In re Estate of Robison

[Cite as In re Estate of Robison, 2017-Ohio-8980.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

In re Estate of Thomas W. Robison, Jr., :

No. 17AP-232

(Thomas W. Robison, III, : (Prob. No. 578505)

Appellant). : (REGULAR CALENDAR)

D E C I S I O N

Rendered on December 12, 2017

On brief: Bricker & Eckler LLP, Quintin F. Lindsmith, and

Ali I. Haque, for appellee. Argued: Ali I. Haque.

On brief: Thomas W. Robison, III, pro se.

Argued: Thomas W. Robison, III.

APPEAL from the Franklin County Court of Common Pleas,

Probate Division

KLATT, J.

{¶ 1} Appellant, Thomas W. Robison, III, appeals a judgment of the Franklin

County Court of Common Pleas, Probate Division, that adopted the magistrate's decision

granting certain exceptions to the estate inventory. Because we lack a final appealable

order, we dismiss this appeal.

{¶ 2} On April 4, 2016, Thomas W. Robison, Jr. ("decedent") died testate.

Appellant was appointed the executor of his father's estate. On August 4, 2016, appellant

filed the estate inventory. Appellee, Jenny Bee Choo Robison, the surviving spouse of

decedent, filed exceptions to the inventory. She contended that appellant (1) excluded a

number of vehicles owned by decedent from the inventory, (2) mischaracterized

decedent's ownership interest in real property located in Lancaster, Ohio, (3) excluded a

No. 17AP-232 2

lease between appellant and decedent for appellant's residential use of real property in

Pataskala, Ohio, (4) improperly included two vehicles subject to a surviving spouse's

election pursuant to R.C. 2106.18 in the inventory, and (5) misidentified the VIN or

vehicle description for five vehicles.

{¶ 3} After an unsuccessful attempt at mediation, a magistrate held a hearing on

appellee's exceptions to the inventory. Appellant did not appear although counsel for

appellant was present. At the hearing, appellee presented 38 certificates of title and 2 sets

of BMV search records using decedent's social security number that identified vehicles

owned by decedent that were not included in the inventory. Documents intended to

correct the inventory with regard to VIN numbers and vehicle descriptions were also

submitted. With regard to the exceptions involving real property, appellee introduced

deeds, certificates of transfer and/or title records for property located on Harlem Road in

Westerville, Ohio, in Lancaster, Ohio, and in Pataskala, Ohio. During the hearing,

appellee made an oral motion to exclude the Harlem Road property from the inventory

because the property was not owned by decedent at the time of his death.

{¶ 4} On December 14, 2016, the magistrate filed his decision. The exceptions

pertaining to vehicles owned by decedent but excluded from the inventory were granted.

The magistrate ordered that the inventory be amended to include the vehicles identified

in appellee's exhibits B and C. Also, the mistakes on the inventory regarding VIN

numbers and vehicle descriptions identified in exhibit F were ordered to be corrected.

The magistrate granted the exception with regard to the Lancaster property and ordered

that the inventory be amended to reflect that decedent had a 2/3-ownership interest in

the Lancaster property. The oral motion to exclude the Harlem Road property from the

inventory was granted.

{¶ 5} The magistrate denied the remaining exceptions. Because appellee testified

that there was no lease on the Pataskala property and that property had been bequeathed

to appellant in decedent's will, the magistrate concluded that appellant had the right to

reside on the property. The magistrate also indicated that because the inventory was

incomplete regarding vehicles owned by decedent, appellee would have the opportunity to

select up to two vehicles to exclude from the inventory once the inventory was amended.

No. 17AP-232 3

{¶ 6} In addition to resolving the exceptions to the inventory, the magistrate

ordered appellant to appear for a hearing on his removal as executor. The magistrate

extended the time period for appellee, as surviving spouse, to make elections under R.C.

Chapter 2106.

{¶ 7} On December 28, 2016, appellant objected to the magistrate's decision. He

argued that the Harlem Road property should not have been excluded from the inventory

and that the surviving spouse should not be permitted to select up to two vehicles

pursuant to R.C. 2106.18(A). No transcript of the November 29, 2016 hearing was filed

within 30 days of the filing of the objections as required by Civ.R. 53(D)(3)(b)(iii).

