Sherman v. Eichenlaub

2025 Ohio 1880

• Court: Ohio Court of Appeals
• Decided: May 27, 2025
• Docket: CA2024-08-017
• Status: Published

Opinion

[Cite as Sherman v. Eichenlaub, 2025-Ohio-1880.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

MARY SHERMAN, ET AL., : CASE NO. CA2024-08-017 Appellees, : O P I N I O N AND : JUDGMENT ENTRY - vs - 5/27/2025 :

LAVERNE EICHENLAUB, :

Appellant. :

APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 20234002A

Collins & Slagle Co., LPA, and Ehren W. Slagle, for appellees.

Butler and Marshall, and D. Brent Marshall, for appellant.

____________ OPINION

M. POWELL, J.

{¶ 1} Appellant, Laverne Eichenlaub, appeals the decision of the Madison County

Court of Common Pleas, Probate Division, entering default judgment. For the reasons

discussed below, we affirm. Madison CA2024-08-017

I. Factual and Procedural Background

{¶ 2} Appellees are the family of William Sullivan. Prior to William's death, he had

a non-marital relationship with appellant. During that relationship, on October 16, 2020,

William executed a transfer on death beneficiary designation in which appellant was

designated as the beneficiary of his residence upon his death. Appellees believed this

affidavit to be invalid as the product of undue influence and William's diminished mental

capacity.

{¶ 3} Appellees attempted to resolve the matter informally with appellant and

engaged in settlement negotiations through appellant's counsel. Appellant sought to sell

the property. To avoid a lawsuit to enjoin the sale, the parties agreed to go forward with

the sale with the escrow of the sale proceeds and later disbursement pursuant to

agreement or court order. Thereafter, appellant did not meaningfully engage with

appellees in settlement discussions. After appellant rejected a settlement offer, on

December 27, 2023, appellees filed a complaint in the Madison County Probate Court to

set aside the transfer on death beneficiary designation affidavit.

{¶ 4} On December 22, 2023, appellees' counsel provided a courtesy copy of the

complaint to appellant's counsel, requested that appellant waive service, and provided a

proposed waiver of service form. Appellees also requested that counsel provide them

with appellant's address as her whereabouts were unknown. On March 14, 2024,

appellees' counsel inquired of appellant's counsel concerning the status of the waiver of

service and was advised that he should have the waiver "any day now." When the waiver

was not forthcoming, appellees' counsel again inquired concerning the status of the

waiver on March 19, 22, and 27, 2024. On March 27, 2024, appellant's counsel advised

that he had received the waiver in the mail that day. When the waiver was not received

by appellees' counsel or filed with the probate court, appellee's counsel made further

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inquiry on March 28, 2024 and April 2, 9, and 16, 2024 without response.

{¶ 5} In the meantime, after appellees' private research revealed that appellant

was residing in Georgia, they hired a private process server on February 8, 2024, to serve

appellant with the complaint. By February 27, 2024, the private process server had made

five attempts to serve appellant with the complaint, but despite the process server seeing

movement inside appellant's home and appellant's car in the driveway, no one would

answer the door. Consequently, appellees requested that service upon appellant be

made by U.S. certified mail. Certified mail service of the complaint on appellant was

completed on March 13, 2024.

{¶ 6} On March 15, 2024, appellees served appellant's counsel with discovery

requests, including requests for admissions. Appellant's counsel had agreed to accept

the discovery requests on appellant's behalf.

{¶ 7} Pursuant to the Rules of Civil Procedure, appellant's answer to the

complaint was due by April 10, 2024 and her responses to the requests for admission

were due by April 12, 2024. Both deadlines passed without appellant answering,

appearing, defending, or seeking extensions of time. On April 25, 2024, appellees filed a

motion for a default judgment pursuant to Civ.R. 55 and notice that appellant had admitted

the matters set forth in appellees' requests for admissions due to her failure to answer or

object pursuant to Civ.R. 36(A)(1). Courtesy copies of the foregoing were provided to

appellant's counsel by email on April 24, 2024.

{¶ 8} On May 3, 2024, without having been granted an extension, appellant

served appellees with a response to their discovery requests. On May 20, 2024, 40 days

out of time and without seeking leave of court, appellant filed a perfunctory answer

consisting of two paragraphs which denied all allegations of the complaint and asserted

all affirmative defenses set forth in Civ.R. 8(C). Appellees' counsel was not served with

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appellant's answer despite the certificate of service certifying that he had. Appellees'

counsel only discovered that the answer had been filed by checking the probate court's

online docket.

{¶ 9} On June 11, 2024, appellees filed a motion to strike appellants' answer as

it was filed out of time and without leave or an extension of time. On June 3, 2024, the

probate court provided the parties notice that it would conduct a pretrial on the matter on

June 20, 2024. The pretrial proceeded as scheduled. During the pretrial it was discovered

that appellees' motion for default judgment, while having been filed, had inadvertently not

been docketed by the clerk. The probate court allowed appellant time to file responses to

appellees' motions for default judgment and to strike appellant's answer. On July 1, 2024,

appellant filed a memorandum in opposition to default judgment and the motion to strike

and the notice regarding the requests for admissions. Appellant also filed a motion

pursuant to Civ.R. 6(B)(2) for leave to file her answer out of time.

{¶ 10} Pursuant to entry of July 29, 2024, the probate court (1) granted appellees'

motion to strike appellant's answer as it was filed out of time and appellant had not

demonstrated that the late filing was the product of excusable neglect and ordered the

answer stricken; (2) denied appellant's motion to strike the notice of admissions and

ordered the matters deemed admitted; (3) granted appellees' motion for default judgment

and declared the transfer on death beneficiary designation affidavit invalid; and (4)

ordered the sale proceeds from William's home in the sum of $267,084.39 released from

escrow and disbursed to appellees.

{¶ 11} Appellant timely filed a notice of appeal on August 23, 2024. On appeal,

appellant raises two assignments of error for our review.

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II. Legal Analysis

{¶ 12} Assignment of Error No. 1:

THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR DEFAULT JUDGMENT. [sic]

{¶ 13} In her first assignment of error, appellant argues the probate court erred in

granting default judgment against her because she had not "failed to plead or otherwise

defend" as required by Civ.R. 55(A). Appellant asserts that pre-suit negotiations, phone

calls, and e-mails exchanged between the parties constitute defending the suit and

therefore precluded default judgment.

{¶ 14} An appellate court reviews a trial court's decision to grant or deny a motion

for default judgment under an abuse-of-discretion standard. Nix v. Robertson, 2013-Ohio-

777, ¶ 9 (12th Dist.). An abuse of discretion implies that the court's attitude is

unreasonable, arbitrary or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

{¶ 15} Courts of appeals and trial courts, alike, must be mindful that generally, the

law disfavors default judgments and the general policy in Ohio is to decide cases on their

merits whenever possible. Lemasters v. Lemasters, 2019-Ohio-4395, ¶ 22 (12th Dist.).

However, as the Supreme Court has stated, "A defendant's right to force a plaintiff to

prove his or her claim depends upon the defendant's compliance with the Civil Rules and

the timely filing of an answer to the complaint. Otherwise, the sanctions for

noncompliance would lose their deterrent effect." Davis v. Immediate Med. Servs., 80

Ohio St.3d 10, 15 (1997) (finding the trial court abused its discretion when it permitted the

defendant to file an answer out of time without some showing of excusable neglect).

{¶ 16} Civ.R. 12(A)(1) expressly provides "The defendant shall serve his answer

within twenty-eight days after service of the summons and complaint upon him; if service

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of notice has been made by publication, he shall serve his answer within twenty-eight

days after the completion of service by publication." Pursuant to Civ.R. 6(B), filing a late

answer can only be accomplished "upon motion" and "where the failure to act was the

result of excusable neglect." A defendant's failure to comply with these procedures gives

the plaintiff the right to move for default judgment. Miller v. Lint, 62 Ohio St.2d 209, 214

(1960).

{¶ 17} To that end, Civ.R. 55(A) provides, "When a party against whom a judgment

for affirmative relief is sought has failed to plead or otherwise defend as provided by these

rules, the party entitled to a judgment by default shall apply in writing or orally to the court

. . . ." In the present case, appellant was served with the complaint on March 13, 2024

and therefore, pursuant to Civ.R. 12(A) was required to file her answer by April 10, 2024,

but she failed to do so. Appellees were thus entitled to move for default judgment, which

they did on April 25, 2024. Only after being served with the motion for default judgment

did appellant file an answer, well out of time, on May 20, 2024—yet she did so without

first filing a motion for leave and without claiming, much less demonstrating, excusable

neglect as required by Civ.R. 6(B)(2).

