[Cite as In re Guardianship of J.C., 2018-Ohio-4833.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTERS OF:                                 :    JUDGES:
                                                   :    Hon. W. Scott Gwin, P.J.
THE GUARDIANSHIPS OF                               :    Hon. Craig R. Baldwin, J.
J.C.;                                              :    Hon. Earle E. Wise, J.
D.C.; and                                          :
A.C.;                                              :
                                                   :    Case No. 18-CA-00009
                                                   :             18-CA-00011
                                                   :             18-CA-00012
AND THE ESTATE OF M.A.R.C                          :             18-CA-00013
                                                   :
                                                   :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Perry County Court
                                                        of Common Pleas, Probate Division,
                                                        Case Nos.: 20182009
                                                                   20182010
                                                                   20182011
                                                                   20181023

JUDGMENT:                                               Reversed and Remanded



DATE OF JUDGMENT:                                       December 4, 2018


APPEARANCES:

For Plaintiff-Appellant Tiffany Thompson                For Defendant-Appellee
                                                        Kimberly Cremeans-Six
C. JOSEPH MCCOY
CARL E. MCCOY                                           STEPHEN R. MCCANN
WILLIAM S. MCCOY                                        TRAVIS M. JONES
McCoy & McCoy, Attorneys at Law, L.L.C.                 KRISTOPHER K. HILL
57 East Main Street                                     Graham & Graham, L.P.A.
Newark, Ohio 43055                                      17 N. 4th Street
                                                        P.O. Box 340
                                                        Zanesville, Ohio 43702-0340
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013               2

Baldwin, J.

       {¶1}   Tiffany Thompson appeals the decision of the Perry County Court of

Common Pleas, Probate Division, appointing appellee guardian of the estates of her

children and administrator of the estate of her deceased child. Appellee is Kimberly

Cremeans-Six, paternal grandmother of the children.


                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant’s four children were in an automobile accident on January 28,

2018 and all were injured. M.A.R.C., one of her children, passed away as a result of the

injuries.

       {¶3}   Appellant filed an application to administer M.A.R.C.’s estate with the Perry

County Probate Court on February 3, 2018. The child’s father, Robert Cremeans, III, filed

an application to administer the estate on February 9, 2018 then later withdrew his

application in favor of his mother, Kimberly Cremeans-Six, appellee herein, who filed her

own application to administer the estate. Appellee also filed applications for appointment

as guardian of the estates of M.A.R.C.’s siblings.           Appellee’s application was

accompanied by a waiver of notice and consent executed by the father, but not by

appellant. The trial court set March 26, 2018 as the date for a hearing regarding the

guardianship applications and the petition for appointment as guardian.

       {¶4}   Counsel for the parties and the attorney for the father appeared before the

trial court on March 26, 2018. Appellant’s counsel asserted that appellee’s application

for guardianship may be premature and unnecessary as appellant was the children’s

natural guardian and had priority over appellee to serve as administrator. During this

conference, the parties agreed that a hearing was required but that briefs on the legal
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013                 3


issues prior to the hearing would be a more efficient use of judicial resources. After

discussing the issues to be briefed, the scheduling of depositions and the time needed to

complete those tasks, the trial court acknowledged that the hearing on both applications

would be reset after the filing of the briefs.

         {¶5}   The parties filed the requested briefs and, without conducting a hearing, the

trial court appointed appellee administrator of the estate of M.A.R.C. and guardian of the

estates of the remaining children. Appellant filed a motion to vacate the appointment of

appellee as administrator of the estate of M.A.R.C. and the trial court denied that motion.

         {¶6}   Appellant filed a timely notice of appeal and submitted two assignments of

error:

         {¶7}   “I. THE PROBATE COURT ERRED BY GRANTING APPELLEE

KIMBERLY CREMEANS-SIX LETTERS OF GUARDIANSHIP OVER THE ESTATES OF

APPELLANT TIFFANY THOMPSON'S CHILDREN, J.C., D.C., AND A.C.”

         {¶8}   “II. THE PROBATE COURT ERRED BY DENYING APPELLANT TIFFANY

THOMPSON'S MOTION TO VACATE KIMBERLY CREMEANS-SIX'S APPOINTMENT

AS ADMINISTRATOR OF THE ESTATE OF M.A.R.C., APPELLANT TIFFANY

THOMPSON'S DECEASED CHILD.”

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

governs accelerated calendar cases, provides in pertinent part:

         (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.R.

         12(A) for the statement of the reason for the court's decision as to each
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013                   4


       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.

       {¶10} 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 Ass'n, 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983). This appeal shall be considered in accordance with the aforementioned rule.

       {¶11} Appellant filed a Reply Brief in this matter without obtaining the necessary

leave of this court. Pursuant to App. R. 11.1(C) reply briefs shall not be filed unless

ordered by the court. Because this court did not order filing of a reply brief, the Appellant's

Reply Brief shall not be considered.


                                         ANALYSIS

       {¶12} The common element in appellant’s assignments of error is the lack of an

evidentiary hearing. The trial court granted appellee’s petition for guardianship and

application to administer the estate without conducting a hearing, and appellant contends

that failure is a violation of the applicable statutes and her constitutional rights.

       {¶13} Revised Code Section 2111.02(C) contains a requirement regarding a

hearing prior to the appointment of a guardian: “Prior to the appointment of a guardian or

limited guardian under division (A) or (B)(1) of this section, the court shall conduct a

hearing on the matter of the appointment.” The Supreme Court of Ohio “has long

recognized that use of the word “shall” denotes that compliance with the commands of

that statute is mandatory (Emphasis sic.)”. Brown v. Levin, 119 Ohio St.3d 335, 2008-

Ohio-4081, 894 N.E.2d 35, ¶ 28. Consequently, R.C. 2111.02(C) obligates the trial court
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013               5

to conduct an evidentiary hearing prior to appointing a guardian. In re Guardianship of

Melhorn, 2nd Dist. Montgomery No. 22764, 2009-Ohio-2424, ¶ 43.

