[Cite as Henry Cty. Bank v. Stimmels, Inc., 2013-Ohio-1607.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




THE HENRY COUNTY BANK,

        PLAINTIFF-APPELLEE,                                    CASE NO. 7-12-19

        v.

STIMMELS, INC., ET AL.,                                        OPINION

        DEFENDANTS-APPELLANTS.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 12CV0002

                       Judgment Reversed and Cause Remanded

                             Date of Decision: April 22, 2013




APPEARANCES:

        George C. Rogers for Appellants

        J. Hawken Flanagan and Richard A. Fisher for Appellee
Case No. 7-12-19



PRESTON, P.J.

       {¶1} Defendants-appellants, Stimmels, Inc., and Melvin and Patricia

Stimmel (“appellants”), appeal the Henry County Court of Common Pleas’

judgment entry denying their Civ.R. 60(B) motion to vacate cognovit judgment.

For the reasons that follow, we reverse.

       {¶2} On January 5, 2012, plaintiff-appellee, The Henry County Bank, filed

in the Henry County Court of Common Pleas a complaint alleging that appellants

defaulted on a cognovit promissory note. (Doc. No. 1). On that same day, the

plaintiff’s attorney also filed an answer confessing judgment on behalf of the

defendants by warranty of attorney.         (Doc. No. 2).   The trial court granted

judgment against the defendants that same day based upon the confession of

judgment. (JE, Doc. No. 3). Notice of the judgment was sent to the defendants

that same day, as well. (Doc. Nos. 6-12).

       {¶3} On February 2, 2012, the appellants filed a Civ.R. 60(B) motion to

vacate the January 5, 2012 cognovit judgment, arguing that they were not in

default of payment under the terms of the promissory note, and that the complaint

failed to state a cause of action that can be confessed by warranty of attorney

under R.C. 2323.13. (Doc. No. 14).




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         {¶4} The trial court held a hearing on the motion on March 2, 2012.

Thereafter, on March 9th and 22nd, respectively, Henry County Bank and

appellants filed supplemental briefs. (Doc. Nos. 17-18).

         {¶5} On August 31, 2012, the trial court denied the Civ.R. 60(B) motion

finding that appellants failed to allege a meritorious defense. (Doc. No. 19).

         {¶6} On October 15, 2012, appellants filed a notice of appeal. (Doc. No.

27).1 Appellants now appeal raising two assignments of error for our review.

                                   Assignment of Error No. I

         The trial court erred in granting judgment on a cognovit note
         without assertion or proof that the maker failed to pay on time
         per required statutory warning. R.C. 2323.13.

         {¶7} In their first assignment of error, appellants argue that the trial court

erred in granting cognovit judgment since they were not in default of payment

under the terms of the promissory note. Appellants argue that a warranty of

attorney for judgment on a cognovit promissory note under R.C. 2323.13 is

limited to default for nonpayment.

         {¶8} “The cognovit is the ancient legal device by which the debtor consents

in advance to the holder’s obtaining a judgment without notice or hearing, and

possibly even with the appearance, on the debtor’s behalf, of an attorney


1
 Appellants’ appeal was timely under App.R. 4(A) because the trial court failed to direct the clerk to serve
notice of the August 31, 2012 judgment entry upon the parties. Bank One v. DeVillers, 10th Dist. No.
01AP-1258, 2002-Ohio-5079, ¶ 22-23. The docket demonstrates that appellants were given copies of the
August 31, 2012 judgment entry on October 15, 2012 and filed their notice of appeal that same day.

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designated by the holder.” D.H. Overmyer Co., Inc., of Ohio v. Frick Co., 405

U.S. 174, 176-177, 92 S.Ct. 775 (1972). Cognovit judgments by warranty of

attorney under R.C. 2323.13 are not, per se, in violation of Fourteenth

Amendment due process. Id. at 187. Nevertheless, since cognovit judgments

deprive a debtor of notice and an opportunity to be heard prior to their entry,

cognovits are generally disfavored in the law. Fifth Third Bank v. Woeste Bros.

Properties, Ltd., 12th Dist. No. CA2010-06-145, 2010-Ohio-5807, ¶ 10.

Cognovits are, therefore, strictly construed against the person for whom judgment

was granted, and court proceedings must conform in every essential detail with the

statutory law governing the subject. DeVillers, 2002-Ohio-5079, at ¶ 37, citing

Lathrem v. Foreman, 168 Ohio St. 186, 188 (1958).

       {¶9} R.C. 2323.12 and 2323.13 govern the trial court’s jurisdiction over

cognovits. Klosterman v. Turnkey-Ohio, L.L.C., 182 Ohio App.3d 515, 2009-

Ohio-2508, ¶ 19 (10th Dist.). R.C. 2323.12 provides, in relevant part, “[a] person

indebted, or against whom a cause of action exists, may personally appear in a

court of competent jurisdiction, and, with the assent of the creditor, or person

having such cause of action, confess judgment; whereupon judgment shall be

entered accordingly.”     (Emphasis added).   R.C. 2323.13, on the other hand,

provides, in relevant part:




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      (A) An attorney who confesses judgment in a case, at the time of

      making such confession, must produce the warrant of attorney for

      making it to the court before which he makes the confession. * * *

      [J]udgment may be confessed in any court in the county where the

      maker or any of several makers resides or signed the warrant of

      attorney.

      ** *

      (D) A warrant of attorney to confess judgment contained in any

      promissory note * * * is invalid and the courts are without authority

      to render a judgment based upon such a warrant unless there appears

      on the instrument evidencing the indebtedness, directly above or

      below the space or spaces provided for the signatures of the makers,

      or other person authorizing the confession, in such type size or

      distinctive marking that it appears more clearly and conspicuously

      than anything else on the document:

      “Warning--By signing this paper you give up your right to notice

      and court trial. If you do not pay on time a court judgment may be

      taken against you without your prior knowledge and the powers of a

      court can be used to collect from you regardless of any claims you

      may have against the creditor whether for returned goods, faulty


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      goods, failure on his part to comply with the agreement, or any other

      cause.” (Emphasis added).

      {¶10} The statutory scheme set forth in R.C. 2323.12 and 2323.13 provides

for two separate remedies for creditors to obtain judgment while avoiding a trial

on the merits. Both remedies provide for “judgments by confession,” but R.C.

2323.12 is a confession of the judgment by the debtor, him or herself, who

“personally appear[s]” before the court and admits the default.          63 Ohio

Jurisprudence 3d, Judgments, Section 250 (2013). See also Rosebrough v. Ansley,

35 Ohio St. 107 (1878), paragraph two of the syllabus (interpreting Section 377 of

the General Code, a precursor to R.C. 2323.12). R.C. 2323.13, on the other hand,

provides for a different type of “judgment by confession”—one obtained by an

attorney designated by the parties in the promissory note who confesses judgment

on behalf of the debtor. For this reason, this type of judgment by confession is

often referred to as a “judgment on warrant of attorney.” 63 Ohio Jurisprudence

3d, Judgments, Section 250 (2013). It is also known as a “cognovit judgment.”

First Natl. Bank of Pandora v. Freed, 3d Dist. No. 5-03-36, 2004-Ohio-3554, ¶ 5.

      {¶11} If a debtor disputes a cognovit judgment entered against him, he may

pursue redress by filing a Civ.R. 60(B) motion for relief from judgment. Id.,

citing Masters Tuxedo Charleston, Inc. v. Krainock, 7th Dist. No. 02 CA 80, 2002-

Ohio-5235, ¶ 6 and Lewandowski v. Donohue Intelligraphics, Inc., 93 Ohio


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App.3d 430, 432 (9th Dist.1994). To prevail on that motion, he must demonstrate

that: “(1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5); and (3) the motion is made within a reasonable time[.]”

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150

(1976).2

        {¶12} Whether to grant a Civ.R. 60(B) motion is within the trial court’s

discretion and, thus, will not be reversed absent an abuse of discretion. Strack v.

Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion is more than an

error of judgment; rather, it implies that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

        {¶13} As an initial matter, we note that appellants’ first assignment of error

raises an issue with the propriety of the January 5, 2012 cognovit judgment, which

was a final, appealable order that appellants did not appeal. Cherol v. Sieben

Invests., 7th Dist. No. 05 MA 112, 2006-Ohio-7048, ¶ 19. The trial court’s denial

of the Civ.R. 60(B) motion is the judgment appealed. Consequently, we will

interpret appellants’ arguments in their first assignment of error as raising a

2
  Several districts have modified the GTE standard in cognovit judgment cases to require only the first and
third prongs. See, e.g., Huntington Natl. Bank v. Royal Mt. Sterling Corp., 10th Dist. No. 12AP-174, 2012-
Ohio-4514, ¶ 13, citing Krainock, 2002-Ohio-5235, at ¶ 7. See also Freed, 2004-Ohio-3554, ¶ 7, fn. 2.
Since the parties tacitly concede the second and third prongs, only the first GTE prong is at issue here;
therefore, we do not need to decide whether to modify the GTE test for cognovit judgment cases here.

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possible meritorious defense under Civ.R. 60(B); to wit: a “deviation from proper

procedures in confessing judgment on the note.” Freed, 2004-Ohio-3554, at ¶ 9-

10.

      {¶14} In their Civ.R. 60(B) motion, appellants asserted that they were not

in default of payment under the terms of the promissory note and attached an

affidavit averring the same to their motion. (Doc. No. 14). Appellants also

asserted that default of payment was the only proper grounds for cognovit

judgment by warranty of attorney under R.C. 2323.13 (Id.). “By definition, a

cognovit provision in a promissory note cuts off every defense, except payment,

which the maker of the note may have against enforcement of the note.”

(Emphasis added.) Advanced Clinical Mgt., Inc. v. Salem Chiropractic Ctr., Inc.,

5th Dist. No. 2003CA00108, 2004-Ohio-120, ¶ 18, citations omitted. Therefore,

the defense of payment may be raised as a meritorious defense in a Civ.R. 60(B)

motion seeking relief from a cognovit judgment.        Id.   Henry County Bank

stipulated at the hearing that appellants were not in default of payment. (Mar. 2,

2012 Tr. at 3). Nevertheless, the trial court concluded that appellants failed to

present a meritorious defense and denied their Civ.R. 60(B) motion. (Aug. 31,

2012 JE, Doc. No. 19). Although unclear from its one-page judgment entry, it

appears that the trial court concluded that appellants’ timely payments failed to




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establish a meritorious defense under Civ.R. 60(B) because Henry County Bank

provided evidence that appellants defaulted for a different reason.

       {¶15} The question presented to this Court, therefore, is whether a cognovit

judgment under R.C. 2323.13 may be obtained for a default other than

nonpayment. If the answer to this question is “yes,” then the judgment of the trial

court must be affirmed; but, if the answer to this question is “no,” then the

judgment must be reversed. Based upon our review of statutory scheme, the

sparse case law on the subject, and the general disfavor of cognovits in the law, we

conclude that the answer to the question presented is “no.”

       {¶16} Henry County Bank argues that cognovit judgments are not limited

to default of payment, citing first to R.C. 2323.12. Henry County Bank argues

that the statute provides for confession of a judgment against a “person indebted or

against whom a cause of action exists”; and therefore, the plain language of the

statute does not limit cognovit judgment to default for nonpayment.          Henry

County Bank argues that R.C. 2323.13 should be read in para materia with R.C.

2323.12 to allow cognovit judgments on warrants of attorney for defaults other

than nonpayment as well. We disagree.

       {¶17} This argument fails to acknowledge that the remedy afforded to the

creditor in the two statutes is different and results in two different types of

judgments by confession. 63 Ohio Jurisprudence, 3d Judgments, Section 250


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(2013).   R.C. 2323.12 is limited to situations where the debtor “personally

appear[s]” before the court and confesses judgment. See Ansley, 35 Ohio St. 107,

at paragraph two of the syllabus.      Under those circumstances, the General

Assembly did not limit the confession to default of nonpayment alone since the

debtor, himself, is confessing judgment.      R.C. 2323.13, on the other hand,

authorizes an attorney to appear on the debtor’s behalf and confess judgment,

without providing the debtor notice or an opportunity to be heard. In order for

creditors to obtain a judgment on warrant of attorney, the General Assembly

expressly required a particular, conspicuous warning be placed in the promissory

note signed by the debtor.   That warning provides, in relevant part, “[i]f you do

not pay on time a court judgment may be taken against you without your prior

knowledge and the powers of a court can be used to collect from you * * *.” This

warning, in effect, enables the debtor to voluntarily, knowingly, and intelligently

waive his due process rights to notice and an opportunity to be heard. See Frick

Co., 405 U.S. at 185-186. Since the General Assembly expressly required a

particular warning for judgments on warrant of attorney and that warning

mentions only payment, we conclude that the legislature intended for judgments

on warrant of attorney to be limited to default for nonpayment.

      {¶18} Henry County Bank argues that the Court of Appeals has allowed

cognovit judgments for defaults other than nonpayment, citing Fifth Third Bank v.


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Pezzo Constr., Inc., 10th Dist. No. 11AP-251, 2011-Ohio-5064. Henry County

Bank argues that the default in that case resulted from the defendants’ failure to

“pay when due all taxes”; and the defendants’ failure to “maintain a minimum,

specified ‘Indebtedness to Tangible Net Worth’ ratio.” Id. at ¶ 4. Therefore,

Henry County Bank argues that cognovit judgments under R.C. 2323.13 are not

limited to nonpayment alone. This argument lacks merit. To begin with, this

precise issue was not presented to the Court in Pezzo. Instead, the defendants in

that case argued, in relevant part, that cognovit judgment was inappropriate since

Fifth Third Bank had full knowledge of the breaches and had waived them, or,

alternatively, that Fifth Third Bank had been compensated for their previous

breaches. Id. at ¶ 22-23. Aside from that, Pezzo did involve nonpayment under

the terms of the promissory note, albeit for taxes. So, we are not persuaded that

this case stands for the proposition that judgments on warrant of attorney

(cognovit judgment) may be for defaults unrelated to nonpayment as Henry

County Bank argues.

