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Huth v. Kus

Court of Appeals of Ohio, Fifth District, Tuscarawas

May 14, 2018

IRVIN W HUTH, ET AL Plaintiffs-Appellants
v.
TAMA KUS, ADMINISTRATOR, ESTATE OF BRYON L. HOLBROOK Defendant-Appellee

          Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2014VR110681

          For Plaintiffs-Appellants MICHELA HUTH

          For Defendant-Appellee GREGORY BECK

          Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          GWIN, J.

         {¶1} 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 Pleas.

         Facts and Procedural History

         The parties.

         {¶2} 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"].

         {¶3} 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.

         The replevin action.

         {¶4} 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 pleadings.

         {¶5} 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 I.

         {¶6} 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.

         The amended complaint.

         {¶7} 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[1]; the balance due on the unsecured loan was $22, 057.44 plus interest[2]; and the balance due under both the unsecured and secured loans equals $45, 031 plus interest[3]. 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 bench trial.

         {¶8} 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.

         The evidence presented at trial.

         {¶9} 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).[4]

         {¶10} 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.

         {¶11} On March 12, 2014, Kay Huth wrote check number 8787 to Holbrook for $12, 500.00.[5] (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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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).

         {¶15} 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 ¶8.

         {¶16} 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, 19).

         {¶17} 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.

         {¶18} 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.

         {¶19} 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.

         {¶20} 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 ...


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