[Cite as Starner v. Merchants Holding, L.L.C., 2018-Ohio-1165.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Jeffrey Starner,                                    :

                Plaintiff-Appellee,                 :
                                                                     No. 17AP-621
v.                                                  :             (C.P.C. No. 15CV-9115)

Merchants Holding LLC,                              :       (REGULAR CALENDAR)

                Defendant-Appellant.                :




                                           D E C I S I O N

                                     Rendered on March 29, 2018


                On brief: Thomas C. Loepp, Law Offices Co., LPA, and
                Thomas C. Loepp, for appellee. Argued: Thomas C. Loepp.

                On brief: Brunner Quinn, Rick L. Brunner, and Patrick M.
                Quinn, for appellant. Argued: Patrick M. Quinn.

                  APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, Merchants Holding LLC, appeals the July 28, 2017
decision and entry of the Franklin County Court of Common Pleas. For the following
reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} This matter arises out of appellant's purchase of businesses from plaintiff-
appellee, Jeffrey Starner. On July 18, 2014, the parties executed a Stock and Membership
Interest Purchase Agreement (the "agreement"). Pursuant to the agreement, appellant
received the businesses in exchange for its execution of a cognovit note for the principal
amount of $400,000 together with interest as set forth in the note. The cognovit note
provided in pertinent part as follows:
No. 17AP-621                                                                    2


               FOR VALUE RECEIVED, Merchants Holding, LLC * * *
               ("Borrower"), promises to pay to the order of Jeffrey Starner
               ("Lender," which term shall include any subsequent holder
               hereof), * * * the principal sum of Four Hundred Thousand
               Dollars (U.S. $400,000.00) (the "Principal Sum"), together
               with interest, at the rates and in the manner hereinafter set
               forth.

               1. INTEREST

               1.1 Interest will accrue on the outstanding balance of the
               Principal Sum from the date hereof until this Note is paid in
               full at a rate of Six and 00/100ths Percent (6.00%) per
               annum, subject to the applicability of the Default Rate as
               provided below.

               2. PAYMENTS

               2.1   This note shall be payable as follows:

               (i) Commencing on February 15, 2015 and on the 15th day of
               each month thereafter thru and including June 15, 2016,
               interest only payments of $2,000;

               (ii) Commencing July 15, 2016 and on the 15th day of each
               month thereafter thru and including June 15, 2019, principal
               and interest payments of $3,487.04; and

               (iii) On July 15, 2019, unless sooner paid or declared due and
               payable in accordance with Subsection 5.2 of this Note, the
               balance, $359,119.84.

               Payments received will be applied in the following order: (i)
               to accrued interest and (ii) to principal.

               ***

               4. SECURITY

               4.1 This Note is delivered in connection with the Stock and
               Membership Interest Purchase Agreement ("Purchase
               Agreement") of even date.

               ***

               5. DEFAULT
No. 17AP-621                                                                       3


               5.1 The term "Event of Default" shall mean:

               (a) A failure by Borrower to make any payment of principal or
               interest or both when due pursuant to the terms of this Note;

               ***

               5.2 Upon the occurrence of any Event of Default, Lender shall
               provide notice of the perceived default in writing to Borrower.
               Borrower shall then have thirty (30) days to cure the default.
               If the default is not cured within thirty (30) days, the entire
               indebtedness shall thereupon bear interest at the Default Rate
               of Interest, and at the option of Lender, all the Indebtedness
               together with interest thereon at the Default Rate of Interest
               of Ten Percent (10%) per annum shall immediately become
               due and payable, and Lender shall have all remedies of a
               secured party under law and equity to enforce the payment of
               all of the indebtedness, time being of the essence in the Note.
               The Default Rate of Interest shall be charged to Borrower
               upon the occurrence of any Event of Default that is not cured
               by Borrower notwithstanding any invoices or billing
               statements sent by Lender to Borrower indicating an interest
               rate to the contrary. In addition, any waiver of Lender's right
               to charge the Default Rate of Interest or to declare the
               indebtedness immediately due and payable must be made in
               writing and cannot be waived by oral representation or the
               submission to Borrower of monthly billing statements.

