[Cite as In re Estate of Miller, 2010-Ohio-6381.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN THE MATTER OF:
CASE NO. 8-10-12
THE ESTATE OF
ELIZABETH A. MILLER,
OPINION
[ROSANNA MILLER -
APPELLANT].
Appeal from Logan County Common Pleas Court
Probate Division
Trial Court No. 08 ES 260
Judgment Affirmed
Date of Decision: December 27, 2010
APPEARANCES:
Grant A. Wolfe for Appellant
Steven R. Fansler for Appellee, Clair R. Miller
James R. Miller, Appellee
Case No. 8-10-12
WILLAMOWSKI, P.J.
{¶1} Appellant Rosanna L. Miller (“Rosanna”) brings this appeal from
the judgment of the Court of Common Pleas of Logan County, Probate Division,
denying her motion to have appellee Clair R. Miller (“Clair”) removed as executor
of the estate of Elizabeth A. Miller. For the reasons set forth below, the judgment
is affirmed.
{¶2} On November 24, 2006, Elizabeth A. Miller fell down her basement
steps and died. Rosanna filed a petition to be named guardian of Clair, her father
and the husband of Elizabeth, alleging that he was incompetent. The matter was
assigned case number 07-GI-01. Numerous hearings were held on the matter and
volumes of materials were filed by Rosanna, Clair, Rosanna’s siblings James,
Ellen, Nancy, and Kathy, and other extended family members. On October 31,
2008, prior to the ruling by the trial court on her petition, Rosanna proceeded to
file a copy of Elizabeth’s last will and testament, an application to probate the will,
and an application to be named executrix of the estate. The will provided as
follows:
I hereby nominate and appoint Clair R. Miller as my Personal
Representative under this, my Last Will. If for any reason such
person fails to qualify, or is unable or unwilling to serve as my
Personal Representative, I nominate and appoint Rosanna L.
Miller as my Personal Representative * * *.
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Elizabeth A. Miller Will, 3. On February 10, 2009, Clair filed his own motion to
be named as executor of the estate and stated that he had priority in the right to
administer the estate. Clair indicated to the trial court that he was both willing
and able to serve as executor. The matter was stayed pending the outcome of the
guardianship proceedings. On September 2, 2009, the trial court entered
judgment denying the guardianship and finding that Clair was legally competent.1
The trial court subsequently named Clair as the executor of Elizabeth Miller’s
estate on October 27, 2009.2
{¶3} On January 19, 2010, Rosanna filed a motion to have Clair removed
as executor and herself named as his replacement alleging two reasons: 1) Clair
was incompetent and 2) Clair refused to pursue a wrongful death suit against
James for the death of Elizabeth. Clair filed his response to Rosanna’s motion on
February 2, 2010. On May 4, 2010, a hearing was held on the matter. The trial
court entered judgment denying Rosanna’s motion on June 16, 2010. Rosanna
appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The Probate Court erred by failing to take judicial notice of,
and/or otherwise considering the statements of expert
evaluation and/or reports of court ordered psychological
1
Rosanna appealed this judgment to this court. On May 17, 2010, this court affirmed the judgment of the
trial court in case number 8-09-20. In re Guardianship of Clair R. Miller, 187 Ohio App.3d445, 2010-
Ohio-2159, 932 N.E.2d 420. The case was appealed to the Ohio Supreme Court, but the court declined to
hear it. In re Guardianship of Clair R. Miller, 126 Ohio St.3d 1598, 2010-Ohio-2159, 935 N.E.2d 45.
2
After the guardianship was concluded, the trial judge removed himself from the estate proceedings and a
different judge was appointed on October 19, 2009.
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Case No. 8-10-12
professionals, Dr. John Tilley, Dr. David Tennenbaum, and
Mary Newkirk, Probate Court Investigator, when it decided
whether to remove the executor, [Clair], pursuant to [R.C.
2109.24].
Second Assignment of Error
The Probate Court’s decision to deny [Rosanna’s] motion to
remove executor pursuant to [R.C. 2109.24] was erroneous,
against the manifest weigh (sic) of the evidence and an abuse of
discretion.
