[Cite as Estate of Brewer v. Black, 2011-Ohio-920.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
ESTATE OF LARRY BREWER                                :       Hon. W. Scott Gwin, P.J.
                                                      :       Hon. Julie A. Edwards, J.
                         Plaintiff-Appellant          :       Hon. Patricia A. Delaney, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2010-CA-00278
CREDITOR FRANCES ALICE                                :
BLACK                                                 :
                                                      :       OPINION
                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 20823



JUDGMENT:                                                 Affirmed


DATE OF JUDGMENT ENTRY:                                   February 28, 2011

APPEARANCES:

For Plaintiff-Appellant                                   For Defendant-Appellee

ROBERT R. HUNTER, JR.                                     JOHN V. BOGGINS
520 East Main Street                                      1428 Market Avenue North
Alliance, OH 44601                                        Canton, OH 44714
[Cite as Estate of Brewer v. Black, 2011-Ohio-920.]


Gwin, P.J.

        {¶1}     Plaintiffs-appellants the Estate of Larry E. Brewer by Administrator Lana

Sas appeal the September 3, 2010 judgment of the Court of Common Pleas, Probate

Division, of Stark County, Ohio, which removed the appellant Lana Sas as administrator

of the estate. Appellee is Frances Alice Black, a creditor of the estate. Appellants

assign one error to the trial court:

        {¶2}     “I. THE DECISION OF THE PROBATE COURT TO REMOVE LANA SAS

AS ADMINISTRATOR WAS AN ABUSE OF DISCRETION SINCE THERE WAS NO

EVIDENCE TO SUPPORT THAT DECISION.”

                                 STATEMENT OF THE FACTS AND CASE

        {¶3}     Larry E. Brewer died on April 14, 2006, and his son, appellant Wade E.

Brewer, was appointed administrator of the estate in June 2006. In June of 2007, the

Court of Common Pleas, General Division, awarded the appellee a civil judgment

against the estate. The General Division case was appealed to this court twice, and

ultimately we affirmed the trial court's decision.                Brewer v. Black, Stark App.

No.2008CA00278, 2009-Ohio-6625.

        {¶4}     On February 18, 2010, appellee filed a motion for the removal of the

fiduciary pursuant to R.C. 2109.24. The probate court set a hearing on the motion for

March 17, 2010.          On March 12, 2010, appellants filed an amended inventory and

appraisal, with a schedule of assets.                 On March 31, 2010, the court conducted a

hearing, removed the fiduciaries, and denied them fiduciary fees. We affirmed the trial

court's decision. Brewer v. Black, Stark App. No.2010CA00096, 2010-Ohio-3589.
Stark County, Case No. 2010-CA-00278                                                                     3


        {¶5}    On April 16, 2010, Lana Sas (sister of Wade Brewer and Cathie Brewer

Long) applied for appointment as administrator under new case number 2087231. A

deputy clerk issued letters of authority.

        {¶6}    Attorney Rosemary Rubin filed an additional application under case

number 209636. A hearing was scheduled for September 1, 2010 at which appeared

appellee's counsel, Attorney Rubin and appellant’s attorney. Lana Sas did not appear.

No contemporaneous record of that hearing was made.

        {¶7}    In a decision filed September 3, 2010, the probate court vacated the

appointment of Sas and appointed Attorney Rubin as administrator. The lower court,

taking into consideration the entire history of the administration, the Common Pleas

litigation, and the appeals, found that a great degree of hostility and distrust existed

between the interested parties, and that Sas was not reasonably disinterested. On

September 29, 2010 appellant filed her Notice of Appeal.

        {¶8}    By Judgment Entry filed November 10, 2010, this Court remanded the

matter to the Probate court for purposes of settling the record pursuant to App.R.9. On

December 7, 2010 the probate court filed a Statement of the Evidence approved by

counsel for the parties and certified the record as complete.

                                         STANDARD OF REVIEW

        {¶9}    This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

        {¶10} "(E) Determination and judgment on appeal.                        The appeal will be

determined as provided by App. R. 11.1. It shall be in sufficient compliance with App.

        1
           As a matter of Probate procedure, each application for appointment of a substitute administrator
is filed under a new case number, although there is but one estate. It and any other related cases are
cross-referenced to one another.
Stark County, Case No. 2010-CA-00278                                                     4


R. 12(A) for the statement of the reason for the court's decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form."

       {¶11} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App. 3d 158. This appeal

shall be considered in accordance with the aforementioned rule.

                                                I.

       {¶12} Appellants first argue appellee presented no evidence in support of her

motion to remove the administrator.

       {¶13} In general, a probate court's decision regarding the granting of letters of

administration in an estate is reviewed for abuse of the court's discretion. In re: Estate

of Henne (1981), 66 Ohio St. 2d 232, 20 O.O. 3d 228, 421 N.E. 2d 506. A court abuses

its discretion when its decision is arbitrary, unreasonable, or unconscionable. In re:

Adoption of Ridenour (1991), 61 Ohio St.3d 319, 320, 574 N.E.2d 1055. Furthermore,

abuse of discretion “connotes more than an error of judgment; it implies a decision

which is without a reasonable basis, one which is clearly wrong.”          Angelkovski v.

Buckeye Potato Chips Co., Inc. (1983), 11 Ohio App.3d 159, 11 OBR 242, 463 N.E.2d

1280, paragraph three of the syllabus.

       {¶14} In Ohio, a court speaks through its journal. Accordingly, it is imperative

that the court's journal reflect the truth. State ex rel. Worcester v. Donnellon (1990), 49
Stark County, Case No. 2010-CA-00278                                                       5

Ohio St.3d 117, 551 N.E.2d 183, holding limited as stated in State ex rel. Neff v.

Corrigan (1996), 75 Ohio St.3d 12, 17, 661 N.E.2d 170, 174.

       {¶15} The court has the power to take judicial notice of its own records and

judicial notice of its own actions in earlier proceedings of the same case. Diversified

Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159,

454 N.E.2d 1330. In the instant action, a probate court took judicial notice of the entire

record of the herein matter, all of which was known to appellant and her attorney. Any

objection thereto was waived by failure to make a timely request to be heard as to the

propriety of taking judicial notice. Evid.R. 201(E).

       {¶16} R.C. 2113.06 specifically states that the surviving spouse of the deceased,

if a resident of the state or one of the Ohio next of kin of the deceased, “shall be

granted” letters of administration. It appears that Lana Sas would have priority to be

appointed as administrator.

       {¶17} The primary purpose of the judiciary in the interpretation or construction of

a statue is to give effect to the intention of the legislature, as gathered from the

provisions enacted by application of well-settled rules of construction or interpretation.

Henry v. Central National Bank (1968), 16 Ohio St.2d 16, 20, 242 N.E.2d 342. (Quoting

State ex rel. Shaker Heights Public Library v. Main (1948), 83 Ohio App. 415, 80 N.E.2d

261). It is a cardinal rule that a court must first look to the language itself to determine

the legislative intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 304

N.E.2d 378. If that inquiry reveals that the statute conveys a meaning which is clear,

unequivocal and definite, at that point the interpretive effort is at an end, and the statute

must be applied accordingly. Id. at 105-106, 304 N.E.2d 378. In determining legislative
Stark County, Case No. 2010-CA-00278                                                      6


intent, it is the duty of the court to give effect to the words used, not to delete words

used or to insert words not used. Columbus-Suburban Coach Lines v. Public Utility

Comm. (1969), 20 Ohio St. 2d 125, 127, 254 N.E. 2d 8. See also, In re: McClanahan,

Tuscarawas App. No. 2004AP010004, 2004-Ohio-4113 at ¶ 16.

       {¶18} R.C. 1.42 states: “1.42 Common and technical usage.               Words and

phrases shall be read in context and construed according to the rules of grammar and

common usage.       Words and phrases that have acquired a technical or particular

meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

       {¶19} The word “shall” is usually interpreted to make the provision in which it is

contained mandatory. Dorrian v. Scioto Conservancy District (1971), 27 Ohio St.2d

102, 107, 271 N.E.2d 834. In contrast, the use of the word “may” is generally construed

to make the provision in which it is contained optional, permissive, or discretionary. Id.

The words “shall” and “may” when used in statutes are not automatically

interchangeable or synonymous. Id. To give the “may” as used in a statute a meaning

different from that given in its ordinary usage, it must clearly appear that the Legislature

intended that it be so construed from a review of the statute itself. Id. at 107-108, 271

N.E.2d 834. In re: McClanahan, supra at ¶ 17.

       {¶20} Thus, the probate court was required to determine whether to grant letters

of administration to decedent’s Ohio next of kin before simply appointing a local attorney

as administrator. In re: Estate of Usiak, 172 Ohio App.3d 262, 276, 874 N.E.2d 838,

849, 2007-Ohio-3038 at ¶ 51.

       {¶21} In the case at bar the probate court held a hearing at which Ms. Sas’s

attorney was present.     It does not appear from the record before us that counsel
Stark County, Case No. 2010-CA-00278                                                      7


requested a continuance to present testimony or witnesses.          As the United States

Supreme Court recently observed in Puckett v. United States(2009), 129 S.Ct. 1423,

1428, 173 L.Ed.2d 266, “If an error is not properly preserved, appellate-court authority

to remedy the error (by reversing the judgment, for example, or ordering a new trial) is

strictly circumscribed. There is good reason for this; ‘anyone familiar with the work of

courts understands that errors are a constant in the trial process, that most do not much

matter, and that a reflexive inclination by appellate courts to reverse because of

unpreserved error would be fatal.’” (Citation omitted).

      {¶22} Under the doctrine of “invited error,” it is well settled that “a party will not

be permitted to take advantage of an error which he himself invited or induced the trial

court to make.” State ex rel. Smith v. O'Connor (1995), 71 Ohio St.3d 660, 663, citing

State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359. See, also, Lester v. Leuck

(1943), 142 Ohio St. 91, paragraph one of the syllabus. As the Ohio Supreme Court

has stated:

      {¶23} “The law imposes upon every litigant the duty of vigilance in the trial of a

case, and even where the trial court commits an error to his prejudice, he is required

then and there to challenge the attention of the court to that error, by excepting thereto,

and upon failure of the court to correct the same to cause his exceptions to be noted. It

follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either

intentionally or unintentionally, to induce or mislead a court into the commission of an

error and then procure a reversal of the judgment for an error for which he was actively

responsible.” Lester at 92-93, quoting State v. Kollar (1915), 142 Ohio St. 89, 91.
Stark County, Case No. 2010-CA-00278                                                    8

       {¶24} The trial court's conclusions of law cite In Re: Estate of Henne (1981), 66

Ohio St. 2d 232, 421 N.E. 2d 506. In Henne, the Ohio Supreme Court found monetary

conflicts are a valid consideration for finding unsuitability. The trial court found there

was several million dollars worth of assets at issue. Also in Henne, the Ohio State

Supreme Court found if an executor had conflicting or adverse interests that rendered

the executor unable to make objective decisions, plus a finding of extreme hostility and

mistrust amongst the parties, with all the underlying applications, then the person is

unsuitable to be appointed an executor. The Henne court held our standard of error is

abuse of discretion.

       {¶25} We find the trial court did not err or abuse its discretion in finding the

relationship between the parties in this case was so extremely hostile and distrustful,

and the interest of Ms. Sas was potentially in conflict with the estate, that Lana Sas was

unsuitable to act as administrator.
Stark County, Case No. 2010-CA-00278                                              9


      {¶26} For the foregoing reasons, the judgment of the Court of Common Pleas,

Probate Division, of Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Edwards, J., and

Delaney, J., concur




                                              _________________________________
                                              HON. W. SCOTT GWIN

                                              _________________________________
                                              HON. JULIE A. EDWARDS

                                              _________________________________
                                              HON. PATRICIA A. DELANEY



WSG:clw 0131
[Cite as Estate of Brewer v. Black, 2011-Ohio-920.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


ESTATE OF LARRY BREWER                                :
                                                      :
                            Plaintiff-Appellant       :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
CREDITOR FRANCES ALICE                                :
BLACK                                                 :
                                                      :
                                                      :
                         Defendant-Appellee           :       CASE NO. 2010-CA-00278




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Probate Division, of Stark County, Ohio, is affirmed. Costs

to appellant.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN

                                                          _________________________________
                                                          HON. JULIE A. EDWARDS

                                                          _________________________________
                                                          HON. PATRICIA A. DELANEY
