In re Estate of Beatley v. FisherIn re Estate of Beatley v. Fisher
DECISION
Rendered on October 24, 2024
On brief: Kevin E. Humphreys, for appellant.
On brief: The Law Office of Wright & Associates, LLC, Benjamin W. Wright, and Melissa A. Schumacher, for appellee. Argued: Melissa A. Schumacher.
DORRIAN, J.
{1} Plaintiff-appellant, Jack K. Beatley, appeals from the judgment entry of the Franklin County Court of Common Pleas, Probate Division, adopting a magistrate‘s decision granting summary judgment in favor of defendant-appellee, Shawn L. Fisher, on an action for concealment of estate assets. For the reasons that follow, we affirm.
I. Facts and Procedural History
{2} Brad J. Beatley died intestate; his siblings, appellant and Kelly Kurth-Beatley, are his heirs and next of kin. On September 8, 2020, appellant filed an action for concealment of assets pursuant to
{3} Appellant attached several documents to his verified complaint, including: a May 2012 warranty deed showing a third party conveyed the Florida property to Brad; Articles of Organization of the Ohio Secretary of State filed in June 2012 identifying “PBJ Holdings” as a for-profit Limited Liability Company (“LLC“) with appellee signing as an individual “member, manager or other representative” to appoint himself as the statutory agent; an Ohio Secretary of State Certificate confirming Articles of Incorporation were filed and recorded for “PBJ Holdings“; a June 2012 quit-claim deed transferring ownership of the Florida property from Brad to “PBJ Holdings, LTD, an Ohio Limited Partnership“; a 2018 financial statement for Brad stating the Florida property as a personal asset valued at $450,000; an insurance invoice for the Florida property from May 2013 addressed to Brad; property tax installment invoices from 2013 and 2018 stating the address for “PBJ Holdings” as 91 Winner Avenue, which previous exhibits linked to Brad; and a May 2020 letter from appellee‘s attorney stating, in part, that no operating agreement exists for “PBJ Holdings.” (Compl., Exs. 3, 5, 6, 7, 8, 10, 15.)
{4} On October 5, 2020, appellant filed a motion for preliminary injunction to preserve the status quo and prevent the Florida property from being conveyed while the concealment action proceeded. In arguing why an injunction was necessary, appellant argued that “despite the mischaracterization of PBJ Holdings, LTD as an Ohio limited partnership, instead of an Ohio limited liability company, the deed would appear to be effective to PBJ Holdings, LTD an Ohio limited liability company.” (Oct. 5, 2020 Memo in Support of Mot. for Preliminary Injunction at 3.) Appellant asserted that Brad‘s transfer of the Florida property to that LLC constituted his capital contribution in support of his membership interest. The parties agreed to, and the probate court granted, the temporary restraining order and injunction.
{6} Appellant filed a memorandum contra the motion to dismiss on May 7, 2021. He argued the probate court had jurisdiction to resolve the claim, that in general evidentiary quality material accompanied his verified complaint, and that the court could not consider the unauthenticated Operating Agreement in resolving the motion to dismiss. Appellant contended the Operating Agreement “does not create an evidentiary basis to warrant an evidentiary hearing,” but if a hearing was set, appellant requested a scheduling conference to address “necessary discovery” such as “expert review and examination” of the Operating Agreement. (Memo Contra at 8.) Appellee filed a reply on May 12, 2021 again requesting the probate court hold a hearing pursuant to
{7} Approximately one year later, in May 2022, the probate court requested appellant submit a status letter. In his status letter, appellant stated the parties had been unable to resolve the matter and requested a conference to set a schedule for discovery and trial.
{8} On March 28, 2023, the probate court magistrate converted appellee‘s motion to dismiss into a motion for summary judgment pursuant to
{9} Appellant did not object to the magistrate‘s order. On April 13, 2023, appellant filed a “motion for time to permit discovery for summary judgment purposes.” (Mot. at 1.) Appellant requested 45 days to conduct discovery and acquire evidence to oppose the motion for summary judgment and challenge the Operating Agreement. The motion does not mention
{10} By the end of April 28, 2023, the deadline set by the magistrate, appellant had not filed a memorandum in opposition to appellee‘s motion for summary judgment. On that same date, appellee submitted a supplemental memorandum to his motion for summary judgment. Appellee attached to the supplemental memorandum his own affidavit and one from Voelkel as well as documents already in the record, namely the Operating Agreement
{11} On May 2, 2023, appellant filed a document entitled, “Reply in Support of Motion for Time to Permit Discovery for Summary Judgment Purposes.” (Reply at 1.) Within it, appellant argued he should have time under
{12} On May 15, 2023, the probate court magistrate issued a decision on appellee‘s motion for summary judgment, appellant‘s April 13, 2023 motion for more time, and “all related filings filed after the [motion for summary judgment].” (Mag.‘s Decision at 1.) The magistrate determined the parties did not contest that Brad transferred ownership of the Florida property to PBJ Holdings when he executed a quit claim deed in June 2012 and that the Operating Agreement, supported by Voelkel‘s affidavit as a disinterested third party, showed that appellee is the sole owner of PBJ Holdings. The magistrate noted that appellant‘s explanation as to why Brad transferred the Florida property to PBJ Holdings—to avoid creditors—supported the conclusion that appellee, through PBJ Holdings, holds the title to the Florida property. Therefore, the magistrate found no genuine issue of material fact exists concerning appellee‘s ownership of PBJ Holdings and, by extension, title to the Florida property. As a result, the magistrate found the concealment action failed under
{13} Appellant filed five objections to the magistrate‘s decision pursuant to
II. Assignments of Error
{14} Appellant assigns the following six assignments of error for our review:
[I.] THE PROBATE COURT ERRED BY FAILING TO CONDUCT A HEARING AND MAKE FINDINGS IN ACCORDANCE WITH THE PROVISIONS OF
R.C. 2109.50 -52, AND CONDUCT AN EXAMINATION OF [APPELLEE] WITH RESPECT TO THE BUSINESS INTERESTS OF THE DECEDENT BRAD BEATLEY INVOLVING THE BUSINESS THAT BRAD BEATLEY CONDUCTED AS PBJ HOLDINGS, LTD.; WHICH INCLUDED RENTAL ACTIVITIES OF BRAD BEATLEY‘S FLORIDA HOMEHELD IN THE NAME OF PBJ HOLDINGS, LTD. AN OHIO LIMITED PARTNERSHIP. [II.] THE PROBATE COURT ERRED BY OVERRULING [APPELLANT‘S] OBJECTION TO THE PROBATE COURT‘S REJECTION OF THE FILING OF A MOTION TO SET A STATUS CONFERENCE WHICH WAS SUBMITTED TO THE COURT ON APRIL 28, 2023.
[III.] THE PROBATE COURT ERRED BY OVERRULING [APPELLANT‘S] OBJECTION TO THE MAGISTRATE‘S RENDITION OF SUMMARY JUDGMENT PURSUANT TO
CIV.R. 56 , WITHOUT AFFORDING THE [APPELLANT] WITH 28 DAYS FOR RESPONSE FOLLOWING THE MOVANT‘S SUBMISSION.[IV.] THE PROBATE COURT ERRED BY OVERRULING [APPELLANT‘S] OBJECTION TO THE MAGISTRATE‘S CONSIDERATION OF THE UNAUTHENTICATED PBJ HOLDINGS, LTD., OPERATING AGREEMENT.
[V.] THE PROBATE COURT ERRED BY OVERRULING [APPELLANT‘S] OBJECTIONS TO CERTAIN FACTUAL CONCLUSIONS MADE BY THE MAGISTRATE WHICH DID NOT CONSTRUE THE FACTS IN FAVOR OF THE NON-MOVING PARTY.
[VI.] THE PROBATE COURT ERRED BY OVERRULING [APPELLANT‘S] OBJECTIONS TO CERTAIN FACTUAL CONCLUSIONS MADE BY THE MAGISTRATE WHICH DID NOT CONSTRUE THE FACTS IN FAVOR OF THE NON-MOVING PARTY.
III. Discussion
{15} The appeal challenges both the procedural process employed by the probate court and the merits of the decision to grant summary judgment to appellee based on the determination that appellee is the sole owner of PBJ Holdings, LTD, a company that holds title to the Florida property. As explained further below, the facts of this case warrant the conclusion and result arrived by the probate court. In summary, the probate court‘s use of summary judgment to resolve the action prior to conducting an examination of appellee was both supported by law and justified by appellant‘s acquiescence to the procedure. Moreover, summary judgment in favor of appellee was warranted since the motion for summary judgment set forth
A. Failure to comply with R.C. 2109.50 through 2109.52
{16} In his first assignment of error, appellant contends the probate court erred by failing to conduct a hearing and make findings in accordance with the provisions of
{17} First, the question here deals with a possible contradiction between a
{18} The Supreme Court of Ohio in Ohio Patrolman‘s Benevolent Assn. v. Cleveland, ___ Ohio 3d. ___, 2024-Ohio-2651, ¶ 15-17 recently described general rules to evaluate such a conflict. “Generally, when a statutory provision conflicts with the Civil Rules, the rule controls procedural issues and the statute controls matters of substantive law.” Id. at ¶ 15, citing Ferguson v. State, 151 Ohio St.3d 265, 2017-Ohio-7844, ¶ 20, citing Boyer v. Boyer, 46 Ohio St.2d 83, 86 (1976), and Ohio Constitution, Article IV, Section 5(B). “But the Civil Rules do not always preempt statutory law, even on procedural matters.” Ohio Patrolman‘s at ¶ 15. As relevant here, the civil rules do not apply to special statutory proceedings in which the procedure set out in the statute would render the civil rule “clearly inapplicable.” Id., citing
{19} “An
{20} Consistent with the purpose of this statute, appellate courts have determined that the civil rules are not “by their nature clearly inapplicable” to an
{21} With these considerations in mind, we conclude that, contrary to appellant‘s argument, summary judgment is generally permissible to efficiently resolve concealment actions brought under
{22} A second basis to overrule appellant‘s first assignment of error arises from his acquiescence to summary judgment as a procedure to resolve this action. Generally, a party cannot acquiesce to a procedure employed by a trial court and then wait to challenge that procedure upon receiving an adverse outcome. See State ex rel. Kline v. Carroll, 96 Ohio St.3d 404 (2002), citing Lester v. Leuck, 142 Ohio St. 91 (1943), paragraph one of the syllabus (“[A] party is not entitled to take advantage of an error that he himself invited or induced the court to make.“); Burchett v. Burchett, 4th Dist. No. 16CA3784, 2017-Ohio-8124, ¶ 16 (rejecting appellant‘s argument that the trial court erred by failing to hold a hearing to consider his contempt motion where the appellant “invited any error by acquiescing to the court‘s procedure“); J. Griffin Ricker Assocs., L.L.C. v. Well, 10th Dist. No. 21AP-29, 2022-Ohio-1470, ¶ 34 (stating that courts generally “disfavor a party acquiescing to” how a case proceeds “and then later attempting to avoid an adverse ruling by calling [that issue] a foul“). Courts have applied this general rule within the context of
{23} In this case, while in his complaint appellant asked the probate court to follow the procedure set forth in
{24} In these circumstances, we do not find the probate court erred in rejecting appellant‘s objection to the magistrate‘s decision based on the procedure of resolving the concealment action through summary judgment prior to an examination under
B. Rejecting the April 28, 2023 motion to set a status conference
{25} In his second assignment of error, appellant argues the probate court erred by overruling his objection challenging the probate court‘s rejection of his motion to set a status conference. Specifically, appellant argues that at 8:01 p.m. on April 28, 2023—the magistrate‘s deadline to respond to the motion for summary judgment—he submitted via the electronic filing system a motion requesting a status conference. He asserts the probate court “allowed the submitted motion to remain in the queue for more than two weeks while the magistrate prepared the decision” on summary judgment before rejecting the motion within an hour of the summary judgment decision “so that it would not appear on the docket.” Appellant contends these actions violate his “legal right to file in the record, and obtain a ruling” on the motion, which constitutes a denial of due process. (Appellant‘s Brief at 32, 31.)
{26} “A trial court has the inherent authority to control its docket and manage the cases before it.” Flynn v. Flynn, 10th Dist. No. 03AP-612, 2004-Ohio-3881, ¶ 10, citing Mayer v. Bristow, 91 Ohio St.3d 3, 7 (2000). A trial court‘s decision in this regard will not be reversed absent an abuse of discretion. Id.
{27} In this case, appellant did not object to the March 29, 2023 magistrate‘s order that established the April 28, 2023 deadline to oppose summary judgment, he submitted the motion to set a status conference past the time to respond to summary judgment, and he did not comply with
{28} Appellant has neither explained how the probate court abused its discretion in declining to accept the motion to set a status conference in these circumstances nor provided legal authority to support his assignment of error. As a result, appellant has not demonstrated error on appeal. Miller, 2002-Ohio-3681, at ¶ 2; see also
{29} Moreover, appellant has likewise not shown the probate court‘s action in this regard prejudiced him. In the May 15, 2023 decision on summary judgment, the magistrate recommended dismissing “all related filing[s]” as moot, which included two similar motions filed by appellant that were pending at that time. (Mag.‘s Decision at 6.) Our review of the record shows the instant motion, if it had been accepted by the probate court, would have likely yielded the same result.
{30} Because appellant has not demonstrated the probate court erred by rejecting the April 28, 2023 motion or that he was prejudiced by this decision, his argument lacks merit. Accordingly, appellant‘s second assignment of error is overruled.
C. Additional 28 days to respond to appellee‘s supplement to the motion for summary judgment
{31} In his third assignment of error, appellant argues the probate court erred by overruling his objection to the magistrate issuing a decision on summary judgment without affording him 28 days to respond to appellee‘s supplement to the motion for summary judgment. He asserts the process employed by the magistrate violates
{32} As previously discussed, “[a] trial court has the inherent authority to control its docket and manage the cases before it” and an appellate court reviews a challenge to the trial court‘s choices in this regard for an abuse of discretion. Flynn at ¶ 10, citing Mayer at 7. The trial court likewise has “broad discretion” in managing the discovery process. Kristian v. Youngstown Orthopedic Assocs., 7th Dist. No. 03 MA 189, 2004-Ohio-7064, ¶ 18, citing State ex rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 95 (1990) (“Trial courts have extensive jurisdiction and power over discovery.“). Accordingly, “[t]he determination as to whether to allow additional time to permit a party opposing summary judgment to conduct discovery is within the sound discretion of the trial court.” Kristian at ¶ 18; Norris at ¶ 17. However, in the exercise of judicial discretion, no court has the authority to commit an error of law. Watson v. Watson, 10th Dist. No. 22AP-729, 2023-Ohio-3719, ¶ 15, citing Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38-39. See, e.g., Huntington Bank, NA. v. Honore, 10th Dist. No. 23AP-384, 2023-Ohio-4524, ¶ 14 (stating that, in general, “[g]ranting a motion for summary judgment before a party‘s response time has expired is reversible error“).
{33} Initially, to the extent appellant argues the magistrate failed to conform to the process stated in
{34} A party seeking summary judgment pursuant to
{35} While appellant argues that “by rule,” he had until May 26, 2023 to respond to appellee‘s April 28, 2023 supplement to the motion for summary judgment, he has not provided legal authority applying
{36} At the trial court level, a party is generally permitted to amend or supplement a previously filed motion for summary judgment, subject to the trial court‘s discretion. Union Bank Co. v. Lampert, 3d Dist. No. 2-13-32, 2014-Ohio-4427, ¶ 34 (“[I]t is well within a trial court‘s discretion to order or allow parties to supplement their arguments in favor of or against summary judgment.“);
{37} Whether the adverse party must be afforded additional time to respond to a supplement or amendment to a motion for summary judgment prior to the trial court‘s decision on that motion depends on whether the party will be prejudiced by a lack of opportunity to respond. See Toros v. Cuyahoga Cty. Bd. of Dev. Disabilities, 8th Dist. No. 99637, 2013-Ohio-4601, ¶ 13-16, appeal not accepted, 2014-Ohio-2725 (rejecting estate‘s challenge to the trial court‘s determination to not allow the estate an opportunity to respond to an
{38} Prejudice, in this context, typically arises where the supplement or amendment to a motion for summary judgment does not merely build upon previously established arguments, but instead presents new arguments or new evidence of a nature that the opposing party has not already had a chance to address. See Toros at ¶ 13-16 (determining the trial court did not err in ruling on an amended motion for summary judgment prior to the opposing party‘s response to the amendment where the amendment did not change the arguments contained within the original motion and the estate had the opportunity to respond to those same arguments within its original brief opposing summary judgment); Fowler at ¶ 30-41 (determining an appellant was not prejudiced by the lack of an opportunity to respond to a supplement to a motion for summary judgment since that supplement did not present any new argument or new evidence, the appellant was already aware of the documents attached to the original summary judgment motion addressed by the supplement, and the appellant had an opportunity to challenge those documents in its opposition brief).
{39} In this case, appellant has not demonstrated prejudice. First, appellant already knew about the arguments and key document appellee addressed with the supplement to the motion for summary judgment. In pertinent part, the supplement added affidavits attempting to authenticate an Operating Agreement and prove appellee is the sole owner of PBJ Holdings, LTD. This issue—whether appellee or Brad (and therefore his estate) owns PBJ Holdings, LTD—was, from the outset, the core issue of appellant‘s concealment action. Furthermore, appellant‘s knowledge of the Operating Agreement, as well as appellant‘s attendant explanation of Voelkel‘s discovery of the document as a disinterested party, dated to April 2021, when appellee filed his motion to dismiss with the Operating Agreement attached.
{40} Second, appellant had a meaningful opportunity to address these arguments, but failed to do so or, in the alternative, file a properly supported
{41} Appellant did not file an objection to the magistrate‘s March 29, 2023 order pursuant to
{42} Appellant‘s failure to file a
While there is a “wide scope of permissible discovery” in civil litigation, “a party‘s efforts to conduct discovery may be interrupted” since “a motion for summary judgment can be filed at ‘any time.’ ” Miller v. NWD 355 McConnell L.L.C., 10th Dist. No. 22AP-725, 2023-Ohio-3374, ¶ 11-12 (10th Dist.), citing
Civ.R. 26(B)(1) and56(B) . “Once a motion for summary judgment is filed,Civ.R. 56(F) provides a mechanism for the nonmoving party to receive additional time to pursue discovery that could assist in responding to the motion.” Id. at ¶ 12, citing Jacobs v. Jones, 10th Dist. No. 10AP-930, 2011-Ohio-3313, ¶ 58.
The party seeking additional time for discovery to oppose a motion for summary judgment must support the
{43} With these considerations in mind, appellant has not demonstrated the probate court was obligated, as a matter of law, to provide him an additional 28 days to respond to appellee‘s supplement to the motion for summary judgment under
D. Consideration of the Operating Agreement
{44} In his fourth assignment of error, appellant contends the probate court erred by overruling his objection to the magistrate‘s consideration of what he contends to be an unauthenticated Operating Agreement for PBJ Holdings. Specifically, appellant argues the affidavits attached to appellee‘s supplemental memorandum fail to authenticate the Operating Agreement and, therefore, the probate court could not rely upon the Operating Agreement to support summary judgment.
{45} An appellate court reviews a trial court‘s decision on the admissibility of evidence, including affidavits submitted to support or oppose summary judgment, for an abuse of discretion. Cashlink, L.L.C. v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-Ohio- 5906, ¶ 9. For the reasons below, we find the probate court has not abused its discretion on the facts of this case.
{47} Here, while in their affidavits included with appellee‘s supplemental memorandum appellee and Voelkel testify regarding the Operating Agreement for PBJ Holdings, neither affidavit states that the document attached is a true and accurate copy. As a result, the affidavits do not properly authenticate the Operating Agreement pursuant to Webb and Seminatore. Nevertheless, as explained below, the probate court‘s decision to rely on the Operating Agreement does not rise to the level of an abuse of discretion on the facts of this case and, even if such reliance was in error, appellant was not prejudiced on the facts of this case.
{48} Generally, the failure to authenticate a document not specifically authorized by
{49} As previously discussed in relation to other assignments of error, in this case appellant did not object to the magistrate‘s use of summary judgment to resolve this issue or the deadline established by the magistrate‘s order. With this uncontested procedure in place, appellant did not move the magistrate to strike the Operating Agreement or file a memorandum in opposition to the summary judgment motion. Rather, appellant sought additional time to conduct discovery to better oppose the evidentiary issues raised by the Operating Agreement. Essentially, appellant recognized the Operating Agreement as
{50} Furthermore, appellant has not demonstrated he was prejudiced by the probate court relying on the Operating Agreement since he failed to oppose the motion for summary judgment and set forth specific facts showing that a genuine issue exists. “An appellate court reviews summary judgment under a de novo standard.” Estate of Sample v. Xenos Christian Fellowship, Inc., 10th Dist. No. 20AP-563, 2021-Ohio-3898, ¶ 9. Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor.
{51} The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact.
{52} The court reviewing a summary judgment motion may consider “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action.”
{53} In this case, appellee met his initial burden of informing the probate court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact.
{54} Appellee pointed the magistrate to the Articles of Organization filed with the Ohio Secretary of State in 2012, which identified “PBJ Holdings” as a for-profit
{55} While in his verified complaint appellant states, “[t]he membership interests, of PBJ Holdings, LTD, an Ohio limited liability company belong to and constitute personal property and assets of the estate[,]” the averments of fact surrounding that statement do not show appellant had personal knowledge of the business ownership. (Compl. at ¶ 36.) See Bahgat; Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 26, quoting Black‘s Law Dictionary 875 (7th Ed.Rev.1999) (” ‘Personal knowledge’ is ‘knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.’ “); Home Savs. & Loans Co. v. Eichenberger, 10th Dist. No. 12AP-1, 2012-Ohio-5662, ¶ 18 (“The mere assertion of personal knowledge satisfies the personal knowledge requirement of
{56} Considering all the above, we conclude appellant has not succeeded in demonstrating the probate court erred in permitting consideration of the Operating Agreement to resolve summary judgment. Accordingly, appellant‘s fourth assignment of error is overruled.
E. Not construing evidence in appellant‘s favor in making factual findings
{57} In his fifth assignment of error, appellant argues the probate court erred by overruling his objection to certain factual findings made by the magistrate in a manner that did not construe the facts in favor of the non-moving party. As previously stated, in rendering summary judgment, a court must strongly construe the evidence in favor of the party against whom the motion for summary judgment is made.
{58} With this assignment of error, appellant specifically challenges the magistrate‘s sixth, seventh, eighth, and ninth findings of fact. The magistrate‘s sixth finding of fact states: “On June 20, 2012, Shawn Fisher filed articles of organization with the Ohio Secretary of State for a limited liability company called PBJ Holdings LTD (“PBJ Holdings“). The operating agreement for PBJ Holdings states that Shawn Fisher has a 100% ownership interest in the limited liability company.” (Mag.‘s Decision at 2.)
{59} Appellant argues that since the Operating Agreement was not authenticated, the magistrate could not rely on it to determine ownership of PBJ Holdings. The argument lacks merit as discussed in resolving the fourth assignment of error. Appellant also challenges the magistrate‘s “conflation” of PBJ Holdings the LLC with PBJ Holdings the Limited Partnership (“LP“) or a separate rental business. However, nothing in the text of the sixth finding of fact indicates the magistrate decided to conflate various types of business. What is stated in the sixth finding of fact is supported by unopposed evidence showing appellee filed articles of organization for an LLC named PBJ Holdings and the Operating Agreement states appellee holds sole ownership of that company. Appellant‘s argument concerning the sixth finding of fact lacks merit.
{60} The magistrate‘s seventh finding of fact states: “The operating agreement was initially unavailable to Shawn Fisher. However, a disinterested third-party, Scott Voelkel, located the operating agreement among the Decedent‘s personal effects.” (Mag.‘s Decision at 3.) Appellant believes conflicting evidence exists concerning the Operating Agreement since appellee‘s lawyer in 2020 stated PBJ Holdings did not have an Operating Agreement, the document was found in Brad‘s office desk, and Voelkel‘s affidavit discussed the creation of an Operating Agreement for Brad‘s business. We disagree. The evidence supported this finding, and appellant had but did not avail himself of the opportunity to challenge discovery of the Operating Agreement and attempt to create an issue of material fact. The magistrate‘s finding in this regard was warranted in these circumstances, and consequently appellant‘s contention that the probate court erred in adopting the seventh finding of fact lacks merit.
{61} The magistrate‘s eighth and ninth findings of fact, which appellant argues together, state:
8. Also on June 20, 2012, the Decedent executed a quitclaim deed to convey ownership of the Miami Beach Property to PBJ Holdings.
9. [Appellant] believes the Decedent transferred the Miami Beach Property to PBJ holdings because “[a]s a consequence of Brad‘s [the Decedent‘s] outstanding creditor issues [he] often resorted to creative albeit often incomplete ownership structures to preserve his property interests.” Pl.‘s Memorandum Contra to Motion to Dismiss at 2. Alternatively, Shawn Fisher believes the Decedent transferred the Miami Beach Property to PBJ Holdings because the Decedent did not want his family to claim an ownership interest in the event of his death. Def.‘s supplemental memorandum to Motion to Dismiss at 5.
(Mag.‘s Decision at 3.)
{62} Appellant contends initially that, “Brad did not deed [his] Florida home to
{63} Appellant has not demonstrated the magistrate erred in this regard. Appellee‘s motion for summary judgment provided evidence to support the magistrate‘s finding that Brad conveyed the Florida property to PBJ Holdings and that the company was an LLC. Appellant did not respond to the motion for summary judgment to create an issue of material fact concerning the conveyance and form of the company. Furthermore, appellant acknowledged PBJ Holdings is an Ohio LLC, that the deed “mischaracterized” the form of the company, and that mistake does not render the deed ineffective. Stated another way, appellant agreed that the language in the deed describing PBJ Holdings as an Ohio Limited Partnership was incorrect but, essentially, not material to the question of ownership. (Oct. 5, 2020 Memo in Support of Mot. for Preliminary Injunction at 3; See also Compl. Ex. 4, Miami-Dade Property record recognizing the transfer of the Florida property to “PBJ Holdings LTD” without regard to the form of the company.) Because the unopposed evidence supports the magistrate‘s finding concerning the form of the company and the record shows appellant agreed with this assessment when it suited him, we find appellant‘s contentions in this regard lacks merit.
{64} Specific to the ninth finding of fact, appellant additionally argues that “no competent evidence” was introduced to show Brad intended to preclude his family from taking his interest in the Florida home. (Appellant‘s Brief at 41.) Because ownership of PBJ Holdings is the dispositive fact in this case, Brad‘s alleged views on preventing his family from having the Florida property are superfluous. In other words, appellant‘s argument here does not concern a material fact that could preclude summary judgment.
