COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73529 GLICKMAN PROPERTIES, INC. : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION J. HARVEY CROW : : Defendant-Appellant : : and : : REGINA D. D'AMORE : Surety-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-202583 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: EDWARD KANCLER Benesch, Friedlander, Coplan & Aronoff, LLP 2300 BP America Building 200 Public Square Cleveland, Ohio 44114-2378 For Defendant-Appellants: PATRICK M. FLANAGAN Savoy, Bilancini & Flanagan 595 West Broad Street Elyria, Ohio 44035 -2- JUDGE TERRENCE O'DONNELL: The matter before us arose from an option agreement under which Glickman Properties, Inc. paid J. Harvey Crow $500,000 for an option to purchase 85 acres of land to build a shopping center near I-77 and Miller Road in Brecksville, Ohio. This is the third time this matter has been appealed to our court. Initially, we dismissed Crow's appeal for lack of a final appealable order; more recently, our court affirmed the trial court order of summary judgment which awarded Glickman a $500,000 judgment. On further appeal of that judgment, the Ohio Supreme Court overruled a motion to certify. During the pendency of these appeals, however, Crow obtained a stay of execution of judgment and posted as security real estate he owned in Brecksville, Ohio, which was then in foreclosure, and also caused Regina D. D'Amore to post as additional security three parcels of real estate she owned also located in Brecksville. On August 14, 1997, after all of Crow's appeals had been exhausted, Glickman filed a motion in common pleas court to enter judgment against the surety, D'Amore, in an effort to collect on its judgment against Crow. On September 4, 1997, D'Amore filed a notice of appearance of counsel, requested thirty days to respond, and sought a hearing on that motion. On September 9, 1997, however, the trial court, believing the motion to be unopposed, granted it, but did not designate a dollar amount in its judgment against D'Amore. -3- Subsequently, D'Amore filed a Civ.R. 60(B) motion for relief from that judgment arguing that she had in fact opposed the motion on September 4, 1997. In response, on October 2, 1997, the court entered another order which corrected its September 9, 1997 order, noted that D'Amore had not timely filed her motion for extension of time, and therefore re-entered judgment against her but again failed to specify a dollar amount in its order. Thereafter, on October 10, 1997, the court sua sponte entered judgment in favor of Glickman against D'Amore for $500,000 plus interest. D'Amore then filed a motion requesting that the court designate in its final judgment that Crow is the principal debtor and that she is the surety. On November 4, 1997, the court denied that motion, and also denied her motion to vacate the September 9, 1997 order which it had corrected on October 2, 1997. D'Amore and Crow now appeal and raise three assignments of error for our review. The first states: I. THE TRIAL COURT ERRED BY PREMATURELY GRANTING APPELLEE'S MOTION TO ENTER JUDGMENT AGAINST SURETY WHERE THE JUDGMENT WAS GRANTED BEFORE THE EXPIRATION OF THE THIRTY (30) DAY RESPONSE TIME ALLOWED TO AN ADVERSE PARTY UNDER CUYAHOGA COUNTY LOCAL RULE 11(I) AND WHERE THE PRINCIPAL HAD NOT FAILED TO PAY. Appellants contend the court prematurely granted Glickman's motion for judgment against D'Amore, arguing that the motion for judgment should have been considered as one for summary judgment and further asserting that Crow has not yet failed to pay the judgment because his property has not yet been liquidated. -4- Glickman contends the court properly granted its motion against D'Amore, because she failed to oppose it and because Crow has in fact failed to pay the judgment since his property is encumbered and involved in litigation. The issue then presented for our consideration concerns whether the court erred in granting Glickman's motion for judgment against the surety in this case. Procedurally, we recognize App.R. 7(B) provides in part: * * *. If security is given in the form of a bond * * * with one or more sureties, each surety submits himself to the jurisdiction of the trial court and irrevocably appoints the clerk of the trial court as his agent upon whom any process affecting his liability on the bond * * * may be served. Subject to the limits of its monetary jurisdiction this liability may be enforced on motion in the trial court without the necessity of an independent action. In this case, although D'Amore claims the motion should be considered as one for summary judgment, Glickman did not move for summary judgment, and our rules do not provide that it should be considered in that fashion. Further, although D'Amore claims the court prematurely entered judgment against her where the principal debtor had not failed to pay, we recognize that R.C. 2329.54, which refers to an entry of judgment against a principal and a surety, provides that judgment may be entered against both, but specifies as a directive to the levying officer: The property, personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of -5- the property of the surety or bail is taken in execution. Accordingly, the trial court did not err in entering judgment against the surety and this assignment of error is overruled. The second assignment of error states: II. THE TRIAL COURT ERRED BY DENYING THE SURETY- APPELLANT'S REQUEST FOR AN EXTENSION OF TIME TO RESPOND TO THE PLAINTIFF-APPELLEE'S MOTION TO ENTER JUDGMENT WHERE THE REQUEST WAS TIMELY FILED, WAS MADE BEFORE JUDGMENT WAS ENTERED, AND WAS MADE WITHIN THE PERIOD PRESCRIBED BY THE RULES. Appellants contend the court erred when it denied D'Amore's motion for an extension of time to respond to Glickman's motion for judgment, arguing that she complied with the time requirements contained in the court rules, because she believes the matter should have been considered as one for summary judgment. Glickman urges the court properly denied the motion because it was not timely filed. The issue here then concerns whether the court erred in denying D'Amore's motion for an extension of time to respond to Glickman's motion. We have previously rejected the argument that the matter should have been considered as one for summary judgment. Further, we recognize that a judicial determination on a motion for extension of time is within the sound discretion of the court. See Davis v. Immediate Med. Serv., Inc. (1997), 80 Ohio St.3d 10. An abuse of discretion is more than an error of law, and implies that the court's attitude is unreasonable, arbitrary, or unconscionable. -6- See Stat e ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464. Here, although Glickman moved for judgment against the surety on August 14, 1997, D'Amore waited until September 4 to file a notice of appearance or seek leave to respond. When the court became aware of this request after it had ruled on September 9, 1997, it subsequently considered her motion for relief from judgment, noted the motion for extension of time had not been timely filed, and re-entered judgment against her. Thus, she cannot claim the court did not know of her position at the time it ruled, and we cannot conclude the court abused its discretion in considering these motions. Accordingly, this assignment of error is overruled. The third assignment of error states: III. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-APPELLANT'S MOTION TO DESIGNATE THE DEFENDANT, J. HARVEY CROW AS PRINCIPAL DEBTOR AND REGINA D'AMORE AS THE SURETY AS REQUIRED UNDER R.C. 2329.54. Appellants contend the court erred in failing to designate Crow as the principal debtor and D'Amore as the surety in its judgment. Glickman urges the court properly denied D'Amore's motion to designate, arguing that she failed to move the court for the designation at the time it entered judgment against her. -7- The issue then presented for our review concerns whether the court erred in denying D'Amore's motion to designate her as the surety and Crow as the principal debtor in its final judgment. Our review of this assignment reveals two bases for its rejection: first, the statute provides that the task of certifying a principal debtor is the responsibility of the clerk, not the court, and second, in its entry, the court did designate D'Amore as surety. In this regard, R.C. 2329.54 states in relevant part: When judgment is rendered in a court of record in this state upon an instrument in writing in which two or more persons are jointly or severally bound, and it appears to the court, by parol or other testimony, that one or more of the persons so bound signed it as surety or bail for his codefendant, the clerk of such court, in recording the judgment thereon, must certify which of the defendants is principal debtor and which is the surety or bail. (Emphasis added). No judicial error can be attributed to the court for a matter that the statute specifies is an obligation of the clerk of courts. Next, upon examination of the court's judgment order, we note that the trial court did recognize D'Amore as surety in its order. In its entry it reads: Now comes the Plaintiff, Glickman Properties, Inc., for judgment against the surety, Regina D. D'Amore, aka Regina D. Melkon, the Motion to Enter Judgment in the sum of $500,000.00, together with interest computed at 10% per annum from November 28, 1990 is hereby granted. It is therefore ordered, adjudged, and decreed that judgment in the sum of $500,000.00, plus interest at the rate of 10% per annum from November 28, 1990 is hereby granted in favor -8- of Plaintiff, Glickman Properties, Inc., against Regina D. D'Amore, aka Regina D. Melkon. Hence, the language of the court's order does specify D'Amore as surety. Accordingly, this assignment of error is without merit and it is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellants its 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 Common Pleas 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. PATRICIA A. BLACKMON, A.J., JOSEPH J. NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .