COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70283 OHIO BULK TRANSFER COMPANY : NUNC PRO TUNC : MOTION NO. 74931 Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION SHARON CONTE, ET AL. : (Beverly M. Briggs, Appellant): PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-289722 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: LOU D'AMICO (#0040232) ARGIE & ASSOCIATES 6571 WILSON MILLS ROAD MAYFIELD VILLAGE, OH 44143-3404 For Defendant-Appellant: FRANK J. CUMBERLAND (#0016758) GREGORY D. GATTO (#0065049) KAUFMAN & CUMBERLAND CO., L.P.A. 1404 EAST NINTH STREET, THIRD FLOOR CLEVELAND, OHIO 44114-1779 - 2 - PER CURIAM: Defendant-appellant Beverly M. Briggs ("appellant") appeals the judgment of the trial court overruling her motion for relief from judgment. Appellant assigns the following error for our review: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO CIVIL RULE 60(B) BECAUSE THE COGNOVIT NOTE DOES NOT COMPLY WITH O.R.C. 2323.13 AND DEFENDANT-APPELLANT ASSERTED MERITORIOUS DEFENSES, ALL OF WHICH ENTITLE HER TO RELIEF FROM JUDGMENT. Finding appellant's appeal to have merit, the judgment of the trial court is reversed and remanded. I. On May 19, 1995, plaintiff-appellee Ohio Bulk Transfer Co. ("appellee") filed a complaint on a cognovit note authorizing confession of judgment against appellant. The cognovit note, executed on or about November 20, 1993, contained a promise by appellant to pay one hundred thousand ($100,000.00) dollars to appellee by December 31, 1993. Appearing on the face of the note and placed directly above appellant's signature was a warning cautioning appellant that, by signing the note, the right to notice and a court trial would be deemed waived and; upon default, judgment could be taken against her at any time without prior knowledge. On May 19, 1995, a cognovit judgment in the amount of one hundred thirteen thousand six hundred sixty-six dollars and sixty- - 3 - seven cents ($113,666.67) was rendered in favor of appellee. On September 19, 1995, pursuant to Civ. R. 60(B), appellant filed a motion for relief from the cognovit judgment and a brief in support of her motion with an affidavit attached. Appellee subsequently filed a brief in opposition to appellant's motion for relief from judgment; and appellant filed a reply brief with a second affidavit attached setting forth three affirmative defenses; duress, fraud, and lack of consideration. On February 2, 1996, the trial court, without an evidentiary hearing, denied appellant's motion for relief from judgment. II. Appellant asserts in her sole assignment of error that the trial court erred in denying her motion for relief from cognovit judgment in that her motion (1) was filed in a timely manner, (2) set forth a meritorious defense, and (3) satisfied the grounds for relief as set forth in Civ. R. 60(B)(1) through (5). Before addressing appellant's assignment of error, we must first determine whether the trial court abused its discretion in failing to hold an evidentiary hearing prior to ruling on appellant's motion for relief from judgment. A trial court should grant an evidentiary hearing prior to ruling on a motion for relief from judgment where the motion filed by appellant contains allegations of operative facts which would warrant relief under Civil Rule 60(B). Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105. Thus, the trial court abuses its - 4 - discretion in denying a hearing where grounds for relief from judgment are sufficiently alleged and are supported with evidence which would warrant relief from judgment. Kay v. Marc Glassman, Inc. (1996), 75 Ohio St.3d 18, citing Adomeit v. Baltimore, supra at 103, 105; See also Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16. In the instant case, a review of the appellant's motion for relief from judgment and affidavits indicate that appellant set forth three affirmative defenses in support of her motion; (1) duress, (2) fraud, and (3) lack of consideration. Thus, appellant did exactly what the rule requires of her; through the submission of her affidavit, appellant alleged sufficient operative facts to show an affirmative defense. Therefore, we hold the trial court abused its discretion in overruling the motion for relief from judgment without first holding an evidentiary hearing. Accordingly, appellant's case is remanded to the trial court. This cause reversed and remanded for further proceedings consistent with this opinion. - 5 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is ordered that appellant, Beverly M. Briggs, recover of appellee her 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. LEO M. SPELLACY, CHIEF JUSTICE JAMES D. SWEENEY, JUDGE ANN DYKE, 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 .