[Cite as Huth v. Kus, 2015-Ohio-3457.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



IRVIN W. HUTH, et al.                           JUDGES:
                                                Hon. William B. Hoffman, P. J.
        Plaintiffs-Appellants                   Hon. Sheila G. Farmer, J.
                                                Hon. John W. Wise, J.
-vs-
                                                Case Nos. 2014 AP 10 0041
TAMA KUS, Administrator of the Estate                 and 2014 AP 10 0052
of BRYON L. HOLBROOK

        Defendant-Appellee                      OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Case No. 2014 VR 08 0506


JUDGMENT:                                    Affirmed



DATE OF JUDGMENT ENTRY:                      August 25, 2015



APPEARANCES:

For Plaintiffs-Appellants                    For Defendant-Appellee

MICHELA HUTH                                 GREG A. BECK
257 Canal Street                             BAKER, DUBIKAR, BECK,
Post Office Box 673                          WILEY & MATHEWS
Bolivar, Ohio 44612                          400 South Main Street
                                             North Canton, Ohio 44720
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                      2

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 R.C. 2117.06.

      {¶5}. On August 18, 2014, appellants also filed a "complaint in replevin and

motion for order of possession" (R.C. 2737.03) in the Tuscarawas County Court of

Common Pleas against Appellee Tama Kus, as the administrator of the Bryon L.

Holbrook estate.

      {¶6}. On August 27, 2014, appellee filed an answer and a Civ.R. 12(C) motion

for judgment on the pleadings.
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                         3


        {¶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 Civ.R. 12(C), appellants filed a motion for relief from
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                           4


judgment under Civ.R. 60(B). After both sides had provided written arguments to the

trial court, the motion was denied on November 13, 2014.

       {¶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 Civ.R. 12(C),

which states: “After the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings.”

       {¶20}. Pursuant to Civ.R. 12(C), dismissal is only appropriate "where a court (1)

construes the material allegations in the complaint, with all reasonable inferences to be

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt

that the plaintiff could prove no set of facts in support of his claim that would entitle him

to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570,

664 N.E.2d 931, 936. The very nature of a Civ.R. 12(C) motion is specifically designed

for resolving solely questions of law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161,
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                          5


166 63 O.O.2d 262, 264, 297 N.E.2d 113, 117. Reviewing courts will reverse a

judgment on the pleadings if plaintiffs can prove any set of facts that would entitle them

to relief. State ex rel. Gorgievski v. Massillon, 5th Dist. Stark No. 2008 CA 00239, 2009-

Ohio-4533, ¶ 16 (additional citations omitted). The review will be done independent of

the trial court's analysis to determine whether the moving party was entitled to judgment

as a matter of law. Id.

       {¶21}. Appellant's argument centers on the impact of the "rejected claims" aspect

of R.C. 2117.12, which states in pertinent part as follows:

       {¶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).
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                           6


       {¶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 R.C. 2117.12 makes no provision for a creditor to prematurely file a lawsuit in the civil

division of a common pleas court (or other forum outside of probate) to recover from a

deceased alleged debtor's estate and then utilize a subsequent estate claim rejection to

cure the procedural defect. As such, we find no reversible error in the trial court's

granting of judgment on the pleadings in favor of appellee under the facts and

circumstances presented.

       {¶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 R.C. 2117.12. However, appellants advise us that they

have filed another common pleas complaint in replevin effective November 10, 2014,

due to the trial court's dismissal in the case sub judice (see Appellant’s Reply Brief at 7).

Based on our foregoing conclusions, we find appellee's responsive argument is

academic at this juncture and will have to await another day for review.
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                          7


       {¶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}. Civ.R. 60(B) reads as follows: “On motion and upon such terms as are

just, the court may relieve a party or his legal representative from a final judgment, order

or proceeding for the following reasons:

       {¶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 Civ.R. 60(B), “ * * * the

movant must demonstrate that (1) the party has a meritorious defense or claim to
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                        8


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 proceedings was entered or taken.” Argo Plastic

Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328, citing GTE

Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of the syllabus. If any prong of this requirement is not satisfied, relief

shall be denied. Argo at 391, 474 N.E.2d 328.

      {¶36}. A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court and a ruling will not be disturbed absent an abuse of

discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An abuse of

discretion connotes more than an error of law or judgment, it implies the court's attitude

is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.

      {¶37}. In the case sub judice, appellants alleged in part that relief from judgment

was warranted under Civ.R. 60(B) because appellee had committed fraud upon the trial

court by not immediately informing the court that appellants claims had been rejected in

the probate action on September 9, 2014, subsequent to the filing of appellants' replevin

complaint against Holbrook's estate. However, as we discussed earlier, under R.C.

2117.12, the presentment and rejection of a claim against an estate are conditions

precedent to filing a lawsuit pertaining to the rejected claim. We find appellants'

procedural approach in the common pleas court, i.e., the premature replevin complaint,

attempted to circumvent the proper statutory procedure. Accordingly, we hold the trial
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                         9


court did not abuse its discretion or commit reversible error in denying appellant's Civ.R.

60(B) motion regarding the judgment entry of dismissal of their replevin action.

Appellants' sole Assignment of Error in case number 14AP100052 is overruled.

                                           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.
Tuscarawas County, Case Nos. 2014 AP 10 0041 and 2014 AP 10 0052                        10

Hoffman, P.J., concurring in part and dissenting 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 Civ.R.

60(B) motion for relief from judgment because I find the trial court had no jurisdiction to

rule thereon while the appeal in Case No. 2014 AP 10 0041 was pending.




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