COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72873 UNIVERSITY HOSPITALS OF : CLEVELAND : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION THERESA L. LUCAS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : JUNE 11, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. 322457 : JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL T. WILLIAMS, ESQ. THERESA L. LUCAS, pro se 1801 East Ninth Street, #630 P.O. Box 14706 Cleveland, OH 44114 Cleveland, OH 44106 JOHN T. PATTON, J.: Defendant-appellant Theresa Lucas appeals the trial court's order vacating her motion for extension of time and denying her motion to vacate the default judgment granted to plaintiff-appellee -2- University Hospitals of Cleveland ( UH ). On January 10, 1997 UH filed a complaint against defendant alleging nonpayment for medical services rendered in the amount of $7,298.85. On the same day a summons was sent via certified mail and returned ten days later marked unclaimed. On April 21, 1997, service of the summons and complaint upon defendant via ordinary mail was requested by UH. The trial court's instructions for service reflects this request and states [a]nswer day is 28 days after date of mailing - answer day 5-21-97. On May 6, 1997, a case management conference was held, defendant did not appear, and the trial court scheduled a default hearing. Two weeks later, on May 20, 1997, a default hearing was held. Defendant did not appear and the trial court entered a default judgment against her. The next day, May 21, 1997, defendant filed a motion for extension of time until July 20, 1997. UH filed a brief in opposition and motion to strike defendant's motion for extension of time. UH argued (1) defendant failed to comply with Local Rule 8(A) requiring the address of the party submitting a motion, (2) defendant filed the motion for purposes of delay, and (3) defendant was properly served so she has no valid reason for an extension. Subsequently, on June 3, 1997 defendant filed a motion to vacate the default judgment claiming the default hearing occurred before she had the opportunity to answer the complaint. Again, UH filed a brief in opposition to the motion to vacate and a motion to quash the motion to vacate. In their motion, UH argued service was perfected via ordinary mail because -3- it was not returned and thus defendant was validly served with the complaint. UH also stated [i]t does now appear that Defendant had until May 21, 1997 to answer the complaint. The trial court granted defendant's motion for extension of time. However, a week later on June 18, 1997, the trial court vacated the granting of the motion for extension of time. The trial court then denied defendant's motion to vacate the default judgment, stating defendant was required to answer by March 13, 1997, failed to do so, and has not shown that she has a meritorious defense. As a result of this ruling, defendant filed her notice of appeal and proceeds pro se. In her brief defendant claims, the trial court erred by vacating her motion for extension of time and by denying her motion to vacate the default judgment; i.e., motion for relief from judgment. In support, defendant contends the trial court erred in granting a default judgment prior to the answer date. She claims the trial court stated in its journal entry the answer date was May 21, 1997 yet it held a default judgment hearing on May 20, 1997 and journalized the granting of the default judgment against her the next day, May 21, 1997. Based on these facts, defendant complains the trial court should not have granted a default judgment prior to or on the same day as the answer date. UH concedes defendant was correct in claiming her answer date was May 21, 1997 and further concedes it cannot find any support in the record for the trial court's answer date of March 13, 1997. However, UH does argue the trial court properly denied defendant's -4- motion to vacate the default judgment because defendant did not meet the requirements necessary to overcome a default judgment as delineated in GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. Specifically, UH maintains defendant failed to present any operative facts justifying relief from judgment that she paid the monies owed UH. The critical question in this appeal is whether the trial court properly granted the default judgment prior to defendant receiving notice of it. Here, UH filed a motion for default judgment and requested a default hearing on May 6, 1997. The trial court set the matter for a hearing on May 20, 1997. On that day the trial court granted UH's default judgment. Defendant did not appear for the hearing. The next day, May 21, 1997, the trial court journalized the granting of UH's default judgment. Meanwhile, defendant made her first appearance in the case filing a motion for extension of time. A few days later, defendant also filed a motion to vacate the default judgment. On June 12, 1997 the trial court inexplicably granted defendant's motion for extension of time after granting the default judgment. Realizing its error, the trial court vacated its order granting the motion for extension of time and denied defendant's motion to vacate the default judgment. The trial court stated defendant failed to answer by March 13, 1997, which appears to be some arbitrary date the trial court picked in relation to the filing of the complaint on January 10, 1997. -5- The answer date of May 21, 1997 is conceded by UH and in both a summons issued by the court and Instructions for Service. Civ.R. 55(A) provides for entry of a default judgment states: * * * 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). Civ.R. 6(D) governs motions in general and provides that every motion, unless permitted to be heard ex parte, shall be determined by the court only after a hearing. Breeding v. Herberger (1992), 81 Ohio App.3d 419, 422. A motion for default judgment may not be heard ex parte where the defendant has appeared in the action. Rather, the motion can only be determined after a hearing of which seven days advance notice is given. Id., construing Civ.R. 55(A) and 6(D). Defendant made her appearance for purposes of Civ.R. 55(A) when she filed her motion for extension on May 21, 1997. Thus she was entitled to the seven day notice provision in Civ.R. 55(A). See Hardware & Supply Co. v. Edward Davidson, M.D., Inc. (1985), 23 Ohio App.3d 145. Subsequently, defendant filed the motion to vacate the default judgment which was denied by the trial court on June 20, 1997. In National City Bank v. Hostelley (July 3, 1991), Cuyahoga Appellate No. 58554, unreported, citing Reis Flooring Co. v. Dileno Construction Co. (1977), 53 Ohio App.2d 255, we held the lack of notice before entry of a default judgment constitutes grounds for -6- vacating the judgment under Civ.R. 60(B)(5). Therefore, we conclude the trial court abused its discretion in denying defendant's motion to vacate the default judgment, i.e., motion for relief from judgment. Defendant's first assignment of error is sustained. In her second assignment of error defendant requests we order a stay of execution regarding UH's motion that defendant file a supersedeas bond. Other than the cover page of UH's motion for trial court to order bond be filed there is no other evidence the trial court ever ruled on this motion. The lower court record is devoid of any documents or evidence regarding this motion. Moreover, defendant states in her brief the trial court has not yet ruled on this motion. Since we have no proof the trial court ruled on this motion, we overrule the assignment. Accordingly, defendant's second assignment of error is overruled. Judgment reversed. -7- 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 her costs herein. It is ordered that a special mandate be sent to said 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. MICHAEL J. CORRIGAN, J., CONCURS. JOSEPH J. NAHRA, P.J., CONCURS IN JUDGMENT ONLY. JUDGE JOHN T. PATTON N.B. This entry 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(E) 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 .