Coddington v. Zurawka

[Cite as Coddington v. Zurawka, 2026-Ohio-1301.]


                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 THOMAS CODDINGTON                                 :
                                                   :   C.A. No. 30687
       Appellant                                   :
                                                   :   Trial Court Case No. 2024 CV 04478
 v.                                                :
                                                   :   (Civil Appeal from Common Pleas
 MARY ZURAWKA TRUSTEE ET AL.                       :   Court)
                                                   :
       Appellees                                   :   FINAL JUDGMENT ENTRY &
                                                   :   OPINION

                                              ...........

        Pursuant to the opinion of this court rendered on April 10, 2026, the judgment of the

trial court is reversed and remanded for further proceedings consistent with the opinion.

        Costs to be paid as stated in App.R. 24.

        Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.


                                      For the court,




                                      RONALD C. LEWIS, PRESIDING JUDGE

EPLEY, J., and HUFFMAN, J., concur.
                                    OPINION
                             MONTGOMERY C.A. No. 30687


WILLIAM R. MILLER, Attorney for Appellant
TERRY W. POSEY, JR., Attorney for Appellee


LEWIS, P.J.

        {¶ 1} Plaintiff-appellant Thomas Coddington (“Thomas”) appeals from an order of the

Montgomery County Common Pleas Court that dismissed his complaint. For the following

reasons, we reverse the judgment of the trial court and remand the case for further

proceedings consistent with this opinion.

   I.      Facts and Course of Proceedings

        {¶ 2} On June 3, 2023, Earl L. Coddington, Thomas’s father, died. On August 20,

2024, Thomas filed a complaint in the Montgomery County Common Pleas Court against

Defendants Samuel Coddington, Theresea Averbeck, Irma L. Holt, and Mary Zurawka

(collectively, “Defendants”). Thomas named Zurawka individually and in her capacities as

the executor of the Estate of Earl L. Coddington, the successor trustee of the Coddington

Living Trust Dated 07/28/2017, and the successor trustee of the Samuel Coddington

Irrevocable Trust. Thomas alleged that he and the four individuals named as defendants

in his complaint are the five children of Earl L. Coddington. Thomas further alleged that

Zurawka is the named alternate executor in the last will and testament of Earl L. Coddington,

which was “presented to the Mongtomery County Probate Court on November 17, 2023 in

Case Number 23-EST-2357.” Complaint, ¶ 5.

        {¶ 3} In his complaint, Thomas sought the return of his equipment, which had been

stored on his father’s property. The primary basis for Thomas’s claims against his siblings

and the executor and trustee was provided in paragraphs six through eight of the complaint:


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       6.     In the early 1980’s, Earl L. Coddington (“Earl”) lost his job at

Chart Tech Tool and obtained employment at Dynapoint Tool where Plaintiff

was the plant manager.          During his employment at Dynapoint, Earl

approached Plaintiff to join him in starting a machining business. Plaintiff and

Earl began working together as a sole proprietorship in approximately 1989

using the name ET Machine Company. The business and all equipment were

located in a building located on Earl’s property.

       7.     The initial capital contribution for the business was provided by

Earl and equipment was purchased; Plaintiff supplied his experience in the

industry as well as his existing customer base. In 1992, due to a large tax

debt owed by Earl and concern about the future of the business continuing as

a sole proprietorship, Plaintiff insisted that the business be incorporated and

engaged both legal and accounting professionals to assist with such. The

business was incorporated as ET Machine and Tool Corporation with Earl and

Plaintiff being equal shareholders and Plaintiff taking the officer position of

President/Secretary and Earl as Vice-President/Treasurer. Earl’s wife, Mary

Coddington worked for the company as the bookkeeper.

       8.     Per agreement between Earl and Plaintiff, Earl was paid back his

initial capital investment plus additional funds representing a buy-out for his

one-half of the company as the long-term plan was for Earl to retire and Plaintiff

continue the business. By 1996, Earl had been paid in full for his initial capital

contribution and for his one-half interest. Earl advised that he wanted to

cease working and Plaintiff was not able to maintain the business by himself.

