DeChellis v. Estate of DeChellis , 2020 Ohio 5111 ( 2020 )

[Cite as DeChellis v. Estate of DeChellis, 2020-Ohio-5111.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PATTY DeCHELLIS, et al., : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellants : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
ESTATE OF PHILIP JOHN DeCHELLIS, : Case No. 2020CA00025
David L. Dingwell, Administrator WWA :
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Probate Division,
Case No. 228240
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 29, 2020
APPEARANCES:
For Plaintiff-Appellants For Defendant-Appellee
CRAIG T. CONLEY DAVID L. DINGWELL
220 Market Avenue South Tzangas Plakas Mannos Ltd
Suite 604 220 Market Avenue South
Canton, Ohio 44702 8th Floor
Stark County, Case No. «Case_No» 2
Baldwin, J.
{¶1} Appellants, Patricia DeChellis and Daniel DeChellis, appeal the decision of
the Stark County Court of Common Pleas, Probate Division, denying their motions to
vacate that court's order of October 10, 2018. Appellee is the Estate of Phillip John
DeChellis.
STATEMENT OF FACTS AND THE CASE
{¶2} Patricia and Daniel DeChellis unsuccessfully appealed the October 10,
2018 decision of the trial court finding them “****guilty of having concealed, embezzled,
conveyed away, or having been in possession of monies owned by Philip John DeChellis
and now belonging to his Estate***” and ordering judgment "in favor of Ann Heffner,
Executrix of the Estate of Philip John DeChellis, deceased, in the amount of $750,000.00
for monies concealed, embezzled, conveyed away, or in possession of Patricia DeChellis
and Daniel DeChellis****.” (Findings of Fact and Conclusions of Law and Judgment Entry,
Oct 10, 2018, p.7) Appellant's assignments of error in that appeal included the assertion
that the judgment was against the manifest weight of the evidence arguing that appellee
therein provided "no direct evidence that [the $750,000.00 in cash] ever actually existed,
or if existent, that Appellants had taken same; i.e., she proffered neither any documentary
evidence nor any eyewitness testimony for those allegations." (Appellant's Brief, p.12,
Estate of DeChellis v. DeChellis, 5th Dist. No. 2018CA00153, 2019-Ohio-3078, 140
N.E.3d 1193).
{¶3} We denied appellants’ four assignments of error and affirmed the decision
of the trial court. We also denied appellants subsequent requests for reconsideration and
enbanc review on November 8, 2019.
Stark County, Case No. «Case_No» 3
{¶4} On August 5, 2019, Appellants filed a motion to vacate the October 10, 2018
order finding them guilty of concealing assets and issuing a judgment against them in the
amount of $750,000.00, the same order that was the subject of the appeal in Estate of
DeChellis v. DeChellis, 5th Dist. No. 2018CA00153, 2019-Ohio-3078, 140 N.E.3d 1193.
The appellants filed a second motion to vacate the same order on August 9, 2019. The
appellants argued that the trial court lacked subject matter jurisdiction in the first motion
and, in the second motion, that a witness’s alleged perjurious testimony supported a
finding of "mistake, inadvertance, surprise or excusable neglect” that should lead to a
vacation of the judgment under Civ.R. 60(B). Appellee opposed the motions and
appellants filed supplemental memoranda in support of their motion.
{¶5} The trial court denied the motions to vacate on January 21, 2020 and
appellant filed a notice of appeal, submitting one assignment of error:
{¶6} “I. THE TRIAL COURT ERRED IN DENYING
RESPONDENTS'/APPELLANTS' MOTIONS TO VACATE ITS OCTOBER 10, 2018
JUDGMENT ENTRY.”
STANDARD OF REVIEW
{¶7} Appellants have appealed the trial court's denial of two motions to vacate,
one claiming the trial court had no jurisdiction and the second alleging Civ.R. 60(B)(1),
(3) or (5) supports vacating the judgment against them. Both motions seek the same
result, but we apply a different standard of review to each.
STANDARD OF REVIEW FOR RULE 60(B) RELIEF
{¶8} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the
movant must demonstrate that: (1) the party has a meritorious defense to present if relief
Stark County, Case No. «Case_No» 4
is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time, and where the
grounds of relief are Civ. R. 60(B)(1), (2), or (3), not more than one year after the
judgment. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47 Ohio
St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. The GTE Automatic factors
are “independent and conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986),
Fairfield App. No. 12–CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied
in order to gain relief.” Id. at 5. Our standard of review of a court's decision as to whether
to grant a Civ. R. 60(B) motion is abuse of discretion. Id. at 148.
