[Cite as In re Estate of DeChellis, 2019-Ohio-1730.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                               JUDGES:
IN RE: ESTATE OF PHILIP JOHN                           :       Hon. W. Scott Gwin, P.J.
DECHELLIS                                              :       Hon. John W. Wise, J.
                                                       :       Hon. Patricia A. Delaney, J.
                                                       :
                                                       :
                                                       :       Case No. 2018CA00114
                                                       :
                                                       :
                                                       :       OPINION




CHARACTER OF PROCEEDING:                                   Civil appeal from the Stark County Court of
                                                           Common Pleas, Probate Division, Case
                                                           No. 226759


JUDGMENT:                                                  Dismissed


DATE OF JUDGMENT ENTRY:                                    May 6, 2019


APPEARANCES:

For Plaintiff-Appellant                                    For Defendant-Appellee

CRAIG CONLEY                                               STANLEY RUBIN
604 Huntington Plaza                                       437 Market Avenue North
220 Market Avenue South                                    Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2018CA00114                                                        2

Gwin, P.J.

       {¶1}   Appellant appeals the July 10, 2018 judgment entry of the Stark County

Court of Common Pleas, Probate Division, granting appellee’s motion to approve

settlement.

                                   Facts & Procedural History

       {¶2}   On August 1, 2016, the will of Philip DeChellis (“Decedent”) was filed with

the Stark County Court of Common Pleas, Probate Division. Appellee Ann Marie Heffner

was appointed executrix of the estate, pursuant to her nomination in Decedent’s will, on

August 10, 2016. Appellee filed an inventory and appraisal on March 7, 2017. The

inventory and appraisal included Decedent’s business, P&P JD, LLC, as part of

Decedent’s estate. The appraisal attached to the inventory provides that P&P JD, LLC

“is taxed as a disregarded entity for Federal and Ohio tax purposes, with net income of

the entity being reported on the individual tax return of Philip DeChellis, the 100% owner.”

       {¶3}   On March 22, 2017, appellants Patricia DeChellis and Daniel DeChellis filed

exceptions to the inventory. Appellants filed amended exceptions to the inventory on

February 20, 2018 and April 11, 2018.

       {¶4}   Appellee filed her first partial account on April 26, 2018. Appellants filed

exceptions to the first partial account on April 27, 2018 and supplemental exceptions on

April 30, 2018 and May 18, 2018. Appellee filed her reply to appellant’s exceptions on

August 13, 2018. Appellee filed amended accounts on June 12, 2018, June 14, 2018,

and July 9, 2018. Each of the accounts includes P&P JD, LLC and its associated

checking accounts.
Stark County, Case No. 2018CA00114                                                      3


      {¶5}   Appellee filed a motion to approve settlement on June 4, 2018. Appellee

sought the trial court’s approval of the settlement of an action that had been pending in

the Stark County Court of Common Pleas General Division since 2012 against 221

Market North, Inc., and P&P JD, LLC. for sexual discrimination. Both entities were owned

entirely by Decedent. The plaintiff in that case had obtained judgment for $208,000, but

agreed to settle the claim for less to avoid further litigation. Appellee requested to use

estate funds to pay the settlement. Appellants filed a response memorandum on June 5,

2018, a supplemental memorandum on June 7, 2018, and a reply memorandum on June

12, 2018. Appellants argued Decedent’s estate had no liability for any claims against

P&P JD, LLC, including the General Division judgment against 221 Market North and P&P

JD, LLC.

      {¶6}   The trial court held a hearing on the motion to approve settlement on July

10, 2018 and issued an order approving settlement on July 10, 2018.

      {¶7}   On October 10, 2018, the trial court appointed Attorney David Dingwell as

Special Court Investigator and Special Commissioner. On January 10, 2019, appellants

filed an emergency motion for appointment of receiver, requesting the trial court

immediately appoint a receiver to manage the affairs of P&P JD, LLC.

      {¶8}   The trial court removed appellee as executrix of the estate and appointed

Attorney Dingwell as special administrator of the estate, with will annexed, on February

15, 2019.

      {¶9}   Appellant appeals the July 10, 2018 judgment entry of the Stark County

Common Pleas Court, Probate Division, and assigns the following as error:
Stark County, Case No. 2018CA00114                                                         4


       {¶10} “I. THE PROBATE COURT BELOW ERRED IN GRANTING, VIA THE

ORDER APPROVING SETTLEMENT NOW ON APPEAL, APPELLEE’S MOTION FOR

APPROVAL OF SETTLEMENT.”

                                      Final Appealable Order

       {¶11} In this case, we must determine whether the order under review is a final

appealable order. If an order is not final and appealable, then we have no jurisdiction to

review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins. Co. of N. America,

44 Ohio St.3d 17, 540 N.E.2d 266 (1989). In the event that the parties to the appeal do

not raise this jurisdictional issue, we may raise it sua sponte. See Chef Italiano Corp. v.

Kent State University, 44 Ohio St.3d 86, 541 N.E.2d 64 (1989); Whitaker-Merrell Co. v.

Geupel Constr. Co., 29 Ohio St.2d 184, 280 N.E.2d 922 (1972).

       {¶12} Ohio law provides that appellate courts have jurisdiction to review only final

orders or judgments. See, generally, Section 3(B)(2), Article IV, Ohio Constitution; R.C.

2505.02. If an order is not final and appealable, then an appellate court has no jurisdiction

to review the matter and it must be dismissed. To be final and appealable, an order must

comply with R.C. 2505.02 and Civ.R. 54(B), if applicable.

       {¶13} R.C. 2505.02(B) defines final orders as follows:

       (B) An order is a final order that may be reviewed, affirmed, modified, or

       reversed, with or without retrial, when it is one of the following:

       (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

       (2) An order that affects a substantial right made in a special proceeding or

       upon a summary application in an action after judgment;
Stark County, Case No. 2018CA00114                                                     5


      (3) An order that vacates or sets aside a judgment or grants a new trial;

      (4) An order that grants or denies a provisional remedy and to which both

      of the following apply:

             (a) The order in effect determines the action with respect to the

             provisional remedy and prevents a judgment in the action in favor

             of the appealing party with respect to the provisional remedy.

             (b) The appealing party would not be afforded a meaningful or

             effective remedy by an appeal following final judgment as to all

             proceedings, issues, claims, and parties in the action.

      {¶14} In this case, we find the July 10, 2018 judgment entry does not determine

the action and prevent a judgment. Further, an immediate appeal is not required to

protect a substantial right. As detailed above, the trial court has not yet approved an

inventory in this case and has not approved any of the partial or amended accounts in

this case. Both the inventory and the accounts specifically deal with P&P JD, LLC.

Further, the trial court removed appellee as executrix of the estate and has appointed

Attorney Dingwell as special administrator, with will annexed, and ordered him to

investigate the circumstances of the estate and file a report with the trial court.

Accordingly, the July 10, 2018 judgment entry is not a final appealable order pursuant to

R.C. 2505.02.
Stark County, Case No. 2018CA00114                                                       6


      {¶15} Based on the foregoing analysis, this Court lacks jurisdiction to consider this

appeal. The appeal in this matter is hereby dismissed.



By Gwin, P. J.,

Wise, John, J., and

Delaney, J., concur
