[Cite as Mill City Mtge. Loan Trust 2019-1, Wilmington Savs. Fund Soc., FSB v. Knight , 2021-Ohio-4135.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNT Y

MILL CITY MORTGAGE LOAN TRUST 2019-1, WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE, Plaintiff-Appellee,

- v - TODD B. KNIGHT, a.k.a. TODD KNIGHT, SR., et al., Defendant-Appellant. CASE NO. 2020-A-0053

Civil Appeal from the Court of Common Pleas

Trial Court No. 2020 CV 00345

O P I N I O N Decided: November 22, 2021 Jud g ment: Affirmed

David T. Brady and Suzanne M. Godenswager , Sandhu Law Group, LLC, 1213 Prospect Avenue, Suite 300, Cleveland, OH 44115 ( For Plaintiff-Appellee )

. Anne M. Reese , Legal Aid Society of Cleveland, 121 East Walnut Street, Jeffe rson, OH 44047 and Philip D. Althouse , Legal Aid Society of Cleveland, 1530 West River Road, Suite 301, El y ria, OH 44035 ( For Defendant-Appellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Todd B. Knight, a.k.a. Todd Knight, Sr. (“Mr. Knight ”), appeals the judgment of the Ashtabula County Court of Common Pleas gran ting default judgment against him and issuing a decree of foreclosure in favor of app ellee, Mill City Mortgage Loan Trust 2019-1, Wilmington Savings Fund Society, FSB, as Tru stee (“Mill City”). {¶2} Mr. Knight asserts one assignment of error, contending that the trial court deprived him of due process by granting Mill City’s motion for default judgment without2

Case No. 2020-A-0053 providing him 14 days to respond pursuant to Civ.R. 6(C)(1) and the trial court’s local

rules. {¶3} After a careful review of the record and pertinent law, we find that the trial court did not abuse its discretion in entering a default judgme nt against Mr. Knight. The proper procedure for holding a party in default is set forth in Civ.R. 55(A). Since Mr. Knight neither answered the complaint nor appeared prior to Mil l City’s filing of its motion for default judgment, the response deadlines in Civ.R. 6(C)(1) and similar local rules were not applicable, and the trial court was not required to provide him 14 days to respond. {¶4} Thus, we affirm the judgment of the Ashtabula County Court of C ommon Pleas.

Substantive and Pr ocedural History {¶5} On August 14, 2020, Mill City filed a complaint for “money, for eclosure in reformation, and other equitable relief” against Mr. Knight and others in the Ashtabula County Court of Common Pleas. Mr. Knight was served with the c omplaint and summons by certified mail on August 20 and by personal service on Augus t 22. {¶6} Mr. Knight failed to appear or respond to the complaint. On Oc tober 9, Mill City filed a motion for default judgment, a military affidavit, and an affidavit of status of account. Four days later, on October 13, the trial court filed a judgment entry granting default judgment against Mr. Knight and issuing a decree of for eclosure in favor of Mill City. {¶7} On October 15, Mr. Knight, through counsel, filed a notice of a ppearance and a motion for leave to file an answer instanter. According to Mr. Knight’s counsel, she was unaware of the trial court’s October 13 judgment entry at s uch time. The trial court3

Case No. 2020-A-0053 filed a judgment entry on the same date granting Mr. Knight’s m otion for leave and permitting him until October 30 to file an answer. {¶8} On October 20, Mr. Knight filed an answer and a motion to vacat e the October 13 judgment entry pursuant to Civ.R. 60(B). The trial court scheduled a hearing on Mr. Knight’s motion to vacate. Prior to the scheduled heari ng, Mr. Knight filed a notice of appeal of the October 13 judgment entry and a notice withdra wing his motion to vacate. {¶9} Mill City filed a precipe for an order of sale, which the clerk of courts subsequently issued. Mr. Knight filed a motion to stay executi on of the foreclosure judgment pursuant to Civ.R. 62(B), which the trial court denied

. {¶10} Mr. Knight filed a motion for stay in this court, which we gran ted under certain conditions, including that Mr. Knight, in lieu of a sup ersedeas bond, execute a quit claim deed to Mill City and deposi t it with the clerk of courts

. {¶11} Mr. Knight raises the following assignment of error: {¶12} “The Trial Court erred to the prejudice of Appellant and depriv ed him of Due Process and an opportunity to defend when it granted a Motion f or Default only four days after it was filed, without following Ohio Civ. R. 6(C)(1) and Loc. R. 3 of the Court of Common Pleas of Ashtabula County, General Division, which both provide litigants a 14 day response time to a Motion.” 1

1. Mill City obtained four extensions but did not ultimately f ile an appellee’s brief. App.R. 18(C) provides, in relevant part, that “[i]f an appellee fails to file the appe llee’s brief within the time provided by this rule, or within the time as extended, * * * in determining the appeal, t he court may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if appellant’s brief reasonably appears to sustain such action.” Despite Mill City’s failure to file an appellee’ s brief, the applicable law does not support reversal of the trial court’s judgment.4

Case No. 2020-A-0053 Standard of Review {¶13} We review a trial court’s decision to grant a default judgment under an

abuse of discretion standard. Sericola v. Johnson , 2016-Ohio-1164, 61 N.E.3d 643, ¶ 18 (11th Dist.). An abuse of discretion is the “‘failure to exerc ise sound, reasonable, and legal decision-making.’” State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error. Id . at ¶ 67. By contrast, where the issue on review has been confided to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not en ough, without more, to find

error. Id

. Due Process {¶14} Mr. Knight asserts that the trial court violated his due proces s rights by failing to follow Civ.R. 6(C)(1) and Ashtabula County Court of Common Pleas Loc.R. 3. {¶15} Civ.R. 6(C)(1), which was amended effective July 1, 2019, state s as follows: {¶16} “Motion Responses and Movants’ Replies Generally. Responses to a written motion, other than motions for summary judgment, may be served within fourteen days after service of the motion. Responses to motions for sum mary judgment may be served within twenty-eight days after service of the motion. A movant’s reply to a response to any written motion may be served within seven days after service of the response to the motion.” {¶17} According to the 2019 Staff Notes, “[t]he provisions of Divisio n (C)(1) supersede and replace the differing deadlines for responding to motions imposed by the5

Case No. 2020-A-0053 numerous local rules of Ohio trial courts, thereby eliminating confusion and creating consistency by providing uniform statewide deadlines.” {¶18} Ashtabula County Court of Common Pleas Loc.R. 3, entitled “time for filing pleadings,” provides as follows: {¶19} “Unless otherwise provided by law or other rule, all pleadings, amended pleadings or motions shall be filed within fourteen (14) days a fter the filing of any entry granting leave to file or overruling or sustaining a motion unl ess otherwise specified in the entry itself. {¶20} “The opposing party shall move or otherwise respond to the plea ding, amended pleadings, or motion within fourteen (14) days of filin g such pleading, amended pleading or motion unless otherwise ordered by the Court.” {¶21} Loc.R. 3 appears to be applicable only to responses to pleading s and motions filed following the trial court’s issuance of a judgmen t entry. However, we note that Loc.R. 6(C)(2), entitled “all other motions,” provides as follows: {¶22} “All other motions will be decided without oral hearing unless oral argument is requested and determined necessary by the Court. The moving party shall file with the motion a brief supporting memorandum containing the authorities relied upon and any affidavits or other supporting documents required or appropriat e to file with the motion. Each party opposing the motion shall file a written response within fourteen (14) days after receipt of the motion . Reply or additional briefs or memoranda shall be submitted only with approval of the Court. Motions for leave to plead sh all be in accordance with local rules of Court.” (Emphasis added.)6

Case No. 2020-A-0053 {¶23} In support of his due process argument, Mr. Knight cites severa l decisions from this court and others reversing a trial court’s judgment b ased on its failure to follow similar procedural rules. See Hillabrand v. Drypers Corp ., 87 Ohio St.3d 517, 721 N.E.2d 1029 (2000) (involving a motion for sanctions); El-Mahdy v. Mahoning Natl. Bank , 7th Dist. Mahoning No. 01-C.A.-27, 2002-Ohio-3851 (same); Akron v. Heller , 9th Dist. Summit No. 26969, 2013-Ohio-5228 (involving a motion for relief from judgment);

Rendina v. Rendina , 11th Dist. Lake No. 91-L-019, 1992 WL 217993 (Feb. 28, 1992) (involving a motion for guardian ad litem fees); In re Marquez , 11th Dist. Geauga No. 96- G-1976, 1996 WL 702461 (Nov. 22, 1996) (same); Zamos v. Zamos , 11th Dist. Portage No. 2004-P-0108, 2005-Ohio-6075 (involving a motion to pay chil d support arrearages). {¶24} We find such cases to be distinguishable, however. Unlike the foregoing cases, this case involves the trial court’s granting of a motio n for default judgment that the plaintiff filed after the defendant failed to answer or app ear, which is governed by

Civ.R. 55. Default Judgment {¶25} The proper procedure for holding a party in default is set fort h in Civ.R. 55(A). AMCA Internatl. Corp. v. Carlton , 10 Ohio St.3d 88, 90, 461 N.E.2d 1282 (1984). It provides, in relevant part, as follows: {¶26} “Entry of Judgment. When a party against whom a judgment for a ffirmative relief is sought has failed to plead or otherwise defend as pro vided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor; but no judgment by default shall be entered against a minor or an incompetent person unless represented in the action by a guardian or other such re presentative who has7

Case No. 2020-A-0053 appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application .” (Emphasis added.) {¶27} According to the Supreme Court of Ohio, “[d]efault, under both pre-Civil Rule decisions and under Civ.R. 55(A), is a clearly defined con cept.” Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn ., 28 Ohio St.3d 118, 121, 502 N.E.2d 599 (1986). “‘A default by a defendant * * * arises only when the defendant has failed to contest the allegations raised in the complaint and it is thus proper to render a default judgment against the defendant as liability has been admitted o r ‘confessed’ by the omission of statements refuting the plaintiff’s claims.’” Id ., quoting Reese v. Proppe , 3 Ohio App.3d 103, 105, 443 N.E.2d 992 (8th Dist.1981). “It is o nly when the party against whom a claim is sought fails to contest the opposing party’s al legations by either pleading or ‘otherwise defend[ing]’ that a default arises.” Id ., quoting Civ.R. 55(A). The rule is “logically consistent with the general rule of pleading contain ed in Civ.R. 8(D) * * * that ‘[a]verments in a pleading to which a responsive pleading is re quired * * * are admitted when not denied in the responsive pleading.’” Id ., quoting Civ.R. 8(D). Thus, “[i]f the defending party has failed to appear in the action, a default judgment may be entered

without notice .” (Emphasis added.) Id . at 120. {¶28} However, when a party has “appeared” in an action, the opposing party may not take a default judgment against that party absent a seven-d ay notice. See id

. According to the Supreme Court of Ohio, this notice requirement is “‘intended to protect those parties who, although delaying in a formal sense by faili ng to file [timely] pleadings8

Case No. 2020-A-0053 * * *, have otherwise indicated to the moving party a clear pur pose to defend the suit.’”

AMCA at 91, quoting H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe , 432 F.2d 689, 691 (D.C.Cir.1970). {¶29} Based on the foregoing authority, several Ohio appellate courts have held that response deadlines set forth in Civ.R. 6 and/or similar lo cal rules are inapplicable to motions for default judgment filed pursuant to Civ.R. 55(A) fol lowing a defendant’s failure to file an answer or appear. See L.S. Industries v. Coe , 9th Dist. Summit No. Civ.A. 22603, 2005-Ohio-6736, ¶ 14, 17; Hover v. O’Hara , 12th Dist. Warren No. CA2006-06- 077, 2007-Ohio-3614, ¶ 13; Bank of Am., N.A. v. Sullivan , 3d Dist. Allen No. 1-15-09, 2015-Ohio-2736, ¶ 15; Natl. Collegiate Student Loan Trust 2007-2 v. Tigner , 2d Dist. Montgomery Nos. 27841 & 28035, 2018-Ohio-4442, ¶ 13. Notably, the Third District Court of Appeals’ decision in Sullivan involved a foreclosure case with nearly identical facts to the present matter. {¶30} According to the above courts, the appellant effectively admitt ed the allegations in the complaint because he or she neither answered the allegations in the complaint nor appeared prior to the plaintiff’s filing of its m otion for default judgment. Thus, the appellant was not entitled to the notice and hearing requirements of Civ.R. 55(A), and a default judgment could be entered against the appe llant without notice. See

L.S. Industries at ¶ 17; Hover at ¶ 12; Sullivan at ¶ 15; Tigner at ¶ 17. {¶31} The Twelfth District reasoned that “[w]here there is no require ment that appellant be provided notice of the filing of the default motio n, a local rule that sets the deadlines for a party’s response to a filed motion is simply no t applicable to this situation.”

Hover at ¶ 13.9

Case No. 2020-A-0053 {¶32} Similarly, the Ninth District reasoned that “where no response can reasonably be anticipated and no notice to the defaulting party is necessary,” there is “no reason to delay the administration of justice and the entry of default judgment, where such judgment is appropriate.” L.S. Industries at ¶ 14. According to the court, “[t]he interests of justice and judicial economy do not dictate that a trial cou rt conduct a hearing and delay ruling on a timely motion for default judgment on the chance th at the party in default might at some speculative later date enter an appearance in the actio n.” Id . at ¶ 17. {¶33} The Third District in Sullivan also rejected the appellant’s argument that the trial court’s ruling on the motion for default judgment preclud ed him from appearing and responding to the motion. Id. at ¶ 16. According to the court, the appellant was not precluded from filing a motion for relief from judgment under C iv.R. 60(B) if he had a valid defense to the motion for default judgment. Id . However, the appellant in Sullivan made the tactical decision not to pursue that avenue for relief. Id . Instead, he filed a motion for reconsideration, which the Supreme Court of Ohio has determined is a nullity. Id .; see Pitts v. Ohio Dept. Transp ., 67 Ohio St.2d 378, 379, 423 N.E.2d 1105 (1981) (“[M]otions for reconsideration of a final judgment in the trial court are a nullity”). Analysis {¶34} In this case, Mr. Knight failed to answer or appear prior to Mi ll City’s filing of its motion for default judgment, effectively admitting the alle gations in the complaint. Therefore, the notice and hearing requirements of Civ.R. 55(A) were not applicable. Since Civ.R. 55(A) did not even require Mill City to provide no tice of its motion for default judgment, the response deadlines in Civ.R. 6(C)(1) and the tria l court’s local rules were10

Case No. 2020-A-0053 not applicable. Thus, the trial court was not required to give Mr. Knight 14 days to respond to Mill City’s motion for default judgment. {¶35} Although the trial court subsequently granted Mr. Knight’s moti on for leave to file an answer instanter, this act had no effect on the Octo ber 13 judgment entry. A judgment decree in foreclosure is a final order. CitiMortgage, Inc. v. Roznowksi , 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 23. Courts have c onsistently treated as void actions taken by a trial court subsequent to the entry of a final judgment. See Allstate

Ins. Co. v. Witta , 9th Dist. Summit No. 25738, 2011-Ohio-6068, ¶ 9-11. A trial court may only relieve a party from judgment by the mechanisms provided b y the Ohio Rules of Civil Procedure, which, in this case, would be a motion for relief fr om judgment pursuant to Civ.R. 60(B). See id . at ¶ 19; Civ.R.55(B) (“If a judgment by default has been ente red, the court may set it aside in accordance with Rule 60(B)”). {¶36} The record demonstrates that Mr. Knight filed a motion to vacat e the trial court’s October 13 judgment entry pursuant to Civ.R. 60(B). Pr ior to the trial court’s consideration, however, Mr. Knight filed a notice of appeal of the judgment entry and a notice withdrawing his motion. {¶37} While an appeal divests a trial court of jurisdiction to consid er a Civ.R. 60(B) motion for relief from judgment, jurisdiction may be conferred on the trial court through an order by the reviewing court remanding the matter for considera tion of the Civ.R. 60(B)

motion. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc ., 70 Ohio St.3d 141, 147, 637 N.E.2d 890 (1994). Thus, Howard provides a mechanism by which a party may protect its rights through an ap peal and still obtain a ruling on a Civ.R. 60(B) motion while the appeal is pending, i.e., by filing a motion to remand in co njunction with the notice of11

Case No. 2020-A-0053 appeal. See Willoughby Eastlake City School Dist. v. Lake Cty. Court of Common Pleas , 11th Dist. Lake No. 99-L-130, 2000 WL 522456, *5 (Apr. 21, 2000 ). We caution litigants to consider the foregoing authority prior to withdrawing a pote ntially meritorious Civ.R. 60(B) motion. {¶38} While we are mindful of the serious consequences of foreclosure and are sympathetic to Mr. Knight’s argument, the Supreme Court of Ohio has held that “the rules of procedure must be applied consistently * * *.” Davis v. Immediate Medical Svcs., Inc ., 80 Ohio St.3d 10, 15, 684 N.E.2d 292 (1997). According to the court, “‘[h]owever hurried a court may be in its efforts to reach the merits of a controve rsy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.’” Id ., quoting Miller v. Lint , 62 Ohio St.2d 209, 214, 404 N.E.2d 752 (1980). {¶39} Accordingly, the trial court did not abuse its discretion in en tering a default judgment against Mr. Knight. {¶40} Mr. Knight’s sole assignment of error is without merit. {¶41} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.