[Cite as Grimm v. Gumto, 2011-Ohio-2664.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95706

TOD GRIMM 

PLAINTIFF-APPELLEE 

vs. 

DANIELLE GUMTO 

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Parma Municipal Court 

Case No. 09 CVG 04302 

BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: June 2, 2011 
ATTORNEY FOR APPELLANT 

Brian J. Williams 

Brian J. Williams Co., L.P.A. 

141 Broad Blvd., Suite 206 

Cuyahoga Falls, OH 44221 

ATTORNEY FOR APPELLEE

Jamie-Lyn Poh 

1649 Laughton Circle 

Broadview Heights, OH 44147 

KATHLEEN ANN KEOUGH, J.: 

{¶ 1} Defendant-appellant, Danielle Gumto, appeals from the municipal 

court’s decision granting default judgment against her and ordering her to pay 

$14,636.66 to plaintiff-appellee, Tod Grimm. For the reasons that follow, we 

reverse and remand. 

I 

{¶ 2} On October 15, 2009, Grimm filed a complaint in the Parma 

Municipal Court for forcible entry and detainer against Gumto, his tenant of 

approximately three years, and for back rent and damages in the amount of 

$15,000. The court subsequently granted a writ of restitution and ordered 

that Gumto vacate the premises. 

{¶ 3} On December 30, 2009, Gumto timely answered the complaint for 

damages and asserted various affirmative defenses. The court set a pretrial 
conference for February 17, 2010; the record reflects that notice of the pretrial 

was sent to Brian Williams, counsel for Gumto, and Grimm. Williams 

subsequently requested a continuance, which the trial court granted. The 

pretrial was reset two times (to March 10, 2010 and then April 28, 2010); each 

time notices were sent to Williams and Grimm. The court subsequently 

denied Williams’s request to continue the April 28, 2010 pretrial conference, 

but neither Williams nor Gumto appeared for the pretrial. 

{¶ 4} The court then set the matter for a show cause hearing on June 2, 

2010, and ordered Williams to appear and show cause why he should not be 

held in contempt for failing to appear on April 28, 2010. The court also set 

another pretrial conference for June 2, 2010. Notices regarding the pretrial 

were sent to both Williams and Grimm. The notice advised the parties that 

the pretrial would go forward unless the court was advised that the case had 

been settled and would be dismissed. The notice further stated: “The Court 

further advises that the parties and their respective counsel are required to 

appear at the pretrial conference. Failure of the defendant to appear could 

result in a default judgment for the plaintiff; failure of plaintiff to appear 

could result in an entry of dismissal of plaintiff’s complaint for want of 

prosecution.” 

{¶ 5} The trial court subsequently granted Williams’s motion to 

continue the show cause hearing and pretrial conference and rescheduled both 
for June 16, 2010. Notices of both events were again sent to Williams and 

Grimm. The notice of the rescheduled pretrial conference contained the same 

advisement as set forth above regarding the consequences of a party’s failure 

to appear. 

{¶ 6} On June 16, 2010, Williams appeared for the pretrial conference 

and show cause hearing, but Gumto did not attend. The trial court granted 

default judgment in favor of Grimm and scheduled an evidentiary hearing 

regarding damages for July 27, 2010. 1 Notices regarding the evidentiary 

hearing were sent to Williams and Grimm. 

{¶ 7} On July 27, 2010, Gumto appeared for the evidentiary hearing, 

but Williams did not. Grimm gave the trial judge a copy of a letter dated 

August 24, 2009, addressed to him and Gumto, in which the city of Parma 

advised them that it had determined after inspection that the house Gumto 

had been renting from Grimm was unsafe and unfit for human habitation, and 

could not be occupied until the code violations had been corrrected. Gumto 

admitted in open court but not under oath that she had allowed the property 

to become so rundown while she was living there that it had been condemned. 

{¶ 8} Grimm also gave the judge copies of receipts regarding repairs he 

had made to the home, as well as a two-page itemization of the expenses that 

showed total repair expenses of $14,636.66. In addition, he gave the judge 
copies of itemized descriptions by the handyman who made the repairs to the 

home that identified the repairs made, the time it took to make the repairs, 

and the cost of each repair. 

{¶ 9} Grimm then gave sworn testimony that the receipts were a fair 

and accurate representation of the costs to repair the damages to the home. 

