IN THE MATTER OF: THE ESTATE OF THOMAS AMIGH ZEAK, DECEASED, [ROBERT B. HANDELMAN, ADMINISTRATOR, APPELLANT.]
No. 20AP-310
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 24, 2022
2022-Ohio-951
(Prob. No. 591878) (REGULAR CALENDAR)
DECISION
Rendered on March 24, 2022
On brief: Sandor W. Sternberg, for appellant.
APPEAL frоm the Franklin County Court of Common Pleas, Probate Division
{¶ 1} Robert B. Handelman, the administrator of the estate of decedent Thomas Amigh Zeak, appeals the judgment entered by the Franklin County Court of Common Pleas, Probate Division, which disapproved the partial fiduciary‘s account and the final and distributive fiduciary‘s account and ordered appellant to file an amended final and distributive fiduciary‘s account. For the following reasons, we affirm the trial court judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 8, 2016, the decedent died without a will (“intestate“) with eight surviving next of kin, including his five children and three grandchildren. Two years later, аppellant, an attorney, applied to be appointed administrator of decedent‘s estate.
{¶ 3} On August 28, 2018, appellant submitted an inventory and appraisal indicating the estate comprised $90,421.96 in assets, wholly derived from the excess proceeds from a sheriff‘s sale of the decedent‘s home. The inventory was approved by the trial court the following month.
{¶ 4} Forms entitled “Acknowledgment, Waiver, and Consent to Finder‘s Fee,” signed by the next of kin, were filed on November 16, 2018. In the waiver forms, each next of kin acknowledged receipt of a copy of a “money recovery services agreement” with CashBack Services, Ltd., “waive[ed] objection to the * * * finder‘s fee of 33.33% of the recovery of the surplus sheriff‘s sale * * * of decedent‘s former residence,” and “consent[ed] to the deduction of the agreed finder‘s fee from the total of any such recovery.” (Nov. 16, 2018 Acknowledgment, Waiver, and Consent to Finder‘s Fee Forms at 1.) The money recovery services agreement accompanying the waiver forms shоws that that it was signed by Lisa Ann Zeak Caroll as the “natural daughter and presumed heir” of decedent on March 27, 2018—prior to the opening of decedent‘s estate. (Mar. 27, 2018 Agreement for Money Recovery Services at 2.)
{¶ 5} Appellant filed a partial fiduciary‘s account on November 27, 2018. The account shows a $59,331.31 balance remaining following a disbursement of $25,424.65 to CashBack Services, Ltd. as a “Debt[] and claim[] against estate” and other disbursements for attorneys fees, fiduciary fees, and reimbursement of court costs and the bond premium. (Nov. 27, 2018 Fiduciary‘s Account at 2.) No exceptions to the partial account were filed. In the final and distributive account filed on December 21, 2018, appellant indicated that he distributed the balance of the estate to the next of kin, leaving a zero balance on the account.
{¶ 6} The trial court set hearing dates to consider the accounts submitted by appellant. On January 8, 2019, pursuant to
{¶ 7} The magistrate issued a decision on October 31, 2019 stating,“[t]he matter came before the court on March 4, 2019, upon the hearing set to consider approval of the [partial and final accounts].” (Oct. 31, 2019 Mag. Decision at 1.) The magistrate determined that appellant had waived his appearance at the March 4th hearing upon filing the memorandum concerning the finder‘s fee. Regarding the merits of the finder‘s fee issue, the magistrate determined the excess proceeds from the sheriff‘s sale could not be appropriately distributed to Cashback Services, Ltd. since the contract was neither executed by anyone with authority to bind the estate nor approved by the court. Therefore, the magistrate disapproved the partial and final and distributive accounts and ordered appellant to file an amended account reflecting no distribution to Cashback Services, Ltd.
{¶ 8} Appellant filed objections to the magistrate‘s decision on November 13, 2019. The objections first challenged the accuracy of certain findings of fact, including faulting the magistrate for not stating that appellant, on January 29, 2019, “personally inquired” about the status of the case with the assigned magistrate and was instructed to file a memorandum on the finder‘s fee issue. (Nov. 13, 2019 Objs. at 2.) Appellant further faulted the magistrate for finding waiver, and, citing to In re Estate of Howard, 9th Dist. No. 07CA009198, 2008-Ohio-2104, contended that, “[c]ontrary to the mandatory requirements of
{¶ 9} Appellant additionally noted that he had asked the clerk of court for a “transcript of the еvidence” and sought “leave of court to supplement these objections by filing such transcript upon receipt of the same.” (Objs. at 1.) The record contains a document entitled “praecipe requesting the record (transcript of evidence)” asking the clerk of the probate court to assemble the “original papers and exhibits filed in this matter and a certified copy of docket and journal entries.” (Nov. 14, 2019 Praecipe at 1.) A trial court entry dated November 18, 2021 determined the magistrate‘s decision was conducted after a non-oral hearing, and that a separate transcription of oral proceedings was unnecessary for the court to perform its review of appellant‘s objections.
{¶ 10} On April 17, 2020, the trial court issued its decision overruling appellant‘s objections and adopting the magistrate‘s decision. First, because no transcript of the
{¶ 11} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{¶ 12} Appellant submits one assignment of error for our review:
Thе probate court abused its discretion in overruling appellant‘s objections to the magistrate‘s decision where, as requested by the magistrate, a memorandum was filed on the issue of fees payable to a money recovery company, after which the scheduled hearing thereon was cancelled, the court did not reschedule a new hearing, and then rejected appellant‘s praecipe for a transcript, without which appellant was forced to proceed out of compliance with Civil Rule 53(D)(3)(b)(iii).
(Capitalization adjusted.)
III. STANDARD OF REVIEW
{¶ 13} An appellate court generally rеviews a trial court‘s decision to adopt, reject, or modify a magistrate‘s decision for abuse of discretion. Lenoir v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-94, 2020-Ohio-387, ¶ 10. An abuse of discretion occurs when a court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Questions of law are reviewed de novo on appeal. Lenoir at ¶ 10. Furthermore, the scope of an appellate court‘s review of a trial court judgment that adopts a magistrate‘s decision ” ‘varies with the nature of the issues that were (1) preserved for review through objections before the trial court and (2) raised on appeal by assignment of error.’ ” McCarthy v. Johnson, 10th Dist. No. 18AP-961, 2020-Ohio-3429, ¶ 10, quoting In re Guardianship of Schwarzbach, 10th Dist. No. 16AP-670, 2017-Ohio-7299, ¶ 14; Lenoir at ¶ 10.
IV. ANALYSIS
{¶ 14} Appellant contends the probate court abused its discretion in overruling appellant‘s objections to the magistrate‘s decision and essentially argues a series of events led to appellant being forced to proceed without a transcript out of compliance with
{¶ 15} The Ohio Civil Rules permit a party to file written objections to a magistrate‘s decision within fourteen days of the filing of the decision.
{¶ 16} In this case, appellant‘s assignment of error states the magistrate requested appellant file a memorandum on the finder‘s fee issue, which appellant did, the trial court judge or magistrate then cancelled the scheduled hearing on the accounts and did not reschedule a new hearing, and the trial court rejected appellant‘s later praecipe for a transcript. The culmination of these events, in appellant‘s view, led him to proceed out of compliance with
{¶ 17} First, we note the confines of the assignment of error. Appellant does not present an assignment of error challenging the trial court‘s determination that his conduct constituted a waiver of his appearance at the March 4, 2019 hearing, that the hearing constituted a
{¶ 18} Second, appellant‘s assignment of error is based on the newly raised and unsupported assertion that the March 4, 2019 hearing was affirmatively “cancelled” by the court. (Appellant‘s Brief at iii, 2, 5, 6.) Specifically, appellant contends that he received a call from the magistrate‘s assistant informing him the magistrate “was out” and the March 4, 2019 hearing would need to be rescheduled (which appellant asserts never occurred). (Appellant‘s Brief at 2.)
{¶ 19} However, appellant did not raise this issue with the trial court even though he was required to state his grounds for objection to the magistrate‘s decision “with particularity.”
{¶ 20} Furthermore, appellant‘s contention in his assignment of error that the March 4, 2019 hearing was cancelled lacks record support. Instead, the record shows the following: appellant had notice of the March 4, 2019 hearing (in fact, he was ordered to appear at the hearing); the magistrate and the trial court judge documented that a hearing on the account did occur; appellant did not appear at a hearing; and, after the magistrate‘s decision issued, appellant neither requested a hearing nor attempted to submit to the trial court any evidence concerning the alleged lack of hearing. Whilе appellant seems to argue he could not have presented evidence to the trial court showing otherwise, a trial court has broad discretion under
{¶ 21} On this record, appellant had the opportunity to present his claims but failed to appear at the hearing on the account. Nothing in the record shows the hearing was cancelled. Because appellant‘s assignment of error is against the record, we may overrule it on that basis alone. Access Ohio, LLC v. Gahanna, 10th Dist. No. 19AP-64, 2020-Ohio- 2908, ¶ 22 (noting than an appellate court is “constrained by the record” of the appeal); State v. McComas, 10th Dist. No. 05AP-134, 2006-Ohio-380, ¶ 15 (“Because an appellate court cannot consider evidence outside of the record created before the trial court, we are precluded from considering [it] * * * Without this evidence, [appellant] has no evidentiary basis on which to assert his argument, and thus, we find it unavailing.“) State v. Angel, 10th Dist. No. 19AP-771, 2021-Ohio-4322, ¶ 70 (overruling assignment of error where it is based on statements against the record).
{¶ 22} Finally, we disagree that
{¶ 23} Considering all of the above, we find appellant‘s assignment of error to be improperly premised on newly raised and unsupported assertions and to lack merit. We further decline to address issues not raised and properly briefed by appellant and find appellant has not demonstrated cause for reversal based on the error assigned and the legal arguments presented.
{¶ 24} Accordingly, appellant‘s sole assignment of error is overruled.
V. CONCLUSION
{¶ 25} Having overruled appellant‘s assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Probate Division.
Judgment affirmed.
MENTEL, J., concurs.
