[Cite as Landau v. Sposato, 2013-Ohio-4568.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

JILL K. LANDAU, ) 

 ) CASE NO. 12 MA 46 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

BEVERLY E. SPOSATO, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from County Court 

No. 5, Case No. 11 CVI 381 CNF. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Roklyn DePerro Turner 

3685 Stutz Drive, Suite 100 

Canfield, OH 44406 

For Defendant-Appellant: Attorney Tracey Laslo 

325 East Main Street 

Alliance, OH 44601 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Dated: September 20, 2013 
[Cite as Landau v. Sposato, 2013-Ohio-4568.]

DeGenaro, J. 

{¶1} Defendant-Appellant, Beverly E. Sposato appeals the decision of the 

Mahoning County Court No. 5 granting default judgment in favor of Plaintiff-Appellee, 

Jill K. Landau, following Sposato's failure to appear at the hearing in a small claims 

proceeding. On appeal, Sposato argues that the trial court erred in granting default 

judgment against her because she did not receive notice of the application for default 

judgment pursuant to Civ.R. 55(A). Alternatively, she argues that it was fundamentally 

unfair for the trial court to grant her a continuance two days before trial, only to then 

vacate the continuance because the request was untimely, and proceed with the trial 

in her absence. 

{¶2} The notice required by Civ.R. 55(A) before entering default judgment 

does not apply to small claims; thus, this argument is meritless. However, Sposato's 

argument asserting that the trial court granting judgment in favor of Landau in her 

absence was fundamentally unfair is meritorious. The trial court granted Sposato's 

continuance and the entry was time-stamped. Reasonably relying upon this 

information on the trial court's docket, Sposato did not appear for the trial because it 

had been continued. Nonetheless, Landau appeared, and contrary to principles of due 

process, the trial court vacated its previous order granting the continuance reasoning 

the motion had been untimely, and proceeded with the trial. Accordingly, the trial 

court's judgment in favor of Landau is reversed, and this cause is remanded for further 

proceedings. 

Facts and Procedural History 

{¶3} On October 14, 2011, Landau filed a small claims complaint against 

Sposato requesting judgment of $2,915.40 for unpaid legal fees, plus interest and 

costs. The matter was set for hearing for December 1, 2011. On October 19, 2011, 

Sposato was served with the complaint, which stated that if she did not appear at trial, 

judgment may be entered against her by default. 

{¶4} Defense counsel filed a notice of appearance for Sposato on November 

29, 2011. The trial court subsequently granted two continuances for the small claims 

hearing; first, on Sposato's motion, resetting the hearing for January 13, 2012, and 

then on Landau's motion, resetting the hearing for January 27, 2012. 
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{¶5} On January 25, 2012, Sposato filed, via facsimile, a motion for 

continuance and request for transfer to the regular docket. She requested that the trial 

court continue the January 27, 2012 hearing and that the matter be transferred to the 

court's regular docket. She stated that Landau's counsel had been contacted and had 

no objection to the continuance. On January 25, 2012, the trial court issued an order 

transferring the matter to the court's regular docket. The order also stated that the 

January 27, 2012 hearing was continued, but the spaces on the order for the new 

hearing date were left blank. 

{¶6} On January 26, 2012, Landau filed a memorandum in opposition to the 

request to transfer the matter to the regular docket. She explained that her counsel 

consented to a final continuance but was unaware of the request to transfer. Landau 

argued that pursuant to Local Rule 12(D)(2), a motion to transfer must be made seven 

days prior to trial and all fees and costs must be paid in advance or the request must 

be denied. Further, if the request is made for purposes of delay, then default judgment 

may be entered. Landau claimed that Sposato's motion to transfer was made for 

purposes of delay and that Sposato had not paid any cost or fee for transferring the 

matter. Thus, Landau requested the court deny the motion to transfer and render 

default judgment against Sposato. 

{¶7} Despite the continuance the matter came for hearing before the trial 

court on January 27, 2012 at 9:00 a.m. Landau and her counsel were present, but 

Sposato and her counsel did not attend. Immediately following the hearing, the trial 

court issued two judgment entries on that date. In the first entry filed at 9:31 a.m., the 

trial court, inter alia, vacated its January 25, 2012 order which had transferred the case 

to the regular docket and continued the January 27th hearing. In the second entry 

filed at 10:15 a.m., the trial court stated that Sposato failed to appear at the hearing 

and "upon review of the file and evidence provided" default judgment was granted 

against Sposato. 

{¶8} On February 9, 2012, Sposato filed a motion to vacate the January 27, 

2012 judgment pursuant to Civ.R. 60(B) and sought a stay. Landau opposed the 
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motion and the court set the matter for hearing on March 30, 2012. 

{¶9} On February 24, 2012 Sposato filed a timely notice of appeal from the 

trial court's second judgment entry issued on January 27, 2012. 

{¶10} On September 12, 2012, this court issued a judgment entry holding the 

appeal in abeyance for 60 days and remanded this matter to the trial court to rule on 

Sposato's February 9, 2012 motion to vacate. 

{¶11} On November 30, 2012, the trial court issued a judgment entry overruling 

Sposato's motion to vacate. Sposato did not file a notice of appeal from this judgment. 

Civ.R. 55(A) Inapplicable to Small Claims 

{¶12} In her sole assignment of error, Sposato alleges: 

{¶13} "The trial court erred in granting default judgment without service to 

appellant in violation of Civ.R. 55(A)." 

{¶14} Sposato raises two arguments; first that the trial court improperly granted 

default judgment against her because she had appeared in the action by her counsel 

filing a notice of appearance, and thus was entitled to the notice and hearing 

procedures of Civ.R. 55(A), which the trial court did not follow. She alternatively 

argues that it was fundamentally unfair for the trial court to grant a continuance two 

days before the trial, only to proceed in her absence on the date the trial was originally 

scheduled. 

{¶15} "A trial court's decision to grant or deny a motion for default judgment is 

reviewed for an abuse of discretion." Fitworks Holding, L.L.C. v. Sciranko, 8th Dist. 

No. 90593, 2008-Ohio-4861, ¶4. Abuse of discretion means an error in judgment 

involving a decision that is unreasonable based upon the record; that the appellate 

court merely may have reached a different result is not enough. In re S.S.L.S., 7th 

Dist. Columbiana No. 12 CO 8, 2013-Ohio-3026, ¶22. 

{¶16} Pursuant to Civ.R. 1(C), the Ohio Rules of Civil Procedure do not apply 

to small claims proceedings "to the extent that they would by their nature be clearly 

inapplicable." R.C. Chapter 1925, governing small claims matters, reiterates this 

policy. "Except as inconsistent procedures are provided in this chapter or in rules of 
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court adopted in furtherance of the purposes of this chapter, * * * all proceedings in the 

small claims division of a county court are subject to the Rules of Civil Procedure * * *." 

R.C. 1925.16. Although "[m]any of the Rules of Civil Procedure apply to small claims 

court and are clearly applicable and consistent, such as, notice of filing, service of 

summons, and joinder of parties * * * [they] 'should be held clearly inapplicable only 

when their use will alter the basic statutory purpose for which the specific procedure 

was provided in the special statutory action.'" McDonough v. Noble, 7th Dist. No. 80 

C.A. 96, 1981 WL 4728, *2 (June 17, 1981), quoting Harshal v. Farrell, 55 Ohio 

App.2d 246, 247, 380 N.E.2d 749 (1977). 

{¶17} In that vein, several of our sister districts have held that the notice 

provisions of Civ.R. 55(A) where default judgment is sought against a defendant who 

has appeared, but was not present at the default hearing, do not apply to small claims 

proceedings. See Tomety v. Dynamic Auto Serv., 10th Dist. No. 09AP-982, 2010-

Ohio-3699, ¶8-9 (defendant appeared for original trial which was continued; at 

rescheduled trial, default judgment granted and affirmed over claim of lack of notice of 

rescheduled trial date); Miller v. McStay, 9th Dist. No. 23369, 2007-Ohio-369, ¶13 ("we 

find Civ.R. 55(A), by its nature, inapplicable to small claims matters"); Sheaff v. 