      {¶19} Our research has failed to uncover any cases where cognovit

judgment has been granted for defaults other than nonpayment.         If cognovit

judgment eliminates all defenses except payment, it follows that nonpayment is the

only reason for granting cognovit judgment in the first place. Salem Chiropractic

Ctr., Inc., 2004-Ohio-120, at ¶ 18. Aside from that, limiting cognovit judgment to


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nonpayment is consistent with the explicitly required warning in R.C. 2323.13,

which ensures that the debtor voluntarily, knowingly, and intelligently waives his

due process rights. See Frick Co., 405 U.S. at 185-186. R.C. 2323.13 is to be

strictly construed, and cognovit judgments are generally disfavored in the law;

therefore, we will not expand R.C. 2323.13’s expedited remedy beyond that

contemplated by its text. Lathrem, 168 Ohio St.3d 186, 190, syllabus; Huntington

Natl. Bank v. 199 S. Fifth St. Co., 10th Dist. No. 10AP-1082, 2011-Ohio-3707, ¶

20; Woeste Bros. Properties, Ltd., 2010-Ohio-5807, at ¶ 10.

      {¶20} Limiting cognovit judgments to nonpayment is also consistent with

the expedited proceedings which precede them. By limiting such judgments to

nonpayment, it is clear to the attorney confessing judgment on behalf of the debtor

that a breach has occurred and the debt is owed. Whether a breach has occurred is

answered simply by whether or not the debtor has made timely payments under

the terms of the note—a “yes” or “no” question. In this case, appellants allegedly

breached the promissory note by “do[ing] or fail[ing] something which cause[d]

[Henry County Bank] to believe [it] will have difficulty collecting the amount

[appellants] owe [it].”   (Emphasis added) (Doc. No. 1, attached).        Whether

appellants breached the promissory note for this reason is much less clear than

whether appellants made timely payments. Upon review of the statutory scheme,

we cannot conclude that the General Assembly intended the expedited remedy


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afforded by R.C. 2323.13 for alleged defaults like the one in the present case—one

that, quite frankly, lacks objectivity.

       {¶21} Henry County Bank argues that limiting cognovit judgments would

mean that “a borrower could destroy a lender’s security, could lose the security to

a tax foreclosure, or could even file for bankruptcy, but no cognovit judgment

would be permitted so long as timely payments were made toward the subject

promissory note.” (Appellee’s Brief at 9). While we recognize Henry County

Bank’s legitimate interest in protecting its security for the note, our decision does

not limit it from protecting its security; rather, our decision only limits the

methods by which it may do so. Nothing in our decision prevents Henry County

Bank, or any other lender, from pursuing a judgment by confession pursuant to

R.C. 2323.12 or from filing a civil action for breach of the promissory note.

While these latter remedies may be more difficult and time consuming, which is

especially concerning in commercial settings, we refuse to interpret R.C. 2323.13

to establish a remedy larger than the warning language expressly required by the

statute. To do so ignores the statutory scheme found in R.C. 2323.12 and 2323.13,

which provide for two different remedies, and flies in the face of the long-standing

principle of strictly construing the statutes.




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      {¶22} Therefore, we conclude that judgment by warrant of attorney

(cognovit judgment) under R.C. 2323.13 is limited to default for nonpayment

under the terms of the instrument evidencing indebtedness.

      {¶23} Since the parties stipulated that appellants were not in default for

nonpayment under the terms of the promissory note, the trial court erroneously

granted the cognovit judgment.      Therefore, appellants presented meritorious

defenses of payment and a deviation from proper procedures in confessing

judgment on the note, and the trial court erred by denying their Civ.R. 60(B)

motion to vacate. Salem Chiropractic Ctr., Inc., 2004-Ohio-120, at ¶ 18; Freed,

2004-Ohio-3554, at ¶ 9-10.

      {¶24} Appellants’ first assignment of error is, therefore, sustained.

                          Assignment of Error No. II

      The trial court erred in failing to grant the defendants’ Civ.R.
      60(B) motion when the evidence showed that the note holder
      bank was under the mistaken impression that financial
      documents relating to Napmark, LLC, were [sic] a financial
      statement of Stimmels, Inc., and said bank had no basis for
      declaring a default on the note.

      {¶25} In their second assignment of error, appellants argue that the

financial documents upon which Henry County Bank predicated the alleged

default were for Napmark, L.L.C., a separate business owned by Melvin and

Patricia Stimmel which was not a signatory to the promissory note. Appellants

acknowledge that Napmark, L.L.C. was in financial difficulty, but they argue that

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fact is irrelevant to the bank’s security under the note because Stimmels, Inc. was

the debtor on the promissory note at issue in this case.

       {¶26} Our disposition of appellants’ first assignment of error renders

appellants’ second assignment of error moot. Therefore, we decline to address this

issue further. App.R. 12(A)(1)(c).

       {¶27} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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