[Cite as Wilberforce Univ. v. Project One Globe, L.L.C., 2026-Ohio-3987.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
WILBERFORCE UNIVERSITY :
: C.A. No. 2026-CA-2
Appellees :
: Trial Court Case No. 2024 CV 0459
v. :
: (Civil Appeal from Common Pleas
PROJECT ONE GLOBE, LLC, ET AL. : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on October 9, 2026, the judgment of
the trial court is reversed, and the matter is remanded for further proceedings consistent with
the opinion.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MARY K. HUFFMAN, JUDGE
LEWIS, P.J., and HANSEMAN, J., concur.
OPINION
GREENE C.A. No. 2026-CA-2
DAVOS FRANCOIS, Appellant, Pro Se
WALTER REYNOLDS, Attorney for Appellee
HUFFMAN, J.
{¶ 1} Davos Francois appeals from the Greene County Common Pleas Court’s entry
of default judgment in favor of Wilberforce University on its civil claims against Francois
based on theories of alter ego and piercing the corporate veil.
{¶ 2} After reviewing the record, we find that because Francois had appeared in
Wilberforce’s civil action, the trial court erred when it granted default judgment against him
without satisfying the seven-day notice and hearing requirements of Civ.R. 55(A). We
therefore reverse the judgment of the trial court and remand this matter for further
proceedings.
I. Background Facts and Procedural History
{¶ 3} In July 2023, Wilberforce University entered into a construction contract with
Project One. The contract required Project One to construct a dormitory building for a price
of $581,160, payable in $300,000 cash and the conveyance of four parcels of real property
valued at $281,160.
{¶ 4} Wilberforce and Project One executed a memorandum of understanding, which
required that Project One provide a performance bond issued by My Place Finance in an
amount sufficient to guarantee that Project One would pay all subcontractors, laborers,
material suppliers for the work performed and material delivered and to guarantee that the
project would be constructed and completed in a workmanlike manner. The receipt and
sufficiency of the performance bond was a condition precedent to the transfers of the four
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property parcels from Wilberforce to Project One. Wilberforce conveyed the four parcels to
Project One by deed but retained a mortgage on the four parcels as additional security.
{¶ 5} My Place Finance and Project One also promised Wilberforce that My Place
Finance would hold not less than $581,000 on deposit at Wells Fargo Bank as security to
guarantee the financial wherewithal to complete the construction project. After promising to
maintain the security deposit, My Place Finance and Project One provided Wilberforce with
a copy of My Place Finance’s June 2023 Wells Fargo Bank checking account statement
showing an ending balance of $5,084,533.40, which Wilberforce claimed resulted in its
justifiable reliance on My Place Finance’s ability to perform all of the obligations of the
performance bond.
{¶ 6} The construction project was to commence in July 2023 and to be completed
within 75 days. Timely completion was essential because Wilberforce needed dormitory
space for housing students. By September 24, 2023, Project One had allegedly failed to
obtain the necessary construction permits for the project but had received $480,160.00 in
consideration, including cash ($200,000) and four parcels of real estate ($280,160.00) from
Wilberforce, which purportedly exceeded the value of the work that had been performed at
that stage. Although Project One had paid Guardian Structural Technologies $75,900 for
materials and Dalton Architects $11,591.90 for architectural services related to the project,
Wilberforce claimed that Project One had used $112,508.10 for other projects unrelated to
its contracted work.
{¶ 7} On December 7, 2023, Wilberforce provided a Notice of Non-Performance and
Demand for Strict Compliance to be served on Project One and then provided a Second
Notice of Non-Performance and Demand for Strict Compliance on January 17, 2024.
On February 5, Wilberforce provided Project One and My Place Finance its Notice of Intent
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to Terminate Contract. On February 6, 2024, Dalton Architects and Guardian Structural
Technologies confirmed that Project One had not paid them for past due invoices of
$24,733.90 and $84,600.00, respectively. Wilberforce ultimately paid the unpaid invoice to
Guardian Structural Technologies for $84,600.00.
