In re Estate of Harmon
For Appellee Traver, Adm. WWA
THOMAS W. FOX
232 West Third Street, Suite 309
Dover, Ohio 44622
For Appellants Harmons and Renner
AMANDA K. SPIES
300 1/2 East High Avenue
New Philadelphia, Ohio 44663
Wise, J.
{¶1} Appellants Dianna L. Harmon, Jon T. Harmon, and Marvin L. Renner appeal the decision of the Tuscarawas County Court of Common Pleas, Probate Division, which granted a motion for summary judgment in favor of Appellee Dennis D. Traver, the administrator of the Estate of Paul T. Harmon. The relevant facts leading to this appeal are as follows.
{¶2} Paul Harmon, the grandfather of Appellant Dianna L. Harmon‘s husband, died on May 21, 2012. At the time of death, Paul had various household goods, a Chevrolet automobile, and bank accounts totaling more than $64,000.00. Paul was also the owner of a home on W. 8th Street in Dover, Ohio, but in 2006 he had executed a transfer on death deed in favor of Appellant Dianna.
{¶3} Paul‘s last will and testament appears to have been executed on June 30, 2006, and was filed with the probate court on June 4, 2012. In his will, Paul had named Appellant Dianna as his executor. Furthermore, the will specifically disinherited Paul‘s son, Thomas Harmon, and left everything to Appellant Dianna. No provisions were made for Paul‘s wife, Audrey Harmon, who suffered from dementia and resided in a nursing home. Audrey had been the recipient of Medicaid benefits since 2009.
{¶4} On June 4, 2012, Attorney Dennis Traver, appellee herein, was appointed as the commissioner for Audrey, the surviving spouse of the decedent. Appellee issued a report on June 20, 2012 recommending that Audrey take against the will. By judgment entry filed June 22, 2012, the probate court entered judgment exercising Audrey‘s right to take against the will.
{¶5} Audrey died on February 7, 2013.
{¶7} On June 18, 2013, appellee filed a complaint to recover assets of the estate allegedly concealed, embezzled or conveyed away and for a monetary judgment with penalty and interest, pursuant to
{¶8} On the same day, June 18, 2013, Appellant Dianna filed objections to the magistrate‘s June 5, 2013 decision removing her as executor. By judgment entry filed July 2, 2013, the trial court ordered a re-hearing on the issue.
{¶9} A hearing before a magistrate was held on August 23, 2013. Via a decision filed September 18, 2013, the magistrate once again recommended the removal of Appellant Dianna as executor and the appointment of appellee as administrator. Appellant Dianna filed objections on October 2, 2013.
{¶11} On March 28, 2014, appellee filed a motion for summary judgment. Marvin and Janet Renner, additional defendants in the action, also filed a motion for summary judgment. Via a twenty-eight page decision filed June 3, 2014, the magistrate granted appellee‘s motion for summary judgment in part, reserving two issues for trial: One involving appellant and Jon Harmon (regarding a $4,500.00 payment for work on a grape arbor) and one involving Appellant Dianna and Janet Renner (regarding a $1,500.00 payment for cleaning and sorting certain estate items). The magistrate additionally denied the Renners’ motion for summary judgment.
{¶12} Appellants then filed objections. On June 26, 2014, the trial court denied the objections, approved and adopted the magistrate‘s decision with two date changes, and issued a judgment against Appellants Dianna and Jon Harmon in the amount of $68,750.90, a judgment against Appellant Dianna Harmon in the amount of $1,790.81, and a judgment against Appellants Dianna Harmon and Marvin Renner in the amount of $11,500.00.
{¶13} The trial court issued an order on July 7, 2014, scheduling the two aforesaid reserved issues for a jury trial on October 9, 2014.
{¶14} On July 10, 2014, appellee filed a motion for leave to dismiss without prejudice the remaining two issues.
{¶15} On July 18, 2014, appellants filed a notice of appeal.
{¶17} Appellants thereupon appealed to this Court, raising three assigned errors. However, on July 30, 2015, we dismissed the appeal for want of a final appealable order. See In re Estate of Harmon, 5th Dist. Tuscarawas No. 2014 AP 07 0029, 2015-Ohio-3072, ¶ 18.
{¶18} On August 24, 2015, Appellee Traver filed a motion to dismiss, with prejudice, all remaining claims under the
{¶19} On September 16, 2015, appellants filed a notice of appeal. They herein raise the following three Assignments of Error:
{¶20} “I. THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION AND THE CONCEALMENT COMPLAINT FILED JUNE 18, 2013, SHOULD BE DISMISSED, WITH PREJUDICE.
{¶21} “II. THE TRIAL COURT DENIED THE DEFENDANTS’ DUE PROCESS RIGHTS BY FAILING TO CONDUCT A FULL AND FAIR JURY TRIAL PURSUANT TO
I.
{¶23} In their First Assignment of Error, appellants maintain the probate court lacked subject matter jurisdiction to hear the concealment complaint filed June 18, 2013. We disagree.
