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In re Estate of John C.

Court of Appeals of Ohio, Tenth District

November 21, 2017

In the Matter of the Estate of [John C.], [Donna et al., Appellants].

         APPEAL from the Franklin County Court of Common Pleas Prob. No. 568920 Probate Division

          On brief: Eugene R. Butler, and James R. Leickly; Strip Hoppers Leithart McGrath & Terlecky, LPA, and Paul W. Leithart, II, for appellants. Argued: Eugene R. Butler.

         On brief:

          Bellinger & Donahue, and Scott P. Bellinger, for Montana C.

         Argued:

          Scott P. Bellinger.

         On brief:

          Jay E. Michael, for Sandra C.

         Argued:

          Jay E. Michael.

          DECISION

          DORRIAN, J.

         {¶ 1} Appellants, Donna, Nicole, and Arthur, appeal the May 8, 2017 judgment of the Franklin County Court of Common Pleas, Probate Division, overruling objections to and adopting the December 30, 2016 magistrate's decision. For the following reasons, we affirm.

         I. History

         {¶ 2} The instant matter arises out of the death of John C. ("decedent"). Decedent was a tow truck operator who, on September 22, 2014, was struck and killed by a vehicle while providing assistance to a disabled vehicle. As relevant to the instant matter, decedent was survived by his daughter, Montana; mother, Sandra; eight siblings including Charles, Arthur, Donna, Carol, Nicole, James, Mildred, and Rose; and grandson, Camden, Montana's son who was conceived prior to decedent's death but born following his death.

         {¶ 3} On October 6, 2014, Montana applied to the trial court to be appointed administrator of decedent's estate for the purpose of pursuing a wrongful death claim. No other applications for appointment of administrator were made. On October 6, 2014, the trial court appointed Montana administrator. On May 12, 2016, Montana filed an application for approval of a fee agreement she entered into with attorneys hired to represent the estate in the wrongful death claim. On the same date, the trial court approved the fee agreement.

         {¶ 4} On June 9, 2016, Montana filed an application to approve settlement and distribution of wrongful death and survival claims. On August 30, 2016, Montana filed an amended application to approve settlement and distribution of wrongful death and survival claims. The insurance company of the driver of the vehicle that struck and killed decedent offered to settle for $25, 000.00. The company that insured the towing company's vehicle that decedent was operating at the time of the incident offered to settle for $450, 000. After accounting for attorney fees and expenses, the net proceeds remaining for distribution equaled $303, 522.15. In the application, Montana requested the proceeds be distributed as follows: $203, 522.15 to Montana, and $100, 000.00 to Sandra, decedent's mother. The application also listed decedent's siblings, allocating none of the proceeds from the settlement to them. Montana, James, Sandra, and Mildred each filed signed forms consenting to the settlement and distribution of the wrongful death and survival claims as set forth in the application.

         {¶ 5} On September 2, 2016, a magistrate appointed to hear the matter on behalf of the trial court filed a decision approving the settlement. No objections to the magistrate's decision were filed. On September 20, 2016, the trial court filed an entry adopting the magistrate's decision.

         {¶ 6} On November 29, and December 14, 2016, the magistrate conducted a hearing on the application to approve distribution of wrongful death and survival claims. At the hearing, the following individuals provided testimony regarding their relationship with decedent and the impact of his death: Nicole, Arthur, Charles, Donna, Carol, Sandra, Mildred, Montana, and Sharmane, decedent's ex-wife and Montana's mother.

         {¶ 7} On December 30, 2016, the magistrate filed a decision including findings of fact and conclusions of law. In the decision, the magistrate recommended the settlement proceeds be distributed as follows: $178, 522.15 to Montana, $70, 000.00 to Sandra, $15, 000.00 to Charles, $10, 000.00 each to Arthur, Donna, Carol, and Nicole, and nothing to James, Mildred, Rose, and Camden.

         {¶ 8} On January 13, 2017, Nicole filed objections to the December 30, 2016 magistrate's decision. On the same date, Donna and Arthur jointly filed objections to the December 30, 2016 magistrate's decision. Also on the same date, Nicole, Donna, and Arthur filed a joint motion for leave of court to supplement their objections to the December 30, 2016 magistrate's decision.

         {¶ 9} On January 27, 2017, Carol filed a response to the magistrate's decision, supporting the distribution as determined by the magistrate and reserving the right in the alternative to accept more of the proceeds should the court alter the distribution. On the same date, Sandra and Montana separately filed memoranda contra the January 13, 2017 objections of Nicole, Donna, and Arthur. Also on January 27, 2017, Sandra filed a motion for leave to supplement her memorandum contra.

         {¶ 10} On February 6, 2017, Nicole filed a reply memorandum in support of her January 13, 2017 objections. On the same date, Donna and Arthur jointly filed a reply to the January 27, 2017 memoranda contra of Sandra and Montana. On February 28, 2017, the trial court filed an entry granting the January 13, 2017 joint motion of Nicole, Donna, and Arthur for leave of court to supplement their objections to the December 30, 2016 magistrate's decision.

         {¶ 11} On March 27, 2017, counsel for Donna and Arthur filed an affidavit, pursuant to Civ.R. 53(D)(3)(b)(iii), to supplement the transcript with portions of the record that were not recorded. On the same date, Donna and Arthur filed supplemental objections to the December 30, 2016 magistrate's decision. Also on March 27, 2017, Nicole filed supplemental objections to the December 30, 2016 magistrate's decision.

         {¶ 12} On April 27, 2017, Sandra filed a memorandum contra the supplemental objections of Nicole, Donna, and Arthur. On April 28, 2017, Montana filed a memorandum contra ...


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