COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71820 PETER RINDFLEISCH, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : AFT, INC., ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 30, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 286262 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Victor M. Javitch Michael D. Slodov JAVITCH, BLOCK, EISEN & RATHBONE Bond Court Building, 14th Floor 1300 East Ninth Street Cleveland, Ohio 44114 For defendants-appellants: David K. Speaker 18500 Lake Road Suite 402 Rocky River, Ohio 44116-1744 2 NAHRA, J.: This is an appeal from an order of the Common Pleas Court overruling a motion to vacate a judgment on a cognovit note. We hold that the motion to vacate was not well taken and we affirm. On March 14, 1995, appellee, Peter Rindfleisch, filed suit on a cognovit note by, inter alia, appellant, Peter C. Vanucci, on July 15, 1994. Judgment by confession was taken the same date upon the warrant of attorney contained in the cognovit note, and judgment in the amount of $220,000 was rendered joint and severally against its makers AFT, Inc., James Howard, and Vanucci. On October 1, 1996, Vanucci filed a Motion to Vacate Cognovit Judgment, which was denied. Prior to judgment, appellant and appellee engaged in much correspondence regarding the note. On September 30, 1994, Vanucci stated to Rindfleisch, by letter, that he, Rindfleisch, should accept Vanucci's personal assurance that Rindfleisch would recover all costs associated with this transaction. Vanucci went on to say, that (i)t is my intention that you receive all earnings originally anticipated with this transaction. In another correspondence, dated January 12, 1995, Vanucci states, I signed the loan individually and the loan was guaranteed by MFG, Ltd. He goes on to say that, Rindfleisch, will be repaid from the proceeds generated by the loan, .... This includes not only the principal but all remaining interest, fees, penalties or costs associated with this transaction. 3 After judgment, in a letter dated April 21, 1995, from Vanucci's attorney to Rindfleisch, Rindfleisch is informed for the first time that Vanucci felt he was not bound as a debtor on the note because nowhere within the instrument is Vanucci identified as the maker. His attorney goes on to lay out all defenses he intended to raise in a Rule 60(B) motion for relief and/or to vacate which was to be filed shortly. I. Appellant assigns five errors for our review. Assignment of error number one states: I. THE COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO VACATE THE COGNOVIT JUDGMENT ENTERED AGAINST VANUCCI BY CONFESSION WHEN PRESENTED WITH FACTS AND AUTHORITY REQUIRING THE CONCLUSION THAT ITS JUDGMENT WAS VOID FOR WANT OF JURISDICTION. The appellant erroneously argues that the Common Pleas Court lacked personal jurisdiction over him, thus rendering the judgment void rather than merely voidable. It is agreed that (a) person is not liable on an instrument unless the person signed the instrument. R.C. 1303.41(A). However, there is no factual dispute in the instant case that appellant's signature appears thereon. It is his contention that he is not a Maker. A Maker is a person who signs or is identified in a note as a person undertaking to pay the note according to its tenor. R.C. 1303.01(A)(7), see, also, Huron Cty. Banking Co. v. Knallay (1984), 22 Ohio App.3d 110, 113. It is a long established practice, judicially noticed or otherwise established, that a signature in the lower right hand corner of an instrument indicates an intent to sign as a maker of 4 a note. Huron at 113. Further, (e)xcept as otherwise provided in the instrument, two or more persons who have the same liability as makers, ... , are jointly and severally liable in the capacity in which they sign. R.C. 1303.14(A). In the instant case, the cognovit note, as drafted, makes no mention of the signors, or as to their capacity. The note is signed in the lower right hand corner by James Howard, both individually, and in his representative capacity as President of AFT, Inc., and by Peter C. Vanucci, individually. Thus, it is clear from the face of the document that these individuals all signed as joint makers of the note, and are, as a result, jointly and severally liable. Accordingly, the warrant of attorney, which was in proper form pursuant to R.C. 2323.13(D), conferred personal and subject matter jurisdiction of this case on the court, enabling it to render judgment by confession. R.C. 2323.13. Accordingly, assignment of error number one is overruled. 5 II. The appellant's third and fourth assignments of error are interrelated and will be treated together. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO CONDUCT A HEARING TO RECEIVE EVIDENCE ON THE MERITS OF THE MOTION TO VACATE A VOID JUDGMENT, WHERE APPELLANT PRESENTED SUFFICIENT ALLEGATIONS OF OPERATIVE FACTS, WHICH IF TAKEN AS TRUE, WARRANTED VACATION OF JUDGMENT. IV. THE COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO ISSUE FINDINGS OF ACT AND CONCLUSIONS OF LAW. The appellant's third and fourth assignments of error deal with his contention that the judgment by confession was not proper for want of consideration and a failure to complete payment on the note by appellee. In the appellant's discussions of these defects, appellant maintains that he is attempting to vacate a void judgment not only on jurisdictional grounds, but on the matters previously asserted as well, and is not pursuing a Civ.R. 60(B) motion for relief. However, in order for a judgment to be void, the court must be lacking jurisdiction over the subject matter and the parties. In Re Forfeiture of Property No Longer Needed as Evidence (1993), 86 Ohio App.3d 68, 70. Further, only when a court lacks such jurisdiction is its judgment void rather than voidable. Id. Since the appellant was clearly within the jurisdiction of the trial court, the remaining arguments averred to in his motions, as well as the pertinent law cited, all state that a Civ.R. 60(B) motion is the appropriate avenue with which to pursue these claims. In order to prevail on a Civ.R. 60(B) motion, a movant must demonstrate that: (1) the party has a meritorious defense or claim 6 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 timeliness of the motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351, 453 N.E.2d 648, 651. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122, 1123. In the instant case, the third and dispositive prong of GTE, the issue of timeliness, will be addressed first. A motion for relief, from a cognovit judgment entered without prior notice, alleging defenses of payment, and failure of consideration ... is predicated upon the existence of valid defenses to the plaintiff's claim, is founded on Civ.R. 60(B)(5), and is not necessarily barred if made more than one year after the judgment; however, such a motion must be made within a reasonable time, which may be more or less than one year depending on the circumstances. Cautela Bros. Cement Contractors v. McFadden (1972), 32 Ohio App.2d 329, 291, N.E.2d 539, paragraph two of the syllabus. In Mount Olive Baptist Church v. Pipkins (1979), 64 Ohio App.2d 285, 289, the court found that (a) motion to vacate a default judgment which is filed nearly seven months after actual notice of the action and more than four months after default judgment was entered is not, on its face, a reasonable time within which to file a motion pursuant to Civ.R. 7 60(B)(5). In the absence of any evidence explaining the delay, the movant fails to demonstrate the timeliness of the motion. Id. In Huntington National Bank v. American Physicians and Nurses Home Care Services, Inc. (March 1, 1990), Cuyahoga App. No. 56595, unreported, 1990 WL 19315, a motion filed five months after the final judgment of the trial court was found to be unreasonable. Also, a delay of eight months was determined to be unreasonable when this court was not presented with evidence justifying the delay. Cuyahoga Scrap & Salvage, Inc. v. Cuyahoga Scrap Metal, Salvage & Machinery, Inc. (March 15, 1990), Cuyahoga App. Nos. 56664 & 56694, unreported, 1990 WL 28835. In the case at bar, the appellant's motion to vacate was filed nearly eighteen months after the journal entry of the judgment by confession. Because appellant's motion was untimely on its face, no explanation for such delay was provided, and from the correspondence previously cited it clearly appears Vanucci knew of the judgment, and acknowledged the debt. The third prong of the GTE test was not met. Accordingly, assignments of error three and four are overruled and the remaining assignments are rendered moot. See App.R. 12(A)(1)(c). Judgment affirmed. 8 It is ordered that appellee recover of appellant his 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. MATIA, DAVID T., P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry 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(E) 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 .