{¶ 8} On February 7, 2024, Wilberforce issued a Default Certification and Seven-Day
Termination Notice to Project One and My Place Finance. On February 16, 2024,
Wilberforce issued a 30-day Notice Prior to Civil Action and Demand for Payment to My
Place Finance and Project One, demanding liquidated damages of $1,200,067.50 (an
amount equal to three times the value of the property) as authorized by R.C. 2307.60 and
2307.61(A)(1)(b)(ii). In the notice, Wilberforce stated that the parties could avoid being
subjected to a lawsuit by reimbursing Wilberforce $400,022.50, representing damages for
an alleged theft offense under R.C. 2913.02(A)(3) (theft by deception) and the value of the
property given to Project One, or alternatively, that Wilberforce would file an action and seek
liquidated damages.
{¶ 9} On June 10, 2024, Wilberforce filed its complaint against several defendants.
Wilberforce brought claims for breach of contract against Project One; unjust enrichment
against Project One; foreclosure of the mortgage on the four parcels conveyed to Project
One as partial consideration for the project; breach of surety contract against My Place
Finance; fraud and fraudulent inducement against My Place Finance and Project One; theft
against Project One and My Place Finance; alter ego liability against Thomas Johnson as
part of Project One; alter ego liability against Davos Francois as part of My Place Finance;
piercing the corporate veil against Thomas Johnson and Francois; constructive trust against
My Place Finance; punitive damages against Project One, My Place Finance, Johnson, and
Francois; and conversion against Project One. The caption on the complaint incorrectly
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spelled Francois’s name as “Dovos Francois,” but each claim against him within the
complaint spelled his name correctly as “Davos Francois.”
{¶ 10} Francois was the president of My Place Finance. Wilberforce alleged that
Francois exercised control over My Place Finance; that My Place Finance was a mere
façade with no will or identity of its own separate from Francois; and that My Place Finance
was grossly under-capitalized, failed to observe corporate formalities regarding the activities
of the company, and was insolvent at the time the obligations were incurred. Wilberforce
also alleged that Francois controlled My Place Finance and that My Place Finance had no
separate mind, will, or legal existence of its own. Wilberforce alleged that Francois exercised
control over My Place Finance in a manner to commit fraud, illegal acts, or wrongful conduct.
{¶ 11} Wilberforce served its complaint on Francois by certified mail, and the signed
receipt was returned and dated July 1, 2024. Francois’s name on the certified mail receipt
was spelled incorrectly as it was in the complaint (“Dovos”), but the receipt was signed and
included the printed name “Davos Francois.” Francois never answered or otherwise
pleaded.
{¶ 12} On November 13, 2024, Wilberforce filed its motion for default judgment
against Francois, seeking liquidated damages of $1,200,067.50 and arguing that Francois
failed to file a responsive pleading to the complaint. Wilberforce specifically argued that
Francois was the alter ego of My Place Finance and thus was liable for damages to the
same extent as My Place Finance with respect to Wilberforce’s claims. Wilberforce sought
to pierce the corporate veil to hold Francois individually liable. It argued that Francois was
the principal in control of My Place Finance and thus had knowingly participated in certain
fraudulent activities while receiving personal benefits. Wilberforce requested judgment on
its claims against My Place Finance, asserting that Francois was jointly and severally liable.
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{¶ 13} In support of its motion for default judgment, Wilberforce submitted the affidavit
of Vann Newkirk, President of Wilberforce. Newkirk stated that Wilberforce had paid Project
One $481,160.00 in cash and property but had only received $86,591.90 in value. He
asserted that Wilberforce relied on the performance bond issued by My Place Finance when
it executed the contract with Project One and signed the deed conveying the four parcels to
Project One as consideration to Project One’s agreement to construct the dormitory; that,
as surety, My Place Finance agreed to be bound to Wilberforce for $581,000.00 if Project
One defaulted in its performance; that My Place Finance promised Wilberforce that it would
retain $581,000.00 on deposit in its account at Wells Fargo Bank as security for its
performance under the performance bond; that the performance bond provided that My
Place Finance would remedy Project One’s default; that My Place Finance breached its
obligations under the performance bond by failing to comply; that Wilberforce was damaged
by My Place Finance’s breach of its obligations under the performance bond in excess of
$581,000.00, plus attorney fees; that My Place Finance knew that the performance bond
was a condition precedent to Wilberforce entering into the contract with Project One; that
My Place Finance knew that Wilberforce relied on My Place Finance’s financial strength to
complete the contract in the event that Project One defaulted; and that My Place Finance
and Project One fraudulently issued the performance bond without any intention or ability to
honor their obligations.
