[Cite as Weese v. Dalton, 2026-Ohio-537.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
WILLIAM WEESE, Case No. 25 CA 000012
Plaintiff - Appellant Opinion & Judgment Entry
-vs- Appeal from the Court of Common Pleas of Guernsey County, CHARLES W. DALTON III, et al., Case No. 21CV000242
Defendants - Appellees Judgment: Affirmed in Part, Reversed in Part, and Remanded
Date of Judgment: February 13, 2026
BEFORE: William B. Hoffman; Andrew J. King; David M. Gormley, Judges
APPEARANCES: Brian W. Benbow, Zanesville, Ohio, for Plaintiff-Appellant William Weese; Ryan A. McCarthy and Jesse W. Moses (Legal Aid of Southeast and Central Ohio), New Philadelphia, Ohio, for Defendant-Appellee Christina Dalton; Matthew C. Carlisle (Theisen Brock), Marietta, Ohio, for Defendant-Appellee Larry Lang.
Gormley, J.
{¶1} Plaintiff William Weese argues in this appeal that the trial court erred by
finding that the homestead exemption in R.C. 2329.66 bars Weese’s attempt to
foreclosure on a home owned by Christina Dalton. A forced sale of that home should
take place, Weese argues, with a portion of the sale proceeds being applied to satisfy a
judgment owed to him by Christina’s late husband Charles Dalton. Weese also claims
that Charles Dalton committed fraud in his dealings with Weese, and Weese faults the
trial court for not embracing that argument.
{¶2} In large part, we agree with the trial court. We find that Weese cannot raise
his fraud claim against Charles Dalton in this case, and so we affirm the trial court’s judgment rejecting that claim. We also agree with the trial court’s finding that Weese’s
lien against the Dalton property is valid, and we agree, too, with the trial court’s conclusion
that Christina Dalton can assert the statutory homestead exemption in response to
Weese’s foreclosure efforts. We part ways with the trial court, though, in its conclusion
that the entire value of Christina’s home is exempt from foreclosure, so we reverse on
that portion of the judgment and remand the case to the trial court for further proceedings
there.
The Key Facts
{¶3} We heard an appeal in this same case in 2023 after the trial court, in
response to Weese’s efforts then to foreclose on the Dalton property, granted summary
judgment in favor of defendant Christina Dalton. In that earlier appeal, we ruled in
Weese’s favor, finding that genuine factual disputes precluded summary judgment at that
point. See Weese v. Dalton, 2023-Ohio-3905, ¶ 38 (5th Dist.). The case then returned
to the trial court, which held a bench trial last year and found that Weese’s foreclosure
effort is blocked for now by the homestead exemption.
{¶4} The parties have been at odds in multiple courts for several years, and their
disputes focus not only on the property at issue in this foreclosure case but also on two
home-improvement projects gone awry.
{¶5} Defendant Charles Dalton, who passed away in January 2020, was a
homebuilder and home remodeler. Charles and his wife Christina Dalton — who is also
the mother of Charles Dalton’s children — each owned a one-half interest in a parcel of
real residential property in Guernsey County that they acquired together in 2008. According to her testimony at trial, Christina Dalton presently owns the home on that
property and resides in it with her daughter.
{¶6} In 2017, Charles had agreed to perform various home-renovation tasks for
William Weese at Weese’s home in Coshocton County. As that project progressed,
Weese felt that Charles’s performance was inadequate, and Weese soon thereafter filed
suit against Charles in Coshocton County. Included in Weese’s complaint against
Charles was a fraud claim and a request for punitive damages and attorney’s fees.
{¶7} After Weese’s Coshocton County complaint against Charles had been
properly served in 2017, Charles failed to answer. Weese then moved for a default
judgment. The trial judge in Coshocton County granted Weese’s request in March 2018,
though the trial judge’s order granting judgment in Weese’s favor rejected Weese’s fraud
allegation against Charles and simply awarded a monetary judgment for the actual
breach-of-contract damages sought by Weese, which totaled nearly $88,000.
{¶8} Weese did not appeal. Several months later, Weese filed a certificate of
judgment against Charles in Guernsey County, where Charles and Christina owned the
home in which Christina still lives
{¶9} Meanwhile, defendant Larry Lang sued Charles in Washington County,
alleging that Charles had failed to perform some promised home-improvement work at
Lang’s property in that county. The trial court in that case granted judgment in Lang’s
favor in January 2018 and awarded him more than $22,000 in damages against Charles.
{¶10} The following month, Lang filed a certificate of judgment against Charles in
Guernsey County. Then in May 2018 — several months before Weese filed his certificate of judgment in Guernsey County — Lang filed a foreclosure case against Charles and
others in that county.