{65} With these considerations in mind, appellant has not shown the probate court failed to construe the evidence strongly in his favor or otherwise erred by overruling his objection to the magistrate‘s factual findings. Accordingly, his fifth assignment of error is overruled.
F. Erroneous legal conclusions
{66} In his sixth assignment of error, appellant argues the probate court erred by overruling his objection to certain legal conclusions made by the magistrate which appellant contends were erroneous. Appellant specifically takes issue with the magistrate‘s legal conclusions concerning ownership of the Florida property by PBJ Holdings as an LLC, that the Operating Agreement was supported or authenticated by any affidavit, that Voelkel was a disinterested person, and the magistrate‘s comment regarding necessary parties.
{67} First, appellant contends the magistrate‘s legal conclusion that the Florida property is owned by PBJ Holdings as an Ohio LLC is erroneous. In response to appellant‘s fifth assignment of error, we determined appellant failed to show the magistrate erred in finding Brad conveyed the Florida property to PBJ Holdings, an Ohio LLC, and upheld the probate court‘s decision to adopt the challenged finding of fact. Because the magistrate did not err
{68} Second, appellant contends the magistrate‘s legal conclusion that the Operating Agreement was supported or authenticated by any affidavit, was erroneous. As discussed in more detail in the fourth assignment of error, appellant is correct that the affidavits do not properly authenticate the Operating Agreement pursuant to Webb and Seminatore since they do not attest to the attached document constituting a true and accurate copy of the Operating Agreement. However, we determined the probate court did not abuse its discretion by relying on the Operating Agreement on the facts of this case since appellant did not move the magistrate to strike the Operating Agreement or file a memorandum in opposition to summary judgment but rather sought additional time to conduct discovery to better oppose the evidentiary issues the agreement raised. Cam Dev. Co. at ¶ 11. As a result, while appellant‘s contention about the deficiency in the affidavits is true, he was not prejudiced by the error and has demonstrated reversal is warranted in this case.
{69} Third, appellant contends the magistrate‘s legal conclusions that Voelkel is a disinterested person and that the validity of the Operating Agreement cannot be challenged is erroneous. The Operating Agreement, Voelkel‘s involvement in discovering the Operating Agreement, the allegation that Voelkel had “no interest in the matter,” and appellee‘s prior position that “there was not operating agreement or other organization paperwork for PBJ Holdings, LTD other than articles of organization,” were all assertions set forth in the original motion for summary judgment. (Memo in Support of Summ. Jgmt. at 2, 3.) As described previously, appellant did not object to the Operating Agreement as summary judgment evidence and he failed to oppose summary judgment or request additional time for discovery pursuant to
{70} Next, appellant essentially challenges the ultimate legal conclusion reached by the magistrate in favor of appellee instead of determining Brad held the Florida property in an assumed name, PBJ Holdings, LTD, which vested in the estate. In doing so, appellant reiterates arguments that we have previously found to lack merit or have no impact on the appeal. Because we have determined the probate court did not err in adopting the magistrate‘s finding that Brad conveyed the Florida property to PBJ Holdings, LTD and that business was owned solely by appellee, appellant‘s argument to the contrary lacks merit.
{71} Finally, appellant argues the probate court erred by adopting the magistrate‘s incorrect conclusion that Brad‘s sister and the administrator of his estate are necessary parties. The magistrate did not base its decision on any determination concerning necessary parties since it found no issue of material fact remained as to ownership of the Florida property. Similarly, because we have determined the probate court did not err in granting summary judgment in favor of appellee based on his ownership of the Florida property, appellant‘s argument considering necessary parties is moot. See State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 26 (explaining that “when an appellant presents issues
IV. Conclusion
{72} For the foregoing reasons, we overrule appellant‘s six assignments of error and affirm the judgment of the Franklin County Court of Common Pleas, Probate Division.
Judgment affirmed.
LUPER SCHUSTER and EDELSTEIN, JJ., concur.