[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