[Cite as In re Estate of Kahn, 2014-Ohio-4721.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: ESTATE OF HARRY KAHN                       :   JUDGES:
                                                  :
                                                  :   Hon. Sheila G. Farmer, P.J.
                                                  :   Hon. Patricia A. Delaney, J.
                                                  :   Hon. Craig R. Baldwin, J.
                                                  :
                                                  :
                                                  :   Case No. 13-CA-33
                                                  :
                                                  :   OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Guernsey County
                                                      Court of Common Pleas, Probate
                                                      Division, Case No. 75-PE-36062



JUDGMENT:                                             Affirmed



DATE OF JUDGMENT:                                     October 22, 2014



APPEARANCES:

For Plaintiff-Appellee Jadco Energy, Inc.             For Defendant-Appellant Norman Kahn

OWEN J. RARRIC                                        SHAWN J. ORGAN
DEAN A. SWIFT                                         DOUGLAS R. COLE
MATTHEW W. ONEST                                      GERROD L. BEDE
ALETHA M. CARVER                                      Organ Cole & Stock LLP
Krugliak, Wilkins, Griffiths & Dougherty Co.,         1335 Dublin Road, Suite 104D
L.P.A.                                                Columbus, OH 43215
4775 Munson Street NW/PO Box 36963
Canton, OH 44735-6963
Guernsey County, Case No. 13-CA-33                                                      2



Baldwin, J.

      {¶1}    Appellant Norman Kahn appeals from the December 4, 2013 Judgment

Entry of the Guernsey County Court of Common Pleas, Probate Division, denying his

Motion to Reopen the Estate of Harry Kahn.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}    In May of 1969, Harry and Libbie Kahn, who were husband and wife,

entered into an oil and gas lease with B.L. Lawrence related to approximately 700 acres

in Guernsey County. The lease provided that the Kahns were entitled to royalties on the

“1/8 part of all oil produced … and [the] 1/8 part of gas sold from said premises…” The

lease stated that it would remain in effect “so long as oil and gas are produced in paying

quantities in any wells…”

      {¶3}    In 1973, the Kahns sold the surface rights to their property to Salt Fork

Campgrounds, Inc., but excepted “certain oil and gas lease from Harry and Libbie Kahn

to B. L. Lawrence, dated May 21, 1969, and partially assigned to Chief Drilling, Inc. by

assignment dated May 24, 1969, and certain oil and gas lease from Harry and Libbie

Kahn to Rabco, Inc. as recorded in Volume 52, Page 447, Lease Records of Guernsey

County, Ohio.”

      {¶4}    Two of the three oil and gas wells that have been drilled on the Kahn

property in accordance with the lease are still producing.

      {¶5}    In 1975, Harry Kahn passed away and on October 30, 1975, an estate

was opened in Guernsey County Probate Court.           Harry Kahn, in his Last Will and

Testament, had left one-half of all his property, real, personal or mixed to his wife,

Libbie Kahn, and had left one-quarter each to his sons, appellant and Nathaniel Kahn.
Guernsey County, Case No. 13-CA-33                                                        3


       {¶6}    In 2003, Nathaniel Kahn died and appellant, pursuant to terms of

Nathaniel Kahn’s Last Will and Testament, inherited all of his property, whether real,

personal or mixed. After Libbie Kahn, appellant’s mother, died in 2003, appellant, who

was the sole surviving beneficiary of the Estate of Harry Kahn, owned all of the

undistributed assets of such estate.

       {¶7}    As memorialized in a Judgment Entry filed in Guernsey County Probate

Court of February 7, 2007, the Probate Court authorized the transfer of the Kahn

estate’s interest in Kahn No. 1 and Kahn No. 2 wells to Jadco Energy, Inc. and ordered

the Administrator of the Estate to execute a Bill of Sale to Jadco Energy, Inc for “1/8th of

8/8ths overriding [royalty] interest in Kahn No. 1 and Kahn No. 2 wells.” A Nunc Pro

Tunc Judgment Entry was filed on February 15, 2007 stating that the Administrator was

to execute a Bill of Sale for 11.25% overriding royalty interest in the two wells to Jadco

Energy, Inc. On or about March 20, 2007, the Bill of Sale was executed and assigned

“11.25% overriding royalty interest in Kahn No. 1 and Kahn No. 2 wells” to Jadco

Energy, Inc.

       {¶8}    Thereafter, on December 10, 2007, an Entry closing the Estate of Harry

Kahn was filed in the Guernsey County Probate Court. The Entry stated that the estate

“has been fully and lawfully administered, and the assets have been distributed…”

       {¶9}    On October 23, 2013, appellant filed a Motion to Reopen the Estate of

Harry Kahn and for Leave to File Declaratory Judgment Action Instanter. Appellant, in

his motion, alleged that the Estate had not sold all of its royalty interest in oil and gas

wells on the property containing Kahn No. 1 and Kahn No. 2 wells and that it did not sell

its interest in any subsequently drilled wells.   Appellant alleged that the Kahn property
Guernsey County, Case No. 13-CA-33                                                       4


and the oil and gas rights relating to it were the subject of a lawsuit filed in the Civil

Division of the Guernsey County Court of Common Pleas, and that he was allowed to

intervene in such action to assert his interest in the overriding royalty interest retained

by the Estate after the sale to Jadco. Appellant further noted that the trial court, in the

civil case, had indicated that appellant should file a declaratory judgment action in the

Probate Court to determine what contingent interest, if any, appellant may have in the

royalty rights from the Estate.

