[Cite as In re Estate of Holmes, 2019-Ohio-1584.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE ESTATE OF: JUDGES:
Hon. William B. Hoffman, P.J
PATTY A. HOLMES Hon. Patricia A. Delaney, J.
(Deceased) Hon. Craig R. Baldwin, J.
Case No. 18CA0006
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Morrow County Court of
Common Pleas, Probate Division, Case
No. 2016 EX 18405
JUDGMENT: Affirmed in part, and Reversed and
Remanded in part
DATE OF JUDGMENT ENTRY: April 22, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MINDY K. YOCUM JOHN S. DILTS
7652 Sawmill Road, Ste. 263 28 South Park Street
Dublin, Ohio 43016 Mansfield, Ohio 44902
Morrow County, Case No. 18CA0006 2
Hoffman, P.J.
{¶1} Appellant Jeanette Holmes appeals the May 23, 2018 Journal Entry entered
by the Morrow County Court of Common Pleas, Probate Division, which ordered her to
pay Appellee Donald Holmes $93,349.00.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and Appellee are the adult children of Patty A. Holmes
("Decedent"). Decedent died on April 20, 2008. Decedent's Last Will and Testament
provided all of her tangible personal property be equally divided between Appellant and
Appellee. Pursuant to the Will, all residue of the Estate was to be divided equally between
Decedent's two children.
{¶3} On April 4, 2016, Appellant filed an Application to Probate Will and an
Application for Authority to Administer Estate, requesting she be appointed as fiduciary.
Although named as a co-fiduciary, Appellee initially declined to serve due to health issues.
On June 17, 2016, the trial court appointed Appellant as fiduciary. In a correspondence
dated July 10, 2016, and filed July 14, 2016, Appellee requested the trial court appoint
him as co-executor, explaining he was well enough to fulfill the role.
{¶4} The trial court conducted a hearing on August 31, 2016.1 Appellant advised
the trial court there were only four tangible or intangible Estate assets, consisting of
certain asbestos claims which could have been asserted prior to Decedent's death or
should have be asserted shortly after her passing. Appellee indicated there were at least
three other possible Estate assets, to wit: a mobile home located at 7394 St. Rt. 97, Lot
108, Mansfield, Ohio, which has been occupied by Appellant since Decedent's death; a
1The facts set forth in the instant paragraph are taken from the trial court’s May 23, 2018 Journal Entry,
which sets forth a Case History. See p.4 of 5/23/18 Journal Entry.
Morrow County, Case No. 18CA0006 3
2003 Pontiac Vibe, which has been driven exclusively by Appellant since Decedent's
death; and possible bank accounts which Appellant may have transferred to herself
following Decedent's death. Appellee also informed the trial court he had been compelled
to seek a judgment against Appellant in the Morrow County Municipal Court for her portion
of Decedent's funeral expenses, which Appellee had paid in full.
{¶5} An Amended Inventory and Accounting was approved on January 25, 2017.
The Amended Inventory included a date of death valuation of $10,500.00 for the 2003
Pontiac Vibe and a date of death valuation of $4,000.00 for the mobile home. The case
moved slowly as issues were resolved and others came to the forefront. Appellant
asserted she should receive an offset or claim for insurance premiums, real estate taxes,
utility bills, lot rent, and other costs she incurred. Appellant had exclusive and sole use
of Decedent's property throughout the course of the proceedings. Appellee filed a claim
for reimbursement from the Estate of $775.00 as monthly rent on the mobile home and
$150 as weekly car rental, as well as one half of the funeral and cemetery expenses
totaling $3,098.00, which he paid in full.
{¶6} The trial court conducted a hearing on April 16, 2018, on the two remaining
issues, to wit: the fair market rental value of the mobile home and the fair market value of
the Pontiac Vibe. Via Journal Entry filed May 23, 2018, the trial court ordered the value
of the mobile home and the automobile as well as the remaining balance of the Estate
assets in the amount of $11,350.30 be divided equally. However, the trial court ordered
the amount due to Appellant be offset by $91,800.00. The trial court arrived at this figure
by determining a fair rental value of $18,360.00/year for the Decedent's mobile home, its
contents, and the automobile ($10,560.00 for the mobile home and $7,800.00 for the
Morrow County, Case No. 18CA0006 4
vehicle) multiplied by 10, the number of years Appellant had control and use of the
property, then divided by 2 for the two Estate beneficiaries. The trial court ordered
Appellant to pay Appellee $1,549.00, one half of the funeral and cemetery expenses.
{¶7} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. THE TRIAL COURT'S DETERMINATION THAT $500.00 IS THE
APPROPRIATE BASE MONTHLY RENTAL VALUE FOR THE MOBILE
HOME WAS NOT BASED ON SUBSTANTIAL EVIDENCE.
II. THE TRIAL COURT'S DETERMINATION THAT $150.00 IT HE
[SIC] APPROPRIATE BASE WEEKLY RENTAL VALUE FOR THE
PONTIAC VIBE IS NOT BASED ON SUBSTANTIAL EVIDENCE.
III. THE TRIAL COURT ERRONEOUSLY DETERMINED, DURING
THE FINAL HEARING, THAT APPLIANCES SHOULD ALSO BE AN ISSUE
FOR RENTAL VALUE WITHOUT NOTICE TO THE PARTIES. IN
FURTHER ERROR, THE BASE MONTHLY RENTAL VALUE
CALCULATED FOR THESE APPLIANCES IS NOT BASED ON
SUBSTANTIAL EVIDENCE.
