[Cite as Niederst v. Niederst, 2014-Ohio-2406.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 100616

BERNARD NIEDERST 

PLAINTIFF-APPELLANT 

vs. 

DAVID B. NIEDERST, ET AL.

 DEFENDANTS-APPELLEES

JUDGMENT:

REVERSED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-814870 

BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: June 5, 2014 
ATTORNEYS FOR APPELLANT

Michael R. Stavnicky 

T. Christopher O’Connell 

Singerman, Mills, Desberg, & Kauntz Co., L.P.A. 

3333 Richmond Road, Suite 370 

Beachwood, OH 44122 

ATTORNEY FOR APPELLEES 

Jon J. Pinney 

Kohrman Jackson & Krantz P.L.L. 

One Cleveland Center 

1375 East Ninth Street, 20th Floor 

Cleveland, OH 44114 
MELODY J. STEWART, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R. 

11.1 and Loc.R. 11.1. Plaintiff-appellant Bernard Niederst obtained a cognovit 

judgment in the amount of $750,000 against his brother and business partner, defendant 

David Niederst and various companies apparently associated with him. Seven days 

later, the court issued a journal entry indicating that it held a “hearing” and, as a result of 

the hearing, vacated Bernard’s judgment. Bernard appeals, claiming that the court acted 

improperly by, among other things, vacating the cognovit judgment because there was no 

motion for relief from judgment before the court. 

{¶2} It is a “bedrock principle of appellate practice in Ohio * * * that an appeals 

court is limited to the record of the proceedings at trial.” Morgan v. Eads, 104 Ohio 

St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. The record in this appeal is sparse, 

to say the least. As relevant to this appeal, it consists only of the cognovit complaint, the 

cognovit judgment, and a journal entry stating: 

On 10/02/2013, Plaintiff filed a cognovit complaint and judgment was 

rendered in favor of Plaintiff by confession in the amount of $750,000. A 

hearing was held on 10/09/2013. As a result of the hearing, the 

10/02/2013 judgment in favor of Plaintiff is hereby vacated. A hearing is 

scheduled for 10/18/2013, at 2:30 p.m. on plaintiff’s oral motion to 

reconsider. Notice issued. 

{¶3} The record does not contain a motion to vacate the cognovit judgment and 

David does not deny that he did not file a motion for relief from judgment. He argues, 

without citation to legal precedent, that the court could act on its own initiative to vacate 
the cognovit judgment. In fact, we have consistently held that “[a] trial court has no 

authority to sua sponte vacate its own final orders” because “Civ.R. 60(B) provides the 

exclusive means for a trial court to vacate a final judgment.” CAC Home Loans 

Servicing, LP v. Henderson, 8th Dist. Cuyahoga No. 98745, 2013-Ohio-275, ¶ 10 

(citations omitted). With no motion for relief from judgment filed in conformity with 

Civ.R. 60(B), the court had no authority to act sua sponte to vacate the cognovit 

judgment. See also Schmahl v. Powers, 8th Dist. Cuyahoga No. 99115, 

2013-Ohio-3241, ¶ 13. Our disposition of this appeal is thus dictated by the sparse 

record on appeal. 

{¶4} David appears to suggest that the court considered an oral motion for relief 

from judgment by asserting that the parties met in chambers with the trial judge and 

engaged in a “vigorous debate” on the merits of the cognovit judgment. See Appellee’s 

Brief, fn. 1. The Ohio Supreme Court has suggested in dicta that “[n]o procedure is 

provided in the Civil Rules for the securing of relief from a judgment under Civ.R. 60(B) 

by means of an oral motion.” Lamar v. Marbury, 69 Ohio St.2d 274, 276, 431 N.E.2d 

102 (1982), fn. 4. Even if dicta, the Supreme Court’s observations are well-founded. 

Civ.R. 60(B) states that an application for relief from judgment shall be made by motion 

as prescribed by the Rules of Civil Procedure. Civ.R. 7(B)(1) requires motions not made 

during a hearing or trial to be submitted “in writing.” We therefore agree with Lamar

that it is “self-evident” that a trial court cannot grant relief from a final judgment on an 

oral motion. Lamar, supra. While the record indicates that the court held a “hearing,” 
we do not know what transpired at that “hearing.” With the absence of any written 

motion for relief from judgment or any indication by the court that David actually 

submitted a motion for relief from judgment, we have no choice but to sustain the first 

assignment of error. The remaining three assignments of error are moot. 

{¶5} This cause is reversed to the trial court for further proceedings consistent with 

this opinion. 

It is ordered that appellant recover of appellees his costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. A certified 

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of 

Appellate Procedure. 

 

MELODY J. STEWART, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

SEAN C. GALLAGHER, J., CONCUR