{¶ 14} Newkirk also stated that Wilberforce discovered that My Place Finance did not
have the statutory qualifications to be a surety under R.C. 1341.01, which requires that the
surety be a resident of Ohio and worth, in the aggregate, double the sum to be secured
beyond the amount of its debts and to have property liable to execution in Ohio equal to the
sum to be secured. Newkirk asserted that My Place Finance was not a resident of Ohio, did
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not have worth double the sum of $581,000.00 in the aggregate beyond the amount of its
debts, and did not own property in Ohio liable to execution equal to $581,000.00. Newkirk
asserted that My Place Finance concealed that it did not qualify under Ohio law to issue the
performance bond and knew or should have known that the issuance of the bond was an
affirmative misrepresentation; that Wilberforce was fraudulently induced into contracting with
Project One and accepting the performance bond from My Place Finance; that Wilberforce
justifiably relied on the fraudulent and misleading representations of My Place Finance
contained in the performance bond; and that, as direct and proximate result of My Place
Finance’s fraudulent inducement, Wilberforce was damaged in excess of $581,000.00.
{¶ 15} With respect to its alter ego and piercing the corporate veil theories of liability
against Francois, Newkirk maintained that My Place Finance was grossly undercapitalized,
failed to observe corporate formalities, and was insolvent at the time the performance bond
obligations were incurred; that My Place Finance was a mere façade; and that Francois
exercised control over My Place Finance. Newkirk also stated that My Place Finance had
no separate will or legal existence of its own beyond that of Francois and that Francois
admitted to these factual allegations when he failed to answer to otherwise plead in this
matter.
{¶ 16} On November 22, 2024, apparently in response to Wilberforce’s motion for
default judgment, Francois filed an untimely pro se “rebuttal to claims.” Francois’s filing
sought dismissal of the complaint based on the defenses of lack of personal jurisdiction (as
he was a nonresident of Ohio); failure to state a claim; and lack of standing. Thereafter,
without leave of court, he filed a series of motions and affidavits arguing that service was
improper; that his signing of the performance bond was administrative in nature because he
was the president of My Place Finance; that his delay in filing his responsive pleading was
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not willful; and that the damages sought by Wilberforce were speculative. In an affidavit filed
December 2, 2024, he stated that he had never been properly served; that he had never
received any legal documents related to this matter; and that he had become aware of the
action only when he “discovered Plaintiff’s motion for default judgment.”
{¶ 17} On December 4, Wilberforce responded that service was successful and that
Francois had waived his new defenses of insufficiency of process or insufficiency of service
of process because he had failed to raise them in his “rebuttal to claims” (which was
presumed to be his untimely answer). On February 24, 2025, Francois filed a formalized
“motion to dismiss for lack of personal jurisdiction, insufficient service of process, and failure
to state a claim”; the trial court never ruled on his motion to dismiss.
{¶ 18} On June 25, 2025, the trial court granted Wilberforce’s motion for default
judgment against Francois. The trial court noted that Francois’s “rebuttal to claims” was filed
without leave of court, without a motion requesting leave of court, and without any showing
of excusable neglect or other reason why his “rebuttal” was filed out of time. The court stated
that Francois filed his late “answer” (the “rebuttal” presumably being his “answer”) without
moving for leave to file out of time and without complying with the requirements of
Civ.R. 6(B)(2). The trial court entered default judgment due to Francois’s failure to timely
answer or otherwise plead and awarded damages to Wilberforce of $1,200,067.50 based
on the undisputed testimonial evidence in Newkirk’s affidavit.
{¶ 19} On June 27, 2025, Francois timely filed a motion to vacate default judgment.
The trial court had not ruled on the motion to vacate before Francois filed a notice of appeal
on July 22, 2025.
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II. Assignments of Error
{¶ 20} On appeal, Francois asserts the following three assignments of error:
The trial court committed reversible error by entering default judgment
while a timely motion to dismiss was pending and unadjudicated, in violation
of Civ.R. 12(A)(2).
The trial court erred by failing to provide the mandatory seven-day
notice required by Civ.R. 55(A) despite appellant’s established appearance on
November 22, 2024.