               6. MISCELLANEOUS

               6.1 The failure of Lender to exercise any option herein
               provided upon the occurrence of any Event of Default shall
               not constitute a waiver of the right to exercise such option in
               the event of any continuing or subsequent Event of Default.
               Borrower hereby agrees that the maturity of all or any part of
               the indebtedness may be postponed or extended and that any
               covenants and conditions contained in the Note or in any of
               the other Loan Documents may be waived or modified
               without prejudice to the liability of Borrower on the Note or
               other Loan Documents.

               ***

               6.8 Borrower hereby authorizes any attorney-at-law to appear
               in any court of record in the State of Ohio or in any other state
               or territory of the United States at any time after the Note
               becomes due, whether by acceleration or otherwise, to waive
No. 17AP-621                                                                                                   4


                 the issuing and service of process, and to confess judgment
                 against Borrower in favor of Lender for the amount due
                 together with interest, expenses, the costs of suit and
                 reasonable counsel fees, and thereupon to release and waive
                 all errors, rights of appeal and stays of execution.

                 ***

                 WARNING--- BY SIGNING THIS PAPER YOU GIVE
                 UP YOUR RIGHT TO NOTICE AND COURT TRIAL.

(Emphasis sic.) (Mar. 21, 2016 Deft.'s Ex. 6.)1
        {¶ 3} On October 13, 2015, appellee filed a complaint on cognovit note asserting
that, pursuant to a cognovit note executed July 18, 2014, appellant owed appellee $400,000
plus interest at 10 percent from February 15, 2015, in addition to court costs and reasonable
attorney fees.
        {¶ 4} On October 13, 2015, counsel for appellant filed an answer "waiv[ing] the
issuance and service of process herein and confess[ing] judgment in favor of [appellee]
against [appellant] in the amount of $400,000.00, plus interest at 10% on the amount
owed under the Note as set forth in [the] Note, from February 15, 2015; reasonable
attorneys' fees; and the costs of this proceeding, taxed and to be taxed." (Answer at 1.)
Furthermore, counsel for appellant "release[d] and waive[d] all exceptions, errors and
rights of appeal." (Answer at 1.) On October 22, 2015, the trial court filed a judgment entry
granting judgment in favor of appellee in the amount sought in the complaint.
        {¶ 5} On November 17, 2015, appellant filed a motion for relief from judgment
under Civ.R. 60(B). On January 4, 2016, appellee filed a memorandum contra appellant's
motion for relief from judgment. On February 22, 2016, appellant filed a reply in support
of its motion for relief from judgment. On March 21, 2016, the magistrate held a hearing
on appellant's motion for relief from judgment. On May 2, 2016, the magistrate filed a



1 We note that appellee in hiscomplaint attached a copy of the cognovit note but stated the following: "Plaintiff
has attached both a copy of the original note and a replacement note executed by Defendant on October 7,
2015 and provided to Plaintiff due to the fact that Defendant never forwarded the original note to Plaintiff and
Defendant has since lost the original note. See Exhibit A (copy of original note) and Exhibit B (replacement
original executed note signed on 10/7/2015)." Neither party has raised as an issue for our consideration any
differences between the versions of the cognovit note, nor do there appear to be any differences material to
our analysis. Therefore, for purposes of this appeal, we consider the July 18, 2014 version of the cognovit note
admitted into evidence at the March 21, 2016 hearing as Defendant's Exhibit 6.
No. 17AP-621                                                                                  5


