IRVIN W. HUTH, et al. Plaintiffs-Appellants -vs- TAMA KUS, Administrator of the Estate of BRYON L. HOLBROOK Defendant-Appellee
Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 25, 2015
2015-Ohio-3457
Hon. William B. Hoffman, P. J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2014 VR 08 0506; JUDGMENT: Affirmed
For Plaintiffs-Appellants
MICHELA HUTH
257 Canal Street
Post Office Box 673
Bolivar, Ohio 44612
For Defendant-Appellee
GREG A. BECK
BAKER, DUBIKAR, BECK, WILEY & MATHEWS
400 South Main Street
North Canton, Ohio 44720
Wise, J.
{¶1}. Appellants Irvin W. and Kay V. Huth appeal the decisions of the Court of Common Pleas, Tuscarawas County, which, in a replevin action, granted a motion for judgment on the pleadings in favor of Defendant-Appellee Tama Kus, Administrator of the Estate of Bryon Holbrook, and subsequently denied appellants’ motion for relief from judgment. The relevant facts leading to this consolidated appeal are as follows.
{¶2}. According to appellants, in March 2014 they entered into a written contract with Bryon L. Holbrook whereby they loaned him $25,000.00 and in exchange were given a security interest in certain items of personal property owned by Holbrook and/or his two companies, HES Group, Inc. and Diamond Dustless Blasting. Appellants also have alleged that they entered into a verbal agreement with Holbrook whereby they loaned him an additional $29,500.00, unsecured.
{¶3}. Holbrook died intestate on or about July 16, 2014. On or about August 5, 2014, his estate administration was opened in the Tuscarawas County Probate Court under case number 2014 ES 57826.
{¶4}. On August 14, 2014, appellants filed two creditors’ notices of claim in the probate case, pursuant to
{¶5}. On August 18, 2014, appellants also filed a “complaint in replevin and motion for order of possession” (
{¶6}. On August 27, 2014, appellee filed an answer and a
{¶7}. Appellants filed a memorandum in opposition to appellee‘s 12(C) motion on September 4, 2014. Appellee filed a reply memorandum on September 8, 2014.
{¶8}. In the meantime, in the probate proceedings, appellants’ claims against Holbrook‘s estate were rejected by appellee on September 7, 2014, with said rejection notices being filed with the probate court on September 9, 2014.
{¶9}. The trial court, i.e., common pleas court, on September 8, 2014, conducted a non-oral consideration of the issue of judgment on the pleadings.
{¶10}. However, two days later, on September 10, 2014, appellants filed a supplement to their memorandum in opposition, chiefly notifying the trial court that appellee, as the administrator in the probate case, had rejected their claims against the estate.
{¶11}. On September 12, 2014, the trial court nonetheless issued a six-page judgment entry dismissing appellants’ replevin action, concluding inter alia that “replevin is not appropriate under the complaint, its supporting documents, and answer, and Ohio law.”
{¶12}. Appellants filed a notice of appeal on October 14, 2014. They herein raise the following sole Assignment of Error under appellate case number 2014AP100041:
{¶13}. “I. THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED DEFENDANT‘S/APPELLEE‘S MOTION FOR JUDGMENT ON THE PLEADINGS.”
{¶14}. On September 22, 2014, shortly after the trial court had dismissed appellants’ replevin action under
{¶15}. Appellants, on December 12, 2014, filed a separate notice of appeal of the denial of their 60(B) motion. They herein raise the following sole Assignment of Error under appellate case number 2014AP100052:
{¶16}. “I. THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANTS’ 60(B) MOTION FOR RELIEF FROM JUDGMENT.”
{¶17}. We will address both assigned errors in the following consolidated opinion.
Case Number 2014AP100041
I.
{¶18}. In their sole Assignment of Error, appellants contend the trial court erroneously granted appellee‘s motion for judgment on the pleadings. We disagree.
{¶19}. Motions for judgment on the pleadings are governed by
{¶20}. Pursuant to
{¶21}. Appellant‘s argument centers on the impact of the “rejected claims” aspect of
{¶22}. “When a claim against an estate has been rejected in whole or in part but not referred to referees, **** the claimant must commence an action on the claim, or that part of the claim that was rejected, within two months after the rejection if the debt or that part of the debt that was rejected is then due, or within two months after that debt or part of the debt that was rejected becomes due, or be forever barred from maintaining an action on the claim or part of the claim that was rejected. *** ”
{¶23}. (Emphases added).
{¶24}. Appellants maintain that under the procedural circumstances of the case sub judice, even though their replevin action in the common pleas court predated the rejection of their claims against Holbrook‘s estate in the probate action, once the claims were rejected by appellee-administrator on September 9, 2014, the replevin suit was properly before the common pleas court. See Ward v. Patrizi, 11th Dist. Geauga No. 2010-G-2994, 2011-Ohio-5100, ¶ 19 (stating that the only remedy when a claim is rejected by an estate is an action in a court of general jurisdiction).
{¶25}. However, we have long relied on the maxim that an appellate court must generally presume the General Assembly means what it says; thus, we cannot amend statutes to provide what we consider a more logical result. See, e.g., Tuscarawas County CSEA v. Burger, 5th Dist. Tuscarawas Nos. 2000AP120093, et al., 2001-Ohio-1440, citing State v. Virasayachack (2000), 138 Ohio App.3d 570, 574. A plain reading of
{¶26}. We note appellee, in response, partially takes a different tack by arguing that the “estate‘s rejection of appellants’ claims is irrelevant to the determination of the instant action.” Appellee‘s Brief at 10. In essence, appellee maintains that appellants do not have an ownership or possessory interest in the identified property, but are merely alleged creditors of Holbrook‘s estate, and that a follow-up replevin action by such creditors is not contemplated by
{¶27}. We hold appellants’ complaint in replevin in the Tuscarawas County Common Pleas Court was properly dismissed by the trial court for the reasons stated herein. Appellants’ sole Assignment of Error in case number 14AP100041 is overruled.
Case Number 2014AP100052
I.
{¶28}. In their sole Assignment of Error, appellants contend the trial court erred in denying their motion for relief from judgment. We disagree.
{¶29}.
{¶30}. “(1) mistake, inadvertence, surprise or excusable neglect;
{¶31}. “(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);
{¶32}. “(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
{¶33}. “(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
{¶34}. “(5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * *.”
{¶35}. In order to prevail on a motion brought pursuant to
{¶36}. A motion for relief from judgment under
{¶37}. In the case sub judice, appellants alleged in part that relief from judgment was warranted under
Conclusion
{¶38}. For the reasons stated in the foregoing opinion, the September 12, 2014 and November 13, 2014 judgments of the Court of Common Pleas, Tuscarawas County, Ohio, are hereby affirmed.
By: Wise, J.
Farmer, J., concurs
Hoffman, P. J., concurs in part and dissents in part.
{¶39} I concur in the majority‘s analysis and disposition of Appellant‘s assignment of error in Case No. 2014 AP 10 0041. And, while I concur in the majority‘s analysis of Appellant‘s assignment of error in Case No. 2014 AP 10 0052, I respectfully dissent from its disposition. I would vacate the trial court‘s ruling on Appellant‘s
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