COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68945 GEORGE INA : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN DIFINI : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-272967. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: David J. Pasz, Esq. 15414 Pearl Road Strongsville, Ohio 44136 For Defendant-appellant: A. Richard Valore, Esq. Jerald L. Moss, Esq. 6116 West Creek Road Second Floor Independence, Ohio 44131 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). In this case, defendant-appellant John DiFini appeals from the trial court's denial of his motion for relief from judgment pursuant to Civ.R. 60(B)(1), (3) and (5). For the reasons adduced below, we reverse and remand. The record on appeal indicates that on June 27, 1994, plaintiff-appellee George Ina was granted judgment against the defendant on a cognovit note in the amount of $40,000.00 plus interest at the rate of ten percent per year from April 21, 1980, 1 plus costs. Thereafter, plaintiff aggressively took steps in aid of execution on the judgment. On January 26, 1995, defendant filed his motion for relief from judgment. In an affidavit attached to the motion, defendant averred the following in pertinent part: 1 The cognovit note, which was a completed pre-printed form from the Ohio Legal Blank Company, was dated April 21, 1980. A copy of the note is attached to the complaint and provides in part that John DiFini, signing in his individual capacity, agreed to pay George Ina within one year from the date of the note the sum of $40,000.00 plus ten percent interest. Thus according to the express terms of the note, the note became due on April 21, 1981. - 3 - * * * 4. That in April of 1980, he and GEORGE INA entered into a speculative investment for the development of certain real estate in Cuyahoga County, Ohio, known as the GEORGETOWN APARTMENTS; 5. That the terms of the Agreement between the Affiant and GEORGE INA included, inter alia, that GEORGE INA would advance the sum of EIGHTY THOUSAND DOLLARS ($80,000.00) to the investment, which EIGHTY THOUSAND DOLLARS ($80,000.00) would be repaid to GEORGE INA from the initial profits of the investment, with the profits thereafter being shared equally by the Affiant and GEORGE INA; 6. That the Affiant executed a Cognovit Promissory Note in the amount of FORTY THOUSAND DOLLARS ($40,000.00) to evidence GEORGE INA'S entitlement to the first FORTY THOUSAND DOLLARS ($40,000.00) of profits which would have otherwise been payable to the Affiant; 7. That the FORTY THOUSAND DOLLARS ($40,000.00) evidenced by the Cognovit Promissory Note was due and payable only if the speculative real estate investment generated a profit; 8. That the speculative real estate investment did not generate profits, thus, GEORGE INA was not entitled to any return on his speculative investment; 9. That the FORTY THOUSAND DOLLAR ($40,000.00) Cognovit Promissory Note did not evidence a debt owed by Affiant; 10. That the Affiant is not indebted to GEORGE INA in any amount because the condition precedent to the payment of the Cognovit Promissory Note, i.e., realization of a profit from a speculative real estate investment, did not occur. FURTHER AFFIANT SAYETH NAUGHT. (Emphasis in the original.) - 4 - On February 15, 1995, plaintiff filed a brief in opposition to the motion for relief from judgment. Attached to this brief was plaintiff's affidavit, which states in pertinent part as follows: 1. That on or about April 21st of 1980, the undersigned lent to John DiFini the sum of $40,000.00. Said loan was made via a cashier's check made payable to John DiFini in said amount, a copy of which is attached hereto; 2. Contemporaneously with the loaning of said $40,000.00, John DiFini executed a cognovit note to evidence the monies owed to the undersigned; 3. Affiant further states that the terms of repayment on the loan were set forth and are set forth [in] the cognovit note, a copy of which is attached hereto; 4. Affiant further states that although John DiFini may have used the money to become involved in a speculative real estate investment, this money was simply a loan from the undersigned to John DiFini personally, which amount was to be repaid no later than one (1) year after the date of the note or April 21, 1981; 5. Affiant further states that there are no written or oral agreements between the undersigned and John DiFini with respect to any real estate investments, speculative or otherwise. FURTHER AFFIANT SAYETH NAUGHT. On March 7, 1995, the court ordered that the motion for relief from judgment would be heard on March 29, 1995 at 11:30 a.m.. Although the parties conflict in their appellate briefs whether the evidentiary hearing was conducted, the record on appeal, which does not include the appellate briefs, does not indicate whether or not this hearing was conducted. Absent documentation in the record - 5 - that the hearing took place, or a statement of proceedings pursuant to App.R. 9(C), or an agreed statement pursuant to App.R. 9(D), we must proceed under the belief that the evidentiary hearing on the motion was not conducted. On April 7, 1995, the court journalized its status form order denying, without explanation, the motion for relief from judgment. This timely accelerated appeal from that final judgment followed presenting two assignments of error. These assignments will be addressed jointly on the briefs of the parties as oral argument has been waived. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN REFUSING TO GRANT THE DEFENDANT'S CIV.R. 60(B) MOTION WITHOUT A HEARING WHEN THE APPELLANT ALLEGED OPERATIVE FACTS WHICH WOULD HAVE ENTITLED HIM TO RELIEF FROM JUDGMENT. II WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT WHERE HE PRESENTED A MERITORIOUS DEFENSE TO THE CLAIM AGAINST HIM. The standard of review relative to these assignments was recently provided in Caraballo v. Wright (March 2, 1995), Cuyahoga App. No. 66971, unreported, at 4-5, where, citing Acme Music & Vending, Inc. v. Buccaneer Lanes, Inc. (September 30, 1994), Trumbull App. No. 93-T-5001, unreported, and East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, the following was stated: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate (1) that the party has a meritorious defense or - 6 - claim to present if relief is granted, (2) that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) that the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113. The motion is addressed to the sound discretion of the trial court, and a ruling on a motion will not be disturbed on appeal absent a showing of an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An abuse of discretion connotes more than an error of judgment, but rather, indicates an attitude on the part of the court that is unreasonable, unconscionable or arbitrary. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622. In order to merit a hearing and prevail, a motion under Civ.R. 60(B) must comply with the requirements for all motions as set forth under Civ.R. 7(B); it must be accompanied by a memorandum of facts and law, and evidentiary materials containing operative facts which would warrant relief under the rule must be attached. Angel v. Angel (Feb. 18, 1993), Scioto App. No. 92CA2071, unreported, at 5; Sykes Constr. Co., Inc. v. Maple Wood Care Inc. (May 3, 1991), Portage App. No. 90-P-2218, unreported, at 3; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469; 2 Klein, Browne and Murtaugh, Baldwin's Ohio Civil Practice (1988), 106-107, T 53.05 (A) and (B). The quality of operative facts which must be demonstrated by the movant with which to warrant relief was defined in East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, 394 N.E.2d 348, syllabus, as follows: The allegation of operative facts required in order to prevail upon a motion for relief from judgment pursuant to Civ.R. 60(B) must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of operative facts contained in a motion for - 7 - relief from judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment. We also note that: *** To have a judgment on a cognovit note vacated, the movant must present to the court a defense to the claim on the note. Matson v. Marks (1972), 32 Ohio App.2d 319, 327, 291 N.E.2d 491. The movant must support his claim of a defense with evidence of at least affidavit quality. East Ohio Gas v. Walker (1978), 59 Ohio App.2d 216, 220, 394 N.E.2d 348. Cleveland Die & Mfg. Co. v. J.H. & H. Mgt., Inc. (September 2, 1993), Cuyahoga App. No. 65438, unreported, 1993 Ohio App. LEXIS 4234. In the present case, the timeliness of the motion for relief is not debated. The trial court had before it competing affidavits. As stated in Cleveland Die & Mfg.: The court in Twinsburg Banking Co. v. RHEA Constr. Co. (1983), 9 Ohio App.3d 39, 458 N.E.2d 440, held it was an abuse of discretion for a trial court to overrule a Civ.R. 60(B) motion without holding an evidentiary hearing where there were competing affidavits before it. The defendant's affidavit presented defenses to the note which require an evidentiary hearing for resolution. Accordingly, the first assignment of error is affirmed and the matter is reversed and remanded to the trial court so that an evidentiary hearing on the motion may be had. The second assignment of error, by virtue of the ruling on the first assignment of error, is moot. - 8 - Judgment reversed and remanded. - 9 - This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing 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. JAMES D. SWEENEY, P.J. JAMES M. PORTER, J. ANN DYKE, J. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .