[Cite as In re Estate of Harrison, 2012-Ohio-2169.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: ESTATE OF JORENE HARRISON                           C.A. No.   25812


                                                           APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
                                                           COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
                                                           CASE No.   2006 ES 849


                                 DECISION AND JOURNAL ENTRY

Dated: May 16, 2012



        MOORE, Presiding Judge.

        {¶1}     Sheron Harrison, Carolyn Harrison, Donald Harrison, and Jewerl Kemp

(“Appellants”) appeal from the judgment of the Summit County Court of Common Pleas,

Probate Division. This Court reverses and remands this matter to the probate court for further

proceedings consistent with this opinion.

                                                      I.

        {¶2}     Jorene Harrison passed away in 2006 from injuries that she sustained in an

automobile accident. Her estate brought wrongful death and survivorship claims against the

driver of the vehicle that was transporting Jorene and against the driver’s employer. The estate

ultimately settled the claims, resulting in a net amount of approximately $370,000 for

distribution to Jorene’s relatives on the wrongful death claim.

        {¶3}     In order to distribute the award, the probate court magistrate conducted a hearing

to ascertain damages sustained by Jorene’s relatives. Thereafter, the magistrate determined that
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the wrongful death award should be distributed primarily to Jorene’s twin, Corene Miller. The

magistrate recommended that the remainder of the award be divided among Jorene’s siblings

who survived her and among some of Jorene’s nieces and nephews. Appellants, who are four of

Jorene’s siblings who survived her, objected to the magistrate’s decision.

       {¶4}    On January 11, 2011, the probate court overruled Appellants’ objections and

issued an order consistent with the magistrate’s decision. Appellants timely filed an appeal from

the probate court’s order and present three assignments of error for our review. We have re-

ordered the assignments of error for ease of discussion.

                                                 II.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
       APPELLANTS’ OBJECTIONS TO THE AWARDS TO THE HEIRS OF
       JORENE’S PREDECEASED SIBLINGS.

       {¶5}    In their second assignment of error, Appellants argue that the trial court erred in

overruling their objections to the distributions from the wrongful death award to Jorene’s third

degree relatives when second degree relatives survived Jorene. We agree.

       {¶6}    R.C. 2125.02(A)(1) establishes the beneficiaries of a wrongful death award,

providing in part:

       Except as provided in this division, a civil action for wrongful death shall be
       brought in the name of the personal representative of the decedent for the
       exclusive benefit of the surviving spouse, the children, and the parents of the
       decedent, all of whom are rebuttably presumed to have suffered damages by
       reason of the wrongful death, and for the exclusive benefit of the other next of kin
       of the decedent.

Here, the parties dispute the import of the phrase “other next of kin” as used in the statute.

       {¶7}    Although this Court generally reviews a trial court’s decision overruling the

objections to a magistrate’s decision for an abuse of discretion, we must here determine whether
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the trial court correctly interpreted and applied R.C. 2125.02. See Gunderman v. Gunderman,

9th Dist. No. 08CA0067-M, 2009-Ohio-3787, ¶ 7. We review a trial court’s interpretation of a

statute de novo. Id., citing Porter v. Porter, 9th Dist. No. 21040, 2002-Ohio-6038, ¶ 5.

       {¶8}    R.C. 2125.02(A)(1) specifically provides that “the surviving spouse, the children,

and the parents of the decedent” and “other next of kin” are the exclusive beneficiaries of a

wrongful death award. Here, Jorene’s parents predeceased her, and she was unmarried and had

no children at the time of her death. She was survived by seven of her fourteen siblings.

Therefore, at issue here is whether the phrase “other next of kin” limits beneficiaries of the

wrongful death award to only Jorene’s surviving siblings.

       {¶9}    “In its common and ordinary meaning, the phrase ‘next of kin’ is a person’s

nearest relative or relatives.” In re Estate of Payne, 10th Dist. No. 04AP-1176, 2005-Ohio-2391,

¶ 13, citing Senig v. Nationwide Mut. Ins. Co., 76 Ohio App.3d 565, 574 (10th Dist.1992). Thus,

the statute allows for recovery for “the exclusive benefit” of the decedent’s spouse, parents,

children, and other nearest relatives. See R.C. 2125.02(A)(1); see also Payne at ¶ 14 (holding

that R.C. 2125.02(A)(1) allows for recovery by the surviving spouse, decedent’s first degree

relatives and the next degree of decedent’s surviving relatives). Pursuant to principles of descent

and distribution in Ohio, the degree of kinship is computed as the sum of the degrees that an

individual and his or her relative are each removed from a common ancestor. Russell v. Roberts,

