Patton v. Diemer, 86-1867

• Decision Date: 03 February 1988
• Docket Number: No. 86-1867,86-1867
• Citation: 35 Ohio St.3d 68,518 N.E.2d 941
• Parties: PATTON, Appellant, v. DIEMER, Appellee.
• Court: Ohio Supreme Court

Page 68

35 Ohio St.3d 68

518 N.E.2d 941

PATTON, Appellant, v. DIEMER, Appellee.

No. 86-1867.

Supreme Court of Ohio.

Feb. 3, 1988.

Syllabus by the Court

1. The attorney-client relationship is a "consumer transaction" within the meaning of R.C. 2323.13.

2. A common pleas court lacks jurisdiction to render judgment upon a warrant of attorney pursuant to R.C. 2323.13 where the relationship giving rise to the claim for relief involves a consumer transaction.

3. A judgment rendered by a court lacking subject matter jurisdiction is void ab initio.

4. The authority to vacate a void judgment is not derived from Civ.R. 60(B) but rather constitutes an inherent power possessed by Ohio courts. (Lincoln Tavern v. Snader [1956], 165 Ohio St. 61, 59 O.O. 74, 133 N.E.2d 606, paragraph one of the syllabus, and Westmoreland v. Valley Homes Corp. [1975], 42 Ohio St.2d 291, 294, 71 O.O.2d 262, 264, 328 N.E.2d 406, 409, approved and followed.)

Plaintiff-appellant, Richard F. Patton, is an attorney engaged in the practice of law in the state of Ohio. On February 4, 1977, appellant obtained a final decree of divorce on behalf of defendant-appellee, Julie Ann Diemer, from her former husband, Thomas E. Diemer. From July 30, 1977 through December 5, 1984, appellant provided 494 3/4 hours of post-decree legal services to appellee. During the course of his post-decree representation of appellee, appellant sought from Thomas Diemer an award of attorney fees. On December 5, 1984, a hearing was held before a referee appointed by the Cuyahoga County Court of Common Pleas upon the application for attorney fees. Prior to the hearing, appellee signed a cognovit note for the attorney fees due, payable to appellant in the amount of $50,448.60. The note contained a warrant of attorney to confess judgment which allowed execution thereon without prior notice to the debtor.

On March 6, 1985, appellant instituted the present action on the cognovit note in the Cuyahoga County Court of Common Pleas. ¹ Judgment was entered thereon at that time in the amount of $51,609.61. Appellee received notice of this judgment on March 15, 1985. No appeal therefrom was pursued. On May 30, 1985, appellant filed a partial satisfaction in the sum of $20,375.75--leaving a balance due of $31,233.86.

On February 27, 1986, appellee filed what was captioned as an Amended Motion for Relief from Judgment, pursuant to Civ.R. 60(B). This motion was opposed by appellant. On April 22, 1986, the court of common pleas granted the motion. Upon appeal, the court of appeals affirmed the judgment of the common pleas court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Deborah Purcell Goshien, Cleveland, for appellant.

Mary Ann S. Johanek, Cleveland, for appellee.

SWEENEY, Justice.

The instant appeal involves the interpretation of R.C. 2323.13 and its relationship to a confession of judgment obtained as a result of an action for attorney fees. R.C. 2323.13(A) authorizes the use of a warrant of attorney to confess judgment. It provides:

"An attorney who confesses judgment in a case, at the time of making such confession, must produce the warrant of attorney for making it to the court before which he makes the confession. Notwithstanding any agreement to the contrary, if the maker or any of several makers resides within the territorial jurisdiction of a municipal court established under section 1901.01 of the Revised Code, or signed the warrant of attorney authorizing confession of judgment in such territory, judgment on such warrant of attorney shall be confessed in a municipal court having jurisdiction in such territory, provided the court has jurisdiction over the subject matter; otherwise, judgment may be confessed in any court in the county where the maker or any of several makers resides or signed the warrant of attorney. The original or a copy of the warrant shall be filed with the clerk."

R.C. 2323.13(E) specifically precludes the use of a warrant of attorney to confess judgment where the underlying action involves a consumer transaction. It provides in relevant part:

"A warrant of attorney to confess judgment contained in any instrument executed on or after January 1, 1974, arising out of a consumer loan or consumer transaction, is invalid and the court shall have no jurisdiction to render a judgment based upon such a warrant. An action founded upon an instrument arising out of a consumer loan or a consumer transaction as defined in this section is commenced by the filing of a complaint as in any ordinary civil action." (Emphasis added.)

R.C. 2323.13(E)(2) defines the term "consumer transaction." It provides:

"As used in this section:

" * * *

" * * * (2) 'Consumer transaction' means a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, franchise, or an intangible, to an individual for purposes that are primarily personal, family, educational, or household." (Emphasis added.)

The definition of "consumer transaction" contained within R.C. 2323.13 clearly encompasses the attorney-client relationship. Legal representation is undoubtedly a "service * * * to an individual for purposes that are primarily personal, family, educational, or household." Consequently, the attorney-client relationship is a "consumer transaction" as defined by R.C. 2323.13.

Appellant maintains that the attorney-client relationship is specifically exempted from the definition of consumer transaction by virtue of R.C. 1345.01(A). It provides in relevant part:

"As used in sections 1345.01 to 1345.13 of the Revised Code:

"(A) 'Consumer transaction' means a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, franchise, or an intangible, except those transactions between persons, defined in sections 4905.03 and 5725.01 of the Revised Code, and their customers, those between attorneys, physicians, or dentists and their clients or patients, or those between veterinarians and their patients that...