[Cite as In re Estate of Rush, 2014-Ohio-3293.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




IN THE MATTER OF THE ESTATE OF:                      :

        BILLY JASON RUSH, Deceased.                  :          CASE NO. CA2013-10-103

                                                     :                   OPINION
                                                                          7/28/2014
                                                     :

                                                     :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                             Case No. 2012 1291



John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, Ronald J. McHenry, 140 North
Main Street, Suite B, Springboro, Ohio 45066, for appellant, Tracie L. Rush

Gray & Duning, J. William Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio
45036, for appellee, Sheila Rush



        RINGLAND, P.J.

        {¶ 1} Tracie Rush (Wife), appeals the decision of the Warren County Probate Court

in a case involving a will contest action, the administration of an estate, and an action to
                                 1
probate a holographic will.

        {¶ 2} Billy Jason Rush (Decedent) married Wife in 1995. Decedent had no children.



1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the
regular calendar for purposes of issuing this opinion.
                                                                   Warren CA2013-10-103

On March 23, 2003 Decedent executed a will (2003 will), naming Wife as the executor and

sole beneficiary of his estate.

       {¶ 3} In June 2011, Decedent entered an alcohol rehabilitation facility located in

Phoenix, Arizona. On August 19, 2011, Wife filed a complaint for divorce in the Montgomery

County Court of Common Pleas, Domestic Relations Division. Following the completion of

his rehabilitation program, Decedent decided to extend his stay in Arizona. Wife and

Decedent's mother, Sheila Rush (Mother), dispute whether Decedent intended to remain in

Arizona and establish Arizona as his domicile.

       {¶ 4} On June 1, 2012, Decedent allegedly created a holographic will that, inter alia,

expressly removed Wife from his will and named Mother as a beneficiary to Decedent's

estate.

       {¶ 5} On June 6, 2012, Decedent committed suicide at Mother's house in Springboro,

Ohio located in Warren County.

       {¶ 6} On June 13, 2012, Wife filed an application to probate Decedent's 2003 will and

authority to administer Decedent's estate. In addition, Wife withdrew her complaint for

divorce in Montgomery County.

       {¶ 7} On June 15, 2012, Mother filed a motion to contest the jurisdiction of the

probate court, arguing that Decedent was domiciled in Maricopa County, Arizona. In support,

Mother attached probate documents and a petition for adjudication of intestacy that she filed

with the Superior Court of Arizona, Maricopa County on June 14, 2012.

       {¶ 8} On September 7, 2012, Mother filed a complaint to contest the 2003 will

submitted by Wife. In her complaint, Mother alleged the existence of a holographic will and

requested the holographic will be admitted to probate for administration in Ohio.

       {¶ 9} On November 1, 2012, the probate court held an evidentiary hearing. At the

hearing, the parties presented conflicting evidence regarding Decedent's domicile. Mother

                                             -2-
                                                                       Warren CA2013-10-103

introduced testimony that Decedent had rented an apartment in Arizona, taken employment

in Arizona, and held himself out as a resident of Arizona. In contrast, Wife introduced

evidence that Decedent only intended on staying in Arizona throughout the divorce

proceedings. For example, Wife argued that Decedent had not renewed his apartment lease

and had also maintained his employment in Ohio. Furthermore, Wife also argued that Ohio

was the proper location to administer Decedent's estate based on the presence of various

assets and items of personal property located within the state.

       {¶ 10} Following the hearing, the probate court journalized an entry concluding that

Mother did not have standing to contest jurisdiction. In so deciding, the probate court found

that Wife, as the surviving spouse, was entitled to inherit from the Decedent in the event of

his intestacy and therefore Mother is not a next of kin entitled to inherit from Decedent's

death. Furthermore, the probate court also found:

               [Mother] offered no evidence of the holographic Will or to support
               its validity in this proceeding. Her offer, so far, of such evidence
               is contained in a will contest filed herein as a separate pending
               proceeding, yet unheard and unresolved. There is no such
               evidence in this proceeding. To proceed here on this basis
               [Mother] must establish "…at least a prima facie case as to the
               validity…of the Arizona Will. See Kennedy, Exr. v. Walcutt, 118
               Ohio State 442, 446 (1928) and Sheridan v. Harbison (1995),
               101 Ohio App.3d 206 HN#2 (2nd District). She has not done so
               either in this proceeding or the will contest proceeding.

Therefore, the probate court concluded that Mother did not have standing to contest

jurisdiction, dismissed Mother's motion to contest jurisdiction, and lifted the stay of

proceedings.

       {¶ 11} On April 9, 2013, Mother filed an application to probate Decedent's holographic

will. Shortly thereafter, the probate court entered an interlocutory order denying probate of

the holographic will allegedly created by Decedent prior to his death.

       {¶ 12} On May, 2, 2013, Mother filed a notice of appeal regarding the probate court's

April 2, 2013 order, which found that Mother did not have standing to contest the will. Mother
                                               -3-
                                                                     Warren CA2013-10-103

voluntarily dismissed her appeal on September 27, 2013. In the Matter of The Estate of Billy

Jason Rush, 12th Dist. Warren No. CA2013-05-043 (Oct. 10, 2013) (Judgment Entry of

Dismissal).

       {¶ 13} In the meantime, Mother also filed a Civ.R. 60(B) motion to reconsider the April

2, 2013 order, in which the trial court found that Mother did not have standing to contest the

court's jurisdiction. Subsequently, and by agreement of the parties, the probate court

ordered a stay of proceedings and permitted the parties to seek private mediation.

       {¶ 14} On July 16, 2013, the probate court journalized an entry noting that the private

mediation was not successful. The order further indicated that "[a]ll parties indicate that the

issue of domicile is now ripe for adjudication." Because of the testimony presented on

November 1, 2012, the probate court further noted:

              Testimony has been previously given during an all-day hearing
              with Judge John C. Newlin presiding. This matter shall be
              assigned to Judge Newlin to rule upon the contested claim of
              Ohio being the domiciliary state of Billy Jason Rush.

       {¶ 15} On August 27, 2013, the probate court found that Decedent was domiciled in

Arizona at the time of his death based on the evidence produced during the November 1,

2012 hearing.

       {¶ 16} On October 2, 2013, the probate court issued three orders based upon its

August 27, 2013 determination. First, the court granted a motion by Mother to withdraw her

application to probate the holographic will and for authority to administer the estate. Second,

the court stayed its decision on a motion to exercise jurisdiction and a motion seeking other

relief. Finally, the court ordered all other pending motions stayed.

       {¶ 17} On October 3, 2013, Wife moved to consolidate the two proceedings: the

administration of Decedent's estate and will contest actions. The probate court denied Wife's

motion to consolidate and found:

              The court has rendered a decision * * * staying the proceedings
                                              -4-
                                                                     Warren CA2013-10-103

              in case numbers * * * due to primary jurisdiction being the State
              of Arizona, the decedent's domiciliary state at the time of his
              death.

              Under case number * * *, the Court has forwarded the original
              Holographic Will to Maricopa County Superior Court for their
              further action and determination. Therefore, [Wife's] Motion to
              Consolidate is NOT WELL TAKEN and hereby DENIED.

       {¶ 18} On October 16, 2013, the probate court filed two orders. First, the probate

court found, based upon its ruling that Decedent was a resident of Arizona at the time of his

death, that jurisdiction over the estate was vested with the Superior Court of Maricopa

County, Arizona. The estate administration action filed in Ohio was therefore dismissed

without prejudice. Second, the probate court dismissed the will contest action because the

"[Maricopa County, Arizona] court's finding will control who the administrator is for the

ancillary administration and how the property in Ohio is disposed of * * * there is no longer a

need to keep the will contest file open." Wife now appeals the decision of the probate court,

raising three assignments of error for review.

       {¶ 19} Assignment of Error No. 1:

       {¶ 20} THE PROBATE COURT ERRED IN RULING ON [MOTHER'S] MOTION TO

CONTEST JURISDICTION WHERE IT HAD ALREADY DETERMINED THAT [MOTHER]

DID NOT HAVE STANDING TO CONTEST JURISDICTION AND IT DID NOT

RECONSIDER ITS PREVIOUS DECISION ON THIS ISSUE.

       {¶ 21} In her first assignment of error, Wife argues the probate court erred in

considering Mother's motion to contest jurisdiction after it concluded that Mother did not have

standing to contest the will administration proceeding. We find this argument lacks merit.

       {¶ 22} Both R.C. 2107.12 and 2107.71 provide that "persons interested" may contest

the jurisdiction of the probate court to entertain an application to probate a decedent's will

and to contest the validity of an admitted will or codicil. Pursuant to R.C. 2107.12:

              When a will is presented for probate or for a declaratory
                                              -5-
                                                                       Warren CA2013-10-103

              judgment of its validity pursuant to section 2107.081 of the
              Revised Code, persons interested in its outcome may contest the
              jurisdiction of the court to entertain the application. Preceding a
              hearing of a contest as to jurisdiction, all parties named in such
              will as legatees, devisees, trustees, or executors shall have
              notice thereof in such manner as may be ordered by the court.

(Emphasis added.) In addition, R.C. 2107.71 provides:

              A person interested in a will or codicil admitted to probate in the
              probate court * * * may contest its validity by filing a complaint in
              the probate court in the county in which the will or codicil was
              admitted to probate.

(Emphasis added); Roll v. Edwards, 4th Dist. Ross No. 05CA2833, 2006-Ohio-830, ¶ 54; In

re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097, ¶ 12.

       {¶ 23} Wife alleges that Mother is not a "person interested" under R.C. 2107.12 and

2107.71 and, therefore, the probate court should not have considered Mother's motion to

contest jurisdiction. "A 'person interested' has been defined as one who has a direct,

pecuniary interest in the estate." In re Estate of Miller, 3d Dist. Logan No. 8-10-12, 2010-

Ohio-6381, ¶ 12, citing Bazo v. Siegel, 58 Ohio St.2d 353, 354 (1979).

       {¶ 24} In support of her argument, Wife advances two principle arguments. First, Wife

argues that pursuant to the 2003 will, she is the sole beneficiary of Decedent's estate and

Mother is therefore not entitled to any portion of Decedent's estate. Second, Wife argues

that, even if the 2003 will were declared invalid, Mother would still not have an interest in any

portion of Decedent's estate based on the laws of intestate succession. As Decedent's

surviving spouse, Wife claims that she would be entitled to inherit Decedent's entire estate.

R.C. 2105.06(E)("[i]f there are no children or their lineal descendants, then the whole to the

surviving spouse"). Therefore, Wife argues that Mother should not be able to contest the

jurisdiction of the probate court because Mother is not a "person interested" in Decedent's

estate.

       {¶ 25} To the contrary, Mother argues that she is a "person interested" in Decedent's

                                               -6-
                                                                         Warren CA2013-10-103

estate due to the alleged existence of a holographic will Decedent created prior to his death,

which names Mother as a beneficiary. Therefore, Mother maintains that under the terms of

the holographic will, she is a "person interested" in Decedent's estate and therefore should

be permitted to contest the court's jurisdiction.

       {¶ 26} In its entry dated April 2, 2013, the probate court agreed with Wife and

concluded that Mother did not have standing to contest the court's jurisdiction: (1) because

Mother was not a beneficiary under the 2003 will, and (2) because Wife, as surviving spouse,

was entitled to inherit Decedent's entire estate in the event that Decedent's will was declared

invalid. The probate court also found that Mother did not provide prima facie evidence of the

holographic will at the evidentiary hearing held on November 1, 2012. Nevertheless, several

months later, the probate court reversed course and transferred the matter to the Superior

Court of Maricopa County, Arizona based on its finding that Decedent was domiciled in

Arizona at the time of his death and "jurisdiction over the estate was vested" with the Arizona

court. As such, Wife now complains the probate court erred by improperly considering

Mother's motion to contest jurisdiction, in spite of the prior judgment entry finding that Mother

did not have standing to contest the court's jurisdiction.

       {¶ 27} Based on our review of the record, we find the probate court did not err in

considering whether jurisdiction was proper. Although Wife is correct in noting that R.C.

2107.12 and 2107.71 provide that "persons interested" may contest the jurisdiction of the

probate court and the validity of a will, we find those provisions do not limit the probate

court's ability to consider its own jurisdiction or the appropriate venue for the proceedings and

we need not decide if Mother is a "person interested." See, e.g., In Re: Estate of Gavrilovich,

9th Dist. Summit No. 10718, 1982 WL 2808, *2 (Oct. 27, 1982) ("R.C. 2107.12 expressly

authorizes the court to, in effect, take jurisdiction to decide its jurisdiction"). In this case, the

probate court considered its jurisdiction to probate Decedent's will under R.C. 2107.11 after it

                                                 -7-
                                                                       Warren CA2013-10-103

concluded that Decedent was a domiciliary of Arizona. While the propriety of the probate

court's decision is subject to Wife's second assignment of error, we find the probate court did

not err in considering whether it had jurisdiction in the matter. Accordingly, Wife's first

assignment of error is overruled.

        {¶ 28} Assignment of Error No. 2:

        {¶ 29} THE PROBATE COURT ERRED IN DISMISSING [WIFE'S] APPLICATION TO

PROBATE WILL AND SENDING THE CASE TO ARIZONA WHERE THE EVIDENCE

ESTABLISHED THAT [DECEDENT] WAS DOMICILED IN WARREN COUNTY, OHIO AND

OWNED PROPERTY IN WARREN COUNTY, OHIO WHEN HE DIED.

        {¶ 30} In her second assignment of error, Wife argues the probate court committed

reversible error when it found that Decedent was domiciled in Arizona and then transferred

the case to Arizona for administration. We find merit to Wife's second assignment of error.

        {¶ 31} Because the probate court is a court of limited jurisdiction, probate proceedings

are restricted to those actions permitted by statute and by the Constitution. State ex rel.

Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 74 Ohio St.3d 19, 22

(1995). R.C. 2107.11, in the section titled "Jurisdiction to Probate," provides, in pertinent

part:

               A will shall be admitted to probate:

               (1) In the county in this state in which the testator was domiciled
               at the time of the testator's death;

               (2) In any county of this state where any real property or personal
               property of the testator is located if, at the time of the testator's
               death, the testator was not domiciled in this state, and provided
               that the will has not previously been admitted to probate in this
               state or in the state of the testator's domicile;

               (3) In the county of this state in which a probate court rendered a
               judgment declaring that the will was valid and in which the will
               was filed with the probate court.

State ex rel. Lee v. Trumbull Cty. Probate Court, 83 Ohio St.3d 369, 372 (1998) (R.C.
                                                -8-
                                                                     Warren CA2013-10-103

2107.11 "addresses the jurisdiction of probate courts to probate a will").

       {¶ 32} As we have previously noted, "[t]he Ohio Supreme Court has directed that we

must give effect to every term in a statute and avoid a construction that would render any

provision meaningless, inoperative, or superfluous." State v. Stiles, 12th Dist. Butler No.

CA2011-01-003, 2011-Ohio-4173, ¶ 22. Accordingly, although a decedent's domicile is one

way of ensuring that the will shall be probated in the county, it is not the only method. R.C.

2107.11(A)(2) provides jurisdiction "in any county of this state where personal property of the

testator is located, despite the fact that she is not domiciled in this state, and provided that

her will has not previously been admitted to probate in this state or in the state of her

domicile." Carlin v. Mambuca, 96 Ohio App.3d 500, 504 (8th Dist.1994); Thomas v. Taylor,

1st Dist. Hamilton No. C-000624, 2001 WL 992086 (Aug. 31, 2001); Gordon v. Holly Woods

Acres, Inc., 328 F.2d 253 (6th Cir.1964).

       {¶ 33} Based on our review, we find the probate court erred in transferring the case

after concluding that Decedent was domiciled in Arizona. In the present case, the probate

court found that Decedent was domiciled in Arizona. That finding meant that jurisdiction to

probate Decedent's will would not have been proper under R.C. 2107.11(A)(1). However, the

probate court may still have had jurisdiction to probate Decedent's will under R.C.

2107.11(A)(2) in any county of this state where Decedent's real or personal property is

located, despite the fact that Decedent was not domiciled in this state, provided that

Decedent's will has not previously been admitted to probate in this state or in the state of his

domicile. See Carlin at 504. Nevertheless, the probate court failed make any findings of fact

to determine if Decedent had "any real or personal property" located in Warren County and if

jurisdiction was otherwise proper under R.C. 2107.11(A)(2).

       {¶ 34} Although we find that the trial court erred in failing to determine whether it had

jurisdiction under R.C. 2107.11, we note, in this situation, the trial court was not necessarily

                                              -9-
                                                                          Warren CA2013-10-103

required to proceed with the case while the action was also pending in Maricopa County,

Arizona. "A court faced with the situation of a prior case pending in another state now has

three options: (1) it can grant a stay in the Ohio proceedings pending the resolution of the

earlier action outside of Ohio, (2) it can go forward with the action in Ohio, or (3) it can

dismiss the case under the doctrine of forum non conveniens." Walp v. Walp, 3d Dist.

Auglaize No. 2-05-10, 2005-Ohio-4181, ¶ 8.

          {¶ 35} The doctrine of forum non conveniens permits a court to dismiss an action to

further the ends of justice and to promote the convenience of the parties, even though

jurisdiction and venue are proper in the court chosen by the plaintiff. Chambers v. Merrell-

Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 125 (1988). In determining whether dismissal

on the basis of forum non conveniens is proper, the trial court must consider the facts of

each case, balancing the private interests of the litigants and the public interest involving the

courts and citizens of the forum state. Id. at 126-127.

          {¶ 36} Important private interests include: (1) the relative ease of access to sources of

proof; (2) availability of compulsory process for attendance of unwilling witnesses; (3) the

cost of obtaining attendance of willing witnesses; (4) the possibility of a view of the premises,

if appropriate; and (5) all other practical problems that make trial of a case easy, expeditious,

and inexpensive. Chambers, 35 Ohio St.3d at 126-127; Travelers Cas. & Sur. Co. v.

Cincinnati Gas & Elec. Co., 1st Dist. Hamilton No. C-050716, 2006-Ohio-5350, ¶ 8.

          {¶ 37} Important public interests include: (1) the administrative difficulties and delay to

other litigants caused by congested court calendars; (2) the imposition of jury duty upon the

citizens of a community that has very little relation to the litigation; (3) a local interest in

having localized controversies decided at home; and (4) the appropriateness of litigating a

case in a forum familiar with the applicable law. Chambers, 35 Ohio St.3d at 127; Travelers

at ¶ 9.

                                                 - 10 -
                                                                        Warren CA2013-10-103

       {¶ 38} The decision whether to grant a motion to dismiss on the basis of forum non

conveniens rests with the trial court's discretion, the exercise of which an appellate court may

reverse only upon a showing of an abuse of that discretion. Chambers at 127. "[W]here the

court has considered all relevant public and private interest factors, and where its balancing

of these factors is reasonable, its decision deserves substantial deference." Id.

       {¶ 39} Here, the trial court dismissed the pending actions in Ohio based on the fact

that Decedent was domiciled in Arizona at the time of his death and therefore the action

pending in Arizona had "priority jurisdiction." Although forum non conveniens may properly

be invoked by the trial court in an action where jurisdiction would otherwise be proper, we find

the trial court did not make the required findings balancing the private interests of the litigants

and the public interest involving the courts and citizens of the forum state.

       {¶ 40} Accordingly, Wife's second assignment of error is well-taken and sustained. We

remand this case to the probate court for a determination of whether jurisdiction is proper

pursuant to R.C. 2107.11(A)(2) based on the presence of "real property or personal

property." In so deciding, we decline to express any opinion as to whether jurisdiction is

proper under R.C. 2107.11 or whether dismissal is otherwise appropriate, as those are

matters best left to the discretion of the trial court.

       {¶ 41} Assignment of Error No. 3:

       {¶ 42} THE PROBATE COURT ERRED IN FAILING TO FIND THAT SHEILA WAS

ESTOPPED FROM CONTESTING JURISDICTION.

       {¶ 43} In her third assignment of error, Wife argues that Mother is estopped from

contesting the probate court's jurisdiction because Mother allegedly stated that Decedent was

domiciled in Warren County when providing information to the funeral home director. We find

no merit to this argument.

       {¶ 44} Equitable estoppel "prevent[s] one party from taking unfair advantage of

                                               - 11 -
                                                                    Warren CA2013-10-103

another when, through false language or conduct, the person to be estopped has induced

another person to act in a certain way, with the result that the other person has been injured

in some way." Thompson v. McVey, 12th Dist. Clinton No. CA2006-03-006, 2006-Ohio-7036,

¶ 14. The essential elements of equitable estoppel are (1) the nonrelying party made a

factual misrepresentation, (2) that was misleading, (3) that induced actual reliance that was

reasonable and in good faith, and (4) that caused detriment to the relying party. Chase

Manhattan Bank v. Parker, 12th Dist. Butler No. CA2003-11-299, 2005-Ohio-1801, ¶ 20.

       {¶ 45} Wife's argument centers on allegedly conflicting statements that Mother

supplied to the funeral director regarding Decedent's residence at the time of his death. Wife

argues that she relied on the fact that Mother indicated that Decedent resided in Warren

County in the filing of these probate proceedings. We find Wife's argument is without merit.

Mother is not prevented from contesting the probate court's jurisdiction to hear the case.

Wife fails to allege, let alone prove, any sufficient basis for estoppel based on the present

facts. The record reflects that Wife was well aware that Decedent had been residing in

Arizona prior to his death and there is no evidence of Wife's good faith reliance on any

allegedly erroneous statement made by Mother. Furthermore, any alleged misstatement

surely would not prevent a court from hearing evidence and attempting to determine whether

the court has jurisdiction to decide the proper location for administration of an estate.

Accordingly, Wife's third assignment of error is overruled.

       {¶ 46} Judgment affirmed in part, reversed in part, and the cause is remanded for

further proceedings consistent with this opinion.


       S. POWELL and PIPER, JJ., concur.




                                            - 12 -
