[Cite as In re Estate of Conner, 2016-Ohio-8214.]



                             STATE OF OHIO, MONROE COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

IN RE:                                              )
                                                    )
ESTATE OF LARIE J. CONNER,                          )
DECEASED                                            )            CASE NO. 15 MO 0015
                                                    )
                                                    )                   OPINION
                                                    )

CHARACTER OF PROCEEDINGS:                           Appeal from the Court of Common
                                                    Pleas, Probate Division, of Monroe
                                                    County, Ohio
                                                    Case No. 2014 EST 09951

JUDGMENT:                                           Affirmed.

APPEARANCES:
For Appellant, Nancy Conner, Executor               Attorney John Estadt
                                                    46457 National Road West
                                                    St. Clairsville, Ohio 43950

For Appellee, Roger English                         Attorney Christopher White
                                                    Attorney Thomas White
                                                    209 North Washington Street
                                                    Millersburg, Ohio 44654

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                    Dated: December 15, 2016
[Cite as In re Estate of Conner, 2016-Ohio-8214.]
DeGENARO, J.

        {¶1}     Appellant Nancy Conner, Executor of the Estate of Larie J. Conner,
appeals the decision of the probate court ruling in favor of Appellee Roger "Pete"
English on his exceptions to the Estate's inventory. The Executor asserts that the
trial court erred by considering English's exceptions as they were untimely, and that
the trial court's substantive decision on his exceptions regarding six specific items
was erroneous based upon the doctrine of equitable estoppel. For the following
reasons, the Executor's assignments of error are meritless and the judgment of the
trial court is affirmed.
                                  Facts and Procedural History
        {¶2}     Larie Conner died testate, and was survived by his wife Nancy and his
two adult children, Shawn Conner and Candie Weber. The decedent's Will was
admitted to probate and granted Nancy the right to reside on the decedent's home
farm property for her lifetime or until she remarried or cohabited. The remainder
interest in the home farm, along with farm equipment and guns, was devised to
Shawn and Candie. The residual estate was devised to Nancy who also was
appointed Executor.
        {¶3}     Appellee English and the decedent were friends and business partners,
and jointly purchased a great deal of personal property during the decedent's lifetime.
English asserted he was also sole owner of certain items that were stored on
decedent's property.
        {¶4}     After the decedent died, English consulted an attorney about making a
claim against the Estate. However, the list of items English provided to his former
attorney did not effectively differentiate between the sole and jointly-owned property,
and when counsel sent a letter to the Estate the list identified all the property therein
as jointly owned with the Estate. Counsel for the Estate replied by letter three days
later, stating, in pertinent part: "Thank you for your letter on behalf of Roger "Pete"
English. We recognize his claim against the Estate."
        {¶5}     Eventually, English became aware that the Estate had inventoried all
the items on the list provided to the Estate in English's initial claim as jointly owned
                                                                                -2-


by the Estate and English. By this point, English had retained a different attorney and
filed exceptions to the Estate's inventory. These exceptions were filed one day later
than the timeline specified within R.C. 2115.16 and set for a hearing.          After the
hearing, the trial court sustained the exceptions and ordered that property owned
solely by English be immediately returned to his possession.
                             Untimeliness of Exceptions
       {¶6}   In its first of two assignments of error, the Executor asserts:

       The trial court erred in permitting Appellee Roger English to file
       exceptions to the inventory after the statutory deadline set forth in
       O.R.C. 2115.16.

       {¶7}   "Probate courts, like all trial courts, inherently possess discretion in
managing their docket. See generally, State ex rel. Charvat v. Frye, 114 Ohio St.3d
76, 2007-Ohio-2882, 868 N.E.2d 270, at ¶ 23. Within that discretion is the power to
dismiss [or conversely, entertain] untimely motions and filings." In re Guardianship of
Snyder, 4th Dist. No. 09CA21, 2010-Ohio-3899, ¶ 27. Accordingly, we will apply an
abuse of discretion standard of review.
       {¶8}   The timeframe for filing exceptions to the inventory is set forth as
follows:

              Upon the filing of the inventory required by section 2115.02 of
       the Revised Code, the probate court shall set a day, not later than one
       month after the day the inventory was filed, for a hearing on the
       inventory. * * * Exceptions to the inventory * * * may be filed at any time
       prior to five days before the date set for the hearing or the date to which
       the hearing has been continued by any person interested in the estate
       or in any of the property included in the inventory, but the time limit for
       the filing of exceptions shall not apply in case of fraud or concealment
       of assets. When exceptions are filed, notice of them and the time of the
                                                                              -3-


      hearing on them shall be given to the executor or administrator and the
      attorney of the executor or administrator by certified mail or by personal
      service, unless the notice is waived.

R.C. 2115.16.
      {¶9}   The Executor asserts the Estate was prejudiced by the late filing, but
fails to explain how. Thus the trial court correctly concluded there was no prejudice
and that the deviation from the statutory deadline was de minimus.
      {¶10} Moreover, the filing of exceptions was not necessarily required because
the Estate was already on notice that English had some type of ownership interest in
the property and therefore the probate court was obligated to determine the nature
and extent of English's interest, regardless of whether exceptions were filed. See
generally R.C. 2117.06 (discussing procedure for claims against the estate.) The
probate court recognized this statutory obligation in a journal entry stating: "This
Court finds that the Executor herein acknowledged that English has some property
interest in the items listed in English's Exhibit A. Accordingly, this Court has the
responsibility to determine the nature and extent of English's property interest in
various items of property possessed by the Estate."
      {¶11} Finally, R.C. 2115.16 provides the time limit shall not apply in case of
fraud or concealment. There was some evidence of concealment of assets by the
Executor. Shawn Conner testified that various pieces of property were marked with
ribbons to identify whether it belonged to Conn Oil, the decedent's company, or to
English. Shawn further testified that the evening after they put those ribbons on,
"Mrs. Conner [the Executor] and some of her associates [came] and took the ribbons
off on the items * * *. They were witnessed doing that." Shawn confirmed that some
of the ribbons were removed from items that he identified as English's property,
including the track hoe loader, the Mack truck and the Lo-boy.
      {¶12} Accordingly, the Executor's first assignment of error is meritless.


                             Equitable Estoppel
                                                                                 -4-


       {¶13}      In its second and final assignment of error, the Executor asserts:

       The trial court erred in determining the 1929 Ford Model A, the 1996
       Chevrolet truck, the cargo trailer, the Mack semi-tractor, the 40-ton lo-
       boy trailer, and the track loader are the sole property of Appellee Roger
       English.

       {¶14} The gist of the Executor's second assignment of error is that because
English's former attorney mailed a letter to the Estate that identified the six disputed
items as jointly owned by English and the decedent—instead of English's sole
property—English is estopped from raising an exception to the Estate's inventory.
       {¶15} "Equitable estoppel precludes a party from asserting certain facts when
the party, by his conduct, has induced another to change his position in good faith
reliance upon that conduct." Merriner v. Goddard, 7th Dist. No. 08-MO-2, 2009-Ohio-
3253, ¶ 86. However, "[n]o estoppel arises where the representation or conduct of
the party to be estopped is due to ignorance founded upon an innocent mistake." El-
Tatawy v. Leader Nat. Ins. Co., 6th Dist. No. L-96-281, 1997 WL 543058, *3 (Aug.
29, 1997), citing Fleming v. City of Steubenville, 44 Ohio App. 121, 125-126, 184
N.E. 701 (7th Dist.1931). Accord 42 Ohio Jurisprudence 3d, Estoppel and Waiver,
Section 36 (2016).
       {¶16} Although English did not explain why his prior attorney's letter to the
Estate was incorrect, it appears it was merely an innocent mistake or
miscommunication. English testified during the hearing that the property listed in his
exceptions to the inventory, specifically, the 1929 Ford Model A, the 1996 Chevrolet
truck, the cargo trailer, the Mack semi-tractor, the 40-ton lo-boy trailer, and the track
loader belonged to him alone; that they were not jointly owned by him and the
decedent. These six items are the sole focus of the Executor's appeal.
       {¶17} In addition, English presented handwritten receipts demonstrating he
purchased, from James Young, the 1929 Ford Model A for $1,000.00; the 1996
Chevrolet truck for $2,000.00; and the cargo trailer for $300.00. English produced the
                                                                                -5-


registration for the cargo trailer, which was in his name. He produced the titles for the
Ford Model A and the Chevrolet truck; they were signed by James Young and
notarized, though English never filled out the transferee information.
       {¶18} English did not have any documentation for the Mack semi-trailer, the
lo-boy trailer, or the track loader. However, English testified he purchased the semi-
trailer and lo-boy trailer for approximately $5,550.00 and the track loader for $500.00.
In addition, the decedent's son Shawn confirmed his understanding that those three
items belonged to English alone.
       {¶19} The Executor failed to present any specific evidence to contradict the
evidence presented by English. Instead she only presented her own generalized
testimony that the decedent and English would often jointly buy property together;
and that "whoever had the money at the time was the one that paid, and then they
would get together and they would get it all settle so that each one had paid half of
everything." She further stated that the decedent was "always really proud" to acquire
property at bargain prices and said that the decedent would often ask her to "go out
to Pete's [English's] house to see what him [sic] and Pete had bought, because he
was so proud of it." To that end, she said the decedent once showed her a "cargo
holder," "a beautiful old car" and a "1996 truck" that the decedent and English "had
bought together." However, the Executor conceded she had no documentation to
contradict the receipts and registration information that English presented to
demonstrate his ownership of those three items or to prove that the decedent had a
joint property interest in those items. Further, the Executor later conceded that she
and the decedent had relationship problems, to the point where they lived separately
from one another for the last five to six years of their marriage. Of note, Shawn
testified that the Executor and decedent had limited interaction during their
separation.
       {¶20} The trial court was in the best position to determine matters of
credibility. Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d
1273, (1984). English provided specific evidence in the form of testimony and exhibits
                                                                               -6-


for the probate court's consideration relative to the six items which are the subject of
this appeal. In contrast, the Executor offered no specific evidence in rebuttal; instead
she offered testimony of her understanding of how decedent and English generally
conducted purchases, along with generalized descriptions of three items she
believed the decedent and English had purchased together. However, the Executor
had no documentation to support her general claims. Accordingly, the record
supports the probate court's finding that English's evidence regarding ownership of
these six items was uncontroverted.           Moreover, there was testimony which
apparently had a negative impact on the probate court's assessment of the
Executor's credibility. Thus, the trial court reasonably determined that English was
the sole owner of the six disputed items.
       {¶21} Accordingly, the Executor's second assignment of error is also
meritless and the judgment of the trial court is affirmed.

Waite, J., concurs.

Robb, J., concurs.
