Opinion
No. 09AP-792.
Decided April 8, 2010.
Appeal from the Court of Common Pleas, Franklin County, No. 09CVF-07-9945.
McTigue McGinnis, Donald J. McTigue, Mark A. McGinnis, and John C. Columbo; and Dennis W. McNamara, for appellants.
David A. Yost, Special Prosecutor, for appellees.
{¶ 1} Appellants, Susan Gwinn and the Committee to Elect Susan Gwinn, appeal from a Franklin County Court of Common Pleas judgment that dismissed their administrative appeal from proceedings of the Ohio Elections Commission conducted on allegations that appellants had violated a campaign-finance statute. Because the common pleas court erred in dismissing appellants' appeal for lack of a final, appealable order without a certified record and transcript of the administrative proceedings ever having been filed with the court, we reverse the court's judgment.
I. Procedural Overview
{¶ 2} Pursuant to R.C. 3517.157(D) and 119.12, appellants on July 2, 2009, filed an administrative appeal with the common pleas court from a "decision" of the elections commission that determined that appellants had violated R.C. 3517.13(G)(1) and referred the matter for criminal prosecution. Appellants' alleged violation of a campaign-finance statute, which prohibits persons from knowingly concealing or misrepresenting campaign contributions, allegedly occurred during Gwinn's unsuccessful 2008 campaign for the office of Athens County prosecutor. The complainant in the elections commission proceedings was David Yost, Delaware County prosecutor, who was appointed to serve as special prosecutor for Athens County in the matter.
{¶ 3} In their notice of appeal, appellants challenged the elections commission's decision on numerous grounds, including specific claims that the elections commission committed factual and legal errors, as well as general claims that not only does the record lack reliable, probative, and substantial evidence to support the elections commission's decision but the decision is not in accordance with law. Appellants attached to the notice of appeal copies of the elections commission's "decision" that was the subject of their appeal: a letter dated July 2, 2009, from Philip C. Richter, "Staff Attorney," advising appellants that on "6/11/2009 after careful consideration of the evidence [in case No. 2009G-002], * * * the commission found a violation of R.C. § 3517.13(G)(1) and referred the matter to the Athens County prosecutor for further prosecution." The letters, ostensibly from the elections commission, are not on the elections commission's letterhead, are not signed, are not certified as true copies of the elections commission's decision, and do not identify Richter as speaking on the elections commission's behalf, either as its staff attorney or in some other capacity.
{¶ 4} According to the common pleas court's record, both Yost and the elections commission, as the appellees in the administrative appeal, were served with notice of appellants' appeal. The court clerk's briefing schedule, filed the same date as appellants' appeal, required the record of the underlying proceedings to be filed with the common pleas court by July 30, 2009, or no later than August 27, 2009, if the court granted an extension for that purpose.
{¶ 5} On August 17, 2009, without a hearing on the matter, the common pleas court entered judgment granting Yost's motion to dismiss appellants' appeal for lack of a final, appealable order. Explaining its rationale for the dismissal, the court stated in the judgment entry that "[t]he referral letter issued by the Ohio Elections Commission did not determine the action, but merely moved the matter to a different forum" and, as such, failed "to meet the requirements of a final order under Ohio Revised Code § 2505.02."
{¶ 6} The elections commission never certified to the common pleas court a record of the administrative proceedings in the case or sought an extension of time for that purpose. Consequently, a record of the elections commission's administrative proceedings is also not before this court.
II. Assignments of Error
{¶ 7} Appellants assign three errors:
1. The trial court erred by not reversing the decision of the commission on July 30, 2009.
2. The trial court erred by prematurely dismissing the administrative appeal before the record and transcript of proceedings had first been filed with the court.
3. The trial court erred in holding that the decision by the commission is not a final appealable order.
III. Elections Commission's Failure to Certify Administrative Record to the Court
{¶ 8} Appellants' assignments of error are interrelated and will be discussed together. Appellants contend that the common pleas court erred in prematurely dismissing their administrative appeal when the elections commission did not file a record and transcript of the administrative proceedings in this case. Appellants assert that the common pleas court had no way, without reviewing the administrative record, to properly determine whether the elections commission had issued a final, appealable order in this case and, in turn, to decide whether the court had jurisdiction to hear appellants' administrative appeal. Appellants argue that the common pleas court instead should have entered judgment in their favor, because the elections commission failed to comply with R.C. 119.12's requirement that it timely certify to the court a complete record of the administrative proceedings appealed in this case.
{¶ 9} Appellees respond that the common pleas court correctly determined that the elections commission's decision was not the final determination in the matter, as the elections commission merely referred the matter for further prosecution and a final judgment in the case. Appellees argue that because the elections commission's decision does not "determine the action" and "prevent a judgment," it does not qualify under R.C. 2505.02 as a final, appealable order. See Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 526, 709 N.E.2d 1148 (stating that an order is final and appealable under R.C. 2505.02 if it (1) affects a substantial right, (2) in effect determines the action, and (3) prevents a judgment). Appellees assert that because courts have jurisdiction to hear appeals only from final orders of an administrative agency, the issue before the common pleas court was solely jurisdictional, eliminating the need for a record of the administrative proceedings in this case.
{¶ 10} An appeal from the elections commission's proceedings is governed by R.C. 3517.157(D) and 119.12. R.C. 3517.157(D) provides that a party "adversely affected" by a "final determination" of the elections commission has a right of appeal pursuant to R.C. 119.12. R.C. 119.12, in turn, allows an appeal to the common pleas court for a party "adversely affected" by an order of an administrative agency or commission issued pursuant to an "adjudication." "[T]o constitute an 'adjudication' for purposes of R.C. 119.12, a determination must be (1) that of the highest or ultimate authority of an agency which (2) determines the rights, privileges, benefits, or other legal relationships of a person." Russell v. Harrison Twp. (1991), 75 Ohio App.3d 643, 648, 600 N.E.2d 374. See also R.C. 119.01(D) (defining "adjudication").
{¶ 11} R.C. 119.12 sets forth the procedures that must be followed in administrative appeals. The statute provides that the common pleas court "shall conduct a hearing on the appeal." The word "shall" in a statute makes the provision mandatory. State ex rel. Ohio Democratic Party v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, ¶ 15. Ohio courts consistently have held that although the statute requires the common pleas court to hold a hearing in an administrative appeal, the court has the discretion to do as much as hold a full hearing and accept briefs, oral argument, and newly discovered evidence, or as little as review the record of the proceedings before the administrative agency. Medcorp, Inc. v. Ohio Dept. of Job Family Sens., 121 Ohio St.3d 622, 2009-Ohio-2058, 906 N.E.2d 1125, ¶ 18; Creager v. Dept. of Agriculture, 10th Dist. No. 04AP-142, 2004-Ohio-6068, 2004 WL 2591247, ¶ 10, citing Ohio Motor Vehicle Dealers Bd. v. Cent. Cadillac Co. (1984), 14 Ohio St.3d 64, 67, 14 OBR 456, 471 N.E.2d 488; Geroc v. Ohio Veterinary Med. Bd. (1987), 37 Ohio App.3d 192, 197, 525 N.E.2d 501. In reviewing the record of the administrative proceedings, "the court is confined to the record as certified to it by the agency." R.C. 119.12.
{¶ 12} Within those parameters, the common pleas court's judgment presents at least two issues. Initially, the court lacked a record to review because the elections commission failed to certify the record to the common pleas court, as required by R.C. 119.12. Secondly, because the court lacked any record from the elections commission, the court could not know what was in the elections commission's record and whether some aspect of the unseen record indicated that the commission had issued a final order.
A. Elections Commission's Duty to Certify the Record
{¶ 13} Pursuant to R.C. 119.12, administrative agencies have the responsibility to furnish the record of appealed administrative proceedings to the common pleas court for its review. Indeed, the Ohio Supreme Court has observed that R.C. 119.12 sets forth a "stringent requirement" for the transmittal of administrative records. Arlow v. Ohio Rehab. Servs. Comm. (1986), 24 Ohio St.3d 153, 155, 24 OBR 371, 493 N.E.2d 1337. Specifically, R.C. 119.12 provides, "Within thirty days after receipt of notice of appeal from an order in any case in which a hearing is required * * * the agency shall prepare and certify to the court a complete record of the proceedings in the case." Should the agency fail "to comply within the time allowed," the failure, "upon motion, shall cause the court to enter a finding in favor of the party adversely affected." The statute, however, provides that "[a]dditional time * * * may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply."
{¶ 14} Applying R.C. 119.12, the Supreme Court of Ohio in Arlow noted that the court had previously "held, and affirm[s] today, that '[w]here an appeal from an order of an administrative agency has been duly made to the Common Pleas Court pursuant to Section 119.12, Revised Code, and the agency has not prepared and certified to the court a complete record of the proceedings within twenty [now thirty] days after a receipt of the notice of appeal and the court has granted the agency no additional time to do so, the court must, upon motion of the appellant, enter a finding in favor of the appellant and render a judgment for the appellant' Matash v. State (1964), 177 Ohio St. 55, 29 O.O.2d 153, 202 N.E.2d 305, syllabus. See also State ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363, 21 O.O.3d 228, 423 N.E.2d 1099." Id., 24 Ohio St.3d at 155, 24 OBR 371, 493 N.E.2d 1337.
{¶ 15} The general rule of Matash and its progeny is absolute: an administrative agency's failure to certify to the common pleas court a complete record of appealed administrative proceedings within the R.C. 119.12 time limit requires the common pleas court, upon motion, to enter a finding in favor of and a judgment for the appellant. See Lorms v. Dept. of Commerce (1976), 48 Ohio St.2d 153, 155, 2 O.O.3d 336, 357 N.E.2d 1067 ("R.C. 119.12 * * * mandates a finding for the party 'adversely affected' by an agency's failure to certify a 'complete record' within the prescribed time"); Crockett, 67 Ohio St.2d at 365, 21 O.O.3d 228, 423 N.E.2d 1099 ("The language of the statute is clear; if the agency [totally] fails to comply, then the court must enter a finding in favor of the party adversely affected"); Geroc, 37 Ohio App.3d 192, 525 N.E.2d 501 (determining that an agency's total failure to certify the record in a timely manner as required by R.C. 119.12 placed mandatory duty on court to enter judgment for appellant).
{¶ 16} When, by contrast, an administrative agency timely certified to the court of common pleas the record of its administrative proceedings but with an unintentional error or omission in an otherwise complete record, the party appealing the administrative action pursuant to R.C. 119.12 is not entitled to a judgment in his or her favor absent a showing of prejudice. Arlow, 24 Ohio St.3d 153, 24 OBR 371, 493 N.E.2d 1337; Lorms, 48 Ohio St.2d 153, 2 O.O.3d 336, 357 N.E.2d 1067, at syllabus. See also State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 114, 647 N.E.2d 804. Even though the Supreme Court of Ohio so modified its Matash holding in Arlow, the court nonetheless declared that "[s]uch an exception does not vitiate the basic premise of R.C. 119.12 where no action has been taken to certify an administrative record." (Emphasis sic.) Arlow, 24 Ohio St.3d at 156, 24 OBR 371, 493 N.E.2d 1337.
{¶ 17} Here, the record of the common pleas court indicates that the elections commission received notice on July 13, 2009, of appellants' administrative appeal to the common pleas court in this matter. Contrary to R.C. 119.12's mandate, the elections commission did not comply with the R.C. 119.12 requirements to certify the record. The elections commission did not file the record and did not seek an extension of time to comply with R.C. 119.12's certification requirement. Moreover, nothing in the common pleas court's record suggests that the elections commission made any effort to comply, much less a "substantial effort to comply." R.C. 119.12 (authorizing an extension "when it is shown that the agency has made substantial effort to comply").
B. No Basis to Determine Whether Order Is Final and Appealable
{¶ 18} Like a court, the elections commission speaks through its record. Simmons v. Indus. Comm. of Ohio (1938), 134 Ohio St. 456, 457, 13 O.O. 42, 17 N.E.2d 751; State ex rel. Cole v. Laumann (1990), 69 Ohio App.3d 464, 467, 590 N.E.2d 1335. See also State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476 N.E.2d 1019 (holding that the decision of an administrative agency must be journalized in the written minutes of meeting at which the decision was rendered); McKenzie v. Ohio State Racing Comm. (1966), 5 Ohio St.2d 229, 34 O.O.2d 463, 215 N.E.2d 397 (determining that the commission can comply with R.C. 119.12's certification requirement by providing certified copies, such as a certified copy of the commission's minutes that constitute its final order, rather than the original documents contained in the administrative record). See also R.C. 119.09 and Ohio Adm. Code 3517-1-11 and 3517-1-12 (requiring a steno-graphic record of all elections commission proceedings and the journalization of commission decisions by written entry in the minutes of commission hearings).
{¶ 19} A review of the record of administrative proceedings is essential to the integrity of judicial review of an administrative action. In this case, the common pleas court could not determine properly whether the elections commission's "decision" was a final, appealable order and, in turn, whether the court had jurisdiction to hear the administrative appeal. The common pleas court lacked that ability because the court had no administrative record of the proceedings, no journalized entry of the elections commission's decision, and no other agency materials that may be relevant to determining whether the elections commission issued a final order for R.C. 119.12 review in the common pleas court. The absence of an administrative record made the court's review impossible.