{¶11} Lang obtained a judgment against Charles in Lang’s foreclosure case the
following year. Before any forced sale of the home took place, though, Charles raised
the R.C. 2329.66 homestead exemption as a reason why no sale should occur. The
Guernsey County trial court in that case agreed with Charles and found in October 2019
that his home could not at that point be sold at auction because of the homestead
exemption.
{¶12} Soon thereafter, Charles died without having signed a will.
{¶13} Next, Weese filed a foreclosure case — the case now before us — in
Guernsey County seeking to collect on his Coshocton County judgment against Charles.
Named as defendants in the case were Charles (who was already deceased at that point),
Christina, and Lang (presumably because Lang’s certificate of judgment against Charles
remained unsatisfied).
{¶14} At the bench trial in the case last year, the trial court determined that Weese
holds a valid judgment against Charles’s former one-half interest in the Guernsey County
home where Charles’s widow Christina still lives, but that home is exempt from
foreclosure, the trial court concluded, because of Ohio’s statutory homestead exemption
in R.C. 2329.66
{¶15} Weese now appeals.
The Doctrine of Claim Preclusion Bars Weese From Relitigating His Fraud Claim
{¶16} Weese’s first and third assignments of error focus on his view that Charles
Dalton committed fraud when performing home-improvement work for Weese in Coshocton County in 2017. That commission of fraud by Charles, according to Weese,
now bars Christina from asserting the homestead exemption in Weese’s Guernsey
County foreclosure case. In our view, Weese’s opportunity to pursue his fraud claim
came and went years ago.
{¶17} The doctrine of res judicata or claim preclusion provides that “[a] valid, final
judgment rendered upon the merits bars all subsequent actions based upon any claim
arising out of the transaction or occurrence that was the subject matter of the previous
action.” Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995), paragraph one of the
syllabus. Under the claim-preclusion doctrine, a final judgment between parties to
litigation is “conclusive as to all claims which were or might have been litigated in a first
lawsuit.” Rogers v. Whitehall, 25 Ohio St.3d 67, 69 (1986).
{¶18} Claim preclusion is marked by four key elements: “‘(1) a prior final, valid
decision on the merits by a court of competent jurisdiction; (2) a second action involving
the same parties, or their privies, as the first; (3) a second action raising claims that were
or could have been litigated in the first action; and (4) a second action arising out of the
transaction or occurrence that was the subject matter of the previous action.’” Lycan v.
Cleveland, 2022-Ohio-4676, ¶ 23, quoting Hapgood v. Warren, 127 F.3d 490, 493 (6th
Cir. 1997).
{¶19} The first required element — whether the trial court in Coshocton County in
2018 issued a final and valid decision on the merits of Weese’s fraud allegation against
Charles Dalton — is met in this case. Weese sued Charles in Coshocton County in 2017
for both breach of contract and fraud. The trial court in that case granted Weese’s motion
for a default judgment against Charles. In doing so, though, the trial judge used a proposed final judgment entry prepared by Weese’s counsel and — before signing it —
struck out with a pen some language in Weese’s proposed entry that alleged that “the
averments in the Complaint” were “true” and that Charles owed not just actual damages
of just under $88,000 for breach of contract but also “punitive damages” totaling
“$263,983.98” for Charles’s “intentional fraud” as well as “attorney’s fees” of “$2,500” for
Charles’s “bad faith.”
{¶20} That deliberate action on the part of the Coshocton County trial judge of
striking out all of those words and numbers indicates to us that the judge in that case did
not want that default judgment to be viewed as a finding that Weese had proven a fraud
claim, and in fact we view the final entry with its evident strikethroughs as an indication
that the court in Coshocton County had adjudicated Weese’s fraud allegation in a manner
adverse to Weese. And then, importantly, Weese did not appeal from that judgment.
{¶21} But can a default judgment be given preclusive effect, and can it be viewed
as a final decision on the merits of a claim? Multiple court rulings say that it can. See,
e.g., Duncan v. U.S. Bank, NA, 574 Fed. Appx. 599, 602 (6th Cir. 2014) (“Ohio law
recognizes that a default judgment is a valid and final judgment on the merits”); ”); Martel
v. Am. Family Ins. Co., 2012-Ohio-1486, ¶ 45 (5th Dist.) (“[e]ven in default, a trial court is
required to consider the issues[,] and therefore a determination on such is a decision on
the merits”); Stand Energy Corp. v. Ruyan, 2005-Ohio-4846, ¶ 11 (1st Dist.) (“A default
judgment is a valid and final judgment upon the merits, and it can be, therefore, a proper
bar to later claims for purposes of claim preclusion.”).