Adam Kuklisin, who performed the repairs, likewise gave sworn testimony 

that the itemized expenses were a fair and accurate representation of the work 

he had performed at the home. The judge granted judgment in favor of 

Grimm and against Gumto in the amount of $14,636.66. The court 

subsequently denied Gumto’s Civ.R. 60(B) motion for relief from judgment 

without a hearing. 

II 

{¶ 10} In her first assignment of error, Gumto contends that the trial 

court erred in granting default judgment to Grimm. In her second 

assignment of error, she asserts that the trial court erred in denying her 

Civ.R. 60(B) motion to vacate the default judgment. We find merit to both 

arguments. 

{¶ 11} Paragraph two of the syllabus in GTE Automatic Elec., Inc. v. ARC 

Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, states: 

{¶ 12} “To prevail on a motion brought under Civ.R. 60(B), the movant 

 1

After a hearing, the court dismissed the contempt citation against Williams. 
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 is 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 the judgment, order, or proceeding was 

entered or taken.” 

{¶ 13} If any of these requirements is not met, the motion should be 

overruled. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d 

564. A court’s decision regarding a motion for relief from judgment under 

Civ.R. 60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio 

St.3d 172, 174, 1994-Ohio-107, 637 N.E.2d 914. Gumto’s motion met the 

three GTE requirements and, therefore, the trial court erred in denying her 

motion. 

{¶ 14} There is no dispute that Gumto’s motion was timely. Further, 

she satisfied the requirement of demonstrating a meritorious defense by filing 

an answer and asserting affirmative defenses. Mainor v. Jones, 190 Ohio 

App.3d 300, 2010-Ohio-4001, 941 N.E.2d 1207, ¶16, citing Newark 

Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122, 634 N.E.2d 278 

and Bozo v. Clair (Mar. 29, 1979), 8th Dist. No. 38615. “It is not necessary 

for [Gumto] to have proved [she] would ultimately prevail on the defense.” 

Mainor, supra. See, also, Maxim Fin., Inc. v. Dzina (Dec. 2, 1993), 8th Dist. 
No. 65206 (movant’s burden is to allege a meritorious defense; movant not 

required to demonstrate he will prevail.) 

{¶ 15} She also established the remaining GTE requirement; specifically, 

that she was entitled to relief from judgment under Civ.R. 60(B)(5). As this 

court stated in 1373 East Blvd. Condo Assoc. v. Turner-Thompson, 8th Dist. 

No. 90339, 2008-Ohio-3973, ¶7, where the trial court granted default 

judgment against the defendants for their failure to attend a pretrial: 

{¶ 16} “Civ.R. 55(A) permits entry of a default judgment only upon 

parties who have failed to plead or otherwise defend an action. [Defendants] 

answered the complaint, so they appeared in the action. Civ.R. 55(A) is 

therefore inapplicable. Rather than granting a default judgment, the court 

should have proceeded to trial ex parte and required the [plaintiff] to present 

evidence in support of its claims. Its failure to do so was error and 

established the remaining element of the motion for relief from judgment. 

Given the court’s error in granting a default judgment in the first instance, its 

refusal to grant relief from that erroneous judgment constituted an abuse of 

discretion.” (Internal citations omitted.) 

{¶ 17} Likewise, in this case, because Gumto answered the complaint and 

asserted affirmative defenses, any default judgment entered for failure to 

appear at a pretrial conference was improper. Although we recognize the 

trial court’s frustration with Gumto and her counsel, the case should have 
been set for trial and Grimm should have been required to prove his claims. 

Because the trial court erred in not doing so, its subsequent denial of Gumto’s 

motion for relief from its erroneous judgment was an abuse of discretion. See 

Mainor, supra (trial court should have granted motion for relief from default 

judgment because once a party has answered or appeared, a default judgment 

is improper.) 

{¶ 18} Appellant’s first and second assignments of error are sustained; 

the judgment is vacated and the matter is remanded for further proceedings. 

The third assignment of error, regarding whether Grimm adequately proved 

his damages at the evidentiary hearing, is therefore moot and we need not 

consider it. See App.R. 12(A)(1)(c). 

Reversed and remanded. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

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. 

KATHLEEN ANN KEOUGH, JUDGE 
JAMES J. SWEENEY, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR