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Estate of Devore v. Malone

Court of Appeals of Ohio, Seventh District, Harrison

June 24, 2019

SHANNON MALONE, et al., Defendants-Appellants.

          Civil Appeal from the Court of Common Pleas, Probate Division, of Harrison County, Ohio Case No. 20171058.

          Atty. John O. Tabacchi, for Plaintiff-Appellee.

          Atty. Travis Collins, for Defendants-Appellants.

          BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D'Apolito, Judges.


          WAITE, P.J.

         {¶1} Appellants Shannon Malone, Travis DeVore and Kyle Devore appeal from the judgment of the Harrison County Court of Common Pleas, Probate Division. The probate court approved Appellee Lorrie DeVore's appraisal of the marital real estate and inventory of personal property filed as part of the estate of her late husband, Charles Ray DeVore ("the decedent"). After Appellee filed the inventory and appraisal with the probate court, Appellants filed exceptions. Following a hearing on the matter, the probate court adjusted Appellee's appraisal of the real estate and the valuation of the personal property, both in Appellants' favor. However, the probate court held a decision as to other claimed assets of the estate in abeyance, including those involving ownership of a pizza business. On appeal, Appellee indicates that at some time after the hearing at issue here was held, she received a notification from the IRS of an outstanding income tax liability belonging to her and the decedent. It is apparent that, based on the outstanding issues regarding ownership of the pizza restaurant and possible income tax liability, an amended inventory must be filed in this case in order to fully address these issues. Therefore, as the probate court did not rule on all of the property issues in the estate in the judgment entry currently on appeal, the judgment is not final and appealable. We are without jurisdiction to review the matter at this time. The appeal is dismissed for lack of jurisdiction.

         Factual and Procedural History

         {¶2} The decedent passed away on March 2, 2017, intestate. Appellee is the decedent's surviving spouse and stepparent to Appellants, who are the decedent's three surviving adult children. On August 7, 2017, Appellant Travis DeVore filed an application with the Harrison County Probate Court for authority to administer his father's estate. On October 26, 2017, Appellee filed a competing application for authority to administer the estate. By agreement of the parties, Appellee was appointed as the administrator.

         {¶3} On January 17, 2018, Appellants filed a motion to be present during the scheduled appraisal of the decedent's house and personal property. The probate court granted the motion on the same day. An appraisal was conducted on February 6, 2018 by Phillip J. Flenniken ("Flenniken"). Present were all three of the Appellants and Appellee, who still lives in the marital residence. According to Appellants, during the appraisal they were permitted access only to the basement, the kitchen, and the outdoor area. Appellee and Flenniken dispute Appellants' contention that they were not permitted to be present in any other part of the house during this appraisal. The record also indicates that, although this was the formal inventory and appraisal, Flenniken had actually visited the property three times while the matter was pending. On the appraisal report the date of inspection is listed as November 20, 2017, the effective date of appraisal is listed as May 2, 2017, and the date of the signature is March 26, 2018.

         {¶4} The final appraisal report by Flenniken contained many specifics regarding the property. The real estate was appraised at $55, 000. In making that determination, Flenniken's report contained a provision reading: "The property is being appraised assuming several EXTRAORDINARY ASSUMPTIONS." These assumptions were as follows:

         {¶5} 1.) The water supply was inadequate and would not pass county requirements;

         {¶6} 2.) The septic system was inadequate and would not pass county requirements;

         {¶7} 3.) The tin roof on the house was properly installed;

         {¶8} 4.) Despite selling the mineral rights to the property, the DeVores retained the surface rights free, clear, and suitable for mortgage purposes as certified by a real estate title lawyer;

         {¶9} 5.) No binding agreements for the burial of Mr. DeVore on the subject property prior to his death and prior to the effective date of the report existed;

         {¶10} 6.) The basement of the house was infested with snakes;

         {¶11} 7.) A home inspection made by a qualified professional inspector would agree to the list of repairs needed. (5/18/18 Appraisal.)

         {¶12} Flenniken's appraisal also listed the repairs needed, again with the caveat that the suggested repairs should be confirmed by a home inspector:

         {¶13} 1.) The barn needed to be torn down.

         {¶14} 2.) A new approved water well and septic system needed to be installed.

         {¶15} 3) A new forced air furnace, duct work, and registers needed to be installed.

         {¶16} 4.) The bathroom and kitchen needed a complete remodel and new floor coverings needed to be installed. The interior walls and ceiling needed patched and painted throughout.

         {¶17} 5.) Trim work needed installed throughout the house.

         {¶18} 6.) Windows needed to be framed and cased.

         {¶19} 7.) The snakes had to be removed and the house was to be sealed in manner to prevent snakes and rodents from entering.

         {¶20} 8.) The basement floor needed concrete installed and an appropriate basement or garage door needed to be installed. The foundation wall needed sealed against leaks and the basement stairs were to be replaced.

         {¶21} 9.) Plumbing was to be repaired or replaced, both as to supply and drain lines.

         {¶22} 10.) Electrical wiring throughout the house ...

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