[Cite as In re Estate of Watson, 2018-Ohio-3209.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


In re Estate of Dennis D. Watson,                       Court of Appeals No. L-17-1139
Sr., Deceased
                                                        Trial Court No. 2009EST2714



                                                        DECISION AND JUDGMENT

                                                        Decided: August 10, 2018

                                                    *****

        Linde Hurst Webb, for appellants.

        William J. Bingle, for appellee.

                                                    *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas, Probate Division, which entered a judgment for the distribution of funds from a

wrongful death settlement and denied appellants’ motion for relief from that judgment.

For the reasons set forth below, this court reverses the judgment of the probate court.
         {¶ 2} According to the record, Dennis D. Watson, Sr., died on August 16, 2009,

under circumstances leading to a wrongful death action by appellee’s administrator and

the decedent’s personal representative, Deleasa Rutherford. Ms. Rutherford successfully

obtained a $425,000 wrongful death settlement. At issue in this appeal is the probate

court’s distribution of wrongful death settlement funds totaling $217,470.29 among the

group of 15 statutory wrongful death beneficiaries alive at the time of the decedent’s

death.

         {¶ 3} Nine statutory wrongful death beneficiaries received a final distribution

approved by the probate court on May 2, 2017, as follows: $104,892.95 to Deleasa

Rutherford (decedent’s daughter and appellee’s administrator), $52,446.48 to Ijuana

Watson (decedent’s daughter, now an adult), $26,223.24 to Terence Watson (decedent’s

son), $26,223.24 to Victor Watson (decedent’s son), $2,234.38 to Emmitt Watson

(decedent’s father, now deceased), $2,000 to Shannon M. Bunting (decedent’s daughter),

$2,000 to Christopher J. Morris (decedent’s son and hereafter Christopher “Cherry”

because “Cherry” appears most often in the record), $825 to June M. Gaston (decedent’s

sister), and $625 to Tyrone E. Watson (decedent’s brother).

         {¶ 4} One statutory wrongful death beneficiary, Dennis D. Watson, Jr. (decedent’s

son), received an off-record distribution of $50,000 from Ms. Rutherford, despite the

probate court approving he receive nothing from the settlement due to his signed waiver.

         {¶ 5} The remaining five statutory wrongful death beneficiaries received nothing

from the settlement per order of the probate court: Antonio V. Watson (decedent’s




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brother), Roger Tracy Watson (decedent’s brother, now deceased), Joan Annette Watson

(decedent’s sister, now deceased), Shirley A. Foster (decedent’s sister, now deceased),

and Katyna L. Nickson (decedent’s sister). In the case of Antonio Watson, the probate

court order included a “note” that he may present a claim for up to $1,150 for

reimbursement of DNA and transcript preparation expenses.

         {¶ 6} Appellants are seven of decedent’s statutory wrongful death beneficiaries,

Emmitt Watson, Antonio V. Watson, Tyrone E. Watson, June M. Gaston, Shirley A.

Foster, Shannon M. Bunting, and Christopher Cherry, who set forth three assignments of

error:

               I. The trial court committed error prejudicial to the appellants when

         it applied the legal standard “extraordinary circumstances” to avoid

         vacating the original wrongful death distribution under Civ.R. 60(B).

               II. The trial court erred when it factually assumed that the decedents

         father, siblings and two children, Christopher Cherry and Shannon Bunting,

         were aware of or were present at the wrongful death distribution hearings

         on August 28, 2013, October 15, 2013 or as finally approved by the court

         on December 12, 2013, notwithstanding the fact that it was uncontroverted

         that none of them received notice by publication or otherwise.

               III. The trial court committed error prejudicial to the appellant when

         it allocated a nominal share to them and to the Estate of Emmitt Watson,

         when the evidence at the hearings on March 14, 2016 and April 11, 2016




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       was being presented solely to show that appellants had a meritorious claim

       under 60(B).

