In re Estate of Bringman , 2017 Ohio 7083 ( 2017 )

[Cite as In re Estate of Bringman, 2017-Ohio-7083.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. Patricia A. Delaney, P J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
THE ESTATE OF BARBARA Case No. 17 CA 1
JEAN BRINGMAN, DECEASED OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No. 2016-
1217
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 2, 2017
APPEARANCES:
For Appellant For Appellee
WILLIAM PAUL BRINGMAN NO APPEARANCE
7100 North High Street
Suite 101
Worthington, Ohio 43085-2316
Knox County, Case No. 17 CA 1 2
Wise, John, J.
{¶1} Appellant William Paul Bringman appeals the decision of the Knox County
Court of Common Pleas, Probate Division, which found it had jurisdiction over his ex-
wife’s estate. The relevant facts leading to this appeal are as follows.
{¶2} On September 13, 2016, Appellee Steven McGann, a Columbus attorney,
filed an application in the Knox County Probate Court (hereinafter “trial court”) requesting
authority to administer the estate of Barbara J. Bringman, decedent. According to said
application, Ms. Bringman, at the time of her death on or about March 23, 2016, had been
“living temporarily at Lyn Village Apartments *** Reynoldsburg, OH 43068 but was a Knox
County resident up to that point.” The application also stated that to the best of Attorney
McGann’s knowledge, Ms. Bringman did not leave a will.
{¶3} A hearing on Attorney McGann’s application was thereupon scheduled for
a hearing at the Knox County Probate Court on October 26, 2016 at 10:00 AM.
{¶4} However, about one hour before the aforesaid hearing, Appellant William
Paul Bringman, a Worthington attorney and the decedent’s ex-husband, filed a written
objection and motion to deny the appointment of Attorney McGann, essentially asserting
that Knox County lacked jurisdiction over the estate. Attached to the motion was a copy
of an entry from the Franklin County Probate Court, dated October 24, 2016, naming
Attorney Bringman (executor) as the fiduciary for the estate of Barbara J. Bringman under
Franklin County Probate Case No. 581473.1 Accordingly, the trial court set the matter for
1 Documentation in our present Knox County appellate record indicates the Franklin
County Probate Court vacated appellant’s appointment as executor on November 4,
2016. See Docket Item No. 10. Subsequent activity in Franklin County has not been
provided in the record.
Knox County, Case No. 17 CA 1 3
a new hearing on December 1, 2016 at the Knox County Probate Court. The hearing went
forward as scheduled.
{¶5} On January 23, 2017, the trial court issued a judgment entry ordering that
the administration of Ms. Bringman’s estate would proceed in Knox County under case
number 2016-1217. The court also therein requested that the Franklin County Probate
Court forward certified copies of Ms. Bringman’s will and the entry admitting the will. The
court also stated in the entry that the will would be administered as a foreign document.
Finally, the matter of Attorney McGann’s original application to be appointed as
administrator of the estate was set for a hearing on February 23, 2017.
{¶6} On February 17, 2017, Attorney Bringman filed a notice of appeal. He herein
raises the following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED IN RULING THAT JURISDICTION TO
ADMINISTER THE ESTATE OF BARBARA JEAN BRINGMAN, DECEASED, LIES WITH
THE KNOX COUNTY PROBATE COURT.”
I.
{¶8} In his sole Assignment of Error, appellant contends the trial court erred in
holding that jurisdiction over the estate in question lies in Knox County. We disagree.
{¶9} Appellant herein relies in large measure on R.C. 2107.11(A)(1), which
states that “[a] will shall be admitted to probate *** [i]n the county in this state in which the
testator was domiciled at the time of the testator's death.”
{¶10} However, we note appellant is attempting to appeal a judgment entry which
established probate court jurisdiction (rejecting appellant’s claim that Franklin County was
the proper forum) and merely set the issues of administration or execution of the estate
Knox County, Case No. 17 CA 1 4
for further hearing in Knox County. We find the trial court’s said judgment entry was in the
nature of a denial of a motion to dismiss for lack of jurisdiction.
{¶11} As a general rule, a judgment that leaves issues unresolved and
contemplates that further action must be taken is not a final appealable order. See
Moscarello v. Moscarello, 5th Dist. Stark No. 2014CA00181, 2015–Ohio–654, ¶ 11,
quoting Rice v. Lewis, 4th Dist. Scioto No. 11CA3451, 2012–Ohio–2588, ¶ 14 (additional
citations omitted). We have also observed: “A party claiming that a trial court lacked
jurisdiction can raise that same argument in an appeal from an adverse final judgment.”
Vizzo v. Morris, 5th Dist. Fairfield No. 2011–CA–52, 2012-Ohio-2141, ¶ 42. For example,
in the realm of family law, the denial of a parent’s motion to dismiss the other parent’s
motion for child custody for want of subject matter jurisdiction is not a final, appealable
order. Id., citing Holm v. Smilowitz, 83 Ohio App.3d 757, 765, 615 N.E.2d 1047 (1992),
f.n. 7.
{¶12} Appellant’s brief in the case sub judice sheds no light on the question of
final appealability, and appellee has not filed a response brief in this appeal. However,
assuming arguendo the judgment entry before us is a final appealable order, we note the
following law set forth in R.C. 2107.33(D): “If after executing a will, a testator is divorced,
*** any nomination in the will of the former spouse as executor, trustee, or guardian shall
be revoked unless the will expressly provides otherwise.”
{¶13} We herein take judicial notice of our October 27, 2016 opinion in Bringman
v. Bringman, 5th Dist. Knox No. 16CA01, 2016–Ohio–7514, in which we concluded that
appellant’s April 17, 2014 divorce from Ms. Bringman was final. Id. at ¶ 29. Therefore,
based on the documentation before us, it is not evident that appellant has a viable
Knox County, Case No. 17 CA 1 5
fiduciary interest in the administration or execution of Ms. Bringman’s estate.
Furthermore, we have frequently recognized that an appellant, in order to secure reversal
of a judgment, must generally show that a recited error was prejudicial to him. See Tate
v. Tate, 5th Dist. Richland No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing Ames v. All
American Truck & Trailer Service, 6th Dist. Lucas No. L–89–295, 1991 WL 16509.
Specifically, “[i]t is well settled in Ohio that an executor cannot appeal a judgment which
does not prejudice him in his representative capacity.” Fried v. Fried, 65 Ohio App.3d 61,
63, 582 N.E.2d 1038 (8th Dist.1989), citing Boulger v. Evans (1978), 54 Ohio St.2d 371,
375, 377 N.E.2d 753. Thus, even if appellant could in some manner legally establish his
position as the executor, he presently makes no attempt to explain why his potential duties
in that role would be prejudiced by maintaining the estate proceedings in Knox County.
{¶14} Accordingly, under the circumstances presented in the case sub judice, we
find no demonstration of prejudicial error warranting reversal.
{¶15} Appellant’s sole Assignment of Error is overruled.
{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Probate Division, Knox County, Ohio, is affirmed.
By: Wise, John, J.
Delaney, P. J., and
Baldwin, J., concur.
JWW/d 0712