IN COURT OF t3HiO

PRAMILA M. DOMADIA, ot a1_

Appeilees

V.

MARY A. B1tI04'sS, et al

Appellants

))

On Appeal from the GeaugaCounty Court of Appeals,E?eventhAmellrite DisQrict

Coer.s# of AppmbCase No. 2008 G.2847

MEMORANDUM IN SUPPORT OF 3tJPJSDICT%ONOF APPELLANT MARY A. kiltiCaGS

Paul A. Newman (#0010859) (COUNSEL OF RECORD)

NEWMAN & BP2ICE,I,PA214 East Park StreetChardon, Ohio 44024(446) 286e9549Fox No. (440) 286-6814

126 aol.oom

po Se,AI'PELL.AN°1',MlsltY A. BItiCyGS

Ntary A. Briggs

13113 Claridon Troy RoadBurton, Ohio 44021(440) 635-0464

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b A iAin 'nu SdOSIAH 49bU3 S1138 #Nd101 0101'8z 'NaP

TABLE OF C(}N1`EA1TS

Lage-EXFLAIa.4.TiON OF WHY TMS CASE IS A CASE OF PUBLICOR GREAT GENERAL IN'TFREST .4NLl INVOLVES A SUBSTANTIALCORiSTFTUTI(3NAI. QUESTION .......... ................................................... i

STATEMSNT 6JF Til-P CASE A.IQD FACTS..........:.:..............:......:..:,.:.:.:.:,:

AfLGUNtENT IN SUPPORT OF 1'ROPOSTITOAIS OF LAW .............................. 5

ftygBiSion of Law No. I ....................................... 5

Fi o sizion ^f Zaw i^o. Il ................................................................ 6

?Mpositio^pf Law No. IIl ...........................................................................7

CONCLUSION ............................ ................................................_....... 9

CERTIFICATE OF SEEtV'TCE ................................ ....................... . ................ 9

APPEhIlaâ.7C x. Fa e

dFi.nion of the Geauga County Eleventh District Court of Appeals(Dee. 14, 2009) ...................................... ...................................... 1

Judgment Entry ofthe Geauga County Court of Common PleasJune 4, 2008) .......................................................... ................. l l

Judgment Entxy of the Gata uga County Court of Corrunon Pleas(July 22, 2008) ............................................................................ 14

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PuBLIC OR GREAT ^ENERAl.'N-rERFsT ANDzl"rv^^s ^ ^c^ST^°lr^z. Ca^^z°r^uT^ora.^z ^uiVsTT^

This case and this cause is critical to the public, of gteat genexa] interest and raises a

substantial constitutional quescion.

First, in these dire econoataic times that facc the peoples of the State of Ohio and our

Nation, it is irnperative that individuals w9th good cause be given thezr fair day in court, This

oase involves the forcclosure of an owner occupied single family resideaace bmd on a Default

Judgwent arising from a Judgment Fau:try on 5f4/2007, for a Cotasplaint on a Cognovit Note. The

Cognovit Note was for an entirely different property located withzn the sme county. By

oveclookin g important issues brought up to be considered, the Eleventh District Court of.Appemis

decision could have far a'eaehing effects on many {'?hioans.

4Vhere as the Court of Appeals were given valid errors to take into con.sideratioat and

were supplied with a complete transcript of all of the pxoceedings, thoy failed to eccognize some

Clear and some not so cleax evidence when they arrived at tlaeir eonclusiom.. These wi11 be

referced to chxonologically not in tUeir order of inapo .

The transcript wi21 show testimony that W. bTewmm brought up the 30 to 60 day

continuance with no objection p[ior to Ms. Briggs even addressing the Covrt. When Ms. Briggs

was recognized by the Court she did discuss a eontinuame for the March 5, 2008. She then

eatpiained to the court a settlement agteement reached with plaintift°s attornsy, Mr. Newman,

even though it was not referred to in tiaat manner. Ms. Briggs was not reptesented by council, nor

was the Domadias present at the hearing. Ms. Briggs started to inform the court of the tentat6ve

agreement that had been discussed the day prior with W Atewnzan. At no time did W Briggs

ehtde to the ageeement being tied to the requested continuance. Duing the Motion for Default

Judgmecrt Hearing, I an fact tried to have additional verbal evidence submitted to the Geaeaga

Court of Common Pleas but was stopped short by the Honorable Judge Burt. There was then a

brtef etcc}aange with the couet about not Briggs not having seen Court Documents. The Court told

her he would give the court tepoxter the file and she could go thxough it. Then the proceedings

o'd 1670 'oN SaOSIAaV OJbNj S113M WdLO4 0101 'QZ 0r

were adjourned. Mr Newsnan imanediately approached Bxiggs and nqueswd the check for

$14,000.00. Brxggs wrote out the check psyuble to ihe Domadias believing their previous

discussion of settlement vm accepted and gave the check to Mr.lNewntan. Then Bri

proceeded to look through the frle and have copies made.

