[Cite as In re Estate of Abraitis, 2021-Ohio-1408.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE ESTATE OF VLADA SOFIJA STANCIKAITE ABRAITIS :
[Appeal by Catherine M. Brady] : No. 109810
:
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: April 22, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2011 EST172533
Appearances:
Catherine M. Brady, pro se.
Reminger Co., L.P.A., Adam M. Fried, and Paul R. Shugar, for appellee.
EMANUELLA D. GROVES, J.:
Appellant, Catherine M. Brady (“Brady”), appeals the probate court’s
decision denying her exception to the final account filed by Adam Fried (“Fried”),
administrator of the estate of Vlada Abraitis (“Vlada Estate”). For the reasons that
follow, we dismiss the appeal for lack of a final appealable order. Procedural History and Facts
In 2011, the probate court appointed Sarunas Abraitis (“Sarunas”)
executor of his mother’s estate. After the appointment, Brady represented Sarunas
in the administration of the estate. In 2014, the court removed Sarunas as executor
of the estate after finding that he had concealed assets of the estate. The court then
ordered Sarunas to repay $575,870.30 to his mother’s estate. The court then named
Fried as the successor executor of the Vlada Estate.
The probate court also found that Brady engaged in frivolous conduct
with respect to the administration of the estate. The court ordered Brady and
Sarunas to pay attorney fees and expenses to the Vlada Estate in the amount of
$104,485 in attorney fees and $1,214.59 in expenses. Brady appealed the decision.
In re Estate of Abraitis, 8th Dist. Cuyahoga No. 104816, 2017-Ohio-5577, appeal
not accepted, 2017-Ohio-9111, 151 Ohio St. 3d 1475, 87 N.E.3d 1272, we affirmed the
court’s decision.
On January 4, 2017, Sarunas died and in accordance with his will,
Brady was appointed executor of his estate (“Sarunas Estate”). Subsequently, Fried,
as fiduciary of the Vlada Estate, filed a claim against the Sarunas Estate. Brady
rejected the claim and Fried then motioned the court to remove Brady as executor
of the Sarunas Estate. After a hearing, the probate court granted Fried’s motion and
removed Brady as executor. Thereafter, the court appointed Egidijus
Marcinkevicius (“Marcinkevicius”) as successor fiduciary to the Sarunas Estate. In its decision removing Brady as the executor, the court found that,
during the hearing, Brady was “evasive, argumentative, and largely unaware of what
her responsibilities were” as executor of the estate; that Brady admitted to receiving
a large amount of cash from Sarunas shortly before his death, which she had failed
to account for or list as an estate asset; and that Brady testified she knew Sarunas
used a false social security number on at least one bank account belonging to the
estate.
Further, the court found that Brady had a “clear conflict in serving as
executrix of this estate due to the judgment rendered between her and decedent,
jointly and severally,” and “Brady’s rejection of Adam Fried’s claim on behalf of the
estate of [Sarunas’s] mother is further indication of conflict and falls within the
allowance under R.C. 2113.18.”
On appeal, we affirmed the court’s decision to remove Brady as the
executor of the estate. Estate of Sarunas v. Abraitis, 8th Dist. Cuyahoga No.
105657, 2018-Ohio-584, appeal not accepted, 2018-Ohio-2380, 100 N.E.3d 422.
On September 17, 2019, Marcinkevicius filed a final account for the
Sarunas Estate. One day before the hearing on the final account, Brady filed
exceptions to the final account. Brady argued, among other things, that she was an
“interested person with a direct, pecuniary interest in [Sarunas Estate] within the
meaning of R.C. 2109.33” based on the previously mentioned judgment that had
been entered jointly and severally against her and Sarunas. The court denied and
dismissed Brady’s exceptions to the final account, finding that she lacked standing to file exceptions to the account and that the issues raised in her exceptions were
irrelevant to the administration of the estate. On November 13, 2019, the court
approved the final account.
Brady appealed, and in In re Estate of Abraitis, 8th Dist. Cuyahoga No.
109299, 2020-Ohio-4222, to be discussed further below, we affirmed the court’s
decision that Brady lacked standing because she had no direct pecuniary interest in
the estate.
On May 11, 2020, Fried filed a final account for the Vlada Estate and
Brady filed exceptions. The court denied and dismissed Brady’s exceptions on the
grounds of lack of standing and irrelevancy.
On June 17, 2020, Brady filed her notice of appeal and assigned the
following errors for our review:
Assignment of Error One
The probate court erred in denying appellant’s exceptions to the final account based on standing.
Assignment of Error Two
The probate court erred in denying appellant’s exceptions to the final account based on irrelevancy.
Law and Analysis
Preliminarily, we note, when Brady filed her notice of appeal on
June 17, 2020, from the court’s order denying her exceptions to Fried’s final
account, the court had not yet approved the final account. The court did not approve the final account until August 24, 2020. Brady did not appeal from the court’s order
approving the account.