54 Ohio App. 441, 448 (4th Dist.1936) (law of descent and distribution in Ohio follows the rules

of civil law for computation of degrees of kinship). Therefore, an individual’s parents and

children are first degree relatives. Payne at ¶ 9. An individual’s grandparents, grandchildren,

and siblings are second degree relatives, and an individual’s aunts uncles, nieces, nephews,

great-grandparents and great-grandchildren are third degree relatives. Id. Consequently, based
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upon a plain reading of the statute, Appellants contend that Jorene’s siblings are “next of kin,” as

they are the nearest surviving relatives to Jorene, and that they are entitled to recover to the

exclusion of the Jorene’s nieces and nephews.

         {¶10} The Appellee, Corene Miller, in her individual capacity, articulated no response in

her merit brief to this assignment of error. In her capacity as administrator, Appellee cites to the

Supreme Court’s holding in Ramage v. Central Ohio Emergency Servs., Inc., 64 Ohio St.3d 97,

104 (1992) for the proposition that even where individuals of a closer degree of consanguinity

survive the decedent, other more distantly related kin may share in the wrongful death award.

However, Ramage is distinguishable on its facts, as it pertained to the recovery of the decedent’s

grandparents who were second degree relatives, where the decedent’s father, a first degree

relative, had survived her. Id. The Court interpreted R.C. 2125.02 as allowing recovery of the

grandparents, determining that “the General Assembly intended that in addition to the surviving

parent, spouse, and minor children, brothers, sisters and other next of kin may also recover for

the mental anguish suffered as a result of the death of their loved one.” Id. at 105. Appellee

suggests that we extend this reasoning to allow third degree relatives to share in distribution of

the award, regardless as to whether second degree relatives survive the decedent. We decline to

do so.

         {¶11} In further support of our analysis, in Payne, the decedent’s aunt, a third degree

relative, argued that she, along with the decedent’s grandmother, a second degree relative, were

“other next of kin.” Payne at ¶ 4. The Payne court acknowledged that the wrongful death statute

allows for recovery by the decedent’s second degree relatives. See Payne at ¶ 8, and Ramage, 64

Ohio St.3d at 106. However, this is because the statute provides that the wrongful death award

shall be for the exclusive benefit of “the surviving spouse, the children, and the parents of the
                                                   5


decedent,[ ] and [ ]other next of kin of the decedent.” (Emphasis added.) R.C. 2125.02(A)(1);

Payne at ¶ 5-14. The Payne court thus determined that “other next of kin” refers “the nearest

surviving relative[s] to the decedent after accounting for parents, children, or spouse[.]” Id. at ¶

14, 19. We agree, as holding otherwise would effectively read the words “next of” out of the

phrase “next of kin.” See Payne, at ¶ 14.

       {¶12} Here, because the closest relatives to Jorene who survived her were seven of her

siblings, those siblings are “other next of kin” within the meaning of R.C. 2125.02(A)(1).

Therefore, these surviving siblings benefit from the award to the exclusion of more distantly

related individuals. See R.C. 2125.02(A)(1); Payne at ¶ 14.

       {¶13} However, the trial court determined that the children of two of Jorene’s siblings,

Clyde and Barbara, who predeceased Jorene “could be awarded damages from the wrongful

death proceeds.” To the extent that the trial court determined that these nieces and nephews

could receive distribution as representatives of their parents, this was error. The time of the

decedent’s death fixes the status of beneficiaries to a wrongful death action. R.C. 2125.02(A)(3).

Thus, Barbara and Clyde, both of whom predeceased Jorene, were not eligible beneficiaries. As

a result, their children cannot recover in their places.

       {¶14} Consequently, it was error for the trial court to distribute portions of the wrongful

death award to Norma Ruth Townsend, Clyde Anthony Harrison, Randy Harrison, Paula

Hogeda, Tony Clay, Teresa Harrison, Kevin Tennon, and Antuan Harrison, all related to Jorene

in the third degree, when Jorene’s second degree relatives survived her.          Appellants’ first

assignment of error is sustained, and this matter is remanded to the trial court for further

proceedings consistent with this opinion.
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                               ASSIGNMENT OF ERROR NO. 3

        THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
        APPELLANTS’ OBJECTIONS TO THE AWARDS TO THE ESTATES AND
        AN HEIR OF JORENE’S SIBLINGS WHO DIED BEFORE DISTRIBUTION.

                               ASSIGNMENT OF ERROR NO. 1

        THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
        APELLANTS’ OBJECTION TO THE AWARD TO [CORENE].

        {¶15} In their third assignment of error, Appellants argue that the trial court erred in its

distributions of portions of the award to the estates of Jorene’s brothers Alfred and James, who

survived her but died prior to the distribution of the wrongful death award. In this assignment of

error, Appellants further argue that the trial court erred in awarding $5,000 to Antuan Harrison, a

nephew of Jorene. In their first assignment of error, Appellants argue that the trial court erred in

awarding significantly more to Corene Miller than it awarded to Jorene’s other siblings. We

have combined these assignments of error, and we will address these arguments out of order to

facilitate our discussion.

Distribution to Antuan Harrison

        {¶16} To the extent that Appellants’ third assignment of error challenges the distribution

to Antuan Harrison, we agree. The trial court ordered that $5,000 be distributed to Antuan, who

is Jorene’s nephew. As set forth in our discussion of Appellant’s second assignment of error

above, third degree relatives are not beneficiaries of a wrongful death award under R.C. 2125.02

when second degree relatives have survived the decedent. Therefore, Antuan Harrison, as a third

degree relative to Jorene, is precluded from benefitting from the wrongful death proceeds

because second degree relatives of Jorene survived her. Thus, the trial court erred in ordering a

distribution of the wrongful death award to Antuan Harrison.

Estates of Alfred and James Harrison as Beneficiaries
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         {¶17} Alfred and James Harrison, brothers of Jorene, survived Jorene but passed away

prior to the hearing on distribution of the wrongful death award. However, the time of the

decedent’s death fixes the status of beneficiaries to a wrongful death action. R.C. 2125.02(A)(3).

As Alfred and James were living siblings of Jorene at the time of her death, and they are “other

next of kin” under R.C. 2125.02(A)(1), Alfred and James are beneficiaries of the wrongful death

award.

Amounts Distributed to Alfred Harrison, James Harrison and Corene Miller

         {¶18} Damages recovered from a wrongful death action are distributable pursuant to

R.C. 2125.03. This statute provides,

         The court that appointed the personal representative, except when all of the
         beneficiaries are on an equal degree of consanguinity to the deceased person, shall
         adjust the share of each beneficiary in a manner that is equitable, having due
         regard for the injury and loss to each beneficiary resulting from the death and for
         the age and condition of the beneficiaries. If all of the beneficiaries are on an
         equal degree of consanguinity to the deceased person, the beneficiaries may adjust
         the share of each beneficiary among themselves. If the beneficiaries do not adjust
         their shares among themselves, the court shall adjust the share of each beneficiary
         in the same manner as the court adjusts the shares of the beneficiaries who are not
         on an equal degree of consanguinity to the deceased person.

         {¶19} Here, as we determined above that the beneficiaries of the award under R.C.

2125.02 are the seven surviving siblings of Jorene, all beneficiaries are on an equal degree of

consanguinity. Thus, as the siblings did not adjust their shares of the award among themselves,

the probate court was required to “adjust the share of each beneficiary in a manner that is

equitable[.]” R.C. 2125.03. However, our disposition of Appellants’ second assignment of error

removes relatives from the class of beneficiaries and thus changes the amount of funds to be

distributed, requiring this matter to be remanded for redistribution of those portions of the award

as noted above. Accordingly, Appellants’ arguments as to the amounts awarded to the estates of
                                                 8


James and Alfred Harrison and as to the amount awarded to Corene Miller, are not yet ripe for

review.

                                                III.

          Appellants’ second assignment of error is sustained. Appellants’ third assignment of

error is sustained to the extent it challenges the award to Antuan Harrison. This matter is

remanded to the trial court for further proceedings consistent with this opinion. In light of our

remand, we decline to address Appellants’ third assignment of error to the extent that it

challenges the amounts of the award distributed to the estates of Alfred and James Harrison, and

we decline to address Appellants’ first assignment of error, as these matters are not yet ripe for

review.

                                                                               Judgment reversed
                                                                             and cause remanded.




          There were reasonable grounds for this appeal.

          We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

          Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellee.


                                             CARLA MOORE
                                             FOR THE COURT



CARR, J.
DICKINSON, J.
CONCUR.


APPEARANCES:

MARGARET M. MURRAY and PATRICK G. O’CONNOR, Attorneys at Law, for Appellant.

ROBERT C. MEEKER, Attorney at Law, for Appellee.