At the May 16, 2008, Default Judgment glearing, Ms. Siiggs was under the belief that the

case was settled beteveen the parties. She did read fram a atotaxir.ed affidavit into the record thae

the plaintifts had filed on their behalf on March 5, 2008. Ms. Briggs then addressed the Court

that other checks had been seg►t to the Domadias and she lisW them by date, check number and

amount. These checks were not included in the notarized affidavit or included, to the best of her

knowledge in the J tmount and at that time she was under the belief that they had not

been cashed. Ms. Briggs then continued to addwss the court about giving tvlr. Newman a check

for$14,000.00 on &latch 5, 2008 as discussed at the previoaas hearing and about her a,dherence to

the verbal settlement vhaieh inciuded interest paymeos to be accepted for 12 to 18 months and

foreclosure would not occur because we had a new agreement Settlement of a matter does not

mean payment in fiill immediately. Briggs then tried to adwit evidem to the court but was not

permitted to. The Court again "cut sne ofP" and fa9led to recog,nize the acceptance and cashing of

the $14,000.00 check as evidence that a settlement had been reached. At no time did I tender ehe

check to only reduce my debt as implied by tlie Court. Then there was considerable talk between

Briggs and the Court to include Honorable Judge Burt not considering the affidavit filed by

Domadia and the uwue claims that were stated in it.

If the Bleventh District Court of Appesls thinks that the arguments are without merit

based on not having been allowed by the Court to submit evidence as described in the trauscripts.

Nor that having discussians on the record about a$14,0t10.00 payment with interest payments

discusscci in court aud not aefuted by plaintiffs counsel d' thai first hearing and then castdtag

aaid check is not strong evidence of a settlement, I strongly disagree with this opinion. I contend

that I did not originally submit mwers to the Complaint because I was without council and

when I believed a se#lement had beeA reached by the actlons of plaintiif's attorney I was not

aware thalt I needed to. As of this writing I have yet to see the order GRANTING L.E.A,VB'f®

FILE ANSWERS IN INSTANTBIi accepting my amweas filed by my cou,assl. Thc Eleventh

Distrlet Court of Appeals error iaa their JUDGMENT E3TRI' OpINLt)N (lvar5) by statgng a

JUDGMENT LIEN was obtained in a separate case by I3ozrtsdias in January of 2007. Complaint

I A i0n nta SNOSIAaV OJW S1131d Wd[O:tr 0101'sz 'W

in that Case No.s 07MU00449 and 35/29393 was faied and :TC7IILr ENTRY entered into all

on 5/4/2007. 1 contend that it is an error of little consequence but, it is still an error.

Secoud,l`he Constitution of the State of Ohio, is rhere as a basis in which we form our

government in the democratic society in which we live. It is imperafive that the Bill of Rights

and the Amendnaents be adhered to by all branches of governnaemt. Then by that governtnea'it the

laws of The State of Ohio are set down. When cieeted or appointed povetament officials take

their Oath of OjMce, they swear or affirm to protect and defend the Constitution of the United

States and the Constitution of the State of Ohio and to faithfuliy execute the duties of the office

they are to hold, I, Mary A. Briggs, am just a lifelong Geauga County resident that takes pride in

the prindples of our sovereign nation and the laws in the State of Ohio. The notions tbat in our

courts we wiil, no matter what ou.r station in life, receive fair ap.d unbiased treatment. That we

will be able to fsce our accaavers, have evidence p%esented against us in a court of law and be able

to address ait the facts and be given an oppornunity to cross exatb;ine the same.

I come from a fairly small coarrtty of approxirnatel.y 93,000 xesidents, I am active in my

comrnunity and know a great many people including most local government officials. I am

honorable in my deatixigs with others. I also have an ranflin.ehing belief'rn the process.

Lastly, this brings me to the belief that this case Mexits ]urisdiction on the grounds that it

has a Substantial Constitutional Question involved. Moxe precisely the Ohio Bill of fUgkats:

Aaittezc $m of ts

Iirafle+naGde RtghtL

§ 1 All men are, by nature, free and independent, and

have certain inalieaxable rights, among whicb: are those

of eajoying and defending life and liberty, acquiring,

possessing, and protecting property, and seeking and

obtaining It.appiness and safety.

(1851)

3tedressfor drajaarp, Drse process:

§16 All courts shall be open, and every person, for an

injury done him in his land, goods, person, or reputation,

0 1 tA7a •nN S8OSIA9V 00M S113M W04 OIflZ'BZUf

shall have xmnedy by due cotarse of law, and sha21

have justice administered without denial or delay.

Sufts may he droaaght against the state, in such courts

and in such manner, as anay be providod by law.

(1851, am. 1912)

L°aawea reserwuf to elee people.

§20 This enumeration of rights shall not bc onnstpued

to ixnpair or deny ottzei^s metn£aaed by the people, and a1l

powers, not hemin delegated, remain with the people.

(1851)

STATEMENT CyFTHE CASE

In Augusc 2007, Appellees, PrsrmiJ.a aW M.J.1?oanadla, fied a foreclosure acPSon on tJxe

residewe of Appeliant Mary A. Briggs ("Appel2annt") in the Geauga County Court ofCoanneon

Pteas.

On November 29, 2007, Appellees filed a Motion for Default Judgment. On March 5 and

May 16, 2008, .fappetlees and Appellant Mary Briggs aitended heariaa8s on the aitatter. On June 4,

2008, the Geauga Couaty Court of Comea.on Pleas i.ssued a Judgment Entry granting the Default

Judgtwnt for foteclosu,re.

STATEMENT OF FACTS

On May 7, z007, Appellees obtained a judtpuent lieat pmsuant to a cognovit judgeneat

obtained against Appellant. On August 7, 2007, Appellees filed a for'eclosure actRon on the

residence of Appellaut, at 13113 Claridon-Troy Road, Banton, Ohio. (T.d. p. 4). t)n Novornber 29,

2007, Appellees 51ed a Motion for Defauult Judgznent and circutated a judgment entry. (T.d. p, 23,

32,35). In Appei]®e's Motion for Default Judgment they sought judgnerat and foreciosure against

defendants Mary 8rxns, Joan and Kenneth Dettelbaoh, end Peta.r^-Ohio Corp,

A A Wn nra SNOS[AO"d OJNV3 S113M Wd80:ti 0IO6'81'Ndf

Appellant, who was pro se at the Rirne, physi'cally appeared and was presont in cotut for the

hearings on tlae foreclosure matter on March 5 and May 16, 2008. (See 7C.p. of March 5, 2008 and

T'.p. of May 16, 2008). At both heminp and in prior communication with Appsllees' counsel,

Appellznt discussed settlement and resolution of tbo matter. (T.p. of Match 5, 2008 p. 3 and T.p. of

May 16, 2008 p. 7, l0, i5-18). Although no forrtaal answer was filed vAth the trial court, Appellant

contacted Appellees' oounel and believed she had an a$reement with Appellees to pay the sum of

Fourteen Thousand Dollaes ($14,000.00) in March 2008 and Niaxe-Ilundred Seventy-Seven 1)ollars

and Sixteen Cents ($977.16) per month for one year, during which time Appellant would have the

opportu,uity to refinance or otherwise satisfy the obligatiotz to Appellees. (T.p, of May 16, 2008 p. 6-

8). AppeRee.s c.ashed Appellant's check written in MatGh 2008 for Fourteen Thousand Dollars

($14,000.00) pursuant to the verbal agreeanent. (`I'.p. of May 16,2008 p. 6). Appellant relied on her

conversations and iaateractions vaitla A.ppelieE°,s' counsel, and therefoxe did not file a written answer

with the trial court.

ARt'iUTyl^dT ITd S1UI°FQRT 4F ^'It61'QSITIQN3 QF LAVd

LAW AND ARGUMENT

ftonosetimra of I.aw x

According to Ohio R. Civ. Q. 55(A),

When a party against whom a judgsuent for affiranative relief is sought has failed

to plead or othez°wise defend as provided by these aules, the party eratitled to a

judgment by default shali apply in writing or orally to the couc2 therefor... If tlse

party against Whom judgrmcnt by default is sought has alspeared in the actaon he...

shalt be served with written notice of the application for judggnent at least seven

days prior to the hearing on such application.

"The detemtimtion of whether a patty has appeared in an action for the purposes of CDWo

R. Civ. P. 55(A) notice requirements does not necessarily hinge on whether a formal filing was

ni 1 167n *nN SHOSIhaU 09SV3 S113M WdWtr 0101'810f

made with tlxe coaart." M#amisbzrrgMoted r. Huntington Nat'1 Bank (1993), 88 Ob.io App. 3d

117, 126, 623 N.E. 2d 163. An overriding and dispositive concern in cases addressing this issue

of appcarance was vab.ether communication between partks or connsel demonstcated a clear

intent to defend a sau4. Hywr.ty Logistics Servs. v<4shcraft (2000) Ohio 1620 (31, App. lCDist.

Hancock County 2000). See, e.g.,ArdCA Internatl. Corp. v. Carlton (1984), 10 Ohio 3t. 3d 88,

461 N.E.2d 1282; .BAines v. Harwood (1993), 87 Ohio App. 3d 345, 622 2dI,2d 372;

lv3'wrraasburg Adotel v. Huntfngtora 14iatt. Bank (1993), 83 Ohio App. 3d 117,623 PI.E.2d 163

Motel v. Huntington Natr. BBark (1993), 88 Ohio A.pp. 3d 117,623 N.p.2d 163. "A paaty appears

in the action... when tbat party clearly expresses to the opposing party an intention and purpose

to defend the suit, regardless ofwhether a formal filing is made." Afia»aasburg Motel, 88 Ohio

App. 3d at 126.

The tria.l court statss in its Judganerit E,ntry that "Appel@ont failed to answer or make an

appeareamce" Although A.ppelta.mt never fotattally f'iled a written answer with the teia1 court, she

physically appeared at the March 5 and May 16, 2008 hearings showing a clear intent to defetad

her case. Fuztbernxore, Appellant cornanunacated with Appellees' counsel on a number of

occasions in respovse to Appetlees' foreelosure aetion to try and settle the issue. After

negotnations in lViarch 2008, Appellant agmed to pay Appellees Fourteen Thousand Dollars

($14,000) and additional monthly payments along with the chance to refinance or otherwise

satisfy her obligationg to Appeilees. (T.p. of May 16,2008 p. 6-8). Appeltant's negotiations

with Appellees' counsel show a clear intent to defend the foreolosure action. Furthermore,

Appellant acted on the verbal ageement with Appellces' counsel by writing a check fbr the

Fourteen Thousand Dollars ($14,000), which Appellees then cashcd. Appellart4's interactions

and agreement with Appellees' counsel clearly express Appellant's intention and pnxpose to

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defend the suit. Thus, Appellant did make an appearance under Ohio Civ, & P. 55(A) and

default judgxnent shonld not have heen granted.

1°roeaosatiia of 7L^w 2

A$ettlernent cigre.enra_eat requraq a meeting oftbir minds as well as an offer and

acceptance of that offer. Rugi v. Fan Co. (1997), 79 Ohio St.3d 374, 376,1997 Ohio 380,693

t+iX2d 337. The Supreme Coura of Ohio has held that or°ui settlenaent agreements entered into in

the presenee of the court constitute binding eontraCt erced v. SzertinglrarltasiPies (1972), 31

Ohio St2d 36, 2$5N.E.2d 324, pararaph one of the syllabus. In Spepced, an oral setdement

agreement was reached in froni of the judge in ehasnbexs- However, the plaintiff refused to sigii

a retease, The Supreme Court of Ohio held that there was an enforceable settlement agreement

between the palies. Id at 39.

At tb.e March 5, 2008 hearang, 7,ppe(lant stated that her aud Mr. Atewna.an had met prior

to the hearing and agreed to hold off on the foreelosuae motion on the condition that Ms. Briggs

would pay Pouxteen Thousand Dollars ($14,000) and Nine Hundred Seventy-Seven Dollars and

Sixtee.t Cents ($977.16) a month for up to a year. (T.p. of March 5, 2008 p. 4). Appellant

performed on her part of the agreexnent by providing Mr. ATewrtrau with the check for Fotarteen

Thorasand DoLlars ($14,000) npon his request. Mr. Newman then cashed the Fourteen 1`housared

Dollar ($14,000) check. Ms. Briggs also provided cheeks worth One Thousand Dollars ($1,000)

and Two Thousaesd Doltars ($2,000), which were never cashed. (T.p. of May 16, 200$ p. 7).

Despite the fact t,hat Ms. Briggs coaxtanued to make payments to the Domadias, Appellees signed

an affidavit statang they had not rweived any money since Decencber 2006. (T.p. of May 16,

2008 p. 5). However, Ms. Driggs had sent numerous checks including one for Pourteen

Thousand Dollars ($14,000) that was cashed by Appellees in March 2008. (T.p. of May 16,

71 A Wn M H©s1nQH ODdVJ S11A Wa80:b 0101 WOP

2009 p. 7). ISespite Ms. Briggs payments, Appe11ew continuetl on rhe foreclosure action nnd

refused to acknowledge payments beyond LBecember 2006.

Erommom ®ff T,aer 3

ArtiekI: ft otR4&hl4

Irrg ' bte Ragdsts.

§ 1 fb11 men are, by nataue, free atkd and nt, and

have certain inalienable rights, among which are those

of Enjoying and defendang life and liberty, acqtaiaing,

possessing, and protecting pwpaty, and seelang and

obtainixag happ'mess and safety.

(1851)

Redras for injury; dlue,pr®cess.

§16 All courts sball be open, and every Person, for an

injmy done him in his land, goods, person, or reputation,

shatl have remedy by due cflurse of law, and s}iall

have justice administered withotat denial or delay.

Suits may be brought against the state, in such cowts

and in such manner, as may be provided by law.

(1$31, am. 1912)

Powers reserved to tlre p¢oPle,

§20 This entame,tation of rights sball not be construed

to impai r or deny otheers retained by the people, and all

powers, not bezvin delegated, remain with the people.

(1851)

ci a rA7n 'nra Sa0SIA0d flJdUd S113M Nd8flI 0106'e61VP

CONCLUSTON

For the reasons discussed above, this case involves matters of public and great general interest

atad a substantial constitutional question. The appellant requests that this court accept jiarisdictiotti

in tlti.s case so t1at the important issues presented uri]i be reviewed on the merits.

Respectfnlly subm.atted,

Cerfifige of Service

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counsel for

appellees, Paul A. Ncwniau, Esq. 214 East Park Street, Chardon, Olaio, 44024 on January 28,

2010.

ti^ a I h76 M Mslnad aNU S113M waao:ti 0 1O1 '8l'NVf

r IN THE COURT OF APPEALSSTATE OF OHIO r: , rr^ a

COUNTY OF GEA19SA Q"C)1 4 2W9

UCPdIM M. KAfl97MskjC! EpK OF oouRr$

PRAMILA M. l3OMADiA,. couiqry

Plaintft-AppeNees,

-us-

MP,RY A. BRIC•;CS, et al.,

Defendant-Appellant.

ELEVENTH DISTRICT

JUDGMENT ENTRY

CASE NOe 2008-042847

For the reasons stated in the opinion of this court, appellant's assignments

of error are writhout merit. It is the judgment and order of this court that the

judgnsent of the Geauga County Court of Common Pleas is affirmed.

Costs to be taxed against appellant

PRES 3 WJDGE MARY JANE TRAPP

FOR THE COURT

ci a1i ihWnr

e J I 9 9 ^'--SWAfl'd 038Vi S113M Wd80:6 019616'Ndf

THE COURT OF APPEALS

ELEVEMTFI APPELLATE DISTfi1CT

®EAl1GA COUNTY, OHIO

PRAtNILA M. DCMADIA, et® ,% OP 1 i'd 1® Id

Plaintlffs-Appe JVI -^, N ^Ada CASE N®o 2008^-atf47

^- vs -

MARY A. BF2iGGS, et ai.,

Defendant-Appeilant.

Civil Appeal from the Court of Common Pleas, Case No. 07 F 000821.

Judgment Affirmed.