The parties agreed that the equipment, that was now solely owned by Plaintiff


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         by virtue of having bought out Earl’s share of the business, would remain on

         the premises so that Earl could use the equipment if he wished. Earl agreed

         to maintain the equipment, acknowledged that the equipment belonged to

         Plaintiff and that no storage or rental fees would be required.

         {¶ 4} Thomas alleged that when his father died, he talked to Zurawka about removing

or selling the equipment, but Zurawka “advised that the equipment belonged solely to Earl

and would be handled through his Estate and/or Trust(s).”           Id. at ¶ 10.   According to

Thomas, “[Zurawka], in her capacity as Trustee and/or Executor, is wrongfully withholding

from Plaintiff and/or has converted the equipment, supplies and remaining assets/inventory

of ET Machine and Tool Corporation.” Id. at ¶ 12.

         {¶ 5} Defendants filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6).

According to the motion, the allegations in Thomas’s complaint were “(1) predicated on an

agreement which is not incorporated into the Complaint, and if oral, barred by the statute of

frauds under R.C. 1335.05; or (2) barred by the timely failure to assert a claim in the estate

of Samuel Coddington.” Thomas did not file a response to Defendants’ motion to dismiss.

         {¶ 6} On October 24, 2025, the trial court granted Defendants’ motion to dismiss

because Thomas failed to present his claims to Earl L. Coddington’s Estate within six months

of Earl’s death as is required by R.C. 2117.06. The trial court did not address Defendants’

statute of frauds argument. Thomas filed a timely notice of appeal.

   II.      The Trial Court Erred by Granting Defendants’ Motion to Dismiss Based on

            R.C. 2117.06

         {¶ 7} Thomas’s two assignments of error are as follows:

                THE COMMON PLEAS COURT ERRORED BY DISMISSING

         PLAINTIFF’S COMPLAINT AGAINST DEFENDANTS WHO ARE NOT A


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       PROBATE ESTATE PURSUANT TO OHIO REVISED CODE SECTION

       2117.06.

              THE COMMON PLEAS COURT ERRORED BY DETERMINING THAT

       THE PLAINTIFF ONLY ALLEGED A CAUSE OF ACTION FOR BREACH OF

       CONTRACT OR AGREEMENT AGAINST THE DECEDENT AND NOT A

       CAUSE OF ACTION FOR REPLEVIN OR CONVERSION AGAINST ALL

       SEVEN DEFENDANTS.

       {¶ 8} “A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which

relief can be granted ‘is [a] procedural [motion that] tests the sufficiency of [a] complaint.’”

Doe v. Greenville City Schools, 2021-Ohio-2127, ¶ 8 (2d Dist.), quoting State ex rel. Hanson

v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). When reviewing the

sufficiency of a complaint, this court is mindful that Civ.R. 8(A) provides for notice pleading,

which requires a “short and plain statement of the claim showing that the party is entitled to

relief” and “a demand for judgment for the relief to which the party claims to be entitled.”

The court must accept all the factual allegations in the complaint as true and construe all

reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d

190, 192 (1988). The Ohio Supreme Court has cautioned that a trial court should not grant

a motion to dismiss “‘unless it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.’” O’Brien v. Univ. Community

Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975), quoting Conley v. Gibson, 355 U.S. 41,

45 (1957). For example, if a court can determine conclusively from the face of the complaint

that an action is time-barred, the court may dismiss the complaint pursuant to

Civ.R. 12(B)(6). Doe v. Archdiocese of Cincinnati, 2006-Ohio-2625, ¶ 11.




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       {¶ 9} When reviewing a trial court’s judgment granting a Civ.R. 12(B)(6) motion to

dismiss, “‘an appellate court must independently review the complaint to determine whether

the dismissal is appropriate.’” Boyd v. Archdiocese of Cincinnati, 2015-Ohio-1394, ¶ 13

(2d Dist.), quoting Ament v. Reassure Am. Life Ins. Co., 2009-Ohio-36, ¶ 60 (8th Dist.).

Therefore, we review de novo the trial court’s decision granting Defendants’ motion to

dismiss. Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5, citing Cincinnati v. Beretta

U.S.A. Corp., 2002-Ohio-2480, ¶ 4-5.

       {¶ 10} The trial court relied on R.C. 2117.06 in granting Defendants’ motion to

dismiss. That statute provides that “[a]ll 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 manners provided for in R.C. 2117.06(A)(1) and (2).            Further, “[e]xcept as

provided in section 2117.061 of the Revised Code, all claims shall be presented within six

months after the death of the decedent, whether or not the estate is released from

administration or an executor or administrator is appointed during that six-month period.”

R.C. 2117.06(B). “[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.” Id.

       {¶ 11} The trial court granted Defendants’ motion to dismiss because “Plaintiff’s

claims arise out of an alleged agreement between him and Earl. Thus, Plaintiff’s cause of

action is simply a claim for the return of property and/or money due based upon an alleged

agreement formed with his father Earl, who is now deceased. Following Earl’s death, all of

his contractual obligations became a debt of the estate.” Decision (Oct. 24, 2025), p. 3-4.

The trial court concluded “that it is clear Plaintiff’s claim(s) were required to be presented to


                                               6
Earl’s estate within six months of his death on June 3, 2023, in accordance with

R.C. 2117.06. However, rather than present his claim(s) to the estate, Plaintiff filed his

claim(s) in this case on August 20, 2024, more than 12 months after Earl’s death.” Id. at 4.

       {¶ 12} Thomas argues that the trial court erred in dismissing his complaint because

he did not allege the personal property at issue was estate property subject to R.C. 2117.06.

Rather, Thomas alleged that he was the owner of the property. Defendants argue that

Thomas must comply with R.C. 2117.06 because his claim arises from an obligation incurred

by Earl during his lifetime.   According to Defendants, “Thomas cannot allege wrongful

possession without relying on the alleged agreement with Earl that allowed the equipment

to remain on Earl’s property indefinitely.” Appellees’ Brief, p. 6.

       {¶ 13} After reviewing the record before us and the applicable law, we conclude that

the trial court’s judgment must be reversed based on the Ohio Supreme Court’s holding in

Lewis v. Steinreich, 1995-Ohio-133. There, Edwin Rippe died testate in 1986. Prior to his

death, Rippe had opened two brokerage accounts for the purpose of managing and trading

various securities.   The brokerage accounts named Rippe and his only child, Karen

Steinreich, as joint tenants with right of survivorship. After Rippe died, the executor of

Rippe’s estate distributed assets from the brokerage account to Steinreich. Id. at ¶ 1.

       {¶ 14} In March 1988, Evelyn Lewis, Rippe’s widow, was appointed as administrator

ad litem of Rippe’s estate. As administrator ad litem, Lewis had authority to institute legal

actions against Steinreich to recover the assets of the brokerage accounts on behalf of

Rippe’s estate. Before Lewis instituted an action, however, Steinreich died testate. Id. at

¶ 2.

       {¶ 15} In April 1990, Lewis, in her capacity as administrator ad litem for Rippe’s

estate, filed a declaratory action against Steinreich’s estate seeking to regain possession or


                                               7
control of the brokerage accounts or their proceeds as belonging to Rippe’s estate. The

probate court found that at the time Rippe placed the assets in the joint and survivorship

brokerage accounts, he had no intent to give Steinreich a present interest in the assets.

Therefore, the probate court concluded that the property belonged to Rippe’s estate. Id. at

¶ 3. The executor of Steinreich’s estate appealed to the Ninth District Court of Appeals.

Id. at ¶ 4.

       {¶ 16} The appeals court reversed the probate court’s declaratory judgment on an

entirely different basis, holding that Lewis failed to present her claim to Steinreich’s estate

within the time allowed by R.C. 2117.06, which at that time was three months after the

appointment of the executor or administrator.      Lewis, 1995-Ohio-133, at ¶ 4.       Rippe’s

estate appealed to the Ohio Supreme Court. Id. at ¶ 5.

       {¶ 17} The Ohio Supreme Court reversed the decision of the Ninth District Court of

Appeals and held that “the presentment requirements of R.C. 2117.06, the creditor’s claim

statute, cannot be applied to bar the claim of an owner who seeks to recover the assets

wrongfully held in an estate.” Id. at ¶ 10. The Court explained the basis for its holding:

       We find that Lewis’s ownership claim is not a creditor’s claim within the

       meaning of R.C. 2117.06. The presentment requirements of R.C. 2117.06

       apply only to those claims which may be allowed as debts payable out of the

       assets of an estate. . . . Lewis, however, is not claiming an interest in any

       part of the assets rightfully found in Steinreich’s estate. Instead, she claims

       a right on behalf of Rippe’s estate to recover assets she alleges are wrongfully

       held in Steinreich’s estate.    “‘The true owner of [property] traced to the

       possession of another has the right to have [the property] restored, not as a

       debt due and owing, but because it is his property wrongfully withheld from


                                              8
       him.’” . . . When property held by the decedent at the time of her death is

       actually owned by another from whom possession is wrongfully withheld, such

       property is not property belonging to the estate and the party claiming

       ownership is not a creditor of the estate. . . . “[E]xecutors have no right or

       power to administer assets which do not belong to [an] estate.” . . . As Lewis

       asserts that the brokerage account assets do not belong to Steinreich’s estate,

       she has no debt to claim against the estate’s assets and, therefore, did not

       have to present her claim to Steinreich’s estate in accordance with

       R.C. 2117.06.

Id. at ¶ 8.

       {¶ 18} Thomas alleged that his equipment was being wrongfully withheld by one or

more of the Defendants. Complaint, ¶ 12-13. The record before us does not establish

whether the equipment at issue in the complaint was included as an asset in the Estate of

Earl L. Coddington or was included as an asset in one of the two trusts referenced in the

complaint.    Further, it is unclear who currently possesses the equipment identified in

Thomas’s complaint. Presumably, these questions will be answered during the discovery

process. In this appeal, however, we are tasked solely with reviewing the trial court’s

decision to dismiss the case pursuant to R.C. 2117.06. For purposes of surviving a motion

to dismiss pursuant to Civ.R. 12(B)(6), Thomas’s allegations that his property was being

wrongfully withheld are sufficient to take his claim outside of the statutory bar set forth in

R.C. 2117.06(B). Therefore, the trial court should not have dismissed the case pursuant to

R.C. 2117.06. Steinreich at syllabus; Poling v. Poling, 2003-Ohio-5601, ¶ 35 (4th Dist.)

(holding that plaintiff’s claim of ownership of personal property was not an executor’s claim

and was not barred by the presentment requirements); Sullivan v. Morgan, 1991 WL 115872,


                                              9
*4 (10th Dist. June 20, 1991) (“[A]ppellee was not a claimant within the meaning of

R.C. 2117.06, since he was not claiming an interest in property which was part of the estate

but in property which remained legally his and never became subject to appellant’s

administration.”).

          {¶ 19} Finally, Defendants argue that the trial court should have dismissed the

complaint pursuant to Civ.R. 12(B)(6) based on the statute of frauds. Defendants raised

this argument in their motion to dismiss as an alternative reason to grant their motion. But

the trial court granted the motion to dismiss based solely on Defendants’ R.C. 2117.06

argument and did not address Defendants’ statute of frauds argument. The trial court

should rule on that issue in the first instance. Therefore, we will not address Defendants’

statute of frauds argument in this appeal. See Hornbeck v. Hornbeck, 2019-Ohio-2035,

¶ 38 (2d Dist.) (“However, since this is a decision to be made in the first instance by the trial

court, we will simply reverse the trial court on this point, and remand for further proceedings

consistent with our opinion.”).

          {¶ 20} The assignments of error are sustained.

   III.      Conclusion

          {¶ 21} Having sustained the assignments of error, we reverse the judgment of the

trial court and remand the cause for further proceedings consistent with this opinion.

                                        .............

EPLEY, J., and HUFFMAN, J., concur.




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