[Cite as In re Estate of Thomas, 2014-Ohio-3481.]


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

IN RE: ESTATE OF LEANNA THOMAS                           C.A. No.   27177



                                                         APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
                                                         COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
                                                         CASE No.   2013-ES-527

                                 DECISION AND JOURNAL ENTRY

Dated: August 13, 2014



        MOORE, Judge.

        {¶1}    Appellant, David Thomas, appeals from the November 5, 2013 judgment entry of

the Summit County Court of Common Pleas, Probate Division. For the reasons that follow, we

dismiss the appeal.

                                                    I.

        {¶2}    This matter arises from two competing applications to administer the estate of Ms.

Leanna Thomas, filed by her sons, Appellee, Marvin Thomas, and David Thomas. A magistrate

of the trial court held a hearing on the applications, and after taking testimony from several

witnesses, issued a decision appointing Marvin Thomas as the administrator of his Mother’s

estate. David Thomas objected to the magistrate’s decision, and the trial court overruled his

objections, stating:

        ***

        As a threshold matter, [David] Thomas does not meet the requirements for
        objecting to the magistrate’s decision under Civ.R. 53. [David] Thomas failed to
        provide a copy of the transcript to the [c]ourt with his objection. Likewise,
                                                 2


       [David] Thomas failed to claim that the transcript is unavailable thereby
       substituting an affidavit of the evidence in his [o]bjection to the [m]agistrate’s
       [d]ecision.

       A party’s objection must be “specific and state with particularity [all] grounds
       [for] objection.” Civ.R. 53 [(D)(3)(b)(ii)]. * * * The [c]ourt is unable to discern
       with any specificity exactly what [David] Thomas’ objections are, just that they
       appear to be based on his rendition of various facts rather than legal in nature.
       Because [David] Thomas did not properly raise his objections, the [c]ourt is not
       required to review them.

       ***

In a separate entry, the trial court adopted the magistrate’s decision, and appointed Marvin

Thomas as administrator.

       {¶3}    David Thomas appealed, raising one assignment of error for our consideration.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE [TRIAL COURT] ERRED BY IGNORING [DAVID THOMAS’]
       QUALIFICATIONS TO BE THE ADMINISTRATOR OF THE ESTATE OF
       [HIS] MOTHER, [MS.] LEANNA THOMAS.

       {¶4}    This Court is obligated to raise sua sponte questions related to our jurisdiction.

Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). We only have

jurisdiction to hear appeals from final judgments.      Ohio Constitution, Article IV, Section

3(B)(2); R.C. 2501.02. In the absence of a final, appealable order, this Court must dismiss the

appeal for lack of subject matter jurisdiction. Lava Landscaping, Inc. v. Rayco Mfg., Inc., 9th

Dist. Medina No. 2930-M, 2000 WL 109108, *1 (Jan. 26, 2000).

       {¶5}    An analysis of whether a trial court’s order is appealable must begin with R.C.

2505.02, which states, in relevant part, that:

       (B) An order is a final order that may be reviewed, affirmed, modified, or
       reversed, with or without retrial, when it is one of the following:

       ***
                                                 3


       (2) An order that affects a substantial right made in a special proceeding or upon a
       summary application in an action after judgment[.]

       {¶6}    “The term ‘special proceeding’ is defined as ‘an action or proceeding that is

specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in

equity.’” In re Estate of Griffa, 9th Dist. Summit No. 25987, 2012-Ohio-904, ¶ 8, quoting R.C.

2505.02(A)(2). Historically, “proceedings relating to the administration of estates have * * *

been treated as special proceedings.” Griffa at ¶ 8, citing In re Estate of DePugh v. DePugh, 2d

Dist. Miami No. 94 CA 43, 1995 WL 136996 (Mar. 31, 1995), citing Polikoff v. Adam, 67 Ohio

St.3d 100 (1993). See also Wead v. Lutz, 161 Ohio App.3d 580, 2005-Ohio-2921, ¶ 13 (12th

Dist.), citing In re Estate of Lilley, 12th Dist. Warren Nos. CA99-07-083, CA99-07-084, CA99-

07-087, and CA99-07-088, 1999 WL 1239470 (Dec. 20, 1999). However, “other appellate

districts in Ohio have taken the position that probate proceedings are not special proceedings

under R.C. 2505.02(B).” Griffa at ¶ 8, citing In re Estate of Sneed, 166 Ohio App.3d 595, 2006-

Ohio-1868, ¶ 11 (6th Dist.).

       {¶7}    “In order to be appealable, the probate court’s order must not only be made in a

special proceeding, but must also affect a substantial right.” Griffa at ¶ 9. “R.C. 2505.02(A)(1)

states that a ‘substantial right’ is ‘a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or

protect.’” Id. “In Bell v. Mt. Sinai Med. Ctr[.], 67 Ohio St.3d 60, 63 (1993), the Supreme Court

of Ohio addressed the standard for determining when a substantial right is affected.” Id. The

Court stated that “[a]n order which affects a substantial right has been perceived to be one which,

if not immediately appealable, would foreclose appropriate relief in the future.” Bell at 63.

       {¶8}    In Griffa at ¶ 3,10, this Court concluded that an order denying a motion to dismiss

an application to administer an estate, and appointing an executor of the estate, “does not impact
                                                 4


‘a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or

a rule of procedure entitles a person to enforce or protect.’” Quoting R.C. 2505.02(A)(1).

Additionally, we stated that “an order granting or denying a motion to remove an executor would

affect a substantial right created by statute[.]” (Emphasis added.) Griffa at ¶ 10, citing R.C.

2113.18; see also R.C. 2109.24.

       {¶9}    Here, David Thomas is appealing from an order appointing his brother as the

administrator of their Mother’s estate. Similar to Griffa, the trial court’s ruling does not affect

David Thomas’ substantial rights, and would not foreclose him from taking future action should

Marvin Thomas breach his fiduciary duty to the estate. See Bell at 63; see also R.C. 2109.24

(allowing for the removal of a fiduciary “for habitual drunkenness, neglect of duty,

incompetency, or fraudulent conduct, because the interest of the property, testamentary trust, or

estate that the fiduciary is responsible for administering demands it, or for any other cause

authorized by law”).

       {¶10} As we have concluded that no substantial right is affected by the trial court’s

action, this Court lacks jurisdiction and the appeal is dismissed.

                                                III.

       {¶11} In concluding that the November 5, 2013 judgment entry of the Summit County

Court of Common Pleas, Probate Division, is not a final, appealable order, the appeal is

dismissed.

                                                                                Appeal dismissed.




       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
                                                5


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.

       Costs taxed to Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT




HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

DAVID THOMAS, pro se, Appellant.

JOHN F. HERMAN, Attorney at Law, for Appellee.