The judgment is void ab initio for lack of personal jurisdiction due to
fatally defective service of process (“misnomer”) and plaintiff’s failure to amend
the complaint.
Service of Process and Other Defenses
{¶ 21} Pleadings consist of a complaint and an answer. Civ.R. 7(A). “Upon the filing
of the complaint the clerk shall forthwith issue a summons for service upon each defendant
listed in the caption.” Civ.R. 4(A). “[T]he names appearing in the caption of a case do not
determine who the parties are to the suit; rather, whether or not a defendant is properly in
the case hinges upon the allegations in the body of the complaint, and not upon his inclusion
in the caption.” Rismiller v. Wagner, 1982 WL 3850, *1 (2d Dist. Nov. 10, 1982);
Accord Newark Orthopedics, Inc. v. Brock, 1995 WL 584353, *3 (10th Dist. Oct. 5, 1995),
and Briggs v. Wilcox, 2013-Ohio-1541, ¶ 37 (8th Dist.). “A copy of the complaint shall be
attached to each summons.” Civ.R. 4(B).
{¶ 22} Under Ohio law, the plaintiff bears the ultimate responsibility of ensuring
proper and timely service of process of the summons and complaint upon the defendant.
Service of process provides the defendant with legal notice of the lawsuit. Due process
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requires that service of process be made “in a manner reasonably calculated to apprise
interested parties of the action and to afford them an opportunity to respond.” Rice v. Kyte,
2012-Ohio-841, ¶ 8 (2d Dist.), citing Money Tree Loan Co. v. Williams, 2006-Ohio-5568, ¶ 9
(8th Dist.).
{¶ 23} To determine whether service of process was properly completed, the trial
court first looks to Civ.R. 4.1, which sets forth the general methods of service of the
summons and complaint upon a defendant in Ohio. Civ.R. 4.1(A)(1) specifically describes
service by United States Certified Mail, stating:
Evidenced by return receipt signed by any person accepting delivery, service
of any process accepting delivery shall be by United States certified or express
mail unless otherwise permitted by these rules. The clerk shall deliver a copy
of the process and complaint or other document to be served to the United
States Postal Service for mailing at the address set forth in the caption or at
the address set forth in written instructions furnished to the clerk as certified or
express mail return receipt requested, with instructions to the delivering postal
employee to show to whom delivered, date of delivery, and address where
delivered.
“Generally, a party’s address listed on the complaint is presumed to be accurate.” United
Home Federal v. Rhonehouse, 76 Ohio App.3d 115, 124 (6th Dist. 1991).
{¶ 24} A defendant “shall serve his answer within twenty-eight days after service of
the summons and complaint upon him.” Civ.R. 12(A). Once a defendant is served with a
summons and a copy of the complaint, he has an affirmative duty to respond to the complaint
in a timely manner, and to let the court know what his answer is. Natl. City Bank v. Kessler,
2003-Ohio-6938, ¶ 16 (10th Dist.). A defendant has an affirmative duty to take some action
10
after being served with a complaint or risk being subject to an adverse judgment. James
Remodeling & Bldg., Inc. v. Rhines, 2006-Ohio-6962, ¶ 10 (9th Dist.), citing Adomeit v.
Baltimore, 39 Ohio App.2d 97, 106 (8th Dist. 1974).
{¶ 25} Before a trial court can enter judgment against a defendant, it must have
personal jurisdiction over him. Cappellino v. Marcheskie, 2008-Ohio-5322, ¶ 12 (11th Dist.),
citing Sweeney v. Smythe, 2003-Ohio-4032, ¶ 12 (11th Dist.). “Personal jurisdiction is a
basic tenant of law in the United States.” Huntington Natl. Bank v. Fisher, 2003-Ohio-5902,
¶ 13 (9th Dist.). It is the power of a court to make a legal decision over a specific defendant.
“A court acquires personal jurisdiction over a party in one of three ways: (1) proper and
effective service of process, (2) voluntary appearance by the party, or (3) limited acts by the
party or their counsel that involuntarily submit them to the court’s jurisdiction.” Id.,
citing Austin v. Payne, 107 Ohio App.3d 818, 821 (9th Dist. 1995), citing Maryhew v. Yova,
11 Ohio St.3d 154, 156 (1984). A default judgment issued by a court without personal
jurisdiction over the defendant is void ab initio. Cappellino at ¶ 12, citing Sweeney at ¶ 12.
