Appellant, Ohio State Construction, is appealing the trial court's orders granting a default judgment in favor of appellee, Murlene M. Cottrell, and denying appellant's Civ. R. 60(B) motion to vacate the default judgment. The following facts gave rise to this appeal.
On March 18, 1982 appellee filed a complaint. Appellant was served on March 20, and appellant's answer was due on or before April 19, 1982.
On April 20, 1982 appellant filed a motion for leave to plead and appellee filed a motion for a default judgment. On April 27, appellee filed a brief in opposition to appellant's motion for leave to plead. Appellant's motion was overruled by the trial court on May 5, 1982. On June 3, 1982 appellant filed an answer and counterclaim.
Appellee's motion for default judgment was heard by a referee who recommended judgment in favor of appellee based upon appellant's failure to file a timely answer. On June 9, 1982 the referee recommended judgment against appellant in the amount of $3,325.20 plus interest on $1,000 at eight percent per annum from December 4, 1981, and costs. On March 31, 1983, the trial court overruled appellant's objections to the referee's report and entered judgment for appellee in the amount of $3,431.20 plus costs.
Appellant filed a motion to vacate the judgment which was overruled on April 27, 1983. On April 29, appellant appealed from both the default judgment and the court's adverse ruling on its motion to vacate.
I Appellant's first assignment of error is that:
"The trial court failed to do substantial justice and abused its discretion when it denied appellant's motion for an extension of time under which to file an answer, allowed a default judgment against appellant, and denied appellant's motion to vacate said default judgment."
After considering all of the facts and circumstances of this case, we conclude that the trial court abused its discretion when it denied appellant's motion for leave to plead.
On April 19, appellant's answer date, appellant's counsel tried to contact appellee's counsel to request a leave to plead, but was unsuccessful in his attempt. This was the first leave and would have been automatic under the Lakewood Municipal Court Local Rule 6. He did reach plaintiff's counsel the next day. Plaintiff's counsel would not then concur in a leave to plead since the trial judge had contacted him on the morning of April 19 and instructed him to file a motion for default judgment. Appellee's counsel confirmed this fact and conceded in oral argument that he would have granted appellant's request as a matter of course had the trial judge not instructed him to do otherwise.
That same day, April 20, appellant filed a motion for leave to plead with the court. The trial court denied appellant's motion and everything thereafter. The trial judge's telephone call to the plaintiff's attorney on the morning of appellant's answer date thus precipitated the procedural snare that has developed rather than a trial on the merits. The *Page 364 trial court's interest in a one-month-old case is remarkable.
Ohio cases on procedural deficiencies have reached varied results, compare Miller v. Lint (1980), 62 Ohio St.2d 209 [16 O.O.3d 244], with Maritime Manufacturers, Inc. v. Hi-SkipperMarina (1982), 70 Ohio St.2d 257 [24 O.O.3d 344], and DeHart v.Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189 [23 O.O.3d 210], but no case has elevated form over substance to this extent. The trial judge's conduct in this case amounted to taking an adversarial role. The trial court, in effect, placed itself in a position where it could not exercise its discretion since it was really implementing a decision it had already made when it instructed appellee to move for default judgment.
Further, this case is distinguishable from Miller v. Lint,supra, wherein it was held to be an abuse of discretion by the trial court to accept an untimely filed answer. In Miller, the defendant-appellant did not comply, even substantially, with the Civil Rules. Appellant herein did not flagrantly disregard the rules, but made all possible good faith efforts to have his client's case heard on the merits. However, the trial judge was already predisposed to grant appellee's motion for default judgment since he had instructed appellee's counsel to file it.
The trial judge could have taken other action such as shortening the time requested. But to have the whole case turn on the lowly leave to plead is to reach a result totally devoid of justice or fair play.
Even absent the trial court's unusual interest, we would find it to be too harsh a sanction to render a default judgment against a party for such a minor, unintentional, first infraction that did not impede the administration of justice or undermine the rights of the opposing party.
Accordingly, appellant's first assignment of error is sustained.
II Appellant's second assignment of error is that:
"The court erred by awarding damages for breach in excess of the amount of the appellant's contractual obligation."
Appellee concedes that the damages awarded were improperly calculated being excessive in the amount of $40 and we agree. However, in view of our decision to reverse and remand, this issue is moot.
The trial court's order granting a default judgment is reversed. This case is remanded with instructions that the appellant be permitted to plead and that the case proceed accordingly.
Judgment reversed and cause remanded.
PRYATEL, J., concurs.
JACKSON, P.J., dissents.