In re Estate of Robison , 2017 Ohio 8980 ( 2017 )

[Cite as In re Estate of Robison, 2017-Ohio-8980.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re Estate of Thomas W. Robison, Jr., :
No. 17AP-232
(Thomas W. Robison, III, : (Prob. No. 578505)
Appellant). : (REGULAR CALENDAR)
D E C I S I O N
Rendered on December 12, 2017
On brief: Bricker & Eckler LLP, Quintin F. Lindsmith, and
Ali I. Haque, for appellee. Argued: Ali I. Haque.
On brief: Thomas W. Robison, III, pro se.
Argued: Thomas W. Robison, III.
APPEAL from the Franklin County Court of Common Pleas,
Probate Division
KLATT, J.
{¶ 1} Appellant, Thomas W. Robison, III, appeals a judgment of the Franklin
County Court of Common Pleas, Probate Division, that adopted the magistrate's decision
granting certain exceptions to the estate inventory. Because we lack a final appealable
order, we dismiss this appeal.
{¶ 2} On April 4, 2016, Thomas W. Robison, Jr. ("decedent") died testate.
Appellant was appointed the executor of his father's estate. On August 4, 2016, appellant
filed the estate inventory. Appellee, Jenny Bee Choo Robison, the surviving spouse of
decedent, filed exceptions to the inventory. She contended that appellant (1) excluded a
number of vehicles owned by decedent from the inventory, (2) mischaracterized
decedent's ownership interest in real property located in Lancaster, Ohio, (3) excluded a
No. 17AP-232 2
lease between appellant and decedent for appellant's residential use of real property in
Pataskala, Ohio, (4) improperly included two vehicles subject to a surviving spouse's
election pursuant to R.C. 2106.18 in the inventory, and (5) misidentified the VIN or
vehicle description for five vehicles.
{¶ 3} After an unsuccessful attempt at mediation, a magistrate held a hearing on
appellee's exceptions to the inventory. Appellant did not appear although counsel for
appellant was present. At the hearing, appellee presented 38 certificates of title and 2 sets
of BMV search records using decedent's social security number that identified vehicles
owned by decedent that were not included in the inventory. Documents intended to
correct the inventory with regard to VIN numbers and vehicle descriptions were also
submitted. With regard to the exceptions involving real property, appellee introduced
deeds, certificates of transfer and/or title records for property located on Harlem Road in
Westerville, Ohio, in Lancaster, Ohio, and in Pataskala, Ohio. During the hearing,
appellee made an oral motion to exclude the Harlem Road property from the inventory
because the property was not owned by decedent at the time of his death.
{¶ 4} On December 14, 2016, the magistrate filed his decision. The exceptions
pertaining to vehicles owned by decedent but excluded from the inventory were granted.
The magistrate ordered that the inventory be amended to include the vehicles identified
in appellee's exhibits B and C. Also, the mistakes on the inventory regarding VIN
numbers and vehicle descriptions identified in exhibit F were ordered to be corrected.
The magistrate granted the exception with regard to the Lancaster property and ordered
that the inventory be amended to reflect that decedent had a 2/3-ownership interest in
the Lancaster property. The oral motion to exclude the Harlem Road property from the
inventory was granted.
{¶ 5} The magistrate denied the remaining exceptions. Because appellee testified
that there was no lease on the Pataskala property and that property had been bequeathed
to appellant in decedent's will, the magistrate concluded that appellant had the right to
reside on the property. The magistrate also indicated that because the inventory was
incomplete regarding vehicles owned by decedent, appellee would have the opportunity to
select up to two vehicles to exclude from the inventory once the inventory was amended.
No. 17AP-232 3
{¶ 6} In addition to resolving the exceptions to the inventory, the magistrate
ordered appellant to appear for a hearing on his removal as executor. The magistrate
extended the time period for appellee, as surviving spouse, to make elections under R.C.
Chapter 2106.
{¶ 7} On December 28, 2016, appellant objected to the magistrate's decision. He
argued that the Harlem Road property should not have been excluded from the inventory
and that the surviving spouse should not be permitted to select up to two vehicles
pursuant to R.C. 2106.18(A). No transcript of the November 29, 2016 hearing was filed
within 30 days of the filing of the objections as required by Civ.R. 53(D)(3)(b)(iii).
{¶ 8} Appellant filed a motion for leave to correct transcript filing. He alleged
that there was confusion as to the existence of a recording of the November 29, 2016
hearing. He mistakenly assumed that the digital recording filed on December 14, 2016,
the same day the magistrate's order was filed, was the recording that needed to be
transcribed. He realized his error when the transcript was filed. On February 24, 2017,
appellant filed the transcript from the November 29, 2017 hearing, without leave of court.
{¶ 9} On March 7, 2017, the trial court entered its judgment entry denying
appellant's objections and adopting the magistrate's decision. It noted that pursuant to
R.C. 2115.02, an executor is required to make and return a true inventory of real property
and tangible and intangible assets owned by a decedent at the time of death. The trial
court determined that the magistrate did not err in ordering that the inventory be
amended to include vehicles that appellant had excluded from the inventory because the
evidence showed that decedent owned these vehicles at the time of his death.
{¶ 10} The trial court determined that the magistrate properly denied the
exception to exclude two vehicles subject to the surviving spouse's election under R.C.
2106.18. Because the inventory was incomplete and the court did not know which
vehicles the surviving spouse would elect once the inventory was amended, it was not
possible to instruct the executor to remove those vehicles from the inventory. The trial
court stated that appellee would have the right to make her election pursuant to R.C.
2106.18 once the inventory was amended.
{¶ 11} The trial court also found that the magistrate did not err in ordering the
Harlem Road property excluded from the inventory. It rejected appellant's argument that
No. 17AP-232 4
decedent never intended to relinquish his ownership of the Harlem Road property and
that the deeds were meant to simply protect appellee's interest in the real estate. The
evidence showed that decedent executed and recorded a quit claim deed that transferred
all of his interest to appellee in 1991. The trial court also approved the magistrate's
decision to set a hearing for the possible removal of appellant as executor.
{¶ 12} The following week, the magistrate entered an order denying as moot
appellant's motion for leave to correct the transcript filing. The magistrate also removed
appellant as executor due to his neglect to make and return a true inventory of the real
property and assets owned by the estate, numerous pro se filings of documents of dubious
legal merit, and his attempts to block appellee's right to exercise elections under R.C.
Chapter 2106 as surviving spouse.
{¶ 13} On April 4, 2017, appellant filed his notice of appeal. He presents six
assignments of error:
First Assignment of Error
The Probate Court erred in finding Appellants request for leave to
correct transcript as moot when Civil Rule 53(D)(b)(iii) requires
permission to enter into the record whether filed or not filed.
Second Assignment of Error
The Probate Court erred in determining the Decedent conveyed total
ownership and title of his separate property via quitclaim deed in
1991 to spouse, when total ownership and title was not available for
him to convey. (March 7, Judgment Entry Adopting)
Third Assignment of Error
The Probate Court erred determining the 1991 quitclaim deed valid
and authentic when it represents a buyer/seller conveyance which
was impossible, moreover accepting this document as authentic by
individuals not qualified to determine its authenticity and the exact
ones representing this fraudulent conveyance. The deed is void
therefore any action utilizing it void as well. (March 7, Judgment
Entry Adopting)
Fourth Assignment of Error
The Probate Court errors when consistently, it will not address any
part of spouse failing to exercise her rights within the time
requirements contained in R.C. 2106, moreover fails to meet the
mandates in motions pursuant 2106.25. Failure to address subject
matter historically deems the accusation of the complaining part to
be correct. (March 7, Judgment Entry Adopting)
No. 17AP-232 5
Fifth Assignment of Error
The Probate Court erred when pursuant R.C. 2109.24 removed son
as executor of his father's estate predominately for inventory issues,
when it was well known and documented, that unrestraint, spouse
and spouse's counsel, to date and with malice have interfered and
made it nearly impossible to accomplish. (March 16, Magistrate
Decision)
Sixth Assignment of Error
The Probate Court erred in allowing spouse pursuant 2106.18 to elect
up to two (2) automobiles from Decedents estate when they are
bequeathed to others.
(Sic passim.)
{¶ 14} As a preliminary matter, we address appellee's argument that we should
dismiss this appeal for lack of jurisdiction for two reasons. First, two of the assignments
of error are not properly before this court because they relate to orders/decisions not
included in the notice of appeal. Second, the judgment that is referenced in the notice of
appeal is not a final appealable order.
{¶ 15} The purpose of a notice of appeal is to advise the parties that an appeal of a
particular claim is forthcoming. Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. No. 09AP-
510, 2009-Ohio-6852, ¶ 10, citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio
St.2d 257, 259-60 (1982). If the notice meets that purpose, an appellee cannot
demonstrate surprise or prejudice. App.R. 3(D) specifies that a notice of appeal "shall
designate the judgment, order or part thereof a[p]pealed from." This court has previously
held that " '[w]e have jurisdiction to review assignments of error stemming only from the
judgment subject of the notice of appeal.' " State v. Darks, 10th Dist. No. 12AP-578, 2013-
Ohio-176, ¶ 6, quoting State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315, ¶ 7.
Assignments of error that do not relate to the judgment that is the subject of the notice of
appeal are not properly before the court. Id. However, the Supreme Court of Ohio has
held that the timely filing of a notice of appeal is the only jurisdictional requirement for
perfecting a valid appeal. Transamerica Ins. Co. v. Nolan, 72 Ohio St. 3d 320 (1995),
syllabus. "When presented with other defects in the notice of appeal, a court of appeals is
vested with discretion to determine whether sanctions, including dismissal, are
warranted, and its decision will not be overturned absent an abuse of discretion." Id. at
322.
No. 17AP-232 6
{¶ 16} The judgment entry identified in the notice of appeal must be a final
appealable order. Article IV, Section 3(B)(2) of the Ohio Constitution establishes that
courts of appeals "have such jurisdiction as may be provided by law to review and affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district." To qualify as a final appealable order, an order must satisfy
the requirements of R.C. 2505.02. IBEW, Local Union No. 8 v. Vaughn Indus., L.L.C.,
116 Ohio St. 3d 335, 2007-Ohio-6439, ¶ 7. Pursuant to R.C. 2505.02(B)(1) and (2), an
order is final and appealable if it "affects a substantial right in an action that in effect
determines the action and prevents a judgment" or if it "affects a substantial right made in
a special proceeding or upon a summary application in an action after judgment."
{¶ 17} If the appealed judgment does not constitute a final appealable order, an
appellate court lacks jurisdiction to review it. Gehm v. Timberline Post & Frame, 112
Ohio St. 3d 514, 2007-Ohio-607, ¶ 14. Consequently, in the absence of a final appealable
order, an appellate court must dismiss the appeal. Browder v. Shea, 10th Dist. No. 04AP-
1217, 2005-Ohio-4782, ¶ 11.
{¶ 18} Appellant's assignments of error involve three separate entries. The first
assignment of error concerns the "Magistrate Order Dismissing Motion for Leave to
Correct Transcript Filing as Moot" filed March 16, 2017. The fifth assignment of error
involves the "Magistrate Decision Removing Executor Pursuant to R.C. 2109.24" also filed
March 16, 2017. The remaining assignments of error discuss the "Judgment Entry
Overruling Objections and Adopting the Magistrate's Decision Entered December 14,
2016" filed March 7, 2017.
{¶ 19} The notice of appeal filed on April 4, 2017 states:
Notice is hereby given that the Estate of Thomas W. Robison
Jr., deceased, represented by Thomas W. Robison III, Son,
Heir, appeals to the Court of Appeals of Franklin County,
Ohio, Tenth Appellate District from the Order of The Probate
Court of Franklin County, Ohio overruling objections and
Adopting The Magistrate’s Decision in this action entered on
March 07, 2017. This Appeal involves substantial rights of
Heirs and is pursuant The Ohio Rules of Appellate Procedure,
Rule 4(B)(5).
{¶ 20} The orders that are the subject of the first and fifth assignments of error
were filed on March 16, 2017, which is after the March 7, 2017 judgment that is the subject
No. 17AP-232 7
of the notice of appeal. It is axiomatic that an appellee would not be advised that an
appellant is appealing from an order issued after the judgment identified in the notice of
appeal. Unless an appellant takes steps to amend the notice of appeal pursuant to App.R.
3(F), assignments of error involving entries that postdate the judgment identified in the
notice of appeal would not be properly before a court. Here, appellant failed to amend his
notice of appeal or file a separate notice of appeal that identified either of the March 16,
2017 entries as a judgment being appealed.1
{¶ 21} In addition, the first and fifth assignments of error are not properly before
this court because they are an attempt to appeal from a magistrate's order or decision. A
magistrate's order or decision is not directly appealable to this court. See Bond v. Bond,
10th Dist. No. 98AP-356 (Dec. 15, 1998); Walker v. Estate of Walker, 7th Dist. No. 00 CA
208 (Oct. 15, 2001).
{¶ 22} Civ.R. 53(D)(4)(a) explicitly states that a magistrate's decision is not
effective until adopted by the court. A party also waives the right to assign as error on
appeal any issue of law or fact that the party fails to object to unless it constitutes plain
error. Civ.R. 54(D)(3)(b)(iv). Thus, a magistrate's decision is an interlocutory order, not
a final appealable order. Bennett v. Estate of Hollabaugh, 10th Dist. No. 02AP-1170,
2003-Ohio-4759, ¶ 31. Accordingly, we lack jurisdiction to consider appellant's first and
fifth assignments of error, and we dismiss those assignments of error.
{¶ 23} The second, third, fourth, and sixth assignments of error arise from the
probate court's March 7, 2017 judgment entry overruling appellant's objections to the
magistrate's decision on the exceptions to the inventory. Appellee argues that the
March 7, 2017 order is not a final appealable order. We agree.
{¶ 24} To qualify as a final appealable order under R.C. 2505.02(A)(2), the order
must affect a substantial right in a special proceeding. Pursuant to R.C. 2505.02(A)(1), a
"[s]ubstantial right" is "a right that the United States Constitution, the Ohio Constitution,
a statute, the common law, or a rule of procedure entitles a person to enforce or protect."
An order "affects" a substantial right when that order is " 'perceived to be one which, if not
immediately appealable, would foreclose appropriate relief in the future.' " Dunham v.
1 We note that appellant filed a second notice of appeal on April 16, 2017, that was assigned case No. 17AP-
257. We dismissed that case because the notice of appeal was identical to the notice of appeal filed in this
case.
No. 17AP-232 8
Ervin, 10th Dist. No. 17AP-79, 2017-Ohio-7616, ¶ 13, quoting Bell v. Mt. Sinai Med. Ctr.,
67 Ohio St. 3d 60, 63 (1993).
{¶ 25} This court has previously noted that appellate districts are split on the issue
of whether probate estate administration proceedings are "special proceedings" under
R.C. 2505.02(A)(2). Fougere v. Estate of Fougere, 10th Dist. No. 11AP-791, 2012-Ohio-
4830, ¶ 20. Although in Fougere we declined to determine whether probate estate
administration is a special proceeding, id. at ¶ 23, this court has held that "[a] probate
court's order approving an inventory which does not include certain items appellant
claims are assets of an estate is an order affecting a substantial right made in a special
proceeding. Thus, under R.C. 2505.02, the order is final and appealable." Sheets v.
Antes, 14 Ohio App. 3d 278 (10th Dist.1984), paragraph two of the syllabus. However, a
judgment entry that overrules exceptions but fails to approve a final inventory is not a
final appealable order. In re Estate of Persing, 11th Dist. No. 2009-T-0120, 2010-Ohio-
2687, ¶ 11 ("an order denying exceptions to an inventory is only a final, appealable order if
it also approves the inventory"); In re Estate of Smith, 4th Dist. No. 06CA2915, 2007-
Ohio-3030, ¶ 11.
{¶ 26} Applying this rule to the instant case, we find the probate court's order does
not constitute a final appealable order. The judgment clearly contemplates further action
in the probate court before approval or settlement of the final account. A number of
vehicles are to be added to the inventory. The location and actual existence of some of the
vehicles was unknown at the time of the entry due to the nature of decedent's
business/hobby of buying, selling, and trading vehicles. The probate court extended
appellee's right to exercise her elections as surviving spouse under R.C. Chapter 2106
precisely because the final inventory was not yet known. The judgment entry does not
approve or settle an account. The future filing of an amended inventory is clearly
contemplated. Once that happens, the parties might take further action with regard to
the inventory. As such, future relief on the objections would not be foreclosed to
appellant. We, therefore, dismiss the second, third, fourth, and sixth assignments of error
for lack of a final appealable order.
No. 17AP-232 9
{¶ 27} For the foregoing reasons, appellant's appeal is dismissed for lack of
jurisdiction.
Appeal dismissed.
DORRIAN and HORTON, JJ., concur.
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