Court of Appeals of Ohio, Eleventh District, Portage
Appeals from the Portage County Court of Common Pleas. Case
No. 2018 CV 00723.
Reversed and remanded.
Michael D. Stultz and Christopher C. Camboni, Meyer &
Kerschner, Ltd., (For Plaintiff-Appellee).
Patrick J. Keating and Daniel J. Glass, Buckingham, Doolittle
& Burroughs, LLC, (For Defendants-Appellants).
TIMOTHY P. CANNON, J.
Appellants, Progressive Polymers, LLC and Darin A. Bay,
appeal two judgments of the Portage County Court of Common
Pleas, in favor of appellee, Sutton Bank, on a cognovit
promissory note. We reverse and remand.
The facts leading up to the dispute between the parties are
straightforward. On July 22, 2016, appellants signed a
cognovit promissory note (the "Note") in favor of
Sutton Bank for the principle amount of $500, 000.00.
Appellants were to make monthly payments on the Note. The
following sections of the Note are pertinent to the present
• Paragraph 1, the definitions section of the Note,
states that "[t]he pronouns 'I,' 'me,'
and 'my' refer to each Borrower signing this Note,
individually and together * * * 'You' and
'Your' refer to the Lender * * *."
• Paragraph 29, the "waiver of jury trial"
section, states: "All of the parties to this Note
knowingly and intentionally, Irrevocably and unconditionally,
waive any and all right to a trial by jury in any litigation
arising out of or concerning this Note or any other Loan
Documents or related obligation. All of these parties
acknowledge that this section has either been brought to the
attention of each party's legal counsel or that each
party had the opportunity to do so."
• Between Paragraph 29 and Paragraph 30, the following
is contained in a text box:
CONFESSION OF JUDGMENT. If I default, I authorize any
attorney to appear in a court of record and confess judgment
against me in favor of you. The confession of judgment may be
without process and for any amount due on this Note including
collection costs and reasonable attorneys' fees. This is
in addition to other remedies.
• Paragraph 30, the following warning is printed in
bold, capital letters:
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
Appellants signed the Note right below the above warning
contained in Paragraph 30. Sutton Bank did not sign the Note.
Thereafter, in August 2018, appellants informed Sutton Bank
they would no longer be able to make payments on the Note.
A complaint for confession of judgment on the Note was filed
by Sutton Bank on September 13, 2018, and judgment was
summarily entered in favor of Sutton Bank on September 17,
2018. Appellants appealed the judgment (Case No. 2018-P-0079)
and also filed a motion to vacate.
While the appeal was pending, appellants filed a motion with
this court to remand the matter for a ruling on the motion to
vacate, which was granted. On remand, the trial court denied
the motion to vacate, holding that appellants did not have a
meritorious defense to Sutton Bank's claim under the
Note. Appellants filed a second notice of appeal from the
denied motion to vacate (Case No. 2019-P-0001), and the cases
Appellants' timely consolidated appeals before this court
raise three assignments of error. For clarity and
convenience, we combine the first and third assignments for
Appellants' first and third assignments of error state:
[1.] The Trial Court erred in granting cognovit judgment in
favor of Appellee and against Appellant. Strictly construing
the underlying promissory note, as is required of Ohio courts
when interpreting cognovit provisions, the promissory note
does not ...