         [Cite as Bender v. Haynes, 2011-Ohio-6769.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



ERIC D. BENDER, Administrator of :                     APPEAL NO. C-100802
the Estate of Al-Shakiel Ford,                         TRIAL NO. 2009004327
Deceased,                        :
                                                          O P I N I O N.
        Plaintiff-Appellant,                     :

  vs.                                            :

YVONNE HAYNES,                                   :

     Defendant-Appellee.                         :




Civil Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 30, 2011


Eric D. Bender, for Plaintiff-Appellant,

Yvonne Haynes, pro se.



Please note: This case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS



J. H OWARD S UNDERMANN , Presiding Judge.

       {¶1}    Plaintiff-appellant Eric D. Bender, Administrator of the Estate of Al-

Shakiel Ford, deceased, appeals from the trial court’s entry sustaining defendant-

appellee Yvonne Haynes’s objection to a magistrate’s decision and dismissing the

estate’s amended complaint for concealed assets pursuant to R.C. 2109.50. Haynes

has not filed a brief.

       {¶2}    Bender raises a single assignment of error in which he argues that the

trial court erred in dismissing the estate’s amended complaint for concealed assets

for lack of personal jurisdiction. Because Haynes personally appeared before the

magistrate, answered the allegations in the complaint, and subsequently appeared at

a trial before a magistrate, where she questioned witnesses and defended against the

merits of the estate’s claim, we conclude that Haynes voluntarily submitted to the

probate court’s jurisdiction and, thus, waived any challenge to the court’s personal

jurisdiction. We, therefore, sustain the administrator’s sole assignment of error,

reverse the trial court’s judgment, and remand this case for further proceedings

consistent with this opinion and the law.


                             I.   The Estate’s Concealed-Assets Claim

       {¶3}    In October 2009, Helen Francois Bean, the initial administrator of the

estate of Al-Shakiel Ford, filed a complaint in the Hamilton County Probate Court

against Haynes, who was the decedent’s mother, and three other individuals: Tiffany

Wilson, Clarence Royce, and Tony White. The complaint, brought pursuant to R.C.

2109.50, alleged that the defendants had concealed assets from Ford’s estate. Bean

filed an amended complaint in November 2009, but she died before the probate




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court could hold a hearing on the matter. As a result, the probate court appointed

Bender as the administrator of Ford’s estate.

       {¶4}   The complaint and amended complaint alleged that Ford, a known

drug dealer, had established a one-person limited liability company, IMB LLC, to

assist him in his business pursuits, legal or otherwise. Ford had died in May 2009 at

University Hospital, a few weeks after a motorcycle accident. The complaint charged

that, on the day Ford died, Haynes, who was an authorized signer on three IMB bank

accounts, had removed nearly $70,000 from the three accounts and had refused to

turn this money over to Ford’s estate. The complaint further alleged that Haynes had

taken possession of vehicles and personal property belonging to Ford and had

refused to turn them over to his estate.

       {¶5}   A Hamilton County Deputy Sheriff attempted to personally serve

Haynes on three separate occasions with a copy of a citation, the complaint, and the

amended complaint, but all three attempts were unsuccessful.        A service return

dated November 4, 2009, stated that a deputy sheriff had been unable to personally

serve Haynes. It contained the following notation under officer’s notes: “She called

around 3:45 p.m., not enough time to go back out and serve her, however, she was

given the court date, time, and location and phone number to probate court. She

stated she would call and that she may not be able to make it because her husband

has to go to the doctor to get chemo treatments.”   A service return dated November

19, 2009, stated that a deputy sheriff had attempted to personally serve Haynes with

a copy of the amended complaint, but that he had been unable to do so.

       {¶6}    Despite this lack of service, Haynes, nonetheless, appeared pro se

before a magistrate on November 24, 2009. The magistrate read the allegations in

the amended complaint to Haynes and interrogated her. Haynes admitted some of



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the allegations and denied others.        The magistrate subsequently journalized a

scheduling order, which provided, in pertinent part, as follows: “Yvonne Haynes

admits that she is in possession of the motorcycle, Decedent’s furniture, and personal

items that had been delivered to her by Mr. Royce. She admits that there was a bank

account at National City Bank in the name of IMB, LLC. She admits that she did try

to access that account upon her son’s death, but was informed by the financial

institution that she was not entitled to the funds as her name was not on the account.

Mrs. Haynes admits that she did obtain other funds from National City Bank upon

her son’s death, but claims that her name was on the account(s). She does not know

if she was listed on the account(s) as a beneficiary or a joint owner. She does not

know if the decedent was listed as an owner on the accounts which were delivered to

her. She denies concealing the Range Rover. She said she purchased that vehicle

and it is titled in her name.” The magistrate then set forth, pursuant to Civ.R. 53 and

Civ.R. 16, discovery deadlines and a trial date.

       {¶7}    Haynes subsequently appeared pro se at all the scheduling conferences

and at a two-day trial of the matter, where she examined witnesses, testifed, and gave

a closing statement. A magistrate found Haynes and Wilson guilty of concealing

assets, and rendered judgment against both women.1 Wilson did not contest the

magistrate’s decision.

       {¶8}    Haynes, however, hired legal counsel, and filed three objections to the

magistrate’s decision: (1) the magistrate lacked personal jurisdiction over her when

it entered the order finding she had concealed assets from Ford’s estate, because she

had never been served with a copy of the complaint or amended complaint; (2) she



1 During the pendency of the proceedings, the estate dismissed its claims against Royce and
White.


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was authorized by the bank to withdraw funds from the IMB account; and (3) the

estate was not the real party in interest because the money in the IMB account

belonged to IMB, LLC.

       {¶9}   Following a hearing, the probate court sustained Haynes’s first

objection and dismissed the estate’s amended complaint for concealed assets based

upon its failure to perfect service of process on Haynes. The administrator of Ford’s

estate now appeals.

                  II. Personal Jurisdiction in a Concealed-Assets Case

       {¶10} In a single assignment of error, the administrator argues that the trial

court “erred in overruling the magistrate’s decision and dismissing its amended

complaint for concealed assets against [Haynes] based on the failure of service of

process.” We agree.

       {¶11} A proceeding for the discovery of concealed assets of an estate, brought

under R.C. 2109.50, “is a special [statutory] proceeding of a summary, inquisitorial

character whose purpose is to facilitate the administration of estates by summarily

retrieving assets that rightfully belong there.” State ex rel. Goldberg v. Maloney, 111

Ohio St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856, ¶23. It is “not a proceeding

between two or more parties as is the ordinary civil action with pleadings in the form

of a petition, answer, and reply; it is rather an inquest or inquiry into the conduct of

the ‘suspected person.’ ” In re Estate of Fife (1956), 164 Ohio St. 449, 454, 132

N.E.2d 185.

       {¶12} R.C. 2109.50 expressly provides that upon the filing of a complaint, the

probate court “shall by citation, attachment, or warrant, or if circumstances require

it, by warrant or attachment in the first instance, compel the person or persons

[suspected of having concealed or embezzled assets] to appear before it to be



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examined on oath touching the subject matter of the complaint * * *.”2 See Maloney

at 163; see also, Fife at paragraph three of the syllabus.

        {¶13} Consequently, no pleading other than a complaint is necessary to bring

the issue to the court. See Fife at 454; Cutler v. Henke (Sept. 30, 1981), 1st Dist. Nos.

C-800377, C-800476, and C-800477. Once a complaint is filed, the statute then

requires the probate court to procure the presence of anyone against whom the

complaint of concealment is brought and then to proceed to determine whether the

person is guilty. See R.C. 2109.50 and 2109.52. Because a finding of “guilty” or “not

guilty,” along with the imposition of a penalty upon a finding of guilty, is required

under R.C. 2109.52, the proceeding has been termed “quasi criminal in nature.” Fife

at paragraph one of the syllabus; Cutler, supra.

        {¶14} In this case, the probate court dismissed the estate’s amended

complaint against Haynes for lack of personal jurisdiction, because she had not been

served with a copy of the complaint or amended complaint in accordance with the

Rules of Civil Procedure. The estate argues that because proceedings under R.C.

2109.50 are quasi criminal, the Rules of Civil Procedure do not apply. But we need

not reach this issue to decide whether to sustain the estate’s assignment of error.

        {¶15} Regardless of whether the Rules of Civil Procedure or the Rules of

Criminal Procedure apply to proceedings under R.C. 2109.50, Haynes waived any

argument that the probate court lacked personal jurisdiction over her by voluntarily

appearing, answering the allegations of the amended complaint, and then

participating in a trial of the proceedings. See Maryhew v. Yova (1984), 11 Ohio

St.3d 154, 156, 464 N.E.2d 538 (holding that in the absence of proper service of


2 R.C. 2109.50 was recently amended by 2011 SB No. 124. The amendment, which deletes the
requirement of service by warrant or attachment, applies to the estates of decedents who die on or
after October 11, 2011.


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process, personal jurisdiction may still be obtained through the voluntary

appearance of a party); see, also, State v. Holbert (1974), 38 Ohio St.2d 113, 117, 311

N.E.2d 22 (holding that a defendant’s attack on the personal jurisdiction of the trial

court was “without merit” where he voluntarily appeared to enter his plea of not

guilty and raised no objection at that time).

       {¶16} Here, Haynes personally appeared before a magistrate in the probate

court. The magistrate read the allegations of the amended complaint to Haynes and

interrogated her as required by the plain language of R.C. 2109.50. Furthermore,

Haynes appeared at all proceedings in the matter, including the trial, where she

argued the merits of her position before the magistrate. At no point during these

proceedings did she argue that the probate court lacked personal jurisdiction over

her. Because Haynes had both notice of the allegations in the amended complaint

against her and the opportunity to answer those allegations and to defend against

them on the merits, she voluntary waived any challenge to the court’s personal

jurisdiction over her. As a result, we sustain the administrator’s sole assignment of

error, reverse the trial court’s decision, and remand this cause for further

proceedings consistent with this opinion and the law.

                                                Judgment reversed and cause remanded.

HENDON and FISCHER, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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