COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78318 GRANGE MUTUAL CASUALTY COMPANY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ALECIA MILLER : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JULY 5, 2001 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 99-CVE-6738 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: TIMOTHY L. SPRAGUE Uhlinger & Keis 75 Public Square 8th Floor Cleveland, Ohio 44113 For Defendant-Appellant: ALECIA MILLER, Pro Se 7610 Jeffries Avenue Cleveland, Ohio 44105 PATRICIA ANN BLACKMON, J.: -2- Appellant Grange Mutual Casualty Company (Grange) appeals the trial court's decision finding appellee Alecia Miller not liable for medical bills incurred by Grange's insured, Leslie Nelson. Grange assigns the following as errors for our review: I. THE TRIAL COURT ERRED WHEN IT AFFIRMED MAGISTRATE TURNER'S DECISION ENTERING JUDGMENT FOR APPELLEE ON THE MERITS OF THE CASE AT A DEFAULT JUDGMENT HEARING. II. THE TRIAL COURT ERRED WHEN IT AFFIRMED MAGISTRATE TURNER'S DECISION ENTERING JUDGMENT FOR APPELLEE ON THE MERITS OF THE CASE WHEN THE APPELLEE FAILED TO ANSWER REQUEST FOR ADMISSIONS PROPOUNDED UPON HER IN VIOLATION OF OHIO CIV. R. 36. Having reviewed the facts and the legal arguments of the parties we affirm the decision of the trial court. The apposite facts follow. An accident occurred involving Miller and Nelson. Nelson incurred $1,430 in medical expenses, which Grange paid. Grange then filed a subrogation action against Miller. Miller did not answer Grange's complaint. After the answer period expired, however, she did file a letter communicating with the court her innocence. The court set the case on its default judgment docket. On November 11, 1999, the trial court held a hearing. The trial court upon hearing the evidence, filed a journal entry stating judgment for Miller based on the witnesses' credibility. Grange objected to the magistrate's decision. Grange asserted it propounded a Request for Admissions upon Miller, and that Miller failed to answer. Grange attached to the objections a copy of the Request for Admissions and an affidavit asserting the Request for Admissions was mailed to Miller on May 23, 1999. Because of her -3- failure to respond to the complaint and the Request for Admissions, Grange presumed Miller admitted all elements of the complaint. On June 27, 2000, the trial court overruled Grange's objections and affirmed the magistrate's decision. This appeal followed. We note for purposes of this appeal that no transcript of the hearing was filed. Nevertheless, we can glean from the record that all of the interested parties and witnesses were present at the hearing. Whether they were heard or objected to the proceedings is a matter of conjecture. The issue raised in appellant's first assigned error is whether the trial court had authority to render judgment for Miller on the question of liability when Miller had not formally answered Grange's complaint and the matter had been set for default hearing. Grange argues the trial court, at best, should have removed the case from the default docket and the case should have proceeded on the regular case docket. Our inability to review the transcript limits our options in resolving this appeal. Because we cannot determine whether the parties presented arguments or proffered objections, we, for purposes of this appeal, determine that Miller's communication, although not an answer, constituted an appearance for purposes of Civ.R. 55(A), which provides: [i]f the party against whom judgment by default is sought has appeared in the action, he *** shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. This court in interpreting Civ.R. 55(A) has held that an informal filing, which has been accepted as an appearance by the trial court, is a clear understanding that the party intends to defend. Baines v. Harwood (1993), 87 Ohio App.3d 345, 622 N.E.2d 372, citing Ohio Supreme Court's decision in AMCA International Corp. v. Carlton (1984), 100 Ohio St.3d 88, 461 N.E.2d 1282. We recognize that Baines rested on whether the defendant was entitled to the seven-day notice of the default hearing. Nevertheless, it aids us in this case on the issue of whether Miller had entered an appearance. Clearly, the trial court here felt that Miller's letter constituted an appearance; consequently, the trial court could allow Miller to appear and defend on the issue of damages. From the journal entry, the only information we have is that the trial court ruled in Miller's favor. Thus, we presume regularity in the resolution of that matter. We are concerned, however, if the trial court is determining matters other than those dedicated by Civ.R. 55. Accordingly, we moot Grange's second assigned error and affirm this matter. Judgment affirmed. It is ordered that appellee recover of appellant her 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. KENNETH A. ROCCO, P.J., CONCURS; TERRENCE O'DONNELL, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION.) PATRICIA ANN BLACKMON 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78318 GRANGE MUTUAL CASUALTY COMPANY : : Plaintiff-Appellant : : ALECIA MILLER : : Defendant-Appellee : DATE: JULY 5, 2001 JUDGE TERRENCE O'DONNELL, DISSENTING: Respectfully, I dissent. At issue here on this appeal is the basic right of procedural due process. Hidden from view by the majority's choice to presume regularity from a silent record is a completely backward adjudication of substantive rights resulting in a judgment in favor of a presumptively defaulting party who had neither provided discovery nor timely appeared in the action. The scant record available in this case reveals that the municipal court magistrate conducted an unscheduled trial on the merits of this case, which not only circumvented the spirit of Civ.R. 36 and Civ.R. 55 by granting a final judgment to a presumptively defaulting defendant who had effectively admitted liability by failing to respond to requests for admissions, but also denied fundamental due process to the plaintiff by converting a Civ.R. 55 default hearing into a trial de novo without any prior notice. The following undisputed facts are apparent from the record: Leslie Nelson and Alecia Miller were involved in a motor vehicle accident on January 14, 1998; as a result of that accident, Nelson incurred medical expenses in the amount of $1,430. At the time of the accident, Grange provided automobile insurance to Nelson which included coverage for medical payments, and pursuant to its obligation, Grange paid $1,430 in medical expenses incurred by Nelson as a result of this accident. On March 23, 1999, Grange fileda subrogated action in the Cleveland Municipal Court against Miller alleging that she negligently rear-ended Nelson's vehicle. On April 28, 1999, Miller sent a letter to the municipal court claiming that Nelson had backed into her car. The court determined that this did not constitute an answer, and therefore scheduled this matter for a default hearing on June 15, 1999. On May 23, 1999, pursuant to Civ.R. 36, Grange served requests for admissions on Miller, specifically inquiring about liability for the accident. Miller never responded to the requests for admissions, and by operation of Civ.R. 36(A), she effectively admitted that she had negligently caused the accident and that Nelson did not contribute to this accident. Subsequently, the court rescheduled the default hearing for July 12, 1999. Although no transcript of the proceedings exists from the default hearing, it is apparent from the record before us that Miller appeared at the hearing, and that Grange pursued a default judgment in its favor based upon the Civ.R. 36 admissions, Nelson's appearance, and evidence of the $1,430 it had paid for Nelson's medical expenses. Apparently, without providingany actual or constructive notice of trial, and without allowing additional discovery, the magistrate converted the default judgment hearing into a trial on the merits as evidenced by its journal entry of November 15, 1999: Judgement for defendant on the complaint at plaintiff's costs. Basedon the credibility of the witnesses, the undersigned magistrate finds that defendant was not at fault in the accident that occurred on January 14, 1998. At that hearing, Grange expected one of two possible outcomes under Civ.R. 55, viz., (1) the magistrate would grant its motion for default judgment; or (2) the magistrate would deny the default motion and set the matter for trial. Instead, the trial court conducted a trial without notice to either party or an opportunity to complete discovery. We are unable to identify a statute or rule which specifically requires a trial court to give notice of a scheduled trial date; however, Ohio courts have traditionally held that some form of notice of a trial date is required to satisfy due process. See, e.g., Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Association(1986), 28 Ohio St.3d 118, 125; Le-Air Molded Plastics, Inc. v. Goforth (Feb. 24, 2000), Cuyahoga App. No. 74543, unreported. At the very least, the trial court must provide constructive notice by placing the trial date on its docket. Id. As our court stated in the Le-Air Molded Plastics case: Due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution and Section 16, Article I, Ohio Constitution, requires that every party to an action be afforded "a reasonable opportunity to be heard after a reasonable notice of such hearing." Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d118, 125. The issue of what constitutes reasonable notice is left for a case-by-case analysis. At the very least, where actual notice is not provided, constructive notice that comes from the court's setting down the trial date upon its docket may satisfy the dictates of due process. Id.; Weaver v. Colwell FinancialCorp. (1992), 73 Ohio App.3d 139. (Emphasis added.) Here, the magistrate failed to honor the principles of due process as established in these cases. A review of the municipal court's docket shows that the municipal court scheduled this matter for a default judgmenton July 12, 1999, and never scheduled a trial date in this case. In evaluating the due process considerations of providing notice of a scheduled trial date on a case-by-case basis, the practice of converting default hearings into a contested trial without full discovery or any notice, in my view, falls short of constitutional mandates. This much is obvious from the record before us: instead of receiving an expected default judgment or being denied the same, the magistrate considered the case on the merits of the liability issue, which Miller had judicially admitted, and without providing any time for additional discovery or trial preparation, entered judgment in favor of the presumptively defaulting party. I realize that Grange failed to specifically raise this legal error in its objections to the magistrate's report, and pursuant to Civ.R. 53(E)(3)(b), A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. (Emphasis added.) However, the magistrate's error, which the municipal court adopted, is neither a finding of fact nor a conclusion of law set forth in the magistrate's report. Rather, as a violation of due process, it transcends procedural technicalities of Civ.R. 53(E)(3)(b). The issue before us presents a case of plain error which seriously challenges the basic fairness and integrity of the underlying proceedings in the Cleveland Municipal Court. In its syllabus in Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, the court stated: In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. This case, I believe, presents such exceptional circumstances. Although Grange failed to articulate this issue for the trial court, the principles of due process and basic fairness mandate reversal. The precedent established by today's majority permits a trial court to conduct substantive evidentiary trials at any stage of the proceeding whether or not discovery is completed, and whether or not any actual or constructive notice has been given that the matter will proceed to final adjudication on the merits. This is not a good policy to reinforce, and by affirming this case, the majority is encouraging the magistrate and municipal court to continue this course of conduct. In my view, the court abused its discretion in affirming the magistrate's decision. For the foregoing reasons, I would vacate the judgment of the municipal court and remand the matter for a hearing in conformity with Civ.R. 36, Civ.R. 55 and the principles of due process. .