[Cite as Crick v. Starr, 2013-Ohio-2869.]


                                     COURT OF APPEALS
                                   MAHONING COUNTY, OHIO
                                 SEVENTH APPELLATE DISTRICT


ROY L. CRICK, EXECUTOR OF THE                :   JUDGES:
ESTATE OF RAY A. STARR                       :
                                             :   Hon. W. Scott Gwin, P.J.
                                             :   Hon. Sheila G. Farmer, J.
       Plaintiff-Appellant                   :   Hon. Patricia A. Delaney, J.
                                             :
-vs-                                         :   Sitting by Assignment by the Ohio
                                             :   Supreme Court
                                             :
DAVID A. STARR                               :   Case No. 12-MA-00081
                                             :
                                             :
       Defendant-Appellee                    :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Mahoning County Court
                                                 of Common Pleas, Case No. 2010 CV
                                                 3985


JUDGMENT:                                        REVERSED AND REMANDED



DATE OF JUDGMENT ENTRY:                          June 21, 2013



APPEARANCES:

For Plaintiff-Appellant:                         For Defendant-Appellee:

EDWIN ROMERO                                     DONALD P. LEONE
THOMAS F. HULL, II                               4800 Market St., Suite D
Atrium Level Two                                 Youngstown, OH 44512
201 E. Commerce St.
Youngstown, OH 44503-1641

LARRY ZIELKE
P.O. Box 311
Damascus, OH 46190
Mahoning County, Case No.12-MA-00081                                                     2

Delaney, J.

         {¶1} Plaintiff-Appellant Roy L. Crick, Executor of the Estate of Ray A. Starr

appeals the April 2, 2012 judgment entry of the Mahoning County Court of Common

Pleas.

                         FACTS AND PROCEDURAL HISTORY

         {¶2} On July 7, 2009, Plaintiff-Appellant Roy L. Crick, Executor of the Estate of

Ray A. Starr filed a complaint for declaratory judgment against Defendant-Appellee

David A. Starr in the Mahoning County Court of Common Pleas, Probate Division.

Executor brought the complaint pursuant to R.C. 2101.24(A)(1)(l) and R.C. 2721.01, et

seq., requesting the probate court to determine the validity of the alleged transfer of two

parcels of real estate from the decedent, Ray Starr to his brother, David Starr. Executor

requested the probate court to order David Starr to convey the two parcels of real estate

to the Estate.

         {¶3} The probate court ruled by judgment entry of September 22, 2010. The

probate court held that as to one parcel of real estate, David Starr received title as an

unconditional gift from the decedent. The probate court determined the transfer of the

second parcel of real estate was not a completed gift and ordered David Starr to

execute a general warranty deed conveying the property to the Estate.

         {¶4} On October 20, 2010, Executor filed a complaint in the Mahoning County

Court of Common Pleas, General Division against David Starr. Executor brought the

action pursuant to R.C. 2127.40, requesting a determination that the transfer of the

remaining parcel of real estate transferred from the decedent to David Starr was made

with the intent to defraud the decedent’s creditors.
Mahoning County, Case No.12-MA-00081                                                   3


      {¶5} David Starr filed a motion to dismiss on August 24, 2011.           Executor

responded to the motion. The magistrate assigned to the matter converted the motion

to dismiss to a motion for summary judgment. David Starr filed a motion for summary

judgment on January 30, 2012, arguing the Executor’s complaint was barred by res

judicata and/or collateral estoppel. On February 27, 2012, the magistrate issued his

decision.   The magistrate questioned whether the court of common pleas, general

division had jurisdiction to hear the complaint.    The magistrate stated the general

division appeared to have jurisdiction over the matter pursuant to R.C. 2127.40, but in

this case, the probate court had already assumed jurisdiction over the matter in the

2009 proceeding.     The magistrate sustained David Starr’s motion for summary

judgment and dismissed the matter.

      {¶6} Executor filed objections to the magistrate’s decision and David Starr

responded. On April 2, 2012, the trial court modified the magistrate’s decision that

dismissed the case; instead, the trial court transferred the matter to the probate court.

The trial court made no determination as to David Starr’s argument that the Executor’s

claims were barred by res judicata or collateral estoppel. Nor did the trial court reach

the substantive merits of Executor’s complaint. The trial court included Civ.R. 54(B)

language in its judgment entry.

      {¶7} It is from this decision Executor now appeals.
Mahoning County, Case No.12-MA-00081                                                   4


                               ASSIGNMENT OF ERROR

       {¶8} Executor raises one Assignment of Error:

       {¶9} “THE TRIAL COURT ERRED IN HOLDING THAT THE GENERAL

DIVISION OF THE COMMON PLEAS COURT LACKED SUBJECT MATTER

JURISDICTION       OVER      APPELLANT’S        CLAIM     AND     IN    TRANSFERRING

APPELLANT’S CLAIM TO THE PROBATE DIVISION OF THE COMMON PLEAS

COURT.”

