[Cite as Niederst v. Niederst, 2014-Ohio-2406.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100616



                                  BERNARD NIEDERST

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                           DAVID B. NIEDERST, ET AL.
                                                        DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             REVERSED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-13-814870

        BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       June 5, 2014
ATTORNEYS FOR APPELLANT

Michael R. Stavnicky
T. Christopher O’Connell
Singerman, Mills, Desberg, & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Beachwood, OH 44122


ATTORNEY FOR APPELLEES

Jon J. Pinney
Kohrman Jackson & Krantz P.L.L.
One Cleveland Center
1375 East Ninth Street, 20th Floor
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.        Plaintiff-appellant Bernard Niederst obtained a cognovit

judgment in the amount of $750,000 against his brother and business partner, defendant

David Niederst and various companies apparently associated with him.              Seven days

later, the court issued a journal entry indicating that it held a “hearing” and, as a result of

the hearing, vacated Bernard’s judgment.      Bernard appeals, claiming that the court acted

improperly by, among other things, vacating the cognovit judgment because there was no

motion for relief from judgment before the court.

       {¶2} It is a “bedrock principle of appellate practice in Ohio * * * that an appeals

court is limited to the record of the proceedings at trial.” Morgan v. Eads, 104 Ohio

St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. The record in this appeal is sparse,

to say the least. As relevant to this appeal, it consists only of the cognovit complaint, the

cognovit judgment, and a journal entry stating:

       On 10/02/2013, Plaintiff filed a cognovit complaint and judgment was
       rendered in favor of Plaintiff by confession in the amount of $750,000. A
       hearing was held on 10/09/2013. As a result of the hearing, the
       10/02/2013 judgment in favor of Plaintiff is hereby vacated. A hearing is
       scheduled for 10/18/2013, at 2:30 p.m. on plaintiff’s oral motion to
       reconsider. Notice issued.

       {¶3} The record does not contain a motion to vacate the cognovit judgment and

David does not deny that he did not file a motion for relief from judgment. He argues,

without citation to legal precedent, that the court could act on its own initiative to vacate
the cognovit judgment.    In fact, we have consistently held that “[a] trial court has no

authority to sua sponte vacate its own final orders” because “Civ.R. 60(B) provides the

exclusive means for a trial court to vacate a final judgment.”         CAC Home Loans

Servicing, LP v. Henderson, 8th Dist. Cuyahoga No. 98745, 2013-Ohio-275, ¶ 10

(citations omitted). With no motion for relief from judgment filed in conformity with

Civ.R. 60(B), the court had no authority to act sua sponte to vacate the cognovit

judgment.       See also Schmahl v. Powers, 8th Dist. Cuyahoga No. 99115,

2013-Ohio-3241, ¶ 13. Our disposition of this appeal is thus dictated by the sparse

record on appeal.

       {¶4} David appears to suggest that the court considered an oral motion for relief

from judgment by asserting that the parties met in chambers with the trial judge and

engaged in a “vigorous debate” on the merits of the cognovit judgment. See Appellee’s

Brief, fn. 1.   The Ohio Supreme Court has suggested in dicta that “[n]o procedure is

provided in the Civil Rules for the securing of relief from a judgment under Civ.R. 60(B)

by means of an oral motion.” Lamar v. Marbury, 69 Ohio St.2d 274, 276, 431 N.E.2d

102 (1982), fn. 4.   Even if dicta, the Supreme Court’s observations are well-founded.

Civ.R. 60(B) states that an application for relief from judgment shall be made by motion

as prescribed by the Rules of Civil Procedure. Civ.R. 7(B)(1) requires motions not made

during a hearing or trial to be submitted “in writing.”   We therefore agree with Lamar

that it is “self-evident” that a trial court cannot grant relief from a final judgment on an

oral motion. Lamar, supra.      While the record indicates that the court held a “hearing,”
we do not know what transpired at that “hearing.”         With the absence of any written

motion for relief from judgment or any indication by the court that David actually

submitted a motion for relief from judgment, we have no choice but to sustain the first

assignment of error.   The remaining three assignments of error are moot.

       {¶5} This cause is reversed to the trial court for further proceedings consistent with

this opinion.

       It is ordered that appellant recover of appellees his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.            A    certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