Conese, 12th Dist. No. CA-2001-10-242, 2002-Ohio-5607, ¶36 (defendant's pending 

motion to dismiss did not justify non-appearance at trial and did not preclude entry of 

default judgment); Schafer v. McNeill Enterprises, 4th Dist. No. 1071, 1984 WL 5658, 

*2 (Sept. 26, 1984) (defendant appeared for trial but left before case was called, 

default judgment entered in his absence). 

{¶18} We are persuaded by the rationale of our sister districts. Consistent with 

the rationale in Tomety, Miller, Sheaff and Shafer, Civ.R. 55(A) does not require prior 

notice to a defendant before a trial court enters default judgment after a small claims 

trial at which the defendant was not present, even where the defendant has answered 

or otherwise appeared. Accordingly, Sposato's argument that Civ.R. 55(A) applies to 

small claims proceedings is meritless. However, this does not mean that the trial court 

did not err in entering judgment against Sposato. 
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Fundamental Fairness 

{¶19} Sposato next contends that it was fundamentally unfair for the trial court 

to grant a continuance two days prior to a scheduled trial, only to then proceed with 

the trial in her absence and grant judgment in favor of Landau. Sposato argues she 

did not appear because she relied upon the continuance, and that counsel for Landau 

failed to advise the trial court that Sposato intended to defend the suit and that the 

hearing had been continued. 

{¶20} Although small claims cases by their nature are informal and the Rules of 

Civil Procedure not applicable in their entirety or the Rules of Evidence at all, 

fundamental due process principles still apply. See, Winkler v. Smith, 5th Dist. No. 

06CA16, 2008-Ohio-1701, ¶10; Jones v. Cynet, Inc., 8th Dist. No. 9769, 2002-Ohio2617, ¶31. "A fundamental requirement of due process is 'the opportunity to be 

heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783. It is an opportunity 

which must be granted at a meaningful time and in a meaningful manner." Armstrong 

v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). Sposato 

was deprived of her opportunity to be heard in violation of her right to due process. 

{¶21} Admittedly, Sposato did not file the continuance motion more than seven 

days before scheduled date as required by Local Rule 12. Further, there is no 

provision in the trial court's local rules for filing via facsimile, and this court has rejected 

such filings in the absence of a local rule permitting same. Rutushin v. Arditi, 7th Dist. 

No. 12MA144, 2013-Ohio-1427, reconsideration denied, 2013-Ohio-2167 (notice of 

appeal not timely when filed by facsimile and proper paper filing was beyond 30 day 

appeal time). However, the trial court not only accepted the electronic filing of 

Sposato's motion for a continuance two days before the scheduled trial date, it granted 

the motion that day and continued the matter, all in contravention of the local rule. 

Moreover, the trial court's January 25th entry was time-stamped on that date, and the 

docket reveals that the January 27th trial had been continued as of January 25th. 

Thus, Sposato reasonably relied upon that information and did not appear. 

{¶22} The trial court's decision to vacate the continuance and proceed with the 
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trial in Sposato's absence was fundamentally unfair and contrary to principles of due 

process. Despite the fact that the trial court had considered and granted the untimely 

motion two days before the scheduled trial date, it nonetheless vacated the 

continuance, reasoning Sposato had not filed the motion at least seven days prior to 

trial. Accordingly, this argument is meritorious; the trial court abused its discretion by 

proceeding with the trial in Sposato's absence and granting judgment in favor of 

Landau. 

Conclusion 

{¶23} The notice required by Civ.R. 55(A) before entering default judgment 

does not apply to small claims proceedings; thus, this argument is meritless. 

However, Sposato's argument asserting that the trial court granting judgment in favor 

of Landau in her absence was fundamentally unfair is meritorious. The trial court 

granted Sposato's continuance and the entry was time-stamped. Reasonably relying 

upon this information on the trial court's docket, Sposato did not appear for the trial 

because it had been continued. Nonetheless, Landau appeared, and contrary to 

principles of due process, the trial court vacated its previous order granting the 

continuance reasoning the motion had been untimely, and proceeded with the trial. 

Accordingly, the trial court's judgment in favor of Landau is reversed, and this cause is 

remanded for further proceedings. 

Vukovich, J., concurs. 

Waite, J., concurs.