{¶24} “The probate court is a court of limited and special jurisdiction. It has only the powers granted to it by statute.” Bishop v. Bishop, 188 Ohio App.3d 98, 934 N.E.2d 420, 2010-Ohio-2958, (4th Dist.). See, also, Corron v. Corron (1988), 40 Ohio St.3d 75, 77, 531 N.E.2d 708. While the powers of the probate division are plenary, they are so only with respect to matters “properly before the court.” See Roll v. Edwards, 4th Dist. Ross No. 03CA2694, 2004-Ohio-767, ¶ 20; Madigan v. Dollar Bldg. & Loan Co. (1935), 52 Ohio App. 553, 563, 4 N.E.2d 68. We cannot interpret the statutory grant of plenary powers to enlarge the statutory grant of jurisdiction to the probate division. See Oncu v. Bell (1976), 49 Ohio App.2d 109, 110, 359 N.E.2d 712.
{¶25} Specifically, pursuant to
{¶27} Appellants essentially argue that pursuant to the foregoing statute, the probate court lacked jurisdiction in a concealment action under
{¶28} In Harpster v. Castle, 5th Dist. Ashland No. CA 1022, 1993 WL 274296, this Court addressed a question of jurisdiction of the probate court under
{¶30} Accordingly, we find our holding in Harpster inapplicable to the instant case, and we hold the probate court had subject matter jurisdiction over the dispute at issue.
{¶31} Appellants’ First Assignment of Error is therefore overruled.
II.
{¶32} In their Second Assignment of Error, appellants argue the trial court erred in granting appellee‘s motion for summary judgment under
{¶33} The trial court in the case sub judice relied in part upon the Eighth District‘s decision in In re Estate of Popp, 94 Ohio App.3d 640, 641 N.E.2d 739 (1994), which states in pertinent part: “A complaint filed under
{¶34} Appellants urge that in Popp, there had been a previous criminal proceeding to determine the guilt or innocence of the party charged with concealment or embezzlement. However, we herein adhere to the well-established rule that where conflicts arise between the Ohio Civil Rules and statutory law, the rule will control the statute on matters of procedure. See Rafeld v. Sours, 5th Dist. Ashland No. 14 COA 006, 2014-Ohio-4242, ¶ 21, citing Boyer v. Boyer (1976), 46 Ohio St.2d 83, 346 N.E.2d 286.
{¶35} Upon review, we find no reversible error in the trial court‘s utilization of
{¶36} Appellants’ Second Assignment of Error is overruled.
III.
{¶37} In their Third Assignment of Error, appellants essentially contend the trial court erred in granting appellees’ motion for summary judgment. We disagree.
{¶38}
{¶39} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. See Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212.
{¶40} Appellants continue to maintain that their goal was always to take proper care of Audrey, Paul Harmon‘s surviving spouse, during the last years of her life and that the improvements to the 8th Street residence were for the ultimate purpose of selling the property and using the proceeds for Audrey‘s care. Unfortunately, Audrey died two months prior to the completion and sale of the real estate. Appellants contend their conduct falls short of the
{¶41} We note
{¶42}
{¶43} The probate court, in addressing appellant‘s objections to the decision of the magistrate, stated its observation that “[appellants] have not, in any of their objections, identified a disputed material fact.” Judgment Entry, June 26, 2014, at 2. We make the same observation in our present analysis. As indicated previously in our recitation of facts, the evidence provided for purposes of summary judgment showed that when Paul Harmon died, he had numerous household goods, a 2007 Chevrolet automobile, and bank accounts valued at almost $65,000.00. Additionally, he had several years earlier changed the deed on the Dover residential property to a transfer on death deed. Paul‘s household goods were auctioned and brought $12,506.00. The Chevrolet automobile was valued by an appraiser at $11,500.00.
{¶44} Appellant Dianna paid to Appellant Jon Harmon, from estate assets, a total of $68,570.90 in twelve separate transactions between July 3, 2012 and February 26, 2013. These funds paid to Jon were used to purchase materials and pay a laborer to help renovate Dover property, which had been transferred to Appellant Dianna via the TOD deed. See Tr. 2 at 38-47. Appellant Dianna paid to the City of Dover, from estate assets, $1,790.81 for utility services at the property. On June 21, 2012, after Paul‘s
{¶45} Appellant Dianna did not pay to or for the benefit of Audrey, as the surviving spouse, the statutory family allowance of $40,000.00. See
{¶46} On April 9, 2013, Appellants Dianna and Jon sold the renovated residential property for $118,700.00, with net proceeds to Dianna from the sale being $105,019.14. See Tr. 3 at 7-8. However, she did not reimburse Paul‘s estate or tender any funds to Audrey‘s estate. Instead, these net proceeds were consumed entirely by Dianna and Jon for personal expenses, including travelling, gambling, dining, mortgage payments, debt satisfaction, donations to religious organizations, and attorney fees. See Tr. 3 at 8-32. As of the date of the final judgment, only $79.00 otherwise remained in Paul Harmon‘s estate funds to meet any obligations to Audrey or her estate.
{¶47} Upon review, and based on the aforesaid, we conclude that no genuine issue of material fact exists regarding the pertinent counts of appellee‘s complaint for concealment against appellants, and that appellee was entitled to judgment as a matter
{¶48} Appellants’ Third Assignment of Error is overruled.
{¶49} For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Probate Division, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0331