Mayberry v. ChevalierMayberry v. Chevalier
{¶ 1} This is an appeal from a Hocking County Common Pleas Court, Probate Division, judgment that partially denied a motion to compel filed by Caroline Chevalier, defendant below and appellant herein. Appellant assigns the following error for review:
"THE PROBATE COURT ERRED IN DENYING THE SOLE HEIR TO THE SUBJECT ESTATE THE RIGHT TO PURCHASE THE REAL PROPERTY AT THE FULL ESTIMATED VALUE SET FORTH IN THE SCHEDULE OF ASSETS."
{¶ 2} This appeal arises out of a decedent's estate administration. Karla S. Mayberry, plaintiff below and appеllee herein, is the decedent's sister and administrator of the estate. The trial court declared appellant the decedent's surviving spouse. The decedent's family and appellant initially agreed to the disposition of the decedent's estate, but relations soured. Appellee subsequently filed a complaint under R.C. Chapter 2127 that requested the trial cоurt to authorize a sale of the decedent's real estate.
{¶ 3} On April 11, 2017, the trial court granted appellee the authority to sell the real estate "free of the claims, interest, liens, and rights therein of all persons to this action." The court additionally authorized appellee to employ a real estate broker to assist in the sale of the proрerty.
{¶ 4} On July 13, 2017, appellant filed a "Motion to Compel Notice of Sale Proceedings to Surviving Spouse." Appellant requested the court to compel appellee "to give [appellant] notice and an opportunity to participate in all decisions regarding the sale of the subject property before the sale, including executiоn of the listing agreement and the hiring of a listing agent." She further asserted that permitting her to purchase the real estate would be in the estate's best interest.
{¶ 5} On July 19, 2017, the trial court granted appellant's motion. The court ordered appellee to provide appellant "notice and give her an opportunity to participate in all decisions regarding the sale of the subject property before the sale, including, but not limited to, execution of the listing agreement and the hiring of a listing agent."
{¶ 6} The next day, appellee filed a memorandum in opposition to appellant's motion to compel. Appellee asserted that she had already obtained a real estate agent and listed the property and that requiring her to obtain appellant's consent and advice regarding every decision concerning the sale of the real estate would serve only to frustrate and delay the sale process. She thus asked the court to deny appellant's motion to the extent that appellant requested that she be allowed to participate in deсisions regarding the sale of the property. Appellee further requested the court to disallow appellant the right to purchase the real estate for the value stated on the inventory.
{¶ 7} The trial court granted appellee's motion and found that appellant "is entitled to notice only" and that appellee "is not compelled or required to obtain consent or allow [appellant's] participation." The court additionally determined that appellee "is not compelled or required to sell the real property to [appellant] at the value stated on the Inventory." This appeal followed.
{¶ 8} On August 25, 2017, this court noted that the trial court's decision regarding appellant's motion tо compel may not constitute a final, appealable order. We therefore directed appellant to file a memorandum to address our jurisdiction to hear the appeal. We subsequently determined that we have jurisdiction to hear the appeal and concluded that appellant "may have a substantial right to purchase and/or elect the property in question pursuant to the relevant statutory authority" and that the probate court "found that [appellant does] not have such a right." We found that disallowing the appeal would deprive appellant of any meaningful ability to enforce
I
{¶ 9} It is well-established that courts of appeals have jurisdiction to "affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district." Section 3(B)(2), Article IV, Ohio Constitution. "As a result, '* * * an order [or judgment] must be final before it can be reviewed by an appellate court. If an order [or judgment] is not final, then an appellate court has no jurisdiction.' " Gehm v. Timberline Post & Frame ,
{¶ 10}
(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:
* * * *
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
* * * *
{¶ 11} The term "special proceeding" is defined as "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."
{¶ 12}
{¶ 13} A surviving spouse possesses a statutory right, under
{¶ 14} In the case at bar, the probate court declared appellant the decedent's surviving spouse. Pursuant to
{¶ 15} "An order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriаte relief in the future." Bell v. Mount Sinai Med. Ctr.,
{¶ 16} In the case sub judicе, the probate court's July 20, 2017 decision denied appellant's motion that requested the court to compel appellee to provide appellant with notice of the sale and to allow her to participate in the sale process. The court additionally granted appellee's request that the court find that appellee need not sell the decedent's real estate to appellant. The court's July 20, 2017 decision, therefore, clearly limits or restricts appellant's right to purchase the decedent's real estate. The effect of the court's
{¶ 17} We do not believe, however, that the trial court's July 20, 2017 decision affects appellant's statutory right under
{¶ 18} We further note that an administrator's аuthority to sell a decedent's real estate "is subject to the right of the surviving spouse to elect * * * to receive the mansion house as part of [the spouse's] share of the intestate estate." 2 Baldwin's Oh. Prac. Merrick-Rippner Prob. L., Section 91:9. Thus, until the trial court rules on appellant's
II
{¶ 19} With our jurisdiction to consider this appeal clarified, we turn to consider whether the probate court erred by failing to find that
The application or petition provided for in this section shall not be filed prior to filing the inventory required by section 2115.02 of the Revised Code or later than one month after the approval of that inventory. Failure to file an application or petition within that time nullifies the election with respect to the property required to be included, and the real or personal property then shall be free of the right granted in this section.
{¶ 20} In thе case sub judice, appellant does not dispute that she failed to file her petition to purchase the mansion house within one month after the probate court approved the inventory. Instead, she contends that her failure to do so resulted from not being recognized as the decedent's surviving spouse until February 2016-well after the court approved the inventory.
{¶ 21} We readily admit, nonetheless, that appellant's situation appears to be a novel one not within the contemplation оf the legislature when it last amended the statute in 1995. Nevertheless, even if we could read an exception into the statute so as to permit a surviving spouse, who the court did not recognize as such until more than one month after the court approved the inventory, to file an
{¶ 22} In the case at bar, in February 2016 the probate court recognized appellant as the surviving spouse. Appellant
{¶ 23} Appellant additionally attempts to argue that her delay in filing the petition is excusable due to the parties' settlement negotiations that later proved fruitless. Again, however, the statute does not provide for an exception when рarties are engaged in settlement negotiations.
{¶ 24} Consequently, we believe that the facts establish that appellant did not file her
{¶ 25} Accordingly, based upon the foregoing reasons, we overrule appellant's sole assignment of error and affirm the trial court's July 20, 2017 judgment.
JUDGMENT AFFIRMED.
Hoover, P.J.: Concurs in Judgment & Opinion
Harsha, J.: Concurs in Judgment & Opinion except for Footnote 1
Notes
We observe that on April 11, 2017, the trial court granted appellee judgment on her complaint to sell the real estаte and issued an order of sale. Appellant did not attempt to appeal this decision.
We additionally point out that on May 2, 2017, appellant filed an
At least one court has compared a probate court's decision that grants an order of sale under R.C. Chapter 2127 to a foreclosure decree and order of sale that gives rise to a final, appealable order. See generally Sky Financial Group, Inc. v. Mogul , 11th Dist. Trumbull No. 2000-T-0038,
We further point out that
Civ.R. 58(B) provides:
When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties * * * notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed byCiv.R. 5(B) and note the service in the appearance docket. * * * The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided inApp.R. 4(A) .
"In those cases in which both
Consequently, if the trial court's April 11 or May 3, 2017 decisions constitute final orders within the meaning of
We observe that appellee disputes that the real estate constitutes a "mansion house." The trial court, however, has not yet ruled upon this issue.