{¶22} A trial court that issues a bare-bones default-judgment entry that does not
mention the factual allegations raised in the complaint, though, cannot be presumed to have addressed the merits of the plaintiff’s claims. See Woods v. Progressive Direct Ins.
Co., 2018-Ohio-1867, ¶ 32 (6th Dist.) (explaining that “a default judgment generally does
not determine legal issues for purposes of res judicata,” but noting that “[a]n exception
can be made . . . where a default judgment contains express findings and legal
conclusions”); Zaperach v. Beaver, 6 Ohio App.3d 17, 19 (10th Dist. 1982) (“Only if there
is an express adjudication of an issue by the court in the original action, whether by default
or trial, can the judgment in that action be utilized as establishing a matter as between
the parties.”).
{¶23} The Sixth Circuit’s Bankruptcy Appellate Panel has put the matter succinctly
this way:
[T]he court being asked to give preclusive effect to a default judgment in a subsequent litigation must have some reliable way of knowing that the decision was made on the merits. The best evidence would be findings of fact and conclusions of law by the court entering the default judgment. These need not be entered in any special or formal way, but the default court must state what findings and conclusions, if any, it has reached in arriving at the judgment. Those findings and conclusions will have preclusive effect.
In re Sweeney, 276 B.R. 186, 194 (6th Cir. B.A.P. 2002).
{¶24} The Coshocton County trial court’s default-judgment order — containing, as
it does, not only the judge’s approval of Weese’s request for nearly $88,000 in actual
damages for Charles Dalton’s alleged breach of contract but also the judge’s
strikethroughs of four full paragraphs and one additional phrase tied to Weese’s fraud
claim, followed by the judge’s signature — reflects, we believe, that court’s findings and
conclusions about the issues in both the final approved language and in the stricken
provisions. {¶25} Had Weese’s proposed final judgment entry not contained the words
“intentional fraud,” “bad faith,” and the other language that we noted above, and had the
Coshocton Country trial judge simply signed a clean entry granting a default judgment to
Weese for his actual breach-of-contract damages without addressing the fraud claim, we
would be hesitant to give the default judgment in that case any preclusive effect on
Weese’s fraud allegation that he raises again in the case now before us. But the entry
as signed by the Coshocton County judge — whose strikethroughs of the words and
numbers that we quoted in paragraph 19 above are there for the world to see on two of
the three pages of Weese’s proposed judgment entry — does, we believe, reflect that
court’s findings and conclusions on Weese’s fraud claim.
{¶26} Weese, whose own counsel had drafted the proposed entry for the
Coshocton County judge and who no doubt very much wanted the judge to make express
findings in that case about Charles having committed what Weese’s proposed entry
described as “intentional fraud,” had a choice to make once he read the judge’s entry and
saw that the judge had rejected the fraud allegation in that case. His choice, of course,
was whether to appeal or not. He chose not to appeal, and we now view the Coshocton
County court’s default judgment as a final decision on the merits of Weese’s fraud claim.
{¶27} The second claim-preclusion element identified in the Supreme Court’s
four-part Lycan framework that we quoted above in paragraph 18 of this opinion focuses
on whether the two actions — that is, the earlier case and the current one — involved the
same parties or their privies. Weese is in fact the plaintiff in this case, just as he was in
the 2017 Coshocton County case that resulted in the default judgment against Charles
Dalton. Charles, in turn, was a named defendant in both cases, and Christina Dalton today stands as Charles’s privy in this case, arguing that Weese cannot raise a fraud
claim against her late husband now. And, of course, Christina received — under Ohio’s
statute of descent and distribution in R.C. 2105.06(B) — Charles’s one-half interest in the
property at issue in this foreclosure case. Seifert Technologies, Inc. v. CTI Engineers,
Inc., 2010-Ohio-5917, ¶ 35 (5th Dist.) (privity exists “when a person succeed[s] to the
interest of a party”).
{¶28} Under the third Lycan factor, we look to see whether the second action —
this case — raises claims that were or could have been litigated in the first action. In this
action seeking a sale of the Daltons’ home to satisfy his lien, Weese argues that Charles
Dalton’s fraud in 2017 should preclude Christina Dalton from asserting the homestead
exemption now. In the first action — the 2017 Coshocton County lawsuit — Weese
asserted a claim of fraud against Charles Dalton based on Charles’s performance of
home-renovation work that Charles had agreed to undertake at Weese’s home in
Coshocton County. In granting Weese’s motion for a default judgment against Charles,
the court in Coshocton County — as evidenced by that court’s strikethroughs on Weese’s
proposed judgment entry — appears to have addressed and rejected Weese’s fraud
claim. Because Weese is now attempting to relitigate his fraud claim in this case, we find
that the third element of claim preclusion is met.
