Court of Appeals of Ohio, Fifth District, Tuscarawas
appeal from the Tuscarawas County Court of Common Pleas, Case
Plaintiffs-Appellants MICHELA HUTH
Defendant-Appellee GREGORY BECK
John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B.
Appellants Irvin W. and Kay V. Huth [collectively
"Huths"] appeal the May 4, 2017 Judgment Entry
after a bench trial in the Tuscarawas County Court of Common
and Procedural History
In March 2014, the Huths entered into a written contract with
Bryon L. Holbrook ["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. Huths also have alleged that they
entered into a verbal agreement with Holbrook whereby they
loaned him an additional $29, 500.00, unsecured. See,
Huth v. Tama Kus, Adm. Estate of Byron L Holbrook, 5th
Dist. Tuscarawas Nos. 2014 AP 10 0041, 2014 AP 10 00052,
2015-Ohio-3457, ¶2. [Hereinafter Huth I"].
Holbrook died intestate on or about July 16, 2014. On or
about August 5, 2014, his estate administration was opened.
Huth I, ¶3. Defendant/Appellee, Tama Fairbanks
(FKA Tama Kus), is the Administrator of the Estate of Bryon
L. Holbrook, Tuscarawas County Court of Common Pleas, Probate
Division, In Re: Estate of Bryon L Holbrook, Case
No. 2014 ES 57825. In the probate proceedings, the Huths'
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.
Huth I, ¶8.
On August 18, 2014, the Huths 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. On August 27, 2014, appellee filed an
answer and a Civ.R. 12(C) motion for judgment on the
On September 12, 2014, the trial court issued a six-page
judgment entry dismissing the Huths' replevin action,
concluding inter alia, "replevin is not appropriate
under the complaint, its supporting documents, and answer,
and Ohio law." Huth I, ¶11. This Court
upheld the trial court's decision as well as its decision
to deny the Huths' Civ. R. 60 (B) motion. Huth
On November 4, 2015, the Huths filed a motion for leave to
file an amended complaint. By Judgment Entry filed January
21, 2016, the trial court granted the Huths' motion.
On January 29, 2016, the Huths filed an amended complaint
alleging counts for Replevin, Breach of Contract, Unjust
Enrichment and Conversion. In their amended complaint, the
Huths alleged the balance due on the secured loan was $22,
973.56 plus interest; the balance due on the unsecured loan was
$22, 057.44 plus interest; and the balance due under both the
unsecured and secured loans equals $45, 031 plus
interest. The Huths requested $45, 031.00 plus
interest as their prayer for relief. Nowhere in the amended
complaint do the Huths set forth a cause of action or a
prayer for relief for unpaid rent.
The trial court issued a Pretrial and Scheduling Order on
June 8, 2016, wherein the Court ordered, "For trials to
the bench, trial briefs shall be filed with the Court, one
week before trial, unless leave is otherwise granted."
By Judgment Entry filed January 20, 2017, the trial court,
sua sponte granted an extension of time to the
parties for filing trial briefs on or before January 23,
2017, one day prior to the trial. The parties were
specifically advised to present the trial court with a brief
of the legal issues that were being tried to the court, along
with the relevant law. This Judgment Entry was also sent to
the parties via facsimile on January 19, 2017 at 2:32 p.m.
The appellee's trial brief was filed on January 23, 2017.
The Huths failed to file a trial brief prior to trial. On
January 25, 2017, the trial court denied the Huths'
Motion for Leave to File Post-Trial Brief Instanter to
Specifically Respond to Defendant's Trial Brief. A bench
trial took place on January 24, 2017.
evidence presented at trial.
On February 21, 2014, appellant Kay Huth wrote Bryon Holbrook
check number 8896 for $10, 000.00. (Plaintiff's Exhibit
1). The memo line for this check indicated "loan."
Holbrook deposited that amount into his checking account on
the same day, as both he and Kay were standing at the bank
counter. Bryon's checking account statement showed the
deposit of this amount on that day. Kay testified that
Holbrook told her "you know, mom, I will pay you back.
And I said of course Byron I know that." (T. at 14).
Appellee's objection was overruled by the trial court.
(T. at 11 -14).
