[Cite as Matheus v. Matheus, 2015-Ohio-3993.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                        JUDGES:
MICHELLE MATHEUS,                               :       Hon. W. Scott Gwin, P.J.
ADMINISTRATOR OF THE ESTATE                     :       Hon. Sheila G. Farmer, J.
OF: JOAN MATHEUS, DECEASED                      :       Hon. Patricia A. Delaney, J.
                                                :
                       Plaintiff-Appellant      :
                                                :       Case No. 15-COA-002
-vs-                                            :
                                                :
JOYA MATHEUS, ET AL                             :       OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                            Civil appeal from the Ashland County Court
                                                    of Common Pleas, Probate Division, Case
                                                    No. 2013-1144A

JUDGMENT:                                           Dismissed




DATE OF JUDGMENT ENTRY:                             September 28, 2015

APPEARANCES:

Plaintiff-Appellant                                 For Defendants-Appellees
MICHELLE MATHEUS                                    RICHARD J. MARCO
628 Marquis Ave.                                    52 Public Square
Mansfield, OH 44907                                 Medina, OH 44256
Ashland County, Case No. 15-COA-002                                                       2

Gwin, P.J.

       {¶1}   Plaintiff-appellant appeals the December 12, 2014 judgment entry of the

Ashland County Court of Common Pleas, Probate Division.

                                     Facts & Procedural History

       {¶2}   Joan Matheus (“decedent”) died on May 19, 2013. Decedent had two

daughters, appellant Michelle Matheus and appellee Joya Matheus. Appellant filed an

application to administer decedent’s estate on July 15, 2013, and indicated decedent

died without a will.    Appellant was appointed administrator of decedent’s estate on

August 28, 2013 in an estate case, Case Number 2013-1144.                 After a request by

appellant, the trial court granted a temporary restraining order in the estate case,

providing that: no parties shall sell, transfer, gift, encumber, destroy, or tamper with any

estate property; the same applied to all bank and other accounts; any order also applies

to appellee Keith Deimling (husband to Joya); Joya must submit an accounting of

monies; Joya must produce records of estate property sale; and Joya must produce

copies of the Trust, will of Virgil (father), will of Joan, and power of attorney.

       {¶3}    On August 6, 2013, appellee Joya Matheus filed an application to file the

will for record only. As the trial court noted in a judgment entry in the estate case in

August of 2013, the last will and testament filed by appellee in the estate case named

appellee the executrix of decedent’s estate.         At that time, appellee did not file for

appointment as executrix because she stated that no probate assets existed, so there

was no reason to file for the administration of an estate. However, during the hearing

on the concealment complaint, counsel for Joya stated that Joya intended to file an
Ashland County, Case No. 15-COA-002                                                       3


application for administration with will annexed after the hearing so that the trial court

could determine whether the will is valid.

       {¶4}    On March 24, 2014, appellant filed a concealment complaint against Joya

and her husband, appellee Keith Deimling, Case Number 2013-1144A.                 Appellant

alleged that the assets in question were known to be in the hands of Joya and Keith and

appellees have failed to deliver and/or return and/or account for the following assets:

proceeds of an investment account of $42,000; items of person property; and proceeds

from the sale of items of personal property. Appellees filed an answer on April 25, 2014.

On July 29, 2014, the trial court conducted a hearing on the concealment complaint and

Joya’s motion to remove appellant as administratrix in the estate case.

       {¶5}    The trial court issued a judgment entry in the concealment action on

December 12, 2014. The trial court stated that while the will of decedent had not yet

been admitted to probate, the document has been filed with the court, who is “not

inclined to simply blindly proceed as if it does not exist.” The trial court found appellees

not guilty of concealment. The trial court finally stated that, in the estate case, it has

issued orders prohibiting a sale or transfer of the property in which decedent may have

an interest.

       {¶6}    Appellant appeals the December 12, 2014 judgment entry of the Ashland

County Court of Common Pleas, Probate Division, and assigns the following as error:

       {¶7}    “I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

CONSIDERED EVIDENCE OF THE EXISTENCE AND CONTENT OF A WILL AS AN

EXCUSE         OR   MITIGATION      FOR      UNCONTROVERTED           CONDUCT        THAT

UNQUESTIONABLY CONSTITUTED A CONCEALMENT OF ESTATE ASSETS.
Ashland County, Case No. 15-COA-002                                                       4


       {¶8}   “II. THE TRIAL COURT ERRED WHEN IT RELIED ON AND APPEARS

TO HAVE ADOPTED CONCLUSORY LEGAL STATEMENTS MADE BY JOYA

MATHEUS CONCERNING THE EXISTENCE OF NON-EXISTENCE OF PROBATE

ASSETS IN LIEU OF ALLEGATIONS OF FACTS WHICH WOULD LOGICALLY LEAD

TO THIS DETERMINATION.

       {¶9}   “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT MICHELLE

MATHEUS HAD NOT MET HER BURDEN OF PROOF IN THE CONCEALMENT

ACTION, AS SUCH FINDING IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND IS NOT SUPPORTED BY ANY COMPETENT, CREDIBLE

EVIDENCE.”

                                     Final Appealable Order

       {¶10} As a preliminary matter, we must first determine whether the order under

review is a final, appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In the event that the

parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.

See Chef Italiano Corp. v. Kent State University, 44 Ohio St.3d 86, 541 N.E.2d 64

(1989); Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922

(1972). As a general rule, a judgment that leaves issues unresolved and contemplates

that further action must be taken is not a final and appealable order. See Moscarello v.

Moscarello, 5th Dist. Stark No. 2014CA00181, 2015-Ohio-654.

       {¶11} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable. R.C. 2502.02(B) provides the following, in pertinent part:
Ashland County, Case No. 15-COA-002                                                        5


       (B) An order is a final order that may be reviewed, affirmed, modified, or

       reversed, without or without retrial, when it is one of the following:

              (1) An order that affects a substantial right in an action that in effect

              determines the action and prevents a judgment;

              (2) An order that affects a substantial right made in a special

              proceeding or upon a summary application in an action after

              judgment. * * *

       {¶12} To qualify as final and appealable, the trial court’s order must satisfy the

requirements of R.C. 2505.02, and if multiple claims and/or multiple parties are at issue

and the order does not enter judgment on all the claims and/or as to all parties, the

order must also satisfy Civil Rule 54(B) by including express language that “there is no

just reason for delay.” Int’l. Brotherhood of Electrical Workers, Local Union No. 8 v.

Vaughn Indus., LLC, 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 101. However,

we note that “the mere incantation of the required language does not turn an otherwise

non-final order into a final appealable order.” Noble v. Colwell, 44 Ohio St.3d 92, 540

N.E.2d 1381 (1989).

       {¶13} In this case, the order complies with R.C. 2502.02, as a concealment

action is a special proceeding and affects a substantial right. In re Estate of Tewksbury,

4th Dist. No. 05CA741, 2005-Ohio-7107.

       {¶14} However, we find that, based upon the language utilized in the judgment

entry, Civil Rule 54(B) is not met in this case as the concealment action is intertwined

with the estate case. The trial court specifically stated that it could not "blindly proceed"

as if the will of decedent, which had not yet been admitted to probate, does not exist
Ashland County, Case No. 15-COA-002                                                       6


and based its decision in the concealment action directly upon the existence of the will

and the fact that the temporary restraining order is still in place in the estate case.

However, in the estate case, multiple issues that have the potential to directly affect the

concealment action and the trial court's rationale in its decision therein remain pending,

such as the motion to remove appellant as administrator, the question of whether there

are any estate assets that are capable of being concealed, the validity of the will,

whether the trial court accepts and/or disposes of Joya's application for administration

with will annexed, and the resolution of the restraining order. Accordingly, there are

issues unresolved and further action is necessary in the administration of the estate

case before review of the concealment action.

        {¶15} While the trial court’s judgment entry states that “this is a final appealable

order,” we note, as is stated above, that this language by a trial court “is not a mystical

incantation which transforms a non-final order into a final appealable order.”

Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 617 N.E.2d 1136 (1993), citing

Chef Italiano Corp. v. Kent State University, 44 Ohio St.3d 86, 541 N.E.2d 64 (1989);

Pettit v. Glenmoor Country Club, Inc., 5th Dist. Stark No. 2012-CA-00088, 2012-Ohio-

5622.
Ashland County, Case No. 15-COA-002                                                    7


      {¶16} Based on the foregoing, the judgment appealed from is not a final,

appealable order and this Court, therefore, lacks jurisdiction to address the assignments

of error. Accordingly, the appeal is dismissed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur
