Robert B. Sweeney v. J. William Petro
| Decision Date | 18 May 2000 |
| Docket Number | 00-LW-2316,75580 |
| Parties | ROBERT B. SWEENEY, Plaintiff-Appellee v. J. WILLIAM PETRO, ET AL., Defendants-Appellants CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Cleveland Municipal Court, Case No. 97 CV 13718.
For plaintiff-appellee: Thomas J. Roche, Esq., ROBERT E. SWEENEY CO., L.P.A., 55 Public Square, 1500 Illuminating Building Cleveland, Ohio 44113; Robert B. Weltman, Esq., WELTMAN WEINBERG & REIS CO., Lakeside Place #200, 323 Lakeside Avenue, West, Cleveland, Ohio 44113.
For defendants-appellants: William E. Gerstenslager, Esq., GERSTENSLAGER & OBERT CO., 1995 Huntington Building, 925 Euclid Avenue, Cleveland, Ohio 44115.
J William Petro, defendant-appellant, appeals from the judgment of the Cleveland Municipal Court, Case No. 97-CV-13718, in which the trial court granted summary judgment on a cognovit note in favor of Robert E. Sweeney, plaintiff-appellee. Defendant-appellant also appeals from the trial court's dismissal with prejudice of his third party complaint against Robert E. Sweeney Co., L.P.A. Defendant-appellant assigns three errors for this court's review.
Defendant-appellant's appeal is affirmed in part, reversed in part and remanded.
On November 15, 1994, defendant-appellant executed a cognovit note payable to plaintiff-appellee in the amount of $10,000 with 6% interest per annum. The cognovit note contains the following clause:
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.
A personal check in the amount of $10,000 was issued by plaintiff-appellee to defendant-appellant on November 15, 1994. On the memorandum line of the check the words "personal loan" appear. At the time the cognovit note and personal check were issued, defendant-appellant was an employee of Robert E. Sweeney Co., L.P.A.
On June 16, 1997, plaintiff-appellee filed the underlying lawsuit against defendant-appellant in Cleveland Municipal Court seeking to collect upon the unpaid cognovit note. On September 15, 1997, defendant-appellant filed an answer, counterclaim and third party complaint against Robert E. Sweeney Co., L.P.A. On December 11, 1997, plaintiff-appellee and Robert E. Sweeney Co., L.P.A., filed an answer to the counterclaim and third party complaint of defendant-appellant.
Defendant-appellant maintained that the cognovit note in question was actually an advance on work done for plaintiff-appellee, not a personal loan. Defendant-appellant also contended that the cognovit note was invalid since it was executed as part of what defendant-appellant terms a "personal consumer transaction."
Disputes developed during the lower court proceedings regarding the extent of allowable discovery into the business affairs of Robert E. Sweeney Co., L.P.A. in light of the contention that the cognovit note represented a personal loan and given that defendant-appellant had formerly been employed by Robert E. Sweeney Co., L.P.A. Ultimately, the trial court granted defendant-appellant's motion to compel discovery thereby allowing defendant- appellant wide latitude during the discovery phase of the
proceedings. No sanctions were granted against plaintiff-appellee.
On July 31, 1998, plaintiff-appellee filed a motion for summary judgment in which he sought judgment on the cognovit note. On August 6, 1998, defendant-appellant filed a brief in opposition in which he maintained that the motion for summary judgment was not properly filed since prior leave of court was not obtained. Defendant-appellant argued further that discovery still needed to be completed before he could adequately respond to the motion and that the motion itself was not supported by appropriate evidentiary materials as required by Civ.R. 56(E) Final depositions took 'place on October 16, 1998.
The case came on for trial on October 22, 1998. At that time,
defendant-appellant failed to appear, although defense counsel and
plaintiff-appellee were present. Defense counsel was unable to
explain defendant-appellant's absence from the proceedings and
moved for a continuance of trial. The trial court denied defense
counsel's motion for continuance and oral arguments proceeded on
plaintiff-appellee's summary judgment motion. At the conclusion of
oral arguments, the trial court granted plaintiff-appellee's motion
for summary judgment in the amount of $10,000 plus $2,300 in
interest. Defendant-appellant's third party complaint was
dismissed with prejudice.
It is from this judgment entry that defendant-appellant now appeals.
Defendant-appellant's first assignment of error states:
I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT RELYING ON THE CONFESSION OF JUDGMENT CLAUSE (O.R.C. 2323.13) IN A PERSONAL CONSUMER LOAN.
Defendant-appellant argues, through his first assignment of error, that the confession of judgment clause contained in the underlying cognovit note is invalid since the loan in question is a consumer loan intended for primarily personal or household purposes. It is defendant-appellant's position that since the loan is of a personal nature to an individual, the loan is not subject to the cognovit provisions of R.C. 2323.13 and, therefore, summary judgment was improperly granted.
Initially, this court notes that the standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326.
A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. Pollack Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(C), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(E) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.
In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated:
Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to suppose a motion for summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C).
The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported.
R.C. 2323.13 deals with warrants of attorney to confess judgment. R.C. 2323.13(E) provides in pertinent part:
educational, or household purpose. R.C. 2323.13(E). There are four elements to the definition of a consumer loan: (1) there must be a loan; (2) to a natural person; (3) by which a debt is incurred; and (4) for primarily personal, family, educational, or household purposes. Shore West Constr. Co. v. Sroka (1991), 61 Ohio St.3d 45, 48, 572 N.E.2d 646; Dodick v. Dodick (Jan. 25, 1996), Cuyahoga App. Nos. 67385, 68588, unreported.
In the case sub judice, defendant-appellant attempts to characterize the underlying loan obligation as a personal consumer loan based upon the fact that the $10,000 check issued by plaintiff -appellee contains the phrase "personal loan" on the memorandum line. Defendant-appellant offers no other evidence in support of his contention that the loan in question qualifies as a consumer loan. Contrary to defendant-appellant's contention, the mere fact that plaintiff-appellee i.e., the lender, designated the loan as a personal loan from plaintiff-appellee to defendant-appellant does not conclusively establish that the loan satisfies the four necessary elements of a consumer loan. Plaintiff-appellee's characterization only demonstrates that the...
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