COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67877 & 67878 AYETENEW BEST BUY, INC., : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION WARSAW SUPERMARKET, INC., : : Defendant-Appellant : : [vs. : : JULIUS AND JOHANNA FEITL, : : Claimants-Appellees] : DATE OF ANNOUNCEMENT OF DECISION : JUNE 22, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Parma Municipal Court : Case No. 94-CVJ-1599 JUDGMENT : AFFIRMED IN CASE NO. 67877. : DISMISSED IN CASE NO. : 67878. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant, James M. Harding Ayetenew Best Buy, Inc.: 653 Broadway Avenue Suite 204 Bedford, Ohio 44146 For defendant-appellant, Teddy Sliwinski Warsaw Supermarket, Inc.: 3717 East 65th Street Cleveland, Ohio 44105 For claimants-appellees, Michael J. Manuszak Julius and Johanna Feitl: 20600 Chagrin Boulevard Suite 700 Shaker Heights, Ohio 44122 -3- NAHRA, J.: These consolidated appeals result from an action for satisfaction of a judgment. In App. No. 67877, defendant- appellant Warsaw Supermarket, Inc. ("Warsaw") appeals from the trial court orders which first granted a default judgment to third- party claimants-appellees Julius and Johanna Feitl ("Feitl") and then denied Warsaw's subsequent motion to vacate judgment. In App. No. 67878, plaintiff-appellant Ayetenew Best Buy, Inc. ("Best Buy") appeals from those same orders. The facts as gleaned from the App.R. 9(A) record on appeal follow. On May 23, 1994, Best Buy obtained a $16,762.05 judgment against Warsaw in the Cuyahoga County Court of Common Pleas. Thereafter, on June 7, 1994, Best Buy filed its certificate of the judgment in the Parma Municipal Court. 1 The following day, June 8, 1994, Best Buy filed a "precipe," instructing the clerk of the municipal court to "levy on all equipment and merchandise." The accompanying instructions to the bailiff were more detailed, requesting the bailiff to "levy on all equipment and merchandise (according to (1.) attached purchase agreement * * * and (2) Exhibit "A"-Merchandise list, (3) Exhibit 2 "B"-Equipment List; in order to satisfy judgment * * * ." 1 Materials contained in the record on appeal are quoted verbatim. 2 Included in the trial court's file at this point were two documents. One appears to be a cognovit note in the amount of $16,762.05 signed by Warsaw's president; the other appears to be a purchase agreement regarding "Items A(2), A(3), A(4) & A(5)," however, it is unsigned and undated. -4- Attached to the accompanying writ of execution was "Exhibit `B':" an "equipment list" of thirty-seven items, and an "inventory evaluation report" dated November 23, 1993 totaling "59,951.34." The record reflects that on June 13, 1994, the bailiff went to 6163 State Road, Parma, where Warsaw's store was located and served notice of the writ of execution and its accompanying documents by presenting a certificate of levy. The certificate stated the bailiff "appointed Julius Feitl as my custodian." On June 17, 1994, Feitl filed in the trial court both a motion 3 to intervene in the action and a motion for a stay of the proceedings in execution accompanied by an affidavit. In his affidavit, Feitl averred in pertinent part that 1) he was the owner of the property located at 6163 State Road, Parma; 2) at the time of his purchase of it in 1987, certain property was affixed to the premises as fixtures; 3) Best Buy had levied upon some of the fixtures; and 4) he had "priority interest over such property as fixtures * * * ." 3 Civ.R. 24(A) states: RULE 24. Intervention (A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. -5- On June 23, 1994, the trial court ordered a stay in the proceedings in execution on the property until "further Order of this Court." On June 30, 1994, the trial court journalized an entry stating Feitl's motion to stay was granted and setting the matter for "Jury Trial on July 15, 1994, at 9:00 a.m. pursuant to R.C. 2329.84 et 4 seq." The record further reflects notice of the trial was sent to Best Buy and Warsaw. On July 28, 1994, the trial court issued an order stating as follows: 4 R.C. 2329.84 states: 2329.84 Goods claimed by third parties. If, by virtue of a writ of execution issued from a court of record in this state, an officer levies it on goods and chattels claimed by a person other than the defendant, such officer forthwith shall give written notice to a judge of the county court, which notice shall contain the names of the plaintiff, defendant, and claimant, and at the same time furnish the judge a schedule of the property claimed. Immediately upon the receipt of the notice and schedule, the judge shall make an entry of them on his docket, and issue a summons directed to the sheriff or any constable of the county commanding him to summon five disinterested men, having the qualifications of electors, to be named in the summons, to appear before him, at the time and place therein mentioned, which shall not be more than three days after the date of the writ, to try and determine the claimant's right to the property in controversy. The claimant shall give two days' notice, in writing, to the plaintiff, or other party, for whose benefit the execution was issued and levied, his agent, or attorney, if within the county, of the time and place of trial. The claimant shall prove to the satisfaction of the judge