An order denying exceptions to an account or inventory does not
affect a substantial right and is therefore not a final appealable order. See generally
In re Estate of Sickmiller, 3d Dist. Paulding No. 11-13-01, 2013-Ohio-3788; In re
Estate of Perry, 12th Dist. Butler No. CA2007-03-061, 2008-Ohio-351, 47; In re
Estate of Smith, 4th Dist. Ross No. 06CA2915, 2007-Ohio-3030; In re Estate of
Allen, 11th Dist. Trumbull No. 3890, 1988 Ohio App. LEXIS 2293 (June 17, 1988).
The Ohio Constitution, Article IV, Section 3(B)(2) grants jurisdiction
to courts of appeals “to review and affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of appeals within the district.”
Consequently, this court does not have jurisdiction over nonfinal orders. Yeckley v.
Yeckley, 8th Dist. Cuyahoga No. 109275, 2020-Ohio-5432, citing CitiMortgage, Inc.
v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10, citing Gen.
Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
Nonetheless, we also note, after Brady filed her appeal in the instant
matter, Fried filed a motion to dismiss on the grounds that Brady lacked standing
because she did not have a direct, pecuniary interest in the Vlada Estate.
Subsequently, citing our most recent decision, Fried renewed his motion to dismiss
Brady’s appeal and noted that we had already rejected Brady’s present position. We
agree. Two of the three assignments of error that Brady raised in her last
appeal are identical to the two assignment of errors she now raises in this appeal.
As such, if the present appeal was a final appealable order, it would suffer the same
fate, if reviewed. In our decision regarding Brady’s last appeal, we stated:
R.C. 2109.33 governs the filing of exceptions to an account. It states in relevant part:
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[Cite as In re Estate of Abraitis, 2021-Ohio-1408.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE ESTATE OF VLADA SOFIJA STANCIKAITE ABRAITIS :
[Appeal by Catherine M. Brady] : No. 109810
:
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: April 22, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2011 EST172533
Appearances:
Catherine M. Brady, pro se.
Reminger Co., L.P.A., Adam M. Fried, and Paul R. Shugar, for appellee.
EMANUELLA D. GROVES, J.:
Appellant, Catherine M. Brady (“Brady”), appeals the probate court’s
decision denying her exception to the final account filed by Adam Fried (“Fried”),
administrator of the estate of Vlada Abraitis (“Vlada Estate”). For the reasons that
follow, we dismiss the appeal for lack of a final appealable order. Procedural History and Facts
In 2011, the probate court appointed Sarunas Abraitis (“Sarunas”)
executor of his mother’s estate. After the appointment, Brady represented Sarunas
in the administration of the estate. In 2014, the court removed Sarunas as executor
of the estate after finding that he had concealed assets of the estate. The court then
ordered Sarunas to repay $575,870.30 to his mother’s estate. The court then named
Fried as the successor executor of the Vlada Estate.
The probate court also found that Brady engaged in frivolous conduct
with respect to the administration of the estate. The court ordered Brady and
Sarunas to pay attorney fees and expenses to the Vlada Estate in the amount of
$104,485 in attorney fees and $1,214.59 in expenses. Brady appealed the decision.
In re Estate of Abraitis, 8th Dist. Cuyahoga No. 104816, 2017-Ohio-5577, appeal
not accepted, 2017-Ohio-9111, 151 Ohio St. 3d 1475, 87 N.E.3d 1272, we affirmed the
court’s decision.
On January 4, 2017, Sarunas died and in accordance with his will,
Brady was appointed executor of his estate (“Sarunas Estate”). Subsequently, Fried,
as fiduciary of the Vlada Estate, filed a claim against the Sarunas Estate. Brady
rejected the claim and Fried then motioned the court to remove Brady as executor
of the Sarunas Estate. After a hearing, the probate court granted Fried’s motion and
removed Brady as executor. Thereafter, the court appointed Egidijus
Marcinkevicius (“Marcinkevicius”) as successor fiduciary to the Sarunas Estate. In its decision removing Brady as the executor, the court found that,
during the hearing, Brady was “evasive, argumentative, and largely unaware of what
her responsibilities were” as executor of the estate; that Brady admitted to receiving
a large amount of cash from Sarunas shortly before his death, which she had failed
to account for or list as an estate asset; and that Brady testified she knew Sarunas
used a false social security number on at least one bank account belonging to the
estate.
Further, the court found that Brady had a “clear conflict in serving as
executrix of this estate due to the judgment rendered between her and decedent,
jointly and severally,” and “Brady’s rejection of Adam Fried’s claim on behalf of the
estate of [Sarunas’s] mother is further indication of conflict and falls within the
allowance under R.C. 2113.18.”
On appeal, we affirmed the court’s decision to remove Brady as the
executor of the estate. Estate of Sarunas v. Abraitis, 8th Dist. Cuyahoga No.
105657, 2018-Ohio-584, appeal not accepted, 2018-Ohio-2380, 100 N.E.3d 422.
On September 17, 2019, Marcinkevicius filed a final account for the
Sarunas Estate. One day before the hearing on the final account, Brady filed
exceptions to the final account. Brady argued, among other things, that she was an
“interested person with a direct, pecuniary interest in [Sarunas Estate] within the
meaning of R.C. 2109.33” based on the previously mentioned judgment that had
been entered jointly and severally against her and Sarunas. The court denied and
dismissed Brady’s exceptions to the final account, finding that she lacked standing to file exceptions to the account and that the issues raised in her exceptions were
irrelevant to the administration of the estate. On November 13, 2019, the court
approved the final account.
Brady appealed, and in In re Estate of Abraitis, 8th Dist. Cuyahoga No.
109299, 2020-Ohio-4222, to be discussed further below, we affirmed the court’s
decision that Brady lacked standing because she had no direct pecuniary interest in
the estate.
On May 11, 2020, Fried filed a final account for the Vlada Estate and
Brady filed exceptions. The court denied and dismissed Brady’s exceptions on the
grounds of lack of standing and irrelevancy.
On June 17, 2020, Brady filed her notice of appeal and assigned the
following errors for our review:
Assignment of Error One
The probate court erred in denying appellant’s exceptions to the final account based on standing.
Assignment of Error Two
The probate court erred in denying appellant’s exceptions to the final account based on irrelevancy.
Law and Analysis
Preliminarily, we note, when Brady filed her notice of appeal on
June 17, 2020, from the court’s order denying her exceptions to Fried’s final
account, the court had not yet approved the final account. The court did not approve the final account until August 24, 2020. Brady did not appeal from the court’s order
approving the account.
An order denying exceptions to an account or inventory does not
affect a substantial right and is therefore not a final appealable order. See generally
In re Estate of Sickmiller, 3d Dist. Paulding No. 11-13-01, 2013-Ohio-3788; In re
Estate of Perry, 12th Dist. Butler No. CA2007-03-061, 2008-Ohio-351, 47; In re
Estate of Smith, 4th Dist. Ross No. 06CA2915, 2007-Ohio-3030; In re Estate of
Allen, 11th Dist. Trumbull No. 3890, 1988 Ohio App. LEXIS 2293 (June 17, 1988).
The Ohio Constitution, Article IV, Section 3(B)(2) grants jurisdiction
to courts of appeals “to review and affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of appeals within the district.”
Consequently, this court does not have jurisdiction over nonfinal orders. Yeckley v.
Yeckley, 8th Dist. Cuyahoga No. 109275, 2020-Ohio-5432, citing CitiMortgage, Inc.
v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10, citing Gen.
Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
Nonetheless, we also note, after Brady filed her appeal in the instant
matter, Fried filed a motion to dismiss on the grounds that Brady lacked standing
because she did not have a direct, pecuniary interest in the Vlada Estate.
Subsequently, citing our most recent decision, Fried renewed his motion to dismiss
Brady’s appeal and noted that we had already rejected Brady’s present position. We
agree. Two of the three assignments of error that Brady raised in her last
appeal are identical to the two assignment of errors she now raises in this appeal.
As such, if the present appeal was a final appealable order, it would suffer the same
fate, if reviewed. In our decision regarding Brady’s last appeal, we stated:
R.C. 2109.33 governs the filing of exceptions to an account. It states in relevant part:
Any person interested in an estate or trust may file exceptions to an account or to matters pertaining to the execution of the trust. All exceptions shall be specific and written. Exceptions shall be filed and a copy of them furnished to the fiduciary by the exceptor, not less than five days prior to the hearing on the account. * * *
Thus, for Brady to have standing to file exceptions to the final account, she needed to qualify as a “person interested” in Sarunas’s estate. Courts have interpreted this statutory language to require a “direct pecuniary interest” in the account or estate. See, e.g., In re K., 9th Dist. Summit Nos. 23338 and 23339, 2007-Ohio-509, ¶ 11; In re Estate of Eyajan, 11th Dist. Ashtabula No. 2002-A-0041, 2005-Ohio-351, ¶ 12- 14; In re Estate of Boll, 126 Ohio App.3d 507, 509-510, 710 N.E.2d 1139 (4th Dist.1998); Sechler v. Mkt., 10th Dist. Franklin No. 96APF03-359, 1996 Ohio App. LEXIS 5845, 11 (Dec. 24, 1996); In re Guardianship of Dougherty, 63 Ohio App.3d 289, 291, 578 N.E.2d 832 (2d Dist.1989); In re Estate of Matusoff, 10 Ohio App.2d 113, 113-114, 226 N.E.2d 140 (2d Dist.1965).
Brady made no showing that she has any direct pecuniary interest in Sarunas’ estate. She is not a beneficiary of the estate. She is not a creditor of the estate. Indeed, although Brady claimed below that she had a direct pecuniary interest in the estate based on the July 15, 2016 judgment, she has abandoned that argument on appeal.
Abraitis, 8th Dist. Cuyahoga No. 109299, 2020-Ohio-4222, ¶ 8-10.
Here, because Brady’s present appeal is identical to her last appeal
where we found she had no direct pecuniary interest and therefore lacked standing, if reviewable, we would also find that the trial court did not err in denying Brady’s
exceptions to the final account of the Vlada Estate, due to lack of standing.
Accordingly, we dismiss the appeal.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
common pleas court, probate division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
EILEEN A. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR