{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, Probate Division, which ordered appellant, the executor of the estate of William D. Liggons, to reimburse appellee, the decedent’s surviving spouse, for funeral expenses, found that appellant had not properly brought a claim against appellee for reimbursement for the value of a 1995 Cadillac motor vehicle, and found that appellee was not required to reimburse the estate for certain real estate taxes.
{¶ 2} Appellant sets forth three assignments of error:
{¶ 3} “1. The probate court erred when it ordered the Estate of William D. Liggons to reimburse the surviving spouse, Demorris Liggons, for funeralexpenses, as the claim had been first presented in writing to the estate in November, 2005, and was rejected in writing in December, 2005. Upon rejection of the claim, the probate court no longer had subject matter jurisdiction on the claim.
{¶ 4} “2. The probate court erred and abused its discretion, when it ordered the estate to reimburse the surviving spouse for funeral expenses, when the claim for reimbursement was not submitted pursuant to the requirements of R.C. 2117.06. An untimely claim deprives the court of subject matter jurisdiction.
{¶ 5} “3. The probate court erred and abused its discretion when it ruled that the Estate had not presented a valid claim for reimbursement of the value of property rightfully belonging to the Estate, namely the 1995 Cadillac, wrongfully taken by the surviving spouse, and in ruling that the surviving spouse did not have to reimburse the estate for real estate taxes.”
{¶ 6} The facts that are relevant to the issues raised on appeal are as follows. William D. Liggons died on January 4, 2004, leaving his surviving spouse, appellee Demorris Liggons, nine children, and two stepchildren. On March 5, 2004, William Liggons’s will was admitted to probate with his daughter, appellant Deborah R. Liggons, named as executor. The will, which was executed on October 14, 1993, referred to an antenuptial agreement executed by the decedent and appellee on April 7, 1988, and left everything to William’s nine children and two stepchildren, equally.
{¶ 7} On November 4, 2005, appellee filed a motion for reimbursement of funeral expenses, combined with a motion to enforce judgment and to distribute assets to the surviving spouse. In her motion, appellee sought enforcement of a judgment that was rendered on August 30, 2005, in a separate declaratory-judgment action that found the antenuptial agreement valid and enforceable and made certain orders as to real property located at 1784 Tecumseh Street, in Toledo. Included in the motion was a request that the court order appellant to reimburse appellee for funeral expenses in the amount of $7,169.82.
{¶ 8} On December 2, 2005, appellant filed her response to the motion. As to the portion of that response that addressed the funeral expenses, appellant stated, “As to the reimbursement of funeral expenses, the fiduciary rejects the claim. The agreement between the Surviving Spouse and the funeral home, pursuant to the contract executed, was that whoever was listed as the beneficiary of decedent’s insurance would pay the funeral bill. She is not entitled to reimbursement of funeral expenses in this matter pursuant to statute.”
{¶ 9} On December 16, 2005, appellee filed a motion for clarification of the August 30, 2005 order as it related to the property at 1784 Tecumseh Street.
{¶ 11} On December 14, 2007, appellee filed a certificate of judgment, reflecting the probate court’s October 19, 2006 judgment for $7,169.82 for funeral expenses. Thereafter, the real estate included in the estate was sold.
{¶ 12} On August 8, 2008, appellee filed a motion to compel distribution to the surviving spouse, in which she requested that the court order appellant to distribute the $7,169.82 that had been previously awarded to her in the court’s October 19, 2006 judgment entry. On August 29, 2008, appellant filed a memorandum in opposition to the motion to compel, in which she offered several arguments as to why she believed that the court should reconsider its prior order for the estate to reimburse appellee for the funeral expenses and argued further that appellee had wrongfully transferred the title to a 1995 Cadillac automobile into her name and had retained possession of that vehicle since the time of William’s death. Appellant requested that the court allow a credit against the reimbursed funeral expenses for the value of the Cadillac at the time of William’s death, which was $13,500, and order appellee to reimburse the estate for the difference. Appellant also requested that the court order appellee to reimburse the estate for real estate taxes that were owed on the Tecumseh Street property and two other properties over which she had exercised control and collected rents for a period of time until the estate took control of them.
{¶ 13} The motion was referred by the court to a magistrate for hearing and report, and on October 2, 2008, the magistrate filed her decision, in which she found the motion to compel distribution to the surviving spouse well taken and ordered appellant to pay $7,169.82 plus 10 percent interest to appellee from funds from the sale of real property by the estate that were being held in escrow. As
{¶ 14} On October 15, 2008, appellant filed objections to the magistrate’s decision in which she essentially argued that the magistrate’s findings as to the reimbursement for funeral expenses and the 1995 Cadillac were an abuse of discretion, since the surviving spouse waived her right to reimbursement for funeral expenses when she executed the antenuptial agreement. On November 20, 2008, the court filed its decision on the objections to the magistrate’s decision. As to the issues raised before this court, the trial court stated that “if the fiduciary believed that the surviving spouse was in wrongful possession of a vehicle owned by the decedent, then the proper course of action would have been to file an action for breach of the Antenuptial Agreement or a Complaint for concealment of assets.” The court noted that the issue of the Cadillac had never been brought before the court by motion or complaint and stated that “the nature of this unilateral action by the estate does not comport with a ‘set off against a beneficiary’s share under O.R.C. 2133.59.” The court approved and adopted the magistrate’s decision and ordered the fiduciary of the estate to pay to the surviving spouse the $7,169.82 plus interest within 14 days of the date of the order. On December 5, 2008, the fiduciary filed her notice of appeal.
{¶ 15} This court will consider appellant’s first two assignments of error together, since both claim that the trial court did not have subject-matter jurisdiction over appellee’s claim for reimbursement for funeral expenses and that the court’s orders of October 19, 2006, and November 20, 2008, for reimbursement were void ab initio.
{¶ 16} In the first assignment of error, appellant argues that the trial court lost subject-matter jurisdiction over the claim when it was rejected in the December 2, 2005 response to the motion for reimbursement of funeral expenses. In the second assignment of error, appellant argues that the trial court did not have subject-matter jurisdiction over the claim because it was not timely submitted pursuant to the requirements of R.C. 2117.06.
{¶ 17} Appellee argues in response to both assignments of error that the six-month time requirement for presenting a claim set forth in R.C. 2117.06 is not jurisdictional but is in the nature of a statute of limitations and, since appellant
{¶ 18} This court will first address the issue of the failure of appellee to make her claim pursuant to the time requirements set forth in R.C. 2117.06 and whether that failure deprived the trial court of subject-matter jurisdiction over the claim.
{¶ 19} R.C. 2117.06(B), states: “[A]ll claims shall be presented within six months after the death of the decedent.”
{¶ 20} R.C. 2117.06(C) states: “[A] claim that is not presented within six months after the death of the decedent shall be forever barred as to all parties.”
{¶ 21} William Liggons died on January 4, 2004. The claim for reimbursement of funeral expenses was first brought to the attention of the fiduciary of the estate and the court by means of appellee’s November 4, 2005 motion for reimbursement of funeral expenses, 22 months after the death of the decedent and clearly outside of the time frame for making a claim against an estate set forth in R.C. 2117.06.
{¶ 22} This court considered a similar situation in In re Estate of Lewis, 6th Dist. No. L-05-1225,
{¶ 23} In that case, Charles died on December 14,1999, and Alice died on April 27, 2000. In December 2001, the administrator of Alice’s estate found out about the advance of funds for Charles’s funeral expenses and on May 20, 2002, filed a motion for reimbursement of the advances for funeral expenses in the probate case of Alice Lewis. On October 28, 2003, the administrator of Charles’s estate filed a memorandum in opposition to the motion for reimbursement of advances, in which he argued that the motion constituted a claim against the estate of Charles Lewis and, as such, must have been filed against the estate of Charles Lewis within the statutory time limit set forth in R.C. 2117.06. On May 20, 2004, the probate court granted the motion for reimbursement, finding that the surviving spouse was entitled to reimbursement for funeral expenses pursuant to R.C. 2106.20, which provides, “A surviving spouse * * * is entitled to a reimbursement from the estate of the decedent for funeral and burial expenses * * * paid by the surviving spouse * * *, to the extent that the rights of other creditors of the estate will not be prejudiced by the reimbursement.”