decision, including findings of fact and conclusions of law, denying appellant's
November 17, 2015 motion for relief from judgment.
       {¶ 6} On June 23, 2016, appellant filed objections to the magistrate's decision. On
June 30, 2016, appellee filed a memo contra appellant's objections. On July 7, 2016,
appellant filed a reply in support of objections to magistrate's decision. On the same day,
appellee filed a motion to strike appellant's reply in support of objections to the magistrate's
decision. On July 21, 2016, appellant filed a memorandum in opposition to appellee's
motion to strike and alternative motion for leave to file reply in support of objections to the
magistrate's decision. On July 22, 2016, appellee filed a reply in support of motion to strike
and memo contra appellant's motion for leave to file reply.
       {¶ 7} On September 29, 2016, appellant filed a motion for leave to supplement
objections to magistrate's decision with new development and other matters.                 On
October 13, 2016, appellee filed a memo contra appellant's motion for leave to supplement
objections to magistrate's decision.
       {¶ 8} On June 15, 2017, the trial court filed a decision and entry granting appellee's
July 7, 2016 motion to strike appellant's reply in support of objections to the magistrate's
decision and denying appellant's September 29, 2016 motion for leave to supplement
objections to magistrate's decision. On July 28, 2017, the trial court filed a decision and
entry overruling appellant's objections to the magistrate's decision and adopting the
magistrate's decision.
II. Assignment of Error
       {¶ 9} Appellant appeals and assigns the following sole assignment of error for our
review:
               The trial court erred in denying Appellant's motion for relief
               from judgment under Rule 60(B) where Appellant presented
               evidence of the meritorious defense of payment.

III. Discussion
       {¶ 10} In its assignment of error, appellant asserts the trial court abused its
discretion by denying its motion for relief from judgment under Civ.R. 60(B).
A. Applicable Law
       {¶ 11} Generally, in order to prevail on a motion for relief from judgment under
Civ.R. 60(B), a movant must establish: "(1) a meritorious defense or claim to present, in the
No. 17AP-621                                                                                6


event that relief from judgment is granted, (2) entitlement to relief under one of the
provisions in Civ.R. 60(B)(1) through (5), and (3) compliance with the rule's time
requirements." Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 11, citing
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two
of the syllabus.
       {¶ 12} However, when a debtor challenges a cognovit judgment by filing a Civ.R.
60(B) motion, Ohio courts apply a modified GTE standard, requiring the movant to satisfy
only the first and third requirements. Mock Rd. Supermarket, Inc. v. MiraCit Dev. Corp.,
10th Dist. No. 10AP-913, 2011-Ohio-4594, ¶ 8, citing Natl. City Bank v. Rini, 162 Ohio
App.3d 662, 2005-Ohio-4041, ¶ 18 (11th Dist.). The second GTE requirement, i.e., whether
the party is entitled to relief under one of the provisions in Civ.R. 60(B)(1) through (5), is
automatically satisfied through Civ.R. 60(B)(5), which encompasses "any other reason
justifying relief from the judgment." Thus, a movant challenging a cognovit judgment
under Civ.R. 60(B) need only allege a meritorious defense and file a timely motion. Mkt.
Ready Real Estate Servs., Inc. v. Weber, 10th Dist. No. 12AP-183, 2013-Ohio-4879, ¶ 8,
citing Huntington Natl. Bank v. Royal Mt. Sterling Corp., 10th Dist. No. 12AP-174, 2012-
Ohio-4514, ¶ 13. See also B & I Hotel Mgt., LLC v. Ditchman Holdings, L.L.L.P., 8th Dist.
No. 84265, 2004-Ohio-6294, ¶ 31.
       {¶ 13} This court has previously outlined defaults on cognovit notes as follows:
               A cognovit note contains provisions designed to cut off
               defenses available to a debtor in the event of default. * * * The
               holder of a cognovit note in default obtains a judgment without
               a trial of possible defenses which the signers of the note might
               otherwise assert. * * * This is so because, under a cognovit note,
               the debtor consents in advance to the holder obtaining a
               judgment without notice or hearing. * * * An attorney, whom
               the note holder may designate, appears on behalf of the debtor
               and, pursuant to provisions of the cognovit note, confesses
               judgment and waives the debtor's right to notice of the
               proceedings.
Weber at ¶ 12, quoting Classic Bar & Billiards, Inc. v. Samaan, 10th Dist. No. 08AP-210,
2008-Ohio-5759, ¶ 8. Although cognovit notes traditionally contain provisions removing
every defense available to a debtor in the event of default except payment, "Ohio courts
have also recognized additional meritorious defenses involving the integrity and validity of
cognovit notes, including: ' "improper conduct in obtaining the debtor's signature on the
No. 17AP-621                                                                                 7


