COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71018 JOHN BREEN, ET AL. : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : : AND : H & K, INC., ET AL. : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-284088 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: RAYMOND J. SCHMIDLIN, JR. (#0042387) 5843 Mayfield Road Mayfield Heights, Ohio 44124 For Defendant-Appellant: VIOLET J. TARCAI (#0033093) 4033 Stonehaven Road South Euclid, Ohio 44121 - 2 - SPELLACY, J.: Defendants-appellants, James Scott and James Scott Enter- prises, Inc. ("appellants"), appeal the judgment of the trial court denying their motion to vacate. Appellants further appeal the trial court's judgment in favor of plaintiffs-appellees, John and Mary Breen ("appellees"). Appellants assign the following errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS-APPELLANTS, JAMES SCOTT AND SCOTT ENTERPRISES, INC., BY DENYING THEIR RULE 60(B) MOTION TO VACATE WITHOUT AN EVIDENTIARY HEARING, AS APPELLANTS HAD A VALID DEFENSE, AND WERE CONFUSED AT [SIC] TO WHETHER THE TRIAL COURT WAS GOING TO START ON TIME OR BE DELAYED OR CONTINUED DUE TO OPPOSING COUNSEL'S CONFLICT IN HIS SCHEDULE AND HIS STATEMENT TO COUNSEL FOR APPELLANTS THAT THE [SIC] WAS GOING TO THE OTHER TRIAL FIRST. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTS-APPELLANTS IN GRANTING DEFAULT JUDGMENT TO PLAINTIFFS, AGAINST JAMES SCOTT AND SCOTT ENTERPRISES, INC., WHERE THE RECORD DEMONSTRATES THAT THE DEFAULT WAS GRANTED WITHOUT FIRST PROVID- ING NOTICE TO DEFENDANTS OR THEIR COUNSEL, IN VIOLATION OF THEIR DUE PROCESS RIGHTS AND OHIO RULE OF CIVIL PROCEDURE 55. III. THE DEFAULT JUDGMENT AGAINST JAMES SCOTT ENTERPRISES, INC. IS "VOID," AS NO SERVICE OF PROCESS OF THE FIRST AMENDED COMPLAINT OR THE SECOND AMENDED COMPLAINT WAS EVER MADE UPON THE CORPORATION AS REFLECTED BY THE DOCKET IN THE CASE. IV. DEFENDANTS-APPELLANTS SHOULD HAVE BEEN PERMITTED TO ATTEND THE ARBITRATION, BECAUSE JAMES SCOTT WAS INCARCERATED, AND HAD FILED A MOTION TO ATTEND THE TRIAL WITH THE JUDGE IN THE CRIMINAL MATTER, WHO NEVER RULED UPON SAID MOTION, ALL IN - 3 - VIOLATION OF APPELLANTS' DUE PROCESS RIGHTS. THIS ISSUE IS RAISED BECAUSE, IN SPITE OF THE APPEAL DE NOVO, THE MATTER IS CAPABLE OF REPETITION AND WILL EVADE REVIEW BY THIS COURT, AND EVIDENCES A PATTERN OF ARBITRARY CONDUCT TOWARD THESE APPELLANTS IN DENYING THEM THEIR DAY IN COURT. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On January 31, 1995, appellees filed a complaint against H & K, Inc. and James Scott Enterprises alleging breach of contract, breach of warranty, and violation of the Consumer Sales Practices Act. On April 10, 1995, H & K, Inc. filed its answer to appellees' complaint. James Scott Enterprises, however, failed to timely file its answer. On April 26, 1995, appellees filed a motion to amend the complaint. The trial court granted appellees' motion on May 3, 1995, and appellees filed their first amended complaint May 17, 1995. Appellees amended their complaint to include Westfield Companies as a party plaintiff seeking to enforce its subrogation rights. On May 17, 1995, H & K, Inc. filed its answer to appellees' first amended complaint. Again, James Scott Enterprises failed to file an answer. On July 12, 1995, appellees filed a motion for default judgment with regard to James Scott Enterprises. Appellees' motion was refiled on August 8, 1995. On August 31, 1995, the trial court granted appellees' motion for default judgment against James Scott - 4 - Enterprises in the amount of $5,719.00, plus attorney fees, costs, and interest from the date of judgment. The trial court also awarded judgment in favor of plaintiff, Westfield Companies, in the amount of $2,225.00, plus attorney fees, costs, and interest from the date of judgment. On September 5, 1995, appellees filed a second motion to amend complaint. On September 21, 1995, the trial court granted appellees' motion. On September 22, 1995, appellees amended their complaint to include James Scott as a party defendant. On October 19, 1995, H & K, Inc. filed its answer to appellees' second amended complaint. On November 16, 1995, appellees filed their second motion for default judgment against appellants. On December 4, 1995, appellants filed both a motion to vacate judgment entry against appellant James Scott Enterprises filed by the trial court August 31, 1995, and a motion for leave to file its answer and crossclaim against H & K, Inc. for contribution and indemnity. On February 5, 1996, the trial court granted appellant James Scott Enterprises' motion to vacate with respect to appellant James Scott Enterprises' answer only, not the cross-claim, and denied appellees' second motion for default judgment. On April 17, 1996, an arbitration hearing was conducted and the following arbitration award was made: On the claim of plaintiffs against defendant H & K, Inc., we find for the defendant. On the claim of the plaintiffs against defendant James - 5 - Scott Enterprises, we find for the plaintiffs and award them damages as follows: a) In favor of plaintiffs John and Amy Breen, we find for them in the sum of $5,469.00 upon their claim for roof damage and $187.50 upon their claim for their insurance deductible (reduced by 25% by reason of their failure to mitigate), for a total of $5,656.50, which we deem appropriate for a statutory award of treble damages, or a total actual damages of $16,969.50. b) In favor of plaintiff Westfield Insurance Company upon the subrogation claim. (Arbitration Award, April 19, 1996). On April 26, 1996, appellants filed a notice of appeal de novo. On May 9, 1996, the trial court set trial for June 5, 1996. On June 6, 1996, the trial court filed the following journal entry: Case called for trial. Def. Jas. Scott & Jas. Scott Enterprises failed to appear or other- wise notify the court. S&D with prej. between Plt's & def. H & K, Inc. Judgment for pl. and against def. Jas Scott and Jas. Scott Ent. in the amount of $7,944 plus treble damages and costs. Pl's atty to submit formal entry. On June 12, 1996, appellants filed a motion to vacate entry dated June 5, 1996. Appellants, however, failed to attach a brief in support of their motion. On June 26, 1996, a formal judgment entry was filed by the trial court for the June 5, 1996, trial. Judgment is granted for Plaintiffs against Defendants James Scott and James Scott Enterprises Inc. in the amount of $7,944.00. This court also awards treble damages, attor- ney fees, and cost for Plaintiffs against James Scott and James Scott Enterprises Inc. for violation of the Ohio Consumer Sales Practices Act. - 6 - While appellants' motion to vacate was pending in the trial court, appellants filed an appeal in this court on July 24, 1996. This court, however, remanded appellants' appeal to the trial court for the purpose of ruling upon appellants' pending Civ.R. 60(B) motion. On September 16, 1996, appellants filed their amended notice of appeal to include the judgment entry rendered by the trial court on August 16, 1996, denying appellants' motion to vacate. II. In their first assignment of error, appellants contend the trial court erred in denying their Rule 60(B) motion to vacate without an evidentiary hearing. The procedure for obtaining any relief from a judgment shall be by motion as prescribed by Civ.R. 60(B). The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion was made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after judgment, order or proceeding was entered and taken. It is likewise well established that the determination whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed on - 7 - appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. To demonstrate an abuse of discretion to warrant reversal on appeal, appellant must establish the trial court committed more than an error of law or judgment and that its decision was unreasonable, arbitrary or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Based on our review of the record, appellants have failed to demonstrate the trial court abused its discretion by denying the Civ.R. 60(B) motion. In the present case, appellants' motion to vacate the trial court's judgment did not cite Civ.R. 60(B) or attempt to satisfy any of its requirements. Appellants' motion did not specify any defense to appellees' claim and merely sought to explain the failure to appear at the scheduled trial by appellants or their counsel by attaching an affidavit of appellants' counsel. Rather than denying appellants' motion based on these defects, however, the trial court scheduled an evidentiary hearing for August 15, 1996, to provide an opportunity to satisfy the requirements of Civ.R. 60(B). The record contains no verbatim transcript or other adequate record of the August 15, 1996, hearing on the appellants' motion to vacate to dispute the trial court's determination. It is well established that absent an adequate record of the evidence presented at a Civ.R. 60(B) hearing, an appellate court must presume regularity and affirm the judgment of the trial court - 8 - denying the motion. Mahone v. Sgt. James Copeland, et al. (October 20, 1994), Cuyahoga App. No. 66993, unreported; See Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. An examination of the written motion and supporting affidavit reveals no evidence of sufficient operative facts to demonstrate (1) the existence of a meritorious claim or defense, or (2) sufficient grounds to warrant relief pursuant to Civ.R. 60(B). See Gurkovich v. AAA Mobile Home Sales & Brokerage, Inc. (1990), 70 Ohio App.3d 572. Appellants' motion to vacate merely requested that the trial court vacate its judgment entry dated June 5, 1996, for the reasons set forth in the affidavit of appellants' counsel. Appellants failed to attach a brief in support of their motion to vacate. Moreover, as noted above, appellants' motion did not identify any of the five specific grounds for relief under Civ.R. 60(B), but apparently argued appellant James Scott's failure to attend the trial resulted from excusable neglect. Under the circumstances, appellants have failed to demonstrate the trial court abused its discretion by denying their motion to vacate judgment. To reiterate, since it is well established that absent an adequate record of the evidence presented at a Civ.R. 60(B) hearing, this court of appeals must presume regularity and affirm the judgment of the trial court denying appellants' motion. Accordingly, appellants' first assignment of error is overruled. - 9 - III. For purposes of this appeal, appellants' second and third assignments of error will be addressed together. In both assignments of error, appellants assert that the trial court erred in granting default judgment against them on June 6, 1995, where default judgment was granted without first providing notice to appellants or their counsel of the default hearing and where no service of process of the first amended complaint or the second amended complaint was ever made upon appellant James Scott Enterprises. The question before this court is whether the failure to appear at trial after having filed a responsive pleading constitutes default judgment within the meaning of Civ.R. 55(A), thereby requiring the trial court to afford the absent party seven days' written notice of the motion for default. In the case sub judice, the trial court set forth that a trial was to be held on June 5, 1996. In its journal entry dated June 6, 1996, the trial court, after recognizing appellants' absence, entered judgment in favor of appellees against appellants. The Ohio Supreme Court in Ohio Valley Radiology Associates, Inc. v. Ohio Valley Hosp. Ass'n (1986), 28 Ohio St.3d 118, was presented with an identical issue as is presently before this court. The court in Ohio Valley Hosp. Ass'n set forth the following: Default, under both pre-Civil Rule decisions and under Civ.R. 55(A), is a clearly defined concept. A default judgment is a judgment entered against a defendant who has failed to - 10 - timely plead in response to an affirmative pleading. McCabe v. Tom (1929), 35 Ohio App. 73. As stated by the court in Reese v. Proppe (1981), 3 Ohio App.3d 103, 105 "[a] default by a defendant * * * arises only when the defendant has failed to contest the allega- tions raised in the complaint and it is thus proper to render a default judgment against the defendant as liability has been admitted or 'confessed' by the omission of statements refuting the plaintiff's claims. * * *" It is only when the party against whom a claim is sought fails to contest the opposing party's allegations by either pleading or "otherwise defend[ing]" that a default arises. This rule applies to original claims as well as to counterclaims (Civ.R. 55 [C]), and is logically consistent with the general rule of pleading contained in Civ.R. 8(D) * * * . Because a default under Civ.R. 55(A) only applies to those uncontested cases where one party has "failed to plead or otherwise defend," the notice requirements of Civ.R. 55(A) have generally been held inapplicable to cases in which a defending party who has previously pleaded later fails to appear for a trial or pretrial conference. See also Coulas v. Smith (1964), 96 Ariz. 325. Ohio Radiology Assoc., Inc., supra at 123. A party whose non-defaulting opponent fails to appear for trial must prove his case even in the absence of the opposing party. Id. at 122. The proper action for the trial court is to proceed ex parte and allow plaintiff to present evidence. Dupal v. Daedlow (1989), 61 Ohio App.3d 46, 49. Such a procedure, which requires affirmative proof of the essential elements of a claim, is diametrically opposed to the concept of default, which is based upon admission and which therefore obviates the need for proof. This is because ex parte trials, when properly conducted, are truly - 11 - trials in the sense of the definition contained in R.C. 2311.01. Ohio Valley Hosp. Ass'n, supra at 122. "It is clear that any judgment based upon an ex parte trial is a judgment after trial pursuant to Civ.R. 58, and not a default judgment under Civ.R. 55. Id. Because Civ.R. 55 is by its terms inapplicable to ex parte proceedings, the notice requirement of Civ.R. 55(A) was not applicable to the proceedings below in this case." Id. In the present case, appellants received constructive notice of the trial date when the trial court journalized its entry on May 9, 1996, stating that trial was to be set for June 5, 1996. See Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio App.3d 436. The trial court's docket sheet indicates the clerk mailed notice of the trial date to the parties. (Docket No. 53). Appellants, however, did not appear at trial, and the trial court entered judgment in favor of appellees. The record presented before this court for review fails to set forth a transcript of the trial court proceedings conducted June 5, 1996. When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Accordingly, appellants' second and third assignments of error are overruled. - 12 - IV. In their fourth assignment of error, appellants assert appellant James Scott should have been permitted to attend the arbitration hearing where he had filed a motion to attend with the trial court judge in the criminal matter for which he was being incarcerated. It is the duty of appellants to provide this court with an adequate record from which to review the assignments of error on appeal. App.R. 9. In the present case, appellants have failed to provide this court with evidence that James Scott was incarcerated at the time of the arbitration hearing, that he filed a motion to attend the arbitration hearing with the trial judge in his pending criminal matter, and that he, in fact, did not attend the arbitration hearing. Therefore, in the absence of an adequate record, we will presume validity of the trial court's actions and affirm the trial court's decision to proceed with the arbitration hearing. See Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. Accordingly, appellants' fourth assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellees recover of appellants their 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 Common Pleas 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. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .