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Hammond v. Perry

Court of Appeals of Ohio, Fourth District

August 19, 2013

SHEILA L. HAMMOND et al., Plaintiffs-Appellees,
v.
PAMELA S. PERRY, Defendant-Appellant

CIVIL APPEAL FROM COMMON PLEAS COURT

James R. Kingsley COUNSEL FOR APPELLANT

Ryan Shepler, Kernen & Shepler, L.L.C., COUNSEL FOR APPELLEES

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

(¶ 1} This is an appeal from several Hocking County Common Pleas Court judgments in favor of Sheila L. Hammond and Gerard C. Hammond (the Hammonds), among others, plaintiffs below and appellees herein, on their claim and on the various claims and counterclaims that Pamela S. Perry, defendant below and appellant herein, brought against them.

(¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT GRANTED DEFENDANT'S CIV.R. 12(B) MOTION TO DISMISS PLAINTIFF'S CLAIM FOR CONTRACT TO MAKE A WILL?"
SECOND ASSIGNMENT OF ERROR:
"DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT GRANTED SUMMARY JUDGMENT TO DEFENDANTS?"

(¶ 3} On June 24, 1978, Doris Shrum and Frederick Shrum acquired approximately forty acres of undeveloped land. Frederick Shrum died in 1998 and, for a few years thereafter, family members constructed a cabin on the property. Herbert Shrum, Doris's son, along with appellant (his wife), upgraded the structure and installed indoor plumbing, a septic system and connected the cabin to "city water."[1]

(¶ 4} The dispute concerns the impetus for making the upgrades. Appellant claims that Doris Shrum was to make a last will and testament and leave the property to her and her husband. Appellant contends that she and her husband intended to make the cabin their retirement home. The Hammonds, however, as well as Doris Shrum, contend that Herbert and appellant improved the structure of their own volition and were even asked to cease making improvements.

(¶ 5} In 2010, Herbert Shrum died. Doris Shrum later transferred the property to her daughter, Appellee Sheila Hammond. Notice was served on appellant to vacate the premises[2] and, on November 22, 2010, appellees commenced this case in the Hocking County Municipal Court as a forcible entry and detainer action. Later, the case was transferred to the Hocking County Common Pleas Court where it was consolidated with another case that involved these same parties.[3]

(¶ 6} On December 7, 2010, appellant answered, set out several defenses and filed a combined counterclaim and third party complaint[4] that asserted claims in (1) quiet title, (2) breach of contract to make a will, (3) declaratory judgment, (4) unjust enrichment, and (5) interference with expectation of inheritance.[5] Appellant's third party complaint named, as defendants, Doris Shrum, "Erin Shrum-Albanee"[6] and appellant, herself, as the Administrator of her husband's estate.

(¶ 7} On December 20, 2010, appellees and third-party defendant Doris Shrum, filed a Civ.R. 12(B)(6) motion to dismiss appellant's action in breach of contract to make a will. The gist of their motion is that the third party complaint did not allege a written agreement and an oral agreement to make a will is unenforceable under Ohio law. On May 17, 2011, the trial court granted the motion and ordered the second "cause of action" dismissed.

(¶ 8} On August 13, 2012, plaintiffs (and, presumably, third-party defendants) requested summary judgment on all their claims, as well as the counterclaims and third-party claims. Appellant filed a memorandum in opposition. On November 30, 2012, the trial court entered judgment on behalf of "plaintiffs, " which it defined as all other parties in the two cases except for appellant, Pamela Perry. The following month, the trial court granted a ...


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