{¶ 26} Civ.R. 12(B) governs how defenses and objections must be raised in a
defendant’s answer or other responsive motion. Civ.R. 12(B) states:
Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Improper venue;
(4) Insufficiency of process;
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(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted;
(7) Failure to join a party under Rule 19 or Rule 19.1.
{¶ 27} In addition to determining how and when defenses must be raised, Civ.R. 12
describes how defenses may be waived. A defense of lack of personal jurisdiction,
insufficiency of process, or insufficiency of service of process is waived if a party fails to
include the defenses available to him in a properly raised motion or responsive pleading.
Civ.R. 12(H)(1). Any defense of insufficiency of process, insufficiency of service of process,
or lack of personal jurisdiction is waived if it is omitted from a motion raising other
Civ.R. 12(B) defenses or, if there is no such motion, it is not raised by separate motion or
included in the responsive pleading. See Gliozzo v. Univ. Urologists of Cleveland, Inc., 2007-Ohio-3762, ¶ 9.
Timing of Filings and Default Judgment
{¶ 28} Civ.R. 6 dictates the computation, extension, and setting of time periods in civil
actions. If a party does not file a timely answer or responsive pleading, the party must ask
for leave of court to file later. If a party seeks an extension to file an answer or responsive
motion, the trial court may act on a motion “made after the particular date or the expiration
of the specified time if the moving party failed to act because of excusable neglect.”
(Emphasis added.) Civ.R. 6(B)(2)(d). In other words, once the standard 28-day deadline to
respond to a civil complaint has passed, the answer or responsive motion cannot be filed
automatically. If a party files a late answer or responsive motion without getting formal
permission from the trial court, the court may not consider the answer, and the plaintiff can
request a default judgment.
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{¶ 29} “A default judgment is a judgment entered against a defendant who has failed
to timely plead in response to an affirmative pleading.” Ohio Valley Radiology Assocs., Inc.
v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121 (1986), citing McCabe v. Tom, 35 Ohio
App. 73 (6th Dist. 1929). The proper procedure for holding a party in default is set forth in
Civ.R. 55(A), which provides:
When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided 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 representative who has 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. If, in order to enable the court to enter judgment or to carry it into
effect, it is necessary to take an account or to determine the amount of
damages or to establish the truth of any averment by evidence or to make an
investigation of any other matter, the court may conduct such hearings or order
such references as it deems necessary and proper and shall when applicable
accord a right of trial by jury to the parties.
{¶ 30} When considering a motion for default judgment, a trial court may enter
judgment against the party who failed to plead, if warranted. “If the defending party has failed
to appear in the action, a default judgment may be entered without notice.” Ohio Valley
Radiology Assocs. at 120. “If, however, the defending party has appeared in the action, the
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trial court must, by virtue of Civ.R. 55(A), afford that party seven days’ notice of the hearing
on the motion for default judgment before entering judgment.” Id.
Standard of Review
{¶ 31} A trial court’s decision to grant a motion for default judgment is reviewed for
an abuse of discretion. McEnteer v. Moss, 2005-Ohio-2679, ¶ 6 (9th Dist.), citing Natl. City
Bank v. Shuman, 2003-Ohio-6116, ¶ 6 (9th Dist.). To find an abuse of discretion, we must
find that the trial court’s decision was unreasonable, arbitrary, or unconscionable. AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161
(1990).
First Assignment of Error
{¶ 32} In his first assignment of error, Francois contends that the trial court
committed reversible error in violation of Civ.R. 12(A)(2) by entering default judgment
against him while a timely motion to dismiss was pending. Francois argues that his motion
to dismiss for lack of personal jurisdiction, insufficient service of process, and failure to state
a claim from February 2025 tolled his answer deadline until the trial court ruled on his motion.
We disagree.
{¶ 33} Under Civ.R. 12(A), a defendant “shall serve his answer within twenty-eight
days after service of the summons and complaint upon him.” Accordingly, given that
Francois was apparently served on July 1, 2024, he was required to file his answer or motion
to dismiss or, alternatively, to request an extension to file on or before July 29, 2024. The
record reveals that he did neither. In the absence of any action by Francois, Wilberforce
exercised its right to move for default judgment pursuant to Civ.R. 55(A).
