COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73678 ARTHUR CARD, : ACCELERATED : Plaintiff-Appellee : JOURNAL ENTRY : AND vs. : OPINION : VICTORIA TATUM NKA FRENCH, : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 317778 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Rudolph J. Geraci Terry Jennrich GERACI & LA PERNA 1305 S.O.M. Center Road, #204 Mayfield Heights, Ohio 44124 For defendant-appellant: Wendy West Feinstein Dean M. Rooney DWORKEN & BERNSTEIN CO. 153 E. Erie Street, Suite 304 Painesville, Ohio 44077 -2- PER CURIAM: Appellant, Victoria Tatum, a.k.a. Victoria French ( Tatum ), appeals the trial court's denial of her motion for continuance for failure to appear at the final settlement conference, resulting in a sanction of default judgment. On November 13, 1997, appellant, Tatum, filed a motion for continuance of the aforementioned settlement conference set for November 17, 1997. In support of that motion, Tatum stated that her doctor had advised her not to travel to Cleveland from Florida, her place of residence, because she was currently undergoing medical care for a problem which might require surgery. To further substantiate this claim, Tatum submitted a doctor's note stating that testing for her problem was to begin on November 14, 1997. This was appellant's first request for a continuance, after appellee had been granted three. On November 14, 1997, this motion was denied. A second motion for continuance was filed on November 17, 1997, which included a second note from her physician certifying that Tatum was under medical care and that her physician was of the opinion that she was unable to travel at that time. On November 17, 1997, the trial court noted through its journal that the [c]ourt has denied motion to continue settlement conference. Clients, counsel & adjusters to be present. Failure of clients and/or adjusters to appear in person at settlement conference, in the absence of prior court approval to contrary, will result in sanctions, including dismissal and/or judgment. Counsel for -3- appellant then attended the settlement conference at which time the second motion was denied. On November 18, 1997, pursuant to the court's prior entry, the trial court entered default judgment against Tatum as a result of her inability to appear. The appellant's first assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR CONTINUANCE OF THE THIRD SETTLEMENT CONFERENCE. The grant or denial of a Motion for Continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of continuance unless there has been an abuse of discretion. State v. Unger (1981), 69 Ohio St.2d 65, 67. The term `abuse of discretion' connotes more than an error of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In evaluating a motion for continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. Unger, supra, at 67, 68. Furthermore, in qualifying the Unger opinion, this court developed a four part test which states that [t]o constitute a sufficient ground for a continuance because of the absence of a party, it must appear that the absence is unavoidable and not -4- voluntary, that the party's presence at trial is necessary, that the application is made in good faith, and that the party will be able to attend court at some reasonable time in the future. Heard v. Sharp (1988), 50 Ohio App.3d 34, 35, 552 N.E.2d 665, citing State ex rel. Buck v. McCabe (1942), 140 Ohio St. 535, 45 N.E.2d 762, paragraph two of the syllabus. Addressing the test as developed in Heard; first, it is clear from the record that the trial court had deemed it necessary that appellant attend the settlement conference in order to effectuate settlement. Second, appellant's absence was unavoidable as she had been instructed by her physician not to travel from Florida to Cleveland due to the nature of her condition and the possibility of surgery. Third, appellant filed the motion for continuance in good faith, and supported her assertions with sufficient documentation. Finally, appellant's motion was clearly not made to avoid or thwart the commencement of these proceedings. Tatum was merely asking for a delay pursuant to her doctor's advice. As a result, the trial court abused its discretion in denying appellant's motion for a continuance. It should also be noted that judgment by default is improper where a party has answered. Ohio Valley Radiology Associates, Inc. v. Ohio Valley Hospital Association (1986), 28 Ohio St.3d 118, 502 N.E.2d 599. The appellant's second assignment of error states: II. THE TRIAL COURT ABUSED ITS DISCRETION IN ENTERING JUDGMENT AGAINST THE APPELLANT AS A SANCTION FOR APPELLANT'S FAILURE TO APPEAR AT THE THIRD SETTLEMENT CONFERENCE. -5- As a result of the foregoing, appellant's second assignment of error is rendered moot. See, App.R. 12(A)(1)(c). Judgement reversed and remanded. -6- This cause is reversed and remanded for 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE JOSEPH J. NAHRA, JUDGE 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 .