COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68082 WESTERN RESERVE ACCEPTANCE, INC. : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS BISHOP, ET AL. : : Defendants-Appellants : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JUNE 8, 1995 CHARACTER OF PROCEEDING Civil appeal from Garfield Heights Municipal Court Case No. 94-CVI-00188 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: JOHN P. DeSIMONE, ESQ. THOMAS A. HANCULAK, ESQ. Kolick & Kondzer Joseph W. Diemert, Jr., 24500 Center Ridge Road & Associates Co., L.P.A. Suite 175 1360 S.O.M. Center Road Westlake, Ohio 44145 Cleveland, Ohio 44124 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Defendants-appellants Thomas Bishop and Bishop Motors, Inc. appeal from the judgment of $1145.70 with interest entered in the Small Claims Division of the Garfield Heights Municipal Court in favor of plaintiff-appellee Western Reserve Acceptance, Inc. Defendants' sole assignment of error is that the lower court erred in not granting Civ. R. 60(B) relief because defendant Thomas Bishop's signature was not on the equipment lease agreement on which Bishop Motors, Inc. defaulted. Defendants argue that the signature is that of John Bishop. We find the trial court did not abuse its discretion in denying the requested relief and affirm the judgment below. Plaintiff Western Reserve leased certain equipment to Bishop Motors, Inc. pursuant to an Equipment Lease Agreement, dated July 30, 1990. Prior thereto, Thomas Bishop had submitted a credit application and Agreement of Unconditional Guaranty. When the lease came to term in July 1993, Bishop Motors failed to purchase the equipment, return it or pay the rentals due. Western Reserve pursued its claim in the Garfield Heights Municipal Court. Defendants failed to appear at the hearing on the claim and the court therefore entered judgment for plaintiff. The judgment dated May 4, 1994 ran against Thomas Bishop as well as Bishop Motors. - 3 - Western Reserve garnished property of Bishop Motors, Inc. and Thomas Bishop pursuant to which the judgment was satisfied on September 26, 1994. On August 29, 1994, defendants moved under Civ. R. 60(B) to vacate the judgment. On September 16, 1994, the motion was denied and this appeal ensued. Initially, we point out that defendants have presented evidence and a new argument on appeal that were not before the lower court. Defendants on appeal contend that the signature on the lease agreement was not that of Tom Bishop, but that of John Bishop. To support this new argument, they attach an affidavit of Tom Bishop, executed on September 15, 1994, in which he states: "I did not sign the document entitled "Equipment Lease" with Western Reserve Acceptance, Inc. dated July 30, 1990, and the signature that appears thereon is not mine." This affidavit was not attached to defendants' Civ. R. 60(B) motion and, in fact, was not executed until two weeks after the motion was filed. Since this affidavit and defendants' argument that the signature was not Tom Bishop's, were not before the lower court, this Court cannot consider them. Cleveland v. Assn. of Fire Fighters Local 93 (1991), 73 Ohio App.3d 220, 225; Maust v. Meyers Products, Inc. (1989), 64 Ohio App.3d 310, 313-314. Nonetheless, a review of defendants' motion to vacate before the lower court shows the trial court did not abuse its discretion in denying relief to defendants. - 4 - Civ. R. 60(B) states that "the court may relieve a party from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; *** or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time ***." The Ohio Supreme Court has set forth three requirements to be demonstrated by a movant to prevail on a Civ. R. 60(B) motion: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party 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 where the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. G.T.E. Automatic Electric v. A.R.C. Industries (1976), 47 Ohio St.2d 146, paragraph two of syllabus. If the movant fails to satisfy all three elements, the motion should be denied. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Defendants failed to set forth a meritorious defense if relief was granted. In their motion to vacate, defendants argue that the only parties to the contract were Bishop Motors, Inc. and Western Reserve Acceptance, Inc., and that the court therefore should not have held Tom Bishop personally liable. However, since Tom Bishop signed the Agreement of Unconditional Guaranty at the bottom of the Lease Agreement, he was personally liable for Bishop Motors, Inc.'s nonperformance of the lease agreement. Defendants also argued in the motion that the judgment was void ab initio as the action was filed by John A. Krebs, the Treasurer - 5 - of Western Reserve Acceptance, and not an attorney. However, this argument is likewise meritless. Pursuant to R.C. 1925.17, an officer of a corporation may present a claim in the small claims court. This section states in pertinent part: [A] corporation may, through any bona fide officer or salaried employee, file and present its claim *** in any action in a small claims division arising from a claim based on a contract to which the corporation is an original party or any other claim to which the corporation is an original claimant, provided such corporation does not, in the absence of representation by an attorney at law, engage in cross-examination, argument or other acts of discovery. The provisions of this statute were followed. John Krebs is an officer of the corporation; the claim was based on contract; and, as defendants failed to appear at the hearing, no acts of advocacy were performed by Krebs. Defendants also failed to assert good cause for relief under one of the grounds stated in Civ. R. 60(B)(1) through (5). "The burden is on the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality." Rose Chevrolet v. Adams, supra at 21. See, also, Blasco v. Mislik (1982), 69 Ohio St.2d 684, 685. In the instant case, the defendants' motion to vacate did not assign any of the grounds found in Civ. R. 60(B)(1) through (5) that would entitle them to relief. We find no abuse of discretion in the trial court's denial of defendants' motion to vacate. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant 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 Garfield Heights Municipal 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, 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 .