[Cite as In re Estate of Sickmiller, 2013-Ohio-3788.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




IN THE MATTER OF:                                          CASE NO. 11-13-01
THE ESTATE OF
MARJORIE SICKMILLER
                                                           OPINION
[DEWAYNE EVANS - APPELLANT.]



                 Appeal from Paulding County Common Pleas Court
                                 Probate Division
                             Trial Court No. 20121031

                                        Appeal Dismissed

                           Date of Decision: September 3, 2013



APPEARANCES:

        David Meekison for Appellant

        James M. Sponseller for Appellee
Case No. 11-13-01


ROGERS, J.

       {¶1} Exceptor-Appellant, DeWayne Evans, appeals the judgment of the

Paulding County Court of Common Pleas, Probate/Juvenile Division, denying his

exception to the Inventory of the Estate of Marjorie Sickmiller (“the Estate”). On

appeal, Evans argues that the trial court erred in determining that the firearms

found in Sickmiller’s house after her death constituted property of the Estate. For

the reasons that follow, we dismiss the appeal for lack of a final, appealable order.

       {¶2} Sickmiller died testate on February 19, 2012.          Evans is one of

Sickmiller’s children. On August 27, 2012, the Estate’s Administrator filed an

Inventory of Assets (“the Inventory”). The Inventory listed the following relevant

items as assets of the Estate: (1) $18,550.00 in firearms found in Sickmiller’s

house after her death; and (2) an approximate debt of $21,000.00 owed by Evans

to Sickmiller. On September 26, 2012, Evans filed an exception challenging the

listing of these items as assets of the Estate. Specifically, he claimed that the

firearms belonged to him and that he owed Sickmiller a much more modest debt of

approximately $700.00.

       {¶3} On December 9, 2012, the trial court held a hearing on Evans’

exception to the listing of the firearms in the Inventory. On December 18, 2012,

the trial court issued a judgment entry denying Evans’ exception regarding

firearms. The entry includes the following pertinent language:



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       Therefore the Court FINDS and ORDERS that the exception
       regarding the firearms is NOT WELL TAKEN and the firearms are
       the property of the estate of Marjorie Sickmiller. * * *
              The remaining issue regarding the amount of debt owed [to]
       the Estate by DeWayne Evans shall proceed following the filing of
       the necessary complaints. As all parties are aware, the undersigned
       will be unavailable for further hearing until late March, 2013.
              IT IS SO ORDERED. (Emphasis sic.) (Judgment Entry of
       Dec. 18, 2012, p. 6).

       {¶4} On December 31, 2012, Evans filed another exception to the Estate’s

Inventory.   This exception again challenged the amount of the debt Evans

purportedly owed to the Estate. No hearing was held on this exception and the

trial court never issued a judgment entry disposing of it. The trial court also failed

to issue a judgment entry approving a final inventory.

       {¶5} Evans filed this appeal, presenting the following assignment of error

for our review.

                               Assignment of Error

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       IN REJECTING MR. EVANS’ EXCEPTION AND HOLDING
       THAT THE FIREARMS LISTED IN THE INVENTORY ARE
       THE PROPERTY OF THE ESTATE OF MARJORIE
       SICKMILLER.

       {¶6} Before we can reach the merits of Evans’ assignment of error, we

must preliminarily decide whether the trial court’s judgment entry was a final,

appealable order.    The Ohio Court of Appeals is only vested with appellate

jurisdiction over final and appealable orders.      Ohio Constitution, Article IV,

Section 3(B)(2).     This jurisdictional limit is intrinsically linked with R.C.

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Case No. 11-13-01


2505.02(B)’s definition of final and appealable orders. Since this matter involves

the filing of exceptions to an estate inventory, R.C. 2505.02(B)(2) controls. See In

re Estate of Perry, 12th Dist. Butler No. CA2007-03-061, 2008-Ohio-351, ¶ 46

(“Generally, matters related to estate administration, such as the filing of

exceptions to a fiduciary’s inventory or account, are treated as special

proceedings.”). Under this provision, an order is considered final and appealable

where it “affects a substantial right made in a special proceeding or upon a

summary application in an action after judgment.” R.C. 2505.02(B)(2). Absent

such an order, we have no jurisdiction and must dismiss the appeal. State v.

O’Black, 3d Dist. Allen No. 1-09-46, 2010-Ohio-192, ¶ 4. Further, since this issue

invokes our jurisdictional limits, we must raise it sua sponte. State ex rel. Scruggs

v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, ¶ 4.

       {¶7} In the particular context of estate administration, “a probate entry

that affects a substantial right regarding a claim against an estate is considered to

be a final appealable order.” Perry at ¶ 46. In applying this general rule, we have

previously noted that “[w]hile an entry denying exceptions does not affect the

substantial rights of a party, an order approving an inventory is a final appealable

order.” In re Estate of Messenger, 3d Dist. Hancock No. 5-08-07, 2008-Ohio-

5193, ¶ 6. Our position that an entry merely denying exceptions to an inventory

does not constitute a final and appealable order is in accord with the views of

several Ohio courts. See, e.g., In re Estate of Ross, 11th Dist. Trumbull No. 2012-

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Case No. 11-13-01


T-0093, 2013-Ohio-2622, ¶ 17 (finding no appellate jurisdiction where trial court

denied one exception but left other exceptions unresolved and failed to approve a

final inventory); Perry at ¶ 47 (“Rulings on exceptions alone do not affect

‘substantial rights’ as defined in R.C. 2505.02(A)(1).         Future relief is not

foreclosed because the exceptions can be reviewed when the probate court

conducts the statutorily required hearing to settle the inventory or account.”).

Here, Evans appeals from a judgment entry merely denying one of his exceptions.

The trial court has yet to issue a judgment entry either resolving his other

exception or approving a final inventory. Under Messenger and similar authority,

this set of facts compels us to find that Evans has appealed from a non-final, non-

appealable order and that we have no jurisdiction to hear this appeal.

       {¶8} We recognize that there is some variety among Ohio courts

regarding this issue. For instance, in In re Estate of Sacco, 7th Dist. Columbiana

No. 03 CO 39, 2004-Ohio-3196, the Seventh District cursorily stated that “an

order overruling or dismissing exceptions to an inventory of an estate is a final and

appealable order.” Id. at ¶ 15, citing Sheets v. Antes, 14 Ohio App.3d 278 (10th

Dist. 1984). While this dictum, standing alone, suggests that the judgment entry in

this matter is final and appealable, we find that the factual background of Sacco

indicates otherwise. There, the trial court denied the appellant’s exceptions and

“approved the inventory and appraisal of the estate” before the appellant brought

her appeal. Id. at ¶ 12. Consequently, the above language in Sacco merely stands

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for the proposition that an order overruling exceptions to an inventory of an estate

is final and appealable where the trial court also approved a final inventory. As

stated above, the trial court did not approve a final inventory in this matter,

meaning that Sacco provides no guidance here.

       {¶9} Even if we read Sacco’s language more broadly as standing for the

proposition that any judgment entry overruling exceptions to an inventory is final

and appealable, we would still decline to follow Sacco’s guidance. The Seventh

District relied on the Tenth District’s ruling in Sheets when it stated that entries

overruling exceptions to an inventory are final and appealable orders. Extending

Sheets to cover all such entries would be improper since the Tenth District merely

held that “[a] probate court’s order approving an inventory which does not include

certain items appellant claims are assets of an estate is an order affecting a

substantial right made in a special proceeding. Thus, under R.C. 2505.02, the

order is final and appealable.” (Emphasis added.) Sheets at paragraph two of the

syllabus. Based on the explicit language of Sheets’ holding, it applies only where

the trial court both overruled the appellant’s exceptions and approved a final

inventory of the estate. See In re Estate of Persing, 11th Dist. Trumbull No. 2009-

T-0120, 2010-Ohio-2687, ¶ 11 (“However, pursuant to Sheets, an order denying

exceptions to an inventory is only a final, appealable order if it also approves the

inventory.”).



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        {¶10} The Fourth District has also produced language suggesting that

judgment entries overruling exceptions to an inventory are final and appealable

orders. See, e.g., In re Estate of Workman, 4th Dist. Lawrence No. 07CA39,

2008-Ohio-3351, ¶ 13 (“An entry overruling or sustaining objections to an account

is a final and appealable order.”); In re Estate of Poling, 4th Dist. Hocking No.

04CA18, 2005-Ohio-5147, ¶ 26 (same). The court, however, has qualified this

general language and has found that judgment entries overruling exceptions but

failing to approve a final inventory are not final, appealable orders. For instance,

in In re Estate of Smith, 4th Dist. Ross No. 06CA2915, 2007-Ohio-3030, the

appealed entry, which denied the appellant’s exception, included the following

language: “This matter is set for further hearing on the 21st day of August, 2006 at

8:00 a.m. on the issue of surcharge and reports ordered herein. At the conclusion

of said hearing, executor will be directed to file his amended final and distributive

account.” Id. at ¶ 10. The Fourth District found that this entry was not a final,

appealable order since “[b]y its terms, the above entry does not approve or settle

an account.” Id. at ¶ 11. Since this matter implicates identical facts as those

addressed in Smith, we find no conflict between the Fourth District’s position and

ours.

        {¶11} In sum, Evans has appealed from a judgment entry merely denying

one of his two exceptions to the Inventory filed by the Estate’s Administrator.

The other exception remains pending before the trial court and the trial court has

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failed to approve a final inventory. In light of these facts, and the guidance of

prevailing case law, we find that the appealed judgment entry is not final and

appealable. As such, we must dismiss this appeal for want of jurisdiction.

       {¶12} Accordingly, for the foregoing reasons, the appeal is dismissed.

                                                                Appeal Dismissed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/hlo




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