In re Estate of Sickmiller

[Cite as In re Estate of Sickmiller, 2013-Ohio-3788.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
IN THE MATTER OF: CASE NO. 11-13-01
THE ESTATE OF
MARJORIE SICKMILLER
OPINION
[DEWAYNE EVANS - APPELLANT.]
Appeal from Paulding County Common Pleas Court
Probate Division
Trial Court No. 20121031
Appeal Dismissed
Date of Decision: September 3, 2013
APPEARANCES:
David Meekison for Appellant
James M. Sponseller for Appellee
Case No. 11-13-01
ROGERS, J.
{¶1} Exceptor-Appellant, DeWayne Evans, appeals the judgment of the
Paulding County Court of Common Pleas, Probate/Juvenile Division, denying his
exception to the Inventory of the Estate of Marjorie Sickmiller (“the Estate”). On
appeal, Evans argues that the trial court erred in determining that the firearms
found in Sickmiller’s house after her death constituted property of the Estate. For
the reasons that follow, we dismiss the appeal for lack of a final, appealable order.
{¶2} Sickmiller died testate on February 19, 2012. Evans is one of
Sickmiller’s children. On August 27, 2012, the Estate’s Administrator filed an
Inventory of Assets (“the Inventory”). The Inventory listed the following relevant
items as assets of the Estate: (1) $18,550.00 in firearms found in Sickmiller’s
house after her death; and (2) an approximate debt of $21,000.00 owed by Evans
to Sickmiller. On September 26, 2012, Evans filed an exception challenging the
listing of these items as assets of the Estate. Specifically, he claimed that the
firearms belonged to him and that he owed Sickmiller a much more modest debt of
approximately $700.00.
{¶3} On December 9, 2012, the trial court held a hearing on Evans’
exception to the listing of the firearms in the Inventory. On December 18, 2012,
the trial court issued a judgment entry denying Evans’ exception regarding
firearms. The entry includes the following pertinent language:
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Therefore the Court FINDS and ORDERS that the exception
regarding the firearms is NOT WELL TAKEN and the firearms are
the property of the estate of Marjorie Sickmiller. * * *
The remaining issue regarding the amount of debt owed [to]
the Estate by DeWayne Evans shall proceed following the filing of
the necessary complaints. As all parties are aware, the undersigned
will be unavailable for further hearing until late March, 2013.
IT IS SO ORDERED. (Emphasis sic.) (Judgment Entry of
Dec. 18, 2012, p. 6).
{¶4} On December 31, 2012, Evans filed another exception to the Estate’s
Inventory. This exception again challenged the amount of the debt Evans
purportedly owed to the Estate. No hearing was held on this exception and the
trial court never issued a judgment entry disposing of it. The trial court also failed
to issue a judgment entry approving a final inventory.
{¶5} Evans filed this appeal, presenting the following assignment of error
for our review.
Assignment of Error
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN REJECTING MR. EVANS’ EXCEPTION AND HOLDING
THAT THE FIREARMS LISTED IN THE INVENTORY ARE
THE PROPERTY OF THE ESTATE OF MARJORIE
SICKMILLER.
{¶6} Before we can reach the merits of Evans’ assignment of error, we
must preliminarily decide whether the trial court’s judgment entry was a final,
appealable order. The Ohio Court of Appeals is only vested with appellate
jurisdiction over final and appealable orders. Ohio Constitution, Article IV,
Section 3(B)(2). This jurisdictional limit is intrinsically linked with R.C.
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2505.02(B)’s definition of final and appealable orders. Since this matter involves
the filing of exceptions to an estate inventory, R.C. 2505.02(B)(2) controls. See In
re Estate of Perry, 12th Dist. Butler No. CA2007-03-061, 2008-Ohio-351, ¶ 46
(“Generally, matters related to estate administration, such as the filing of
exceptions to a fiduciary’s inventory or account, are treated as special
proceedings.”). Under this provision, an order is considered final and appealable
where it “affects a substantial right made in a special proceeding or upon a
summary application in an action after judgment.” R.C. 2505.02(B)(2). Absent
such an order, we have no jurisdiction and must dismiss the appeal. State v.
O’Black, 3d Dist. Allen No. 1-09-46, 2010-Ohio-192, ¶ 4. Further, since this issue
invokes our jurisdictional limits, we must raise it sua sponte. State ex rel. Scruggs
v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, ¶ 4.
{¶7} In the particular context of estate administration, “a probate entry
that affects a substantial right regarding a claim against an estate is considered to
be a final appealable order.” Perry at ¶ 46. In applying this general rule, we have
previously noted that “[w]hile an entry denying exceptions does not affect the
substantial rights of a party, an order approving an inventory is a final appealable
order.” In re Estate of Messenger, 3d Dist. Hancock No. 5-08-07, 2008-Ohio-
5193, ¶ 6. Our position that an entry merely denying exceptions to an inventory
does not constitute a final and appealable order is in accord with the views of
several Ohio courts. See, e.g., In re Estate of Ross, 11th Dist. Trumbull No. 2012-
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Case No. 11-13-01
T-0093, 2013-Ohio-2622, ¶ 17 (finding no appellate jurisdiction where trial court
denied one exception but left other exceptions unresolved and failed to approve a
final inventory); Perry at ¶ 47 (“Rulings on exceptions alone do not affect
‘substantial rights’ as defined in R.C. 2505.02(A)(1). Future relief is not
foreclosed because the exceptions can be reviewed when the probate court
conducts the statutorily required hearing to settle the inventory or account.”).
Here, Evans appeals from a judgment entry merely denying one of his exceptions.
The trial court has yet to issue a judgment entry either resolving his other
exception or approving a final inventory. Under Messenger and similar authority,
this set of facts compels us to find that Evans has appealed from a non-final, non-
appealable order and that we have no jurisdiction to hear this appeal.
{¶8} We recognize that there is some variety among Ohio courts
regarding this issue. For instance, in In re Estate of Sacco, 7th Dist. Columbiana
No. 03 CO 39, 2004-Ohio-3196, the Seventh District cursorily stated that “an
order overruling or dismissing exceptions to an inventory of an estate is a final and
appealable order.” Id. at ¶ 15, citing Sheets v. Antes, 14 Ohio App.3d 278 (10th
Dist. 1984). While this dictum, standing alone, suggests that the judgment entry in
this matter is final and appealable, we find that the factual background of Sacco
indicates otherwise. There, the trial court denied the appellant’s exceptions and
“approved the inventory and appraisal of the estate” before the appellant brought
her appeal. Id. at ¶ 12. Consequently, the above language in Sacco merely stands
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for the proposition that an order overruling exceptions to an inventory of an estate
is final and appealable where the trial court also approved a final inventory. As
stated above, the trial court did not approve a final inventory in this matter,
meaning that Sacco provides no guidance here.
{¶9} Even if we read Sacco’s language more broadly as standing for the
proposition that any judgment entry overruling exceptions to an inventory is final
and appealable, we would still decline to follow Sacco’s guidance. The Seventh
District relied on the Tenth District’s ruling in Sheets when it stated that entries
overruling exceptions to an inventory are final and appealable orders. Extending
Sheets to cover all such entries would be improper since the Tenth District merely
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.” (Emphasis added.) Sheets at paragraph two of the
syllabus. Based on the explicit language of Sheets’ holding, it applies only where
the trial court both overruled the appellant’s exceptions and approved a final
inventory of the estate. See In re Estate of Persing, 11th Dist. Trumbull No. 2009-
T-0120, 2010-Ohio-2687, ¶ 11 (“However, pursuant to Sheets, an order denying
exceptions to an inventory is only a final, appealable order if it also approves the
inventory.”).
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{¶10} The Fourth District has also produced language suggesting that
judgment entries overruling exceptions to an inventory are final and appealable
orders. See, e.g., In re Estate of Workman, 4th Dist. Lawrence No. 07CA39,
2008-Ohio-3351, ¶ 13 (“An entry overruling or sustaining objections to an account
is a final and appealable order.”); In re Estate of Poling, 4th Dist. Hocking No.
04CA18, 2005-Ohio-5147, ¶ 26 (same). The court, however, has qualified this
general language and has found that judgment entries overruling exceptions but
failing to approve a final inventory are not final, appealable orders. For instance,
in In re Estate of Smith, 4th Dist. Ross No. 06CA2915, 2007-Ohio-3030, the
appealed entry, which denied the appellant’s exception, included the following
language: “This matter is set for further hearing on the 21st day of August, 2006 at
8:00 a.m. on the issue of surcharge and reports ordered herein. At the conclusion
of said hearing, executor will be directed to file his amended final and distributive
account.” Id. at ¶ 10. The Fourth District found that this entry was not a final,
appealable order since “[b]y its terms, the above entry does not approve or settle
an account.” Id. at ¶ 11. Since this matter implicates identical facts as those
addressed in Smith, we find no conflict between the Fourth District’s position and
ours.
{¶11} In sum, Evans has appealed from a judgment entry merely denying
one of his two exceptions to the Inventory filed by the Estate’s Administrator.
The other exception remains pending before the trial court and the trial court has
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failed to approve a final inventory. In light of these facts, and the guidance of
prevailing case law, we find that the appealed judgment entry is not final and
appealable. As such, we must dismiss this appeal for want of jurisdiction.
{¶12} Accordingly, for the foregoing reasons, the appeal is dismissed.
Appeal Dismissed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/hlo
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