STANDARD OF REVIEW FOR MOTION TO VACATE FOR LACK OF JURISDICTION
{¶9} Appellant's first motion to vacate implicated the trial court's subject-matter
jurisdiction, and determining whether a trial court has subject matter jurisdiction is
reviewed de novo. Wells Fargo Bank, N.A. v. Elliot, 5th Dist. Delaware No. 13 CAE 03
0012, 2013–Ohio–3690 as quoted in Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014
AP 03 0012, 2015-Ohio-781, ¶9. See also Klosterman v. Turnkey-Ohio, LLC, 182 Ohio
App.3d 515, 2009-Ohio-2508, ¶19 (10th Dist.) (We review questions of subject-matter
jurisdiction de novo.)
ANALYSIS
MOTION TO VACATE FOR SUBJECT MATTER JURISDICTION
{¶10} Appellants' contend the trial court erred because it had no subject matter
jurisdiction to consider the concealment action and therefor it had no authority to render
judgment in the case. The testimony of witnesses, according to appellants, showed that
"the Trial Court clearly lacked O.R.C. 2109.50 jurisdiction over the subject $750,000.00
Stark County, Case No. «Case_No» 5
of Decedent's cash because same was not an Estate asset.” Appellants provide authority
for their contention that the funds at issue were the subject of an inter vivos gift, not a
probate asset, and that the probate court lacked jurisdiction to determine interest in the
asset. Despite presenting the argument as an attack on jurisdiction, appellants' argument
is no more than an assertion that the trial court erred in finding that the funds at issue
were an estate asset. Realizing that such an argument would be barred by res judicata,
appellants use the shield of subject matter jurisdiction, an unwaivable prerequisite to
judicial action, to preserve their argument. We find their argument regarding jurisdiction
has no merit.
Subject-matter jurisdiction is the power of a court to entertain and
adjudicate a particular class of cases. *** A court's subject-matter
jurisdiction is determined without regard to the rights of the individual parties
involved in a particular case. *** A court's jurisdiction over a particular case
refers to the court's authority to proceed or rule on a case that is within the
court's subject-matter jurisdiction. *** This latter jurisdictional category
involves consideration of the rights of the parties. If a court possesses
subject-matter jurisdiction, any error in the invocation or exercise of
jurisdiction over a particular case causes a judgment to be voidable rather
than void. ***
Bank of Am., N.A. v. Kuchta, 141 Ohio St. 3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19
(2014).
The general subject matter jurisdiction of Ohio courts of common
pleas is defined entirely by statute pursuant to Section 4(B), Article IV of the
Stark County, Case No. «Case_No» 6
Ohio Constitution, which states that ‘[t]he courts of common pleas and
divisions thereof shall have such original jurisdiction over all justiciable
matters *** as may be provided by law.’ *** However, the General Assembly
has allocated certain subject matters to the exclusive original jurisdiction of
specified divisions of the courts of common pleas.
State v. Wilson, 73 Ohio St. 3d 40, 42, 1995-Ohio-217, 652 N.E.2d 196 (1995).
{¶11} The Ohio Constitution and statutes invest the Probate Court with the power
and jurisdiction to adjudicate a matter relating to the title to and status of personal
property, where, during the administration of a decedent's estate in such court, the estate
files petition asking for a declaration that certain personal property is an asset of the estate
and must be administered as such, as against the claim that such property was
transferred as an inter vivos gift. (Ohio Constitution, Article III, Section 5; R.C.
2101.24(B)(1)(c)(4)). Thus, a probate court has jurisdiction over an action brought
pursuant to R.C. 2109.50 to recover funds allegedly passed to a third party by inter vivos
transaction when the validity of the underlying transfer is challenged. Tewksbury v.
Tewksbury, 4th Dist. Pike No. 07CA771, 2008-Ohio-4600, 2008 WL 4174822 ¶ 19
quoting Rudloff v. Efstathiadis, 11th Dist. Trumbull No. 2002–T–119, 2003-Ohio-6686,
2003 WL 22931382, ¶ 8. “[A]lthough property that passed by inter vivos gift or transaction
is not property of the estate retrievable by an executor under R.C. 2109.50, the probate
court can determine that the inter vivos gift or transaction was invalid, in which case the
property is an asset of the estate retrievable by R.C. 2109.50.” Harrison v. Faseyitan, 159
Ohio App. 3d 325, 2004-Ohio-6808, 823 N.E.2d 925 (7th Dist.), ¶ 36 as quoted in State v.
Harmon, 5th Dist. No. 2016AP080042, 2017-Ohio-320, 72 N.E.3d 704, ¶ 20.
Stark County, Case No. «Case_No» 7
{¶12} We find that appellants' insistence that the $750,000.00 at issue was an
inter vivos gift has no impact on the probate court's jurisdiction to hear appellee's claim
under R.C. 2109.50, but can serve a means to "rebut and overcome the prima facie case”
of concealment by presenting clear and convincing evidence of “a present intention on
the part of the donor to make a gift” to the suspected person. (Citations omitted.) Lance
v. Boldman, 9th Dist. No. 16AP0032, 2018-Ohio-44, 93 N.E.3d 1013, ¶¶ 36-37. We note
that appellants chose not to make that argument at the trial of this matter or in their direct
appeal.