that such notice was given, or that it could not be given by reason of the absence of the party, his agent, or attorney. -6- This matter came on for jury trial before The Honorable Timothy P. Gilligan on the 15th of July, 1994, pursuant to Sec. 2329.84 et seq. of the Ohio Revised Code, upon the claim of Third Party Claimants, JULIUS FEITL and JOHANNA FEITL, the parties being duly notified thereof, and it appearing to the Court that such Third Party Claimant was present at 9:00 a.m., the time specified, with counsel and with evidence in support of such claim, and it further appearing the Plaintiff, AYETENEW BEST BUY, INC., was not so present at that time despite adequate notice, and it further appearing that individuals appeared on behalf of such plaintiff in court well after the specified time without counsel and not prepared to go forward, and it further appearing that individuals on behalf of Defendant, WARSAW SUPERMARKET, INC., appeared in court without counsel and not prepared to go forward, it is hereby ORDERED, ADJUDGED, and DECREED, that judgment is granted to the Third Party Claimants by default. It is further ORDERED, ADJUDGED, and DECREED, that all non-consumer items located in the building located at 6163 State Road, Parma, Ohio, are owned by and belong to Third Party Claimants,, JULIUS FEITL and JOHANNA FEITL, as owners of such building. It is further ORDERED, ADJUDGED, and DECREED, that all proceedings in execution instituted by Plaintiff, AYETENEW BEST BUY, INC., with respect to such non- consumer items are permanently stayed. * * * (Emphasis added.) On August 18, 1994, Warsaw filed in the trial court a Civ.R. 60(B) motion "to vacate judgment." The motion was accompanied only by a brief in support in which Warsaw argued proper parties to the action were not joined and the trial court lacked "adequate knowledge" to render a decision. Warsaw also requested the trial court to transfer the case to the Court of Common Pleas to be consolidated with an "eviction action" filed by Feitl. -7- On August 19, 1994, Feitl filed a brief in opposition to Warsaw's motion, essentially arguing it was unsupported by sufficient evidentiary materials. On August 22, 1994, Best Buy also filed a "motion to vacate judgment" pursuant to Civ.R. 60(B)(1). Attached to the motion was the affidavit of Best Buy's president and several documents. In its brief in support of the motion, Best Buy argued it was entitled to relief because it "did not fully understand the nature of the legal proceeding" and because it should be allowed to establish if Feitl "waived" any claim to the equipment on the premises. While the Civ.R. 60(B) motions were pending in the trial court, on August 26, 1994, both Warsaw and Best Buy filed notices of appeal in this court, which were respectively designated App. Nos. 67877 and 67878. Subsequently, on September 1, 1994, in a single journal entry, the trial court overruled Warsaw's motion "to vacate judgment and to consolidate" and overruled Best Buy's motion "to vacate judgment." I. In App. No. 67877, Warsaw presents five assignments of error for this court's review. The first three are related; therefore, they are addressed together as follows: I. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT WHERE THE PARTIES HAVE APPEARED FOR TRIAL AND NO NOTICE OF A DEFAULT WAS GIVEN. -8- II. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT IN CONTRAVENTION TO THE MANDATES OF O.R.C. 2329.84 ET SEQ. III. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT WITHOUT ANY EVIDENCE OF OWNERSHIP, VALUE OR PROOF OF DAMAGES. In these assignments of error, appellant challenges the trial court's action in granting judgment to Feitl on his third party 5 claim. Appellant first asserts the trial court failed to comply with the requirements of Civ.R. 55. It contends it "appeared" in the action but received no "notice" a default hearing would be held. Civ.R. 55 states in pertinent part: RULE 55. Default (A) Entry of judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor; * * * . If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. 5 In addressing the assignments of error presented for review, this court is limited to what appears in the record on appeal; it may not consider "facts" which appear only in appellant's appellate brief. App.R. 9(A); App.R. 12(A)(1)(b); Sanders v. Webb (1993), 85 Ohio App.3d 674. -9- (B) Setting aside default judgment. If a judgment by default has been entered, the court may set it aside in accordance with Rule 60(B). (C) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff or a party who has pleaded a cross- claim or counterclaim. * * * . * * * (Emphasis added.) A review of the record in this case persuades this court that the requirements of Civ.R. 55 were adequately met. Perez v. Bush (1993), 63 Ohio Misc.2d 423; cf., Reese v. Proppe (1981), 3 Ohio App.3d 103. First, it is clear that after Feitl filed his claim for affirmative relief, the trial court set this case for trial and duly notified the parties fifteen days prior to the date set. In the interval, Warsaw filed no motions; moreover, the record does not reflect it contacted either Feitl or his attorney. Cf., Standard Oil Co. v. Noble (1982), 4 Ohio App.3d 76; Miamisburg Motel v. Huntington Natl. Bank (1993), 88 Ohio App.3d 117. Furthermore, Warsaw, as a corporate entity, never actually "appeared" in this case for purposes of Civ.R. 55(A). Union Savings Assn. v. Home Owners Aid (1970), 23 Ohio St.2d 60; Perez v. Bush, supra; cf., Columbus Show Case Co. v. CEE Contracting, Inc. (1992), 75 Ohio App.3d 559. See, also, AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio St.3d 88; Gagliardi v. Flowers (1984), 13 Ohio App.3d 238; Breeding v. Herberger (1992), 81 Ohio App.3d 419. -10- R.C. 2329.84 provides the remedy for determining ownership of goods that have been levied upon. Ryan v. Carter (1993), 67 Ohio St.3d 568; Morris v. Erieway, Inc. (1994), 93 Ohio App.3d 239. Since Warsaw failed to either file any response or "appear" in the action, a judgment for Feitl on his claim was appropriate. Perez v. Bush, supra; cf., Columbus Show Case Co. v. CEE Contracting, Inc., supra; Morris v. Erieway, Inc., supra. Warsaw also asserts in his second and third assignments of error the mandates of R.C. 2329.84 "et seq." were not met in this case. However, the record fails to support this assertion. The trial court's journal entry clearly states the case was set for jury trial pursuant to the statute. Thereafter, it noted in its judgment entry that Warsaw had failed to "appear" at that trial. It further noted that Feitl appeared "with evidence in support of [his] claim" to the property at issue. A trial court's actions are entitled to a presumption of validity. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. In the absence of evidence to demonstrate the claimed error, this court must affirm the trial court's judgment. Id. Since the App.R. 9(A) record submitted is insufficient to demonstrate the trial court failed to follow statutory requirements and lacked basis for granting judgment for Feitl on his claim, the presumption of validity of the proceedings below mandates affirmance of the judgment. See, e.g., Ryan v. Carter, supra; cf., Morris v. Erieway, Inc., supra. -11- For the foregoing reasons, Warsaw's first three assignments of error are overruled. II. Warsaw's fourth assignment of error states: THE COURT ERRED IN GRANTING A MOTION FOR SUMMARY (SIC) TO THE APPELLANT FEITL AS THE REQUIREMENTS OF RULE 56 WHERE (SIC) NOT COMPLIED WITH. In this assignment of error, Warsaw asks this court to "assume that [a] yellow sticker note" attached to a document in the record constitutes the trial court's decision to grant summary judgment to Feitl on his claim pursuant to Civ.R. 56. This court cannot make such an assumption. A trial court speaks only through its journal entries, not by "mere written minute or memorandum." Schenley v. Kauth (1953), 160 Ohio St. 109, paragraph 1 of the syllabus. Moreover, there is no "judgment" in a case until the trial court files one with the clerk for journalization. William Cherry Trust v. Hoffman (1985), 22 Ohio App.3d 100. A yellow sticker note randomly attached to the file is thus not grounds for a finding of reversible error. Warsaw's fourth assignment of error is overruled. V. Warsaw's fifth assignment of error states: THE COURT ERRED IN OVERRULING APPELLEES' MOTION TO VACATE THE JUDGMENT WHERE APPELLEE HAD A MERITORIOUS DEFENSE, THE MOTION WAS TIMELY AND RELIEF WAS PROVIDED FOR BY CIVIL RULE 60(B)(1-5). -12- This assignment of error must be overruled since the Ohio Supreme Court has stated the following: Although some Ohio appellate courts have adopted the view that trial courts can consider the merits of Civ.R. 60(B) motions without interfering with reviewing courts' appellate jurisdiction, see, e.g., Bank One, Columbus, N.A. v. O'Brien (Dec. 31, 1991), Franklin App. Nos. 91AP- 165 and 91-AP-440, unreported, at 23, 1991 WL 281436; Day v. MacDonald (1990), 67 Ohio App.3d 240, 586 N.E.2d 1135; see, also, Whiteside, Ohio Appellate Practice (1993), 20- 21, T 1.09(C), supporting the foregoing view, we have expressly held that an appeal divests trial courts of jurisdiction to consider Civ.R. 60(B) motions for relief from judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63 Ohio St.3d 179, 181, 586 N.E.2d 105, 107, citing Klinginsmith v. Felix (1989), 62 Ohio App.3d 147, 574 N.E.2d 1142, with approval. Jurisdiction may be conferred on the trial court only through an order by the reviewing court remanding the matter for consideration of the Civ.R. 60(B) motion. Id. at 151, 574 N.E.2d at 1144; Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, 75 O.O.2d 250, 347 N.E.2d 552. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141 at 147. (Emphasis added.) See, also, Reese v. Proppe, supra; Dempsey v. Chicago Title Ins. Co. (1985), 20 Ohio App.3d 90; Post v. Post (1990), 66 Ohio App.3d 765. Since none of Warsaw's assignments of error have merit, in App. No. 67877, the judgment of the trial court is affirmed. Regarding App. No. 67878, this court notes Best Buy has failed to file an appellate brief. Pursuant to App.R. 12(A)(1)(b), App.R. 16(A) and Loc. App.R. 6 and 13(A), therefore, App. No. 67878 is dismissed. -13- This cause is affirmed in Case No. 67877 and dismissed in Case No. 67878. It is, therefore, considered that said claimants-appellees recover of said appellants their costs herein. It is ordered that a special mandate be sent to said court 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. SPELLACY, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .