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Roweton v. Willis

Court of Appeals of Ohio, Third District, Logan

May 7, 2018

JUDY ROWETON, EXECUTRIX OF THE ESTATE OF JERRY L. ROWETON, PLAINTIFF-APPELLEE,
v.
JEAN ANN WILLIS, ET AL., DEFENDANTS-APPELLEES, and DANIEL ROWETON, ET AL., DEFENDANTS-APPELLANTS.

          Appeal from Logan County Common Pleas Court, Probate Division, Trial Court No. 13-CE-128

          Thomas J. Buecker and Laura E. Waymire for Appellants.

          David R. Watkins for Appellee, Judy Roweton.

          OPINION

          ZIMMERMAN, J.

         {¶1} 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.

         Facts and Procedural History, First Appeal

         {¶2} 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.[1] (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).

         {¶3} 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. 11).

         {¶4} 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).

         {¶5} 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).

         {¶6} 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).

         {¶7} 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).

         {¶8} 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.

         {¶9} 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 ...


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