{¶13} The trial court concluded the appellants concealed an asset of the estate,
the $750,000.00 in cash. Whether that decision was error was a matter for a direct appeal
that has no impact on the trial court's subject matter jurisdiction. Appellants filed a direct
appeal and did not include any assertion that they had argued in the trial court the funds
were an inter vivos gift, so that alleged error is waived and cannot be resurrected.
{¶14} We find appellants' argument that the trial court lacked subject matter
jurisdiction without merit.
RULE 60(B) MOTION
{¶15} Appellants filed a second motion to vacate the trial court's judgment
claiming they were entitled to relief pursuant to subsections 1, 3 or 5 of Civ.R. 60(B).
Appellants must show the following to be eligible for relief under this rule:
(1) the party has a meritorious defense to present if relief is granted;
(2) the party is entitled to relief under one of the grounds stated in Civ.
R. 60(B)(1) through (5); and
Stark County, Case No. «Case_No» 8
(3) the motion is made within a reasonable time, and where the grounds
of relief are Civ. R. 60(B)(1), (2), or (3), not more than one year after the
judgment.
GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St. 2d 146,
351 N.E.2d 113, paragraph two of the syllabus.
{¶16} The GTE Automatic factors are “independent and in the conjunctive, not the
disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–CA–86, *2 “[F]ailing
to meet one is fatal, for all three must be satisfied in order to gain relief***” Id.
{¶17} Appellants’ argument fails to describe a meritorious defense to present if
relief is granted. They refer to the record and offer argument in support of their assertion
that they are entitled to relief, but never claim they have a meritorious defense to present,
thus the assignment of error should be denied. If we could distill any defense from the
appellants’ arguments, we would find the defense barred by res judicata.
{¶18} Appellants describe facts that, through a strained analysis, might be viewed
as an attempt to assert a defense. Throughout their motion to vacate and their briefs,
appellants offer argument that the court “relied upon Heffner's false representations to it,
without which it would not have found Appellant's guilty of concealment." (Appellants'
Brief, p. 6). Appellant Daniel Patrick claims that he would inherit a portion of the concealed
funds, that a portion belonged to his grandmother which should reduce the amount of any
judgment and that Heffner's trial testimony should have been rejected for lack of
credibility.
{¶19} If, arguendo, we would accept appellant's assertions as defenses, we would
find they are barred by res judicata as the facts were known and the defenses could have
Stark County, Case No. «Case_No» 9
been raised during trial or on direct appeal, but were not. State v. Scruggs, Franklin App.
No. 02AP-621, 2003-Ohio-2019. “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any defense or claimed
lack of due process that was raised or could have been raised by the defendant at the
trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
State v. Perry (1967), 10 Ohio St. 2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
Therefore, any issues that appellant raised or could have raised in his direct appeal are
barred by res judicata in other proceedings. State v. Reynolds, 79 Ohio St. 3d 158, 161,
679 N.E.2d 1131 (1997).
{¶20} Appellants began arguing that Heffner’s testimony lacked credibility during
the initial trial phase of this case, prior to the first appeal. Appellants requested additional
time to acquire a transcript of the testimony from a related case for use in this matter and
offered it as a foundation for their argument that Heffner was untrustworthy, may have
committed perjury and that her testimony must be disregarded. (Motion for Conditional
Continuance of Trial, Aug. 8, 2018, Docket 105). Further, appellants knew or had good
reason to know of the argument that appellant Daniel DeChellis should not be charged
with the concealment of an amount equivalent to his share of the concealed funds and
the record reflects that appellants were aware of the possibility that $16,000.00 of the
concealed funds might be claimed by a relative other than the parties to this case.
Appellants had access to this knowledge, chose not to present it to the court, and instead
pursued an argument that the record lacked evidence sufficient to support the trial court’s
finding and three other unrelated assignments of error in their original direct appeal. They
Stark County, Case No. «Case_No» 10
cannot now present these arguments through an appeal of a motion to vacate because
“[a] party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal”7 and res
judicata bars their efforts. Doe v. Trumbull Cty. Children Services Bd., 28 Ohio St. 3d 128,
502 N.E.2d 605 (1986) paragraph 2 of the syllabus.
{¶21} We find that appellants have failed to assert that they would have a
meritorious defense if the motion was granted, have failed to set forth operative facts
supporting a meritorious defense and, to the extent the facts alleged could be interpreted
to state a meritorious defense, those defenses would be barred by res judicata.
{¶22} Appellants’ assignment of error is denied and the judgment of the Stark
County Court of Common Pleas, Probate Division is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.