JAMISON, J., dissents.
{¶ 26} Being unable to agree with the majority‘s disposition of the sole assignment of error, I respectfully dissent.
{¶ 27} Appellant‘s premise is simple.
{¶ 28} Appellant filed fiduciary accounts and was ordered to appear in court on March 4, 2019, and present evidence regarding a finder‘s fee agreement executed by an heir. Prior to the hearing, appellant was requested to submit a memorandum regarding the finder‘s fee. However, appellant received a telephone call from the magistrate‘s assistant informing him that the magistrate was out and the March 4, 2019, hearing will be rescheduled. Appellant avers he did not appear at the hearing because of this telephone call, and not because he understood that his appearance was waived with the filing of the memorandum. The hearing was never rescheduled, but apparently was reclassified as a non-oral hearing held on March 4, 2019, with no notice to appellant.
{¶ 29} The plain language of
{¶ 30} The magistrate‘s decision introduces waiver in this matter by unilaterally declaring the hearing was waived. The trial court then adopted the speculative position that if the memorandum served as a waiver, then only the requirement that appellant appear
{¶ 31} There is no evidence that appellant took any affirmative steps to waive his appearance. Did appellant waive a hearing by filing the memorandum or did the court waive the hearing upon receipt of the memorandum? The relevant code sections do not address waiver, and, of course, the record is silent regarding who waived what and when. If waiver can operate to suddenly cancel a court ordered hearing appellant was prepared to attend, due process mandates that the facts and circumstances of such a waiver must be known to appellant prior to him taking action to unknowingly trigger the waiver. The statute does not have a provision allowing the administrator to waive a hearing after it has been ordered by the court. There is no case law that supports the theory that filing a memorandum waives a final hearing on an account.
{¶ 32} “Courts, pursuant to
{¶ 33} Because the rules provide for the review of transcript, the presumption, therefore, is that there was a hearing where evidence was submitted. The magistrate, in either an evidentiary hearing or a non-oral hearing, has to review some evidence in order to render a decision. Whatever evidence the magistrate reviewed to make a decision regarding the accounts should be included in the transcript. It is a transcript of that evidence used by the magistrate that appellant sought from the court when he filed a praecipe requesting a transcript. In response, the probate court stated that “no separate transcription of oral proceedings must be ordered to enable the court to perform its review.” (Nov. 18, 2019 Entry at 1.) Since the trial court has now waived the requirement of the transcript or affidavit but provided no direction on how to proceed, it continues to add to the procedural frailty.
{¶ 34} Appellant did not file a transcript of the evidence because the probate court refused to act upon his praecipe and proclaimed that a transcript is not required for the trial court to perform its review. Therefore, the transcript is “not available.” Gill v. Grafton Corr. Inst., 10th Dist. No. 09AP-1019, 2010-Ohio-2977, ¶ 10.
{¶ 35} From a procedural standpoint, the trial court‘s record only adds to the cоnfusion and makes appellate review a daunting task. It is impossible to determine if the trial court had a complete, factual record to review before it issued a decision or overruled appellant‘s objections. The lack of a record is disturbing and has been addressed by other courts. In a contempt action, the court did not conduct a scheduled evidentiary hearing, and “only examined the memoranda filed by the parties” prior to making a decision. Giere‘s Truck & Trailer v. Ward, 3rd Dist. No. 10-02-11, 2002-Ohio-6622, ¶ 13. Although one party alleged that the other party “waived any evidentiary hearing and agreed to filing a mеmorandum in lieu of a hearing, the record does not reflect such waiver. By following this method of procedure, the trial court erred.” Id. In Overcasher v. Auto-Owners Ins. Co., 5th Dist. No. 1997CA00013, 1997 Ohio App. LEXIS 3960 (Aug. 25, 1997), the trial court scheduled a
{¶ 36} Regardless of whether an objecting party filed a transcript or appropriate substitute, “[i]n ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 37} The majority adopts a narrow reading of appellant‘s assignments of error, but appellant‘s arguments are within the parameters of his assignment of error and properly before this court. “[G]enerally, appellate courts will rule only on assignments of error, not mere arguments,” and where the argument correlates to an assignment of error, it is
{¶ 38} The record fails to provide any basis to determine how the filing of the memorandum served as a waiver. The record is silent regarding the disposition of the March 4, 2019, hearing. It is notable that the record is completely dark between March 4, 2019, and October 31, 2019, when the magistrate finally issued its decision from the March non-oral hearing. Conspicuously absent from the magistrate‘s finding of fact is any mention of the court‘s communication with appellant, including the court‘s request to submit a memorandum or the telephonе call from the magistrate‘s assistant. The majority describes the telephone call as an unsupported assertion, which it seems also applies to the waiver evidenced in this matter. The lack of any kind of record is an underlying theme in this matter and reinforces remand to make an accurate determination.
{¶ 39} Persuaded by the case law set forth above, I would find that the trial court‘s failure to conduct an oral hearing and failure to allow a transcript be filed is an unpermitted abuse of discretion and would therefore reverse the judgment and remand to the trial court for an oral evidentiary hearing on the account.