note; deviation from proper procedures in confessing judgment on the note; and
miscalculation of the amount remaining due on the note at the time of confession of
judgment." ' " Mock Rd. Supermarket at ¶ 10, quoting Sadraoui v. Hersi, 10th Dist. No.
10AP-849, 2011-Ohio-3160, ¶ 14, quoting First Natl. Bank of Pandora v. Freed, 3d Dist.
No. 5-03-36, 2004-Ohio-3554, ¶ 9.
B. Standard of Review
        {¶ 14} Civ.R. 53 governs proceedings before a magistrate, including objections to a
magistrate's decision. In ruling on objections to a magistrate's decision, the trial court must
undertake an independent review of the matters objected to in order "to ascertain [whether]
the magistrate has properly determined the factual issues and appropriately applied the
law." Civ.R. 53(D)(4)(d). In accordance with Civ.R. 53, a trial court reviews a magistrate's
decision de novo. James v. My Cute Car, LLC, 10th Dist. No. 16AP-603, 2017-Ohio-1291,
¶ 13.
        {¶ 15} "The standard of review on appeal from a trial court judgment that adopts a
magistrate's decision varies with the nature of the issues that were (1) preserved for review
through objections before the trial court and (2) raised on appeal by assignment of error."
In re Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14. The
decision to grant or deny a Civ.R. 60(B) motion is left to the sound discretion of the trial
court and will not be reversed on appeal absent a showing of abuse of discretion. Sadraoui
at ¶ 11, citing Perry v. Gen. Motors Corp., 113 Ohio App.3d 318, 320 (10th Dist.1996). An
abuse of discretion occurs when a court's judgment is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
C. Analysis
        {¶ 16} First, appellant asserts it established the defense of payment by
demonstrating that it made one installment payment.            In support of this assertion,
appellant contends that a check dated March 23, 2015 in the amount of $2,000 payable to
appellee demonstrated that it made the February 15, 2015 installment payment. Appellant
contends that once it "made this payment, which was accepted and cashed by [a]ppellee,
[a]ppellant was not in default, since it had paid all that was owed under the cognovit note."
(Appellant's Brief at 9.)
No. 17AP-621                                                                                  8


       {¶ 17} In B & I Hotel, the defendant filed a Civ.R. 60(B) motion, asserting the
defense of payment because "it had made all of the 'interest only' payments, and that [the
plaintiff] had waived any default by accepting such payments after the original maturity
date of the note." Id. at ¶ 33. However, the court found the plaintiff did not seek any of the
interest only payments, but, rather, alleged the principle was unpaid and sought interest
under the default rate provided in the note. As a result, the court concluded the defendant's
"claim that it had made all of the 'interest only' payments does not meet the substance of
[the plaintiff's] allegations of nonpayment and therefore is not a meritorious defense." Id.
Finally, the Eighth District found the trial court did not abuse its discretion in rejecting the
defendant's claim that the plaintiff had waived its right to declare a default because "the
parties expressly agreed that the failure to exercise the option to declare a default shall not
constitute a waiver of the right to subsequently declare a default, the parties expressly
agreed that acceleration could occur without demand or notice to borrower, and [the
defendant] failed to present evidence to demonstrate that [the plaintiff] relinquished its
right to declare a default." Id. at ¶ 34.
       {¶ 18} Here, as in B & I Hotel, the trial court found appellee did not seek judgment
for the interest only payments but, rather, for the "principal amount of $400,000 plus
interest at the default rate of 10% per annum as provided in Section 5.2 of the note."
(July 28, 2017 Decision at 7.) The trial court found that appellant "does not contest * * *
that, at the time it made the $2,000 payment to [appellee], it * * * was in default under the
terms of [the] note and that 'the $2000.00 check, dated March 23, 2015, only could be
considered as an interest payment and applied to the interest owed on the debt.' " (July 28,
2017 Decision at 7.) As a result, the trial court applied the reasoning of B & I Hotel to find
that the interest only payment made by appellant did not constitute a meritorious defense
because such sum was not sought in appellee's complaint, nor included in the trial court's
judgment.
       {¶ 19} Here, it is undisputed that appellant failed to timely make the February 15,
2015 interest only payment, which constituted an event of default as defined by section 5.1
of the note. Furthermore, appellant does not dispute that appellee, in his complaint, sought
only the principal sum and interest at the default rate. Thus, under the reasoning of B & I
Hotel, appellant's untimely interest only payment "does not meet the substance of
No. 17AP-621                                                                                  9


