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

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IRVIN W. HUTH, et al. 

 Plaintiffs-Appellants 

-vsTAMA KUS, Administrator of the Estate 

of BRYON L. HOLBROOK 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case Nos. 2014 AP 10 0041 

 and 2014 AP 10 0052 

O P I N I O N 

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-Ohio1440, 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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