Huntington Natl. Bank v. 199 S. Fifth St. Co.Huntington Natl. Bank v. 199 S. Fifth St. Co.
Bricker & Eckler, LLP, Justin W. Ristau, Vladimir P. Belo and Molly E. Philipps, for Huntington National Bank.
Andrew J. Michaels; Vorys, Sater, Seymour & Pease, LLP, and John W. Solomon, for appellants.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendants-appellants, Annette Trembly and the Trembly Family Limited Partnership Two (collectively, “defendants“), appeal from a judgment of the Franklin County Court of Common Pleas denying defendants’ motion to vacate the cognovit
I. Facts and Procedural History
{¶2} On March 5, 2010, plaintiff, as successor by merger to Sky Bank, filed a complaint against 199 South Fifth Street Co., LLC, John Messmore, individually and as trustee of the John W. Messmore Revocable Trust Agreement, Mark Jones, Blue Heron Land Co., and defendants for breach of a promissory note (“the note“) and the commercial guaranties securing the promissory note.
{¶3} The complaint alleged that 199 South Fifth Street Co., LLC executed and delivered a promissory note to Sky Bank in August 2006 in the amount of $5.36 million. The remaining named parties, including defendants, executed and delivered commercial guaranties for the entire indebtedness under the note. Both the note and the commercial guaranties contained warrants of attorney authorizing an attorney to appear in court after the note became due and to confess judgment. Plaintiff‘s complaint alleged that 199 South Fifth Street, LLC defaulted on the note in failing to pay the outstanding principal and interest when it became due on August 22, 2008.
{¶4} In seeking cognovit judgment against defendants, plaintiff presented to the court photocopies of the note and all of the commercial guaranties, as well as the affidavit of Michael K. Adamson, plaintiff‘s Vice President for Special Assets, who attested to the authenticity of the documents and the precise amount of the indebtedness. At no time did plaintiff provide the trial court with the original note or commercial guaranties. The same day plaintiff filed its complaint, it obtained a cognovit judgment on March 5, 2010 in the
{¶5} On July 29, 2010, defendants filed a motion to vacate the cognovit judgment, arguing the trial court did not have subject matter jurisdiction to render judgment where plaintiff did not provide the trial court with the original warrants of attorney for the note and the commercial guaranties. After the parties fully briefed the issue, the trial court in an October 27, 2010 decision and entry denied defendants’ motion to vacate the judgment.
II. Assignments of Error
{¶6} Defendants appeal, assigning the following errors:
- The Trial Court erred by entering a cognovit judgment where the original warrant of attorney to confess judgment was never produced to the Trial Court.
- The Trial Court erred by denying a timely motion to vacate a cognovit judgment where the original warrant of attorney to confess judgment was never produced to the Trial Court.
Defendants’ assignments of error are interrelated, so we address them jointly.
III. Analysis
{¶7} Taken together, defendants’ assignments of error contend the trial court lacked subject matter jurisdiction to enter a cognovit judgment against them, rendering the judgment against them void. Defendants assert the trial court erred both in rendering a void judgment and in failing to grant defendants’ motion to vacate the void judgment.
{¶8} To prevail on a motion for relief from judgment under
{¶9} Here, however, the statutory provisions at issue,
{¶10} Defendants initially contend the trial court‘s entry is void because the note does not comply with
{¶11}
{¶12} Noting the first sentence of
{¶13} To support their contention that a trial court has jurisdiction to enter cognovit judgment only where the attorney confessing judgment presents to the court the original
{¶14} In an attempt to distinguish Lathrem, plaintiff contends the case turned on the fact the “original note with warrant of attorney * * * was lost and therefore not before the court when the judgment was taken and the entry filed,” so the plaintiff “presented a copy” of the note and warrant of attorney which the court used to “restore[] the lost note and warrant of attorney.” Id. at 186-87. Plaintiff asserts Lathrem does not apply here, where no one contends the original note or warrant of attorney has been lost; rather plaintiff simply provided only photocopies to the trial court.
{¶15} Plaintiff suggests Masters Tuxedo Charleston, Inc. v. Krainock, 7th Dist. No. 02 CA 80, 2002-Ohio-5235, is more on point than Lathrem. Masters Tuxedo addressed whether “Masters Tuxedo could * * * obtain a valid cognovit judgment” where it “did not strictly comply with
{¶16} Fogg, on which Masters Tuxedo relied, expressly held
{¶17} Moreover, Fogg‘s interpretation of
{¶18} Because the legislature used different language in the first and last sentences of
{¶19} We further respectfully disagree with the Seventh District‘s attempt to distinguish Masters Tuxedo from Lathrem. Masters Tuxedo concludes that when Lathrem said “the court cannot recreate or restore a warrant of attorney, the court in essence meant redraw.” Masters Tuxedo at ¶9. Although the facts of Lathrem involved a situation in which the original warrant of attorney was lost and subsequently recreated, the syllabus of Lathrem is very clear that
{¶20} Moreover, interpreting
{¶21} In the final analysis, the language of
IV. Disposition
{¶22} Because the trial court lacked subject matter jurisdiction to enter cognovit judgment against defendants where plaintiff did not present the original warrants of
Judgment reversed and cause remanded with instructions.
KLATT and CONNOR, JJ., concur.
__________________