Twinsburg Banking Co. v. RHEA Const. Co., Inc.

• Decision Date: 30 March 1983
• Citation: 9 Ohio App.3d 39,9 OBR 41,458 N.E.2d 440
• Parties: , 9 O.B.R. 41 TWINSBURG BANKING COMPANY, Appellee, v. RHEA CONSTRUCTION CO., INC. et al., Appellants.
• Court: Ohio Court of Appeals

Page 39

9 Ohio App.3d 39

458 N.E.2d 440, 9 O.B.R. 41

TWINSBURG BANKING COMPANY, Appellee, v. RHEA CONSTRUCTION CO., INC. et al., Appellants.

Court of Appeals of Ohio, Ninth District, Summit County.

March 30, 1983.

Syllabus by the Court

It is an abuse of discretion for the trial court to overrule a Civ.R. 60(B) motion for relief from judgment without first holding an evidentiary hearing where the motion and affidavits contain allegations of operative facts which would warrant relief under Civ.R. 60(B).

R. Andrew Richner, Twinsburg, for appellee.

Jerome M. Dachman, Cleveland, for appellants Joseph A. Rhea and Rhea Construction Co., Inc.

Bruce L. Meizlish, Cincinnati, for appellant Joseph R. Latina.

GEORGE, Judge.

Appellants, Rhea Construction Company, Inc., Joseph Rhea, and Joseph Latina appeal the trial court's decision in overruling their Civ.R. 60(B) motion for relief from a cognovit judgment. This decision is reversed and the cause is remanded.

In October 1981, appellants defaulted on two cognovit notes held by appellee, the Twinsburg Banking Company. On June 8, 1982, appellee took judgment by the use of the warrant of attorney to confess judgment in the notes. On July 23, 1982, appellants moved for relief from judgment pursuant to Civ.R. 60(B)(3). Both the appellants and appellee filed briefs and affidavits. On September 14, 1982, the trial court denied the motion for relief from judgment without holding an evidentiary hearing.

Appellants essentially assert the following assignments of error:

"I. The trial court erred in its application of GTE Automatic Electric v. ARC Industries [ (1976) 47 Ohio St.2d 146, 351 N.E.2d 113] to the motion for relief from judgment.

"II. The trial court erred in not granting the defendants a hearing on their motion for relief from the cognovit judgment.

"III. The trial court erred in granting an excessive judgment on the cognovit notes.

"IV. The trial court erred in allowing any judgment on the cognovit notes for the notes were void due to their provision for usurious interest."

The threshold issue is whether appellants were entitled to a hearing on their motion to vacate the judgment under Civ.R. 60(B). In determining whether the court abused its discretion in denying a hearing, this court must apply the facts of this case to the standard established in Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, at 105, 316 N.E.2d 469 :

"If the movant files a motion for relief from judgment and it contains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these facts before it rules on the motion. This is proper and is not an abuse of discretion. If under the foregoing circumstances, the trial court does not grant a hearing and overrules the motion without first affording an opportunity to the movant to present evidence in support of the motion, its failure to grant a hearing is an abuse of discretion. Matson v. Marks, supra [ (1972), 32 Ohio App.2d 319, 61 O.O.2d 476], at 327 * * * "

Civ.R. 60(B)(3) permits relief from a judgment obtained by fraud. Appellants' brief and supporting affidavit alleged operative facts to establish fraud in the execution of the note. However, these facts were contradicted by appellee's brief and supporting affidavit. The trial court had before it competing affidavits and these appeared equally persuasive on their face.

A finding in favor of appellee cannot be based solely on weighing the conflicting affidavits presented here. An evidentiary hearing must be held to allow appellants the opportunity to...