{¶ 25} What distinguishes this case from the Lewis case, however, is the fact that here, the issue of the timeliness of the surviving spouse’s claim was not given as a reason for the rejection of the claim by appellant and was not raised at any time until after the notice of appeal to this court was filed. In accordance with this court’s ruling in Lems, had the lack of timeliness been set forth in appellant’s memorandum in opposition in the trial court, this court would have no alternative but to reverse the trial court’s order for reimbursement of funeral expenses.
{¶ 26} Since that is not what occurred in the trial court, the issue now before this court is whether the mandatory time frame provided for in R.C. 2117.06(B) is jurisdictional, as appellant claims, or in the nature of a statute of limitations, which is waived if not asserted when the claim is presented to the fiduciary of the estate, as appellee claims.
{¶ 27} The courts of Ohio have long held that the time period for presenting claims pursuant to R.C. 2117.06 is a period of limitations. Prudential Ins. Co. of Am. v. Joyce Bldg. Realty Co. (1944),
{¶ 28} In accordance with the foregoing, this court finds that appellee’s failure to comply with the requirement that a claim against the estate be presented within six months of the death of the decedent did not deprive the probate court of subject-matter jurisdiction to consider appellee’s claim for reimbursement for funeral expenses.
{¶ 29} This court will now address the issue whether there was a rejection of the surviving spouse’s claim for reimbursement of funeral expenses that deprived the trial court of subject-matter jurisdiction over the claim.
{¶ 30} As set forth above, the claim for reimbursement of funeral expenses was first made by appellee upon the filing of the November 4, 2005 motion for reimbursement of funeral expenses. Appellant filed a response on December 2,
{¶ 31} Appellant argues that the claim for funeral expenses was rejected when she filed her response to appellee’s motion for reimbursement of funeral expenses and once the claim was rejected, the probate court no longer had subject-matter jurisdiction over the claim.
{¶ 32} Appellant is correct that Ohio courts have held that a probate court lacks subject-matter jurisdiction to enter an order adjudicating a claim against an estate when that claim has been rejected by the estate. In re Estate of Vitelli (1996),
{¶ 33} While this clear statement of law, which has been affirmed by a continuous line of Ohio cases, would appear to resolve the issue, under the facts of this case, questions still remain.
{¶ 34} Both parties have based their arguments on the premise that appellee’s November 4, 2005 motion for reimbursement of funeral expenses constituted a claim against the estate pursuant to R.C. 2117.06(B).
{¶ 35} The issue then becomes, Does the December 2, 2005 response to that motion constitute a rejection that would, under the foregoing ease law, deprive the trial court of subject-matter jurisdiction to consider the surviving spouse’s claim for reimbursement of funeral expenses?
{¶ 36} R.C. 2117.11 provides: “An executor or administrator * * * who receives the presentation of a claim as provided in division (A)(2) of section 2117.06 of the Revised Code, shall reject a creditor’s claim against the estate by giving the claimant written notice of the disallowance of the claim.”
{¶ 38} The standard for determining whether there has been a valid rejection pursuant to R.C. 2117.11 is set forth in Hawkes Hosp. of Mt. Carmel v. Colley (1982),
{¶ 39} The Ohio Supreme Court framed the issue before it as follows: “The basic issue presented is whether the letter dated June 11,1979, sent by appellee’s attorney to appellant, constituted a rejection of appellant’s claim against the estate of appellee’s decedent within the ambit of R.C. 2117.11 and applicable case law.” Hawkes,
{¶ 40} The court determined that in order to start the clock running on the time to bring an action following a rejection, the rejection must be plain and unequivocal. Id. In its analysis whether the hospital’s claim was plain and unequivocal, the court noted that the June 11, 1979 letter and attached application for instruction sent a mixed message to the hospital that the claim was being rejected because it was not timely filed but also that the estate was looking to the court to determine the validity of the claim. The court went on to say that if at the time of the rejection, the fiduciary says or does anything from which the claimant may reasonably infer that the rejection is not final, then it is not an effective rejection. Id. at 43, 2 OBR 584,
{¶ 41} In applying the analysis of the Hawkes case, this court notes that in this case (1) the rejection was not made until after the claim was brought before the court, (2) the statement that the claim was rejected was set forth in a memorandum to the court in response to the surviving spouse’s motion for reimbursement of funeral expenses, (3) the statement that it was rejected was coupled with an argument to the court as to why the court should deny the claim, and (4) appellant participated in the proceedings on the motion by filing a response that included the argument that the court should deny the motion because there was an agreement between the surviving spouse and the funeral home that whoever was the beneficiary of the decedent’s life insurance policy would pay the funeral bill.
{¶ 42} As in the Hawkes case, appellant’s actions clearly resulted in an ambiguity that created a reasonable basis for appellee to infer that the statement that the claim was rejected was not final but that appellant was looking to the court for a final determination of the issue.
{¶ 43} In accordance with the foregoing, this court finds that the statement set forth in the December 2, 2005 response to the motion for reimbursement of funeral expenses that the claim was rejected did not constitute a plain and unequivocal rejection that started the clock running on the time to bring an action on the claim as set forth in R.C. 2117.12 and did not deprive the probate court of subject-matter jurisdiction over the claim.
{¶ 44} This court finds further that the October 19, 2006 judgment entry of the probate court was a final, appealable order from which no appeal was taken, and appellant’s first and second assignments of error are not well taken.
{¶ 45} In her third assignment of error, appellant claims that the probate court erred and abused its discretion when it ruled that the estate had not presented a valid claim for reimbursement of the value of the 1995 Cadillac that was retained by appellee, and in ruling that appellee did not have to reimburse the estate for real estate taxes that came due during the time that she managed certain properties before they were taken over by the estate. In support of this assignment of error appellant argues that the trial court failed to equitably and fairly decide these issues and “abused its discretion in its ruling.”
{¶ 47} As to the issue of the 1995 Cadillac, the probate court magistrate found that (1) the argument that the surviving spouse wrongfully took possession of the Cadillac was not previously before the court, (2) no motion to set aside the conveyance of the title to the Cadillac had been filed, (3) the memorandum in opposition was not the proper vehicle to bring that matter before the court, and (4) the fiduciary had no right or authority to offset its value from the funeral bill.
{¶ 48} As to the issue of the real estate taxes, the magistrate found that the court was unequivocal in its October 19, 2006 order that no accounting would be required for the real property that the surviving spouse had managed and that that was a final, appealable order as to that issue.
{¶ 49} In its November 20, 2008 decision on the fiduciary’s objections to the magistrate’s decision, the court found (1) as to the Cadillac, that “if the fiduciary believed that the surviving spouse was in wrongful possession of a vehicle owned by the decedent, then the proper course of action would have been to file an action for breach of the Antenuptial Agreement or a Complaint for Concealment of Assets” and (2) as to the real estate taxes, that matter was determined by the court’s October 19, 2006 entry that declared, “No accounting will be required for the period of time she managed this property,” and held that the magistrate’s decision was approved and adopted by the court.
{¶ 50} In support of this assignment of error, appellant essentially argues that the court abused its discretion by failing to render a fair and equitable ruling on these two claims by the estate.
{¶ 51} An abuse of discretion is “more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),
{¶ 53} On consideration whereof, this court finds that the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).
Judgment affirmed.