Paul A. Newman, Newman &Brice, L.P.A., 214 East Paric Street, Chardon, OH 44024(For Plaintiffs-Appeilees).

Caro(yn J. Paschlte, Law Offices of Carolyn J. Paschke Co., L.P.A., 10808 KinsmanRoad, P.O. Box 141, Newbury, OH 44065 (For Appellant Mary A. Hriggs).

MARY JANE TRAPP, P.J.

(%i) Mary A. Briggs appeals from the judgment of the Geauga County Court of

Common Pleas, which upon a motion for default judgment ordered a foreclosure of Ms.

Briggs' property to satisfy a judgment lien. The court found that Ms. Briggs, although

duly seived, failed to fiie an answer or make an appearance, and that the Domadias

were due $146,373.60 plus interest at the rate of 8% per annum from March 5, 2008.

{¶2} Ms. Briggs contends the court erred in granting the Do,madias' motion for

default judgment and orderirig a foreclosure because she did make an appearance, and

01 A rF7n M SNOS1AaV 098dj S113M Wd804 OIOG'8t'NdP

further, that the Domedias violated the parties' oral settlement agreement by proceeding

with the foreclosure action.

{13} We determine that Ms. Origgs' contentions are without merit. In the first

instance, the issue of Ms. Briggs' failure to make an appearance is moot, as the trial

court addressed the issue upon a remand from this court in an appeal filed by a different

defendant.' In that judgment entry, which is also on appeal in Ms. Brigg's companion

case, ®ornadia v. Briggs, 91th Dist. No. 2009-L®2899, the court corrected the clerical

error that noted her failure to appear or file an answer in the June 4, 2008 judgment

entry. The trial court found it did not change the validity of that judgment because It is

evident that Ms. Briggs did present a defense, and most fundamentally, produced no

meritorious defense to the Domadias' motion for default judgment.

{14} We also determine that Ms. Briggs' second argument, that the Domadias

violated their oral agreement to dismiss the foreclosure action, is without merit because

Ms. Briggs introduced no evidence of a settlement agreement. The court gave her

ample time to produce evidenoe that allegedly supported the existence of a settlement

agreement by continuing the hearing on the motion for default judgment, and delaying

the filing of the final foreclosure decree.

{¶5} As the t(a9 court continually reminded her, and as vve must also note, Ms.

Briggs has been trying to appeal the underlying judgment lien obtained in a separate

case by the Domadias in January of 2007. Ms. Briggs failed to appeal the judgment

from fhat case, and, therefore, the original judgment lien remains.

{16} Thus, we determine Ms. Briggs' appeal is without merit and affirm,

1. Geauga Savings Bank's appeal of the default judgment was later dismissed by this court on ®ecember9fi,2®Od.

2

11 a /r,Ta •ns SHOS1AOa 006VJ S113M 161d80:1? 0IOUsz -ivvr

(¶7) gubatantibe and f^rocga^urat i acfs

(18) The genesis of this r.a.se was an original money Judgment against Ms.

Briggs in the amount of $146,560.75. Thereafter, a judgment lien encumbered Ms.

Briggs' property located in Claridon Township.

(¶9) In August of 2007, the Domadias filed a foreclosure action, and in

November of 2007, they filed a motion for default judgment. Two hearings were held on

the motion for default judgment, the first on March 5, 2008, where the Dornadias

presented evidence as to the outstanding amount of the judgment. Ms. Briggs

appeared at the default hearing and requested a continuance, believing the case could

be seftied, and informed the court she was prepared to give the CJomadias a check for

$14,000 that very day.

(110) The court did continue the hearing on the motion for default judgment and

noted that Ms. Briggs had not filed an answer. Ms. i3riggs contended that she never

received the original complaint. The court reviewed the case file and showed her that

service was proper. The court also offered her the entire court file for viewing. Ms.

Briggs did make the payment, which the Domadias accepted at the end of this hearing.

The amount was later credited to her In the final foreclosure decree.

(¶12) At the second hearing, held on May 16, 2008, the court reminded Ms.

.Briggs that she was not before the court to defend the original cogriovit judgment that

had been entered in the previous case. The court explained that the Domadias' current

action was a foreclosure action to execute upon the judgment lien. The court further

explained to Ms. Briggs that the only defense to the foreclosure aotion would be that the

judgment was paid in full. It is beyond dispute that Ms. Briggs failed to submit any

3

sNOsiAaV 0Haj s»M WdbO:b oioz -si; -0r

evidence of satisfaction of the judgment or, for that matter, any evidence of an

executory settlement agreement. The court further found that the parties were unable

to settle the matter and directed the Domadias' attomey to submit an appropriate

judgment entry.

{112} Several weeks later, on June 4, 2008, the court granted the ®omadias'

motion for default judgment and issued the foreclosure decree, finding that Ms. Briggs,

although duly served, failed to answer or make an appearance. The oourt found that

$147,373.80, plus inter®st.at_ a rpte of 8% per annum, remained due and owing on a

judgment in favor of the Domadias from March 5, 2008 (crediting Ms. Briggs with the

$14,000 payment). The court further found that all necessary parties were property

served and that two other parties, including Eyesuga Savings Bank, failed to attend the

two hearings before the court.

{q(13} The court ordered that Ms. Briggs' property be sold and the liens

marshalled, concluding that the Domadias, as the first and best lien holders, were

entitied to satisfaction of the lien, and that the Geauga County Treasurer was owed

accrued real property taxes, assessments, penalties, and interest.

{qj14} Both Ms. Briggs and Geauga Savings Bank filed motions for relief from

default judgment and, at the same time, both Ms. Briggs and the bank filed appeals

from the court's grant of default judgment to the C3omadias. We issued a stay of

execution in Geauga Savings Bank's appeal and remanded the matter to allow the trial

court to rule on the bank's motion for relief from judgment. Geauga Savings Bank's

appeal was dismissed after its claim was settled. We stayed Ms. Briggs' appeai as well

in case the trial courts ruling had some effect or bearing on this appeal.

4

c tirn n^a SlIOSIAOU O9M S113M WdbO 1 O l01•$Z 'NUP

{115} Ms. Briggs now raises two assignments of error regarding the trial court's

ruling upon the Domadias' motion for default judgment and foreciosure decree:

{116} "[9] The trial court erred in granting a default judgment for foreclosure on

appeiiant's residence by finding that appellant failed to appear.

{1(17} "[2] Plaintiffs vioiated the parties' orai agreement by moving forward with

the foreclosure."

{^13} $tandard of Revie^r - t'^o lon for ^efauff Jend rnent

(^19} "The granting of a default judgment, analogous to the granting of a

dismissal, is a harsh remedy which should only be imposed when The actions of the

defaulting party create a presumption of willfulness or bad faith."' Hale v. SYerl-Tec

Seivices, Inc., 11th Qist. No. 2008-G-2876, 2009-®hio-3935, Iff25, quoting Johnson

ConYmis, lnc, v. Cadle Co., 91th i?ist. No. 2006-T-0030, 2007-Uhio-3362, 116, quoting

Zimmerman v. Group Maintenance Corrp., 11th Dist, No. 2003-A-0105, 2005-Qhio-3539,

121 (citations omitted). "f! triaf court's decision to grant or deny a motion for default

judgment is reviewed under an abuse of discretion standard." id., citing Huffer v. Cicera

(1995), 107 Ohio App.3d 65, 74. An abuse of discretion is no mere error of law or

judgment; rather it connotes an unreasonable, arbitrary, or unconscionable attitude on

the part of the trial court. Blakemore v. Blakernore (1983), 5 Ohio ut.3d 217, 219.

{^ZO} ^ailure to A^pear or File are Anse^er

{921} In her first assignment of error, NTs. Briggs contends the trial court erred in

finding that she failed to appear or file an answer. We find this assignment of error to

be moot, as the court recognized Ms_ Briggs' appearance at the two hearings and intent

5

n^ J I U n'nia SHOSIAOV ODNMl S113M Wd60:0 010l'8Z'NbP

to defend on the motion for defauit judgment, considered her arguments, and then

corrected the finding of her failure to appear in a later judgment entry on Apri16, 2009,

{q22} Ms. Briggs concedes that she failed to file an answer, and that she was

present for both hearings with the Intent to defend. There is no question the court

allowed her to present a defense, considered her arguments, and leniently allowed her

additional time to satisfy the judgment lien before issuing the foreclosure deoree.

{¶23} Ms. Briggs is correct in her asserfion, as the court noted, that she

"appeared" for all intents and purposes, pursuant to CIv.R. 55, indqating her intent to

defend against the Domadias' motion for default judgment.

{$24} We recognize that °jd]efault judgment is a disfavored procedure.

Therefore, in the main, Ohio courte have interpreted the requirement that a party to be

held in default must have `appeared' in the case, in order to be entitled to notice of the

default hearing, with extreme liberty. Essentially, a party has appeared, for purposes of

Civ.R. 55{A}, if it has had any contact, however inforrmal, indicating it intends to defend

the suit, with the party moving for default judgment. Quatchoice v. Baumgartner, 91th

Dist. No. 2007-T-0086, 2008-®hio-1023, ¶14, citing, Rocire v. SaBsbury, 6th Dist. No, r-

05®01 4, 2006^ t7hio-2615, 119-20.

{125} Ms. Briggs put forth an active defense during the hearings on the motion

for default judgment. She was present for both hearings on March 5, 2008, and May

16, 20W The court continued the March 5, 2008 hearing so that Ms. Bciggs could

submit evidence of an alleged settlement agreement to satisfy the judgment. Apart from

noting the court's error in finding that she failed to appear, Ms. Briggs offered no

evidence upon which relief could be granted. Indeed, she presented no meritorious

6

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defense; no evidence of mistake, inadvertenos, surprise or excusable negiect; no newly

discovered evidence; no evidence of fraud, no evidence that the judgment had been

satisfied, or any "other reason justifying relief from the judgment."

{(P6) The Domadias filed the foreclosure action in order to satisfy their judgment

which had been granted in a separate case in January of 2007. Ms. Briggs contends

she did present evidence of a settlement agreement in the form of two checks she

issued to the Domadias in April and May of 2008. Ms. Briggs admits these checks were

not cashed._ , ,. .

{¶27} She is correct that on the day of the March 5, 2008 hearing, she gave the

Dornadias a check for $14,000, which was cashed. The court took notice of the

$14,000 payment and credited this amount to iUis_ Briggs against the total amount due

on the judgment in the foreclosure decree. Ouite simpiy, Ms. Briggs offered no

evidence of a settlement agreement and did not satisfy the outstanding judgrnent

against her.

