Fougere v. FougereFougere v. Fougere
Rendered on October 18, 2012
Thomas Arthur Fougere, pro se.
Carlile, Patchen & Murphy LLP, Carl A. Aveni, II, and Brandon A. Borgmann, for appellee.
APPEAL from the Franklin County Probate Court
CONNOR, J.
{¶ 1} Plaintiff-appellant, Thomas Arthur Fougere (“appellant“), appeals from a judgment entered by the Franklin County Probate Court (“probate court“) denying appellant‘s motion for summary judgment regarding a creditor claim filed against defendant-appellee, the Estate of Arthur Fougere (“the estate“). Beсause the judgment from which appellant has appealed is not a final appealable order, we dismiss this appeal for lack of jurisdiction.
I. Facts and Procedural Background
{¶ 2} Arthur Fougere died testate on January 12, 2010, as a resident of Franklin County, Ohio. Susan P. Yoshida was appointed executor of the estate in accordance with the terms of the will. Appellant, a beneficiary of the estate, subsequently filed an application for removal of Ms. Yoshida as the executor due to misconduct. On July 9,
{¶ 3} Following the appointment of Robert B. Barnett, Jr., as the new administrator, Mr. Barnett filed a motion to extend the time to file аn answer to appellant‘s complaint for the creditor‘s claim, asserting that additional time was needed to fully assess the merits of the claim and to accept or reject the claim following that assessment. On September 8, 2010, the probate court granted the requested extension. On October 4, 2010, the probate court granted a second extension of time for Mr. Barnett to fully assess the claim and file an answer, making the answer due on or before December 3, 2010. On October 12, 2010, appellant filed a combined motion for summary judgment and a memorandum objecting to the second extension of time to file an answer. Mr. Barnett filed a response in opposition to the summary judgment motion on November 19, 2010. On December 2, 2010, the probate court denied the October 12, 2010 motion for summary judgment on thе basis that the motion was premature, since Mr. Barnett still had time to file his answer to the complaint and because the motion failed to comply with the requirements of
{¶ 4} On April 29, 2011, Mr. Barnett filed a partial rejection of appellant‘s claim for payment of $166,848.46. Pursuant to that filing, the administrator rejected $66,018.63 of appellant‘s claim and proposed to pay a part of the claim equal to $100,842.12.1 On May 9, 2011, appellant filed a memorandum in response to the partial
{¶ 5} On August 16, 2011, the probate court issued a decision and entry denying аppellant‘s motion for summary judgment on the grounds that, after a claim has been rejected, the probate court lacks subject-matter jurisdiction to enter an order adjudicating the claim. Consequently, the probate court simultaneously issued an order dismissing the action. This timely appeal now follows.
II. Assignment of Error
{¶ 6} Appellant‘s brief, filed pro se, fails to set forth a succinct statement of the assignment of error(s) presented for review. Nevertheless, appellant‘s brief appears to generally assert that the probate court erred by failing to grant judgment in his favor, disapproving the partial rejection by the administrator that allowed a portion of the claim, and dismissing the action.
III. Final Appealable Order
{¶ 7} In response to appellant‘s assignment of error, appellee asserts the trial court‘s decision and entry denying appellant‘s motion for summary judgment and dismissing the action is not a final appealable order. As a result, appellee questions this court‘s jurisdiction to hear this appeal.
{¶ 8} An appellate court has jurisdiction to review and affirm, modify, or reverse judgments or final orders of the trial courts within its district. See
(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 enforсe 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, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to
section 2307.85 or2307.86 of the Revised Code , a prima-facie showing pursuant tosection 2307.92 of the Revised Code , or a finding made pursuant to division (A)(3) ofsection 2307.93 of the Revised Code .(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, 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 аpplication in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(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.
(5) An order that determines that an action may or may not be maintained as a class action;
(6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, * * * or any changes made by Sub. S.B. 80 of the 125th general assembly, * * *;
(7) An order in an appropriation proceeding that may be appealed pursuant to division (B)(3) of
section 163.09 of the Revised Code .
{¶ 10} In the instant case, appellee argues this court lacks subject-matter jurisdiction over this appeal because none of the criteria set forth in
{¶ 11} Upon review, we conclude that the order at issue on appeal is not a final order under either
{¶ 12} ” ‘Under both
A. R.C. 2505.02(B)(1)
{¶ 13} We find the order at issue does not in effect determine the action and prevent a judgment. Although the order involves a substantial right (e.g., it involves a right protected by statute) it does not affect that right by determining the action and preventing a judgment. This is because appellant does have an available avenue for relief, specifically the avenue set forth in
{¶ 14} Pursuant to
{¶ 15} After a claim against an estate has been rejected, the probate court lacks subject-matter jurisdiction to enter an order adjudicating the claim. In re Estate of Vitelli, 110 Ohio App.3d 181, 183 (2d Dist.1996). “A probate court lacks subject matter jurisdiction to enter an order adjudicating a claim against an estate where that claim has been rejected by the estate. The only remedy for the claimant in such a case is an action in a court of general jurisdiction.” Id., citing 33 Ohio Jurisprudence 3d, Decedents’ Estates, Section 1574 (1982, Supp.1995).
{¶ 16} Here, the probate court‘s denial of appellant’s motion for summary judgment, which included the dismissal of his claim against the estate due to a lack of jurisdiction based upon the fact that the clаim had been rejected by the estate, did not
{¶ 17} Consequently, we find the order at issue is not a final order pursuant to
B. R.C. 2505.02(B)(2)
{¶ 18} Under
{¶ 19} In Polikoff v. Adam, 67 Ohio St.3d 100 (1993), the Supreme Court of Ohio considered the issue of whether a particular order was entered in a special proceeding and affected a substantial right, and therefore constituted a final order. It determined that “[o]rders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to
{¶ 21} While numerous courts of appeal have considered this issue and reached conflicting results, our court of appeals has never specifically decided the issue. In In re Estate of Nardiello, 10th Dist. No. 01AP-281 (Oct. 30, 2001), we were faced with the issue of whether a probate court‘s decision to remove a fiduciary was a final appealable order, which caused us to contemplate whether probate proceedings were “special proceedings.” Upon noting the existence of a nearly equal split of authority and concluding there was no conclusive or binding precedent for either side on the question of whether probate estate administration proceedings were “special proceedings,” we looked to
{¶ 22} Consequently, we determined the removal of an executor fell within the category of provisional remedies for which no meaningful or effective remedy could be granted upon an appeal following final resolution of the estate, and therefore we concluded the order constituted a final appealable order. As a result of determining the final and appealable nature of the order via a different provision, it was unnecessary for us
{¶ 23} Nevertheless, even if we were to decide that probate proceedings are “special proceedings” within the meaning of
{¶ 24} As noted above, a “substantial right” under
{¶ 25} Furthermore, the probatе court‘s order leaves the merits of the claim unresolved by recognizing the lack of jurisdiction to determine the action. See generally, In re Adoption of M.P. at ¶ 26. In the instant case, appellant may pursue other avenues, such as a lawsuit in the general division of the common pleas court, to address any
IV. Conclusion
{¶ 26} Upon review, we find none of thе remaining provisions under
Appeal dismissed.
BRYANT and KLATT, JJ., concur.