{¶ 20} In the final analysis, the common pleas court erred in dismissing appellants' administrative appeal to the court for lack of a final, appealable order when the elections commission had completely defaulted on its responsibility under R.C. 119.12 to timely certify to the court a complete record of the proceedings from which the court could determine whether the elections commission had issued a final order in this case. Appellants' assignments of error are sustained to the extent indicated.
IV. Appellants' Motion to Dismiss
{¶ 21} Appellants filed a motion requesting that this court reverse the decision of the elections commission or remand this matter to the common pleas court with instructions that it dismiss the elections commission's decision because the elections commission failed to file the administrative record in this case.
{¶ 22} Appellants did not file such a motion with the common pleas court, as R.C. 119.12 contemplates. Had appellants done so, the court would have been required to grant it. Crockett, 67 Ohio St.2d at 365, 21 O.O.3d 228, 423 N.E.2d 1099 (determining that a court is required to enter a finding and judgment for an appellant when the administrative agency wholly fails to file a record in accordance with the time limits of R.C. 119.12); Sinha v. Dept. of Agriculture (Mar. 5, 1996), 10th Dist. No. 95APE09-1239, 1996 WL 99753 (deciding that an appellant is entitled to judgment under R.C. 119.12 when agency certified record to the court 31 days after the notice of appeal). The common pleas court, however, is the appropriate forum to entertain appellants' motion. Accordingly, we deny the motion as not yet ripe in this court in favor of permitting the common pleas court first to address it.
{¶ 23} Having sustained appellants' assignments of error to the extent indicated, we reverse the judgment of the common pleas court and remand this cause with instructions to the common pleas court (1) to determine appellants' motion for judgment in their favor due to the elections commission's failure to certify the record in accordance with R.C. 119.12 and (2) to consider any other issues emanating from the court's determination of that motion.
Motion denied; judgment reversed and cause remanded with instructions.
BROWN and MCGRATH, JJ., concur.
{¶ 10} On October 19, 2006, the court filed a judgment entry that addressed the issues raised in both the motion for reimbursement of funeral expenses, combined with the motion to enforce judgment and to distribute assets to the surviving spouse, and the motion for clarification. In that entry the court made the following findings: (1) The property at 1748 Tecumseh Street is part of the decedent's estate and should be distributed in accordance with his will and that, since the surviving spouse "has assumed the legal responsibility for this property during the pendency of this matter, she is permitted to retain rents previously received; upon proof that the property is current in financial obligations such as real estate taxes and utility payments. No accounting will be required for the period she has managed this property." (2) "A review of Defendant's exhibit 19(A), which is the funeral purchase contract, contains no language regarding an obligation of the insurance beneficiary. The court is also unaware of any statute that places this payment obligation on the insurance beneficiary. Accordingly, the estate is directed to reimburse the surviving spouse in the amount $7169.82 for her payment of the funeral bill." No appeal was taken from that order.
{¶ 11} On December 14, 2007, appellee filed a certificate of judgment, reflecting the probate court's October 19, 2006 judgment for $7,169.82 for funeral expenses. Thereafter, the real estate included in the estate was sold.
{¶ 12} On August 8, 2008, appellee filed a motion to compel distribution to the surviving spouse, in which she requested that the court order appellant to distribute the $7,169.82 that had been previously awarded to her in the court's October 19, 2006 judgment entry. On August 29, 2008, appellant filed a memorandum in opposition to the motion to compel, in which she offered several arguments as to why she believed that the court should reconsider its prior order for the estate to reimburse appellee for the funeral expenses and argued further that appellee had wrongfully transferred the title to a 1995 Cadillac automobile into her name and had retained possession of that vehicle since the time of William's death. Appellant requested that the court allow a credit against the reimbursed funeral expenses for the value of the Cadillac at the time of William's death, which was $13,500, and order appellee to reimburse the estate for the difference. Appellant also requested that the court order appellee to reimburse the estate for real estate taxes that were owed on the Tecumseh Street property and two other properties over which she had exercised control and collected rents for a period of time until the estate took control of them.
{¶ 13} The motion was referred by the court to a magistrate for hearing and report, and on October 2, 2008, the magistrate filed her decision, in which she found the motion to compel distribution to the surviving spouse well taken and ordered appellant to pay $7,169.82 plus 10 percent interest to appellee from funds from the sale of real property by the estate that were being held in escrow. As to the 1995 Cadillac, the magistrate found: "[The] argument that the surviving spouse was not entitled to take title to the decedent's 1995 Cadillac has not been previously before the Court. No motion to enforce the antenuptial agreement or motion to set aside its conveyance has been filed. * * * A Memorandum in Opposition is not the correct procedural vehicle to bring the matter before the Court. Further, the fiduciary has no right or authority to offset its value from the funeral bill." The magistrate also noted that in its October 19, 2006 order, the court had found as to the Tecumseh Street property that "[n]o accounting will be required for the period she has managed this property."
{¶ 14} On October 15, 2008, appellant filed objections to the magistrate's decision in which she essentially argued that the magistrate's findings as to the reimbursement for funeral expenses and the 1995 Cadillac were an abuse of discretion, since the surviving spouse waived her right to reimbursement for funeral expenses when she executed the antenuptial agreement. On November 20, 2008, the court filed its decision on the objections to the magistrate's decision. As to the issues raised before this court, the trial court stated that "if the fiduciary believed that the surviving spouse was in wrongful possession of a vehicle owned by the decedent, then the proper course of action would have been to file an action for breach of the Antenuptial Agreement or a Complaint for concealment of assets." The court noted that the issue of the Cadillac had never been brought before the court by motion or complaint and stated that "the nature of this unilateral action by the estate does not comport with a 'set off against a beneficiary's share under O.R.C. 2133.59." The court approved and adopted the magistrate's decision and ordered the fiduciary of the estate to pay to the surviving spouse the $7,169.82 plus interest within 14 days of the date of the order. On December 5, 2008, the fiduciary filed her notice of appeal.
{¶ 15} This court will consider appellant's first two assignments of error together, since both claim that the trial court did not have subject-matter jurisdiction over appellee's claim for reimbursement for funeral expenses and that the court's orders of October 19, 2006, and November 20, 2008, for reimbursement were void ab initio.
{¶ 16} In the first assignment of error, appellant argues that the trial court lost subject-matter jurisdiction over the claim when it was rejected in the December 2, 2005 response to the motion for reimbursement of funeral expenses. In the second assignment of error, appellant argues that the trial court did not have subject-matter jurisdiction over the claim because it was not timely submitted pursuant to the requirements of R.C. 2117.06.
{¶ 17} Appellee argues in response to both assignments of error that the six-month time requirement for presenting a claim set forth in R.C. 2117.06 is not jurisdictional but is in the nature of a statute of limitations and, since appellant did not state it as the basis for rejecting the claim or otherwise raise the issue in the trial court, it was waived and may not be raised for the first time on appeal.
{¶ 18} This court will first address the issue of the failure of appellee to make her claim pursuant to the time requirements set forth in R.C. 2117.06 and whether that failure deprived the trial court of subject-matter jurisdiction over the claim.
{¶ 19} R.C. 2117.06(B), states: "[A]ll claims shall be presented within six months after the death of the decedent."
{¶ 20} R.C. 2117.06(C) states: "[A] claim that is not presented within six months after the death of the decedent shall be forever barred as to all parties."
{¶ 21} William Liggons died on January 4, 2004. The claim for reimbursement of funeral expenses was first brought to the attention of the fiduciary of the estate and the court by means of appellee's November 4, 2005 motion for reimbursement of funeral expenses, 22 months after the death of the decedent and clearly outside of the time frame for making a claim against an estate set forth in R.C. 2117.06.
{¶ 22} This court considered a similar situation in In re Estate of Lewis, 6th Dist. No. L-05-1225, 2006-Ohio-1986, 2006 WL 1047478, in which William Lewis, administrator of the estate of Charles W. Lewis, appealed the judgment of the Lucas County Probate Court that ordered the estate to reimburse the estate of Alice C. Lewis, Charles's surviving spouse, for 50 percent of what Alice had advanced for funeral expenses for Charles, from an account that she had held jointly with him.
{¶ 23} In that case, Charles died on December 14, 1999, and Alice died on April 27, 2000. In December 2001, the administrator of Alice's estate found out about the advance of funds for Charles's funeral expenses and on May 20, 2002, filed a motion for reimbursement of the advances for funeral expenses in the probate case of Alice Lewis. On October 28, 2003, the administrator of Charles's estate filed a memorandum in opposition to the motion for reimbursement of advances, in which he argued that the motion constituted a claim against the estate of Charles Lewis and, as such, must have been filed against the estate of Charles Lewis within the statutory time limit set forth in R.C. 2117.06. On May 20, 2004, the probate court granted the motion for reimbursement, finding that the surviving spouse was entitled to reimbursement for funeral expenses pursuant to R.C. 2106.20, which provides, "A surviving spouse * * * is entitled to a reimbursement from the estate of the decedent for funeral and burial expenses * * * paid by the surviving spouse * * *, to the extent that the rights of other creditors of the estate will not be prejudiced by the reimbursement."
{¶ 24} On appeal, this court found, citing Osborne v. Osborne (1996), 114 Ohio App.3d 412, 683 N.E.2d 365, that the motion for reimbursement of funeral expenses constituted a claim against the estate and that the "claim for reimbursement is barred by the time provision set forth in R.C. 2117.06 as appellees' motion was filed more than two years after the decedent's death." This court went on to say: "We note that the trial court ultimately tried to achieve a just decision; however, the statutory provisions clearly bar recovery in this manner."
{¶ 25} What distinguishes this case from the Lewis case, however, is the fact that here, the issue of the timeliness of the surviving spouse's claim was not given as a reason for the rejection of the claim by appellant and was not raised at any time until after the notice of appeal to this court was filed. In accordance with this court's ruling in Lewis, had the lack of timeliness been set forth in appellant's memorandum in opposition in the trial court, this court would have no alternative but to reverse the trial court's order for reimbursement of funeral expenses.
{¶ 26} Since that is not what occurred in the trial court, the issue now before this court is whether the mandatory time frame provided for in R.C. 2117.06(B) is jurisdictional, as appellant claims, or in the nature of a statute of limitations, which is waived if not asserted when the claim is presented to the fiduciary of the estate, as appellee claims.
{¶ 27} The courts of Ohio have long held that the time period for presenting claims pursuant to R.C. 2117.06 is a period of limitations. Prudential Ins. Co. of Am. v. Joyce Bldg. Realty Co. (1944), 143 Ohio St. 564, 56 N.E.2d 168 (construing analogous former section). Pursuant to Civ. R. 12(C), the failure to bring an action within the time specified by an applicable statute of limitations is an affirmative defense that must be raised in a responsive pleading or it is waived. In her memorandum in opposition to appellee's motion for reimbursement of funeral expenses, appellant did not raise the issue of the timeliness of the presentation of the claim, and therefore it was waived.
{¶ 28} In accordance with the foregoing, this court finds that appellee's failure to comply with the requirement that a claim against the estate be presented within six months of the death of the decedent did not deprive the probate court of subject-matter jurisdiction to consider appellee's claim for reimbursement for funeral expenses.
{¶ 29} This court will now address the issue whether there was a rejection of the surviving spouse's claim for reimbursement of funeral expenses that deprived the trial court of subject-matter jurisdiction over the claim.
{¶ 30} As set forth above, the claim for reimbursement of funeral expenses was first made by appellee upon the filing of the November 4, 2005 motion for reimbursement of funeral expenses. Appellant filed a response on December 2, 2005, which stated, "As to the reimbursement of funeral expenses, the fiduciary rejects the claim. The agreement between the Surviving Spouse and the funeral home, pursuant to the contract executed, was that whoever was listed as the beneficiary of decedent's insurance, would pay the funeral bill. She is not entitled to reimbursement of funeral expenses in this matter pursuant to statute."
{¶ 31} Appellant argues that the claim for funeral expenses was rejected when she filed her response to appellee's motion for reimbursement of funeral expenses and once the claim was rejected, the probate court no longer had subject-matter jurisdiction over the claim.
{¶ 32} Appellant is correct that Ohio courts have held that a probate court lacks subject-matter jurisdiction to enter an order adjudicating a claim against an estate when that claim has been rejected by the estate. In re Estate of Vitelli (1996), 110 Ohio App.3d 181, 183, 673 N.E.2d 948; Kraus v. Hanna, 11th Dist. No. 2002-P-0093, 2004-Ohio-3928, 2004 WL 1662248. When a claim is rejected by the fiduciary of an estate, the claimant's remedy lies in R.C. 2117.12, which provides, "When a claim against an estate has been rejected in whole or in part * * * the claimant must commence an action on the claim * * * within two months after the rejection * * * or be forever barred from maintaining an action on the claim or part of the claim that was rejected." While the statute does not specifically state in which court the creditor must commence the action, cases have held that the matter must be brought before a court of general subject-matter jurisdiction, not the probate court. Mainline Constr. Co. v. Warren (1967), 11 Ohio Misc. 233, 40 O.O.2d 509, 227 N.E.2d 432; Children's Med. Ctr. v. Ward (1993), 87 Ohio App.3d 504, 622 N.E.2d 692; Vitelli; Kraus.
{¶ 33} While this clear statement of law, which has been affirmed by a continuous line of Ohio cases, would appear to resolve the issue, under the facts of this case, questions still remain.
{¶ 34} Both parties have based their arguments on the premise that appellee's November 4, 2005 motion for reimbursement of funeral expenses constituted a claim against the estate pursuant to R.C. 2117.06(B).
{¶ 35} The issue then becomes, Does the December 2, 2005 response to that motion constitute a rejection that would, under the foregoing case law, deprive the trial court of subject-matter jurisdiction to consider the surviving spouse's claim for reimbursement of funeral expenses?
{¶ 36} R.C. 2117.11 provides: "An executor or administrator * * * who receives the presentation of a claim as provided in division (A)(2) of section 2117.06 of the Revised Code, shall reject a creditor's claim against the estate by giving the claimant written notice of the disallowance of the claim."
{¶ 37} R.C. 2117.12 provides: "When a claim against an estate has been rejected * * * the claimant must commence an action on the claim * * * within two months after * * * the debt that was rejected becomes due, or be forever barred from maintaining an action on the claim * * * that was rejected."
{¶ 38} The standard for determining whether there has been a valid rejection pursuant to R.C. 2117.11 is set forth in Hawkes Hosp. of Mt. Carmel v. Colley (1982), 2 Ohio St.3d 40, 2 OBR 584, 442 N.E.2d 761. In that case, on January 4, 1979, Hawkes Hospital of Mt. Carmel presented a claim to the executor of the estate of John H. Anderson in the amount of $6,454.28 for services it had rendered to the decedent. On June 11, 1979, the attorney for the executor sent a letter to the hospital that stated: "This is to inform you that an Application for Instruction, a copy of which has been filed with the Probate Court [sic] and that the matter has been set for hearing July 5, 1979 at 10:00 A.M. * * * Also be informed that your claim against the estate of Mr. Anderson has been rejected by the Executor for the reason that it was not properly or timely filed." Following the hearing, on July 9, 1979, the executor's attorney sent a letter and a journal entry to the hospital that stated, "You are notified that the undersigned, Executor of the Estate of John H. Anderson, deceased, has this day rejected your claim in the amount of $6,454.28." On August 23, 1979, the hospital brought an action for the amount claimed in the general division of the common pleas court. Following a trial, the court found that the June 11, 1979 letter constituted a rejection of the claim and, therefore, that the claim was barred because the action was not brought within the time frame set forth in R.C. 2117.12. The court entered judgment in favor of the estate, the hospital appealed, and the court of appeals affirmed.
{¶ 39} The Ohio Supreme Court framed the issue before it as follows: "The basic issue presented is whether the letter dated June 11, 1979, sent by appellee's attorney to appellant, constituted a rejection of appellant's claim against the estate of appellee's decedent within the ambit of R.C. 2117.11 and applicable case law." Hawkes, 2 Ohio St.3d at 42, 2 OBR 584, 442 N.E.2d 761.
{¶ 40} The court determined that in order to start the clock running on the time to bring an action following a rejection, the rejection must be plain and unequivocal. Id. In its analysis whether the hospital's claim was plain and unequivocal, the court noted that the June 11, 1979 letter and attached application for instruction sent a mixed message to the hospital that the claim was being rejected because it was not timely filed but also that the estate was looking to the court to determine the validity of the claim. The court went on to say that if at the time of the rejection, the fiduciary says or does anything from which the claimant may reasonably infer that the rejection is not final, then it is not an effective rejection. Id. at 43, 2 OBR 584, 442 N.E.2d 761, citing Miller v. Ewing (1903), 68 Ohio St. 176, 67 N.E. 292. The court ultimately determined, "By giving the impression in the correspondence that the payment of appellant's claim would be brought before the probate court for determination, appellee's attorney fell short of making the letter of June 11 a plain and unequivocal rejection," id. at 43, 2 OBR 584, 442 N.E.2d 761, and found that the June 11, 1979 letter did not constitute an effective rejection that began the running of the two-month statute of limitations set forth in R.C. 2117.12.