       {¶10} Appellant, in his motion in the Probate Court, stated that “[i]n order to

proceed in the underlying civil case, [appellant] seeks to reopen the Estate to pursue

declaratory judgment that: (1) the Estate sold only its 11.25% overriding interest in Kahn

No. 1 and No. 2 wells to Jadco; and (2) the remainder of the Estate passes to

[appellant], as the sole surviving beneficiary of the Estate.”    Jadco Energy opposed

appellant’s motion.

       {¶11} The trial court, via a Judgment Entry filed on December 4, 2013, denied

appellant’s motion, holding that did not have jurisdiction to reopen a closed estate that

had been fully administered. The trial court stated that it did not have jurisdiction to

consider a declaratory judgment action after the estate had been closed.

       {¶12} Appellant now raises the following assignments of error on appeal:

       {¶13} THE PROBATE COURT COMMITTED LEGAL ERROR WHEN IT

DETERMINED THAT IT LACKED THE POWER TO REOPEN AN ESTATE TO

CLARIFY THE APPROPRIATE HANDLING OF AN ESTATE ASSET THAT HAD NOT

BEEN ADDRESSED OR DISTRIBUTED DURING THE PROBATE COURT’S

ADMINISTRATION AND SETTLING OF THE ESTATE.
Guernsey County, Case No. 13-CA-33                                                      5


      {¶14} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO

CONSIDER THE MERITS OF NORMAN KAHN’S DECLARATORY JUDGMENT

ACTION ADDRESSING THE DISPOSITION OF A VALUABLE ESTATE ASSET THAT

HAD NOT BEEN DISTRIBUTED DURING THE ADMINISTRATION OF THE ESTATE

BASED ON A LEGAL ERROR THAT THE PROBATE COURT MADE REGARDING

THE SCOPE OF THE PROBATE COURT’S JURISDICTION.

                                              I, II

      {¶15} Appellant, in his two assignments of error, argues that the court erred in

denying his Motion to Reopen the Estate of Harry Kahn and for Leave to File

Declaratory Judgment Action Instanter.

      {¶16} As an initial matter, we note that “the denial of a motion to reopen an

estate can effectively deny the right of the heirs to receive estate assets. Consequently,

an order denying a motion to reopen an estate is a final order under R.C. 2505.02(B)(1)

and is therefore capable of immediate review.” In re Chapman, 8th Dist. No. 78296,

2001 WL 703871, 2 (Jun 21, 2001).

      {¶17} R.C. 2109.35 states, in relevant part, as follows:

                    The order of the probate court upon the settlement of a

             fiduciary's account shall have the effect of a judgment and may be

             vacated only as follows:

                    The order may be vacated for fraud, upon motion of any

             person affected by the order or upon the court's own order, if the

             motion is filed or order is made within one year after discovery of

             the existence of the fraud. Any person who is subject to any legal
Guernsey County, Case No. 13-CA-33                                                 6


           disability may file the motion at any time within one year after the

           removal of the legal disability or within one year after the person

           discovers the existence of the fraud, whichever is later, or the

           person's guardian or a successor guardian may do so during the

           period of the legal disability. If the death of any person occurs

           during the period within which the person could have filed the

           motion, the person's administrator or executor may file it within one

           year after the person's death.

                 The order may be vacated for good cause shown, other than

           fraud, upon motion of any person affected by the order who was not

           a party to the proceeding in which the order was made and who

           had no knowledge of the proceeding in time to appear in it;

           provided that, if the account settled by the order is included and

           specified in the notice to that person of the proceeding in which a

           subsequent account is settled, the right of that person to vacate the

           order shall terminate upon the settlement of the subsequent

           account. A person affected by an order settling an account shall be

           considered to have been a party to the proceeding in which the

           order was made if that person was served with notice of the hearing

           on the account in accordance with section 2109.33 of the Revised

           Code, waived that notice, consented to the approval of the account,

           filed exceptions to the account, or is bound by section 2109.34 of

           the Revised Code; but no person in being who is under legal
Guernsey County, Case No. 13-CA-33                                                      7


           disability at the time of that proceeding shall be considered to have

           been a party to that proceeding unless the person was represented

           in it as provided in section 2111.23 of the Revised Code. Neither

           the fiduciary nor the fiduciary's surety shall incur any liability as a

           result of the vacation of an order settling an account in accordance

           with this division, if the motion to vacate the order is filed more than

           three years following the settlement of the fiduciary's account

           showing complete distribution of assets; but the three-year period

           shall not affect the liability of any heir, devisee, or distributee either

           before or after the expiration of that period.

                  The order may be vacated for good cause shown upon

           motion of the fiduciary, if the motion is filed prior to the settlement of

           the account showing that the fiduciary has fully discharged his trust.

                  A motion to vacate an order settling an account shall set

           forth the items of the account with respect to which complaint is

           made and the reasons for complaining of those items. The person

           filing a motion to vacate an order settling an account or another

           person the court may designate shall cause notice of the hearing

           on the motion to be served upon all interested parties who may be

           adversely affected by an order of the court granting the motion.

                  An order settling an account shall not be vacated unless the

           court determines that there is good cause for doing so, and the

           burden of proving good cause shall be upon the complaining party.
Guernsey County, Case No. 13-CA-33                                                          8


       {¶18} Pursuant to R.C. 2901.35, the court is not required to vacate an order

even if all of the requirements in the statute have been met. In re Estate of Keeler, 111

Ohio App.3d 657, 676 N.E.2d 1220 (10th Dist. 1996). The decision whether to grant a

motion to reopen an estate is within the discretion of a probate court. Wanamaker v.

Davis, 2nd Dist. Greene No.2005-CA-151, 2007-Ohio-4340, ¶ 34. An abuse of

discretion “implies that the [trial] court's attitude is unreasonable, arbitrary, or

unconscionable“ Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶19} Appellant, in his Motion to Reopen, did not allege any of the above

grounds as a reason for reopening the estate of his father. Appellant did allege fraud

and, as a beneficiary of Harry Kahn’s estate, was a party to the Probate proceeding.

Moreover, appellant did not file his motion prior to the settlement of the final account.

       {¶20} Appellant, in his brief, cites to In re Rubenstein’s Estate, 46 Ohio Law Abs

91, 68 N.E.2d 668 (2nd Dist. 1943) in support of his argument that the court erred in

denying his Motion to Reopen. In the Rubenstein’s case, an undistributed certificate of

deposit remained in the executor’s possession after she filed her first and final account.

After the State of Ohio took over the savings and loan that had issued the same, the

executrix did not file a proof of claim on the certificate. The probate Court permitted the

decedent’s estate to be reopened in order to compel the executrix to file a proof of claim

for the certificate.

       {¶21} In affirming the decision of the Probate Court, the court, in Rubenstein,

held, in relevant part, as follows:
Guernsey County, Case No. 13-CA-33                                                        9


                    It would seem obvious that if the certificate was at any time

             an asset of the estate, and the executrix apparently so considered it

             when she listed it as an asset in her inventory, then it should be

             distributed to the proper parties, and so long as it is in her hands as

             executrix the estate is not closed. It is probable that the executrix,

             before filing her first account, could have made a distribution of this

             item, but it appears that this was not done. The executrix still holds

             it.

      {¶22} Id at 670-671.

      {¶23} In contrast in the case sub judice, there were no identified estate assets in

the executor’s inventory that were not distributed. Moreover, as noted by appellee,

appellant in this matter is not seeking to reopen the estate to distribute an asset

belonging to the estate, but rather is seeking to reopen the estate to determine “whether

the overriding royalty interest in subsequently drilled wells should be designated an

estate asset.”

      {¶24} Appellant, in his brief, further argues that the trial court had jurisdiction to

reopen the Estate in order to clarify its prior orders via a declaratory judgment action.

Appellant notes that in In re Estate of Smith, 3rd Dist. Seneca No. 13-02-37, 2003-Ohio-

1910, the Court held that the Probate Court had the power to reopen an estate to clarify

a prior judgment in order to resolve an ambiguity in the will as to when the valuation of a

farm, which was part of residue of the estate, would arise for purposes of provisions in

the will requiring the residue of the estate to be divided equally and for the son to

receive the farm.
Guernsey County, Case No. 13-CA-33                                                    10


       {¶25} However, in this case, appellant is not seeking clarification.      Rather,

appellant is specifically seeking a determination by the Probate Court with respect to

ownership of a royalty interest in subsequently drilled wells.

       {¶26} Finally, appellant argues that the trial court determined that it lacked

jurisdiction based on a misreading of the law. Appellant contends that the trial court

should first have determined whether or not to reopen the Estate before concluding that

it lacked jurisdiction to hear appellant’s declaratory judgment action. Appellant notes

that case law holds that a Probate Court cannot consider a declaratory judgment action

while an estate is closed “but these cases do not suggest that the Court lacks

jurisdiction to reopen the estate, and thereafter address the declaratory judgment

action…”

       {¶27} However, we concur with appellee that the court’s decision that the estate

had been fully administered and would remain closed “implicitly held that [a]ppellant had

failed to demonstrate a sufficient reason to reopen the estate.”     We further find that

appellant failed to establish any valid grounds for reopening the Estate.

       {¶28} Based on the foregoing, we find that the trial court did not abuse its

discretion in denying appellant’s Motion to Reopen the Estate of Harry Kahn and for

Leave to File Declaratory Judgment Action Instanter. The trial court’s decision was not

arbitrary, unconscionable or unreasonable.

       {¶29} Appellant’s two assignments of error are, therefore, overruled.
Guernsey County, Case No. 13-CA-33                                       11


      {¶30} Accordingly, the judgment of the Guernsey County Court of Common

Pleas, Probate Division is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Delaney, J. concur.