       {¶14} Revised Code 2111.04(A) anticipates a hearing on a petition for

appointment of a guardian by requiring service of notice of the time and place of the

hearing. That Code section specifically requires service of the notice of hearing on each

parent of the minor and that no guardian shall be appointed until at least seven days after

the notice is served on the parents. Revised Code 2111.08 “recognizes a suitable parent's

superior right to the guardianship of his or her children against the rights of a nonparent

third party” providing further support for our conclusion that a hearing to appoint a

guardian is mandated by the Revised Code in this case.

       {¶15} The appellee does not refute appellant’s contention that a hearing is

mandatory, but repeats her argument from a previously filled motion that the appellant

has no standing to appeal the trial court’s decision. We denied that motion and appellee

has provided no new argument that would lead us to change our decision.

       {¶16} Appellee’s reliance on In re Guardianship of Santrucek, 120 Ohio St.3d 67,

2008-Ohio-4915, 896 N.E.2d 683, ¶ 2 is misplaced because the facts in that case are

significantly different.   In In re Guardianship of Santrucek the petitioner sought

guardianship of her mother, but failed to intervene and otherwise had no interest in the

pending matter. In the case at bar, appellant is the mother and natural guardian of the

children (R.C. 2111.08) and the appellee is seeking to change that status and assume

guardianship of the estates of the children. Appellant has a clear interest in the care and

welfare of her children and, for that reason, we cannot countenance appellee’s renewed

argument.
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013                   6


       {¶17} The parties anticipated presenting evidence at a hearing. The comments

at the March 26, 2018 conference with the trial court and each parties’ brief leave no

doubt that all involved expected a hearing, but none was scheduled. Instead the Court

issued a ruling without conducting the mandatory hearing. While this court is normally

obligated to review the trial court’s decision for abuse of discretion, the rationale for

deferring to trial courts disappears where no hearing has been held, and the court has

neither allowed evidence nor observed any witnesses. Melhorn, supra, at ¶¶ 51-52. “[A]n

appropriate record must be made of exactly what occurred, in order to provide a reviewing

court with a basis for concluding that the trial court acted properly and within its

discretion.” Id, at ¶55.

       {¶18} Appellant’s first assignment of error is sustained.

       {¶19} In her second assignment of error, appellant complains that the lack of a

hearing renders the trial court’s appointment of appellee as administrator of the estate of

M.A.R.C. void as well. As noted in the first assignment of error, the parties anticipated a

hearing that did not occur. Instead the trial court rendered a decision claiming that it

“considered all of the requirements in the applicable section of ORC 2113.06” and found

that “it would be in the best interest and it’s appropriate to appoint” appellee and that

appellee “would be best suited.”

       {¶20} Revised Code Section 2113.06(A)(2) states in relevant part that

“Administration of the estate of an intestate shall be granted to persons mentioned in this

division, in the following order *** [t]o one of the next of kin of the deceased ***.” The

parties agree that appellant is next of kin to the decedent, so this section gives her priority

for appointment as administrator. Sub-section (B) applies only if appellant were “to fail to
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013                    7

take or renounce administration voluntarily” which she has not done. Matter of Estate of

Hudson, 12th Dist. Preble No. CA2018-01-002, 2018-Ohio-2436, ¶ 18. Sub-section (C)

states “[i]f no next of kin is found suitable, the court shall commit the administration to

some suitable person,” but the characterization of any applicant as suitable or unsuitable

cannot occur without an evidentiary hearing. In re Estate of Pfahler, 64 Ohio App.3d 331,

333, 581 N.E.2d 602 (3rd Dist.1989). At the conclusion of the hearing the trial court would

be obligated to render a decision regarding the suitability of the applicants based upon

the competent, credible evidence presented. In re Guardianship of Waller, 1st Dist. No.

C-100131, 192 Ohio App.3d 663, 2011-Ohio-313, 950 N.E.2d 207, ¶ 16. While an order

“denying or granting letters of appointment will be reversed only upon a finding of an

abuse of discretion.” In re Estate of Henne (1981), 66 Ohio St.2d 232, 20 O.O.3d 228,

421 N.E.2d 506 as cited in In re Estate of Pfahler, 64 Ohio App.3d 331, 332, 581 N.E.2d

602, 603 (3rd Dist.1989), the requisite hearing must occur to establish the proper exercise

of discretion when determining the suitability of any party.

       {¶21} We hold that the trial court erred by failing to conduct a hearing regarding

the appointment of an administrator. If arguendo, we were to consider the trial court’s

entry regarding the appointment of the administrator, we would find that it lacks the

necessary findings to exclude appellant from serving as administrator of the estate. The

trial court did not include within its entry a finding that either the father or appellant were

unsuitable for the discharge of this trust, and thus failed to fulfill the requirement of R.C.

2113.06 before appointing another party. The trial court’s findings that appellee was “best

suited”, that it was in the “best interest” or that it was “appropriate to appoint” appellee are

not a substitute for a finding that the next of kin was not suitable to serve as administrator.
Perry County, Case Nos. 18-CA-00009, 18-CA-00011, 18-CA-00012, 18-CA-00013              8


       {¶22} Appellant’s second assignment of error is sustained, and the trial court’s

order of July 10, 2018 appointing appellee administrator of M.A.R.C.’s estate and the July

12, 2018 order appointing appellee guardian of the estates of the remaining children are

vacated and this matter is remanded to the trial court for further proceedings consistent

with this opinion.


By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