{¶ 41} In applying the analysis of the Hawkes case, this court notes that in this case (1) the rejection was not made until after the claim was brought before the court, (2) the statement that the claim was rejected was set forth in a memorandum to the court in response to the surviving spouse's motion for reimbursement of funeral expenses, (3) the statement that it was rejected was coupled with an argument to the court as to why the court should deny the claim, and (4) appellant participated in the proceedings on the motion by filing a response that included the argument that the court should deny the motion because there was an agreement between the surviving spouse and the funeral home that whoever was the beneficiary of the decedent's life insurance policy would pay the funeral bill.
{¶ 42} As in the Hawkes case, appellant's actions clearly resulted in an ambiguity that created a reasonable basis for appellee to infer that the statement that the claim was rejected was not final but that appellant was looking to the court for a final determination of the issue.
{¶ 43} In accordance with the foregoing, this court finds that the statement set forth in the December 2, 2005 response to the motion for reimbursement of funeral expenses that the claim was rejected did not constitute a plain and unequivocal rejection that started the clock running on the time to bring an action on the claim as set forth in R.C. 2117.12 and did not deprive the probate court of subject-matter jurisdiction over the claim.
{¶ 44} This court finds further that the October 19, 2006 judgment entry of the probate court was a final, appealable order from which no appeal was taken, and appellant's first and second assignments of error are not well taken.
{¶ 45} In her third assignment of error, appellant claims that the probate court erred and abused its discretion when it ruled that the estate had not presented a valid claim for reimbursement of the value of the 1995 Cadillac that was retained by appellee, and in ruling that appellee did not have to reimburse the estate for real estate taxes that came due during the time that she managed certain properties before they were taken over by the estate. In support of this assignment of error appellant argues that the trial court failed to equitably and fairly decide these issues and "abused its discretion in its ruling."
{¶ 46} The first time that appellant brought the issues of the 1995 Cadillac and the claim that appellee should reimburse the estate for real estate taxes before the court in this case was in her August 29, 2008 memorandum in response to the surviving spouse's motion to compel distribution to the surviving spouse. In that memorandum, appellant set forth several arguments as to why she believed that the court should reconsider its prior order for the estate to reimburse appellee for funeral expenses or, in the alternative, allow a credit against the reimbursed funeral expenses for the value of the Cadillac at the time of William's death. Appellant also requested in the memorandum that the court order appellee to reimburse the estate for real estate taxes that were owed on property over which she had exercised control and for which collected rents for a period of time until the estate took control of them.
{¶ 47} As to the issue of the 1995 Cadillac, the probate court magistrate found that (1) the argument that the surviving spouse wrongfully took possession of the Cadillac was not previously before the court, (2) no motion to set aside the conveyance of the title to the Cadillac had been filed, (3) the memorandum in opposition was not the proper vehicle to bring that matter before the court, and (4) the fiduciary had no right or authority to offset its value from the funeral bill.
{¶ 48} As to the issue of the real estate taxes, the magistrate found that the court was unequivocal in its October 19, 2006 order that no accounting would be required for the real property that the surviving spouse had managed and that that was a final, appealable order as to that issue.
{¶ 49} In its November 20, 2008 decision on the fiduciary's objections to the magistrate's decision, the court found (1) as to the Cadillac, that "if the fiduciary believed that the surviving spouse was in wrongful possession of a vehicle owned by the decedent, then the proper course of action would have been to file an action for breach of the Antenuptial Agreement or a Complaint for Concealment of Assets" and (2) as to the real estate taxes, that matter was determined by the court's October 19, 2006 entry that declared, "No accounting will be required for the period of time she managed this property," and held that the magistrate's decision was approved and adopted by the court.
{¶ 50} In support of this assignment of error, appellant essentially argues that the court abused its discretion by failing to render a fair and equitable ruling on these two claims by the estate.
{¶ 51} An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶ 52} Upon consideration of the evidence that was before the probate court and the law, this court holds that (1) the October 19, 2006 judgment entry in which the court stated, "No accounting will be required for the period of time she managed this property," was a final, appealable order from which no appeal was taken, (2) the probate court properly found that appellant's August 29, 2008 memorandum in response to appellee's motion to compel distribution to the surviving spouse was not the proper means of bringing an action against the surviving spouse to recover the Cadillac automobile, (3) appellant has not shown that the trial court's findings as to the real estate and the Cadillac automobile were unreasonable, arbitrary, unconscionable, or contrary to law, and (4) appellant's third assignment of error is not well taken.
{¶ 53} On consideration whereof, this court finds that the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24(A).
Judgment affirmed.
HANDWORK and PIETRYKOWSKI, JJ., concur.