[Cite as In re Estate Lacey, 2019-Ohio-3384.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

In re: Estate of Barbara Lacey,                   :
                                                                     No. 19AP-33
(Friendship Village of Columbus, Inc.,            :                (Prob. No. 587015)

                 Appellant).                      :           (REGULAR CALENDAR)

                                                  :


                                            D E C I S I O N

                                     Rendered on August 22, 2019


                 On brief: Bruns, Connell, Vollmar & Armstrong, LLC,
                 Adam C. Armstrong, and Tara F. Taylor, for appellant.
                 Argued: Adam C. Armstrong.

                  APPEAL from the Franklin County Court of Common Pleas,
                                    Probate Division.

NELSON, J.
        {¶ 1} This matter relates to potential application of a statutory subsection that has
not been assessed by the probate court in this case to this point. In explaining why we
return the case to the probate court so that it may engage in that analysis regarding the
applicability and import under these circumstances of the statutory language invoked, we
begin with a brief procedural overview.
        {¶ 2} The late Barbara Lacey seems to have lived the last period of her life at a
nursing home called Friendship Village. Three weeks after her death, and then twice
subsequently, Friendship Village billed Kelly Paternoster, who was the executor designated
in Ms. Lacey's will and who is the residual beneficiary of her estate, for the decedent's
nursing home debt (in three different stated amounts, reduced over time from a claim of
$35,604.96 to a final figure of $19,585.09, apparently to subtract amounts including
charges for days that came after Ms. Lacey was no longer alive). Friendship Village received
no response from Ms. Paternoster.
No. 19AP-33                                                                                   2

       {¶ 3} Some three and a half months after its last letter to Ms. Paternoster, and
seeking then to pursue a claim against the estate, Friendship Village filed a motion for relief
from judgment under Civil Rule 60(B) asking the probate court to vacate orders that had
relieved the estate from administration. The probate court (while apparently accepting at
face value the correspondence proffered by Friendship Village, even though it may not have
been presented in evidentiary form) overruled the motion, finding that Friendship Village
had failed to present its claim to an executor or administrator within six months of the
decedent's death as the court found R.C. 2117.06(B) to require. Friendship Village appeals,
arguing that the probate court failed to analyze its request under a particular statutory
provision that Friendship Village had emphasized to the probate court in challenging its
magistrate's recommendation that the Civ.R. 60(B) motion be denied.
       {¶ 4} Barbara Lacey died on August 7, 2017 at Friendship Village. Sept. 6, 2017
Certificate of Death. She gave one bequest of jewelry to a beneficiary and otherwise gave
"the rest, residue and remainder of all [her] property of all kinds" to her will's named
executor, Ms. Paternoster. Sept. 6, 2017 Last Will and Testament of Barbara Lacey, signed
and sworn Mar. 29, 2012. In a letter purportedly sent roughly two weeks after Ms. Lacey
died, and that got right to the point by stating, "I am writing to you about the past due status
of Barbara Lacey's resident account," Friendship Village advised Ms. Paternoster that "[w]e
would greatly appreciate the full and immediate payment of the balance due" (said then to
be $35,604.96) and that unless payment or arrangements were made within a week, "we
will begin charging your account a late fee of $35.00 per month on the overdue balance."
Ex. E, Feb. 23, 2018 Motion for Relief from Judgment (August 24, 2017 letter).
       {¶ 5} On September 6, 2017, Ms. Paternoster filed a number of documents in the
probate court, including an application to probate Ms. Lacey's will under R.C. 2107.18 and
an application to relieve the estate from administration under R.C. 2113.03 based on the
value of the estate's assets not exceeding the statutory threshold of $35,000 under R.C.
2113.03(A)(1). Her filing titled "Assets and Liabilities of Estate to be Relieved from
Administration" listed two insurance policies valued together at $11,000 as the only assets
in Ms. Lacey's estate. No debts were listed. Ms. Paternoster signed below a section headed
"CERTIFICATION," attesting that the value of any listed assets was "correct, and to
applicant's knowledge the above list of decedent's debts is correct." Sept. 6, 2017 Assets and
No. 19AP-33                                                                                  3

Liabilities of Estate to be Relieved from Administration at 2. The probate court filed an
Entry Relieving Estate from Administration on September 6, 2017.
       {¶ 6} On September 12, 2017, Ms. Paternoster filed a supplemental Assets and
Liabilities of Estate to be Relieved from Administration form that identified a $1,000 policy
from the State Teachers Retirement System as an additional asset. The same day, the
probate court filed a Supplemental Entry Relieving Estate from Administration.
       {¶ 7} Friendship Village continued to send its bill to Ms. Paternoster.             On
September 13, 2017, it sent her a statement seeking $28,629.96 (adjusting for a previous
overcharge for "room and board" for the entirety of August). Ex. E, Feb. 23, 2018 Motion
for Relief. Then, on November 6, 2017, a lawyer for Friendship Village sent Ms. Paternoster
as "Applicant and/or Beneficiary of the Estate of Barbara Lacey" a "Dear Paternoster" letter
"regarding an unpaid account balance in the amount of $19,585.09 related to care and
services Friendship Village rendered to Barbara Lacey between October 2016 and August
2017." Ex. F, Feb. 23, 2018 Mot. for Relief. The self-described "estate claim letter" said that
it was to "serve as a formal claim against the Estate of Barbara Lacey," and that it was sent
to Ms. Paternoster "both as Applicant to Relieve the Estate from Administration and as a
distributee of Ms. Lacey's estate who may share liability for payment of the claim." Id. It
also advised Ms. Paternoster:
              In your filings and representations to the Probate Court in the
              above-referenced estate, you omitted the fact [that] Ms. Lacey
              owned property at 2344 Taylor Ave., Columbus, Ohio 43211 at
              the time of her death and that said property has a tax-appraised
              value of $36,500. This real property should be part of Ms.
              Lacey's estate, and should be liquidated to my client's valid and
              timely claim. Your failure to include this asset as part of the
              inventory of Ms. Lacey's estate caused the above-referenced
              estate to be reli[e]ved from administration and prevented my
              client from payment it is rightfully owed.

Id.
       {¶ 8} The letter concluded by requesting that Ms. Paternoster "immediately
supplement [the] application to relieve the estate from administration and properly identify
the 2344 Taylor Ave. [property] as an asset of the estate"; otherwise, Friendship Village
would petition the probate court to do so. Id. Ms. Paternoster signed a return receipt for
the letter on November 8, 2017. Id.
No. 19AP-33                                                                                    4

       {¶ 9} Two and a half months after that communication, and a little more than six
months after Ms. Lacey's death, Friendship Village on February 23, 2018 filed its Civ.R.
60(B) motion requesting that the probate court vacate its entries that had relieved the estate
from administration. Friendship Village acknowledged that its request was governed by
the standard set forth in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d
146, 150-51 (1976), which states that a "movant must demonstrate that: (1) the party has a
meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief
under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made
within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3),
not more than one year after the judgment, order or proceeding was entered or taken."
Feb. 23, 2018 Memo. at 4.
       {¶ 10} Friendship Village argued that it had a meritorious claim for relief because it
had "a valid and timely claim against the Estate in the amount of $19,585.09" and had
complied with the requirements for presenting a claim against an estate, citing R.C.
2117.06(A)(1)(a) and (2). Id. at 4-5. Excusable neglect applied under Civ.R. 60(B)(1), it
urged, because "Friendship Village had no knowledge or actual notice of [the] Application
to release the Estate," and because "Ms. Paternoster, the applicant for release, knew of
Friendship Village's claim yet (1) failed to notify Friendship Village of the proceedings and
(2) omitted it as a potential creditor on her Application" to the probate court. Id. at 6, citing
In re Estate of Horton, 9th Dist. No. 19818, 2000 Ohio App. LEXIS 3438 (Aug. 2, 2000).
Friendship Village asserted that its motion was timely because it came "only five months
after the Entries" from which it sought relief, during which time Friendship Village had
asserted its claim to Ms. Paternoster. Id. at 7. "Under R.C. 2117.06(B), Friendship Village
has [sic] until February 7, 2018 to assert a timely claim," the motion recited, noting that
statute's six-month deadline, and it "falls within the statutory deadline to make a claim on
Ms. Lacey's estate." Id.
       {¶ 11} A magistrate denied the motion, reasoning that Friendship Village did not
have a meritorious claim because the motion was filed more than six months after Ms.
Lacey's death and therefore was "barred" by R.C. 2117.06 and the holding of this court in In
re Estate of Curry, 10th Dist. No. 09AP-469, 2009-Ohio-6571. May 11, 2018 Magistrate's
Order Denying Motion for Relief from Judgment at 2-3. The magistrate also determined
No. 19AP-33                                                                                   5

that because the motion had not been filed within the six months specified by R.C. 2117.06,
it was "not filed within a reasonable period of time" allowed for a Civ.R. 60(B) motion under
GTE Automatic Electric. Id. at 3, fn 2.
       {¶ 12} Friendship Village moved to set aside the magistrate's order. The gist of the
objection was that "[t]he Magistrate's Order * * * ignores Friendship Village's timely claim
against the Estate pursuant to R.C. 2117.06(A)(2), which establishes Friendship Village's
meritorious claim against the Estate and establishes the Motion for Relief was timely filed."
May 21, 2018 Friendship Village Motion To Set Aside * * * Magistrate's Order Denying
Relief From Judgment at 2. Friendship Village's communications to Ms. Paternoster had
come "within six months after Ms. Lacey's death," the motion underscored, and so satisfied
the six-month presentment requirement of R.C. 2117.06(B) in light of the provision of
R.C. 2117.06(A) that "[a]ll creditors having claims against an estate, * * * shall present their
claims in one of the following manners: * * * (2) If the final account or certificate of
termination has been filed, in a writing to those distributees of the decedent's estate who
may share liability for the payment of the claim." Id. at 2 (emphasis omitted), 3-4.
       {¶ 13} Friendship Village renewed on pages 3 and 4 of that brief its objection that
the magistrate had "ignore[d]" the subsection R.C. 2117.06(A)(2) argument; it specified the
subsection in its first "Law and Analysis" subheading, id. at 3; and it reiterated at pages 4
and 5 (in addressing the "reasonable time" question) that "Friendship Village [now] is not
relying upon R.C. 2116.07(A)(1) to support its estate claim [and therefore need not show
presentation to a court-determined executor or administrator within six months of death],"
but rather relies on its November 6, 2017 "letter to Ms. Paternoster as distributee pursuant
to R.C. 2117.06(A)(2)." Id. at 4-5.
       {¶ 14} The probate court adopted and affirmed the magistrate's decision. "A claim
against an estate must be presented to an executor or administrator within six months of
the decedent's date of death under R.C. 2117.06," the court said. Dec. 14, 2018 Judgment
Entry Denying Motion to Set Aside Magistrate's Order at 3. Citing Curry, the court
explained that "[w]here one has a claim against an estate, it is incumbent upon them, if no
administrator has been appointed, to procure the appointment of an administrator against
whom they can proceed." Id. It added that "Ms. Paternoster was not a fiduciary of the
estate of the Decedent. As such, the letters sent to Ms. Paternoster do not comply with the
No. 19AP-33                                                                                6

[presentment] requirements under R.C. 2117.06." Id. Neither did the Civ.R. 60(B) motion,
so "the relief requested in the Motion is not permissible." Id. "Because Friendship Village
did not comply with the requirements under R.C. 2117.06," the probate court concluded, its
"claim against the Decedent's estate is barred." Id. at 4.
       {¶ 15} The probate court did not explicitly address Friendship Village's contention
that R.C. 2117.06(A)(2) allows presentment of claims against an estate to be made in writing
to a distributee who may share liability, and that such presentment if made within the six-
month period would satisfy the timing requirements of subsection (B) of the statute.
Indeed, after quoting the provisions of R.C. 2117.06(A) and (B), the Judgment Entry
Denying Motion to Set Aside Magistrate's Order did not differentiate between subsections
(A)(1) and (A)(2) or assess or mention (A)(2) in any way.
       {¶ 16} Friendship Village now appeals to us, asserting as error that "[t]he Franklin
County Probate Court abused its discretion and committed reversible error when it denied
Appellant's Motion for Relief from Entries Relieving the Estate of Barbara Lacey from
Administration." Again and again, in only slightly different formulations, it protests that
"Friendship Village's Motion for Relief was based upon R.C. 2117.06(A)(2) and the Probate
Court's refusal to address and analyze same was unreasonable and arbitrary." Appellant's
Brief at 9-10; see also, e.g., id. at 10 ("Nowhere in the Magistrate's Order or the Probate
Court's December 14, 2018 Judgment Entry adopting and affirming same, does the Probate
Court address or analyze the language of R.C. 2117.06(A)(2)"); 11 ("the Probate Court
unreasonably and arbitrarily failed to address and analyze R.C. 2117.06(A)(2)"; then
renewing the same complaint in the specific context of arguing that presentment to an
executor or administrator is not necessary given the (A)(2) language); 15 ("the Probate
Court abused its discretion in arbitrarily and unreasonably failing to address and analyze
the separate and distinct elements of R.C. 2117.06(A)(2)"); 23 (probate court "failed to
acknowledge and apply the separate and distinct elements of a valid estate claim pursuant
to R.C. 2117.06(A)(2) to Friendship Village's Motion for Relief"). Consideration of the
R.C. 2117.06(A)(2) subsection was merited, Friendship Village says, because "[i]n every
practical sense" Ms. Paternoster's applications and the probate court's entries relieving the
estate from administration functioned as filings of "the final account or certificate of
termination" to provide the (A)(2) predicate. Id. at 15-16.
No. 19AP-33                                                                                 7

