Court of Appeals of Ohio, Fourth District, Hocking
KARLA S. MAYBERRY, ADMIN., Plaintiff-Appellee,
CAROLINE CHEVALIER, et al., Defendants-Appellants.
CASE FROM COMMON PLEAS COURT
W. Orlandini, Dublin, Ohio, for appellant.
S. Johnson and Matthew E. Henoch, Columbus, Ohio, for
DECISION AND JUDGMENT ENTRY
B. Abele, Judge
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
2} This appeal arises out of a decedent's estate
administration. Karla S. Mayberry, plaintiff below and
appellee 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 court 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 property.
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 execution 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
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
decisions 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
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
to 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 her
right. We explained that appellant's "right-if it
exists-may be foreclosed by the sale of the home to a third
party." We thus concluded that the court's decision
regarding appellant's motion to compel constitutes a
final, appealable order. However, after further reflection
and review of the probate court file, we find it necessary to
clarify our prior conclusion that the trial court's
decision regarding appellant's motion to compel
constitutes a final, appealable order.
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, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d
519, ¶14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of
N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
"An order is a final, appealable order only if it meets
the requirements of both R.C. 2505.02 and, if applicable,
Civ.R. 54(B)" Lycan v. Cleveland, 146 Ohio
St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶21, citing
Gehm at ¶15.
10} R.C. 2505.02 ...