{12$} Thus, we find no abuse of discretion in the trial court's award of default

judgment and the issuance of the foreclosure order.

{¶29} Ms_ Briggs' frst assignment of error is without mertt.

{130} ^rounds for Reiief frorn i^fault Jtad rnent -^ra6 ^ett1 entNeootiations

{131} In her second assignment of error, Ms. Briggs contends the triai court

arred in granting the Domedias' motion for default judgment because the parties

allegedly had a settiement agreement, whereby she would pay and did duiy pay, the

sum of $14,000 at the hearing in good faith; and that she continued to send several

checks thereafter to satisfy the money judgment against her.

7

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{1[32} As noted above, there is no merit to Ms. Briggs' contention that a

settlement agreement had been reached. The $14,000 payment tendered at the close

of the March 5, 2008 hearing was credited against the original judgment in the June 4,

2008 foreclosure decree. The Domadias did not cash any of Ms. Briggs' sporadic

checks of varying amounts that were sent thereafter.

{133} There is, quite simply, no evidence that a settlement agreement had been

reached or that the original judgment had been satisfied. The court had no choice but

to order the foreclosure. In fact, during the hearing on March 5, 2008, Ms. t3riggs

requested a 30 to 60 day continuance, believing that the parties could settle the matter,

and in that amount of time she could satisfy the judgment. The court allowed her this

extra time and con6nued the hearing on the motion for default judgment until May 16,

200t3, The court also cautioned Ms. Briggs that the issue now before the court was in

regard to a foreclosure action and that the time to appeal the original money judgment

had passed.

(1f34) At the hearing, Ms. Briggs offered no evidence that would warrant relief

from default judgment. The court explained the "harsh reality" was that the only defense

to the present suit was that the judgment had been satisfied in full. The oourt further

concluded that the parties were unable to settle the matter and there was no evidence

of a settlement agreernent and, therefore, directed the Domadias' counsel to prepare an

appropriate foreclosure antry, The court then promised Ms. Briggs it would not sign the

foreclosure decree until May 30, 2008, to give her an additional two weeks to satisfy the

original judgment. The judgment remained unsatisfied, and the foreclosure decree was

issued on June 4, 2008.

8

c7 a rATn •nN SNOS[AOV OJSUj S113M Wd601 OIO6'8Z'Nbf

{135j Thus, we find no abuse of discretion in the court's award of default

judgment to the Dornadias.

(136) Ms. Briggs' second assignment of error is without m"t.

(137) The judgment of the Geauga Coaanty Court of Common Pleas is affirmed.

CYNTHIA VVES! V®1 1 RICE, J.,

TIMOTHY P. GE1NRi®N, J.,

concur.

9

+77 a 976M SNOS1A0U 09SV3 S113M Wd601 OIO6'91'NUf

11 Inl THE COURT O^ COMMON ^^EEASGcAIJGA CJUNTY. OHIO

Plaintiffs,

v.

MARY A. FSRIGGS, at al.

befendants.

C^SE NO. 07 F 000821

JUDGE FORb?LST W. BURT))) J _̂ J^CaM^1^T ^NTP ;`

This matter came on for consideration of plaintiffs' Motion for Default Judgment

against defendant, Mary A. Briggs. The Court finds that Mary A. Briggs was duly served

according to law but has failed to answer or make an appearance. It is the finding of the

Court that Default Judgement for foreclosure is herepy granted against Mary A. Briggs in

regard to Exhibit A, the described premises.

1`he Courtfinds thatthere is ckueto Pramila M. Domad a and IN.J. Domadia the sum

of One Hundred Forty-Six Thousand Three Hundred Seventy Three and e01100 Dollars

($146,373.60), plus interest at the rate of Eight Percent (8%) per annun•; from March 5,

2008, ptus costs of this action and the Preliminary Judicial cost.

The Court finds that all necessary parties have been properly served according to

law and that Joan A. Dettelbach, Kenneth A. Dettelbach, Renn-®hio Energy Corporation

and Geauga Savings Bank have failed to attend two hearings before this Courk. The Court

further finds that Joan A. Etettelbach and Kenneth A. Dettelbach have failed to answer and

are found in default. The Court further finds that Penn-phio Energy Corp®ration is not a

legal corporation.

The Court further finds that there is due to the Geauga County Treasurer accrued

c7 1 1 A7n 'nN C?IOStAOd 0DHH3 3113M Wd60:b 010Z'811VP

real property taxes, assessments, penalties and inter=s: thereon, and on the premises

described herein. The exact amount being unascer'tainable at the date hereof, but which

amount will be determined at the time of sale o; said premises foi- which amount the

Geauga County Treasurei- has a good and valid lien.

The Court further finds zero amounis for the Geauga Savings Bank.