IV. THE TRIAL COURT ERRONEOUSLY DETERMINED THAT MS.
HOLMES SHALL BE RESPONSIBLE FOR ONE-HALF OF THE
DECEDENT'S FUNERAL EXPENSES; HOWEVER, THIS MATTER HAS
ALREADY BEEN LITIGATED THROUGH SMALL CLAIMS WITH A
JUDGMENT TO MR. HOLMES. THUS, THE TRIAL COURT ERRED IN
Morrow County, Case No. 18CA0006 5
MAKING THAT DEBT A MATTER FOR THIS COURT.
I, II
{¶8} We choose to address Appellant’s first and second assignments of error
together. In her first assignment of error, Appellant contends the trial court’s
determination $500.00 was an appropriate base monthly rental value for the mobile home
was not based upon substantial evidence. In her second assignment of error, Appellant
submits the trial court’s determination $150.00 was an appropriate base weekly rental
value for the Pontiac Vibe also was not based upon substantial evidence. As best we
can determine, Appellant appears to argue the trial court's determinations as to the rental
values are against the manifest weight of the evidence.
{¶9} We note Appellant failed to file a transcript of the April 16, 2018 hearings in
this Appeal as required by App.R. 9(B). When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has nothing
to pass upon and thus, as to those assigned errors, the court has no choice but to
presume the validity of the lower court's proceedings, and affirm. Knapp v. Edwards Lab.,
61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Because Appellant has failed to provide this
Court with a transcript, we must presume the regularity of the proceedings below and
affirm. It is the duty of an appellant to ensure the record, or whatever portions thereof are
necessary for the determination of the appeal, are filed with the court in which he seeks
review. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 56 (1988).
{¶10} Appellant’s first and second assignments of error are overruled.
Morrow County, Case No. 18CA0006 6
III
{¶11} In her third assignment of error, Appellant asserts the trial court erred in
determining, during the final hearing and without notice to the parties, the appliances
should be included in calculating the rental value, and the value placed assigned to the
appliances was not based upon substantial evidence.
{¶12} As there is no transcript of the April 16, 2018 hearing, this Court has no way
of determining whether Appellant objected to the admission of testimony and/or evidence
regarding the value of the appliances. Without evidence she objected, Appellant has
failed to properly preserve the issue she now assigns as error on appeal. See Hudson v.
P.I.E. Mut. Ins. Co., 10th Dist. No. 10AP–480, 2011–Ohio–908, ¶ 12, quoting Gentile v.
Ristas, 160 Ohio App.3d 765, 2005–Ohio–2197, ¶ 74 (10th Dist.) We must presume
regularity of the trial court's proceedings and conclude the testimony and/or evidence
supported the trial court’s findings with respect to the value of the appliances.
{¶13} Appellant’s third assignment of error is overruled.
IV
{¶14} In her final assignment of error, Appellant maintains the trial court erred in
determining she was responsible for one-half of Decedent’s funeral expenses as the
matter had already been litigated in Morrow County Municipal Court, which resulted in a
judgment in favor of Appellee, arguing the doctrine of res judicata barred further action
by the trial court.
{¶15} As set forth in ¶4, supra, the trial court noted, in its May 23, 2018 Journal
Entry, Appellee sought a judgment in Morrow County Municipal Court against Appellant
for her half of Decedent’s funeral expenses. The trial court found the funeral and
Morrow County, Case No. 18CA0006 7
cemetery expenses totaled $3,098.00, which Appellee had paid in full. The trial court
ordered Appellant to pay Appellee $1,549.00, as reimbursement for her share of said
expenses.
{¶16} Appellant claims the Morrow County Municipal Court granted judgment in
favor of Appellee and against her in the amount of $880.59, specifically for the funeral
expenses. In support of her position, Appellant attached Exhibit G to her Brief to this
Court. Exhibit G is a copy of an October 13, 2009 Decision issued by the magistrate of
the Morrow County Municipal Court, which awards judgment in favor of Appellee and
against Appellant in the amount of $880.59.
{¶17} We are unable to ascertain from the magistrate’s decision the nature of the
underlying claim(s) upon which judgment was granted to Appellee. As discussed, supra
Appellant failed to file the transcript which could provide a context for this decision;
therefore, we cannot determine whether the $880.59 awarded to Appellee in the October
13, 2009 Decision was for reimbursement of the funeral expenses. Although we find the
trial court did not err in considering this claim, we reverse the judgment of the trial court
as to the amount owed by Appellant to Appellee for reimbursement of Decedent’s funeral
expenses. The trial court is ordered to determine whether the October 13, 2009 Decision
issued by the Muskingum County Municipal Court is a judgment for the funeral expenses.
If the trail court so determines, the trial court should offset that amount against its order
Appellant pay Appellee $1,549.00 as reimbursement for her share of said expenses.
Morrow County, Case No. 18CA0006 8
{¶18} Appellant’s fourth assignment of error is sustained.
{¶19} The judgment of the Morrow County Court of Common Pleas, Probate
Division, is affirmed, in part, and reversed, in part. The matter is remanded to the trial
court to determine the amount owed by Appellant to Appellee for reimbursement of
Decedent’s funeral expenses.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur