[Cite as Estate of Gravis v. Coffee, 2019-Ohio-2806.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ESTATE OF WILLIAM O. GRAVIS                                   C.A. No.   28815

        Appellee

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
MICHAEL COFFEE, et al.                                        COURT OF COMMON PLEAS
                                                              COUNTY OF SUMMIT, OHIO
        Appellants                                            CASE No.   2016-CV-094

                                  DECISION AND JOURNAL ENTRY

Dated: July 10, 2019



        TEODOSIO, Presiding Judge.

                                                        I.

        {¶1}     Michael Coffee and Thomas Coffee appeal the judgment of the Summit County

Court of Common Pleas, Probate Division, dismissing their counterclaim. We affirm.

                                                        II.

        {¶2}     Mr. William O. Gravis passed away on August 16, 2016. Prior to his death,

Vanessa Wollet filed an application to be the guardian of his person and estate. Mr. Gravis, as

the proposed ward, was served with notice of the application on June 8, 2015. A second

application for guardianship was filed by Jacki Lynn Hastings on June 17, 2015. A hearing was

held before the magistrate on July 21, 2015, with the magistrate issuing a decision on July 27,

2015, finding Mr. Gravis incompetent, recommending the appointment of Ms. Wollet as

guardian of the person, and recommending Attorney John Greven to be appointed as guardian of

the estate.
                                                2


       {¶3}    On August 20, 2015, the trial court entered judgment finding Mr. Gravis to be

incompetent by reason of mental and physical disability, and incapable of taking proper care of

his self or property, thereby appointing Ms. Wollet as the guardian of his person. On November

25, 2015, Mr. Greven applied for guardianship of the estate and the trial court entered judgment

appointing him as such.

       {¶4}    The matter before us for review was initiated in September 2016 by the estate of

William O. Gravis (“the Estate”), which filed a complaint for declaratory judgment, unjust

enrichment, and constructive trust. Michael Coffee and Thomas Coffee filed their joint answer

and counterclaims in October 2016. The trial court granted judgment on the pleadings in favor

of the estate as to all but one of the counterclaims.       The remaining counterclaim sought

declaratory judgment on the issue of the ownership of real property located in Bath, Ohio.

       {¶5}    The dispute over the ownership of the real property arose out of the challenged

validity of a transfer on death designation affidavit executed by Mr. Gravis on November 23,

2015, to transfer certain real property to Michael and Thomas Coffee.          The affidavit was

prepared and notarized by the attorney for the Coffees: Mark Pirozzi. At the time the affidavit

was signed, Mr. Pirozzi was aware that Ms. Wollet had been appointed as the guardian for the

person of Mr. Gravis. The Coffees sought to have the transfer on death designation declared

valid and motioned the trial court for summary judgment in their favor both on the Estate’s

claims and on their remaining counterclaim for declaratory judgment. Conversely, the Estate

argued the designation was invalid due to the trial court having previously declared Mr. Gravis to

be incompetent. Initially the trial court denied summary judgment, finding that there were

“genuine issues of material fact” concerning the decedent’s competence.             However, on

September 20, 2017, the court sua sponte entered a judgment entry (followed by an amended
                                                3


judgment entry on September 21, 2017, which attached the property description), citing to its

inherent powers under R.C. 2104.24(C). In dismissing the remaining counterclaim, the trial

court found that there was “no genuine issue of fact” and that the Estate was entitled to judgment

as a matter of law. We note that the Coffees do not raise any potential procedural errors by the

trial court in their assignment of error, and we decline to raise the argument for them. See

Pascual v. Pascual, 9th Dist. Medina No. 12CA0036–M, 2012–Ohio–5819, ¶ 6. (stating that

“[i]t is the appellant’s burden to affirmatively demonstrate error on appeal * * * [and] where an

appellant has failed to develop an argument on appeal, complete with citations to law, it is not

this Court’s duty to create an argument for them”).

       {¶6}    Following the trial court’s amended judgment entry, the Estate filed a voluntary

dismissal of the second and third counts of the complaint “pursuant to Rule 41.” The Estate also

filed a motion for a judgment entry concluding the litigation, arguing that the trial court’s

September 20, 2017, entry dismissing the remaining counterclaim had also resolved the first

count of the Estate’s complaint, and that the litigation was complete. On September 21, 2017,

the trial court granted the Estate’s motion and issued a final judgment. Michael and Thomas

Coffee now appeal, raising one assignment of error.

                                        JURISDICTION

       {¶7}    As a preliminary matter, we are obligated to raise sua sponte the question of our

jurisdiction. See Whitaker–Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186 (1972).

This Court has jurisdiction to hear appeals only from final judgments. Article IV, Section

3(B)(2), Ohio Constitution; R.C. 2501.02. “In the absence of a final, appealable order, this Court

must dismiss the appeal for lack of subject matter jurisdiction.” Smirz v. Smirz, 9th Dist. Lorain

No. 13CA010408, 2014–Ohio–3869, ¶ 8. Although not raised by the parties, this case implicates
                                                 4


two issues concerning the matter of jurisdiction that we will consider at the outset. The first

issue involves the finality of the trial court’s entry purporting to resolve the Estate’s claim for

declaratory judgment; the second issue is with regard to the Estate’s voluntary dismissal of its

second and third causes of action.

       {¶8}    R.C. 2721.02(A), setting forth the force and effect of declaratory judgments,

provides: “[C]ourts of record may declare rights, status, and other legal relations whether or not

further relief is or could be claimed.” “The declaration may be either affirmative or negative in

form and effect [and] has the effect of a final judgment or decree.” Id.

       {¶9}    “[I]n the context of a declaratory judgment action, merely entering judgment in

favor of one party, without further elaboration, does not constitute a final judgment sufficient to

give this Court jurisdiction over an appeal.” Peavy v. Thompson, 9th Dist. Summit No. 25440,

2011–Ohio–1902, ¶ 10. “In order to properly enter judgment in a declaratory judgment action,

the trial court must set forth its construction of the disputed document or law, and must expressly

declare the parties’ respective rights and obligations.” Miller Lakes Community Assn. v. Schmitt,

9th Dist. Wayne No. 11CA0053, 2012-Ohio-5116, ¶ 8. “If the trial court fails to fulfill these

requirements, its judgment is not final and appealable.” Id. However, we have also stated:

“Where the denial of a motion for summary judgment in the context of declaratory judgment

gives rise, however, to the reasonable and logical inference that one party has in fact prevailed,

the requirements of finality are satisfied.” Lexington Ins. Co. v. DunnWell, LLC, 9th Dist.

Summit No. 27476, 2016-Ohio-5311, ¶ 10.

       {¶10} In its judgment entry dismissing the Coffees’ counterclaim, the trial court found:

       [T]he Transfer on Death Designation Affidavit executed for the real property
       owned by William O. Gravis in Bath, Ohio, and recorded at Doc #56175434 with
       the Summit County Fiscal Office on December 3, 2015[,] is not valid, and is void
       as a matter of law. As a result, Defendants Michael Coffee and Thomas Coffee
                                                 5


       have no interest in the subject real property in Bath, Ohio, as it is part of the
       probate estate of William O. Gravis and shall be disposed of per the terms of the
       will that was admitted to probate in case #2016 ES 871.
               Defendants Michael Coffee and Thomas Coffee are permanently enjoined
       from any attempt to occupy, sell, convey, transfer, or assign any interest in the
       aforementioned property. As the Defendants Michael Coffee and Thomas Coffee
       are not heirs at law pursuant to the statute of descent and distribution, they have
       no interest in the probate estate of William O. Gravis.

In motioning the trial court for a judgment entry concluding the litigation, the Estate contended

this language was dispositive of its claim for declaratory judgment and requested the trial court

enter an order finding the same.

       {¶11} In its order granting the Estate’s motion, the trial court stated that its judgment

entry of September 21, 2017, which had dismissed the Coffees’ counterclaim, also “resolved and

disposed of” the Estate’s first cause of action. The trial court went on to note that the Estate had

dismissed its remaining causes of action and that the court had previously dismissed all

remaining counterclaims and third-party claims. The trial court then concluded by stating that

the judgment entry and its prior judgment entries dismissing the Coffees’ claims concluded the

matter, and the entries, taken together, contained the final judgment of the court.

       {¶12} The initial question that we must address is whether the trial court’s judgment of

September 21, 2017, constituted a final judgment as to both the Coffees’ and the Estate’s causes

of action for declaratory judgment.

       {¶13} Count seven of the Coffees’ counterclaim states a cause of action for declaratory

judgment, requesting the trial court declare: (1) that the decedent’s purported Last Will and

Testament, dated November 6, 2014, was fraudulent; and (2) that the November 23, 2015,

transfer on death designation affidavit was valid and that the Coffees are the owners of the

subject property. In its judgment entry of April 21, 2017, the trial court granted judgment on the

pleadings in favor of the Estate as to the Coffees’ counterclaim for a declaratory judgment asking
                                                 6


that the will be declared invalid. The Coffees do not appeal from this order. In addition, we note

that R.C. 2107.71(A) 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.” The judgment entry of September

21, 2017, states that the Coffees “are not heirs at law pursuant to the statute of descent and

distribution * * * [and] have no interest in the probate estate of William O. Gravis.”

