In re Estate of Parks ( 2024 )

[Cite as In re Estate of Parks, 2024-Ohio-1841.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN RE: :
THE ESTATE OF LAWRENCE R. : CASE NO. CA2023-10-081
PARKS
: OPINION
5/13/2024
:
:
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. PE 20221301
Pro Seniors, Inc., and Tracye T. Hill and Miriam H. Sheline, for appellant.
Rolf Goffman Martin Land LLP, and David S. Brown and Michael S. Kearns, for appellee.
S. POWELL, P.J.
{¶ 1} Toni J. Parks appeals the decision and entry of the Warren County Probate
Court granting Chesterwood Nursing Care, Ltd.'s ("Chesterwood") motion for relief from
judgment. For the reasons outlined below, we affirm the probate court.
Factual and Procedural Background
{¶ 2} Lawrence Parks became a resident of Chesterwood in January of 2021. He
remained there until October 22, 2021. It is unclear from the record why exactly Lawrence
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left the facility. However, Lawrence was later hospitalized after a fall and passed away
on November 17, 2021. He was survived by Toni Parks, his spouse. At the time of his
death, Lawrence owed Chesterwood an outstanding balance of $72,882.74 for the
services and care provided by Chesterwood. Unaware that Lawrence had passed away,
Chesterwood commenced suit against Lawrence in the Warren County Common Pleas
Court to recover the amount owed. After learning of Lawrence's death, Chesterwood
dismissed the suit.
{¶ 3} As of April 28, 2022, over five months after Lawrence's death, no estate had
been opened for him. On that day, attorney W. Cory Phillips filed an application in the
Warren County Probate Court to be appointed special administrator of Lawrence's estate.
The application provided that it was made for the purpose of allowing creditors' claims to
be timely presented and to preserve Chesterwood's claim against Lawrence's estate.
Without a hearing or notice to Mrs. Parks, the probate court appointed Phillips special
administrator of Lawrence's estate in April of 2022.
{¶ 4} Phillips subsequently filed a notice that Chesterwood had presented to him
its claim against Lawrence's estate in the sum of $72,222.74. Phillips also discovered
that Lawrence's real property was not an estate asset and had transferred to Mrs. Parks
upon Lawrence's death. Aware of no other estate assets, Phillips filed a motion to
terminate the estate. The estate was closed, and Phillips was discharged as special
administrator in September of 2022.
{¶ 5} Two days prior to the probate court's order closing the estate, Chesterwood
filed a separate claim in the general division of the Warren County Common Pleas Court
against Mrs. Parks for the sum Lawrence had owed Chesterwood.
{¶ 6} In January of 2023, over one year after Lawrence's death and four months
after the court's closure of his estate, Mrs. Parks filed a motion in probate court to reopen
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Lawrence's estate and to be appointed executor of the estate under Lawrence's will. The
motion also requested the probate court vacate, as void ab initio,1 Phillips' appointment
as special administrator because Mrs. Parks was not provided notice of Phillip's
application for appointment as special administrator and no hearing was held on the
matter. Mrs. Parks' motion to reopen the estate was served on Phillips via email in
November of 2022 and in January of 2023.
{¶ 7} Mrs. Parks motion to reopen the estate and the forms that accompanied it
contained limited reference of the action pending against her in the general division
related to Lawrence's estate. Neither Chesterwood nor Phillips responded to Mrs. Parks'
motion. On January 30, 2023, the probate court granted Mrs. Parks' motion to reopen
the estate and held that Phillips' prior appointment as special administrator was revoked
and vacated as void ab initio (the "January Order").
{¶ 8} After the estate was reopened, no action was taken until June of 2023 when
the probate court issued a citation for a past-due inventory of the estate. Mrs. Parks filed
an inventory showing $580 of assets in Lawrence's estate. In September of 2023, the
court also issued a citation for a past-due account.
{¶ 9} That same month, nearly eight months after the January Order,
Chesterwood filed a motion in the probate court for relief from the January Order.
Chesterwood claimed that it only became aware the probate court had ruled Phillip's
appointment as special administrator was void ab initio from Mrs. Parks' motion for
summary judgment filed in the related action pending in the general division.
Chesterwood argued that the trial court should grant relief because vacation of Phillips
appointment as special administrator would also vacate Chesterwood's timely
1. Void means, "To render of no validity or effect * * *." VOID, Black's Law Dictionary (11th ed. 2019). Ab
initio means, "From the beginning * * *." AB INITIO, Black's Law Dictionary (11th ed. 2019).
