Simmons Cap Advisors v. Kendall Group, Ltd., Unpublished Decision (5-9-2006)

{¶ 26} Because I concur for reasons somewhat different from those elucidated in the majority opinion, I write separately to explain why I agree that the trial court erred.

{¶ 27} As the majority correctly recognizes, the note is insufficient, on its face, to support the cognovit judgment because it requires additional documents to calculate the amount owed. "[W]here [a note is] facially insufficient to support the confession of judgment, without additional facts being adduced, the cognovit judgment is void." (Emphasis added.) Gunton Corp.v. Banks, 10^th Dist. No. 01AP-988, 2002-Ohio-2873, at ¶ 13. Facially insufficient notes, such as the one involved in the instant case, are void and invalid regardless whether groundsexist for relief under Civ.R. 60(B). Id. at ¶ 12.

{¶ 28} Thus, "[a] Civ.R. 60(B) analysis [is] unnecessary[,]" because "Ohio courts possess inherent authority to vacate void judgments, even in the absence of grounds for relief under Civ.R. 60(B)." Bank One, N.A. v. DeVillers, 10^th Dist. No. 01AP-1258, 2002-Ohio-5079, at ¶ 40, citing Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph four of the syllabus. Though the trial court was made aware of the voidness of the judgment through a Civ.R. 60(B) motion, the trial court did not need to engage in a Civ.R. 60(B) analysis of whether the movant had presented a meritorious defense; rather, the court should have simply entered an order vacating the cognovit judgment and setting it aside as a nullity.

{¶ 29} In the same manner, it is unnecessary for us to discuss whether the trial court should have held an evidentiary hearing on the Civ.R. 60(B) motion because "even an evidentiary hearing would not have corrected the unenforceable nature of the cognovit judgment." Gunton, supra, at ¶ 14. Likewise, we need not discuss whether appellants presented a meritorious defense, or whether they met any other prong of the Civ.R. 60(B) test ordinarily applied to cognovit judgments. Rather, I join in sustaining appellants' assignment of error solely because the cognovit judgment was void and must be vacated.