JUDY ROWETON, EXECUTRIX OF THE ESTATE OF JERRY L. ROWETON, PLAINTIFF-APPELLEE,
JEAN ANN WILLIS, ET AL., DEFENDANTS-APPELLEES, and DANIEL ROWETON, ET AL., DEFENDANTS-APPELLANTS.
from Logan County Common Pleas Court, Probate Division, Trial
Court No. 13-CE-128
J. Buecker and Laura E. Waymire for Appellants.
R. Watkins for Appellee, Judy Roweton.
Defendant-appellants, Daniel Roweton ("Daniel") and
Mary Lewis ("Mary"), appeal the Logan County
Probate Court's judgment entry denying their motion to
vacate default judgments. For the reasons that follow, we
affirm the judgment of the trial court.
and Procedural History, First Appeal
On May 9, 2013, Jerry Roweton ("Jerry") died
testate. (Doc. 1). Jerry was the father of five children,
Karen Durr, Jerry L. Roweton, James Roweton, Jean Ann
(Willis) Roweton, and Robert Roweton. However, only Karen,
Jean and Robert survived him. On July 11, 2013, Plaintiff
Judy Roweton, as executor of Jerry's estate
("Executor"), filed a "complaint for
construction of the will" against Daniel, Mary, and
other relatives as defendants. (Id.). Daniel and Mary
were served with a summons and a copy of the complaint on
July 13 and 23, 2013, respectively. (Docs. 5, 7).
However, on August 20, 2013, Brenda Roweton, as power of
attorney for Daniel, filed a handwritten answer to the
complaint on Daniel's behalf in the trial court. (Doc.
In motions filed October 21 and 23, 2013, the Executor
requested default judgments against Daniel, Mary, and others,
arguing that Mary (and others) "failed to file a
responsive pleading" and that "a proper responsive
pleading has not been filed in this action" by Daniel.
(Docs. 17, 20).
In orders filed October 23 and November 6, 2013, the trial
court issued default judgments against Daniel and Mary.
(Docs. 19, 21). In its October 23, 2013 entry, the trial
court found that service was perfected upon Daniel.
(Id.) Nevertheless, on December 9, 2013, the trial
court sua sponte vacated its default judgment
against Daniel, finding his answer filed by Brenda (as
Daniel's Power of Attorney) was proper. (Doc. 22).
Thereafter, on April 29, 2014, Daniel filed a motion for
extension to file an answer to the complaint because he was
incarcerated at the Noble Correctional Institution, and had
been so incarcerated since August, 2013. (Doc. 27).
On May 19, 2014, Mary, through counsel, filed a motion for
leave to file an answer. (Doc. 35). The trial court, over the
Executor's objection, granted Mary's motion on July
30, 2014 and her answer was filed that same day in the trial
court. (Docs. 36, 38, 39).
Thereafter, on August 19, 2014, both Daniel and Mary filed a
motion for summary judgment. (Docs. 41, 43). On September 19,
2014, following an August 22, 2014 pretrial hearing, the
trial court ordered the parties to file any motions for
summary judgment by September 30, 2014. (Doc. 49). On
September 24, 2014, Daniel and Mary filed a supplemental
motion for summary judgment. (Doc. 51). On September 30,
2014, the Executor, Judy (individually) and Jean filed a
motion for summary judgment. (Doc. 52). Daniel and Mary filed
a "reply to motions for summary judgment" on
November 3, 2014 and on November 4, 2014, the Executor, Judy
(individually) and Jean filed a memorandum in opposition to
Daniel and Mary's motion and supplemental motion for
summary judgment. (Docs. 57, 58).
On January 30, 2015 the trial court filed its judgment entry
granting Daniel and Mary's motion for summary judgment
and denied the Executor, Judy (individually) and Jean's
motion for summary judgment. (Doc. 60). An appeal of this
order was filed (by Judy and Jean) on February 26, 2015.
On July 6, 2015, we dismissed Judy's (individual) appeal
and, as to Daniel, found that he was properly served with the
complaint on July 13, 2013; that he failed to file a motion
for leave to file an answer timely; that the trial court
abused its discretion by accepting Daniel's August 20,
2013 pleading; and that the trial court erred when it sua
sponte vacated the default judgment against Daniel.
(Doc. 80). And, as to Mary, we found that the trial court