                                       ANALYSIS

                             FINAL, APPEALABLE ORDER

       {¶10} Before we address the merits of Executor’s Assignment of Error, we

address David Starr’s argument that this Court is without jurisdiction to consider an

appeal of the April 2, 2012 judgment entry for lack of a final, appealable order. We

disagree.

       {¶11} The trial court did not rule on the merits of Executor’s complaint, but

ordered the matter be transferred to the probate court because the common pleas court

was without jurisdiction to consider the matter. In the April 2, 2012 judgment entry, the

trial court included the Civ.R. 54(B) language of “no just cause for delay.” David Starr

argues this language is insufficient to convert the judgment to a final appealable order.

Because the trial court transferred the matter to probate court without ruling on the

merits, David Starr contends Executor’s original claims are still pending.

       {¶12} The Ohio Constitution, Article IV, Section 3(B)(2) limits an appellate

court's jurisdiction to the review of final judgments. For a judgment to be final and

appealable, it must satisfy R.C. 2502.02, and, if applicable, Civ.R. 54(B). Northeast
Mahoning County, Case No.12-MA-00081                                                       5

Professional Home Care, Inc. v. Advantage Home Health Services, Inc., 188 Ohio

App.3d 704, 2010–Ohio–1640, 936 N.E.2d 964, ¶ 14 (5th Dist.) citing Hitchings v.

Weese, 77 Ohio St.3d 390, 674 N.E.2d 688 (1997).

      {¶13} To constitute a final order, an order must fit into one of the categories in

R.C. 2505.02(B), which provides in pertinent part:

      (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:

      (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;

      ***

      (4) An order that grants or denies a provisional remedy and to which both

      of the following apply:

      (a) The order in effect determines the action with respect to the provisional

      remedy and prevents a judgment in the action in favor of the appealing

      party with respect to the provisional remedy.

      (b) The appealing party would not be afforded a meaningful or effective

      remedy by an appeal following final judgment as to all proceedings,

      issues, claims, and parties in the action.

      {¶14} In this case, the trial court found it did not have jurisdiction over the matter,

granted summary judgment in favor of David Starr and transferred the action to the

probate court. In this appeal, Executor argues it was error to grant summary judgment
Mahoning County, Case No.12-MA-00081                                                    6


in favor of David Starr because R.C. 2127.40 confers jurisdiction upon the court of

common pleas.      Under these procedural circumstances and based on our analysis

below, we find the April 2, 2012 judgment entry of the trial court is a final, appealable

order ripe for our consideration.

                          JURISDICTION UNDER R.C. 2127.40

       {¶15} Executor argues in his sole Assignment of Error the trial court erred in

adopting in part the magistrate’s decision as to summary judgment and transferring the

matter to the probate court. We agree.

       {¶16} This matter originally came before the magistrate upon David Starr’s

motion for summary judgment. The magistrate issued his decision that granted David

Starr’s motion for summary judgment and dismissed the action.              Executor filed

objections to the magistrate’s decision and the trial court overruled the objections and

adopted the magistrate’s decision as to summary judgment, but with a modification that

transferred the matter to probate court instead of dismissing the case.

       {¶17} An appellate court conducts a de novo review of a trial court's decision to

grant summary judgment, using the same standards as the trial court as set forth in

Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Before summary judgment can be granted, the trial court must determine that

(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party

is entitled to judgment as a matter of law, and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing the evidence most

favorably in favor of the party against whom the motion for summary judgment is made,

the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d
Mahoning County, Case No.12-MA-00081                                                    7


317, 327, 364 N.E.2d 267 (1977). When a court considers a motion for summary

judgment, the facts must be taken in the light most favorable to the nonmoving party.

Id.

       {¶18} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party

has the reciprocal burden of setting forth specific facts showing that there is a genuine

issue for trial. Id. at 293. In other words, when presented with a properly supported

motion for summary judgment, the nonmoving party must produce some evidence that

suggests that a reasonable factfinder could rule in that party's favor.        Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

       {¶19} In his complaint, Executor alleged the decedent fraudulently conveyed a

parcel of real estate to David Starr with the intent to defraud the decedent’s creditors.

The trial court, in granting summary judgment in favor of David Starr, found the common

pleas court was without jurisdiction to consider the matter and transferred the action to

the probate court. It made no determination as to the substantive merits of Executor’s

complaint or as to David Starr’s claims of res judicata or collateral estoppel. (Judgment

Entry, April 2, 2012).

       {¶20} Executor argues it properly brought its claims in the general division of the

common pleas court pursuant to R.C. 2127.40. R.C. 2127.40 is entitled, “Sale by
Mahoning County, Case No.12-MA-00081                                                     8


executor or administrator of real property fraudulently transferred by decedent.” The

statute reads:

              When an action is brought by an executor or administrator to sell

       real property to pay debts, the real property subject to sale shall include all

       rights and interests in real property transferred by the decedent in the

       decedent's lifetime with intent to defraud the decedent's creditors, except

       that real property fraudulently transferred cannot be taken from any

       person who purchased them for a valuable consideration, in good faith,

       and without knowledge of the fraud. No claim to that real property shall be

       made unless within four years next after the decease of the grantor.

              If real property fraudulently transferred is to be included in that

       action, the executor or administrator, either before or at the same time,

       may commence a civil action in the court of common pleas in the county in

       which the real property is situated to recover possession of it, or, in the

       action for its sale, the executor or administrator may allege the fraud and

       have the fraudulent transfer avoided.       But when the real property is

       included in the complaint before the recovery of possession by the

       executor or administrator, the action shall be brought in the court of

       common pleas in the county in which the real property is situated.

       {¶21} There is no Ohio case law analyzing R.C. 2127.40. As such, this Court

looks to Ohio case law analyzing the statute’s progenitor, sections 6139 and 6140 of the

Revised Statutes. In Spoors v. Cowen, 44 Ohio St. 497, 9 N.E. 132 (1886), the Ohio

Supreme Court reviewed a case where the decedent conveyed real estate to his son
Mahoning County, Case No.12-MA-00081                                                     9


and on the same day, the son conveyed the property back to the decedent’s wife. The

administrator filed a cause of action in the probate court to have the conveyance set

aside and to sell the lands to pay the debts of the estate. The probate court affirmed

and ordered the administrator to sell the land. The decedent’s wife appealed.

      {¶22} The Ohio Supreme Court held:

             1. The probate court had no jurisdiction; for, although it is provided

      in section 6139, Rev. St., that the petition to sell lands to pay the debts of

      the estate ‘shall include all the deceased may have conveyed with intent

      to defraud creditors,’ yet it is provided, in section 6140, Rev. St., that,

      ‘where such land is included in the application before a recovery of the

      possession thereof, the action shall be in the court of common pleas.’ The

      revision of this provision doubtless arose from a persuasion, in the mind of

      the legislature, that a recovery of such lands involved an exercise of

      jurisdiction that should only be conferred on the courts of common pleas;

      they being courts of general jurisdiction in matters of law and equity, and

      therefore more competent, from the character of their judges, constantly

      employed in the exercise of such jurisdiction, to hear and determine such

      matters. And so, to avoid a multiplicity of suits, it is provided that an action

      to set aside a conveyance of lands that had been made by a decedent to

      defraud creditors may be united with a proceeding for an order of sale to

      pay debts, by resorting, in the first instance, to the court of common pleas.

      In this case the pleader seems to have assumed that he had avoided this

      objection to the jurisdiction of the court by the averment ‘that the petitioner
Mahoning County, Case No.12-MA-00081                                                    10


       has been and is now in the exclusive possession of said premises.’ But

       mere possession, herein exclusive, by the administrator, does not confer

       jurisdiction upon the probate court to order a sale to pay debts, unless the

       possession had been recovered in an action against the grantee, or those

       claiming under him, for the purpose of having the conveyance set aside as

       fraudulent against creditors. Until the conveyance has been set aside by

       the judgment of a competent court, or a reconveyance made by the party

       holding the title, an order for the sale of such lands to pay the debts of the

       decedent cannot be made in the common pleas or probate court. This is

       in harmony with what has been the settled policy of our state in the matter

       of judicial sale, which has always been to so offer the land as to transfer it

       to the purchaser with a good title; but an administrator's sale may be

       made, instead of offering it, as a lawsuit, for what can be obtained from

       those who may feel disposed to invest in litigation. Hence possession, not

       acquired as the fruits of a judgment in a suit to recover the land, avails

       nothing, where the proceeding for an order of sale is begun in the probate

       court, instead of the common pleas.

Id. at *501-502.

       {¶23} Accordingly, when land has been fraudulently conveyed by the decedent

with the intent to defraud his or her creditors, the executor or administrator, in order to

get possession of the same and avoid the fraudulent conveyance, must first bring a

separate action to have the conveyance set aside in the court of common pleas. The

probate court is without jurisdiction under R.C. 2127.40. Spoors v. Cowen, 44 Ohio St.
Mahoning County, Case No.12-MA-00081                                                   11

497, 9 N.E. 132 (1886); Cross v. Armstrong, 44 Ohio St. 613, 10 N.E.160 (1887). A

probate court is a court of limited jurisdiction and probate proceedings are restricted to

those actions permitted by statute and by the Constitution. Corron v. Corron, 40 Ohio

St.3d 75, 531 N.E.2d 708 (1988), paragraph one of the syllabus.

       {¶24} Upon our de novo review, we find the general division of the common

pleas court has jurisdiction to hear a matter pursued under R.C. 2127.40.

       {¶25} The sole Assignment of Error of Plaintiff-Appellant Roy L. Crick, Executor

of the Estate of Ray A. Starr is sustained.
Mahoning County, Case No.12-MA-00081                                                 12


                                     CONCLUSION

       {¶26} Based on the foregoing, the sole Assignment of Error of Plaintiff-Appellant

Roy L. Crick, Executor of the Estate of Ray A. Starr is sustained.

       {¶27} The judgment of the Mahoning County Court of Common Pleas is

reversed and the matter remanded for further proceedings consistent with this opinion

and law.

By:

Delaney, J.,

Gwin, P.J. and

Farmer, J., concur.




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