Opinion
No. 83-44
Decided November 23, 1983.
Civil procedure — Default judgment not binding on co-defendant who is not in default, when — No meaningful opportunity to present defense.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellants, Doris K. and Ralph T. Archacki, sustained personal injuries and property damage in an automobile accident on October 17, 1975. The collision involved the Archacki vehicle and a bus owned by appellee, Greater Cleveland Regional Transit Authority (hereinafter "RTA"). Dwight J. Brooks, an employee of RTA, was the bus driver. At the time of the accident Brooks was acting within the scope of his employment.
On June 22, 1977, appellants filed a complaint against RTA and Brooks, alleging negligence and seeking $60,000 in damages. RTA filed a timely answer. Brooks did not answer and has not participated in these proceedings in any way. On October 5, 1978, appellants filed a motion for a default judgment against Brooks. RTA opposed the motion. The court, however, never issued a ruling on this first default judgment motion. In late 1980 appellants again moved for a default judgment against Brooks after the case had been transferred to another judge.
The court held a hearing on the motion on December 15, 1980, two days before the scheduled trial date. The court heard testimony and admitted exhibits relating to appellants' claims and entered a default judgment against Brooks in the amount of $50,000 in favor of Doris Archacki and $3,000 in favor of Ralph Archacki. The next day appellants moved for summary judgment against RTA, which had been excluded from participating in the default hearing. The court sustained appellants' summary judgment motion, granting judgment thereon, notwithstanding that the motion was made one day before the trial was to have been held. On appeal, the court of appeals reversed the trial court, holding that "[t]he granting of summary judgment * * * was error * * *."
The cause is now before this court upon the allowance of a motion to certify the record.
Mr. Jerry E. Dempsey and Mr. Carl G. McMahon, for appellants.
Mr. Charles E. Mosley, Jr., and Mr. Oscar Trivers, for appellee.
The question presented is whether the summary judgment entered by the trial court in favor of appellants against RTA was appropriate. Appellants contend as a proposition of law that "[w]here there is no genuine issue of material fact or law regarding whether a Defendant employee was acting within the course and scope of his employment on behalf of his Co-Defendant employer at the time the Defendant employee was involved in a vehicular accident, the Plaintiff is entitled to Summary Judgment against the Co-Defendant employer for the full amount of the Default Judgment previously rendered against the Defendant employee for the employee's negligence occurring in a vehicular accident." Moreover, appellants state that RTA never appealed the default judgment entered against Brooks and, therefore, the effect and legitimacy thereof were not before the court of appeals.
The issue of whether the trial court should have granted the default judgment against Brooks while the case was still pending against RTA is not before this court.
Appellants' arguments tend to overlook the primary rationale of the court of appeals' decision. The court below prefaced its discussion with the statement that, "[i]t is axiomatic that under our system of justice a litigant is entitled to his day in court and this with the opportunity to be heard and to control the conduct of the prosecution or defense appropriate to his legal position." After observing that there is no controlling Ohio authority on the question presented, the court cited with approval a Florida case, Dade County v. Lambert (Fla.App. 1976), 334 So.2d 844, which considered a similar question regarding the effect of an employee's default on an employer's liability. The opinion below quoted from Lambert, at page 847, as follows:
"`* * * The failure of Laster to plead, resulting in a default against him cannot deprive the County of its right to have a jury determination of its defense, notwithstanding that said defense would be common to Laster. The default of one defendant, although an admission by him of the allegations of the complaint, does not operate as an admission of such allegation as against a contesting co-defendant. * * *'" (Citations omitted.)
The court of appeals found additional support for its decision in Peek v. Southern Guaranty Ins. Co. (1978), 240 Ga. 498, 241 S.E.2d 210, which held that a default judgment is not binding on co-defendants who are not in default.
We are satisfied that the court of appeals committed no error in reversing the summary judgment entered by the trial court because RTA did not have a meaningful opportunity to present a defense. Accordingly, we hereby adopt the rule announced by the court of appeals below that, "[a]n answering party must be afforded the opportunity to controvert evidence admitted at a default hearing in subsequent proceedings against that party."
For the reasons hereinbefore stated the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.