[Cite as In re Estate of Miller, 2016-Ohio-414.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    ROSS COUNTY

ESTATE OF ROBERT B. MILLER, :       Case No. 14CA3469
DECEASED                       :
                               :    DECISION AND JUDGMENT
                               :    ENTRY
                               :    Released: 01/29/16
_____________________________________________________________
                       APPEARANCES:

James L. Mann, Mann and Preston LLP, Chillicothe, Ohio, for Appellants.1

James K. Cutright, Cutright & Cutright LLC, Chillicothe, Ohio, for
Appellee.2
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a decision by the Probate Court of Ross

County, Ohio, denying as untimely a motion to disallow commissions paid

to a former executor. On appeal, Appellants, Robert M. Miller and Nancy

Lallier, co-executors of the estate of Robert B. Miller, contend that 1) the

probate court erred in holding that the motion to disallow commissions paid

to the former executor was untimely, and 2) the probate court erred in

denying the motion to disallow commissions paid to the former executor.

Because we find the trial court abused its discretion in denying the motion to


1
  James Mann represents Appellants Robert M. Miller and Nancy Lallier, co-executors of the estate of
Robert B. Miller.
2
  James Cutright represents Appellee Ralph Hempfiling, the son of Marjorie C. Distelhorst, deceased, who
was the prior executor of the estate of Robert B. Miller.
Ross App. No. 14CA3469                                                          2

disallow commissions based upon its determination that the motion was

untimely filed, we sustain Appellants’ first assignment of error. Further,

because the probate court did not address the merits of the motion to

disallow, but rather denied it as untimely filed, and in light of our disposition

of Appellants’ first assignment of error, we do not reach Appellants’ second

assignment of error. Accordingly, the decision the trial court is reversed and

this matter is remanded to the probate court for further proceedings

consistent with this opinion.

                        ASSIGNMENTS OF ERROR

“I.   THE PROBATE COURT ERRED IN HOLDING THAT THE
      MOTION TO DISALLOW COMMISSIONS PAID TO THE
      FORMER EXECUTOR WAS UNTIMELY.

II.   THE PROBATE COURT ERRED IN DENYING THE MOTION TO
      DISALLOW COMMISSIONS PAID TO THE FORMER
      EXECUTOR.”

                     FACTS AND LEGAL ANALYSIS

      {¶2} In both of their assignments of error, Appellants challenge the

trial court’s denial of their motion to disallow commissions paid to the

former executor of their father’s estate, Marjorie Distelhorst, now deceased.

In their first assignment of error they contend the trial court erred in holding

that the motion to disallow was untimely filed. In their second assignment

of error they essentially contend that the trial court erred in denying their
Ross App. No. 14CA3469                                                          3

motion to disallow on the merits. However, as a review of the record,

including the trial court’s entry, indicates that the motion was denied based

upon the trial court’s determination that it was untimely, it does not appear

the trial court considered or denied the motion based upon the merits. As

such, we limit our review to whether the trial court erred in determining the

motion to disallow commissions was untimely filed.

      {¶3} R.C. 2113.35 entitled “Fees” provides in section (A) that

executors and administrators shall be allowed fees based upon the amount of

all of the personal property that is received and accounted for by them and

upon the proceeds of real property that is sold. However, R.C. 2113.35(D)

provides as follows:

      “If the probate court finds, after a hearing, that an executor or

      administrator, in any respect, has not faithfully discharged the

      duties as executor or administrator, the court may deny the

      executor or administrator any compensation whatsoever or may

      allow the executor or administrator the reduced compensation

      that the court thinks proper.” (Emphasis added).

Thus, based upon a plain reading of the statutory language, a probate court’s

determination under R.C. 2113.35 reducing or denying a commission is

within its sound discretion and will not be reversed absent an abuse of that
Ross App. No. 14CA3469                                                           4

discretion. In the Estate of Debra K. Justice, 4th Dist. Pickaway No. 93CA2,

1993 WL 335010, *3 (internal citations omitted).

      {¶4} An “abuse of discretion” implies that a court acted in “an

unreasonable, arbitrary, or unconscionable manner.” See, e .g., State ex rel.

Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, 770 N.E.2d 584, ¶ 21;

State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940;

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

An abuse of discretion amounts to more than a mere error of law, but

instead, equates to a “perversity of will, passion, prejudice, partiality, or

moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621,

614 N.E.2d 748 (1993). Furthermore, when applying the abuse of discretion

standard, we may not substitute our judgment for that of the trial court. See,

e.g., Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

      {¶5} Here, a review of the record indicates that Marjorie Distelhorst

was the initial executor of the estate of Robert B. Miller. Distelhorst had co-

habitated with Miller for some time prior to his death and was granted in the

will a life estate in Miller’s residence and personal property. Because there

were not enough liquid assets in the estate to pay the debts of the estate,

Miller’s son, Robert K. Miller, Appellant herein, agreed to pay into the

estate $28,175.62 in order that debts could be paid without having to sell the
Ross App. No. 14CA3469                                                         5

residence. Both Appellants were named as the residuary beneficiaries of the

real property.

      {¶6} The check written by Appellant Miller was paid through

Distelhorst’s attorney’s office. Although Distelhorst subsequently filed a

final account in her capacity as executor of the estate, indicating that the

mortgage on the residence had been paid, it was subsequently determined

after Distelhorst’s death that the mortgage was not paid. The final account

further indicated that Distelhorst had paid herself an executor’s fee in the

amount of $2,629.37. It was also discovered that funds remained in the

estate checking account despite the fact that the final account filed by

Distelhorst and approved by the court indicated the account had been closed.

Approximately two months after these discoveries were made, Appellants

filed, on August 26, 2011, a motion to reopen the estate of their father, as

well as a motion to be appointed as co-executors.

      {¶7} The stated purposes of the motion were as follows: 1) to pursue

claims against the former executor; 2) to obtain control of the funds

remaining in the estate checking account; 3) to surcharge the former

executor; and 4) to pay debts that were not paid during the administration of

the estate. The memorandum filed in support of the motion alleged that the

money paid into the estate by Appellant Miller that was to be used to pay off
Ross App. No. 14CA3469                                                           6

the mortgage on the residence was not used for that purpose, but instead

$12,553.44 of the funds were transferred out of the estate checking and into

Distelhorst’s private account she held jointly with her son, Ralph Hempfling.

      {¶8} A hearing was held on the motions on October 5, 2011.

Although Appellants were prepared to go forward with evidence in the form

of bank witnesses and exhibits in support of their motion, the trial court

stated on the record that it was “satisfied with [their] representations to grant

[their] request to re-open the Estate and to make the appointment” and “did

not see any need for evidence at this time[.]” At the close of the hearing the

trial court reopened the estate and appointed Appellants as co-fiduciaries.

For the next three years, there was little activity in the estate with the

exception of five status reports that were filed demonstrating efforts that

were being made to either bring claims against the Diselhorst estate or

against Ralph Hempfling directly, or both. The record indicates that an

estate was not initially opened for Distelhorst, and Appellants had requested

an estate be opened and an administrator be appointed. The last status report

that was filed, on May 5, 2014, requested that an “initial pretrial/scheduling

conference” be scheduled.

      {¶9} Subsequently, on August 19, 2014, Appellants filed their motion

to disallow commissions paid to the prior executor. The motion was brought
Ross App. No. 14CA3469                                                            7

pursuant to R.C. 2113.35(D) and requested that the commission paid to

Distelhorst be denied on the grounds that she did not faithfully discharge her

duties as executor. After holding a hearing on the motion and ordering the

parties to submit briefs, the trial court denied the motion as untimely.

      {¶10} The trial court relied on R.C. 2109.35 entitled “Effect of order

settling account; vacation of order” in reaching its decision, stating that the

prior settlement of the fiduciary’s account had the effect of a final judgment

and may only be vacated as provided by R.C. 2109.35, which in cases of

alleged fraud, must be filed within one year after the discovery of the

existence of fraud. The trial court reasoned that Appellant Miller and his

attorney became aware of Distelhorst’s actions in October of 2011, but did

not file their motion to disallow until August 19, 2014, almost three years

after the discovery.

      {¶11} We conclude that the record before us, including the

circumstances which led to the reopening of the estate, demonstrate an abuse

of discretion on the part of the trial court in denying the motion to disallow

as untimely filed. Two of the stated purposes of the motion to reopen were

to pursue claims against the former executor and to surcharge the former

executor. Further, the record indicates that Appellants were prepared to go

forward with evidence immediately upon the filing of the motion to reopen,
Ross App. No. 14CA3469                                                           8

and would have but for the court’s disinclination to hear evidence at that

time. No other hearings were held prior to the hearing on the motion to

disallow commissions. It appears from the record that the motion to

disallow commissions was the next step in attempting to recover funds and

surcharge the executor.

      {¶12} Further, R.C. 2113.35 contains no express time limit in which a

motion to disallow must be filed. The language of the statute seems to

contemplate that it would be filed prior to the executor actually being paid a

commission. However, in light of the unusual circumstances and procedural

posture of this case, that was not possible. Appellants filed a motion to

reopen their father’s estate within two months of their discovery of

Distelhorst’s actions, and alleged facts which, if proven, would demonstrate

the conversion of estate assets and the filing of a false account. Despite the

fact that Appellants’ initial motion was a motion to reopen, rather than a

motion to vacate pursuant to R.C. 2109.35, the motion put all parties and the

court on notice of the alleged actions of Distelhorst, the alleged problems

and inaccuracies of the final account and the intent to surcharge Distelhorst

for her conduct. See Trust U/W of A.J. Woltering, 1st Dist. Hamilton No. C-

970913, 1999 WL 163759, *3 (finding exceptions to prior account filed by

remainder beneficiaries satisfied the requirements of R.C. 2109.35 by
Ross App. No. 14CA3469                                                         9

providing court with notice that remaindermen challenged the propriety of

the actions of trustee and sought to have the court compel the trustee to

restore assets to the trust.). We further agree with Appellants that to hold

otherwise would be to put form over substance.

      {¶13} As such and in light of the foregoing, we conclude that the

probate court abused its discretion in denying Appellants’ motion to

disallow as untimely filed. Accordingly, Appellants’ first assignment of

error is sustained, the decision of the probate court is reversed, and this

matter is remanded for further proceedings consistent with this opinion.


                                               JUDGMENT REVERSED
                                               AND REMANDED FOR
                                               FURTHER PROCEEDINGS
                                               CONSISTENT WITH THIS
                                               OPINION.
Ross App. No. 14CA3469                                                       10

Harsha, J., concurring in judgment only:

      {¶14} I concur in judgment only on the first assignment of error and

would expressly overrule the second assignment of error as not being ripe

for review.
Ross App. No. 14CA3469                                                        11

Hoover, J., concurring in part and dissenting in part with opinion:

      {¶15} I agree with the principal opinion that the appellant's first

assignment of error should be sustained and that the trial court erred in

holding that the motion to disallow commissions paid to the former executor

was untimely. However, I would also sustain the appellant's second

assignment of error rather than disregarding it.

      {¶16} From review of the record, it appears that the appellants'

original motion which was captioned as "Motion to Reopen Estate and to

Appoint New Fiduciary" set forth that the appellants desired to reopen the

estate for the following purposes:

1) to pursue claims against the former executor, who is now deceased; 2) to

obtain control of the funds remaining in the estate checking account; 3) to

surcharge the former executor; and 4) to pay debts that were not paid during

the administration of the estate. The memorandum in support of the motion

clearly sets forth allegations that Ms. Distelhorst did not faithfully discharge

her fiduciary duties.

      {¶17} Also from review of the record, as demonstrated by the status

report filed on December 6, 2013, a separate action was filed against Ms.

Distelhorst's son, Ralph D. Hempfling. A letter in the record indicates that

the appellants believed that Mr. Hempfling participated in Ms. Distelhorst's
Ross App. No. 14CA3469                                                                                12

fraudulent conveyance. Appellants believed that Mr. Hempfling was liable

to reimburse them for the property that he had received by and through Ms.

Distelhorst.

        {¶18} Since the separate action will or has dealt with the fraudulent

conveyance(s), this issue is not before us in this case. The sole issue before

this court presently is whether the "Motion to Disallow Commissions Paid to

the Prior Executor" should have been found to be untimely filed and denied.

        {¶19} As the principal opinion states, R.C. 2113.35, which deals with

commissions, "contains no express time limit in which a motion to disallow

must be filed." The trial court simply had the issue before it whether or not

the commissions should be disallowed. I believe that it was improper for the

trial court to deny the motion to disallow the commissions based on the

motion being untimely filed since there is no express time limit to file a

motion to disallow commissions.

        {¶20} Upon the filing of the motion to reopen the estate, the trial court

and the vested beneficiaries were placed on notice that allegations of fraud

were being made against Ms. Distelhorst. This filing was indeed done

within one year3 after the appellants discovered the alleged fraud. I believe


3
  The lawsuit against Mr. Hempfling needed to be filed within four years of the discovery of the alleged
fraud. R.C. 2305.09(C). The alleged fraud was purportedly discovered in October of 2011; and the separate
lawsuit was filed against Mr. Hempfling sometime in 2013. No issues exist regarding statute of limitations
with respect to the allegations of fraud against Mr. Hempfling.
Ross App. No. 14CA3469                                                           13

that without a resolution of the fraud issues in the separate lawsuit, that a

motion to vacate the prior fiduciary's account would not even be ripe for

consideration. Assuming arguendo that appellants were successful in

obtaining a judgment against Mr. Hempfling, and if the appellants could

collect on that judgment and then fund their father's estate with those

monies, only then would a new accounting need to be completed. And only

then would the consideration of vacating the prior accounting need to be at

issue.

         {¶21} Therefore, I agree that the first assignment of error should be

sustained. However, I would also sustain the second assignment of error

instead of disregarding it since I believe that the probate court did err in

denying the motion to disallow commissions paid to the former executor.
Ross App. No. 14CA3469                                                         14

                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS and that the Appellants
recover of Appellee any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court, Probate Division, to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment Only with Opinion.
Hoover, J.: Concurs in Part and Dissents in Part with Opinion.


                                       For the Court,


                                 BY: _____________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