       {¶ 17} Under the reasoning that Friendship Village had advanced to the probate
court as highlighted by the objections to the magistrate's opinion, the statute provides two
options for presentment of claim against an estate. The first would apply "[a]fter the
appointment of an executor or administrator and prior to the filing of a final account or a
certificate of termination." R.C. 2117.06(A)(1). The second option would apply "[i]f the final
account or certificate of termination has been filed." R.C. 2117.06(A)(2). Only the first
requires presentment to an administrator or executor, Friendship Village argues; the
second option allows instead for presentment "to those distributees of the decedent's estate
who may share liability for the payment of the claim," id, and would satisfy time limitations
on probate claims against an estate, Friendship Village maintains.
       {¶ 18} In its submissions to the probate court, Friendship Village raised its
argument of a meritorious claim with reference to R.C. 2117.06(A)(2). Feb. 23, 2018
Memorandum in Support of Motion for Relief from Entries Relieving Estate of
Administration at 5; May 21, 2018 Motion to Set Aside Magistrate's Order at 2, 3, 4, 5. The
probate court did not address the argument and we could benefit from its expertise.
       {¶ 19} The probate court is well positioned, for example, to examine in the first
instance whether its own orders relieving the estate from administration and the
applications as filed by Ms. Paternoster seeking that action are "[i]n every practical sense"
the functional and legal equivalent of the filing of a "final account" or "certificate of
termination," and whether that predicate for R.C. 2117.06(A)(2) has been met.             See
Appellant's Brief at 15-16. The probate court's insights also would be valuable in examining
the interplay, if any, among the R.C. 2117.06(A)(2) subsection on which Friendship Village
has relied and other probate-related statutes, including perhaps R.C. 2117.11 and 2117.12.
And of course we would benefit from the probate court's assessment of whether, as
Friendship Village contends, R.C. 2117.06(A)(2) in conjunction with 2117.06(B) and the
broader contours of the probate law envisions the assertion of claims against an estate in
probate court (and itself then gives some significance to the question of reopening the
estate), or whether, and rather than applying to the "estate claims" that Friendship Village
seeks to advance, see Appellant's Brief at 12, the statutory subsection applies when "the
creditor seeks payment from the distributes directly, not from the estate," see Anderson's
Ohio Probate Practice and Procedure, Section 14.04[E], 208 (Ed.2012-13). Compare
No. 19AP-33                                                                                 8

Appellant's Brief at 12 ("unable to find an appellate decision in Ohio specifically addressing
the separate and distinct elements of R.C. 2117.06(A)(2)").
       {¶ 20} Because the probate court did not address Friendship Village's
R.C. 2117.06(A)(2) argument by its terms, that court did not evaluate any of these issues in
the factual context before it. Compare, e.g., Coleman v. R. & S. Elec. Co., 10th Dist. No.
76AP-948, 1977 Ohio App. LEXIS 8526, *6 (Apr. 21, 1977) (remanding because "the trial
court never reached or determined the issue of whether or not defendant
Winnestoffer's failure to answer was the result of mistake, inadvertence, or excusable
neglect but, instead, considered only the issue of whether service should be set aside" and
holding that "issue of whether or not defendant Winnestoffer should be granted relief from
the default judgment pursuant to Civ.R. 60(B)(1) not having been fully determined by the
trial court, the assignment of error is well taken"); Woods Cove III, LLC v. Hall, 10th Dist.
No. 14AP-784, 2016-Ohio-7124, ¶ 17-19 ("the judgment entry and foreclosure decree do not
address any of appellant's defenses * * * * This court declines to address the defenses,
including lis pendens, in the first instance * * * * [W]e thus reverse and remand").
       {¶ 21} "Generally, appellate courts do not address issues which the trial court
declined to consider." Young v. Univ. of Akron, 10th Dist. No. 06AP-1022, 2007-Ohio-
4663, ¶ 22 (citations omitted) (issue remanded to trial court for initial consideration).
Because the probate court did not analyze and fully determine the issues before it, we
sustain Friendship Village's assignment of error to the extent expressed in this opinion, and
we remand this matter to the probate court for further proceedings in accordance with law
consistent with this decision and with instructions to evaluate Friendship Village's
R.C. 2117.06(A)(2) argument in the context of deciding Friendship Village's motion to set
aside the magistrate's order on Friendship Village's motion for relief from entries relieving
Barbara Lacey's estate from administration (and then, if and as appropriate, in the context
of deciding that Civ.R. 60(B) motion).
                                   Judgment reversed; cause remanded with instructions.
                      BRUNNER and BEATTY BLUNT, JJ., concur.
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