In re Estate of Hudson

[Cite as In re Estate of Hudson, 2018-Ohio-2436.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
IN THE MATTER OF THE :
ESTATE OF: CASE NOS. CA2018-01-002
: CA2018-01-003
MELISSA ANNE HUDSON
: OPINION
6/25/2018
:
:
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case Nos. 20171143 and 20171144
CiceroAdams, LLC, Anthony R. Cicero, 500 East Fifth Street, Dayton, Ohio 45402, for
appellants, Addyson House and Paige House
Pickrel, Schaeffer and Ebeling, L.P.A., James W. Kelleher, Eli Sperry, 40 North Main Street,
Suite 2700, Dayton, Ohio 45423, for appellee, Beverly Dalton, co-Administrator of the Estate
of Emerie Hudson and Administrator of the Estate of Melissa Hudson
Brannon & Associates, David D. Brannon, 130 West Second Street, Suite 900, Dayton, Ohio
45402 and Wright and Schulte, Michael L. Wright, 130 West Second Street, Suite 1600,
Dayton, Ohio 45402, for intervenor, Denise Hudson, Co-Administrator of the Estate of Emerie
Hudson
Jaqcob A. Kovach, P.O. Box 118, New Paris, Ohio 45347, court-appointed guardian ad litem
PIPER, J.
{¶ 1} Appellants, Paige and Addyson House, appeal a decision of the Preble County
Court of Common Pleas, Probate Division, denying their motion to vacate the appointment of
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fiduciaries.1
{¶ 2} Melissa Hudson ("Melissa") had a relationship with William House that
produced the two appellants, Paige and Addyson House. Melissa later separated from
House, married Schon Hudson, and had a daughter with him named Emerie. Melissa,
Schon, and Emerie were tragically killed in a traffic accident. Addyson and Paige were not
involved in the accident, and survived their mother. Both girls are minors and in the custody
and care of their father, House.
{¶ 3} Melissa's mother, Beverly Dalton ("Beverly"), filed a motion with the probate
court to be named administrator of the estates of Melissa and Emerie. Schon's mother,
Denise Hudson ("Denise") and Beverly later agreed to be co-administrators of Emerie's
estate. The probate court then issued letters of authority naming Beverly administrator of
Melissa's estate and co-administrator of Emerie's estate and naming Denise co-administrator
of Emerie's estate.
{¶ 4} House, as guardian of Addyson and Paige, hired an attorney to represent the
girls' interests as to the estates of Melissa and Emerie. Addyson and Paige's counsel filed a
motion to vacate the appointment of Beverly and Denise as fiduciaries because the girls
never received notice "for the purpose of ascertaining whether they desire to take or
renounce administration." The probate court scheduled a hearing on the matter, but no
formal hearing occurred. Instead, the parties discussed the issue in chambers, and the
probate court permitted the parties to brief the issue as being a matter of law.
{¶ 5} The probate court later issued a decision denying the girls' motion to vacate. In
so finding, the probate court determined first that the girls were precluded from administering
the estates because they are minors. The probate court also found that Addyson and Paige
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purposes of
issuing this opinion.
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received notice of the appointment of Beverly and Denise as administrators of Melissa's and
Emerie's estates. Further, the probate court determined that the girls' interests were
protected because Beverly named both girls in paperwork filed in the estate as next of kin to
Melissa and Emerie. The girls now appeal that decision to this court.
{¶ 6} Beverly and Denise filed separate appellees' briefs in which they assert that the
probate court's decision was proper. Beverly also filed a motion to dismiss the appeal for
lack of a final appealable order and lack of standing, while Denise raised some of the same
arguments in her brief.
{¶ 7} We will address Addyson and Paige's assignment of error after addressing
Beverly's and Denise's arguments that the appeal should be dismissed.2
I. Final Appealable Order
{¶ 8} Ohio's appellate districts are split as to whether a decision on a motion to
vacate the appointment of an estate administrator constitutes a final appealable order. The
districts that find a lack of a final appealable order, such as the Ninth District Court of
Appeals, find that such decisions are not special proceedings as contemplated by R.C.
2505.02, regardless of the reason an appellant moves to vacate an appointment. In re
Estate of Wilma Griffa, 9th Dist. Summit No. 25987, 2012-Ohio-904. In Griffa, the appellant
filed a motion to dismiss an application of appointment and argued that he did not receive
notice of the appointment as an interested party. The Ninth District Court of Appeals
dismissed the appeal of the probate court's decision for lack of a final appealable order.
{¶ 9} The districts that determine decisions regarding motions to vacate are final
appealable orders include the Sixth, Seventh, Tenth, and Eleventh. These districts conclude
2. During oral arguments, Beverly's counsel suggested that should this court affirm the probate court's decision,
the motion to dismiss would be moot. However, this court must first determine whether the appeal should be
dismissed before addressing the merits of such appeal.
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that the order is final and appealable as a provisional remedy because, if not offered, it would
deny a meaningful remedy to appellant. In so doing, the districts rely upon applicable
sections of Ohio's final appealable order statute, R.C. 2505.02. That statute provides,
(A) As used in this section:
(1) "Substantial right" means 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.
(2) "Special proceeding" means an action or proceeding that is
specially created by statute and that prior to 1853 was not
denoted as an action at law or a suit in equity.
(3) "Provisional remedy" means a proceeding ancillary to an
action* * *
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without reprobate, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
***
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
{¶ 10} Based on these statutory provisions, the Seventh District has determined that
"an order granting or denying a motion to remove an executor of an estate is a final
appealable order under R.C. 2505.02(B)(4)." In re Estate of Geanangel, 147 Ohio App.3d
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131, 134, 137 (7th Dist.2002). Similarly, the Tenth District used R.C. 2505.02(B)(4) as a
basis for determining that a final appealable order existed based on the probate court's
decision in response to a motion to vacate. In re Estate of Nardiello, 10th Dist. Franklin No.
01AP-281, 2001-Ohio-4080, 2001 Ohio App. LEXIS 4813.
{¶ 11} In Nardiello, the Tenth District concluded that a probate court's order removing
an estate's executor was a final appealable order pursuant to R.C. 2505.02(B)(4) because
such an order was determinative of the action with respect to a "provisional remedy" and
prevented a judgment in the action in favor of the appealing party as to the "provisional
remedy." Further, the Tenth District stated that an order removing an executor is a final
appealable order pursuant to R.C. 2505.02(B)(4), as "no meaningful or effective remedy
could be granted upon an appeal by an executor following final resolution of the estate, since
there would no longer be any opportunity for the executor to undertake his duties and
functions as executor." Id. The Eleventh District has followed this reasoning in In re Estate
of Meloni, 11th Dist. Trumbull No. 2003-T-0096, 2004-Ohio-7224, as has the Sixth District in
In re Estate of Sneed, 6th Dist. Lucas No. L-06-1054, 2006-Ohio-1868. We find the
reasoning of these courts persuasive.
{¶ 12} In the case sub judice, the probate court's denial of the girls' motion to remove
Beverly and Denise as co-executors determines the action with respect to a "provisional
remedy" and prevents a judgment in the action in favor of the girls. The girls would have no
effective or meaningful remedy following the final resolution of the estate because Beverly's
and Denise's duties, as co-executors, would terminate once the estate is administered.
Thus, the probate court's judgment entry denying the girls' motion for removal is a final
appealable order
II. Standing
{¶ 13} Denise and Beverly assert that the girls do not have standing to challenge their
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appointment as fiduciaries because Addyson and Paige are minors. According to Civ.R. 17,
minors lack standing to bring suit. However, Civ.R. 17(B) provides,
Whenever a minor or incompetent person has a representative,
such as a guardian or other like fiduciary, the representative may
sue or defend on behalf of the minor or incompetent person. If a
minor or incompetent person does not have a duly appointed
representative the minor may sue by a next friend or defend by a
guardian ad litem. When a minor or incompetent person is not
otherwise represented in an action the court shall appoint a
guardian ad litem or shall make such other order as it deems
proper for the protection of such minor or incompetent person.
{¶ 14} Here, House, as parent and natural guardian, and thereby next of friend to
Addyson and Paige, hired Attorney Cicero Adams to represent the girls' interests. The
attorney then filed pleadings on their behalf challenging the appointment of Denise and
Beverly. The trial court, in further protection of the girls' interests, appointed Jacob A. Kovach
as their Guardian ad Litem. Thus, Addyson and Paige are fully represented and appearing in
the proceedings below and have standing to challenge the appointment of these fiduciaries.
III. Merits of Appeal
{¶ 15} We will now address the merits of Addyson and Paige's assignment of error:
{¶ 16} THE TRIAL COURT ERRED BY FAILING TO VACATE THE LETTERS OF
AUTHORITY ISSUED TO THE ADMINISTRATOR IN EACH OF THE ESTATES BASED
UPON APPLICATIONS THAT DID NOT SERVE PRIOR NOTICE UPON THE SOLE HEIRS
TO BOTH ESTATES AS REQUIRED BY R.C. § 2113.07.
{¶ 17} Addyson and Paige argue in their assignment of error that the probate court
erred by denying their motion to vacate.
{¶ 18} Pursuant to R.C. 2113.06, letters of administration are issued first to the
surviving spouse, then to the next of kin. If those entitled to administer the estate fail to take
administration responsibilities, or renounce administration, the matter is set for a hearing and
notice is given to the spouse and next of kin. If no next of kin is found suitable, the "court
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shall commit the administration to some suitable person." R.C. 2113.06(C).
{¶ 19} R.C. 2113.07 provides that someone willing to administer the estate must file
an application that contains the names of the surviving spouse, next of kin and their
addresses, and a statement of the estate's assets and debts. The application can be
accompanied by a waiver of those having priority to administer the estate, or in the absence
of the waiver, those potential candidates with priority "shall be served notice for the purpose
of ascertaining whether they desire to take or renounce administration. Minors who would
have been entitled to priority to administer the estate except for their minority also shall be
served notice pursuant to the Rules of Civil Procedure." Id.
{¶ 20} Given the statute, Addyson and Paige are correct that they were entitled to
notice before the probate court issued Denise's and Beverly's letters of authority. However,
premised upon the facts presented, the probate court's failure to issue the notice is harmless
error.
{¶ 21} The girls are not suitable to administrate because they are minors. Even if the
girls had received notice before the probate court appointed Beverly and Denise, the girls
would have only been entitled to challenge Beverly and Denise as being unsuitable
fiduciaries. However, the record contains no such argument from the girls. Instead, they
simply argue that they were entitled to notice. At no time, however, have they asserted that
Beverly or Denise are not proper fiduciaries.3
{¶ 22} The probate court determined that the girls' interests would be fully protected.
The court is well aware that the girls are next of kin to Melissa and Emerie so that their
interest in both estates are recognized and protected moving forward. Moreover, the probate
court appointed a guardian ad litem to assist in protecting the girls' interests in the disposition
3. One of the girls' filings refers to raising suitability issues as a future hearing, but no such arguments were ever
made to the probate court or to this court on appeal. Thus, the record is void of any bases for unsuitability.
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of Melissa's real estate.
{¶ 23} The girls were placed on notice that Beverly and Denise had been appointed
fiduciaries. The fact that such notice came after the appointment, however, is not prejudicial
where the girls have presented no argument or evidence that they could administer the
estates, that the appointed individuals are unsuitable, or that Beverly and Denise would not
administer the estates of Melissa and Emerie according to law. Thus, the lack of initial notice
is harmless error based on the specific facts and circumstances of this case. Paige and
Addyson's assignment of error is overruled.
{¶ 24} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.
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