[Cite as Bruner Holdings, L.L.C. v. Sleeper, 2024-Ohio-2925.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[Bruner Holdings, LLC, :

Plaintiff-Appellee, : No. 23AP-618

(C.P.C. No. 20CV-7851)

CapitalPlus Financial, LLC et al., :

Plaintiffs-Appellants, : (REGULAR CALENDAR)

v. :

F. Randolph Sleeper, :

Defendant-Appellee. :

CapitalPlus Financial, LLC et al., :

Plaintiffs-Appellants, : No. 23AP-619

(C.P.C. No. 21EX-221)

v. :

(REGULAR CALENDAR)

Bruner Corporation et al., :

Defendants-Appellees. :

CapitalPlus Financial, LLC et al., :

Plaintiffs-Appellants, : No. 23AP-620

(C.P.C. No. 21EX-222)

v. :

(REGULAR CALENDAR)

Bruner Corporation et al., :

Defendants-Appellees. :

CapitalPlus Financial, LLC et al., :

Plaintiffs-Appellants, : No. 23AP-621

(C.P.C. No. 20CV-7896)

v. :

(REGULAR CALENDAR)

Bruner Corporation et al., :

Defendants-Appellees. :
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 2

Bruner Corporation, :

Plaintiff-Appellee, :

No. 23AP-622

v. : (C.P.C. No. 21CV-7468)

Brett Motherwell et al., : (REGULAR CALENDAR)

Defendants-Appellees, :

CapitalPlus Financial, LLC et al. :

Defendants-Appellants. :

CapitalPlus Financial, LLC et al., :

Plaintiffs-Appellants, : No. 23AP-623

(C.P.C. No. 22CV-1544)

v. :

(REGULAR CALENDAR)

Building Control Integrators, LLC, :

Defendant-Appellee.] :

D E C I S I O N

Rendered on August 1, 2024

On brief: Law Office of W. Blair Lewis, LLC, and W. Blair 

Lewis, for appellees. Argued: W. Blair Lewis.

On brief: Allen Stovall Neuman & Ashton LLP, Rick L. 

Ashton, Jeffrey R. Corcoran, Andrew Rebholz, and Adam M. 

Schwartz, for Scott Applegate, CapitalPlus Financial LLC, 

CapitalPlus Construction Services LLC, and JAG Group, LLC.

Argued: Jeffrey R. Corcoran.

APPEALS from the Franklin County Court of Common Pleas
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 3

LUPER SCHUSTER, J.

{¶ 1} Appellant, CapitalPlus Financial LLC (“CapitalPlus”), appeals from a decision 

and entry of the Franklin County Court of Common Pleas overruling objections to a 

magistrate’s decision granting the motion for relief from judgment of appellees Bruner 

Corporation (“Bruner”), Lacon Road Properties, LLC (“Lacon”), and F. Randolph Sleeper

(collectively “appellees”), and vacating the trial court’s December 8, 2020 cognovit 

judgment granted to CapitalPlus. For the following reasons, we affirm in part and reverse 

in part.

I. Facts and Procedural History

{¶ 2} At issue in these six consolidated cases is a cognovit judgment related to loans 

that Huntington National Bank (“Huntington”) made to Bruner, Lacon, and Sleeper. 

Sleeper is the CEO and owner of Bruner, a mechanical contracting services company. In 

2018 and 2019, Bruner was involved in the construction of a hospital in Grove City, Ohio

and the loans related to Bruner’s cash flow during that project.

{¶ 3} On December 8, 2020, CapitalPlus filed a non-consumer cognovit complaint 

with the trial court, alleging it was the holder of certain loan documents executed by Bruner, 

Lacon, and Sleeper and entered into with Huntington. These loan documents included: (1) 

a November 1, 2018 line of credit note for $6 million for which Bruner and Lacon were the 

makers (“Line of Credit Note”); (2) a March 14, 2019 term loan note for $778,000 for which 

Lacon was the maker (“Term Loan Note”); (3) a March 14, 2019 commercial guaranty of 

the Term Loan Note executed by Bruner (“Bruner Guaranty”); (4) a September 13, 2019 

loan modification agreement executed by Bruner, Lacon, and Sleeper (“First Modification 

Agreement”); (5) a September 13, 2019 commercial guaranty of all obligations of Bruner 

and Lacon executed by Sleeper (“Sleeper Guaranty”); and (6) an October 17, 2019 loan 

modification agreement (“Second Modification Agreement”) executed by Bruner, Lacon, 

and Sleeper. The complaint alleged that in December 2019, Huntington assigned its 

interest in the loan documents to CapitalPlus and executed an allonge to the Line of Credit 

Note and the Term Loan Note, payable to the order of CapitalPlus. Further, CapitalPlus

alleged appellees defaulted on the loan documents and owed CapitalPlus $6,140,894.01 as 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 4

of December 1, 2020, plus interest. CapitalPlus attached the loan documents to the 

complaint, each of which 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 HIS 

PART TO COMPLY WITH THE AGREEMENT, OR ANY 

OTHER CAUSE.

(Emphasis sic.) (No. 23AP-621 Compl., Exs. A-F.) Also on December 8, 2020, an answer 

was filed confessing judgment for CapitalPlus in the amount of $6,140,894.01 on the loan 

documents. That same day, the trial court entered judgment for CapitalPlus in the 

requested amount, plus interest. 

{¶ 4} On May 7, 2021, Sleeper filed a motion for relief from judgment seeking to 

vacate the December 8, 2020 cognovit judgment. Sleeper alleged CapitalPlus conspired to 

take control of Bruner and breached certain agreements to inject the company with capital 

and that, based on certain false statements and representations, Sleeper transferred several 

properties to CapitalPlus and defaulted on certain loan documents. CapitalPlus opposed 

Sleeper’s motion for relief for judgment. 

{¶ 5} Additionally, on November 18, 2021, Bruner filed its own motion to vacate 

the December 8, 2020 cognovit judgment, arguing the cognovit note upon which the 

judgment is based is facially insufficient to support the judgment. Bruner further argued 

the judgment is void due to lack of subject-matter jurisdiction and fraud. Bruner alleged 

the Second Modification Agreement outlined a pay-off schedule and that, pursuant to that 

schedule, Bruner was ahead of schedule in paying off the line of credit note. Thus, Bruner 

contested the loan balance in the complaint for the cognovit judgment. Bruner also alleged 

the cognovit judgment was obtained as part of a fraudulent conspiracy involving 

CapitalPlus and its president, Scott Applegate. CapitalPlus additionally opposed Bruner’s 

motion to vacate. On July 22, 2022, Lacon filed a motion for leave to join Sleeper’s motion 

for relief from judgment and Bruner’s motion to vacate the cognovit judgment. 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 5

{¶ 6} In July 2022, the trial court conducted a hearing before a magistrate on the 

motions to vacate the cognovit judgment during which the parties presented extensive 

evidence and testimony relative to their respective positions. Following the hearing, the 

magistrate issued a 94-page decision recommending the trial court grant the motions for 

relief from judgment and to vacate the cognovit judgment. In the September 6, 2022 

magistrate’s decision, the magistrate determined the trial court had relied on incorrect 

representations in Applegate’s affidavit in entering the cognovit judgment and that the loan 

documents actually had been paid off in December 2019. Alternatively, the magistrate 

found that if the loan documents were not paid off in 2019, the balance on the Line of Credit 

Note could not have exceeded $2,119,019.51 as of December 8, 2020, when the cognovit 

judgment was confessed and entered. 

{¶ 7} Both CapitalPlus and Bruner filed objections to the magistrate’s decision in 

October 2022. On September 19, 2023, the trial court overruled the objections of both 

parties and adopted the magistrate’s decision. The trial court found the loan documents 

were satisfied on December 31, 2019 and rejected any alternative finding. Subsequently, 

on October 9, 2023, the trial court issued an amended order adopting the entirety of the 

magistrate’s decision. The trial court again expressly stated it found the loan documents 

were satisfied as of December 31, 2019. In a separately filed September 22, 2023 show 

cause order and notice of intent to dismiss, the trial court reiterated it had found, in its 

adoption of the magistrate’s decision, that the loan documents had been paid in full as of 

December 31, 2019 and, therefore, the court did not have subject-matter jurisdiction over 

CapitalPlus’ claims. Thus, the trial court vacated the December 8, 2020 cognovit judgment. 

CapitalPlus timely appeals. 

II. Assignments of Error

{¶ 8} Appellant assigns the following two assignments of error for our review:

[I.] The trial court erred in entering the September 19, 2023 

Decision & Entry Overruling Objections To The September 6,

2022 Magistrate Decision & Adopting In Part The 

September 6, 2022 Magistrate Decision & Granting 

F. Randolph Sleeper’s May 7, 2021 Motion For Relief From 

Judgment & Granting Bruner Corporation’s November 11,

2021 Motion To Vacate Cognovit Judgment & Granting 

Bruner Corporation’s May 17, 2022 Motion Supplemental 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 6

Motion To Vacate Cognovit Judgment & Granting Lacon 

Road Properties LLC’s July 22, 2022 Motion For Relief From 

Judgment As Joined In F. Randolph Sleeper’s May 7, 2021 

Motion And Bruner Corporation’s November 18, 2021 

Motions By Order Of This Court Dated December 16, 2022 To 

Join & Vacating The Court’s December 8, 2020 Order And 

Entry Granting Judgment On Cognovit Note (the 

“September 2023 Decision”).

[II.] The trial court erred in entering the October 9, 2023 

Amended Decision & Entry & Overruling Objections To The 

September 6, 2022 Magistrate Decision & Adopting Findings 

Of Fact Paragraphs 1 Through 210 Of The September 6, 2022 

Magistrate Decision In Addition To Factual Findings Set 

Forth In This Decision & Entry & Adopting In Part The 

September 6, 2022 Magistrate Decision & Granting F. 

Randolph Sleeper’s May 7, 2021 Motion For Relief From 

Judgment & Granting Bruner Corporation’s November 11,

2021 Motion To Vacate Cognovit Judgment & Granting 

Bruner Corporation’s May 17, 2022 Motion Supplemental 

Motion To Vacate Cognovit Judgment & Granting Lacon 

Road Properties LLC’s July 22, 2022 Motion For Relief From 

Judgment As Joined In F. Randolph Sleeper’s May 7, 2021 

Motion And Bruner Corporation’s November 18, 2021 

Motions By Order Of This Court Dated December 16, 2022 To 

Join & Vacating The Court’s December 8, 2020 Order And 

Entry Granting Judgment On Cognovit Note (the “October 

2023 Decision”).

(Emphasis sic.)

III. First Assignment of Error – Motion for Relief from Judgment and Motion 

to Vacate

{¶ 9} CapitalPlus presents two interrelated assignments of error, and we address 

them jointly. Through its two assignments of error, CapitalPlus argues the trial court erred 

in granting appellees’ motions for relief from judgment and to vacate the cognovit 

judgment. Under its two assignments of error, CapitalPlus presents this court with four 

distinct issues for review: (1) whether the trial court erred in resolving the merits of 

appellees’ asserted meritorious defense in support of their motion for relief from judgment 

and motion to vacate; (2) whether the trial court erred in its factual finding that the loan 

documents had been paid off by December 31, 2019; (3) whether the trial court violated 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 7

CapitalPlus’ right to due process in adopting a loan payoff theory that neither party argued 

before the trial court; and (4) whether the trial court erred in concluding it lacks subjectmatter jurisdiction to adjudicate CapitalPlus’ claims related to the loan documents. For 

ease of discussion, we address the issues out of order.

A. First Issue for Review – Definitively Ruling on the Meritorious Defense

{¶ 10} In its first issue presented for review, CapitalPlus argues the trial court erred 

in ruling on the merits of appellees asserted meritorious defense in their Civ.R. 60(B) 

motions.

{¶ 11} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant 

must satisfy a three-prong test. The movant must demonstrate: (1) it has a meritorious 

defense or claim to present if relief is granted; (2) it is entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a 

reasonable time and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2), or 

(3), it filed the motion not more than one year after the judgment, order, or proceeding was 

entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 

(1976), paragraph two of the syllabus. There will be no relief if the movant fails to satisfy 

any one of the prongs of the GTE test. Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). An 

appellate court reviews a trial court’s decision on a Civ.R. 60(B) motion for an abuse of 

discretion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, ¶ 7. An abuse of 

discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983); State ex rel. Deblase v. Ohio Ballot 

Bd., 173 Ohio St.3d 191, 2023-Ohio-1823, ¶ 27.

{¶ 12} In cases involving a Civ.R. 60(B) motion for relief from judgment on a 

cognovit judgment, however, courts apply a modified GTE standard and the movant “need 

only establish (1) a meritorious defense and (2) that the motion was timely made.” 

(Quotation and citation omitted.) Buehler v. Mallo, 10th Dist. No. 10AP-84, 2010-Ohio6349, ¶ 8; Starner v. Merchants Holding, L.L.C., 10th Dist. No. 17AP-621, 2018-Ohio-1165, 

¶ 12. 

{¶ 13} Generally, a cognovit note contains language intended to eliminate certain 

defenses available to a debtor in the event of default. Classic Bar & Billiards, Inc. v. 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 8

Samaan, 10th Dist. No. 08AP-210, 2008-Ohio-5759, ¶ 8. “The holder of a cognovit note in 

default obtains a judgment without a trial of possible defenses which the signers of the note 

might otherwise assert.” Id. “This is so because, under a cognovit note, the debtor consents 

in advance to the holder obtaining a judgment without notice or a hearing.” Id. “An 

attorney, whom the note holder may designate, appears on behalf of the debtor and, 

pursuant to provisions of the cognovit note, confesses judgment and waives the debtor’s 

right to notice of the proceedings.” Id. 

{¶ 14} Traditionally, cognovit notes contain provisions removing every defense 

available to a debtor except for payment of the note. Starner at ¶ 13, citing Mock Rd. 

Supermarket, Inc. v. MiraCit Dev. Corp., 10th Dist. No. 10AP-913, 2011-Ohio-4594, ¶ 10. 

Additionally, a dispute about the amount actually owed under the cognovit note is a 

meritorious defense, within the meaning of Civ.R. 60(B), to a cognovit note judgment. 

Sadraoui v. Hersi, 10th Dist. No. 10AP-849, 2011-Ohio-3160, ¶ 16, quoting First Natl. Bank 

of Pandora v. Freed, 3d Dist. No. 5-03-36, 2004-Ohio-3554, ¶ 9 (“ ‘miscalculation of the 

amount remaining due on the note at the time of confession of judgment’ ” is a meritorious 

defense for purposes of a Civ.R. 60(B) motion); Starner at ¶ 13 (Ohio courts have 

recognized additional meritorious defenses to cognovit judgments including improper 

conduct in obtaining the debtor’s signature on the note, deviation from proper procedures 

in confessing judgment, and a dispute about the amount remaining due on the note at the 

time of judgment). 

{¶ 15} Through its appeal, CapitalPlus does not dispute that appellees’ Civ.R. 60(B) 

motions were timely. Additionally, CapitalPlus does not dispute appellees presented a 

meritorious defense in their argument that the loan had been paid, in full or in part. 

Instead, CapitalPlus argues the trial court erred when it determined appellees would prevail 

on their asserted meritorious defense and found the loan documents had been paid off as 

of December 31, 2019 rather than simply determining whether appellees had presented a 

meritorious defense. We agree.

{¶ 16} As this court has stated, a party seeking relief from judgment, pursuant to 

Civ.R. 60(B), is “not required to prove that their Civ.R. 60(B) arguments would prevail at 

trial.” Meglan, Meglan & Co., Ltd. v. Bostic, 10th Dist. No. 05AP-831, 2006-Ohio-2270, 

¶ 10. Instead, the burden at the hearing on the party seeking Civ.R. 60(B) relief from 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 9

judgment “[is] merely to demonstrate the existence of a meritorious defense and not 

establish the merit of the defenses.” (Emphasis added.) Id. Further, “just as a movant need 

not establish in the Civ.R. 60(B) motion that he or she will prevail on the alleged defense, 

the trial court does not determine from the evidentiary hearing whether the movant would 

prevail on the defense.” Simmons Capital Advisors, Ltd. v. Kendall Group, Ltd., 10th Dist. 

No. 05AP-1087, 2006-Ohio-2272, ¶ 23-24 (the trial court abuses its discretion where the 

movants alleged a meritorious defense in their Civ.R. 60(B) motion but the trial court held 

the movants to a higher standard by determining the movants could not prevail on the 

defense), citing Fifth Third Bank v. Margolis, 10th Dist. No. 97APE04-468, 1997 Ohio App. 

LEXIS 4828 (Oct. 30, 1997) (noting “in order to be granted relief from a cognovit judgment, 

a movant need only show that the motion was timely filed and that a meritorious defense 

exists,” and “the court does not determine if it would ultimately decide the case in the 

movant’s favor”). (Emphasis sic.)

{¶ 17} Moreover, specifically in the context of a cognovit judgment, this court has 

found that where a defendant to a cognovit judgment presents a meritorious defense that 

the amount owed under the cognovit judgment is incorrect, and the trial court’s decision 

did not conclude the note, itself, is invalid, a trial court errs in vacating the entire judgment. 

Sadraoui at ¶ 18. “Instead, the trial court should have granted defendants’ Civ.R. 60(B) 

motion to the extent necessary to take evidence on the amount defendants actually owe 

plaintiffs under the terms of the note.” Id., citing Meyer v. Chieffo, 180 Ohio App.3d 78, 

2008-Ohio-6603, ¶ 26 (10th Dist.), and Columbus Retail, Inc. v. Dalt’s, L.L.C., 10th Dist. 

No. 04AP-735, 2005-Ohio-764, ¶ 21. Here, as in Sadraoui, nothing in the trial court’s 

decision offered any basis to conclude the loan documents, themselves, are invalid. Rather, 

the trial court specifically rejected appellees’ allegations of fraud and based its decision 

entirely on the disputed amount owed under the loan documents.

{¶ 18} While the parties submitted extensive testimony and exhibits at the hearing 

before the magistrate, that evidence must be understood in the proper framework of a 

Civ.R. 60(B) hearing: determining whether appellees can present a meritorious defense. 

CapitalPlus agrees, on appeal, that appellees submitted sufficient evidence to demonstrate 

the existence of a meritorious defense. Thus, once the trial court determined appellees had 

presented a meritorious defense, the trial court should have granted the Civ.R. 60(B) 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 10

motions to the extent necessary to take evidence on the amount appellees actually owe 

CapitalPlus under the terms of the loan documents. Sadraoui at ¶ 23 (rather than vacating 

the cognovit judgment in its entirety, “[t]he trial court on remand * * * should conduct a 

hearing solely on the amount defendants owe plaintiffs under the note”). Instead, the trial 

court determined the validity of appellees’ asserted meritorious defense, finding the loan 

documents were paid off as of December 31, 2019, and vacated the entirety of the cognovit 

judgment on that basis. In accordance with Sadraoui, we find the trial court erred in 

determining the validity of the asserted meritorious defense in ruling on the Civ.R. 60(B) 

motion and the motion to vacate.

B. Fourth Issue for Review – Subject-Matter Jurisdiction

{¶ 19} In its fourth issue presented for review, CapitalPlus argues the trial court 

erred in determining it lacked subject-matter jurisdiction over CapitalPlus’ claims on the 

loan documents. CapitalPlus asserts that even if the Line of Credit Note had been paid off, 

a finding it disputes, payment of the loan would not deprive the trial court of subject-matter 

jurisdiction.

{¶ 20} Subject-matter jurisdiction involves a court’s power to hear and decide a case 

on the merits. Lowery v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-730, 2015-

Ohio-869, ¶ 6. In determining whether a court has subject-matter jurisdiction, “ ‘the focus 

is on whether the forum itself is competent to hear the controversy.’ ” (Further internal 

quotations and citations omitted.) Ostanek v. Ostanek, 166 Ohio St.3d 1, 2021-Ohio-2319, 

¶ 21, quoting Corder v. Ohio Edison Co., 162 Ohio St.3d 639, 2020-Ohio-5220, ¶ 14. An 

appellate court reviews de novo a trial court’s determination it lacks subject-matter 

jurisdiction over a case. Pointer v. Smith, 10th Dist. No. 20AP-555, 2021-Ohio-2247, ¶ 8, 

citing Pankey v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-701, 2014-Ohio-2907, 

¶ 7. 

{¶ 21} In determining it lacks subject-matter jurisdiction over CapitalPlus’ claims 

related to the loan documents, the trial court relied on R.C. 2323.12 which states, in 

pertinent part, that a judgment may be taken only upon “[a] person indebted, or against 

whom a cause of action exists.” The trial court determined that because it had concluded 

the loan documents had been paid off as of December 31, 2019, appellees could not be 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 11

considered indebted to CapitalPlus when it filed the cognovit judgment action. Having 

found CapitalPlus therefore could not demonstrate it satisfied the requirements of R.C. 

2323.12 because appellees were not “indebted,” the trial court determined it lacked subjectmatter jurisdiction over CapitalPlus’ claims related to the loan documents. We disagree.

{¶ 22} As a general matter, R.C. 2323.12 and 2323.13 govern a trial court’s 

jurisdiction over cognovit notes, and the proponent of a cognovit judgment must satisfy 

these statutory provisions in order for a court to issue a valid cognovit judgment. 

Huntington Natl. Bank v. 199 S. Fifth St. Co., L.L.C., 10th Dist. No. 10AP-1082, 2011-Ohio3707, ¶ 9, citing Buehler, 2010-Ohio-6349, at ¶ 9. Here, the trial court did not find the loan 

documents, themselves, were facially insufficient to satisfy the statutory requirements or 

that CapitalPlus did not comply with the statutory process of confessing judgment. Instead, 

the trial court relied on its factual determination, made during the Civ.R. 60(B) 

proceedings, that the loan documents had been paid to then conclude it lacked subjectmatter jurisdiction over CapitalPlus’ claims related to the loan documents. We reiterate 

that we have already determined the trial court erred in ruling on the balance remaining 

due on the loan documents when it resolved the Civ.R. 60(B) motions. 

{¶ 23} More importantly, payment is an affirmative defense, not a jurisdictional 

defect. HSBC Mtge. Corp. USA v. Latona, 10th Dist. No. 15AP-401, 2016-Ohio-3137, ¶ 15 

(pursuant to Civ.R. 8(C), “payment is an affirmative defense”), citing Civ.R. 8(C); Smith v. 

Ohio State Univ., __ Ohio St.3d __, 2024-Ohio-764, ¶ 19 (“[a]n affirmative defense is 

different than a subject-matter jurisdictional bar because an affirmative defense considers 

the pleadings and claims of the parties”). See also JP Morgan Chase, NA v. Bethel, 5th Dist. 

No. 09 CA 0110, 2010-Ohio-2987, ¶ 16 (“[p]ayment is a meritorious defense to a claim on 

a cognovit note”). Even if the trial court were to ultimately determine, on remand, that 

appellees no longer owed anything under the loan documents such that the trial court is 

unable to enter cognovit judgment in favor of CapitalPlus, appellees’ asserted defense of 

payment does not deprive the trial court of subject-matter jurisdiction over CapitalPlus’ 

claims related to the cognovit note. Ltd. Invest. Group Corp. v. Huntington Natl. Bank, 

10th Dist. No. 21AP-61, 2022-Ohio-3657, ¶ 51 (“[d]ue to the absence of an original warrant 

of attorney, the trial court lacked the authority necessary to enter the February 17, 2010 

cognovit judgment” but “the trial court always possessed the subject-matter jurisdiction 
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 12

necessary to adjudicate the cognovit action between” the parties) (Emphasis added.); PNC 

Bank, Natl. Assn. v. Pataskala Town Ctr., L.L.C., 6th Cir. No. 17-3008, 2017 U.S. App. 

LEXIS 26303 (Dec. 21, 2017), fn. 3 (rejecting an argument that the trial court lacked 

subject-matter jurisdiction over claims related to a cognovit note because, even if the trial 

court lacked subject-matter jurisdiction to enter a cognovit judgment where the statutory 

requirements are not satisfied, “lacking jurisdiction to enter a certain type of judgment does 

not rob a court of jurisdiction over an entire case or controversy”).

{¶ 24} We are mindful of the distinction between a court’s jurisdiction to enter a 

cognovit judgment versus a court’s jurisdiction over a cognovit case. Here, the trial court 

incorrectly determined that, based on its finding that appellees had paid off the loan 

documents as of December 31, 2019, it lacked jurisdiction over the cognovit case. Because 

the dispute between the parties resolved to the amount owed under the loan documents, 

the court had subject-matter jurisdiction to resolve that dispute.1 Ltd. Invest. Group at ¶ 52 

(“[t]he courts of common pleas are courts of general jurisdiction and, with narrow 

exceptions, possess subject-matter jurisdiction over ‘all civil cases in which the sum or 

matter in dispute exceeds the exclusive original jurisdiction of county courts’ ”), quoting 

R.C. 2305.01. Accordingly, the trial court had subject-matter jurisdiction over the cognovit 

action, and the trial court erred in determining it lacked subject-matter jurisdiction over 

the case. 

C. Second and Third Remaining Issues for Review – Amount Due and 

Procedural Due Process

{¶ 25} The second and third issues CapitalPlus presents for review are whether there 

was clear and convincing evidence to support the trial court’s factual finding that the loan 

documents had been paid off and whether the trial court violated CapitalPlus’ right to 

procedural due process when it ruled on a theory neither party advanced. Having already 

determined the trial court erred when it ruled on the validity of appellees’ meritorious 

defense, we find these remaining issues to be moot. 

1 In granting the motion for relief from judgment and motion to vacate, the trial court specifically rejected 

appellees’ arguments related to fraud as a meritorious defense to the cognovit judgment, concluding 

appellees failed to present clear and convincing evidence at the hearing for each element of fraud. On 

appeal, appellees do not challenge the trial court’s rejection of their fraud argument.
Nos. 23AP-618, 23AP-619, 23AP-620, 23AP-621, 23AP-622, & 23AP-623 13

{¶ 26} Thus, because the trial court erred in determining the validity of appellees’ 

meritorious defense and vacating the cognovit judgment in its entirety, and, as a result, in 

concluding it lacked subject-matter jurisdiction over CapitalPlus’ claims related to the loan 

documents, we sustain, in part, CapitalPlus’ first and second assignments of error. Because 

our resolution of those portions of the first and second assignments of error renders the 

remaining issues moot, we render moot the remaining portions of the first and second 

assignments of error. 

IV. Disposition 

{¶ 27} Based on the foregoing reasons, the trial court did not err in determining 

appellees asserted a meritorious defense in support of their Civ.R. 60(B) motion and 

motion to vacate, but the trial court erred in ruling on the validity of the asserted 

meritorious defense. The trial court additionally erred in determining it lacked subjectmatter jurisdiction over the cognovit action. Having sustained in part and rendered moot 

in part CapitalPlus’ two assignments of error, we affirm in part and reverse in part the 

judgment of the Franklin County Court of Common Pleas, and we remand this matter to 

the that court for further proceedings consistent with this decision.

Judgment affirmed in part and reversed in part;

cause remanded.

BOGGS and EDELSTEIN, JJ., concur.