       {¶ 7} The first two assignments of error will be addressed together. In support of

their first and second assignments of error, appellants argue appellee failed to notify them

of the proceedings under Ohio’s Wrongful Death Statute. Specifically, appellants argue

among them are statutory wrongful death beneficiaries pursuant to R.C. 2125.02(A)(1):

the father and two children of the decedent, who are “rebuttably presumed to have

suffered damages by reason of the wrongful death,” and the siblings of the decedent, who

are the “next of kin” of the decedent. As a result of appellee’s failure to notify them,

appellants argue they suffered by not being present at the August 28, 2013 and

October 15, 2013 wrongful death settlement and distribution hearings, respectively, so

the probate court could properly receive evidence of their damages to which they were

entitled under the statute. Appellants argue they sought relief from judgment on

October 15, 2014, as supplemented on February 26, 2015, under Civ.R. 60(B)(1), not

(B)(5). Appellants further argue the probate court abused its discretion when it denied

appellants’ motion for relief from judgment because “failure to serve the

Appellants/Claimants was a mistake under Civ.R. 60(B) and there is no need to prove

‘extraordinary circumstances.’”

       {¶ 8} In response appellee argues the probate court did not abuse its discretion

when it found no “extraordinary circumstances” pursuant to Civ.R. 60(B) and denied

appellants’ motion for relief from judgment.




4.
       {¶ 9} “We review a trial court judgment denying a motion for relief from

judgment under an abuse of discretion standard.” Moore v. Moore, 6th Dist. Erie No.

E-17-011, 2018-Ohio-1545, ¶ 21, citing Kerger & Hartman, LLC v. Ajami, 6th Dist.

Lucas No. L-16-1135, 2017-Ohio-7352, ¶ 13. 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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

However, because appellants’ arguments call upon us to evaluate whether the probate

court properly applied the “extraordinary circumstances” test in this matter, we review

that question of law de novo. Giancola v. Azem, 2018-Ohio-1694, ¶ 13, citing Arnott v.

Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17.

       {¶ 10} A movant seeking relief from a court’s final judgment or order must

identify to the court one of the following reasons:

              (1) mistake, inadvertence, surprise or excusable neglect; (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); (3) fraud

       (whether heretofore denominated intrinsic or extrinsic), misrepresentation

       or other misconduct of an adverse party; (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




5.
       judgment should have prospective application; or (5) any other reason

       justifying relief from the judgment.

Civ.R. 60(B).

       {¶ 11} A movant “is entitled to relief from judgment under Civ.R. 60(B)(5) * * *

only if he can demonstrate any other reason not listed in Civ.R. 60(B)(1)-(4) that justifies

relief being granted. Ohio courts have routinely said that Civ.R. 60(B)(5) is not to be

used as a substitute for any other more specific provisions of Civ.R. 60(B)(1)-(4).” F.H.

v. K.M., 6th Dist. Lucas No. L-16-1275, 2017-Ohio-5681, ¶ 4, citing Caruso-Ciresi, Inc.

v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983). To prevail on a Civ.R. 60(B)

motion, “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 of 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.” GTE

Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 148, 351 N.E.2d 113

(1976), paragraph two of the syllabus.

       {¶ 12} The first element requires appellants to “‘provide operative facts which, if

true, would constitute a meritorious defense; ultimate success on the merits need not be

established.’” Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545, at ¶ 22, quoting

Kerger, 6th Dist. Lucas No. L-16-1135, 2017-Ohio-7352, at ¶ 16; Colley v. Bazell, 64

Ohio St.2d 243, 247, 416 N.E.2d 605 (1980), fn. 3 (“a determination of [the underlying]




6.
dispute is not appropriate where the issue is resolution of the motion for relief from

judgment. The movant’s burden is to allege a meritorious defense, not to prevail with

respect to the truth of the meritorious defense.”). Appellants argue they were entitled to

receive notice of the wrongful death settlement and distribution hearings and related court

judgments as statutory wrongful death beneficiaries who could be identified and with

reasonable diligence be contacted. Civ.R. 73(E); Sup.R. 70(B). We agree.

       {¶ 13} It is well established that wrongful death claims belong exclusively to the

decedent’s statutory beneficiaries: “the surviving spouse, the children, and the parents of

the decedent, all of whom are rebuttably presumed to have suffered damages by reason of

the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.”

R.C. 2125.02(A)(1). By the clear language of the statute, the surviving spouse, the

children, and the parents of the decedent are all rebuttably presumed to have suffered

damages by reason of the wrongful death. Id. The “other next of kin of the decedent” do

not share in that rebuttable presumption, but are included among the exclusive

beneficiaries under the wrongful death statute. Id. Because “the wrongful death statute

explicitly provides for parents, children, and spouse and then separately includes ‘other

next of kin,’ next of kin means the nearest surviving relatives after accounting for the

parents, children, or spouse.” In re Estate of Payne, 10th Dist. Franklin No. 04AP-1176,

2005-Ohio-2391, ¶ 14. Each appellant meets the requirements to be a statutory wrongful

death beneficiary. Thus, appellants are real parties in interest to the wrongful death

proceedings entitled to receive notice. Burwell v. Maynard, 21 Ohio St.2d 108, 110, 255




7.
N.E.2d 628 (1970), citing Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 647, 22

N.E.2d 195 (1939).

       {¶ 14} According to the wrongful death statute, decedent’s date of death “fixes

* * * the status of all beneficiaries of the civil action for wrongful death for purposes of

determining the damages suffered by them and the amount of damages to be awarded.”

R.C. 2125.02(A)(3)(a). The statutory wrongful death beneficiaries had vested interests in

the wrongful death settlement and distribution at the time of decedent’s death. Brinkman

v. Doughty, 140 Ohio App.3d 494, 501-502, 748 N.E.2d 116 (2d Dist.2000). Therefore,

the subsequent passing of appellants Emmitt Watson and Shirley A. Foster and non-

appellants Roger Tracy Watson and Joan Annette Watson did not waive their vested

interests derived as statutory wrongful death beneficiaries.

       {¶ 15} Appellants point to the lack of actual notice to any of them. Appellee

argues notice by publication was sufficient. Notice by publication will not prevail where

“the party’s address is known or easily ascertainable.” See PHH Mtge. Corp. v. Prater,

133 Ohio St.3d 91, 2012-Ohio-3931, 975 N.E.2d 1008, ¶ 20. Appellee had the sole

obligation to perfect service of the various notices on appellants, irrespective of

appellants having some knowledge of the wrongful death litigation, because appellants

had no duty to assist appellee in fulfilling that obligation. Gliozzo v. Univ. Urologists of

Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 16, citing

Maryhew v. Yova, 11 Ohio St.3d 154, 159, 464 N.E.2d 538 (1984).




8.
      {¶ 16} First, appellants point to Shannon Bunting and Christopher Cherry, the

only two of the decedent’s seven children who appellee identified in probate court filings

since 2009 with “address unknown” designations. Appellants allege their addresses were

“available” and “discoverable,” but do not elaborate. The record shows appellee had the

knowledge and means of knowledge to locate Ms. Bunting and Mr. Cherry by non-

publication means.

      {¶ 17} The record shows that during her September 6, 2012 deposition in the

underlying matter, Ms. Rutherford, appellee’s administrator, received her information for

the identification of her siblings, Ms. Bunting and Mr. Cherry, from her uncle, Tyrone E.

Watson (aka “Uncle Ronnie”), because she had never met either of them since they had

different mothers. “I talked to my uncles and them [sic]. They would know, and they

would say yeah [sic]. But I never met [Ms. Bunting and Mr. Cherry] personally.” Ms.

Rutherford also testified, “I would like to see my brothers and sisters.” Ms. Rutherford

admitted during deposition she knew how to contact “Uncle Ronnie” and identified his

exact address, indicating he lived on “the next street behind me.” However, she never

contacted him, according to the record.

      {¶ 18} The probate court implied in its May 2, 2017 judgment entry that notice by

publication was actually served on Ms. Bunting and Mr. Cherry, as follows: “Notice by

publication had been granted by the Court on both the estate and wrongful death

applications, and many of decedent’s siblings and children attended both the settlement

and distribution hearings despite the lack of their addresses being documented in the




9.
record.” Pursuant to appellants’ Civ.R. 60(B) motion, the notice by publication did not

reach Ms. Bunting and Mr. Cherry, and they did not attend the hearings. Nothing in the

record rebuts their claims they were missing from the “many” children present at the

settlement and distribution hearings.

       {¶ 19} Civ.R. 73(E) governs service of notices in probate court, and the persons to

be served may differ depending on the specific pleading or paper being served. For

example, service pursuant to R.C. 2109.32(B)(1) of fiduciary’s accounting to “each heir

of an intestate estate” would go to persons described in R.C. 2105.06 (or as determined

by findings pursuant to R.C. 2123.05), but service of notice for a hearing pursuant to R.C.

2125.03(A) on distribution of a wrongful death settlement to each “beneficiary” would go

to persons described in R.C. 2125.02(A)(1).

       {¶ 20} Under the rule the movant seeking service of notice by publication must

file an affidavit with the court that avers: “the name, usual place of residence, or

existence of the person to be served is unknown and cannot with reasonable diligence be

ascertained.” Civ.R. 73(E)(6). From 2009 to the end of 2013, appellee’s attorney

maintained in affidavits that although she could identify Ms. Bunting and Mr. Cherry, she

could not find addresses for them, despite “reasonable diligence” that included “searches

via the internet and Lexis-Nexis.” The affidavits did not describe the “searches via the

internet,” the “searches via * * * Lexis-Nexis,” nor the “numerous attempts to locate the

heirs of the Deceased” that did not include a computer search. During this time appellee

had the obligation to perfect service of the notices to Ms. Bunting and Mr. Cherry of the




10.
August 28, 2013 hearing on the wrongful death settlement, the August 28, 2013 probate

court judgment approving the wrongful death settlement, the October 15, 2013 hearing on

the distribution of the wrongful death settlement, the November 15, 2013 magistrate

decision recommending the distribution of the wrongful death settlement, and the

December 12, 2013 probate court judgment approving the distribution of wrongful death

settlement.

       {¶ 21} This evidence in the record of the lack of “reasonable diligence” directly

contradicts the probate court’s orders authorizing legal notice by publication on

December 17, 2009, and July 2, 2013. Mere recitation of the statements required by a

Civ.R. 73(E)(6) affidavit is insufficient. See In re S.K., 6th Dist. Lucas No. L-12-1234,

2013-Ohio-517, ¶ 13 (movant supported affidavit for publication with descriptions of the

computer searches and failed contacts made with state agencies, former employers, an

attorney, and sheriff); see also Morris v. Mull, 110 Ohio St. 623, 627, 144 N.E. 436

(1924), paragraph two of the syllabus (reasonable diligence includes employing the

knowledge and means of knowledge at a person’s command to locate the legatee of a

bequest before the person secures the bequest for himself).

       {¶ 22} In addition to appellee’s administrator knowing how to find “Uncle

Ronnie,” on October 15, 2014, “Uncle Ronnie” filed a pro se “Motion to Vacate Order/

Judgment for Fraud” on behalf of himself and other appellants. “Uncle Ronnie” then

filed the certificate of service of the motion on November 26, 2014, and the notice

included the mailing address for Mr. Cherry, who also separately filed on December 9,




11.
2014, an appearance notice with the probate court. It is not clear why the pro se

certificate of service left off Ms. Bunting, but on December 9, 2014, she filed her own

appearance notice with the probate court in response to receiving a copy of the motion.

“Reasonable diligence” by appellee would have connected appellee, who knew how to

contact “Uncle Ronnie,” who, in turn, knew how to contact Ms. Bunting and Mr. Cherry.

The probate court magistrate’s January 25, 2017 decision states, “Ms. Rutherford denies

being informed that notice was needed to not only Mr. Cherry and Ms. Bunting but also

to her aunts and uncles.” However, we find “[t]he general rule is that ignorance of the

law is no excuse.” State ex rel. Bd. of Edn. v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862

(1962). Appellee’s mistakes and ignorance fall within the purview of Civ.R. 60(B)(1).

       {¶ 23} Second, appellants point to Emmitt Watson, the decedent’s father, who was

never identified as a statutory wrongful death beneficiary in any court filings and

hearings either by appellee or the court. The record shows appellee had the knowledge

and means of knowledge to locate Emmitt Watson by non-publication means.

       {¶ 24} The decedent was appellant’s court-appointed guardian, and after

decedent’s death, appellant Shirley A. Foster, the decedent’s sister, was appointed the

successor guardian. Ms. Rutherford admitted during her September 6, 2012 deposition

she knew her grandfather, Emmitt Watson, was under guardianship, that the decedent had

been his guardian, and that her grandfather was probably living with “Uncle Ronnie” and

Ms. Foster after the decedent’s passing. Ms. Rutherford further admitted during the




12.
deposition she knew how to contact her aunt Shirley because she believed her aunt lived

with her “Uncle Ronnie” and grandfather, and she knew how to find “Uncle Ronnie.”

       {¶ 25} It is undisputed appellee’s legal notice by publication, journalized

August 6, 2013, for the wrongful death settlement and distribution hearing scheduled for

August 28, 2013, did not identify the decedent’s father, Emmitt Watson, in it. We find

Emmitt Watson was the opposite of an “unknown next of kin” pursuant to R.C.

2125.02(A)(1).

       {¶ 26} In addition, the probate court magistrate’s January 25, 2017 decision states,

“Emmitt Watson should certainly have been included as a presumptive beneficiary of

wrongful death funds, and his address was known to Ms. Rutherford and that of his

successor guardian was certainly available to her also, so there is no question that Civil

Rule 60(B) is applicable to this case where publication with regard to him was

insufficient.” Despite that finding of fact, the magistrate recommended Emmitt Watson

receive nothing from the wrongful death settlement.

       {¶ 27} Third, appellants point to the decedent’s siblings, Antonio V. Watson,

Tyrone E. Watson, June M. Gaston, and Shirley A. Foster, none of whom were ever

identified as statutory wrongful death beneficiaries to receive notice of any court filings

and hearings by appellee or the court. The record shows appellee had the knowledge and

means of knowledge to locate these appellants by non-publication means.

       {¶ 28} The record shows that from the public records of the guardianship of

Emmitt Watson filed with the probate court as case No. 2002-GDN-002746, the names




13.
and addresses of appellants Tyrone E. Watson, June M. Gaston, and Shirley A. Foster

were discoverable. From the October 24, 2012 deposition of Tyrone E. Watson taken in

the underlying matter, the names and whereabouts of appellants Antonio V. Watson,

Tyrone E. Watson, June M. Gaston, and Shirley A. Foster were provided. The record

shows Ms. Rutherford testified during her September 6, 2012 deposition she knew not

only the names and genders of the decedent’s siblings, but in some cases the city and

state where they lived, and, in the case of “Uncle Ronnie,” his exact address. Ms.

Rutherford further testified that she knew her “Uncle Ronnie” knew how to contact her

aunts and uncles. Further, the record contains “Uncle Ronnie’s” pro se 2014 motion to

vacate judgment, the motion’s certificate of service, and appearance notices alleging the

ease with which the appellants could be located.

       {¶ 29} The probate court states in its May 2, 2017 judgment entry that both the

August 28, 2013 hearing on wrongful death settlement and the October 15, 2013 hearing

on distribution occurred “with most of the decedent’s siblings present” and “with many

of decedent’s siblings again present,” respectively. However, there is nothing in the

record to indicate that any of the decedent’s seven siblings were present, let alone “most”

or “many” of them. The probate court magistrate acknowledged in the record that “both

the August and October hearings were held off the record.” We find the record shows

two siblings, Roger Tracy Watson and Joan Ann Watson, died before the August 28,

2013 hearing, so they could not have attended. The record shows four additional sibling

appellants allege they did not receive notice and, therefore, did not attend the hearings.




14.
That leaves only one sibling, Katyna Nickson, who might have attended the hearings if

she knew of them, but the record does not contain any indication she did. We do not find

that one out of seven siblings constitutes either “most” or “many” siblings, as the probate

court suggests.

       {¶ 30} The probate court’s May 2, 2017 judgment entry, as with Ms. Bunting and

Mr. Cherry, also implied notice by publication was actually served on the sibling

appellants. However, once again, there is nothing in the record to indicate that any of the

decedent’s seven siblings was present at the wrongful death settlement and the

distribution hearings. We find the probate court magistrate’s January 25, 2017 decision

states, “While Ms. Rutherford diligently saw to it that settlement went through, she

clearly failed to use the same level of diligence in providing addresses for both first

degree and second degree next of kin.”

       {¶ 31} The foregoing contradictions in the record regarding appellee’s notice

practices under the wrongful death statute and appellants’ lack of attendance at the

wrongful death settlement and distribution hearings satisfies the first element for

appellants’ motion for relief from judgment.

       {¶ 32} The second element required appellants to seek relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5). We find appellants satisfied the second

element. Ms. Rutherford stated in the record she did not know all appellants were

statutory wrongful death beneficiaries entitled to receive notice. Appellee’s failures to

ascertain with the necessary “reasonable diligence” the identity and contact information




15.
for each appellant are rooted in mistake, inadvertence, or excusable neglect, which are

grounds stated in Civ.R. 60(B)(1).

        {¶ 33} The third element required appellants to file the motion within a reasonable

time. We find appellants satisfied the third element. Appellants filed their pro se motion

to vacate judgment on October 15, 2014, as supplemented on February 26, 2015. Thus,

appellants’ original motion was filed within the one-year limit from the December 12,

2013 judgment of the probate court. Civ.R. 60(B)(1).

        {¶ 34} Contrary to the probate court’s conclusion of law in its May 2, 2017

judgment entry, we do not find any mandate for requiring a showing of “extraordinary

circumstances” with respect to appellants’ Civ.R. 60(B)(1) motion. The probate court’s

conclusion relied on holdings in Connors v. Cook, 10th Dist. Franklin No. 03AP-708,

2004-Ohio-589, ¶ 9, citing Whitt v. Bennett, 82 Ohio App.3d 792, 797, 613 N.E.2d 667

(2d Dist.1992). However, those decisions clearly limited any requirement to show

“extraordinary circumstances” to a motion under Civ.R. 60(B)(5), which is not at issue in

this appeal. McBroom v. McBroom, 6th Dist. Lucas No. L-03-1027, 2003-Ohio-5198,

¶ 31.

        {¶ 35} As journalized on May 2, 2017, the probate court denied appellant’s Civ.R.

60(B) motion, stating “The prior entry [of December 12, 2013] on settlement and

distribution of wrongful death proceeds shall remain in force. Extraordinary

circumstances have not been established to warrant vacating the initial distribution entry

under the circumstances even though decedent’s father, Emmitt Watson, was not




16.
included in the original distribution.” We find the probate court abused its discretion

when it denied appellants’ motion for relief from judgment and erred when it required

appellants to prove “extraordinary circumstances” under Civ.R. 60(B)(1).

       {¶ 36} Appellants’ first and second assignments of error are well-taken.

       {¶ 37} In support of their third assignment of error, appellants argue the probate

court’s award of only nominal damages ignored their status at the time of the decedent’s

death pursuant to R.C. 2125.02(A)(3)(a). Appellants argue the probate court abused its

discretion when it unilaterally used the evidence presented for the Civ.R. 60(B) motion as

the evidence for a distribution pursuant to R.C. 2125.03. In further support, appellants

argue “Emmitt Watson was dependent on his son Dennis [the decedent], whose

caretaking [as the court-appointed guardian] kept his father out of a nursing home.”