Third Assignment of Error
The Probate Court erred by failing to take judicial notice of,
and/or otherwise considering the pleadings and other
documents filed of record in a related pending wrongful death
case when it decided whether to remove the executor, [Clair],
pursuant to [R.C. 2113.18(B)].
Fourth Assignment of Error
The Probate Court’s decision to deny [Rosanna’s] motion to
remove executor pursuant to [R.C. 2113.18(B)] was erroneous,
against the manifest weigh (sic) of the evidence and an abuse of
discretion.
Fifth Assignment of Error
The Probate court’s journal entry approving the executor’s
inventory and appraisement was erroneous, against the manifest
weigh (sic) of the evidence and an abuse of discretion.
Sixth Assignment of Error
The Probate Court’s judgment entry approving the Executor’s
certificate of termination and discharging the executor was
erroneous, against the manifest weigh (sic) of the evidence and
an abuse of discretion.
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Case No. 8-10-12
{¶4} In the first and third assignments of error, Rosanna alleges that the
trial court erred by not considering the psychological evaluations of her father that
were completed for the guardianship hearings and by not considering the
pleadings and documents filed in a wrongful death case filed by Rosanna in case
No. CV08-11-0614 when determining whether Clair was competent to serve as
executor of the estate.
A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned.
Evid.R. 201. Generally, a court may not take judicial notice of prior proceedings,
even when the same parties are involved. State ex rel. Everhart v. McIntosh, 115
Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516. “The rationale for these
holdings is that when judicial notice is taken of prior proceedings, such prior
proceedings are not part of the record as defined in App.R. 9, and whether the trial
court correctly interpreted such prior proceedings is not reviewable by the
appellate court.” Id. at ¶7 (quoting Phillips v. Rayburn (1996), 113 Ohio App.3d
374, 379, 680 N.E.2d 1279). “[T]his prohibition is especially applicable when a
court attempts to review testimony from a prior case.” Hutz v. Gray, 11th Dist.
No. 2008-T-0100, 2009-Ohio-3410, ¶36. However, the trial court may consider
its prior docket as long as it is being used to determine what was filed, not the
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truthfulness of the items filed. Id. See also State ex rel. Coles v. Granville, 116
Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968 and Indus. Risk Insurers v.
Lorenz Equip. Co. (1994), 69 Ohio St.3d 576, 635 N.E.2d 14.
{¶5} In this case, Rosanna wished to have the trial court take judicial
notice of the psychological reports of the expert witnesses in the guardianship
proceeding. However, Rosanna did not subpoena the experts to testify at this
hearing. The results of the psychological evaluations of Clair are not generally
known facts nor are they capable of accurate and ready determinations by sources
whose accuracy cannot be questioned. Thus, they do not meet the requirements
for judicial notice. Additionally, they were being offered to prove the alleged fact
that Clair lacked competency to serve as executor. Thus, the reports are
testimonial evidence presented in a different case and the trial court may not take
judicial notice of them. The first assignment of error is overruled.
{¶6} Rosanna also wanted the trial court to take judicial notice of the
complaint and documents filed in a wrongful death case she filed when she was
the applicant to be executor of the estate of Elizabeth Miller. Although the trial
court could consider that a wrongful death suit was filed by Rosanna, especially
since she testified to such, it could not consider the pleadings that were filed in
that case. Rosanna did not testify to the contents of those pleadings and
documents at the hearing in this case. The facts allegedly in those documents
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Case No. 8-10-12
were not common knowledge in the territory and were not from a source whose
accuracy is above question. In fact, the complaint that was filed contained mere
allegations made by Rosanna, not facts. The truthfulness of the allegations was
never determined. Since the requirements for judicial notice of the complaint was
not met, the trial court did not err in failing to take judicial notice of them. The
third assignment of error is overruled.
{¶7} Rosanna alleges in her second assignment of error that the trial
court’s judgment that Clair was competent to serve as executor was against the
manifest weight of the evidence. “The court may remove any fiduciary * * * for
habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct * *
*.” R.C. 2109.24. An abuse of discretion standard of review is applied to a
Probate Court’s decision to remove or not remove an executor from an estate. In
re Estate of Levy, 2d Dist. No. Civ.A. 20509, 2005-Ohio-446. In order for this
court to reverse the judgment of the trial court, Rosanna would need to show that
the trial court’s judgment was arbitrary or unreasonable. Id.
{¶8} In support of her assignment of error, Rosanna points to evidence
from the hearing. The trial court could not consider the psychological reports, as
discussed above, and did not err by failing to do so. The trial court did consider
all of the additional evidence to which Rosanna cites.
In reviewing the evidence, the court finds that Attorney William
Goslee testified that he had represented Clair and Ann Miller
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Case No. 8-10-12
several years prior to the death of Ann in a couple of lawsuits.
He testified that the lawsuits were managed by Ann Miller, and
that Clair did not seem to pay attention to the matters. He also
testified that in conversations, Clair was not always “there”.
This evidence is both stale, as Goslee has not had contact with
Clair Miller in several years, and even if current, did not
indicate that Miller was incompetent as defined herein.
Clair Miller testified. He admitted that he has vision
impairment and that he can’t read any written materials. He
testified at length as to his present condition and his assets and
his awareness of the current proceedings. He admitted that he
had little understanding of the legal process, but explained
that’s why he hired an attorney. While his answers were
sometimes a little fuzzy, the court determines that the answers
were appropriate and did not indicate that he was incapable of
taking proper care of himself or his property.
The movant, Rosanna Miller testified that she has observed her
father “from time to time,” and that she believes that her father
is unaware of what is going on around him. She also admitted
in testimony that she had turned her father into the BMV,
causing his drivers’ license revocation. And she admitted that
she had filed a complaint against him for having junk vehicles.
She acknowledged that she had entered her father’s home and
removed at least $173,000 from his safe and that she had put her
name on his bank accounts in December 2006. She
acknowledged that she contested Clair’s appointment as
executor of the estate and filed an application for herself to be
appointed. It is clear that there is animosity between Clair and
Rosanna, and because of this, the court finds her testimony as to
his mental health to be self-serving and not credible.
Furthermore, it is contrary to the observations of the court
during the testimony of Clair Miller.
For these reasons, the court finds that the movant, Rosanna
Miller has failed to establish that Clair Miller is incompetent,
and the motion to remove will not be granted on this basis.
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Case No. 8-10-12
June 16, 2010 Entry, 4-5. The trial court considered all of the evidence before it
and set forth its reasons for its ruling. Since the evidence supports those reasons,
the judgment is not against the manifest weight of the evidence and the second
assignment of error is overruled.
{¶9} The fourth assignment of error claims that the trial court erred by
not removing Clair as executor pursuant to R.C. 2113.18(B) when he refused to
file a wrongful death suit for the death of Elizabeth Miller.
(B) The probate court may remove any executor * * * upon
motion of the * * * children * * * of the deceased person whose
estate is administered by the executor * * * if both of the
following apply:
(1) The executor * * * refuses to bring an action for wrongful
death in the name of the deceased person;
(2) The court determines that a prima-facie case for a
wrongful death action can be made from the information
available to the executor * * *.
R.C. 2113.18(B). A prima facie case is “a case sufficient on its face, being
supported by at least the requisite minimum of evidence, and being free from
palpable defects.” Barrons Law Dictionary (3 Ed. 1991), 370. This generally
means that enough evidence has been presented to allow a reasonable juror to
reach a conclusion favorable to the plaintiff. Id.
{¶10} Rosanna argues that since she filed a case while her application to
be executor of Elizabeth Miller’s estate was pending, Clair was aware of
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Case No. 8-10-12
sufficient information to be required to file a wrongful death action. However, a
review of the record in this case indicates no evidence to support her claim that a
prima-facie case has been made. The sole evidence she introduced, besides her
steadfast belief that her mother’s death was not accidental, was the testimony of
Detective Sebring of the Bellefontaine Police Department. Detective Sebring
testified that he received a complaint from Rosanna about her suspicions
concerning her mother’s death. He investigated but made no determination
concerning probable cause. He forwarded the information to the county
prosecutor for the determination as to whether charges should be filed. As of the
date of the hearing, the investigation was still open, but no charges were filed.
None of the evidence presented indicates that there is anything more than
suspicions. This does not reach the level of a prima facie case. Thus, the trial
court did not err in denying the motion to remove Clair as executor for his failure
to file a wrongful death claim. The fourth assignment of error is overruled.
{¶11} In the fifth assignment of error, Rosanna alleges that the trial court
erred by approving the inventory and appraisement filed by Clair as executor.
Initially, this court notes that Rosanna did not file an objection to the inventory
when it was filed and no hearing on objections was held. Thus, the trial court has
not had an opportunity to review these objections.
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Case No. 8-10-12
{¶12} Rosanna first argues that the trial court erred because Clair failed to
serve his children with notice of the filing of the inventory and the hearing date.
The only party entitled to notice of the taking of the inventory is the surviving
spouse. R.C. 2115.04. However, R.C. 2115.16 states that the executor “may
serve notice of the hearing [on the inventory] * * * upon any person who is
interested in the estate.” This court has previously held that this statute makes the
duty of the executor to serve notice on the hearing of the inventory discretionary.
See Estate of Heffner v. Cornwall, 3d Dist. No. 10-03-06, 2003-Ohio-6318, ¶6. A
“person interested” has been defined as one who has a direct, pecuniary interest in
the estate. See Bazo v. Siegel (1979), 58 Ohio St.2d 353, 390 N.E.2d 807 and
Chilcote v. Hoffman (1918), 97 Ohio St. 98, 119 N.E. 364. The will provides that
all of the estate was to be distributed to the trustee of the Miller Living Trust.3
Since Clair was the trustee of the trust, he, in his capacity as trustee, inherited all
of the estate. Rosanna, thus, had no direct pecuniary interest in the estate and was
not a person interested in the estate who might be entitled to notice if the executor
chooses to give it.
{¶13} Rosanna also argues that the trial court erred by accepting the
inventory when there were additional assets that were not included. During the
hearing, Rosanna testified that there were additional bonds, insurance policies and
3
In fact, the will specifically states that Elizabeth leaves “nothing to any other relative, friend, or person, it
being my intention that my entire estate shall pass as a part of the above-mentioned Trust.” Will, 3.
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Case No. 8-10-12
vehicles that belonged to Elizabeth that were not included. However, she
provided no evidence that these assets were probate assets. She did not testify
that any of the insurance policies were payable to the estate rather than a
beneficiary, which would make them non-probate assets. The evidence she
provided on the vehicles indicate that one of them was owned by the trust, and is
thus not a probate asset, and the other was owned by a “private owner.” There
was also no evidence presented that the bonds were probate assets. In contrast,
Clair claimed that all personal assets had already been transferred to the trust, the
real estate was joint with rights of survivorship, one vehicle in question was
transferred to Clair as the surviving spouse pursuant to statute, and the other
lacked any value. Based upon the lack of evidence showing that any probate
assets were excluded from the inventory, the trial court did not err in accepting
the inventory. Even if the trial court had erred, Clair, as trustee, was the sole
beneficiary. Rosanna has not provided any evidence that she would suffer any
prejudice from any error. Thus any error is harmless as it applies to Rosanna.
The fifth assignment of error is overruled.
{¶14} Finally, Rosanna alleges that the trial court erred by approving the
certificate of termination and discharging Clair as executor. Rosanna bases this
assignment of error solely upon the claimed improper inventory and the trial
court’s alleged error in not removing Clair as executor. This court has already
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addressed these errors and found no prejudicial errors. Thus, the sixth assignment
of error is also overruled.
{¶15} The judgment of the Court of Common Pleas of Logan County,
Probate Division is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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