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presentment of its claim against Lawrence's estate and prevent Chesterwood from
pursuing its claim against Mrs. Parks in the general division.
{¶ 10} On October 3, 2023, the probate court granted Chesterwood's motion for
relief from judgment (the "October Order"). The October Order stated the court's prior
entry revoking Phillips' appointment was made without an awareness of the action
pending in the general division and that "vacation of Phillips' appointment ab initio would
nullify Chesterwood's claim" against Lawrence's estate. Mrs. Parks now appeals that
order.
{¶ 11} Mrs. Parks raises two assignments of error that can be addressed together.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE PROBATE COURT ABUSED ITS DISCRETION AND ERRED WHEN
IT VACATED ITS PRIOR ORDER AND GRANTED APPELLEE'S MOTION FOR
RELIEF PROM JUDGMNENT.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE PROBATE COURT ERRED IN REINSTATING ITS ENTRY
APPOINTING PHILLIPS SPECIAL ADMINISTRATOR AS SAID ENTRY IS VOID AB
INITIO.
{¶ 16} Mrs. Parks argues on appeal that Phillips' appointment as special
administrator was void ab initio and thus Chesterwood lacks a meritorious claim or
defense entitling it to relief under Civ.R. 60(B). Mrs. Parks also asserts Chesterwood had
notice of her motion to declare Phillips' appointment void ab initio and that Chesterwood
failed to file its motion within a reasonable amount of time. Thus, according to Mrs. Parks,
Chesterwood cannot demonstrate extraordinary circumstances entitling it to relief under
Civ.R. 60(B).
{¶ 17} Mrs. Park further contends that Phillips' appointment as special
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administrator of Lawrence's estate was void ab initio because notice of his application to
be appointed was never sent out and a hearing on the matter was not held. Mrs. Parks
claims this violated her due process rights. As a result, she claims the trial court had no
ability to reinstate Phillips' appointment.
{¶ 18} Within these assignments of error, Ms. Parks also argues that
Chesterwood's Civ.R. 60(B) motion was an inappropriate substitute for a direct appeal of
the trial court's order declaring Phillips' appointment void ab initio. Before we can reach
the merits of Mrs. Park's appeal, we must discuss this issue.
{¶ 19} Under Civ.R. 60(B)(5), the trial court may, "relieve a party or his legal
representative from a final judgment, order or proceeding for * * * any * * * reason justifying
relief from the judgment." (emphasis added). Yet, it is axiomatic that "'[a] Civ.R. 60(B)
motion for relief from judgment cannot be used as a substitute for a timely appeal or as a
means to extend the time for perfecting an appeal from the original judgment."' State ex
rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d 205, 206 (2000), quoting Key v.
Mitchell, 81 Ohio St.3d 89, 90-91 (1998); State ex rel. Durkin v. Ungaro, 39 Ohio St.3d
191, 192 (1988). Therefore, "a Civ.R. 60(B) motion may not be based on arguments that
could have been raised on direct appeal." Wells Fargo Bank, N.A. v. Smith, 10th Dist.
Franklin No. 09AP-559, 2009-Ohio-6576, ¶ 11.
{¶ 20} Upon reviewing the record, a question develops over whether the January
Order and October Order are final judgments. Should the January Order be final and
appealable, Chesterwood may be out of time to appeal. However, should the October
Order be the final and appealable order, then we have jurisdiction to consider the merits
of this case.
{¶ 21} Orders in a "special proceeding" which affect a "substantial right" are final
and appealable. R.C. 2505.02(B)(2). Under R.C. 2505.02(A)(2), "'Special proceeding'
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means an action or proceeding that is specially created by statute * * *." In turn, a
"substantial 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."
R.C. 2505.02(A)(1). "A court order which deprives a person of a remedy which he would
otherwise possess deprives that person of a substantial right." Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86, 88 (1989).
{¶ 22} We have previously observed that "[g]enerally, matters related to estate
administration are treated as special proceedings." In re Estate of Lilley, 12th Dist.
Warren No. CA99-07-083, 1999 WL 1239470, *2 (Dec. 20, 1999); In re Estate of Perry,
12th Dist. Butler No. CA2007-03-061, 2008-Ohio-351, ¶ 46. Additionally, appointment of
an administrator, executor, and special administrator as well as the preservation of claims
by a special administrator are specifically created by R.C. Chapter 2113, making them
special proceedings. R.C. 2113.06; R.C. 2113.15; R.C. 2113.16; R.C. 2113.17.
{¶ 23} We have also held, "[t]he intent of the trial court is crucial in determining
whether an entry was meant to be a final judgment in the matter." State v. Crosby, 12th
Dist. Clermont No. CA2009-01-001, 2009-Ohio-4936, ¶ 16, citing Ohio Assn. of Pub.
School Emp., AFSCME/AFL-CIO, Chapter 762 v. New Miami Local School Dist. Bd. of
Edn., 31 Ohio App.3d 163, 164 (12th Dist.1986); Millies v. Millies, 47 Ohio St.2d 43, 44,
(1976). "This intent can be ascertained by looking to the circumstances surrounding the
issuance of the entry * * * [A] document is likely to be considered a judgment entry where
it contains a 'sufficiently definitive formal statement' indicating the court's intent to
conclude the litigation by such entry." Id., quoting Peters v. Arbaugh, 50 Ohio App.2d 30,
32 (10th Dist.1976), Millies, 47 Ohio St. 2d at 45. Ultimately, a final order must "determine
an action and prevent a judgment." Chef Italiano Corp., 44 Ohio St.3d at 88.
{¶ 24} Upon review, it becomes apparent that the January Order was not a final
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and appealable order. As an initial matter, we note that while Phillips' appointment was
declared void ab initio, the estate was reopened at the behest of Mrs. Parks. At that point,
issues regarding the estate, including preparation of inventories and accounts for the
estate, still needed to be addressed and reviewed by the court. Indeed, the court had to
later order Mrs. Parks to prepare them.
{¶ 25} In addition, there is no indication on the January Order or within the record
that the January Order was served on the parties pursuant to Civ.R. 58(B) and App.R.
4(A). App.R. 4(A) "contains a tolling provision that applies in civil matters when a
judgment has not been properly served on a party according to Civ.R. 58(B)." In re
Anderson, 92 Ohio St.3d 63, 67 (2001). If notice of a final judgment is never served on
the parties, as Civ.R. 58 requires, then the time to appeal never begins to accrue. Id.{¶ 26} Moreover, while recognizing that a claim had been presented by
Chesterwood to Phillips, the January Order did not expressly state what, if any,
implications it had on that claim. The January Order only reopened Lawrence's estate
and declared Phillips' appointment as special administrator void ab initio. It was not until
the October Order that the court recognized that "vacation of Phillips' appointment ab
initio would effectively nullify Chesterwood's claim" against Lawrence's estate. Thus, the
October Order expressly discussed the status of Chesterwood's claim and determined
that it was timely presented and could be litigated. Stated differently, the October order
found Mrs. Parks could no longer argue Chesterwood's claim against Lawrence's estate
was time barred. It was thus the October Order, not the January Order, that signaled an
intent by the court to conclude litigation regarding the timeliness of Chesterwood's claim
and prevent Mrs. Parks from arguing it was time barred.
{¶ 27} Given our conclusions above, it becomes apparent that because the
January Order was not a final judgment, Civ.R. 60(B) was not an appropriate mechanism
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to challenge it. Instead, the trial court should have construed the motion as a motion to
reconsider. Under Civ.R. 54(B), an order or decision " which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties * * * is subject to revision
at any time" before a final judgment. Therefore, "[a] trial court has plenary power in ruling
on a motion for reconsideration, and we will not reverse such rulings absent an abuse of
discretion." Mindlin v. Zell, 10th Dist. Franklin No. 11AP-983, 2012-Ohio-3543, ¶ 23; see
also Todd Dev. Co. v. Morgan, 12th Dist. Warren No. CA2005, 2006-Ohio-4825, ¶ 52,
rev'd on other grounds, 116 Ohio St.3d 461, 2008-Ohio-87; Carlson v. Cincinnati, 1st Dist.
Hamilton No. C-230115, 2024-Ohio-591, ¶ 39. "An abuse of discretion connotes more
than an error of law or judgment; it implies the trial court acted unreasonably, arbitrarily,
or unconscionably." Bowman v. Leisz, 12th Dist. Warren No. CA2014-02-029, 2014-
Ohio-4763, ¶ 17, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983).
{¶ 28} We find no abuse of discretion by the probate court because Chesterwood
timely and properly presented its claim to Lawrence's estate. Under R.C. 2117.06(B), "all
claims shall be presented [against an estate] 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." A surviving spouse and next of
kin have priority to be administrator of a deceased's estate to receive such claims. R.C.
2113.06(A)(1). Before becoming an executor or administrator, one must make an
application with the court and provide information on the decedent's spouse and next of
kin. R.C. 2113.07. The statute further requires that "those persons shall be served notice
for the purpose of ascertaining whether they desire to take or renounce administration."
Id. If the surviving spouse or next of kin "fail to take or renounce administration voluntarily,
the matter shall be set for hearing and notice given * * *." R.C. 2113.06. However, if
those with priority to be an administrator "neglect to apply within a reasonable time for the
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administration of the estate, their right to priority shall be lost, and the court shall commit
the administration to some suitable person * * * [and] [t]he person granted administration
may be a creditor of the estate." R.C. 2113.06(C).
{¶ 29} When there is such a delay in appointing an executor or administrator, "the
probate court may appoint a special administrator to collect and preserve the effects of
the deceased and grant the special administrator any other authority that the court
considers appropriate." R.C. 2113.15. Importantly, the administrator performs these
functions "for the executor or administrator who thereafter is appointed." Id. Once an
executor or administrator has been appointed, "the special administrator shall transfer to
the executor or administrator all the assets of the deceased in the possession or under
the control of the special administrator." R.C. 2113.16.
{¶ 30} Construing these statutes together, we conclude that R.C. 2113.06's and
2113.07's requirements of notice and a hearing before appointment of an executor or
administrator are inapplicable to the appointment of a special administrator. There are
multiple reasons for this. First, R.C. 2113.15 clearly refers to a "special administrator" as
distinct from an "administrator" or "executor." This distinction is repeated in R.C. 2113.16
which speaks of the "special administrator's" power terminating upon the "granting of
letters testamentary or of administration" once a "regular" administrator or executor is
appointed. Secondly, the notice and hearing procedures found in R.C. 2113.06 are not
found in R.C. 2113.15 or incorporated therein by reference. Thirdly, R.C. 2113.15 applies
when "there is a delay in granting letters testamentary or of administration [pursuant to
R.C. 2113.06]." The statute clearly envisioned situations in which people entitled to be
an executor or administrator, such as Mrs. Parks, have not sought an appointment after
an extended period of time.
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{¶ 31} Finally, the special administrator has limited authority. Ohio law has long
recognized that "[t]he special administrator is simply a stakeholder, and has no interest
in who shall finally be the general administrator * * *." Phares v. Lincoln Nat. Bank, 42
Ohio App. 433, 435 (1st Dist.1931). R.C. 2113.06 and 2113.15 allow for other persons,
including creditors, to be appointed special administrator so that someone may receive
claims against the estate within the six-month deadline of R.C. 2117.06(B). Essentially,
the statutes contemplate a situation where creditors must step in to protect their potential
claims against an estate when those with priority to be an executor or administrator, such
as Mrs. Parks, failed or refused to open an estate.
{¶ 32} Here, the only action taken by Phillips as special administrator was to
acknowledge presentment of Chesterwood's claim against Lawrence's estate. Phillips'
appointment and his reception of Chesterwood's claim without notice to Mrs. Parks or a
hearing on the matter did not in any way prejudice Mrs. Parks or deprive her of any
protected interest or due process under the law. Phillips and Chesterwood simply acted
to preserve Chesterwood's claim against Lawrence's estate. Ohio's probate laws
expressly permitted them to do so.
{¶ 33} We also note that appointment of Phillips as special administrator is within
the probate court's subject matter jurisdiction because R.C. 2101.24(A)(1)(b) provides
probate courts exclusive jurisdiction "[t]o grant and revoke letters testamentary and of
administration." Even assuming the notice and hearing provisions of R.C. Chapter 2113
apply to the appointment of special administrators, failure to comply with these statutes
would not have been a jurisdictional issue. Stated differently, appointment of a special
administrator under R.C. 2113.15 "without notice" would not be an extra-judicial act but
an imperfect exercise of jurisdiction, rendering Phillips' appointment voidable, at most,
but not void.
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{¶ 34} In conclusion, the underlying facts of this case were greatly complicated by
unexplained delay on both sides. However, Ohio's probate laws make clear that Mrs.
Parks was not entitled to notice or a hearing on Phillips' motion to be appointed special
administrator. His appointment served only to receive claims from creditors, including
Chesterwood, before the six-month deadline to submit those claims expired. Mrs. Parks'
right to be appointed executor of Lawrence's estate under R.C. 2113.06 was entirely
unaffected by Phillips' appointment, and as requested in her motion, she is currently
serving as executor of the reopened estate. As a result of the foregoing, we conclude the
trial court did not abuse its discretion in granting Chesterwood's Civ.R. 60(B) motion and
reinstating Phillips' appointment as special administrator.
{¶ 35} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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