[Cite as Smithey v. Frost & Co., Inc., 2009-Ohio-3151.]




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



JAMES L. SMITHEY,

   PLAINTIFF-APPELLEE,                                    CASE NO. 2-09-08
   CROSS-APPELLANT,

  v.

FROST & CO., INC., et al.                                  OPINION

   DEFENDANTS-APPELLANTS,
   CROSS-APPELLEES.



                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2008-CV-0452

                                     Appeal Dismissed
                                   Cross-Appeal Dismissed

                              Date of Decision: June 29, 2009




APPEARANCES:

        Derek A. Younkman for Appellant

        R.C. Wiesenmayer for Appellee
Case No. 2-09-08




WILLAMOWSKI, J.

       {¶1} The defendants-appellants/cross-appellees, Frost & Co., Inc., now

known as Frost Mechanical Holdings, Inc., and Frost Mechanical, Inc. (hereinafter

referred to collectively as “Frost Mechanical”), appeal the January 16, 2009

journal entry of the Auglaize County Common Pleas Court. Frost Mechanical

contends that the trial court erred when it denied their motion for relief from

judgment. The plaintiff-appellee/cross-appellant, James L. Smithey, filed a cross-

appeal challenging the same journal entry of the trial court. On appeal, Smithey

contends that the trial court erred by ordering the clerk of courts to retain the

amount of the judgment he had obtained against Frost Mechanical.           For the

reasons set forth herein, the appeal and cross-appeal are dismissed.

       {¶2} Smithey and John McCormick had been shareholders in Frost & Co.,

Inc., which in turn was the sole shareholder of Frost Mechanical, Inc. and another

company.     On May 23, 2008, the parties entered into an agreement of

reorganization in which Smithey’s shares were redeemed. In his capacity as the

vice-president of Frost & Co., Inc. and as the president of Frost Mechanical, Inc.,

McCormick executed a cognovit note payable to Smithey in the amount of

$115,000.    The note did not mature until May 23, 2010; however, Frost

Mechanical was required to make quarterly interest payments beginning on May

23, 2008. Frost Mechanical failed to make two quarterly interest payments.

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Case No. 2-09-08


       {¶3} On December 30, 2008, Smithey accelerated the balance due on the

note and filed a complaint for cognovit judgment.          That same day, Frost

Mechanical filed its answer confessing judgment, and the trial court entered

judgment in the amount of $115,000 plus pre-judgment and post-judgment interest

at the rate of 11%, late charges as provided in the note, and court costs. On

January 9, 2009, the court garnished $118,856.17 from Frost Mechanical’s bank

account(s).

       {¶4} On January 16, 2009, Frost Mechanical filed a motion for relief from

judgment arguing that they were entitled to a set-off. The court also held a hearing

on January 16, 2009, at which counsel argued the motion for relief from judgment.

At the conclusion of the hearing, the court stated, “I’m not gonna set aside the

judgment.” (Hearing Tr., Mar. 12, 2009, at 26:15-16). The court then stated that

Frost Mechanical was entitled to a set-off, but they would have to go through

arbitration as provided by the agreement of reorganization. The court ordered the

clerk of courts to retain and invest the $118,856.17. Following the hearing, the

court filed a journal entry, which stated:

       This matter came before the Court upon the request for hearing
       filed by the Defendants, upon issues of distribution of attached
       proceeds from a bank account(s) of the Defendants, Motion for
       relief from judgment pursuant to Civil Rule 60, and a request to
       set aside execution. Upon hearing, the Court FINDS that
       Defendants have not set forth good cause to vacate the Judgment
       pursuant to Civil Rule 60(B), and the Court further FINDS that
       Defendants and Plaintiff have entered into an agreement
       requiring notice of claims followed by binding arbitration,
       neither of which has yet been accomplished.

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Case No. 2-09-08



         The Court further FINDS that the Defendants claim that they
         have unspecified set-offs, and therefore, this Court does hereby
         ORDER that the Clerk of this court shall retain the $118,856.17
         she has received pursuant to Plaintiff’s action to enforce its
         Cognovit Judgment. * * * The parties are instructed that either
         party may request a hearing at any time for distribution of said
         funds, and the Court will entertain such request. * * *

         IT IS SO ORDERED.

