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In re Estate of Garza

Court of Appeals of Ohio, Tenth District

June 27, 2013

In re: Estate of Gilberto Garza, Jr., (Demencia Vargas-Ortega et al., Appellants).

APPEAL from the Franklin County Court of Common Pleas Probate Division. (Prob. No. 525604)

John L. Onesto, for appellants.

Baxter & Borowicz Co., L.PA., and Louis M. Borowicz, for appellees.

DECISION

SADLER, J.

{¶ 1} Appellants, Demencia Vargas-Ortega ("Demencia") and Joshua Mark Vargas ("Joshua"), co-executors of the estate of Gilberto Garza, Jr., appeal from a judgment of the Franklin County Court of Common Pleas, Probate Division. For the reasons that follow, we dismiss this appeal for lack of standing.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 14, 2007, while at work for his employer, Sears Logistics Services, Inc., Gilberto Garza, Jr. ("the decedent"), became trapped in an industrial trash compactor and died at the scene from injuries sustained when he fell inside and the trash compactor was activated. The decedent had a will devising real property located in Hildalgo County, Texas, to his aunt, Demencia, and his nephew, Joshua. However, the June 19, 2002 will made no provisions for any other property nor did it contain a residuary clause.

{¶ 3} Upon request of appellants, the will was admitted to probate, and appellants were appointed to serve as co-executors of the estate. Appellees, consisting of the decedent's father, Gilberto Garza, Sr. ("Gilberto, Sr."), and the decedent's three siblings, Jennifer Garza, Henry Garza, and Robert Garza, moved to have appellants removed as co-executors. Said motion was denied by the trial court.

{¶ 4} The purpose of opening the estate was to assert wrongful death and survival claims against decedent's employer. A settlement in that action was reached and appellants filed an application to approve settlement and allocation of the net settlement proceeds, consisting of $257, 210.23. Specifically, appellants asserted that 100 percent of the net settlement proceeds should be allocated to Demencia and Joshua as beneficiaries of the survival claim and none of the settlement proceeds should be allocated to the wrongful death action. Appellees challenged the application and argued 100 percent of the settlement proceeds should be allocated as a wrongful death settlement available only to the decedent's next of kin, specifically appellees. Additionally, appellees argued that even if allocated as 100 percent to the survival claims, because the will did not contain a residuary clause, the funds would not pass to Demencia and Joshua, but, rather, would pass intestate to decedent's father.

{¶ 5} The matter proceeded to a hearing before a magistrate. After consideration of the evidence presented at the hearing, including the testimony of six witnesses and admission of depositions and exhibits, the magistrate rendered a decision including findings of fact and conclusions of law. The magistrate found there was a close, personal, mutual, loving relationship between decedent and Demencia, decedent and Joshua, and decedent and Gilberto, Sr. The magistrate also found there was a mutual, loving relationship between decedent and Robert. With respect to the accident, the magistrate found decedent survived "seconds" in the trash compactor prior to his death.

{¶ 6} In the conclusions of law, the magistrate concluded wrongful death actions and survival actions are distinct legal remedies. A wrongful death action is brought by a fiduciary of the estate for the exclusive benefit of the beneficiaries defined by R.C. 2125.02 to cover pecuniary and emotional loss suffered as a result of the premature death of the decedent. In contrast, the magistrate concluded a survival action is brought by the decedent's fiduciary for the benefit of the decedent's estate for injuries suffered while the decedent was still alive.

{¶ 7} Because the will present in this case did not contain a residuary clause, decedent's heirs, defined by R.C. 2105.06, were entitled to any proceeds from the settlement allocated to the survival claim. In this case, the magistrate determined, because decedent had neither a surviving spouse nor surviving children at the time of his death, decedent's only heir is Gilberto, Sr. With respect to the wrongful death beneficiaries, the magistrate concluded those consisted of appellees Gilberto, Sr., Robert, Henry, and Jennifer.

{¶ 8} The magistrate also concluded that Demencia and Joshua were not entitled to any amounts from the net settlement proceeds, and that 80 percent of the proceeds be allocated to the wrongful death claims and 20 percent be allocated to the survival claims. Accordingly, the magistrate allocated $207, 983.29 to the wrongful death claims and further allocated 79 percent of that amount to Gilberto, Sr., and 7 percent to each sibling. Therefore, $51, 995.82 was allocated to the survival claims to be delivered to the co-fiduciaries of the estate for administration.

{ΒΆ 9} Appellants filed objections to the magistrate's decision challenging both the magistrate's factual findings and conclusions of law. Specifically, appellants challenged the magistrate's factual determinations regarding the relationships between decedent and his family, as well as the amount of time decedent survived in the trash compactor before his death. Appellants also challenged the magistrate's conclusions that (1) R.C. 2105.06 heirs are entitled to the proceeds of the survival claim, (2) the damages include loss of consortium, and (3) the wrongful death proceeds should be greater than the survival proceeds. ...


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