2013 Ohio 2622
Ohio Ct. App.2013Background
- Appellant Brian G. Ross appeals a 2012 probate C.P. judgment denying his exception to the amended inventory and deeming a decedent-to-appellant transfer a loan.
- Decedent Joseph M. Ross died January 3, 2011, leaving four children as potential co-executors; two resigned/removed; Renee Maiorca became sole fiduciary.
- Probate filed initial inventory (Sept. 9, 2011); amended inventory (May 29, 2012); appellant filed four objections to the amended inventory (June 19, 2012).
- The four objections included (1) real property in Westlake, (2) Ross, Maiorca & Associates asset, (3) a 2009 transfer of $235,000 treated as a loan, (4) decedent’s personal property as an asset.
- Hearing (Oct. 10, 2012) showed appellant made 20 payments on the loan; noGift evidence found; no federal gift tax filed; appellant claimed gift.
- Judgment (Oct. 23, 2012) found the transfer to be a loan and owed $199,405.47; other three objections were continued for later resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ross bore the burden to prove a gift by clear and convincing evidence | Ross argues gift presumption applies as a family member. | Maiorca contests burden allocation and gift proof standards. | Not decided; appeal dismissed for lack of final order. |
| Whether the court abused discretion in treating the transfer as a loan absent evidence of a loan or rebutting the presumption | Gift/presumption not sufficiently rebutted by evidence of loan. | Court properly treated transfer as loan based on conduct and payments. | Not decided; appeal dismissed for lack of final order. |
| Whether, absent the presumption, Ross proved a valid gift by clear and convincing evidence | Gift evidence should be sufficient to establish a gift. | No clear and convincing gift evidence was presented. | Not decided; appeal dismissed for lack of final order. |
| Whether the October 23, 2012 judgment is a final, appealable order | Judgment final on the asserted exception and assets. | Remaining inventory issues continued; no final settlement. | Not a final order; appellate jurisdiction lacking; appeal dismissed. |
Key Cases Cited
- Sheets v. Antes, 14 Ohio App.3d 278 (1984) (denial of inventory exceptions is final only if inventory is approved)
- In re Persing, 11th Dist. No. 2009-T-0120, 2010-Ohio-2687 (2010) (final appealable order requires inventory approval)
- In re Lilley, 1999 Ohio App. LEXIS 6094 (1999) (inventory rulings and abandonment of finality rules)
- In re Perry, 2008-Ohio-351 (2008) (inventory appealability considerations)