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In re Estate of Lacey

Court of Appeals of Ohio, Tenth District

August 22, 2019

In re: Estate of Barbara Lacey, Friendship Village of Columbus, Inc., Appellant.

          APPEAL from the Franklin County Court of Common Pleas, Probate Division No. 587015.

         On brief:

          Bruns, Connell, Vollmar & Armstrong, LLC, Adam C. Armstrong, and Tara F. Taylor, for appellant.


          Adam C Armstrong.


          NELSON, J.

         {¶ 1} This matter relates to potential application of a statutory subsection that has not been assessed by the probate court in this case to this point. In explaining why we return the case to the probate court so that it may engage in that analysis regarding the applicability and import under these circumstances of the statutory language invoked, we begin with a brief procedural overview.

         {¶ 2} The late Barbara Lacey seems to have lived the last period of her life at a nursing home called Friendship Village. Three weeks after her death, and then twice subsequently, Friendship Village billed Kelly Paternoster, who was the executor designated in Ms. Lacey's will and who is the residual beneficiary of her estate, for the decedent's nursing home debt (in three different stated amounts, reduced over time from a claim of $35, 604.96 to a final figure of $19, 585.09, apparently to subtract amounts including charges for days that came after Ms. Lacey was no longer alive). Friendship Village received no response from Ms. Paternoster.

         {¶ 3} Some three and a half months after its last letter to Ms. Paternoster, and seeking then to pursue a claim against the estate, Friendship Village filed a motion for relief from judgment under Civil Rule 60(B) asking the probate court to vacate orders that had relieved the estate from administration. The probate court (while apparently accepting at face value the correspondence proffered by Friendship Village, even though it may not have been presented in evidentiary form) overruled the motion, finding that Friendship Village had failed to present its claim to an executor or administrator within six months of the decedent's death as the court found R.C. 2117.06(B) to require. Friendship Village appeals, arguing that the probate court failed to analyze its request under a particular statutory provision that Friendship Village had emphasized to the probate court in challenging its magistrate's recommendation that the Civ.R. 60(B) motion be denied.

         {¶ 4} Barbara Lacey died on August 7, 2017 at Friendship Village. Sept. 6, 2017 Certificate of Death. She gave one bequest of jewelry to a beneficiary and otherwise gave "the rest, residue and remainder of all [her] property of all kinds" to her will's named executor, Ms. Paternoster. Sept. 6, 2017 Last Will and Testament of Barbara Lacey, signed and sworn Mar. 29, 2012. In a letter purportedly sent roughly two weeks after Ms. Lacey died, and that got right to the point by stating, "I am writing to you about the past due status of Barbara Lacey's resident account," Friendship Village advised Ms. Paternoster that "[w]e would greatly appreciate the full and immediate payment of the balance due" (said then to be $35, 604.96) and that unless payment or arrangements were made within a week, "we will begin charging your account a late fee of $35.00 per month on the overdue balance." Ex. E, Feb. 23, 2018 Motion for Relief from Judgment (August 24, 2017 letter).

         {¶ 5} On September 6, 2017, Ms. Paternoster filed a number of documents in the probate court, including an application to probate Ms. Lacey's will under R.C. 2107.18 and an application to relieve the estate from administration under R.C. 2113.03 based on the value of the estate's assets not exceeding the statutory threshold of $35, 000 under R.C. 2113.03(A)(1). Her filing titled "Assets and Liabilities of Estate to be Relieved from Administration" listed two insurance policies valued together at $11, 000 as the only assets in Ms. Lacey's estate. No debts were listed. Ms. Paternoster signed below a section headed "CERTIFICATION," attesting that the value of any listed assets was "correct, and to applicant's knowledge the above list of decedent's debts is correct." Sept. 6, 2017 Assets and Liabilities of Estate to be Relieved from Administration at 2. The probate court filed an Entry Relieving Estate from Administration on September 6, 2017.

         {¶ 6} On September 12, 2017, Ms. Paternoster filed a supplemental Assets and Liabilities of Estate to be Relieved from Administration form that identified a $1, 000 policy from the State Teachers Retirement System as an additional asset. The same day, the probate court filed a Supplemental Entry Relieving Estate from Administration.

         {¶ 7} Friendship Village continued to send its bill to Ms. Paternoster. On September 13, 2017, it sent her a statement seeking $28, 629.96 (adjusting for a previous overcharge for "room and board" for the entirety of August). Ex. E, Feb. 23, 2018 Motion for Relief. Then, on November 6, 2017, a lawyer for Friendship Village sent Ms. Paternoster as "Applicant and/or Beneficiary of the Estate of Barbara Lacey" a "Dear Paternoster" letter "regarding an unpaid account balance in the amount of $19, 585.09 related to care and services Friendship Village rendered to Barbara Lacey between October 2016 and August 2017." Ex. F, Feb. 23, 2018 Mot. for Relief. The self-described "estate claim letter" said that it was to "serve as a formal claim against the Estate of Barbara Lacey," and that it was sent to Ms. Paternoster "both as Applicant to Relieve the Estate from Administration and as a distributee of Ms. Lacey's estate who may share liability for payment of the claim." Id. It also advised Ms. Paternoster:

In your filings and representations to the Probate Court in the above-referenced estate, you omitted the fact [that] Ms. Lacey owned property at 2344 Taylor Ave., Columbus, Ohio 43211 at the time of her death and that said property has a tax-appraised value of $36, 500. This real property should be part of Ms. Lacey's estate, and should be liquidated to my client's valid and timely claim. Your failure to include this asset as part of the inventory of Ms. Lacey's estate caused the ...

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