{¶29} The last Lycan factor focuses on whether the second action arose out of the
same transaction or occurrence as the previous action. Weese in the 2017 Coshocton
County lawsuit sought recovery for damages he claims to have sustained from Charles
Dalton’s alleged failure to adequately perform construction work under the terms of a
contract, and Weese was awarded a default judgment against Charles in that case. Weese used that judgment to obtain a lien against Charles in Guernsey County. Now in
this lawsuit — the second action — Weese is attempting to foreclose on the Daltons’
property to satisfy the judgment lien from the first action. And Weese again in this case
raises arguments related to Charles Dalton’s alleged fraud in the performance of the
Coshocton County home-renovation contract. The two lawsuits, therefore, share the
same “common nucleus of operative facts,” and the final claim-preclusion element is met.
See U.S. Bank Trust, N.A. v. Watson, 2020-Ohio-3412, ¶ 23 (3d Dist.), quoting Grava, 73
Ohio St.3d at 382 (“For purposes of claim preclusion, a ‘transaction’ has been defined as
a ‘common nucleus of operative facts.’”).
{¶30} Because all of the claim-preclusion elements are met, we find that Weese
is barred from relitigating his fraud claim against Charles Dalton in this case. Weese had
the opportunity to litigate Charles’s alleged fraud in 2017 and 2018 when he filed his
lawsuit in Coshocton County. The trial judge in that case issued a valid and final judgment
on the merits, and in that decision, the court rejected Weese’s fraud claim. Weese could
have appealed that ruling, but he cannot relitigate the claim in this case. See Schooler v.
Combs, 2024-Ohio-2111, ¶ 13 (12th Dist.) (“Any issue that could have been raised on
direct appeal and was not is res judicata and is not subject to review in subsequent
proceedings.”).
{¶31} Weese’s first and third assignments of error are overruled.
Christina Dalton May Assert the Homestead Exemption, Though That Exemption Does Not Bar a Forced Sale of Her Home
{¶32} Weese argues in his second assignment of error that Christina Dalton is not
entitled to benefit from Ohio’s homestead exemption. {¶33} R.C. 2329.66(A)(1)(b) allows every person who is domiciled in this state to
hold exempt from a sale to satisfy a judgment “the person's interest, not to exceed one
hundred twenty-five thousand dollars, in one parcel or item of real or personal property
that the person or a dependent of the person uses as a residence.” (R.C. 2329.66(B)
directs the Ohio Judicial Conference to periodically adjust the exemptions in that statute
to reflect any increases in the consumer price index. According to a document posted on
the Judicial Conference’s website at https://www.ohiojudges.org/Resources/publications
(accessed Feb. 9, 2026), the $125,000 exemption amount for a parcel of real estate used
as a residence by a debtor is, when adjusted for inflation, now $182,625.)
{¶34} Christina testified at the trial that both she and her dependent daughter still
live in the house that Weese is hoping will be sold at auction to satisfy his judgment lien.
According to a real-estate appraisal filed with the trial court in November 2024, the real
estate has a value of $189,000. Weese’s Coshocton County judgment, in turn, totals
$87,994.66, plus annual interest of three percent.
{¶35} Nothing in the record before us casts doubt on the trial court’s finding that
Weese’s lien on the property is a valid one. We also see no error, either, in the trial court’s
conclusion that Christina Dalton can invoke the homestead exemption and so would be
entitled to receive the full R.C. 2329.66(A)(1)(b) exemption amount — $182,625 in today’s
dollars, minus any taxes or other debts that she might owe or that her late husband owed
to the State of Ohio or to any of its political subdivisions — if the home were sold to satisfy
Weese’s lien or any other lien on the property. See R.C. 2329.66(D)(2) (indicating that a
person’s “interest” in exempt property is determined “as of the date of an appraisal” or on
the date when a writ of execution is issued); R.C. 2329.66(D) and R.C. 2329.661(A)(4) (explaining that a person’s “interest” in property does not include the amount of any lien
on the property “for the payment of taxes, debts, or other obligations owed to this state or
any agency or political subdivision of this state”).
{¶36} Weese’s assignment of error asking us to find that Christina Dalton cannot
assert the R.C. 2329.66(A)(1)(b) homestead exemption is overruled.
{¶37} We believe that the trial court did err, though, when it found that the
homestead exemption bars Weese’s efforts to foreclose on the Dalton property. As we
explained above, Christina would be entitled to receive nearly all of the likely proceeds
from an auction of her $189,000 property, but we see nothing in the homestead-
exemption statute that bars Weese (or any other creditor) from pressing ahead with a
forced sale of the home to collect at least a portion of the damages owed by Charles
Dalton to his creditors.
{¶38} If a judgment of foreclosure were issued in this case, and if an auction then
failed to generate any bids exceeding the amount of Christina’s exempt interest in the
property, then no sale could go forward, in which case Christina could remain in the home.
Her exempt interest in the property does not exceed the home’s appraised value, though,
so Weese is entitled to pursue his foreclosure claim in the trial court if he wishes to do so.
A Word About Judge King’s Concurrence
{¶39} In Judge King’s concurring opinion that follows, he suggests that the trial
court on remand should consider whether Weese, by failing to present a claim against
the unopened estate of Charles Dalton for the amount of the judgment owed, has forfeited
his ability to foreclose on his lien. Mindful that this question was not addressed by the
trial court and has not been briefed by the parties here, we hesitate to express any definitive view about it. We mention the issue simply to note that we have serious doubts
about the merits of Judge King’s suggestion that Weese should have initiated some sort
of legal proceeding against Charles’s estate (or should have taken steps to see that the
local probate court appointed an estate administrator and then should have initiated a suit
against that administrator) for the judgment owed by Charles to Weese, and we would
not want the trial court on remand to assume that Judge King’s perspective is necessarily
the view of our court as a whole.
{¶40} Judge King points to R.C. 2117.06 — the provision that calls for any creditor
having a claim against an estate to present that claim within six months after the
decedent’s death — as support for what appears to be Judge King’s view that Weese has
lost any opportunity to pursue his foreclosure case because Weese did not present a
claim to Charles Dalton’s estate within that six-month window in the early months of 2020.
{¶41} We question, though, whether that provision applies, given that Charles
Dalton’s half-interest in the Dalton real estate passed not to his estate but instead, under
R.C. 2105.06(B), to his widow Christina. See Fonce v. Kabinier, 2023-Ohio-4027, ¶ 21
(11th Dist.) (“title to real property vests immediately upon death in the heirs”); Kirshner v.
Fannie Mae, 2012-Ohio-286, ¶ 15 (6th Dist.) (“lands of an intestate descend at once to
the intestate’s heirs”); Brandon v. Keaton, 90 Ohio App.3d 542, 544 (2d Dist. 1993) (“real
property descends to the heirs at the time of death”).
{¶42} By pursuing a foreclosure case against that real property, Dalton is not
seeking to initiate a claim against Charles’s estate but is instead seeking to enforce an
existing judgment against the property to which Weese had, under R.C. 2329.02, properly
attached a lien while Charles was still alive. See Deutsche Bank Natl. Trust Co. v. Vigue, 2017-Ohio-7037, ¶ 10 (10th Dist.) (“a claim in foreclosure is against the property”); id.
(“foreclosure is not an available remedy against an estate in personam
under R.C. 2117.06”); James B. Nutter & Co. v. Phillips, 2013-Ohio-184, ¶ 7 (2d Dist.)
(“Nutter was not required to name Phillips’s estate as a party because the estate had no
interest in the foreclosure action. The estate did not own Phillips’s former home, which
was transferred to Elizabeth Williams by survivorship and Nutter did not seek to hold the
estate liable for the debt under the note”); Weaver v. Bank of New York Mellon, 2012-
Ohio-4373, ¶ 22 (10th Dist.) (“a foreclosure claim is not characterized as a claim against
an estate, but rather as a claim in the nature of an in rem proceeding to reach the
mortgaged property to satisfy a debt”); id. (“foreclosure is a remedy independent of those
provided for in the probate court,” and “R.C. 2117.06 does not preclude” a creditor’s right
to bring “an action in foreclosure”).
{¶43} Indeed, the principal case on which Judge King relies does not appear to
support his view that Weese, by failing to present a claim against Charles Dalton’s estate,
is precluded from enforcing his lien through a foreclosure case against the Dalton
property. See Ambrose v. Byrne, 61 Ohio St. 146, 159–160 (1899) (“pleading the lien,
. . . in order that it might receive its proper share of the proceeds of the land on which it
was charged, is not the commencement of an action against the executor within the
purview of the statute which limits the time for bringing actions against executors and
administrators”).
{¶44} And the court in that case noted that a “lien holder has the right to expect
and may accordingly rely on the security of his lien as it existed at the time of his debtor’s
decease.” Id. at 157 (holding that a lienholder who sought to be paid from the proceeds of the sale of real property held by the executor of the debtor’s estate had no obligation
to present a claim against the estate in order to — in the words of syllabus paragraph two
of the court’s opinion — “share in the fund” generated by the sale of the real property to
which the debtor’s creditor had attached the lien). See also In re Jaber, 406 B.R. 756,
763 (Bankr.N.D.Ohio 2009) (a “lien remains attached to the real property until it is satisfied
or released”); Arena Produce Co. v. McMillan, 27 Ohio App.3d 384, 385 (10th Dist.) (“Her
allegation, that she presently owns the property, does not protect her against foreclosure
of the property by plaintiff, since the judgment liens existed on the property at the time
that she deeded the property. The fact that she does not owe plaintiff money is also
irrelevant, as the judgments are liens against the property only rather than being a charge
against her”).
{¶45} Even if one were to accept Judge King’s apparent view that Weese’s
judgment that he filed as a lien in Guernsey County before Charles Dalton’s death is (or
should have been) a claim against Charles’s estate rather than a claim against the real
property that Christina Dalton inherited, R.C. 2117.10 tell us this: “The failure of the holder
of a valid lien upon any of the assets of an estate to present the lienholder’s claim upon
the indebtedness secured by the lien, as provided in this chapter [i.e., as provided in the
provision in R.C. 2117.06 on which Judge King relies] shall not affect the lien if the same
is evidenced by a document admitted to public record.” See also Thevenin v. Day-Air
Credit Union, Inc., 2025-Ohio-1488, ¶ 20 (2d Dist.) (“R.C. 2117.10 provides an exception
to R.C. 2117.06’s presentment requirement . . . and serves to preserve valid liens – those
evidenced by public record . . . – without regard to whether they are timely presented”)
(citation and quotations omitted). {¶46} Given that Weese’s certificate of judgment against Charles from Coshocton
County was filed in the office of the county recorder in Guernsey County more than a year
before Charles died, R.C. 2117.10 appears to indicate that Weese’s failure to seek to
enforce his judgment through a probate-court proceeding does not — according to that
statute — “affect the lien” that he filed as a public record before Charles’s death.
{¶47} In short, notable statutory authority and various court decisions lead us to
question Judge King’s apparent view about Weese having lost his opportunity to foreclose
on the Dalton lien. If the trial court is asked by the parties to address that issue in the first
instance, the trial court should at least be aware that Judge King’s view is not the only
conceivable perspective on the question.
{¶48} In any event, we readily conclude that on the issue in fact addressed by the
trial court — which focused on the interplay between Weese’s foreclosure action and the
statutory homestead exemption — the trial court mistakenly concluded that the
homestead exemption is a bar to Weese’s effort to press ahead with the foreclosure case
now. Whether some other legal barrier — be it R.C. 2117.06 or something else — stands
in the way of Weese or other Dalton creditors is perhaps a question for another day.
The Current Status of Larry Lang’s Lien is Not at Issue in this Appeal
{¶49} In his final assignment of error, Weese argues that the trial court should
have invoked the claim-preclusion doctrine as a bar to Larry Lang’s judgment lien
because Lang did not appeal — in Lang’s foreclosure suit against Charles — a 2019
decision by the court in Guernsey County finding that the homestead exemption
prevented Lang from foreclosing on Charles’s home then. Weese seems to be arguing that Lang’s failure to appeal from that trial-court ruling bars Lang from ever again seeking
to enforce his lien.
{¶50} Notably, the trial court in the judgment at issue in this appeal said nothing
about Lang’s lien, about its enforceability, or about whose lien — Lang’s or Weese’s —
would take priority if the Dalton property were sold to satisfy one or both of those liens.
Whether Lang can enforce his lien in the future is not an issue properly before us in this
appeal. See Lycan v. Cleveland, 2016-Ohio-422, ¶ 21 (“an appellate court limits its review
to issues actually decided by the trial court in its judgment”).
{¶51} We decline to address Weese’s fourth assignment of error.
{¶52} For the reasons explained above, the judgment of the Court of Common
Pleas of Guernsey County is affirmed in part and reversed in part, and the case is
remanded to the trial court for further proceedings there. Costs are to be paid by
Appellant William Weese.
By: Gormley, J.;
Hoffman, P.J. concurs in the opinion and concurs separately, and
King, J. concurs separately.
Hoffman, P.J., concurring
{¶53} I concur generally in the majority’s analysis and fully concur in its disposition
of Appellant’s assignments of error.
{¶54} I write separately only to note I am not yet persuaded, as is the majority, “A
trial court that issues a bare-bones default-judgment entry that does not mention the
factual allegations raised in the complaint, though, cannot be presumed to have addressed the merits of the plaintiff’s claims.” (Majority Opinion at ¶ 22.) A failure to file
an answer to a complaint results in the factual allegations therein to be admitted. As
noted by the majority, even in default, a trial court is required [and I presume did in the
absence of evidence to the contrary] to consider the issues and therefore render a
determination on the merits. (Majority Opinion at ¶ 21.)
{¶55} Furthermore, unlike the majority, I would not be hesitant, even if the
Coshocton default judgment entry had failed to include the words “intentional fraud” or
“bad faith”, let alone crossed them out, to find the Coshocton judgment had preclusive
effect on Appellant’s fraud claim. I do so because the amount of the judgment awarded
therein, nearly $88,000.00, reflects the amount of damages claimed in Appellant’s breach
of contract claim. The failure to award any damages in excess thereof clearly indicated
the trial court determined Appellant’s punitive damages and request for attorney fees to
be without merit.
King, J. concurs separately,
{¶56} I join much of Judge Gormley's well-reasoned opinion for the court. Where
I depart with the opinion is regarding what should occur on remand. The majority opinion
concludes that Weese should be permitted to pursue the foreclosure. In my view, the trial
court should first consider whether the failure to present a claim to the estate now
prevents a foreclosure.
{¶57} In the prior case, Weese v. Dalton, 2023-Ohio-3905 (5th Dist.), this court
reviewed several legal issues related to foreclosure, the homestead exemption, and the
doctrine of lis pendens. The core issue in the prior case involved a different creditor who instituted a foreclosure proceeding that was never completed and failed to address
Weese, who was also a judgment creditor. In my view, the disposition of that prior case
naturally brings us to the conclusion Judge Gormley reaches for the court.
{¶58} But a related issue that swirled around our prior review and was never fully
addressed is what impact, if any, did the death of Dalton have on this case. In the prior
matter, we observed that Weese had attempted to include the Estate of Dalton as a party.
As it turned out, no estate was opened. Despite that, as part of her argument, appellee
argued Dalton's death effectively terminated the lien. In response, we cited to a Twelfth
District case, which in turn cited to a Civil War era case from the Supreme Court holding
that an "'heir takes the land subject to the payment of the ancestor's debts.'" Wead v.
Lutz, 2005-Ohio-2921, ¶ 26 (12th Dist.), quoting Gill v. Pinney's Administrator, 12 Ohio
St. 38, 46 (1861). For reasons below, I think R.C. 2117.06 (presentation and allowance
of creditor's claims) provides the rule we must apply.
{¶59} So what impact, if any, did the death of the judgment debtor have on this
case? The first principle we must consider is found in R.C. 2105.06 (statute of descent
and distribution), which provides when a person dies intestate, real property "shall
descend and pass in parcenary." It appears this language has been present in the laws
of the State of Ohio for some time, although it does not always seem that courts give it its
proper effect.
{¶60} Under this statute, the heirs do indeed take an interest in real property, and
it is correct to say that the heirs take the ancestor's interest as parceners. See Kirshner
v. Fannie Mae, 2012-Ohio-286, ¶ 15 (6th Dist.). But that right is not unqualified; the estate
maintains an interest insofar as it may need to pay debts by selling the real property. Id. I believe the Sixth District also correctly observed that the lienholders, along with the
parceners, have an interest in the real property, and that prior to any sale by the
administrator, they must receive notice. Id. What the Sixth District did not address is how
that rule interplays with R.C. 2117.06.
{¶61} R.C. 2117.06(A) sets forth the general rule on debts owed by the decedent:
"All creditors having claims against an estate, including claims arising out of contract, out
of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured,
liquidated or unliquidated, shall present their claims in one of the following manners: . . ."
In section (C), the General Assembly provided for what must happen if a claim is not
timely presented:
Except as provided in section 2117.061 of the Revised Code, a claim that
is not presented within six months after the death of the decedent shall be
forever barred as to all parties, including, but not limited to, devisees,
legatees, and distributees. No payment shall be made on the claim and no
action shall be maintained on the claim, except as otherwise provided in
sections 2117.37 to 2117.42 of the Revised Code with reference to
contingent claims.
{¶62} An apparent problem emerges at this point, what happens to a creditor's
claim if an estate is not opened within six months, which was the case here. The Supreme
Court answered this question thus: "Where one has a claim against an estate, it is
incumbent upon him, if no administrator has been appointed, to procure the appointment of an administrator against whom he can proceed." Wrinkle v. Trabert, 174 Ohio St. 233
(1963), paragraph two of the syllabus. See also R.C. 2113.06(C).
{¶63} Later, the Supreme Court explicitly stated the consequences to a creditor:
"If a creditor fails through indifference, carelessness, delay, or lack of diligence to identify
the administrator or executor, or to procure the appointment of one so that a claim can be
presented, the law should not come to the creditor's aid." Wilson v. Lawrence, 2017-Ohio-
1410, ¶ 17. The Supreme Court explained the policy behind R.C. 2117.06: "the
requirements of R.C. 2117.06 are not arbitrary ones that elevate form over substance.
Rather, they protect the vital interests of the estate and its beneficiaries, as well as the
estate's creditors, by ensuring the orderly, efficient, and legally proper administration of
the estate by 'a probate fiduciary, an officer of the Probate Court.'" (Citation omitted.) Id.
at ¶ 15. The following year, the Supreme Court followed Wilson in Embassy Healthcare
v. Bell, 2018-Ohio-4912, in barring a claim for unpaid necessaries not timely made to the
estate.
{¶64} The upshot of these cases is clear. If a creditor has any "right in action
against the decedent," then it must bring a claim to the estate or open an estate if one is
not opened. Id. at ¶ 32, citing Pierce v. Johnson, 136 Ohio St. 95, 99 (1939). In the matter
before us, Weese never sought to open an estate and thus the six month-claim period
ran.
{¶65} Applying the statute this way is supported by other evidence. In Ambrose v.
Byrne, 61 Ohio St. 146, 156-157 (1899), the Supreme Court held the following: The death of the debtor stops ordinary process, and administration
becomes the appropriate proceeding for the payment of his debts. And,
though there may be cases where judgment creditors who obtained a levy
on the land of the debtor before his death have been allowed to proceed
thereafter to sale and confirmation, yet that is an extraordinary remedy,
which may complicate administration and prejudice the rights of the heir or
devisee.
{¶66} In Ambrose, the Supreme Court read the statutes involving estate
administration and liens from judgments in pari materia. Id. at 156. The Court thus held
(Id. at 157):
The personal estate is nevertheless the primary fund for the satisfaction of
liens, as well as other debts of the deceased; the title of the personal
representative to the assets, whenever appointed, relates back to the time
of the death, and in contemplation of law the estate is in process of
administration from that time; the real estate, so far as may be necessary
to pay any lien upon it, or other debt, becomes assets in his hands, and, the
proper and usual method of subjecting it to the payment of the liens is by a
proceeding of the personal representative for that purpose.
{¶67} Thus, Ambrose tells us that a judgment debtor generally should not be
permitted to force a sale of real property outside of the estate because it could "complicate administration and prejudice the rights of the heir or devise." Id. But this does not leave
the judgment creditor without recourse; the General Assembly provided that a lienholder
would still be paid from any proceeds, according to the judgment creditor's relative priority.
Id.
{¶68} Ambrose stands for the proposition that a court should not usually permit a
judgment creditor to proceed to sale and confirmation against a deceased judgment
debtor.1 If we follow the analytic process laid out in Ambrose, we should read R.C. Ch.
2117 in pari materia with R.C. Ch. 2923. Thus, it appears a judgment debtor that fails to
timely bring a claim against the estate, will lose the right to execute against the lien absent
a showing of extraordinary circumstances.
{¶69} This conclusion is further supported by the fact that foreclosure proceedings
are quasi-in rem. Huntington Mortgage Co. v. Shanker, 92 Ohio App. 3d 144, 153 (8th
Dist. 1993); State ex rel. Baldine v. Davis, 1 Ohio App. 2d 117, 120 (7th Dist. 1964); see
also Moore v. Starks, 1 Ohio St. 369, 373-374 (1853) (holding that foreclosure proceeds
both in rem and in personam).
{¶70} Precedent indicates that a judgment debtor must be joined in a foreclosure
action to allow the debtor to contest the debt. Upon the death of a judgment debtor, only
the decedent's personal representative, i.e., the administrator of the estate, can stand in
the shoes of the judgment debtor. Thus, it would seem even in an extraordinary case
where a foreclosure on a certificate of judgment can proceed against a decedent's real
1 This court has previously allowed enforcement of a foreclosure due to a mortgage to
proceed without the decedent's personal representative. Bank of New York Mellon Trust. Co, N.A. v. Loudermilk, 2013-Ohio-2296, ¶ 51 (collecting cases). But the issue before us does not arise from a mortgage and thus is controlled by the precedent of our superior court. property, the estate is a necessary party for such a proceeding. And, as set forth above,
the judgment creditor (Weese) failed to open an estate and preserve his ability to
foreclose on his lien. Consequently, Weese was "forever barred" from seeking to execute
against his lien.
{¶71} Because this issue was not briefed below, I would remand to the trial court
with instructions to consider in the first instance the impact of how Ambrose and R.C.
2117.06 operate to preclude Weese from proceeding to sale and confirmation of the
property. In any event, I join the majority opinion because no legal principle prohibits this
legal issue from being raised on remand.