[Cite as Morgan v. Cherry, 2014-Ohio-3351.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

LARRY N. MORGAN : 

: Appellate Case No. 2013-CA-106 

Plaintiff-Appellant : 

: Trial Court Case No. 13-CV-87 

v. : 

: 

PAUL CHERRY, et al. : (Civil Appeal from 

: (Common Pleas Court) 

Defendant-Appellee : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 1st day of August, 2014. 

. . . . . . . . . . . 

LARRY N. MORGAN, Post Office Box 843, Springfield, Ohio 45501 

Plaintiff-Appellant, pro se

 

JAMES E. HEATH, Atty. Reg. #0003757, Ronemus & Heath Co., L.P.A., 5 East Columbia 

Street, Springfield, Ohio 45502 

Attorney for Defendant-Appellee 

. . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} Larry N. Morgan appeals pro se from the trial court’s dismissal of his 

malicious-prosecution counterclaim against appellee Paul Cherry. 

{¶ 2} Morgan advances two assignments of error. First, he contends the trial court 
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erred in denying his motion for default judgment on the counterclaim. Second, he claims the trial 

court deprived him of procedural due process by failing to hold a hearing on the default-judgment 

motion. 

{¶ 3} The record reflects that Cherry filed a forcible entry and detainer action against 

Morgan in Clark County Municipal Court. The action arose after Cherry purchased a home from 

an estate and found that Morgan was residing therein. Morgan filed a pro se counterclaim on 

January 3, 2012 alleging that Cherry’s lawsuit was frivolous and that Cherry had filed it 

maliciously, resulting in Morgan suffering serious mental anguish, distress, pain, and suffering. 

Following a hearing, a magistrate found Cherry entitled to restitution of the premises. The 

municipal court judge overruled objections to that ruling and adopted it. Morgan appealed from 

the municipal court’s ruling. This court dismissed the appeal because Cherry had been restored to 

the premises and Morgan had not followed the statutory procedure for preventing the issue from 

becoming moot. See Cherry v. Morgan, 2d Dist. Clark Nos. 2012 CA 11, 2012 CA 21, 

2012-Ohio-3594. 

{¶ 4} Following our ruling, Morgan filed a November 13, 2012 motion in the 

municipal court to have the case transferred to common pleas court for resolution of his 

counterclaim. He argued that the counterclaim exceeded the municipal court’s monetary 

jurisdiction. Cherry filed a November 20, 2012 reply to the counterclaim and also requested that 

it be dismissed. The municipal court sustained Morgan’s motion to transfer the case to common 

pleas court. After the transfer, Morgan filed an August 19, 2013 motion for default judgment. He 

argued that Cherry had not timely replied to his counterclaim. Cherry opposed the motion. 

Morgan then filed a September 23, 2013 “notice to correct error of countersuit to malicious 
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prosecution and request for hearing on default motion.” Therein, he clarified that his 

counterclaim alleged malicious prosecution. Also on September 23, 2013 Morgan filed a “notice 

of intention to offer to submit evidence.” In that filing, he stated that he would be using various 

items as evidence “as [the] case proceeds.” On November 14, 2013, the trial court summarily 

dismissed Morgan’s counterclaim. This appeal followed.1

{¶ 5} In his first assignment of error, Morgan contends the trial court erred in denying 

him default judgment.2 He argues that he was entitled to default judgment when twenty-eight 

days passed after the filing of his counterclaim and Cherry failed to respond. Morgan maintains 

that Cherry’s November 20, 2012 reply to the counterclaim “had no merit nor legal standing in 

this case.” (Appellant’s brief at 4). 

 1

We note that the judgment on appeal designates Morgan as the plaintiff and Cherry as the defendant even though Cherry 

commenced the action in municipal court and Morgan filed a counterclaim that was transferred to common pleas court. 

2

Although the trial court never explicitly ruled on the motion for default judgment, its dismissal of Morgan’s counterclaim 

implicitly denied him default judgment on it. 

{¶ 6} We review a ruling on a motion for default judgment for an abuse of discretion. 

McMahan v. Mabberly, 2d Dist. Montgomery No. 25998, 2014-Ohio-1448, ¶ 8; CityMortgage, 

Inc. v. Kermeen, 2d Dist. Darke No. 2011 CA 2, 2012-Ohio-1655, ¶ 33. Here the trial court did 

not abuse its discretion in denying Morgan default judgment. Although Cherry responded to the 

counterclaim beyond the time provided by rule, he did so before Morgan even moved for default 

judgment. In addition, this court has recognized that “‘[w]here a party pleads before a default is 

entered, though out of time and without leave, if the answer is good in form and substance, a 

default should not be entered as long as the answer stands as part of the record.’” Bank of Am., 

N.A. v. Shultz, 2d Dist. Clark No. 2012-CA-70, 2013-Ohio-2567, ¶ 15, quoting Suki v. Blume, 9 
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Ohio App.3d 289, 290, 459 N.E.2d 1311 (8th Dist. 1983). We find that to be the case here and 

see no abuse of discretion in the denial of default judgment. The first assignment of error is 

overruled. 

{¶ 7} In his second assignment of error, Morgan alleges a Fourteenth Amendment 

procedural due process violation based on the trial court failing to hold a hearing on an 

unspecified September 23, 2013 motion. As set forth above, Morgan filed two things on that 

date: (1) a “notice to correct error of countersuit to malicious prosecution and request for 

hearing on default motion” and (2) a “notice of intention to offer to submit evidence.” In the 

former filing, he clarified that his counterclaim alleged malicious prosecution and requested a 

hearing on his default-judgment motion. The latter filing simply stated: “Now comes the plaintiff 

Larry N. Morgan, pro-se who will be using as evidence Ohio Revised Code, case laws, and other 

legal documentation such as journal entries and docket sheets and transcripts[,] and any other 

evidence that comes to light as case proceeds.” 

{¶ 8} The only motion reflected in the two filings is a request for a hearing on the 

default-judgment issue. We are unpersuaded that the trial court deprived Morgan of procedural 

due process by failing to hold a hearing on his motion for default judgment. It is a fundamental 

tenet of law that “[t]he Fourteenth Amendment forbids state actors from depriving individuals of 

life, liberty, or property without due process of law.” (Citation omitted) Hemphill v. Dayton, 2d 

Dist. Montgomery No. 23782, 2011-Ohio-1613, ¶ 99. But “[d]ue process does not mean that an 

oral hearing is always required in disposition of a legal matter.” Yeager v. Beckley, 7th Dist. 

Carroll No. No. 636, 1996 WL 65942, *3 (Feb. 12, 1996). In T.M. v. J.H., 6th Dist. Lucas Nos. 

L-10-1014, L-10-1034, 2011-Ohio-283, for example, the court reasoned that “[w]hile no hearing 
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is required to deny [a sanctions] motion, due process demands such a hearing when an award may 

be made.” Id. at ¶ 96. Similarly, Morgan lacked a due process right to a hearing because the trial 

court’s denial of default judgment did not deprive him of any protected interest. The only 

possible interest here would be a property interest, as Morgan’s life and liberty were not at stake. 

Awarding default judgment is discretionary, however, and Morgan had no legitimate claim of 

entitlement to such a judgment. Cf. Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 

(1979) (finding no property interest in an application to appear pro hac vice because Ohio law 

grants trial courts considerable discretion to approve or deny such applications). And without a 

protected property interest at stake, there can be no viable procedural due process claim.

Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007), citing Bd. of Regents of 

State Colleges v. Roth, 408 U.S. 564, 579, 92 S.Ct. 2701, 33 L.Ed. 548 (1972).3 The second 

assignment of error is overruled. 

{¶ 9} The judgment of the Clark County Common Pleas Court is affirmed. 

. . . . . . . . . . . . . 

FROELICH, P.J., and DONOVAN, J., concur. 

Copies mailed to: 

Larry N. Morgan 

James E. Heath 

Hon. Douglas M. Rastatter 

 3

Nor did Civ.R. 55 obligate the trial court to hold a hearing. Under that rule, a trial court may hold a hearing before entering 

default judgment. CitiMortgage at ¶ 35. The rule says nothing about a hearing before denying default judgment.