Background
Wilberforce University contracted with Project One Globe, LLC to construct a dormitory for $581,160, paid through cash and four parcels of real property. My Place Finance issued a performance bond, and its president, Davos Francois, allegedly controlled the company as his alter ego. After the project failed to proceed as promised, Wilberforce sued Project One, My Place Finance, Francois, and others on claims including breach of contract, fraud, theft, alter-ego liability, and piercing the corporate veil.
Francois was served by certified mail but did not respond within 28 days. After Wilberforce moved for default judgment, he filed an untimely pro se “rebuttal to claims” and later submitted additional motions and affidavits challenging service, personal jurisdiction, and the sufficiency of Wilberforce’s claims. Without providing a hearing, the trial court entered default judgment against Francois for $1,200,067.50.
The Court’s Holding
The Second District held that Francois’s February 2025 motion to dismiss was untimely and did not toll his deadline to answer. Because he neither sought an extension before the deadline nor requested leave to file late with a showing of excusable neglect, the trial court did not abuse its discretion merely by addressing the default motion while the motion to dismiss remained pending.
But Francois had “appeared” in the action for purposes of Ohio Civ.R. 55(A) when he filed his November 2024 rebuttal and later documents. That appearance entitled him to written notice at least seven days before a hearing on the default application, even though his filings were untimely and followed Wilberforce’s default motion. Because the trial court entered default judgment without the required notice and hearing, the appellate court reversed and remanded for further proceedings. It overruled as moot Francois’s separate challenge to personal jurisdiction.
Key Takeaways
- An untimely answer or responsive motion generally requires leave of court and a showing of excusable neglect under Civ.R. 6(B)(2).
- A defendant may “appear” under Civ.R. 55(A) through filings made after a default motion, even without filing a proper or timely answer.
- Once a defendant has appeared, a court may not enter default judgment without the required seven-day written notice and hearing.
Why It Matters
The decision distinguishes the right to seek default from the procedure required to obtain it. A defendant’s failure to plead timely may expose the defendant to default, but later participation in the case can trigger Civ.R. 55(A)’s notice and hearing protections.
Ohio litigants seeking default judgment should therefore check the entire docket for any act constituting an appearance. Courts must provide the rule’s procedural safeguards before entering default against an appearing party, even when that party’s submissions are late or procedurally deficient.