[Cite as In re Holbrook, 2017-Ohio-4429.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                               JUDGES:
                                                Hon. Patricia A. Delaney, P. J.
                                                Hon. William B. Hoffman, J.
        THE ESTATE OF:                          Hon. John W. Wise, J.

        BRYON L. HOLBROOK                       Case No. 2016 AP 10 0051

        Deceased                                OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Probate Division, Case No. 2014 ES
                                             57826


JUDGMENT:                                    Affirmed



DATE OF JUDGMENT ENTRY:                      June 19, 2017



APPEARANCES:

For Appellants                               For Appellee

MICHELA HUTH                                 GREG BECK
Post Office Box 17                           ANDREA K. ZIARKO
Bolivar, Ohio 44612                          400 South Main Street
                                             North Canton, Ohio 44720
Tuscarawas County, Case No. 2016 AP 10 0051                                            2

Wise, John, J.

       {¶1}   Appellants Irvin Huth, Kay Huth, and Michela Huth appeal the decision of

the Court of Common Pleas, Probate Division, Tuscarawas County, which denied their

motion to vacate judgment regarding attorney fees in favor of Defendant–Appellee Tama

Kus, Administrator of the Estate of Bryon Holbrook, and subsequently denied appellants'

request to supplement their earlier objection to the underlying magistrate’s decision.1

The relevant facts leading to this appeal are as follows.

       {¶2}   Bryon Holbrook died intestate in July 2014. On August 6, 2014, his estate

administration was opened in the Tuscarawas County Probate Court (case number 2014

ES 57826). Bryon's mother, Appellee Tama Kus, became the administrator of his estate.

       {¶3}   On August 12, 2014, Appellee Kus filed a concealment action under R.C.

2109.50 against Michela Huth. On September 15, 2014, Kus filed an amended complaint

adding alleged estate creditors Kay Huth and Irvin Huth.2 On October 13, 2015, the

probate court magistrate, in a twenty-nine page decision, found inter alia Irvin Huth and

Michela Huth guilty of wrongful possession of items of the Holbrook Estate, including a

2013 Silverado pickup truck. The magistrate made these two parties liable for attorney

fees, to be determined by the probate court upon approval and adoption of the

magistrate’s decision.




1   Appellant Michela Huth, an attorney, was the decedent’s girlfriend. Appellants Irvin
Huth and Kay Huth are her parents. Attorney Huth appears to be both a party in the
underlying action and acting as counsel for the three appellants herein.
2 Additional litigation has taken place between the parties, both in the general division

and the probate division of the common pleas court. See, e.g., Huth v. Kus, 5th Dist.
Tuscarawas Nos. 2014 AP 10 0041, 2014 AP 10 0052, 2015-Ohio-3457. We find a full
recitation of this history of the dispute is not necessary for our present analysis.
Tuscarawas County, Case No. 2016 AP 10 0051                                              3


       {¶4}    On October 28, 2015, the probate court adopted the magistrate's decision.3

       {¶5}    On November 3, 2015, the court ordered the scheduling of an attorney fee

hearing before the magistrate on November 30, 2015. A further hearing was necessitated

on February 5, 2016.

       {¶6}    On March 1, 2016, the magistrate found inter alia that Appellee Kus should

receive a total of $7,837.50 in attorney fees from Michela Huth, $1,972.50 of which would

be a joint and several liability of lrvin Huth.

       {¶7}    On March 14, 2016, appellants objected to said magistrate's decision,

therein informing the court that the objection would be supplemented upon the receipt of

ordered transcripts. The objections of March 14, 2016 were cursory, with no specific

objections listed therein.

       {¶8}    On April 18, 2016, appellants filed a motion for an extension of time to pay

for the transcripts until June 22, 2016. The probate court granted the requested extension

on April 22, 2016.

       {¶9}    On August 5, 2016, appellants' attorney, Michela Huth, was informed via

email from the court reporter that the transcript of the attorney fee hearings was ready,

and that additional monies ($219.50), above the estimated amount already paid

($750.00), were owed for completion of said transcript.

       {¶10} On August 8, 2016, the court issued a judgment entry scheduling the

hearing on appellants' objections for August 12, 2016 at 8:00 a.m.




3  Appellants filed an objection to the magistrate’s decision on October 29, 2015, but the
probate court found it to be untimely via a judgment entry issued on the same day.
Tuscarawas County, Case No. 2016 AP 10 0051                                                  4


       {¶11} Appellants claim they did not have notice of said objection hearing, which

went forward as scheduled.

       {¶12} On August 12, 2016, the probate court issued a judgment entry overruling

appellants' objections and adopting the magistrate's decision of March 1, 2016, including

the award of attorney fees in the amount of $7,837.50 against Appellant Michela Huth

and $1,972.50 against Irvin Huth, using “joint and several liability” language.

       {¶13} On August 22, 2016, appellants filed a motion to vacate the August 12, 2016

judgment entry, alleging that appellants did not have notice of the August 12, 2016

hearing.

       {¶14} On August 30, 2016, the court issued a judgment entry implicitly denying

appellants’ motion to vacate, and ordering Attorney Huth to immediately pay the balance

owed to the court transcriptionist in the amount of $219.50. The court further ruled that

upon receipt of this balance, the transcript would be filed and the court would “then review

the entire record, including the transcript, and make a new determination concerning the

adoption of the Magistrate's Decision." The trial court also ruled that no further filings from

either party concerning the objections would be entertained in making this decision.

       {¶15} Appellants, on September 7, 2016, filed a motion for leave to supplement

their objections, attaching therewith a five-page memorandum. Appellants therein again

claimed that they had not received notice of the original objection hearing, and they

requested leave to file written objections based upon the transcripts.

       {¶16} On September 22, 2016, the probate court entered judgment denying

appellants' request to submit written objections, and approved and adopted the

magistrate's decision of March 1, 2016, which awarded attorney fees of 7,837.50 against
Tuscarawas County, Case No. 2016 AP 10 0051                                              5


Appellant Michela Huth and $1,972.50 against Appellant Irvin Huth as a joint and several

liability.

         {¶17} On October 21, 2016, appellants filed a notice of appeal of the September

22, 2016 judgment entry. They herein raise the following two Assignments of Error:

         {¶18} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DEPRIVED THE APPELLANTS OF THEIR GUARANTEED DUE PROCESS UNDER

THE LAW OF BOTH THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 16, ART. I OF THE OHIO CONSTITUTION, BY

ENTERING JUDGMENT AGAINST APPELLANTS WITHOUT NOTICE AND THE

OPPORTUNITY TO BE HEARD.

         {¶19} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING APPELLANTS AN OPPORTUNITY TO SUBMIT WRITTEN SUPPLEMENTAL

OBJECTIONS TO THE MARCH 1, 2016 MAGISTRATE'S DECISION, PURSUANT TO

OHIO RULES OF CIVIL PROCEDURE, R. 53.”

                                             I.

         {¶20} In their First Assignment of Error, appellants contend the probate court

erred and violated their due process rights by issuing its judgment entry of September 22,

2016, overruling appellants’ objections to the magistrate decision, despite appellants’

claimed lack of notice of the August 12, 2016 objection hearing. We disagree.

         {¶21} It is well-established that magistrates are arms of their appointing courts,

“which remain responsible to critically review and verify the work of the magistrates they

appoint.” See Quick v. Kwiatkowski, 2nd Dist. Montgomery No. 18620, 2001 WL 871406,

citing Normandy Place Associates v. Beyer, 2 Ohio St.3d 102, 443 N.E.2d 161 (1982).
Tuscarawas County, Case No. 2016 AP 10 0051                                                   6


       {¶22} Civ.R. 53(D)(4)(d) addresses court action on objections to magistrate’s

decisions. It states in pertinent part as follows: “If one or more objections to a magistrate's

decision are timely filed, the court shall rule on those objections. * * * Before so ruling, the

court may hear additional evidence but may refuse to do so unless the objecting party

demonstrates that the party could not, with reasonable diligence, have produced that

evidence for consideration by the magistrate.”

       {¶23} We have recognized that “[a]t a minimum, due process of law requires

notice and opportunity for a hearing, that is, an opportunity to be heard.” Shell v. Shell,

5th Dist. Stark No. 2010CA00026, 2010–Ohio–5813, ¶ 24, citing Mathews v. Eldridge

(1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. In the due process context, reasonable

notice means "notice reasonably calculated, under all circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections." PHH Mtge. Corp. v. Prater, 133 Ohio St.3d 91, 2012-Ohio-3931, ¶ 9,

quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

       {¶24} In the case sub judice, as noted in our recitation of the facts, the probate

court scheduled a hearing for August 12, 2016 on appellants' objections to the

magistrate’s decision awarding attorney fees. Although appellants subsequently asserted

that Attorney Huth did not receive notice of said objection hearing, the matter went forward

as scheduled without appellants’ presence, resulting in the probate court’s judgment entry

of August 12, 2016 overruling appellants' objections.

       {¶25} The probate court, on August 30, 2016, next issued a judgment entry

implicitly denying appellants’ subsequent motion to vacate, but it nonetheless allowed for

the filing of the magistrate’s hearing transcript (upon final payment by Attorney Huth for
Tuscarawas County, Case No. 2016 AP 10 0051                                                 7


the remaining transcriptionist’s fee), followed by the probate court’s assurance that it

would review same and “make a new determination concerning the adoption of the

magistrate's decision."

       {¶26} In regard to the issue of notice of the hearing of August 12th, the court also

ruled as follows: “*** The Court possesses information that the fax sent to Ms. Huth on

August 8th was received by her office immediately upon transmission. Ms. Huth uses a

post office box to receive her mail. Since this mail is not delivered, it is up to Ms. Huth to

make sure she picks up her mail every day. The Court finds it likely that the fax was

ignored and the mail was not retrieved in a timely fashion. It is the responsibility of Ms.

Huth to make adequate arrangements to receive mail in the course of her business.”

Judgment Entry, August 30, 2016, at 2-3.

       {¶27} Appellants point out that Attorney Huth asserted to the probate court, in the

motion of September 7, 2016 for leave to supplement appellants’ objections, that she did

pick up her mail “at the end of the day” on August 11, 2016, including the notice of the

August 12, 2016 (8:00 AM) hearing, but that it was her practice to open and sort her mail

on the next business day. Appellants also note that Attorney Huth likewise asserted that

during the week of August 8, 2016, as she was preparing for an unrelated permanent

custody trial, a large volume of faxed material was coming into her office, and thus her

machine may have run out of paper for printing, or the faxed notice of hearing in the case

sub judice may have gotten mixed in with said material.

       {¶28} Certainly, it is a basic tenet of Ohio jurisprudence that cases should be

decided on their merits. See, e.g., Jones v. All Tune & Lube, 8th Dist. Cuyahoga No.

96674, 2011-Ohio-6432, ¶ 18, citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3, 454
Tuscarawas County, Case No. 2016 AP 10 0051                                                 8


N.E.2d 951. However, we are also mindful that “[w]hile Civ.R. 53(D)(4)(b) allows a trial

court to take additional evidence or itself hear a matter previously referred to the

magistrate, it does not mandate such hearings.” Argenziano v. Argenziano, 9th Dist.

Medina No. 10CA0116–M, 2012-Ohio-1447, ¶ 10. Moreover, in this instance the record

before us reveals that most of the aforesaid details regarding the alleged lack of notice of

the objection hearing to Attorney Huth were not provided by appellants to the probate

court until after its decision of August 30, 2016 denying the motion to vacate.

       {¶29} Accordingly, upon review, we find no reversible error in the probate court’s

decision to deny appellants relief from judgment based upon a claim of lack of notice of

the scheduled Civ.R. 53 objection hearing, and to ultimately deny their objections.

       {¶30} Appellants’ First Assignment of Error is overruled.

                                             II.

       {¶31} In their Second Assignment of Error, appellants contend the probate court

erred by refusing to allow them to file supplemental objections to the magistrate’s decision

ordering specific attorney fees. We disagree.

       {¶32} Civ.R. 53(D)(3)(b)(iii) states in pertinent part that “[i]f a party files timely

objections prior to the date on which a transcript is prepared, the party may seek leave of

court to supplement the objections.” Generally, where a motion requires leave of the trial

court, our standard of review is that of abuse of discretion. See Riley v. City of Cincinnati,

1st Dist. Hamilton No. C-73435, 1974 WL 184559.

       {¶33} In the case sub judice, appellants initially created a delay by being late in

paying for a transcript of the magistrate’s hearing, and when the transcript became

available, they waited over a month (from August 5, 2016 until September 7, 2016) to
Tuscarawas County, Case No. 2016 AP 10 0051                                             9


request leave to supplement their objections. Despite this, even though the trial court on

August 30, 2016 had technically overruled appellant’s motion to vacate its prior decision

to adopt the magistrate’s decision, it went the extra mile and independently reviewed

appellants’ original objections again, this time with the benefit of the long-awaited

transcript, leading to the judgment entry presently under appeal.

      {¶34} Accordingly, under the circumstances of the case sub judice, we are

unpersuaded the probate court abused its discretion in declining to grant leave for

appellants to supplement their Civ.R. 53 objections.

      {¶35} Appellants’ Second Assignment of Error is therefore overruled.

      {¶36} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Probate Division, Tuscarawas County, Ohio, is hereby affirmed.


By: Wise, John, J.

Delaney, P. J., and

Hoffman, J., concur.


JWW/d 0531
