Document for CARTER, JAMES vs. JOHNSON, KAYE

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                                Filed on 05/13/2015 at 03:59 PM in Wayne County, Ohio

IN THE WAYNE COUNTY MUNICIPAL COURT
JAMES CARTER
Plaintiff
vs CASE NO.: 2014 CV-F 001171

KAYE JOHNSON
Defendant

JOURNAL ENTRY

This matter comes before the Court upon a pleading titled Motion In Opposition to
Magistrate’s Proposed Decision, filed by Plaintiff. The Court will consider this pleading as
objections to the Magistrate’s decision.

The record demonstrates that judgment by default was entered in favor of Defendant upon
Defendant’s counterclaim and against Plaintiff on September 16, 2014. Plaintiff contends he did
not receive the seven (7) day notice as required by Ohio Rule of Civil Procedure 55. Ohio Rule
of Civil Procedure 55 requires that a party who has appeared in the action and against whom
default judgment is sought shall be provided at least seven (7) days notice prior to the hearing on
the motion for default judgment. See ORCP 55. A default judgment issued without complying
with the notice provisions of ORCP 55 must be vacated. See Ries Flooring Co., Inc. v. Dileno
Const. Co. (1977) 53 Ohio App.3d 255 at 262.

In the present case, Defendant’s motion for default judgment was filed on September 8,
2014. Plaintiff was not provided with the notice of a pending motion for default judgment, as
required by ORCP 55. Therefore, the default judgment issued on September 8, 2014 shall be

vacated.Filed on 05/13/2015 at 03:59 PM in Wayne County, Ohio

Plaintiff also argues the dismissal of Plaintiff's complaint due to Plaintiff's failure to
appear was improper because Plaintiff did not receive notice of the trial date. However, the
docket reflects notice of the trial date was sent to Plaintiff on November 25, 2014 by the Clerk of
Court. Therefore, the Court does not find the dismissal to be improper.

Accordingly, it is hereby ordered:

1. The default judgment motion issued on September 8, 2014 is hereby vacated;

2. This matter shall be set for a hearing on Defendant’s motion for default judgment

and notice shall be provided by the Clerk of Courts to Plaintiff as set forth in
ORCP 55;

3. The Magistrate’s decision dismissing Plaintiff's complaint is hereby adopted. As
such, the Court hereby dismisses Plaintiff's complaint for failure to appear at the
trial in this matter. The Proposed Decision of the Magistrate concerning the
damages to be awarded to Defendant on Defendant’s counterclaim is not adopted

due to the ruling vacating the default judgment herein on September 8, 2014.

IT IS SO ORDERED.

HONORABLE TIMOTHY R. VANSICKLE

ce:
Plaintiff
Atty. D. Todaro