{¶ 8} Appellant filed a motion for leave to correct transcript filing. He alleged

that there was confusion as to the existence of a recording of the November 29, 2016

hearing. He mistakenly assumed that the digital recording filed on December 14, 2016,

the same day the magistrate's order was filed, was the recording that needed to be

transcribed. He realized his error when the transcript was filed. On February 24, 2017,

appellant filed the transcript from the November 29, 2017 hearing, without leave of court.

{¶ 9} On March 7, 2017, the trial court entered its judgment entry denying

appellant's objections and adopting the magistrate's decision. It noted that pursuant to

R.C. 2115.02, an executor is required to make and return a true inventory of real property

and tangible and intangible assets owned by a decedent at the time of death. The trial

court determined that the magistrate did not err in ordering that the inventory be

amended to include vehicles that appellant had excluded from the inventory because the

evidence showed that decedent owned these vehicles at the time of his death.

{¶ 10} The trial court determined that the magistrate properly denied the

exception to exclude two vehicles subject to the surviving spouse's election under R.C.

2106.18. Because the inventory was incomplete and the court did not know which

vehicles the surviving spouse would elect once the inventory was amended, it was not

possible to instruct the executor to remove those vehicles from the inventory. The trial

court stated that appellee would have the right to make her election pursuant to R.C.

2106.18 once the inventory was amended.

{¶ 11} The trial court also found that the magistrate did not err in ordering the

Harlem Road property excluded from the inventory. It rejected appellant's argument that

No. 17AP-232 4

decedent never intended to relinquish his ownership of the Harlem Road property and

that the deeds were meant to simply protect appellee's interest in the real estate. The

evidence showed that decedent executed and recorded a quit claim deed that transferred

all of his interest to appellee in 1991. The trial court also approved the magistrate's

decision to set a hearing for the possible removal of appellant as executor.

{¶ 12} The following week, the magistrate entered an order denying as moot

appellant's motion for leave to correct the transcript filing. The magistrate also removed

appellant as executor due to his neglect to make and return a true inventory of the real

property and assets owned by the estate, numerous pro se filings of documents of dubious

legal merit, and his attempts to block appellee's right to exercise elections under R.C.

Chapter 2106 as surviving spouse.

{¶ 13} On April 4, 2017, appellant filed his notice of appeal. He presents six

assignments of error:

First Assignment of Error

The Probate Court erred in finding Appellants request for leave to

correct transcript as moot when Civil Rule 53(D)(b)(iii) requires

permission to enter into the record whether filed or not filed.

Second Assignment of Error

The Probate Court erred in determining the Decedent conveyed total

ownership and title of his separate property via quitclaim deed in

1991 to spouse, when total ownership and title was not available for

him to convey. (March 7, Judgment Entry Adopting)

Third Assignment of Error

The Probate Court erred determining the 1991 quitclaim deed valid

and authentic when it represents a buyer/seller conveyance which

was impossible, moreover accepting this document as authentic by

individuals not qualified to determine its authenticity and the exact

ones representing this fraudulent conveyance. The deed is void

therefore any action utilizing it void as well. (March 7, Judgment

Entry Adopting)

Fourth Assignment of Error

The Probate Court errors when consistently, it will not address any

part of spouse failing to exercise her rights within the time

requirements contained in R.C. 2106, moreover fails to meet the

mandates in motions pursuant 2106.25. Failure to address subject

matter historically deems the accusation of the complaining part to

be correct. (March 7, Judgment Entry Adopting)

No. 17AP-232 5

Fifth Assignment of Error

The Probate Court erred when pursuant R.C. 2109.24 removed son

as executor of his father's estate predominately for inventory issues,

when it was well known and documented, that unrestraint, spouse

and spouse's counsel, to date and with malice have interfered and

made it nearly impossible to accomplish. (March 16, Magistrate

Decision)

Sixth Assignment of Error

The Probate Court erred in allowing spouse pursuant 2106.18 to elect

up to two (2) automobiles from Decedents estate when they are

bequeathed to others.

(Sic passim.)

{¶ 14} As a preliminary matter, we address appellee's argument that we should

dismiss this appeal for lack of jurisdiction for two reasons. First, two of the assignments

of error are not properly before this court because they relate to orders/decisions not

included in the notice of appeal. Second, the judgment that is referenced in the notice of

appeal is not a final appealable order.

{¶ 15} The purpose of a notice of appeal is to advise the parties that an appeal of a

particular claim is forthcoming. Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. No. 09AP-

510, 2009-Ohio-6852, ¶ 10, citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio

St.2d 257, 259-60 (1982). If the notice meets that purpose, an appellee cannot

demonstrate surprise or prejudice. App.R. 3(D) specifies that a notice of appeal "shall

designate the judgment, order or part thereof a[p]pealed from." This court has previously

held that " '[w]e have jurisdiction to review assignments of error stemming only from the

judgment subject of the notice of appeal.' " State v. Darks, 10th Dist. No. 12AP-578, 2013-

Ohio-176, ¶ 6, quoting State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315, ¶ 7.

Assignments of error that do not relate to the judgment that is the subject of the notice of

appeal are not properly before the court. Id. However, the Supreme Court of Ohio has

held that the timely filing of a notice of appeal is the only jurisdictional requirement for

perfecting a valid appeal. Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995),

syllabus. "When presented with other defects in the notice of appeal, a court of appeals is

vested with discretion to determine whether sanctions, including dismissal, are

warranted, and its decision will not be overturned absent an abuse of discretion." Id. at

322.

No. 17AP-232 6

{¶ 16} The judgment entry identified in the notice of appeal must be a final

appealable order. Article IV, Section 3(B)(2) of the Ohio Constitution establishes that

courts of appeals "have such jurisdiction as may be provided by law to review and affirm,

modify, or reverse judgments or final orders of the courts of record inferior to the court of

appeals within the district." To qualify as a final appealable order, an order must satisfy

the requirements of R.C. 2505.02. IBEW, Local Union No. 8 v. Vaughn Indus., L.L.C.,

116 Ohio St.3d 335, 2007-Ohio-6439, ¶ 7. Pursuant to R.C. 2505.02(B)(1) and (2), an

order is final and appealable if it "affects a substantial right in an action that in effect

determines the action and prevents a judgment" or if it "affects a substantial right made in

a special proceeding or upon a summary application in an action after judgment."

{¶ 17} If the appealed judgment does not constitute a final appealable order, an

appellate court lacks jurisdiction to review it. Gehm v. Timberline Post & Frame, 112

Ohio St.3d 514, 2007-Ohio-607, ¶ 14. Consequently, in the absence of a final appealable

order, an appellate court must dismiss the appeal. Browder v. Shea, 10th Dist. No. 04AP-

1217, 2005-Ohio-4782, ¶ 11.

{¶ 18} Appellant's assignments of error involve three separate entries. The first

assignment of error concerns the "Magistrate Order Dismissing Motion for Leave to

Correct Transcript Filing as Moot" filed March 16, 2017. The fifth assignment of error

involves the "Magistrate Decision Removing Executor Pursuant to R.C. 2109.24" also filed

March 16, 2017. The remaining assignments of error discuss the "Judgment Entry

Overruling Objections and Adopting the Magistrate's Decision Entered December 14,

2016" filed March 7, 2017.

{¶ 19} The notice of appeal filed on April 4, 2017 states:

Notice is hereby given that the Estate of Thomas W. Robison

Jr., deceased, represented by Thomas W. Robison III, Son,

Heir, appeals to the Court of Appeals of Franklin County,

Ohio, Tenth Appellate District from the Order of The Probate

Court of Franklin County, Ohio overruling objections and

Adopting The Magistrate’s Decision in this action entered on

March 07, 2017. This Appeal involves substantial rights of

Heirs and is pursuant The Ohio Rules of Appellate Procedure,

Rule 4(B)(5).

{¶ 20} The orders that are the subject of the first and fifth assignments of error

were filed on March 16, 2017, which is after the March 7, 2017 judgment that is the subject

No. 17AP-232 7

of the notice of appeal. It is axiomatic that an appellee would not be advised that an

appellant is appealing from an order issued after the judgment identified in the notice of

appeal. Unless an appellant takes steps to amend the notice of appeal pursuant to App.R.

3(F), assignments of error involving entries that postdate the judgment identified in the

notice of appeal would not be properly before a court. Here, appellant failed to amend his

notice of appeal or file a separate notice of appeal that identified either of the March 16,

2017 entries as a judgment being appealed.1

{¶ 21} In addition, the first and fifth assignments of error are not properly before

this court because they are an attempt to appeal from a magistrate's order or decision. A

magistrate's order or decision is not directly appealable to this court. See Bond v. Bond,

10th Dist. No. 98AP-356 (Dec. 15, 1998); Walker v. Estate of Walker, 7th Dist. No. 00 CA

208 (Oct. 15, 2001).

{¶ 22} Civ.R. 53(D)(4)(a) explicitly states that a magistrate's decision is not

effective until adopted by the court. A party also waives the right to assign as error on

appeal any issue of law or fact that the party fails to object to unless it constitutes plain

error. Civ.R. 54(D)(3)(b)(iv). Thus, a magistrate's decision is an interlocutory order, not

a final appealable order. Bennett v. Estate of Hollabaugh, 10th Dist. No. 02AP-1170,

2003-Ohio-4759, ¶ 31. Accordingly, we lack jurisdiction to consider appellant's first and

fifth assignments of error, and we dismiss those assignments of error.

{¶ 23} The second, third, fourth, and sixth assignments of error arise from the

probate court's March 7, 2017 judgment entry overruling appellant's objections to the

magistrate's decision on the exceptions to the inventory. Appellee argues that the

March 7, 2017 order is not a final appealable order. We agree.

{¶ 24} To qualify as a final appealable order under R.C. 2505.02(A)(2), the order

must affect a substantial right in a special proceeding. Pursuant to R.C. 2505.02(A)(1), a

"[s]ubstantial 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."

An order "affects" a substantial right when that order is " 'perceived to be one which, if not

immediately appealable, would foreclose appropriate relief in the future.' " Dunham v.

1 We note that appellant filed a second notice of appeal on April 16, 2017, that was assigned case No. 17AP-

257. We dismissed that case because the notice of appeal was identical to the notice of appeal filed in this

case.

No. 17AP-232 8

Ervin, 10th Dist. No. 17AP-79, 2017-Ohio-7616, ¶ 13, quoting Bell v. Mt. Sinai Med. Ctr.,

67 Ohio St.3d 60, 63 (1993).

{¶ 25} This court has previously noted that appellate districts are split on the issue

of whether probate estate administration proceedings are "special proceedings" under

R.C. 2505.02(A)(2). Fougere v. Estate of Fougere, 10th Dist. No. 11AP-791, 2012-Ohio-

4830, ¶ 20. Although in Fougere we declined to determine whether probate estate

administration is a special proceeding, id. at ¶ 23, this court has 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." Sheets v.

Antes, 14 Ohio App.3d 278 (10th Dist.1984), paragraph two of the syllabus. However, a

judgment entry that overrules exceptions but fails to approve a final inventory is not a

final appealable order. In re Estate of Persing, 11th Dist. No. 2009-T-0120, 2010-Ohio-

2687, ¶ 11 ("an order denying exceptions to an inventory is only a final, appealable order if

it also approves the inventory"); In re Estate of Smith, 4th Dist. No. 06CA2915, 2007-

Ohio-3030, ¶ 11.

{¶ 26} Applying this rule to the instant case, we find the probate court's order does

not constitute a final appealable order. The judgment clearly contemplates further action

in the probate court before approval or settlement of the final account. A number of

vehicles are to be added to the inventory. The location and actual existence of some of the

vehicles was unknown at the time of the entry due to the nature of decedent's

business/hobby of buying, selling, and trading vehicles. The probate court extended

appellee's right to exercise her elections as surviving spouse under R.C. Chapter 2106

precisely because the final inventory was not yet known. The judgment entry does not

approve or settle an account. The future filing of an amended inventory is clearly

contemplated. Once that happens, the parties might take further action with regard to

the inventory. As such, future relief on the objections would not be foreclosed to

appellant. We, therefore, dismiss the second, third, fourth, and sixth assignments of error

for lack of a final appealable order.

No. 17AP-232 9

{¶ 27} For the foregoing reasons, appellant's appeal is dismissed for lack of

jurisdiction.

Appeal dismissed.

DORRIAN and HORTON, JJ., concur.

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