[appellee's] allegations of nonpayment and therefore is not a meritorious defense." Id. at
¶ 33. Although appellant takes issue with the trial court's judgment reaching back to
February 15, 2015, despite its untimely payment, appellant does not contend nor does the
record reflect that appellant made any other payments on the note, timely or otherwise,
before the filing of appellee's complaint. Therefore, under the facts and circumstances of
this case, we find the trial court did not abuse its discretion in finding that appellant failed
to present a meritorious defense.
       {¶ 20} Next, appellant contends appellee was required to give appellant 30 days to
cure the default under the terms of the note. Appellant argues, therefore, the trial court's
judgment is "erroneous on its face" because it "imposes a higher, default rate of interest
effective as of February 15, 2015, the first payment date" instead of after the "expiration of
a 30 day cure period." (Appellant's Brief at 11-12.) Furthermore, appellant argues that the
"record is silent that [a]ppellee ever met the note's requirement of 'notice of the perceived
default in writing' to [a]ppellant so as to trigger entitlement to the higher default interest
rate." (Appellant's Brief at 12.) Upon a review of the record, we find appellant failed to raise
these claims before the trial court in the first instance, either in its Civ.R. 60(B) motion or
its objections to the magistrate's decision denying the motion. Although a movant need not
prove that he or she will prevail on an alleged meritorious defense in order to succeed on a
Civ.R. 60(B) motion, the movant " 'must allege operative facts with enough specificity to
allow the trial court to decide whether he or she has met that test.' " (Emphasis sic.) Mock
Rd. Supermarket at ¶ 30, quoting Oberkonz v. Gosha, 10th Dist. No. 02AP-237, 2002-
Ohio-5572, ¶ 16. As appellant failed to raise these arguments below, we decline to address
them for the first time on appeal. Classic Bar at ¶ 15, citing State ex rel. Zollner v. Indus.
Comm., 66 Ohio St.3d 276, 278 (1993).
       {¶ 21} Finally, appellant contends the trial court erred because it failed to credit as
payment certain sums that it alleges appellee took from appellant. In its decision overruling
appellant's objections to the magistrate's decision, the trial court stated appellant "never
raised this [issue] in support of a partial payment defense in its [Civ.R. 60(B)] motion," but,
rather, "contended that this cash 'misappropriated' and 'diverted' by [appellee] prevented
it from making the payments due under the note." (July 28, 2017 Decision at 5.) As a result,
the trial court found appellant had waived the issue by raising it for the first time in its
No. 17AP-621                                                                              10


objections to the magistrate's decision. On review, we conclude the trial court did not abuse
its discretion in finding appellant had waived the issue. See State ex rel. Durbin v. Indus.
Comm., 10th Dist. No. 10AP-712, 2012-Ohio-664, ¶ 10-11. Therefore, we decline to address
the same for the first time on appeal.
       {¶ 22} For the above reasons, we find the trial court did not abuse its discretion by
overruling appellant's objections to the magistrate's decision denying appellant's Civ.R.
60(B) motion. Accordingly, we overrule appellant's assignment of error.
IV. Conclusion
       {¶ 23} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                      SADLER and LUPER SCHUSTER, JJ., concur.