(Journal Entry, Jan. 16, 2009).

         {¶5} Frost Mechanical appeals the journal entry of the trial court, raising

three assignments of error for our review.

                             First Assignment of Error

         The trial court erred to the prejudice of Appellants in that a
         meritorious defense of setoff was presented and the motion for
         relief from judgment was timely made.

                            Second Assignment of Error

         The trial court erred to the prejudice of Appellants in that
         collateral attacks on cognovit judgments are liberally permitted
         and the movants have a lesser burden when the judgment sought
         to be vacated is a cognovit judgment.

                             Third Assignment of Error

         The trial court erred to the prejudice of Appellants in that any
         doubts are required to be resolved in favor of movants who
         pursue relief from a cognovit judgment and as such the denial of
         the motion was unreasonable and an abuse of discretion.

In his cross-appeal from the same journal entry, Smithey raises one assignment of

error.



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Case No. 2-09-08


                           Cross-Assignment of Error

       The trial court erred to the prejudice of the Cross-Appellant
       when it ordered that the $118,856.17 be retained by the Court,
       “until further Order of the Court”.

       {¶6} Before considering the merits of the appeal or cross-appeal, we must

first determine whether this court has subject-matter jurisdiction. Jurisdiction may

be raised sua sponte on appeal. Portman v. Mabe, 3d Dist. No. 15-07-12, 2008-

Ohio-3508, at ¶ 18, citing Orthopedics and Sports Medicine, Inc. v. Stover, 3d

Dist. No. 14-06-32, 2007-Ohio-899, at ¶ 10, citing Davison v. Rini (1996), 115

Ohio App.3d 688, 686 N.E.2d 278. See also State ex rel. White v. Cuyahoga

Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 544, 684 N.E.2d 72, citing State ex

rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 84, 661 N.E.2d

728.

       R.C. 2505.03 limits the jurisdiction of appellate courts to the
       review of final orders, judgments, and decrees. [White, at 544].
       “[T]he primary function of a final order or judgment is the
       termination of a case or controversy that the parties have
       submitted to the trial court for resolution.” Harkai v. Scherba
       Industries, Inc. (2000), 136 Ohio App.3d 211, 215. See also R.C.
       2505.02(B) (defining what type of orders, judgments, and
       decrees are final and appealable). In order to terminate an
       action, a final order, judgment, or decree must set forth the
       outcome of the dispute and contain a clear statement of the relief
       afforded to the parties. In the Matter of Manor Care of Parma,
       Franklin App. No. 04AP-768, 2005-Ohio-524, at ¶ 5; Harkai,
       supra, 215-216. In other words, the final order, judgment, or
       decree must address all of the issues submitted to the trial court
       for determination so that the parties may know, by referring
       solely to the order, judgment, or decree, the extent of their
       responsibilities and obligations. Yahraus v. Circleville (Dec. 15,
       2000), Pickaway App. No. 00CA04.

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Case No. 2-09-08



Shambaugh v. Metro. Property and Cas. Ins. Co., 10th Dist. No. 05AP-949, 2006-

Ohio-533, at ¶ 7.

       {¶7} In this litigation, as in Shambaugh, the journal entry from which the

appeal and cross-appeal are taken does not delineate the parties’ responsibilities

and/or obligations. See Shambaugh, at ¶ 8. The court made findings, but it did

not rule upon any of the pending motions, including Frost Mechanical’s Civ.R.

60(B) motion, nor did it “actually enter judgment for or against any party on any

claim or issue.” Id. We note the court’s statement at hearing that relief from

judgment would not be allowed. Such statement allows the inference that the

motion for relief from judgment was denied. However, the “‘court speaks only

through its journal[,]’” and as stated above, the journal entry did not enter any

judgment but instead stated the court’s findings. Id. at ¶ 9, quoting State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 6. The court’s

journal entry of January 16, 2009 does not constitute a final appealable order, and

both the appeal and cross-appeal must be dismissed for want of jurisdiction.

                                                                Appeal Dismissed
                                                          Cross-Appeal Dismissed


ROGERS and SHAW, J.J., concur.

/jnc




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