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69802 ROBERT E. ROSS, ET AL. : : Plaintiff-appellants : : DISSENTING OPINION -vs- : : OHIO SAVINGS BANK : : Defendant-appellee : : DATE OF ANNOUNCEMENT : AUGUST 1, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-278831 SARA J. HARPER, P.J., DISSENTING: I respectfully dissent from the majority's affirmance of the judgments entered in favor of defendant-appellee/third-party plaintiff, Ohio Savings Bank. The record firmly establishes that the trial court entered "default judgments" against plaintiffs- appellants, Robert E. Ross and Belinda Ross, an action without legal validity. I would, therefore, have vacated the default judgments, and remanded the action for further proceedings. This court was faced with a similar factual situation in Pierson v. Johnson (Sept. 14, 1995), Cuyahoga App. No. 69238, unreported. The plaintiff filed a complaint against the defendant for recovery of the balance owed for excavation work. The - 2 - defendant denied the allegations in an answer, and filed a counterclaim. Although the defendant's wife and attorney were timely present in the courtroom on the scheduled trial date, and the defendant appeared late, the trial court nonetheless proceeded with a default hearing. The court then permitted cross-examination of the plaintiff only "'on the default judgment.'" It otherwise denied the defendant's request to explain his tardiness. The court subsequently journalized its judgment entry, stating "'Plaintiff's Motion for Default granted'" in the amount of the complaint and on the counterclaim. This court in Pierson recognized the same general rule as the present majority, i.e., that once a defendant answers a plaintiff's complaint, default judgment cannot be entered against the defendant under Civ.R. 55. A default judgment is only appropriate "when, and only when, a defendant has not contested the plaintiff's allegations by pleading or 'otherwise defend[ing]' such that no issues are present in the case." Reese v. Proppe (1981), 3 Ohio App.3d 103, 105. See Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118; Dupal v. Daedlow (1989), 61 Ohio App.3d 46; Gibbons v. Price (1986), 33 Ohio App.3d 4; Pierson; Dallas v. Childs (Dec. 17, 1992), Cuyahoga App. No. 63452, unreported. This court thus accurately identified that a default judgment was not entered against the defendant in Pierson since he timely - 3 - answered the complaint and asserted a counterclaim. The plaintiff argued on appeal that the judgment was still proper because it was a final judgment entered following an ex parte trial on the merits. We rejected this argument by noting the other long-standing rule in Ohio that a trial court speaks only through its journal. See State v. King (1994), 70 Ohio St.3d 158; Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80; Snouffer v. Snouffer (1993), 87 Ohio App.3d 89. This court then concluded that the granting of a default judgment was error. I acknowledge the additional facts in Pierson -- the defendant's arrival at trial and the trial court's disallowance of his evidence or statement -- are not present herein. However, the panel that decided Pierson specifically rejected the reasoning adopted by the current majority in the first footnote of its opinion. It is for this reason that I am forced to dissent from the majority's ultimate conclusion. The trial court in the within case issued a journal entry on October 10, 1995. The court clearly stated that "[j]udgment is hereby rendered by default on Plaintiffs' Complaint in favor of Defendant Ohio Savings Bank and against Plaintiffs Robert E. Ross and Belinda Ross." The "Civil Case Status Form" attached to this entry set forth, in part: "Default hearings had. Judgment for defendant on plaintiffs' claims and for defendant in its counterclaim granted." The trial court then referenced in its October 19, 1995 final judgment, the plaintiffs' previously entered - 4 - default. The court obviously entered default judgments against appellants, an anomaly under Civ.R. 55. Pierson. See, also, Carr .