Kay testified that Holbrook "asked me if he could have
more money, I said yes up to twenty-five thousand dollars you
can have." (T. at 21). On March 7, 2014, Kay Huth
received $2, 500.00 cash from check number 8886 issued from
her own bank account. (Plaintiffs Exhibit 4). Kay Huth
testified that she gave this amount to Holbrook and he
deposited the same into his account immediately upon her
handing him the cash. Holbrook's checking account
statement shows $2, 500.00 deposited into his bank account on
the same day.
On March 12, 2014, Kay Huth wrote check number 8787 to
Holbrook for $12, 500.00. (Plaintiffs Exhibit 5). The memo line
of this check contained the word "loan." Kay
testified that Holbrook deposited the check into his checking
account the same day, while she and he were standing at the
bank counter together. Holbrook's checking account
statement shows $12, 000.00 deposited into his bank account
on March 12, 2014. Kay testified that Holbrook kept $500.00
cash of the $12, 500.00 given him at that time, and deposited
$12, 000.00 into his bank account.
On March 24, 2014, Kay received $15, 000.00 cash from check
number 8886 issued from her own bank account.
(Plaintiff's Exhibit 7). Kay testified that the $15,
000.00 was given to Holbrook who deposited the money directly
into his account when she and he were at the bank counter.
Kay testified that her own mother had passed away in January
2014, and Kay planned to buy her mother's home. T. at 26.
Kay testified that she was informed by her bank that the
easiest way to purchase her mother's house was to
increase her personal line of credit ("PCL"). T. at
26. A new PCL was created based upon the additional money
loaned to Kay by the bank so that she could buy her
mother's home. T. at 27. Kay testified that the $15, 000
she provided to Holbrook on March 24, 2014 came from this new
PCL. T. at 26.
On March 26, 2014, the Huths entered into a written agreement
with Holbrook, which provided that Huths, "loaned
[Holbrook] $25, 000" and in consideration for the loan,
Holbrook agreed to repay the principal amount of $25, 000
with variable interest. (Plaintiff's Exhibit 16). The
Note, which was prepared by Huths' attorney and daughter,
Michela Huth, further provided that Holbrook would repay the
loan on a monthly basis of $449.11 for four years.
(Id.). An attorney did not represent Holbrook. Based
upon the express terms of the Note, the total repayment
equaled $21, 557.28 (48 months at $449.11 per month).
The agreement also provided that Holbrook assigned a security
interest in certain collateral, which included a Voyager
Pontoon Boat, a Johnson Inboard Motor (attached to the
pontoon boat), a 2012 Kawasaki STX15F Jet Ski, a 2014 Load
Rite Trailer, a 2013 Arctic Cat, and a Mihindra Tractor.
(Plaintiff's Exhibit 16 at 1(a) and Exhibit A, attached
to Plaintiff's Exhibit 16). Holbrook's death
triggered the default clause of the agreement. Id.
At the time of the trial, the Huths were in possession of
several of these items, specifically the pontoon boat, motor,
and trailer, valued at $4, 800, and the Mahindra Tractor,
valued at $11, 950. (Judgment Entry at 7). The trial court
found appellee was in possession of the Arctic Cat, and that
the Kawasaki Jet Ski was repossessed. (Judgment Entry, at 8,
Appellant Irvin Huth testified that Holbrook had telephoned
him saying "I need the money badly could you come into
the bank." (T. at 83). On April 24, 2014, appellant
Irvin Huth received $2000.00 in cash from a check issued from
the PCL account. (Plaintiffs Exhibit 18). Holbrook
immediately deposited cash of $2000.00 into his bank account.
Irvin further testified, "I believed that Byron would
pay and I expected him to pay. In fact, I, he and I had a
couple of conversations that this was very important to us,
that yes we wanted to help but it meant we were mortgaging
our home, and this was a very serious thing. And Byron did
make payments and we did continue to give him money at the
[bank]." T. at 80-81.
On April 30, 2014, Kay received $12, 500.00 cash from the PCL
account. (Plaintiffs Exhibit 9). When Kay gave Holbrook the
money, he deposited it into his checking account on the same
day. Holbrook's checking account statement reflects a
deposit of $12, 500.
Kay Huth testified that on June 3, 2014, Holbrook approached
her at the bank and "he says mom look, I paid three
thousand dollars on the PCL, he was like a little boy, real
proud of what he had done." T. at 33.
Prior to Holbrook's death, he paid $14, 800.00 to the
Huths. The Huths contend that of that amount, he paid $4,
800.00 for four months' rent. Holbrook lived with the
Huths' daughter and ...