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Mayberry v. Chevalier

Court of Appeals of Ohio, Fourth District, Hocking

February 14, 2018

KARLA S. MAYBERRY, ADMIN., Plaintiff-Appellee,
v.
CAROLINE CHEVALIER, et al., Defendants-Appellants.

         CIVIL CASE FROM COMMON PLEAS COURT

          David W. Orlandini, Dublin, Ohio, for appellant.

          Leslie S. Johnson and Matthew E. Henoch, Columbus, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter 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 ASSETS."

         {¶ 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 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 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 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 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.

          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, 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 ...


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