Classic Bar Billiards v. Samaan, 08ap-210 (11-6-2008)Classic Bar Billiards v. Samaan, 08ap-210 (11-6-2008)
{¶ 2} On November 20, 2006, appellee filed a cognovit complaint in the trial court, seeking judgment against appellants in the amount of $138,611.94, plus interest, costs, and fees. Attached to the complaint was a promissory note dated August 23, 2005. Pursuant to the note, appellants agreed to pay appellee $150,000 by making monthly installments beginning in October 2005 and ending in September 2010. The note contained the following notice:
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 GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
{¶ 3} Also on November 20, 2006, attorney Howard Baumwell filed an answer on behalf of appellants and confessed judgment in favor of appellee.
{¶ 4} On November 21, 2006, the trial court issued a judgment entry, which granted judgment in favor of appellee in the amount of $138,611.94 (the alleged balance due on the note), plus interest from January 1, 2006, attorney fees in the amount of $45,741.94, and costs.
{¶ 5} On February 1, 2007, appellants filed a motion for relief from judgment, pursuant to
{¶ 6} On February 13, 2008, the trial court issued a decision and entry denying appellants' motion. The court noted that, on June 28, 2007, summary judgment had been granted in the fraud action in favor of appellee and that the action had been dismissed with prejudice against appellants. Applying the standards for
{¶ 7} Appellants filed a timely appeal, and they raise one assignment of error, as follows:
*4IT WAS ERROR FOR THE COURT NOT TO GRANT APPELLANTS['] MOTION FOR RELIEF FROM JUDGMENT WHEN THERE IS ANOTHER ACTION PENDING BETWEEN THE PARTIES WHEREIN IT IS ALLEGED THAT THE PLAINTIFF IN THE COGNOVIT PROCEEDING WRONGLY DEPRIVED APPELLANTS OF POSSESSION OF THE PROPERTY WHICH IS THE OBJECT OF A SALE CONTRACT, AND KEPT THE BALANCE, $245,000.00, OF APPELLANTS['] MONEY AND TO GRANT [APPELLEE'S] COUNSEL "REASONABLE ATTORNEY FEES" OF $45,741.94, WITHOUT NOTICE OR HEARING.
{¶ 8} At issue here is the cognovit note signed by appellants in 2005. A cognovit note contains provisions designed to cut off defenses available to a debtor in the event of default. See Tinnes v. ImmobilaireIV, Ltd. (Feb. 13, 2001), Franklin App. No. 00AP-87; Fifth Third Bank v.Jarrell, Franklin App. No. 04AP-358,
{¶ 9} Here, the cognovit note signed by appellants contained the usual provision that cut off appellants' right to notice and possible defenses for nonpayment. As allowed under the note, Attorney Baumwell appeared on appellants' behalf and confessed judgment. Accordingly, the court granted judgment in favor of appellee and, ultimately, denied appellants' request for relief from that judgment.
{¶ 10} We apply an abuse of discretion standard to the trial court's decision to deny appellants'
{¶ 11} A debtor on a cognovit judgment may pursue a
{¶ 12} Ohio courts have modified the GTE standard on a
{¶ 13} Through the modified GTE standard, the
{¶ 14} Appellants acknowledge that some Ohio courts, including this court, have concluded that payment is the only meritorious defense under a cognovit note. See, e.g., Jarrell at ¶ 12, citing Tinnes. Nevertheless, appellants did not allege below, and do not claim here, that payment was made. Instead, within the body of their appellate brief, they assert that the trial court's judgment was in the wrong amount because, when added together, appellants' payments plus the court's award total $400,000, and the purchase price was only $375,000. They also assert that the award of attorney fees in the amount of $45,741.94 "would not seem to comport" with the note's provisions. They conclude by stating: "Appellants should have been notified."
{¶ 15} As appellee asserts, however, appellants did not raise either of these arguments in their motion for relief. Instead, they argued that appellee's claims concerning the cognovit note should have been raised or consolidated with the fraud action and that the actions of appellee and its counsel entitled appellants to an award of sanctions. They did not argue that the judgment amount was incorrect, and the court did not address that argument. In fact, in its decision, the trial court noted that appellants "do not argue that there has been a miscalculation of the balance due on this Cognovit Note." Nor did appellants argue that the attorney fee award was in conflict with the note, so the trial court did not consider that argument either. Having failed to raise these issues below, appellants cannot raise them on appeal. State ex rel.Zollner v. Indus. Comm.,
{¶ 16} Within their assignment of error, which we quoted above, appellants also state that the trial court erred by denying their motion for relief because there was another action pending between the parties. Within the body of the argument, however, appellants do not repeat this assertion, provide any support for the statement, or otherwise argue in favor of it. There is simply no argument concerning whether the court erred by denying
{¶ 17}
{¶ 18} Moreover, we discern no support for this argument in the record. Even if we were to agree with appellants that a trial court errs by denying
{¶ 19} For all these reasons, we overrule appellants' sole assignment of error.
Accordingly, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
McGRATH, P.J., and T. BRYANT, J., concur.
T. BRYANT, J., retired, of the Third Appellate District, assigned to active duty under authority of Section