COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69451 NORTH SHORE HEALTH CARE : MANAGEMENT : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BUSINESS HEALTH MANAGEMENT, INC.: : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-280466 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARTIN W. ELSON Ulmer & Berne 1300 East 9th Street Suite 900 Cleveland, Ohio 44114-1583 For Defendant-Appellant: GEOFFREY E. WEBSTER NORMAN J. FRANKOWSKI II 17 South High Street Suite 600 Columbus, Ohio 43215 - 2 - O'DONNELL, J.: Business Health Management, Inc. appeals a decision of the Common Pleas Court denying its motion for relief from a $145,000 cognovit judgment entered in favor of North Shore Health Care Management on a promissory note with a cognovit provision. In 1989, Business Health Management and North Shore entered into a joint venture and formed Business Health Centers which consisted of several occupational health treatment centers. During the course of this venture, Kevin Trangle, M.D., president of Business Health Management, borrowed $145,000 and signed a ninety day promissory note agreeing to repay the principal and interest in full to North Shore on October 7, 1993. This note contained a cognovit provision whereby Business Health Management waived its right to notice and a court trial. It is undisputed that neither Trangle nor Business Health Management repaid any of the money in ninety days. In November, 1994 the joint venture terminated, and on November 17, 1994, North Shore filed a complaint in Common Pleas Court seeking judgment on the cognovit note. The court entered judgment for North Shore, and sent notice to Business Health Management. Then, on May 30, 1995, North Shore transferred the judgment to Cleveland Municipal Court and began execution by garnishment of Business Health Management property. - 3 - In response to the garnishment proceedings, Business Health Management filed a motion for relief from judgment in the Common Pleas Court, which the court denied. Business Health Management now appeals and assigns the following as error for our review: THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO CIVIL RULE 60(B) BECAUSE DEFENDANT-APPELLANT ASSERTED A MERITORIOUS DEFENSE IN A TIMELY MANNER AND THE COGNOVIT NOTE DOES NOT COMPLY WITH O.R.C. 2323.13(D) ALL OF WHICH ENTITLE IT TO RELIEF FROM JUDGMENT. Business Health argues that the trial court erred in denying its motion for relief from judgment because the cognovit note does not comply with the provisions of R.C. 2323.13. Business Health Management further argues that it is entitled to relief from judgment because it timely filed its motion, and set out sufficient operative facts of a meritorious defense, i.e. that North Shore fraudulently induced Business Health Management to execute the note. North Shore contends, on the other hand, that the trial court properly denied the motion for relief from judgment because the cognovit note complies with the statutory requirements, Business Health Management did not timely file its motion for relief from judgment, and did not set out operative facts of a meritorious defense. The issues for our resolution are whether the note satisfies R.C. 2323.13 and whether the trial court erred in denying Business Health's motion for relief from judgment. - 4 - R.C. 2323.13(D) requires that a warrant of attorney to confess judgment contained in a promissory note conspicuously evidence directly above the signature line, the statutory warning that signing the paper waives the right to notice and a court trial. In this case, the cognovit provision contained in the promissory note uses the exact wording provided in the statute. Furthermore, the warning appears directly above the space provided for signature, and the warning paragraph appears in all capital letters, is underlined and appears more conspicuous than any other provision in the document. Accordingly, the note complies with the requirements of R.C. 2323.13(D), and the trial court could render judgment on the note. Because the note complied with R.C. 2323.13, we next consider whether Business Health Management is entitled to relief from judgment under Civ. R. 60(B). In GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, the Ohio Supreme Court explained in paragraph two of its syllabus: To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (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. Generally, if any of these three requirements are not satisfied, the trial court should deny the motion. See Rose - 5 - Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. "The prevailing view is that relief from a judgment taken upon a cognovit note, without prior notice, is warranted by authority of Civ. R. 60(B)(5) when the movant (1) establishes a meritorious defense, (2) in a timely application." Meyers v. McGuire (1992), 80 Ohio App.3d 644, 646. Therefore, in this case, Business Health Management need only demonstrate that it timely filed its motion and established a meritorious defense. On the issue of whether Business Health Management established a meritorious defense, we consider the elements of fraud as set out by the Ohio Supreme Court in Gaines v. Preterm- Cleveland, Inc. (1987), 33 Ohio St.3d 54 where the court stated at 55: The elements of an action in actual fraud are: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. In this case, Business Health Management contends that North Shore fraudulently induced it to execute the note alleging it would never have signed the note but for North Shore's representations that the $145,000 did not constitute a loan and - 6 - that Business Health Management would never be required to repay the money. These assertions, however, are controverted by the unambiguous language contained in the note itself which requires repayment of $145,000 within ninety days, reference to the transaction as a loan, and designation of the party signing as a borrower. In addition, the parol evidence rule renders inadmissible the oral representations which Business Health Management claims North Shore made since they are contradicted by the terms contained in the final writing. Furthermore, the cognovit provision alerts the signer of the note that failure to pay may result in a court judgment taken against him without prior notice. Accordingly, the terms of the note containing the cognovit provision lead us to conclude that any reliance on the part of Business Health Management that it did not have to repay the amount does not constitute justifiable reliance on its part, particularly in this instance where Business Health Management was represented by counsel, and the evidence upon which it relies may not be admissible. For the foregoing reasons, Business Health Management did not establish a meritorious defense as required by Civ. R. 60(B), it is not entitled to relief from judgment, and the assignment of error is overruled. - 7 - Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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. DAVID T. MATIA, P.J., and JOSEPH J. NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journaliza- .