Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

World Tire Corp. v. Webb

Court of Appeals of Ohio, Fifth District

September 27, 2007

WORLD TIRE CORPORATION, Plaintiff-Appellee
v.
WILLIAM T. WEBB, Defendant-Appellant

Civil Appeal From Knox County Court Of Common Pleas Case No. 05OT110489

For Plaintiff-Appellee: DOUGLAS W. KING FREDERICKSON, HEINTSCHEL & KING CO., L.P.A.

For Defendant-Appellant: WAYNE E. HASSAY JONATHAN R. SECREST MAGUIRE & SCHNEIDER, L.L.P.

JUDGES: John W. Wise, P.J. Julie A. Edwards, J. Patricia A. Delaney, J.

OPINION

Edwards, J.

{¶1} Defendant-appellant William T. Webb appeals from the February 17, 2006, Judgment Entry of the Knox County Court of Common Pleas denying his Motion to Vacate a Judgment and for Sanctions, or in the Alternative Motion to Stay Collection of Judgment and from the February 17, 2006, Order of the Knox County Court of Common Pleas denying his Motion to Consolidate.

STATEMENT OF FACTS AND LAW

{¶2} Appellee World Tire Corporation is engaged in the business of selling tires and other automotive products at wholesale. Kidwell Tire, dba Wilfong Tire, was a customer of appellee to whom appellee from time to time sold tires and automotive products on credit.

{¶3} On November 29, 2001, Kidwell Tire executed a cognovit term note promising to pay appellee $60, 150.00 plus interest. The note was signed by James Wilfong.

{¶4} Appellant, William Webb, [1] guaranteed the credit extended by appellee to Kidwell Tire. Two documents guaranteed this credit. The first document was a "credit guaranty" signed by appellant on October 23, 2001, in which he guaranteed prompt payment of every claim appellee may have against Kidwell Tire. The second document was an "unconditional cognovit guaranty" signed by Jack Karsten on behalf of appellant on November 29, 2001, in which appellant guaranteed payment due from Kidwell Tire to appellee specifically with respect to the aforementioned cognovit note.

{¶5} Kidwell Tire later went out of business and filed for bankruptcy.

{¶6} Two separate lawsuits arose out of the above events. The first "credit guaranty" case (Case No. 04OT120495) was filed by appellee against appellant on or about December 8, 2004. In that case, according to appellee's brief, World Tire (appellee) sought judgment against Webb (appellant) on the basis of the "credit guaranty" signed by Webb. In that case, appellee filed a motion for summary judgment, which was denied on October 19, 2005. The credit guaranty case is currently pending.[2]

{¶7} The second lawsuit (Case No. 05OT110489) that arose out of the above events, and the one that gives rise to the within appeal, is the "unconditional cognovit guaranty" case. Appellee filed a complaint for cognovit judgment against appellant on November 29, 2005. Appellee, in its complaint, alleged that $44, 259.54 plus interest was due and owing it from Kidwell Tire on the cognovit note and that, pursuant to the guaranty, appellant was liable for the same.

{¶8} Attorney Matthew J. Rohrbacher filed an answer on behalf of appellant on November 29, 2005, that waived service and confessed judgment. This answer was filed by Attorney Rohrbacher pursuant to paragraph 14 of the unconditional cognovit guaranty, which states:

{¶9} "Guarantor hereby authorizes any attorney at law to appear in any court of record in the State of Ohio after this Guaranty becomes due and payable and to waive the issuing and service of process and all other constitutional rights to due process of law, to enter an appearance to confess a judgment against Guarantor in favor of Lender for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all rights of appeal and stays of execution. Guarantor voluntarily and knowingly waives all right to notice and hearing prior to judgment being confessed against Guarantor, if Guarantor should default under the terms hereof."

{¶10} The unconditional cognovit guaranty also contained the following statement: "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 ITS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE."

{¶11} Pursuant to a Cognovit Judgment filed on November 29, 2005, the trial court granted judgment in favor of appellee and against appellant on the guaranty in the amount of $44, 259.54 plus interest.

{¶12} Thereafter, on December 16, 2005, appellant filed a "Motion to Vacate Judgment and for Sanctions, or, in the Alternative, Motion to Stay Execution of the Judgment Rendered against William T. Webb", and a Motion to Consolidate the case sub judice with the earlier filed "credit guaranty" case. Attached to appellant's Motion to Vacate was an affidavit from Jack Karsten. The affidavit had been filed in Case No. 04OT120495, the "credit guaranty" case, and was notarized on September 8, 2005. Karsten, in his affidavit, stated in relevant part as follows:

{¶13} "1. William Webb authorized me to sign a document for him. Said document was an agreement between him and World Tire Corporation.

{¶14} "2. On behalf of William Webb, I signed the document attached to Plaintiffs Complaint as Exhibit A and attached to Plaintiffs Motion for Summary Judgment as Exhibit 2. At the time of signing the document I had power of attorney over William Webb as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.