{¶ 34} Upon receiving the notice of the motion for default judgment, Francois filed his
“rebuttal to claims” on November 22, 2024. His submission did not comport with the
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requirements of Civ.R. 6(B)(2). Under the rule, a late answer or responsive motion can be
accomplished only “upon motion made after the expiration of the specified period” and
“where the failure to act was the result of excusable neglect.” Francois then waited until
February 24, 2025, to file his untimely motion to dismiss. Francois claims that the February
2025 motion tolled the deadline to file his answer and that the trial court erred by entering
default judgment against him while his motion to dismiss was pending.
{¶ 35} In its decision, the trial court determined that Francois had not demonstrated
excusable neglect or any other reason to explain his failure to file a timely answer. Some
showing of excusable neglect is necessary before filing an untimely answer. Johnson v.
Gutter & Downspout LLC, 2024-Ohio-5237, ¶ 17 (2d Dist.), quoting Alldred v. Alldred,
1998 WL 769814, *2 (2d Dist. Nov. 6, 1988), citing Miller v. Lint, 62 Ohio St.2d 209, 214
(1980). “‘In determining whether neglect is excusable or inexcusable, all the surrounding
facts and circumstances must be taken into consideration.’” Id., quoting Davis v. Immediate
Med. Servs., Inc., 80 Ohio St.3d 10, 14 (1997), citing Griffey v. Rajan, 33 Ohio St.3d 75
(1987), syllabus. “‘Neglect under Civ.R. 6(B)(2) has been described as conduct that falls
substantially below what is reasonable under the circumstances.’” Id., quoting Davis at 14,
citing State ex rel. Weiss v. Indus. Comm., 65 Ohio St.3d 470, 473 (1992).
{¶ 36} The test for excusable neglect in the context of Civ.R. 6(B)(2) “is less stringent
than the standard used for Civ.R. 60(B) motions.” Id. at ¶ 18. When determining whether
excusable neglect exists under Civ.R. 6(B)(2), courts “‘must examine “the danger of
prejudice to the [movant], the length of delay and its potential impact on judicial proceedings,
the reasons for the delay, including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.”’” Id., quoting First Union-Lehman
Bros.-Bank of Am. Commercial Mtge. Trust v. Pillar Real Estate Advisors, Inc., 2014-Ohio15
1105, ¶ 15 (2d Dist.), quoting Cleveland Mun. School Dist. v. Farson, 2008-Ohio-912, ¶ 12
(8th Dist.).
{¶ 37} Here, Francois waited to file his “rebuttal of claims” until several months after
the complaint had been filed and he had been served. When he did file, he neither sought
leave of court to file an out-of-time answer nor attempted to show cause or excusable neglect
for his delay. He simply filed a late “rebuttal to claims” after receiving notice of Wilberforce’s
default judgment motion. However, under Civ.R. 12(A), he was obliged to file his answer or
his motion to dismiss within twenty-eight days after service of the summons and complaint.
The record reveals that after Francois was served on July 1, 2024, he did not timely file a
response to the complaint. Francois was obligated to request a timely extension or, if the
time period for filing had already expired, to demonstrate some showing of excusable
neglect. In this instance, Francois’s failure “to comply, even substantially, with the
procedures outlined in the Civil Rules” subjected him to the motion for a default judgment.
Johnson at ¶ 21.
{¶ 38} Furthermore, while Francois was a pro se litigant at the time, “[l]itigants who
choose to proceed pro se are presumed to know the law and correct procedure, and are
held to the same standards as other litigants.” Yocum v. Means, 2002-Ohio-3803, ¶ 20
(2d Dist.), citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363 (8th Dist. 1996).
Consequently, “a pro se litigant ‘cannot expect or demand special treatment from the judge,
who is to sit as impartial arbiter.’” Id., quoting Kilroy at 363.
{¶ 39} Under these circumstances, we recognize that Francois’s February 2025
motion to dismiss was untimely and thus did not toll his answer deadline. The motion to
dismiss was filed after his “rebuttal to claims” (presumed answer) and the 28-day deadline
to respond to the complaint. Therefore, we cannot say that the trial court abused its
16
discretion in ruling on Wilberforce’s motion for default judgment simply because Francois’s
untimely motion to dismiss was still pending. Francois’s first assignment of error is overruled.
Second Assignment of Error
{¶ 40} In his second assignment of error, Francois argues that because he had
appeared in this matter, the trial court erred by failing to provide the mandatory seven-day
notice required under Civ.R. 55(A) before entering default judgment.
{¶ 41} With respect to entry of default judgment, Civ.R. 55(A) provides in pertinent
part:
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.
“By its plain language, Civ.R. 55(A) prohibits a default judgment against a party who has
‘appeared in the action’ unless that party receives written notice of the application for
judgment at least seven days prior to the hearing on the application.” GMAC Mtge., LLC v.
Lee, 2012-Ohio-1157, ¶ 10 (10th Dist.), citing Am. Communications of Ohio, Inc. v.
Hussein, 2011-Ohio-6766, ¶ 9 (10th Dist.). “When the trial court fails to comply with
Civ.R. 55(A), entry of default judgment is improper.” Id., citing AMCA Internatl. Corp.
v. Carlton, 10 Ohio St.3d 88, 91 (1984).
{¶ 42} “An appearance is ordinarily made when a party comes into court by some
overt act of that party that submits a presentation to the court.” Columbia Credit Servs., Inc.
v. Ruetschle, 2007-Ohio-4332, ¶ 8 (2d Dist.), citing Alliance Group Inc. v.
Rosenfield, 115 Ohio App.3d 380, 390 (1st Dist. 2005). “Once ‘a party or his representative
has appeared as a matter of record in any manner, the notice and hearing required by
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Civ.R. 55(A) must be given [to] that party before default judgment can be properly granted
. . . . Even where a defendant’s filings are subsequent to a plaintiff’s motion for default, the
defendant is deemed to have made an appearance and is entitled to the notice and hearing
required under Civ.R. 55(A).’” Columbia Credit at ¶ 9, quoting Hartmann v. Ohio Crime
Victims Reparations Fund, 138 Ohio App.3d 235, 238 (10th Dist. 2000).
{¶ 43} We liberally construe the term “appeared” when applying Civ.R. 55(A). Am.
Communications at ¶ 10, quoting Columbus Mgt. Co. v. Nichols, 1992 WL 193694, *3
(10th Dist. Aug. 4, 1992). In this case, the applicability of the Civ.R. 55(A) notice requirement
hinged on whether Francois appeared in this action despite his failure to file a timely answer.
{¶ 44} Francois made an appearance on November 22, 2024, when he filed his
“rebuttal to claims.” He then proceeded to file numerous documents in the trial court over
the next several months. Thus, we conclude that his actions constituted an appearance for
notice purposes under Civ.R. 55(A). Francois was therefore entitled to seven days’ written
notice and a hearing on the default judgment motion before the trial court rendered its
decision on the motion. See GMAC Mtge., 2012-Ohio-1157, at ¶ 12 (10th Dist.); Columbia
Credit at ¶ 10.
{¶ 45} Wilberforce argues that Francois was not entitled to notice because he had
not filed a proper answer, but that argument is directly contrary to Civ.R. 55(A)’s distinction
between filing a pleading and otherwise appearing in an action. GMAC Mtge. at ¶ 12.
Because it is undisputed that the trial court failed to provide Francois with seven days’ notice
and a hearing on Wilberforce’s motion prior to entering default judgment against him, we
conclude that the trial court erred when it granted Wilberforce’s motion for default judgment.
Civ. R. 55(A); Columbia Credit, 2007-Ohio-4332, at ¶ 10 (2d Dist.). Francois’s second
assignment of error is sustained.
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Third Assignment of Error
{¶ 46} Francois’s third assignment of error argues for reversal based on lack of
personal jurisdiction, and having sustained Francois’s second assignment of error, the third
assignment of error is overruled as moot.
III. Conclusion
{¶ 47} Because the trial court erred in granting Wilberforce’s default judgment without
giving Francois the seven-day notice and hearing required under Civ.R. 55(A), we reverse
the trial court’s judgment and remand this matter for further proceedings.
LEWIS, P.J., and HANSEMAN, J., concur.
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