{¶ 18} That appellant exchanged certain communications with appellees' attorney

and engaged in some limited and ultimately unsuccessful negotiations prior to the filing

of the suit is irrelevant. Appellant's brief seems to suggest that these pre-suit

communications and her belated filings in response to appellees' motion for default

judgment and notice of admissions undermine the probate court's finding that she "failed

to meaningfully engage in the litigation process." They do not. Rather, appellant's dilatory

conduct, belated filings, and failure to establish excusable neglect demonstrate a

conscious disregard for the Ohio Rules of Civil Procedure. Therefore, the probate court

did not abuse its discretion in granting default judgment in favor of appellees.

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{¶ 19} Appellant's first assignment of error is overruled.

{¶ 20} Assignment of Error No. 2:

THE TRIAL COURT ERRED IN ADMITTING APPELLEE'S REQUEST FOR ADMISSIONS. [sic]

{¶ 21} In her second assignment of error, appellant argues that the probate court

erred in admitting appellees' request for admissions. In support of her argument, appellant

reiterates that she engaged in certain pre-suit communications, emphasizes that she

engaged in discovery on May 3, 2024 via e-mail with opposing counsel's paralegals, and

highlights the fact that a clerical error resulted in the filed notice of admissions not being

listed on the docket.

{¶ 22} Civ.R. 36 governs requests for admissions. Specifically, pursuant to Civ.R.

36(A)(1), "[t]he matter is admitted unless, within a period designated in the request, not

less than twenty-eight days after service of the request or within such shorter or longer

time as the court may allow, the party to whom the request is directed serves upon the

party requesting the admission a written answer or objection addressed to the matter,

signed by the party or by the party's attorney." As this court has stated previously, "[w]hen

a party fails to timely respond to a request for admissions, the admissions become facts

of record, which the court must recognize." January Invs., LLC v. Ingram, 2010-Ohio-

1937, ¶ 17 (12th Dist.). However, this court has also determined that "[a] trial court may

permit the withdrawal or amendment even if the admission is the result of a party's

untimely failure to respond." Baron v. Buckner, 1991 Ohio App. LEXIS 1895, *5 (12th Dist.

Apr. 29, 1991). This is because Civ.R. 36 "emphasizes the importance of having the

action resolved on the merits, while at the same time assuring each party that justified

reliance on an admission in preparation for trial will not operate to his prejudice."

Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67 (1985). "The court may permit the

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withdrawal [or amendment] if it will aid in presenting the merits of the case and the party

who obtained the admission fails to satisfy the court that withdrawal will prejudice him in

maintaining his action." Id. A trial court's decision whether to permit withdrawal or

amendment is reviewed for an abuse of discretion. Buckner at *6.

{¶ 23} Here, appellant was served appellees' request for admissions on March 15,

2024. Appellant's written responses were due to appellees on April 12, 2024, but

appellant failed to timely respond and never sought an extension of time. Her failure to

do so was not an isolated incident but occurred within the context of appellant's other

obstructive and dilatory conduct. It was only after appellees filed the notice of admissions,

on April 25, 2024, that appellant finally served incomplete discovery responses via e-mail

on May 3, 2024. The fact that the notice of admissions was not immediately docketed due

to a clerical error did not prevent appellant from timely responding and did not otherwise

cause her prejudice. Finally, her pre-suit communications with opposing counsel are

irrelevant to this issue.

{¶ 24} Appellant has provided no justification for her delayed response to the

request for admissions and no proper reason why the probate court should not have

deemed the matters admitted. The probate court did not abuse its discretion by denying

appellant's motion to strike the notice of admissions.

{¶ 25} Appellant's second assignment of error is overruled.

III. Conclusion

{¶ 26} We find that the probate court did not err in granting default judgment in

favor of appellees and did not err in denying appellant's motion to strike the notice of

admissions.

{¶ 27} Judgment affirmed.

BYRNE, P.J., and PIPER, J., concur.

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JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.

It is further ordered that a mandate be sent to the Madison County Court of Common Pleas, Probate Division, for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

/s/ Matthew R. Byrne, Presiding Judge

/s/ Robin N. Piper, Judge

/s/ Mike Powell, Judge

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