IT IS THERFFORE ORDERED, ADJUDGED AND DECREED that unless the sums

herein found due together with the costs of this action, including the cost of the Judicial

Ceiti6cate of Title filed herein forwhich the plaintiffs are entitled to reimbursement, be fully

paid within three days frorn the date of entry of this decree the equity of redemption of all

defendants in 4he pren-iises described herein be foreclosed, and that an order of sale shall

issue to the Geauga County Sheriff ordering him to sell the same at public sale, as upon

execution and according to law, free and clear of all interest of all parties to this action,

after having the same properly appraised and advertised according to law.

fT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Sheriff upon

confirmation of sale, shall pay from the proceeds thereof the following:

1. To the Clerk of Courts, the cost of this action.

2. To Pramila M. Domadia and M.J. Domadia, for the JudiCia( Certificates of

Title the sum of Seven Hundred and Seventy-Five Dollars ($775.00);

3. To the Geauga CountyTreasurer, forthe taxes, assessments, penalties and

interesi due and payable on said premises;

4. To plainiiffs, Pramila M. Domadia and M.J. Domadia, the sum of One

Hundred Forty-Six Thousand Three Hundred Seventy Three and 60/100

Doilars ($1A6,373.60), p!us interest at the rate of Eight Percent (8%) per

117 a A7n nN C1{OSIA(1V OnHNI 8113M WdOI l 0101-sr 0r

annum from March 5, 2008;

5. To the Sheriff, who shall hold the balance of funds, if any, pending further

order of this Court;

6. IT 1S FURTHRP, ORDERED, ADJUDGED AND DECREED thai in the eveni

plaintiff M.J. Domadia is the first and best lien holder and shoulc{ it be ihe

successful bidder at the Sheriff s sale, said plainiiff shal! not be required to

make a deposit at the time of sale, but shall pay all Court costs due and

owning, taxes and assessmants upon nresentment of the Statement from the

Geauga County Sheriff;

7. fT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon

distribution of the proceeds of sale as aforesaid, the Clerk ofthis Couri shall

issue her Certificate to the Geauga County Recorder directing him to enter

the same on the margin of the records of said mortgages and liens releasing

the same frorrt the premises. Record is hereby ordered.

DATE

cU. C^a,^ o. L^V^,

^- ^3°^,

--°---f^--^^°FORREST VV. SUF2T, 7UDGE •

'n Tfm C€RIfTLa/ : s ugcra 0 psr"ail wt fn d®fa¢pkt fog $ailuieO a^apPe^ (.^e Givfi .Ru(® 6(B) ) nati^ of ^s9aad itg da9s o, . tjon<

Par Sup,R,26(F), Wibits, lfany, may beretrieved after 40 days from the conclusion ofliogafion, including fimes for direct appeaLContact the Courf Reporfer or said exhibdisshall be dashoyed 980 days rrom the dete ofthis enhv.

r^ a IAtn 'AN SNOSIA{Itl On21Vl S113M WdOll 0IO6 '81 'PdUP

EXHIB;ri "A"

Situated in the Tqwnship of Claridon, County of Geauga and State of Ohio, and known as partof Lot No. 1, in Section No. 1.3, East Survey, in said T ownship and bounded; Beginning on theSouth line of said Lot No. I where the center of the road running northerly and southerlythrough said lot crosses said line;

Thence South 89 1/4 deg, cast -afong the south line of said lot about 41.07 chains to thesoutheast corner of the same;

Thence North 3/4 deg. East along the east line of said lot, which is also the east line of saidSection, 10.93 chains to the southeast corner of 29 ecres of land set off to )a;on C. Wells inpartition of the estate of Benjamin Sweet recorded in Vol. 40 at Page 3 of Common PleasRecord of Geauga Counti;

Thence North 89 1/4 deg, West 41.07 chains to the center of the aforesaid North and Southroad;

Thence South 3/4 deg_ West along the center of said road about i1.01 ehains to the place ofbeginning, containiner about 45.02 acres of land. Be the same more or less,

EKCEPTING AND RESERVING 5.0 acres of land conveyed to Barbara E. Motif by deed Vol. 399,Page 968 Geauga County Reoords of Deeds. Be the same more or fess.

Property Address: 13113 Claridon-Troy Road, Burton, OH 44021T0X ID No.: 12-049700

p 7 A /67n'nN SBOS[flOV 09ybI S113M NdOl:b 0101'86'Ndf

CUI°;N;OPd "Dk:AS i::?UF:-:IN xBE COURT OF C4D ®N PLEAS

2UUa J' jt_ 2 7 AM 10; &ALTGA Co 'g', om®

;:iHIR1S

PRAMILA M. I3d'a f tlUtd 71 Y

F(aintiff

_t,s_

.MAitY A. BRIGGS, et a].

I7efendsats

CASE NO. 07 F 000821

SIJJ1CsB FDRRBST W. BURT

CT14WNTE I'

This matter catzte on for consideration on the Court's own motion.

Motions for Relief from Judgment have been filed with this Court on behalf of Defendant

Mary A. Briggs anGi Defendant Caeauga Savings Bank. Subsequent to the fi2ing of their

respective Motions for Relief from Judgment, the aforementioned Defendmts filed notaees of

appeal. The filing of notices of appeal haye divested this Court of jurisd;icfion to consider the

Motions for Relief from 7udgn9:ent.

tJntil such time as the Defendants' appeals are disposed of by the Eleventh District Cotut

of Appeals or the matter is remanded to this Court to address the Motions for Relief from

Judgme-at, this Court may not rule upon said motions. The bearing oit the Motions for Relief

fmm Judgment scheduled for July 30, 2008, is cancelled. --

FbRRES7C W. BU1tT, JUDGE

cc: Patzi A. Newman, P,sq-

Anthony A. Cox, Esq.

Bridey Natheney, APA

Mary A. Briggs

h7. rr,lVnN SdOSIAOV 092♦ dj S113M WdOI I 0106 '86 'NHf