       {¶14} With regard to the counterclaim’s requested declaration that the transfer on death

designation affidavit was valid and that the Coffees are the owners of the subject property, the

judgment entry of September 21, 2017, stated that “the Transfer on Death Designation Affidavit

executed for the real property owned by William O. Gravis in Bath, Ohio, and recorded at Doc

#56175434 with the Summit County Fiscal Office on December 3, 2015[,] [was] not valid, and

[was] void as a matter of law.”

       {¶15} The Estate’s first cause of action for declaratory judgment states that a

controversy arose with respect to the parties’ respective rights and obligations with regard to the

property of the decedent or the Estate. In its prayer for relief as stated in the complaint, and in

pertinent part, the Estate requests from the trial court: (1) an order declaring the rights and

obligations of the parties in the property in which the decedent or the Estate has or had an

interest; (2) an order determining as to each asset at issue whether the asset is rightfully included

within the probate estate; (3) an order declaring invalid, null and void all conveyances, transfers,

or assignments to the defendants of the decedent’s or the Estate’s property. The only property

specifically identified in the Estate’s complaint consists of two parcels of land located in Bath

Township, Ohio. The complaint goes on to allege that the Coffees had “begun to seek to
                                                7


exercise dominion and control over the real estate.” No factual claims are made as to any other

property, real or otherwise.

       {¶16} As noted above, the trial court declared that: (1) the transfer on death designation

affidavit was not valid and was void as a matter of law; (2) the Coffees had no interest in the

subject property; (3) the subject property was part of the probate estate to be disposed of per the

terms of the will; (4) the Coffees were permanently enjoined from any attempt to occupy, sell,

convey, transfer, or assign any interest in the aforementioned property; and (5) the Coffees were

not heirs at law and had no interest in the probate estate. The trial court therefore addressed all

aspects of the Estate’s cause of action for declaratory judgment by so declaring the rights and

obligations of the parties in the property, determining that the subject property was rightfully

included in the probate estate, and declaring that the transfer on death designation affidavit was

not valid and was void as a matter of law.

       {¶17} We therefore conclude the trial court expressly declared the parties’ respective

rights and obligations and that the September 21, 2017, judgment entry constituted a final

judgment as to the declaratory judgment claims of both the Estate and the Coffees. However,

that does not end our inquiry, as we must now look to the voluntary dismissal by the Estate of the

second and third counts of its complaint.

       {¶18} Civ.R. 41(A)(1)(a) provides that “a plaintiff, without order of the court, may

dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of

dismissal at any time before the commencement of trial * * * [.]” Recognizing that this language

is clear and unambiguous, the Ohio Supreme Court has concluded that a voluntary dismissal

under Civ.R. 41(A)(1)(a) can only operate to dismiss all claims that a plaintiff has pending

against a defendant. Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, ¶ 18.
                                                 8


“[Civ.R. 41(A)(1)(a)] does not allow for the dismissal of a portion of the claims against a certain

defendant” because it “applies to discrete parties, not discrete causes of action.” (Emphasis sic.)

Id. “[B]ecause Rule 41(A)(1) does not permit a party to voluntarily dismiss anything less than

all of its claims against any one party[,]” any attempt to do so is a nullity. Perez Bar & Grill v.

Schneider, 9th Dist. Lorain No. 09CA009573, 2010-Ohio-1352, ¶ 7, citing Pattison at ¶ 18.

       {¶19} Upon the Estate’s motion, the trial court concluded that its judgment entry of

September 20, 2017, resolved both the Estate’s first cause of action for declaratory judgment and

the Coffees’ counterclaim. As indicated by our analysis above, we agree that the judgment entry

resolved all claims for declaratory judgment. As a result, when the Estate dismissed its second

and third causes of action on September 21, 2017, it was dismissing all of its remaining claims,

as its claim for declaratory judgment was no longer pending. Therefore, the voluntary dismissal

was proper under Civ.R. 41(A)(1). We conclude the trial court’s judgment was final and

appealable, and this Court has jurisdiction to consider this appeal.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN FINDING THAT THE APPOINTMENT OF A
       GUARDIAN OF THE PERSON CREATED AN IRREBUTTABLE
       PRESUMPTION OF INCOMPETENCE TO SIGN A TRANSFER ON DEATH
       DESIGNATION AFFIDAVIT.

       {¶20} In their assignment of error, the Coffees argue the trial court erred in finding that

the appointment of a guardian of the person created an irrebuttable presumption of incompetence

to sign a transfer on death designation affidavit. We disagree.

       {¶21} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
                                                9


the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶22} The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶23} At the outset, we note that the trial court did not specifically make or rely upon a

finding that the appointment of a guardian of the person created an irrebuttable presumption of

incompetence to sign a transfer on death designation affidavit. Rather, the trial court relies on

two separate statutory sections in its order. The first basis for the trial court’s ruling is R.C.
                                                 10


2111.04(D) (incorrectly cited as 2114.04(D) in the trial court’s order), which provides: “From

the service of notice [of the guardianship proceeding] until the hearing, no sale, gift, conveyance,

or encumbrance of the property of an alleged incompetent shall be valid as to persons having

notice of the proceeding.” The trial court found that notice of the application for guardianship of

the person and estate was received by Mr. Gravis on June 8, 2015, and that a hearing on the issue

of the guardianship of the estate was not held until November 25, 2017, which was two days

after the execution of the transfer on death designation affidavit. The trial court went on to find

that as a consequence, and pursuant to R.C. 2111.04(D), the affidavit was not valid and was void

as a matter of law.

       {¶24} The Coffees’ assignment of error neither addresses these findings nor addresses

R.C. 2111.04 as a basis for the trial court’s ruling. “[A]n appellant’s assignment of error

provides this Court with a roadmap to guide our review.” Taylor v. Hamlin-Scanlon, 9th Dist.

Summit No. 23873, 2008-Ohio-1912, ¶ 12. This Court declines to chart its own course when an

appellant fails to provide guidance. Young v. Slusser, 9th Dist. Wayne No. 08CA0019, 2008-

Ohio-4650, ¶ 7. “It is not this Court’s duty to create an appellant’s argument for him.” Thomas

v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 8. It is an appellant’s duty to

demonstrate his assigned error through an argument that is supported by citations to legal

authority and facts in the record; it is not the function of this Court to construct a foundation for

his claims. Ohio Edison Co. v. Williams, 9th Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 9.

The Coffees provide us with no argument as to how the trial court erred in its analysis with

regard to R.C. 2111.04(D).
                                                  11


       {¶25} The second basis for the trial court’s ruling is its position as “superior guardian.”

Under R.C. 2111.50(A)(1), “[a]t all times, the probate court is the superior guardian of wards

who are subject to its jurisdiction * * *.” R.C. 2111.50(B)(1), provides:

       In connection with any person whom the probate court has found to be an
       incompetent or a minor subject to guardianship and for whom the court has
       appointed a guardian, the court has, subject to divisions (C) to (E) of this section,
       all the powers that relate to the person and estate of the ward and that the ward
       could exercise if present and not a minor or under a disability, except the power to
       make or revoke a will. These powers include, but are not limited to, the power to
       do any of the following:

                 (1) Convey or release the present, contingent, or expectant interests
                 in real or personal property of the ward, including, but not limited
                 to, dower and any right of survivorship incident to a survivorship
                 tenancy, joint tenancy, or tenancy by the entireties[.]

       {¶26} The trial court stated that the magistrate had made a finding that Mr. Gravis was

incompetent on July 27, 2015, and that on that date Mr. Gravis thereby became subject to the

jurisdiction of the probate court as an incompetent person, with the probate court becoming

superior guardian of Mr. Gravis’ person and estate pursuant to R.C. 2111.50. The trial court

found that because it had all the powers conferred upon it as superior guardian pursuant to R.C.

2111.50(B)(1), Attorney Pirozzi had no authority to procure the transfer on death designation

affidavit from Mr. Gravis, and that consequently, the affidavit was not valid and was void as a

matter of law.

       {¶27} Once again, the Coffees’ assignment of error does not address the trial court’s

rationale that the procurement of the affidavit conflicted with its role as superior guardian

pursuant to R.C. 2111.50. And as above, we note that an appellant’s assignment of error

provides this Court with a roadmap to guide our review. Taylor at ¶ 12. We decline to chart our

own course when an appellant fails to provide guidance. Young at ¶ 7. The Coffees have failed

to show any error in the rationales employed by the trial court in making its ruling.
                                                12


       {¶28} The Coffees’ assignment of error is overruled.

                                                III.

       {¶29} The Coffees’ assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas, Probate Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




HENSAL, J.
CONCURS.
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CARR, J.
DISSENTING.

       {¶30} This appeal, as the majority’s opinion reflects, presents us with some complicated

procedural issues. The most glaring problem to me though is the fact that the trial court granted

summary judgment sua sponte to Appellees on grounds neither party had the opportunity to

address. Consequently, I respectfully dissent and would reverse and remand the matter to the

trial court to afford the parties the chance to address R.C. 2111.04 (D) and 2111.50 initially.


APPEARANCES:

MARK W. BERNLOHR and SUSAN K. ZERRUSEN, Attorneys at Law, for Appellants.

MICHAEL J. KAPLAN, Attorney at Law, for Appellee.
