[Cite as Elliot v. Moeller, 2014-Ohio-4136.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




MARCIA L. ELLIOT,

        PLAINTIFF-APPELLANT,                               CASE NO. 1-13-58

        v.

CHARLES L. MOELLER, ET AL.,                                OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                                   Probate Division
                            Trial Court No. 2013 ES 40(A)

                                       Judgment Affirmed

                          Date of Decision: September 22, 2014




APPEARANCES:

        Lawrence A. Huffman for Appellant

        Michael A. Rumer for Appellees
Case No. 1-13-58


WILLAMOWSKI, P.J.

        {¶1} Plaintiff-Appellant Marcia L. Elliot (“Marcia”) brings this appeal from

the judgment of the Court of Common Pleas of Allen County, Probate Division,

dismissing her complaint against Defendants-Appellees, Charles L. Moeller

(“Lewie”), Teresa Moeller, Charlene McCullough, Candace S. Moeller, Corrie

Michele Doty, Kasey Colleen Doty, Jordan M. Elliott, Broderick David

McCullough, Richard Chandler McCullough, Christi Noel McGuire, Sydney

Moeller, and Holly Elliott, collectively known as “Appellees”. For the reasons set

forth below, the judgment is affirmed.

        {¶2} On January 8, 2013, Charles D. Moeller (“Charles”) died testate. Doc.

1. Before his death, Charles had executed a will on what was later shown by

affidavit to be December 19, 2012, although the will itself states that it was

executed on December 19, 2013.1 Doc. 1, 6, and 7. The will was admitted to

probate on January 30, 2013, and assigned case number 2013-ES-40. Doc. 5.

Lewie and Teresa filed a joint application for authority to administer the estate on

January 30, 2013. Doc. 8. The trial court appointed Lewie and Teresa as co-

executors that same day. Doc. 10.




1
   The will states “IN WITNESS WHEREOF, I have set my hand to this my Last Will and Testament this
19th day of December, 2013.” However, the application to probate the will states that Charles died on
January 8, 2013, and the file stamp on the form, to which the will was attached, indicates it was filed on
January 25, 2013. Thus, the will could not have been signed on December 19th, 2013.

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       {¶3} Marcia filed a complaint contesting the will on April 13, 2013. Doc.

107. The will contest was assigned case number 2013-ES-00040A. Id. The basis

for the will contest was the following: 1) The will was the result of undue

influence by Lewie on Charles and 2) Charles lacked testamentary capacity. The

will contest listed Appellees as defendants. Id. On June 25, 2013, Moeller filed

his motion to dismiss the will contest for failure to name all the necessary parties

and because the statute of limitations had run.         Doc. 125.    Marcia filed a

memorandum contra Lewie’s motion to dismiss on August 2, 2013. Doc. 128. On

that same day, Marcia filed a motion pursuant to Civil Rule 19 to join additional

parties. Doc. 129. A hearing was held on the motion to dismiss and the motion to

join additional parties on October 10, 2013. Doc. 136. The trial court entered

judgment granting the motion to dismiss on October 29, 2013. Id. On November

21, 2013, Marcia filed her notice of appeal. Doc. 137. The appeal sets forth one

assignment of error.

       The trial court erred in granting [Appellees’] motion to dismiss
       and simultaneously denying [Marcia’s] motion to join additional
       parties.

No one disputes that Marcia failed to initially name all of the parties required by

R.C. 2107.72. Thus, the sole question before this court is whether a motion to join

additional parties relates back to the date of the filing of the original will contest

for the purpose of the statute of limitations.


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Case No. 1-13-58


       {¶4} The relation back of amendments is governed by Civil Rule 15(C).

       Whenever the claim or defense asserted in the amended pleading
       arose out of the conduct, transaction, or occurrence set forth or
       attempted to be set forth in the original pleading, the
       amendment relates back to the date of the original pleading. An
       amendment changing the party against whom a claim is asserted
       relates back if the foregoing provision is satisfied and, within the
       period provided by law for commencing the action against him,
       the party to be brought in by amendment (1) has received such
       notice of the institution of the action that he will not be
       prejudiced in maintaining his defense on the merits, and (2)
       knew or should have known that, but for a mistake concerning
       the identity of the proper party, the action would have been
       brought against him.

Civ.R. 15(C). The Ohio Supreme Court has addressed whether the joinder of

parties in a will contest can relate back pursuant to Civil Rule 15(C) in Smith v.

Klem, 6 Ohio St.3d 16, 450 N.E.2d 1171 (1983). In Smith, the will was admitted

to probate on September 16, 1981, and the plaintiffs filed a will contest on October

7, 1981. On February 2, 1982, the defendants filed a motion to dismiss claiming

that the trial court lacked jurisdiction since plaintiffs had failed to join all

necessary parties. The plaintiffs then filed a motion to amend their complaint on

March 3, 1982, so that they could add the necessary parties. The trial court denied

plaintiffs’ motion and granted the motion to dismiss. The decision was affirmed

on appeal.    The Supreme Court accepted the case and addressed the issue of

whether an amendment adding necessary parties relates back to the original filing

date pursuant to Civil Rule 15(C). Id. The Court held as follows.


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Case No. 1-13-58


           We conclude in the cause sub judice, for the reasons stated in
           [State, ex rel. Smith v. Court, 70 Ohio St.2d 213, 436 N.E.2d 1005
           (1892)], that amendments may be made to a complaint in a will
           contest action to join necessary parties pursuant to Civ.R. 16
           and such amendments, under Civ.R. 15(C), relate back to the
           date of the original filing.

Smith, supra at 17.

           {¶5} In 1985, this court addressed a similar situation in the case of Weaver

v. Donnerberg, 26 Ohio App.3d 112, 498 N.E.2d 496 (1985). In Weaver, the

plaintiff appealed the dismissal of a will contest action for failure to join all

necessary parties. This court held that the Civil Rules may eliminate the defect of

failing to join all necessary parties if Civil Rule 15(C) applies as set forth in Smith.

           [I]n a will contest case, after the expiration of the four-month2
           period, a complaint may be amended to add parties pursuant to
           Civ.R. 15(C), i.e. if its requirements are met.           If these
           requirements are met and the amendments are made, then these
           amendments will relate back to the date the initial complaint
           was filed and in so doing avoid application of the four-month
           limitation period.

           The next step is to apply the three requirements specifically set
           forth in Civ.R. 15(C) to the facts here involved. These
           requirements are set forth in Williams v. Jerry L. Kaltencach
           Ent., Inc. (1981), 2 Ohio App.3d 113, at 113-114, 440 N.E.2d
           1219:

           * * * Appellant must demonstrate that: (1) the claim asserted in
           the amended pleading arises out of the conduct, transaction, or
           occurrence set forth in the original pleading; (2) within the
           period provided by law for commencing the action against him,
           the party to be brought in received such notice of the institution

2
    The time for a will contest was four months in 1985. It is currently three months. R.C. 2107.76.

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       of the action that he will not be prejudiced in maintaining his
       defense on the merits; and (3) within the period provided by law
       for commencing the action against him, the party to be brought
       in knew or should have known that, but for a mistake
       concerning the identity of the proper party, the action would
       have been brought against him.

Weaver, supra at 115. This court held that under the facts in Weaver, the trial

court did not err in granting the dismissal for failure to join all the necessary

parties because the second and third requirements of Civil Rule 15(C) were not

met. Thus, this court concluded that any amendment would not relate back and

any complaint would be subject to dismissal.

       {¶6} In the case before us, Marcia failed to provide notice to multiple

churches under both the 2012 will and the prior will. The record indicates that the

missing parties did not receive any notice, either direct or indirect, concerning the

will contest.   Without any notice of the proceedings, the second and third

requirements of Civil Rule 15(C) are not met. Any amendment to the complaint

would not relate back pursuant to the rule. Thus, the amendment would be futile

as the will contest would still be subject to dismissal for failing to join all

necessary parties. Weaver, supra. The trial court did not err in granting the

motion to dismiss.

       {¶7} Marcia also claims that the amendment should have been granted

pursuant to Civil Rule 19(A). Civil Rule 19 provides for the joinder of necessary

parties and orders the trial court to join all necessary parties if their absence is

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raised pursuant to Civil Rule 12(B)(7).        However, the rule does not address

whether the joinder relates back to the original filing and the effect of a statute of

limitations. That determination is governed by Civil Rule 15(C). Since Civil Rule

19 does not provide for relation back, it is irrelevant to the question before this

court. For the above reasons, the assignment of error is overruled.

       {¶8} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Allen County, Probate

Division, is affirmed.

                                                                 Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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