In re Estate of Porter

[Cite as In re Estate of Porter, 2017-Ohio-8840.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
Estate of Calvert M. Porter, : No. 17AP-414
(Prob. No. 498177)
[Andrea Denise Jones Porter, :
(REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on December 5, 2017
On brief: Law Office of Philip A. King, LLC, and Philip A.
King, for appellant. Argued: Philip A. King.
On brief: L. O'Shaughnessy Law LLC, and Lucy K.
O'Shaughnessy, for appellee Western Surety Company.
APPEAL from the Franklin County Court of Common Pleas,
Probate Divison
SADLER, J.
{¶ 1} Appellant, Andrea Denise Jones Porter, appeals from the May 10, 2017
judgment entry of the Franklin County Court of Common Pleas, Probate Division,
adopting in part and modifying in part a magistrate's September 13, 2016 decision on
exceptions filed to a final account of the estate of appellant's deceased father. For the
following reasons, we affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves final settlement of the estate of appellant's father and her
role as co-administrator of his estate. No party objected to the findings of fact set forth in
the magistrate's September 13, 2016 decision, which provides as follows:
1. Calvert Porter ("the decedent") died on August 20, 2003.
No. 17AP-414 2
2. The decedent died owning an interest in the real property
located at 1444 Moler Road Columbus, Ohio ("1444 Moler
Rd").
3. Imogene Porter was appointed executor of the decedent's
estate on October 1, 2003 pursuant to a document alleged
to be the decedent's will.
4. The alleged will was later determined not to be valid by
this court.
5. [Appellant] was appointed co-administrator of the estate
on January 14, 2004. Susan Wasserman, Esq. was her
attorney.
6. [Appellant] filed a Fiduciary's Bond in the amount of
$260,000 with Western Surety Company as surety on
January 14, 2004. The bond was reduced to $40,000 by
court order on August 29, 2005.
7. While executor, Imogene Porter sold 1444 Moler Rd. to
Naser Saleh. The sale was later determined not to be valid
by this court.
8. On April 16, 2007, this Court approved the settlement
agreement in which Naser Saleh conveyed 1444 Moler Rd.
to [appellant] and [appellant] conveyed a portion back to
Naser Saleh.
9. On November 8, 2010, Ms. Wasserman resigned as
attorney for [appellant].
10. Ms. Wasserman's attorney fees of $85,694.19 were
approved by this Court on January 11, 2011 and allowed
from the assets of the estate.
11. On August 31, 2011, this Court ordered that the final
account be amended to include as an asset the value of the
real estate located at 1444 Moler Rd. and to include Ms.
Wasserman's attorney fees as debts of the estate. The
court also ordered a lien for the attorney fees to be placed
against the real estate since there were insufficient funds
in the estate.
12. On August 11, 2014, [appellant] filed for personal
bankruptcy. The U.S. Bankruptcy Court for the Southern
No. 17AP-414 3
District of Ohio issued an order avoiding Ms. Wasserman's
judicial lien on 1444 Moler Rd. on December 3, 2014.
13. [Appellant] filed a final account on June 9, 2015.
a. The final account showed 1444 Moler Rd. as an asset of
the estate.
b. The distribution section of her final account states:
"Decedent's interest in real property located at 1444
Moler Rd. Columbus, OH 43207 Answerer [sic] to
[appellant] as part of settlement in related adversary
case * * *."
c. The final account shows that $35,818.46 in legal fees
were paid to Mrs. Wasserman.
14. The estate still owes Mrs. Wasserman $49,875.73 in legal
fees.
15. On July 13, 2015, Mrs. Wasserman filed a pleading titled
Objection to the Final Account Filed by Co-Administrator
[appellant] ORC 2109.33 (hereinafter "Exceptions").
a. In her Exceptions, Mrs. Wasserman asks the court to
"hold a hearing on these exceptions and that the CBS
Agency be made a party to this matter and for such
further equitable relief as the court may deem proper
including a surcharge on the bond on behalf of
[appellant]."
16. On May 5, 2016 the Bankruptcy Court granted Ms.
Wasserman a relief from stay pursuant to 11 U.S.C. 362(d)
to pursue her rights against the surety under the bond
issued in the probate case.
(Emphasis sic.) (Sept. 13, 2016 Mag.'s Decision at 2-4.)
{¶ 3} Under the conclusions of law, the magistrate found that appellant's final
account showed she distributed 1444 Moler Road to herself while leaving $49,875.73 of
the court-ordered attorney fees unpaid and that appellant did not dispute she failed to pay
the balance of the attorney fees. The magistrate found appellant violated her fiduciary
duties in doing so, and, as a result, Western Surety was liable and obligated to pay
$40,000 (the amount of the surety bond) to Wasserman.
No. 17AP-414 4
{¶ 4} Both Western Surety and appellant filed objections to the magistrate's
decision. Western Surety objected for the following reasons:
 Upon finding that the real estate at issue in this case was
an asset of the Estate of Calvert M. Porter, this Court
should order it to be returned to the estate and the debts of
the Estate should be paid from the proceeds of its sale;
 A surcharge against the bond is premature and
procedurally improper arising from a hearing on
exceptions to a final account; and
 Alternatively, the Magistrate's Decision should have given
Western Surety a judgment against its bond principal for
any amount it is ordered to pay.
(Sept. 26, 2016 Objs. to Mag.'s Decision at 1.)
{¶ 5} Appellant objected to the magistrate's conclusion that she is responsible for
the alleged breach of disbursing estate assets while failing to pay her attorney fees.
Instead, appellant contended the original invalid transfer by Imogene Porter was not her
fault, and the later transfer of the property via the settlement agreement was also not her
fault because it was approved by Wasserman and the probate court. As such, appellant
contended the probate court should find Wasserman liable for any breach caused by the
transfer of the property to appellant. Appellant further generally objected to the
magistrate's decision, without elaboration, "to the extent that it orders her to convey the
Property back into the estate or orders her to pay * * * Wasserman's attorney fees contrary
to bankruptcy law." (Sept. 27, 2016 Obj. to Mag.'s Decision at 3.)
{¶ 6} On May 10, 2017, the probate court issued a judgment entry adopting and
modifying the September 13, 2016 magistrate's decision.1 The probate court found
appellant's argument regarding the transfer made by Imogene Porter irrelevant to the
issue in this matter. The probate court further noted that the probate court could not, by
statute, authorize transfer of the property by settlement agreement and that none of the
1 The probate court initially filed a decision adopting the magistrate's decision on February 2, 2017.
Appellant filed an appeal of that decision to this court, as well as a motion in the probate court for relief from
judgment contesting the probate court's finding that no transcript had been filed. This court granted
appellant's motion to remand in order for the probate court to resolve the Civ.R. 60(B) matter. The probate
court granted appellant relief, pursuant to Civ.R. 60(B)(1), and undertook "a new de novo review" of the
matter and objections. (May 10, 2017 Jgmt. Entry at 3.)
No. 17AP-414 5
statutory procedures to properly execute such a sale were completed by the heirs.
Specifically:
[N]o sale by consent of the heirs was completed and filed for
record pursuant to R.C. 2127.011, no complaint was filed to
sell the real estate to pay debts pursuant to R.C. 2127.02, nor
was the sale made for the payment of legacies under R.C.
2127.03, no complaint was filed under R.C. 2127.04 for the
sale of real estate with consent of a majority of the parties.
(May 10, 2017 Jgmt. Entry at 8.) Therefore, the probate court found the purported
transfer of the property by settlement agreement to be a void transfer as a matter of law
and ordered appellant to convey title to the property to the estate of Calvert Porter and
sold to pay estate bills, including the debt owed Wasserman. The probate court found
holding Wasserman responsible for appellant's breach of fiduciary duties to be
unreasonable, and ordering appellant to pay Wasserman's attorney fees did not violate
bankruptcy law. Regarding Western Surety's objections, the probate court found Western
Surety liable due to appellant's breach of her fiduciary duties by distributing estate assets
and failing to pay court-ordered attorney fees. However, the probate court found that the
nature and extent of Western Surety's liability could not be yet assessed prior to sale of the
property.
{¶ 7} Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant presents two assignments of error:
[1.] The probate court erred because the decision ordering
appellant to convey "Parcel One" back to the estate is against
the manifest weight of the evidence.
[2.] The probate court erred because holding appellant solely
liable for failure to pay attorney fees is against the manifest
weight of the evidence.
III. STANDARD OF REVIEW
{¶ 9} Generally, when objections to a magistrate's decision are filed, a trial court
undertakes a de novo review of the magistrate's decision. In re Estate of Klie, 10th Dist.
No. 16AP-77, 2017-Ohio-487, ¶ 7, citing McNeilan v. Ohio State Univ. Med. Ctr., 10th
Dist. No. 10AP-472, 2011-Ohio-678, ¶ 19. A probate court's decision to adopt a
No. 17AP-414 6
magistrate's decision regarding an estate is ordinarily reviewed on appeal for an abuse of
discretion. Klie at ¶ 9. However, where the issue appealed involves a question of law, an
appellate court employs a de novo standard of review. Severing v. Severing, 10th Dist.
No. 15AP-8, 2015-Ohio-5236, ¶ 9; see also Klie at ¶ 32-34.
IV. DISCUSSION
A. First Assignment of Error
{¶ 10} Under the first assignment of error, appellant contends that the probate
court erred by ordering appellant to convey the property back to the estate. For the
following reasons, we disagree.
{¶ 11} First, appellant argues the probate court could not invalidate a transfer of
real property it had approved in the past, as that previous decision (the settlement
agreement) became "law of the case" that is binding on all parties. (Appellant's Brief at
12.) Essentially, according to appellant, regardless of whether the settlement agreement
should have been approved in 2007 or is authorized by law, the fact that it was approved
and relied on by the parties barred the probate court from declaring transfers under the
settlement agreement void.
{¶ 12} "The law-of-the-case doctrine requires a court to follow rulings on issues
previously resolved within the same case." Reid v. Cleveland Police Dept., __ Ohio St.3d
__, 2017-Ohio-7527, ¶ 11. In most applications, the law-of-the-case doctrine provides that
the decision of a reviewing court in a case remains the law of that case on the legal
questions involved for all subsequent proceedings in the case at both the trial and
reviewing levels. State ex rel. Keith v. Gaul, 147 Ohio St. 3d 270, 2016-Ohio-5566, ¶ 14.
This court has noted that the law-of-the-case doctrine is not necessarily limited to the
determinations of a reviewing court on appeal. Klaus v. Klosterman, 10th Dist. No. 16AP-
273, 2016-Ohio-8349, ¶ 11, 15 (noting this court's prior case, Clymer v. Clymer, 10th Dist.
No. 95APF02-239 (Sept. 26, 1995), "extended [the] law of the case doctrine to encompass
a trial court's adherence to its own prior rulings in circumstances where a trial court
ruling could have been appealed, but was not, with certain exceptions"). However, "the
law of the case doctrine should not be taken to imply that a trial court can never, under
any circumstances, reconsider its prior ruling. * * * Additional evidence, prior error or a
No. 17AP-414 7
change in circumstances might well argue against blind adherence to a prior ruling."
Clymer.
{¶ 13} Appellant's argument is unpersuasive for two main reasons. First, because
the settlement agreement and approval did not eliminate appellant's obligation to execute
the transfer of the property in line with probate laws, the law-of-the-case doctrine is
irrelevant. The probate court approved the joint application to settle claims, expressly
providing that the co-administrators had "authority to perform all acts necessary to
effectuate the compromise and settlement, including the execution of such agreement and
the execution of all related documents and the performance of all related acts in
connection therewith." (Apr. 16, 2007 Entry at 1.)
{¶ 14} As argued by Western Surety, "performance of all related acts in
connection" with the settlement necessarily includes effectuating the transfer of the
property in line with applicable probate statutes in order for the transfer to be proper
under those laws. (Emphasis omitted.) (Appellee's Brief at 6.) R.C. 2127.01, in pertinent
part, requires all proceedings for the sale of lands by an administrator to be filed in
accordance with R.C. 2127.01 to 2127.43. The probate court outlined several statutory
means for an administrator to cause a transfer of real property. Under R.C. 2127.011, an
administrator can dispose of real property by consent of all heirs; under this method,
"each consent * * * shall be filed in the probate court." R.C. 2127.011(A)(1). Under R.C.
2127.02, 2127.03, and 2127.05, the administrator is obligated to commence actions in the
probate court to sell real property of the estate where the administrator ascertains that the
personal property of the estate is insufficient to pay all debts of the decedent, where in
certain situations legacies require payment, or where the majority of persons entitled to
share in the estate request and consent to the sale. Appellant does not dispute that she
did not act to execute the transfer of the property in accordance with probate law. Under
these facts, the law-of-the-case doctrine does nothing to change the deficient statutory
execution of the transfer.
{¶ 15} Second, as noted above, even if the law-of-the-case doctrine is implicated, it
is not a complete bar to the probate court to correct a prior error. Clymer. Under R.C.
2101.24(A)(1)(i), a probate court has jurisdiction to "authorize the sale of lands, equitable
estates, or interests in lands or equitable estates, and the assignments of inchoate dower
No. 17AP-414 8
in such cases of sale, on petition by executors, administrators, and guardians." As
previously stated, administrators are bound to execute the sale of real property in
accordance with probate statutes. R.C. 2127.01. For sake of argument, if the probate
court approved the transfer of the property in the settlement agreement without
expectation that further statutorily required procedures must be met, this action
contradicts statute. State ex rel. Sladoje v. Belskis, 149 Ohio App. 3d 190, 2002-Ohio-
4505, ¶ 12 (10th Dist.) ("Probate courts are courts of limited jurisdiction and probate
proceedings are limited to such actions as are permitted by statute and the Ohio
Constitution."); Corron v. Corron, 40 Ohio St. 3d 75, 77 (1988); R.C. 2101.24(C). In such a
case, in the face of an error as a matter of law, the law-of-the-case doctrine does not act as
a complete bar to the probate court's later determination that the errant transfer was void.
Clymer.
{¶ 16} Under this assignment of error, appellant also asserts that if the probate
court had authority to invalidate the transfer of real property, it did not issue an
appropriate remedy for the past error. Specifically, appellant contends the remedy was
incomplete and unfair because appellant only received a part of the original property and
the remainder of the original parcel remains with Saleh, and because the co-administrator
received $40,000 through the settlement agreement that was never ordered returned to
the estate. Essentially, appellant is arguing for us to invalidate the entire settlement
agreement.
{¶ 17} We first note that the settlement agreement contains a severability clause
whereby if any term contained in the agreement is determined to be invalid or void, the
remainder of the agreement remains valid and enforceable. Second, the core issue to
resolve this appeal is whether appellant distributed estate assets and a debt of the estate
remained unpaid. Other aspects of the settlement agreement, which the probate court left
untouched, are not determinative to this core issue. Third, in her two final fiduciary
accounts submitted to the probate court, appellant did not list either the property
remaining with Saleh or the $40,000 settlement payment to her co-administrator as a
receipt or asset of the estate or a distribution from the estate. Appellant is now
attempting, for the first time on appeal, to include both items as part of the estate. We
decline to address this issue in the first instance. Tucker v. Leadership Academy for
No. 17AP-414 9
Math, 10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20; State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, ¶ 18.
{¶ 18} Accordingly, appellant's first assignment of error is overruled.
B. Second Assignment of Error
{¶ 19} Under the second assignment of error, appellant contends the trial court
erred by "holding appellant solely liable for failure to pay attorney fees." (Appellant's
Brief at 1.) For the following reasons, we disagree.
{¶ 20} Appellant first argues that she did not breach her fiduciary duty in this case
because the original conveyance by Imogene Porter was made prior to appellant becoming
an estate administrator. We agree with the trial court that the original illegal transfer by a
prior executor has no bearing on whether appellant later breached her fiduciary duty as
an estate administrator.
{¶ 21} Appellant next argues she did not breach her fiduciary duty in this case
because the later transfer of property to appellant under the settlement agreement was
made with approval of the probate court and Wasserman. Relatedly, appellant contends
that if appellant breached her fiduciary duty, it was not reasonable to not hold Wasserman
at least partially liable.
{¶ 22} Appellant does not contest the general concept that an administrator of an
estate who distributes assets of the estate and leaves debts of the estate unpaid breaches
his or her fiduciary duty and may be held liable to a creditor of the estate. We note that
approval of the settlement agreement occurred in 2007. Wasserman resigned as
appellant's attorney in November 2010, nearly five years prior to appellant filing her final
fiduciary account in June 2015. It is undisputed that appellant's final fiduciary account
listed distributions to appellant, and the estate still owes Wasserman $49,875.73 in
attorney fees. In these circumstances, we do not agree that the trial court abused its
discretion in finding that appellant breached her fiduciary duty despite the probate court
and Wasserman's prior approval of the settlement agreement in 2007. We likewise do not
agree that on this record the probate court abused its discretion in not holding
Wasserman liable for any breach committed by appellant.
{¶ 23} Appellant additionally discusses that the final distribution of settlement
proceeds from a separate malpractice action includes attorney fees. Appellant's argument
No. 17AP-414 10
in this regard is unclear. As discussed above, neither party objected to the magistrate's
findings of fact, which included the fact that $49,875.73 in attorney fees were owed to
Wasserman by the estate. We cannot discern how distributions from the malpractice
settlement proceeds to pay some portion of attorney fees disposes of the issue here. As
such, appellant has not met her burden to prove error on appeal. Miller v. Johnson &
Angelo, 10th Dist. No. 01AP-1210, 2002-Ohio-3681, ¶ 2 ("The burden of affirmatively
demonstrating error on appeal rests with the [appellant]."); see also App.R. 16(A)(7).
{¶ 24} Appellant next asserts that "bankruptcy law protected Appellant from being
required to transfer property to the estate to be sold to pay estate debts." (Appellant's
Brief at 1.) We first note appellant's thread-bare mention of bankruptcy in her objections,
without any explanation of how the order violates bankruptcy law, violates the specificity
requirement of Civ.R. 53(D). Franklin Cty. Probate Div. Loc.R. 75.18 (requiring any
objection to a magistrate's decision to comply with Civ.R. 53(D)(3)(b)); Civ.R.
53(D)(3)(b)(ii) ("An objection to a magistrate's decision shall be specific and state with
particularity all grounds for objection."); Civ.R. 53(D)(3)(b)(iv) (stating that failure to
provide objection under rule constitutes waiver except for plain error); In re A.V., 10th
Dist. No. 05AP-789, 2006-Ohio-3149, ¶ 22 (holding that the failure to comply with the
specificity requirements of Civ.R. 53 results in waiver of the issue).
{¶ 25} Regardless, appellant's argument as to bankruptcy law lacks merit.
Appellant agrees that 11 U.S.C. 53 indicates that bankruptcy does not cancel debts owed
due to fraud or defalcation (misappropriation of money) while acting in a fiduciary
capacity. Moreover, the relief from stay obtained by Wasserman expressly permitted the
probate court to determine whether the property at issue should be an asset of the estate.
Wasserman obtained relief from the bankruptcy stay "for the limited purpose of the
[probate court] to consider the final account in the [estate of Calvert Porter] and any
objections related thereto, including whether the real estate location at 1444 Moler Road,
Columbus, Ohio 43207 was properly conveyed to [appellant] and remains subject to
Probate Court jurisdiction" and was further granted relief to pursue her rights against the
surety. (June 17, 2016 Order Granting Mot. of Susan Wasserman for Relief from Stay at
2.) Considering the above, we disagree that the trial court erred in regard to appellant's
contentions on bankruptcy law.
No. 17AP-414 11
{¶ 26} Finally, appellant argues that appellant's former co-administrator should be
held as liable as appellant for non-payment of attorney fees. " ' "Ordinarily, reviewing
courts do not consider questions not presented to the court whose judgment is sought to
be reversed." ' " Klie at ¶ 10, quoting State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio
St.3d 78, 81 (1997), quoting Goldberg v. Indus. Comm., 131 Ohio St. 399, 404 (1936).
Appellant did not raise this issue in her objections to the magistrate's decision, the trial
court did not address the issue, and appellant has not argued plain error. We decline to
address this issue for the first time on appeal. In re A.L.D., 10th Dist. No. 08AP-238,
2008-Ohio-3626, ¶ 18; A.V. at ¶ 22; In re A.R., 12th Dist. No. CA2015-08-143, 2016-Ohio-
4919, ¶ 32-33. We further note whether appellant has remedies against her co-
administrator is not at issue in this appeal.
{¶ 27} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
{¶ 28} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Probate Division.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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