Emmitt Watson’s death five years later was not relevant and did “not obviate the need to

find a distribution due to him, that should have happened at a time when he needed it the

most.” Appellants argue the “money that should have been given to guardianship, on

behalf of Emmitt Watson, would be used to hire needed caregivers that would continue to

assist Emmitt Watson at home – and keep him from a nursing home.” He was eventually

placed in a nursing home, referred to by appellants as “a horrible result.” Then because

of “the need to get their father out of the nursing home,” Emmitt Watson moved to St.

Louis in 2012 where he lived with appellant June M. Gaston until his death in 2014.

       {¶ 38} In response, appellee argues the probate court did not abuse its discretion

when it determined the wrongful death settlement distribution pursuant to R.C.




17.
2125.02(A)(2), (A)(3)(b)(i), and (B)(1) to (5). Appellee argues we must give deference

to “the presumption that the findings of the Trial Court are correct, because the Trial

Judge is best able to view the witnesses and observe their demeanor, gestures and voice

inflection and use those observations in weighing the credibility of the testimony.”

Under the “totality of circumstances” the probate court did not err when it “did not find

the ‘extraordinary circumstances’ * * * to justify a vacation of the initial wrongful death

settlement proposal.”

       {¶ 39} Having found appellants met their Civ.R. 60(B)(1) burden, appellants did

not have the additional burden to prove their wrongful death damages during the Civ.R.

60(B)(1) hearings. A hearing for the individual presentation of appellants’ damages

would be pursuant to R.C. 2125.02, not Civ.R. 60(B)(1). “[E]ach statutory wrongful

death beneficiary’s claim is considered separate and distinct from the claim of the estate,

and from each other, pursuant to R.C. 2125.02(A)(1).” Clark v. Scarpelli, 91 Ohio St.3d

271, 281, 744 N.E.2d 719 (2001), citing Wood v. Shepard, 38 Ohio St.3d 86, 90, 526

N.E.2d 1089 (1988).

       {¶ 40} It is well-settled the appellants who are “other next of kin” without the

presumption of damage had rights to submit proof of damages under the wrongful death

statute. Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 97, 592 N.E.2d

828 (1992), paragraph two of the syllabus (“Pursuant to the Ohio wrongful death statute,

R.C. 2125.02, other next of kin, although not presumed to have sustained damages, may

recover damages for mental anguish and loss of society upon proper proof thereof, even




18.
though there is a surviving parent, spouse, or minor children.”). “Damages for mental

anguish suffered by the decedent’s next of kin are in addition to, not in lieu of, other

wrongful death damages.” Couture v. Toledo Clinic, Inc., 6th Dist. Lucas No. L-07-1277,

2008-Ohio-5632, ¶ 32, citing Ramage at 105-106.

        {¶ 41} The probate court’s January 25 and May 2, 2017 judgment entries contain

findings of “fact” that improperly transformed the evidence from the requirements

pursuant to Civ.R. 60(B)(1) into the requirements pursuant to R.C. 2125.02. The record

shows the probate court did not hold the March 14 and April 11, 2016 hearings to reopen

its wrongful death settlement and distribution judgment entries journalized on August 28

and December 12, 2013, respectively. Rather, as stated by the probate court’s judgment

entry journalized February 27, 2015, the hearings for appellants’ Civ.R. 60(B)(1) motion

were only joined by the probate court’s consideration of a proposed additional $12,100

wrongful death settlement distribution to Ms. Rutherford (to bring her distribution up to

$116,992.95).

        {¶ 42} We find the probate court abused its discretion when its May 2, 2017 entry

showed it added to its December 12, 2013 judgment additional wrongful death settlement

distributions based on the Civ.R. 60(B)(1) testimony elicited on March 14 and April 11,

2016.

        {¶ 43} Appellants’ third assignment of error is well-taken.




19.
       {¶ 44} The judgment of the Lucas County Court of Common Pleas, Probate

Division, is reversed. This matter is remanded for proceedings consistent with this

decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




20.
