COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70363 DIANE A. IRWIN : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KENNETH A. DETTELBACH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-291858 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JULIE A. CALLSEN (#0062287) JOHN R. IRWIN, M.D. (#Z00009414) JOHN R. IRWIN, M.D. CO. L.P.A. 1620 MIDLAND BUILDING 101 PROSPECT AVENUE WEST CLEVELAND, OH 44115-1027 For Defendant-Appellant: KENNETH M. LAPINE (#006820) MARK GRIFFIN (#0064141) HAHN, LOESER & PARKS 3300 BP AMERICA BUILDING 200 PUBLIC SQUARE CLEVELAND, OH 44114-2301 - 2 - SPELLACY, C.J.: Defendant-appellant Kenneth A. Dettelbach ("appellant") appeals the judgment of the trial court overruling his motion for relief from cognovit judgment. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED BY NOT CONSIDERING THE TEN-DAY GRACE PERIOD REQUIRED BEFORE ACCELERATION IS PERMITTED. II. ASSUMING ARGUENDO THAT THE TRIAL COURT CONSIDERED THE TEN-DAY GRACE PERIOD, THE TRIAL COURT ERRED BY WEIGHING THE EVIDENCE RATHER THAN DETERMINING THE EXISTENCE OR ABSENCE OF SUPPORTING EVIDENCE. III THE TRIAL COURT ERRED BY NOT CONSTRUING EVIDENCE OF MERITORIOUS DEFENSES OF FRUSTRATION, WAIVER AND SET-OFF IN FAVOR OF THE DEFENDANT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On July 5, 1995, appellee Diane A. Irwin ("appellee") filed a complaint for judgment on a cognovit note authorizing confession of judgment against appellant. The cognovit note ("Note"), executed on or about June 15, 1993, between appellant and Martin King ("King"), contained a promise by appellant to pay Twenty Thousand Two Hundred Fifty Dollars ($20,250.00) with interest at the rate of three percent (3%) per annum. The Note was payable in consecutive annual installments of Six Hundred Seven Dollars and Fifty Cents ($607.50) commencing June 15, 1994, and payable the fifteenth day - 3 - of each June thereafter. The principal on the Note would then be due and payable on or before June 15, 2003. On July 5, 1995, a cognovit judgment in the amount of Twenty Thousand Two Hundred Fifty Dollars ($20,250.00) plus interest at a rate of ten percent (10%) per annum from the date of judgment was rendered in favor of appellee. On July 27, 1995, pursuant to Civ.R. 60(B), appellant filed a motion for relief from cognovit judgment. Subsequently, on August 18, 1995, appellant filed an amended motion for relief from cognovit judgment with an affidavit attached. And, on August 29, 1995, the trial court held a factual evidentiary hearing on appellant's Civ.R. 60(B) motion. On October 16, 1995, appellant filed a second amended motion for relief from cognovit judgment and award of attorneys' fees. The trial court, however, on February 1, 1996, denied appellant's motion for relief from judgment stating: Deft's motion for relief from cognovit judgment under R. 60(B) and Deft's second amended motion therefore are denied. Deft's evidence does not establish a timely attempt to pay the first installment on or before 6/15/94. FINAL. (Journal Entry, February 1, 1996). II. In the summer of 1993, appellant entered into a business arrangement with King to develop and organize Glamour Glaze, Inc. Appellant, as consideration for King putting assets into the corporation, agreed to sign the cognovit Note at issue. At the same time, appellant loaned King Four Thousand Dollars ($4,000.00) - 4 - for lease of the assets. (Tr. 11). Glamour Glaze, Inc., however, was unsuccessful. Following termination of Glamour Glaze, Inc., appellant testified that he and King agreed to set off the money which King owed to him against the money he owed to King on the Note. (Tr. 14). King, however, states that the two parties never agreed to forgive each other's debts. (Tr. 51). Appellant testified that he attempted to make initial payment on the Note June 20, 1994. Appellant further stated that at that time he mailed payment on the Note to King's address in Mayfield Heights. (Affidavit, Kenneth A. Dettelbach). Appellant, however, claims that King never received the payment, nor did he receive notice that the payment had not been delivered to King's proper address. (Tr. 12). Subsequently, on August 29, 1994, after learning King had moved, appellant attempted for the second time to send payment on the Note. This time, however, appellant sent payment to King's business address. (Affidavit, Kenneth A. Dettelbach). In 1995, prior to the due date of the second payment, appellant testified that he again attempted to pay King both the June 1994 payment and the June 1995 payment. (Affidavit, Kenneth A. Dettelbach). King, however, never received the payments. Appellant asserts that the post office never returned his letters or otherwise indicated that King had not received them. (Affidavit, Kenneth A. Dettelbach). - 5 - In February 1995, King assigned the Note to his ex-wife appellee Diane Irwin as payment for unpaid child support. At the time she acquired the Note, appellee testified that she did not have previous knowledge regarding the Note or any negotiations between King and appellant. (Tr. 33). King, however, testified that he did, in fact, inform appellee that appellant had not made any payments on the Note. (Tr. 51). And, appellant testified that appellee was present for negotiations regarding Glamour Glaze, Inc. (Affidavit, Kenneth A. Dettelbach). However, appellant clearly contradicted his affidavit testimony when he testified during the evidentiary hearing that he never discussed negotiations for Glamour Glaze, Inc. in appellee's presence. (Tr. 17). Appellee testified that she had only met appellant once when she dropped her children off for visitation with King at appellant's residence. (Tr. 34). III. For the purpose of this appeal, appellant's three assignments of error will be addressed together. In his first assignment of error, appellant contends that the trial court erred in failing to consider the ten-day grace period permitted by the Note before acceleration could occur. And, in his second and third assignments of error, appellant contends that the trial court failed to properly consider appellant's meritorious defenses. - 6 - In the present case, the Note set forth the following acceleration provision: Any holder hereof without notice to anyone may declare the entire debt due after ten (10) days continuous default in the payment of any installment of principal or interest or in the performance or observance of any covenant or condition contained in the security agreement securing this note or upon the prior sale of the securities pledged to secure payment of this note. Upon such declaration the entire debt shall be immediately due and payable. In its entirety, the judgment of the trial court set forth the following: Deft's motion for relief from cognovit judgment under R. 60(B) and Deft's second amended motion therefore are denied. Deft's evidence does not establish a timely attempt to pay the first installment on or before 6/15/94. FINAL. (Journal Entry, February 1, 1996). Appellant contends that the trial court, in calculating appellant's default, failed to take into consideration the ten-day grace period provision set forth in the Note. Thus, the trial court erred when it determined appellant was in default in failing to make payment on the Note on or before June 15, 1994. Appellee, however, contends that appellant failed to raise the ten-day grace period provision as an issue at the trial court. Thus, appellant waived his right to raise the issue on appeal. In particular, appellee contends, if the question was not presented, considered or decided by the lower court then an appellate court need not consider the question. - 7 - The Ohio Supreme Court in Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, stated, "[a]s a general rule, this court will not consider arguments that were not raised in the courts below. Id. at 279; See State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170. The waiver doctrine, however, is not absolute. Id. at 169-170; In re M.D. (1988), 38 Ohio St.3d 149. When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue. Belvedere, supra at 279. To put it another way, if we must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, we will do so. Id. Thus, this court will consider appellant's asserted defense that he did make payment on the Note in a timely fashion. The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146: 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 for 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 is not satisfied, the trial court should deny the motion. Rose Chevrolet, Inc. v. Adams - 8 - (1988), 36 Ohio St.3d 17, 20. Where the relief from judgment sought is on a cognovit note, "[t]he 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." North Shore Health Care Management v. Business Health Management, Inc. (May 16, 1996), Cuyahoga App. No. 69451, unreported, citing Meyers v. McGuire (1992), 80 Ohio App.3d 644, 646. The issue on this appeal arising from the denial of appellant's Civ.R. 60(B) motion for relief from judgment is whether the trial court abused its discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The term, "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The motion herein was timely filed. However, it is not apparent that appellant has asserted a meritorious defense to the underlying claim. In the present case, appellant essentially set forth the following four possible defenses to appellee's claim: 1) timely payment; 2) frustration; 3) waiver; and 4) set-off. Appellant, however, fails to properly support any of these defenses. Initially, appellant argues that he did, in fact, make payment on the Note in a timely manner. In particular, appellant contends that his wife, on June 20, 1994, within the ten-day grace period, - 9 - mailed payment on the Note to King. Appellant stated that the check was never cashed and that he was never informed by the post office by return letter that King had changed addresses. Appellant, however, failed to provide the trial court with any additional evidence in support of his assertion that he did, in fact, mail payment to King. Further, appellant failed to submit any evidence showing that the payment, if actually sent, did not reach King. Next, appellant contends that if this court determines payment on the Note was not received by King in a timely manner, the defenses of frustration, waiver, and set-off apply. Appellant's contentions, however, are without merit. In the present case, the trial court, prior to ruling on appellant's Civ.R. 60(B) motion, held an evidentiary hearing and provided appellant with an opportunity to present his case to the court. During the evidentiary hearing, appellant testified that he had his wife mail payment on June 20, 1994. (Tr. 13). Further, appellant contends that if the Note failed to reach King in a timely fashion, it was due to King's change in address and subsequent failure by King to inform appellant of the change. Thus, appellant contends, his ability to mail the payment to the correct address was frustrated by King's failure to provide him with notice that he had moved. King, however, testified that he did not change addresses until October 1994. (Tr. 48). Therefore, - 10 - payments claimed to have been made by appellant on June 20, 1994 were correctly mailed to King's proper address. Appellant further testified at the evidentiary hearing that Mr. King essentially waived his right to payment on the Note when the two parties agreed to set off their debts. (Tr. 14, 27-28). Appellant, however, failed to support his assertion with any evidence. And, King's testimony that no waiver or set off ever occurred directly contradicts appellant's assertion. (Tr. 51). Further, appellant's action in subsequently mailing payment on the Note appears to further negate his assertion that waiver and set- off had occurred. The trial court, in denying appellant's Civ.R. 60(B) motion, did not abuse its discretion. The trial court's attitude was not unreasonable, arbitrary or unconscionable. Furthermore, appellant failed to provide the trial court with evidence that he made payment on the Note in a timely manner or that a meritorious defense to the claim existed. Accordingly, appellant's first, second, and third assignments of error are overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant 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. SARA J. HARPER, J. and DAVID T. MATIA, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This 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(B) 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 .