In re Estate of Demsey

2016 Ohio 8152

• Court: Ohio Court of Appeals
• Decided: December 15, 2016
• Docket: 104398
• Status: Published

Opinion

[Cite as In re Estate of Demsey, 2016-Ohio-8152.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104398

IN RE: ESTATE OF LOUISE J. DEMSEY

[Appeal by Kenneth J. Demsey]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2010 EST 0160457

BEFORE: S. Gallagher, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: December 15, 2016 FOR APPELLANT

Kenneth J. Demsey, pro se P.O. Box 29195 Parma, Ohio 44129

ATTORNEY FOR APPELLEE

S. Robert E. Lazzaro Costanzo & Lazzaro 13317 Madison Avenue Lakewood, Ohio 44107

Also listed:

Kevin Demsey, pro se 21440 East 104th Street Broken Arrow, Oklahoma 74014

Nancy Demsey Daniels, pro se 4847 Dameuly Drive Hilliard, Ohio 43026

Sharlene Haberek, pro se 155 Cobblestone Lane Springboro, Ohio 45066

Jean McLeod, pro se 306 Mariana Avenue Midland, Texas 79701 SEAN C. GALLAGHER, J.:

{¶1} This appeal, involving a probated estate, is a companion to 8th Dist.

Cuyahoga No. 104400, filed the same day. Both appeals were filed on behalf of Kenneth

J. Demsey, and the notices of appeal attached separate trial court orders issued on April 4,

2016. The notice of appeal in 8th Dist. Cuyahoga No. 104400 expressly indicated that

Demsey was appealing the imposition of sanctions imposed upon him and his counsel

following an evidentiary hearing, while the notice of appeal in this appeal expressly

appealed the overruling of objections to a magistrate’s order dated March 22, 2016, heard

upon the briefing. Demsey’s attorney withdrew from this appeal, and Demsey is

proceeding pro se. The pro se brief in this case, however, is a photocopied version of the

appellate brief filed by counsel in 8th Dist. Cuyahoga No. 104400.

{¶2} The orders appealed in the companion cases are not related and do not

involve overlapping legal issues. In the objections order, the subject matter of this

appeal, the trial court overruled objections to a magistrate’s decision and approved an

application for attorney fees filed by the estate’s counsel, covering over 60 hours of work

and some miscellaneous expenses for a total of $9,765.00 in fees and $181.95 in

expenses. The trial court also allocated the beneficiaries’ share of the fees and expenses

that were all covered by the estate. In the sanctions order, as is pertinent to that appeal, the trial court imposed over $2,000 in attorney fees awarded against Demsey and his

attorney jointly and severally based on a motion for sanctions under Civ.R. 11.

{¶3} The duplicated brief addresses the Civ.R. 11 sanctions, requested in response

to Demsey’s belated objections to the accounting of the estate’s assets. The trial court

held a hearing on the sanctions matter, in which several evidentiary objections were

advanced. The focus of the issues raised in the brief are those evidentiary objections and

the grounds to file the belated objections under Civ.R. 11. The brief does not address

any approved fees charged to the estate, the subject matter of this appeal.

{¶4} Accordingly, the photocopied brief fails to comply with the requirements of

App.R. 16. An appellant’s brief must, among other requirements, contain the following

as relevant to the order and proceedings appealed: (1)a statement of the assignments of

error presented for review, with reference to the place in the record where each error is

reflected; (2) a statement of the issues presented for review, with references to the

assignments of error to which each issue relates; (3) a statement of the case briefly

describing the nature of the case, the course of proceedings, and the disposition in the

court below; (4) a statement of facts relevant to the assignments of error presented for

review, with appropriate references to the record; (5) an argument containing the

contentions of the appellant with respect to each assignment of error presented for review

and the reasons in support of the contentions, with citations to the authorities, statutes,

and parts of the record on which appellant relies; and (6) a conclusion briefly stating the

precise relief sought. In light of the fact that the substantive portion of the photocopied brief addresses an order and a trial court proceeding not relevant to the subject matter of

the order appealed in this case, we have no arguments upon which to review the appeal

for any error. App.R. 16(A)(7).

{¶5} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court 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.

SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR