[Cite as In re Estate of Rush, 2014-Ohio-3293.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN THE MATTER OF THE ESTATE OF: :
BILLY JASON RUSH, Deceased. : CASE NO. CA2013-10-103
: OPINION 7/28/2014 :
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2012 1291
John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, Ronald J. McHenry, 140 North Main Street, Suite B, Springboro, Ohio 45066, for appellant, Tracie L. Rush
Gray & Duning, J. William Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for appellee, Sheila Rush
RINGLAND, P.J.
{¶ 1} Tracie Rush (Wife), appeals the decision of the Warren County Probate Court
in a case involving a will contest action, the administration of an estate, and an action to 1 probate a holographic will.
{¶ 2} Billy Jason Rush (Decedent) married Wife in 1995. Decedent had no children.
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the regular calendar for purposes of issuing this opinion. Warren CA2013-10-103
On March 23, 2003 Decedent executed a will (2003 will), naming Wife as the executor and
sole beneficiary of his estate.
{¶ 3} In June 2011, Decedent entered an alcohol rehabilitation facility located in
Phoenix, Arizona. On August 19, 2011, Wife filed a complaint for divorce in the Montgomery
County Court of Common Pleas, Domestic Relations Division. Following the completion of
his rehabilitation program, Decedent decided to extend his stay in Arizona. Wife and
Decedent's mother, Sheila Rush (Mother), dispute whether Decedent intended to remain in
Arizona and establish Arizona as his domicile.
{¶ 4} On June 1, 2012, Decedent allegedly created a holographic will that, inter alia,
expressly removed Wife from his will and named Mother as a beneficiary to Decedent's
estate.
{¶ 5} On June 6, 2012, Decedent committed suicide at Mother's house in Springboro,
Ohio located in Warren County.
{¶ 6} On June 13, 2012, Wife filed an application to probate Decedent's 2003 will and
authority to administer Decedent's estate. In addition, Wife withdrew her complaint for
divorce in Montgomery County.
{¶ 7} On June 15, 2012, Mother filed a motion to contest the jurisdiction of the
probate court, arguing that Decedent was domiciled in Maricopa County, Arizona. In support,
Mother attached probate documents and a petition for adjudication of intestacy that she filed
with the Superior Court of Arizona, Maricopa County on June 14, 2012.
{¶ 8} On September 7, 2012, Mother filed a complaint to contest the 2003 will
submitted by Wife. In her complaint, Mother alleged the existence of a holographic will and
requested the holographic will be admitted to probate for administration in Ohio.
{¶ 9} On November 1, 2012, the probate court held an evidentiary hearing. At the
hearing, the parties presented conflicting evidence regarding Decedent's domicile. Mother
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introduced testimony that Decedent had rented an apartment in Arizona, taken employment
in Arizona, and held himself out as a resident of Arizona. In contrast, Wife introduced
evidence that Decedent only intended on staying in Arizona throughout the divorce
proceedings. For example, Wife argued that Decedent had not renewed his apartment lease
and had also maintained his employment in Ohio. Furthermore, Wife also argued that Ohio
was the proper location to administer Decedent's estate based on the presence of various
assets and items of personal property located within the state.
{¶ 10} Following the hearing, the probate court journalized an entry concluding that
Mother did not have standing to contest jurisdiction. In so deciding, the probate court found
that Wife, as the surviving spouse, was entitled to inherit from the Decedent in the event of
his intestacy and therefore Mother is not a next of kin entitled to inherit from Decedent's
death. Furthermore, the probate court also found:
[Mother] offered no evidence of the holographic Will or to support its validity in this proceeding. Her offer, so far, of such evidence is contained in a will contest filed herein as a separate pending proceeding, yet unheard and unresolved. There is no such evidence in this proceeding. To proceed here on this basis [Mother] must establish "…at least a prima facie case as to the validity…of the Arizona Will. See Kennedy, Exr. v. Walcutt, 118 Ohio State 442, 446 (1928) and Sheridan v. Harbison (1995), 101 Ohio App.3d 206 HN#2 (2nd District). She has not done so either in this proceeding or the will contest proceeding.
Therefore, the probate court concluded that Mother did not have standing to contest
jurisdiction, dismissed Mother's motion to contest jurisdiction, and lifted the stay of
proceedings.
{¶ 11} On April 9, 2013, Mother filed an application to probate Decedent's holographic
will. Shortly thereafter, the probate court entered an interlocutory order denying probate of
the holographic will allegedly created by Decedent prior to his death.
{¶ 12} On May, 2, 2013, Mother filed a notice of appeal regarding the probate court's
April 2, 2013 order, which found that Mother did not have standing to contest the will. Mother -3- Warren CA2013-10-103
voluntarily dismissed her appeal on September 27, 2013. In the Matter of The Estate of Billy
Jason Rush, 12th Dist. Warren No. CA2013-05-043 (Oct. 10, 2013) (Judgment Entry of
Dismissal).
{¶ 13} In the meantime, Mother also filed a Civ.R. 60(B) motion to reconsider the April
2, 2013 order, in which the trial court found that Mother did not have standing to contest the
court's jurisdiction. Subsequently, and by agreement of the parties, the probate court
ordered a stay of proceedings and permitted the parties to seek private mediation.
{¶ 14} On July 16, 2013, the probate court journalized an entry noting that the private
mediation was not successful. The order further indicated that "[a]ll parties indicate that the
issue of domicile is now ripe for adjudication." Because of the testimony presented on
November 1, 2012, the probate court further noted:
Testimony has been previously given during an all-day hearing with Judge John C. Newlin presiding. This matter shall be assigned to Judge Newlin to rule upon the contested claim of Ohio being the domiciliary state of Billy Jason Rush.
{¶ 15} On August 27, 2013, the probate court found that Decedent was domiciled in
Arizona at the time of his death based on the evidence produced during the November 1,
2012 hearing.
{¶ 16} On October 2, 2013, the probate court issued three orders based upon its
August 27, 2013 determination. First, the court granted a motion by Mother to withdraw her
application to probate the holographic will and for authority to administer the estate. Second,
the court stayed its decision on a motion to exercise jurisdiction and a motion seeking other
relief. Finally, the court ordered all other pending motions stayed.
{¶ 17} On October 3, 2013, Wife moved to consolidate the two proceedings: the
administration of Decedent's estate and will contest actions. The probate court denied Wife's
motion to consolidate and found:
The court has rendered a decision * * * staying the proceedings -4- Warren CA2013-10-103
in case numbers * * * due to primary jurisdiction being the State of Arizona, the decedent's domiciliary state at the time of his death.
Under case number * * *, the Court has forwarded the original Holographic Will to Maricopa County Superior Court for their further action and determination. Therefore, [Wife's] Motion to Consolidate is NOT WELL TAKEN and hereby DENIED.
{¶ 18} On October 16, 2013, the probate court filed two orders. First, the probate
court found, based upon its ruling that Decedent was a resident of Arizona at the time of his
death, that jurisdiction over the estate was vested with the Superior Court of Maricopa
County, Arizona. The estate administration action filed in Ohio was therefore dismissed
without prejudice. Second, the probate court dismissed the will contest action because the
"[Maricopa County, Arizona] court's finding will control who the administrator is for the
ancillary administration and how the property in Ohio is disposed of * * * there is no longer a
need to keep the will contest file open." Wife now appeals the decision of the probate court,
raising three assignments of error for review.
{¶ 19} Assignment of Error No. 1:
{¶ 20} THE PROBATE COURT ERRED IN RULING ON [MOTHER'S] MOTION TO
CONTEST JURISDICTION WHERE IT HAD ALREADY DETERMINED THAT [MOTHER]
DID NOT HAVE STANDING TO CONTEST JURISDICTION AND IT DID NOT
RECONSIDER ITS PREVIOUS DECISION ON THIS ISSUE.
{¶ 21} In her first assignment of error, Wife argues the probate court erred in
considering Mother's motion to contest jurisdiction after it concluded that Mother did not have
standing to contest the will administration proceeding. We find this argument lacks merit.
{¶ 22} Both R.C. 2107.12 and 2107.71 provide that "persons interested" may contest
the jurisdiction of the probate court to entertain an application to probate a decedent's will
and to contest the validity of an admitted will or codicil. Pursuant to R.C. 2107.12:
When a will is presented for probate or for a declaratory -5- Warren CA2013-10-103
judgment of its validity pursuant to section 2107.081 of the Revised Code, persons interested in its outcome may contest the jurisdiction of the court to entertain the application. Preceding a hearing of a contest as to jurisdiction, all parties named in such will as legatees, devisees, trustees, or executors shall have notice thereof in such manner as may be ordered by the court.
(Emphasis added.) In addition, R.C. 2107.71 provides:
A person interested in a will or codicil admitted to probate in the probate court * * * may contest its validity by filing a complaint in the probate court in the county in which the will or codicil was admitted to probate.
(Emphasis added); Roll v. Edwards, 4th Dist. Ross No. 05CA2833, 2006-Ohio-830, ¶ 54; In
re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097, ¶ 12.
{¶ 23} Wife alleges that Mother is not a "person interested" under R.C. 2107.12 and
2107.71 and, therefore, the probate court should not have considered Mother's motion to
contest jurisdiction. "A 'person interested' has been defined as one who has a direct,
pecuniary interest in the estate." In re Estate of Miller, 3d Dist. Logan No. 8-10-12, 2010-
Ohio-6381, ¶ 12, citing Bazo v. Siegel, 58 Ohio St.2d 353, 354 (1979).
{¶ 24} In support of her argument, Wife advances two principle arguments. First, Wife
argues that pursuant to the 2003 will, she is the sole beneficiary of Decedent's estate and
Mother is therefore not entitled to any portion of Decedent's estate. Second, Wife argues
that, even if the 2003 will were declared invalid, Mother would still not have an interest in any
portion of Decedent's estate based on the laws of intestate succession. As Decedent's
surviving spouse, Wife claims that she would be entitled to inherit Decedent's entire estate.
R.C. 2105.06(E)("[i]f there are no children or their lineal descendants, then the whole to the
surviving spouse"). Therefore, Wife argues that Mother should not be able to contest the
jurisdiction of the probate court because Mother is not a "person interested" in Decedent's
{¶ 25} To the contrary, Mother argues that she is a "person interested" in Decedent's
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estate due to the alleged existence of a holographic will Decedent created prior to his death,
which names Mother as a beneficiary. Therefore, Mother maintains that under the terms of
the holographic will, she is a "person interested" in Decedent's estate and therefore should
be permitted to contest the court's jurisdiction.
{¶ 26} In its entry dated April 2, 2013, the probate court agreed with Wife and
concluded that Mother did not have standing to contest the court's jurisdiction: (1) because
Mother was not a beneficiary under the 2003 will, and (2) because Wife, as surviving spouse,
was entitled to inherit Decedent's entire estate in the event that Decedent's will was declared
invalid. The probate court also found that Mother did not provide prima facie evidence of the
holographic will at the evidentiary hearing held on November 1, 2012. Nevertheless, several
months later, the probate court reversed course and transferred the matter to the Superior
Court of Maricopa County, Arizona based on its finding that Decedent was domiciled in
Arizona at the time of his death and "jurisdiction over the estate was vested" with the Arizona
court. As such, Wife now complains the probate court erred by improperly considering
Mother's motion to contest jurisdiction, in spite of the prior judgment entry finding that Mother
did not have standing to contest the court's jurisdiction.
{¶ 27} Based on our review of the record, we find the probate court did not err in
considering whether jurisdiction was proper. Although Wife is correct in noting that R.C.
2107.12 and 2107.71 provide that "persons interested" may contest the jurisdiction of the
probate court and the validity of a will, we find those provisions do not limit the probate
court's ability to consider its own jurisdiction or the appropriate venue for the proceedings and
we need not decide if Mother is a "person interested." See, e.g., In Re: Estate of Gavrilovich,
9th Dist. Summit No. 10718, 1982 WL 2808, *2 (Oct. 27, 1982) ("R.C. 2107.12 expressly
authorizes the court to, in effect, take jurisdiction to decide its jurisdiction"). In this case, the
probate court considered its jurisdiction to probate Decedent's will under R.C. 2107.11 after it
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concluded that Decedent was a domiciliary of Arizona. While the propriety of the probate
court's decision is subject to Wife's second assignment of error, we find the probate court did
not err in considering whether it had jurisdiction in the matter. Accordingly, Wife's first
assignment of error is overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE PROBATE COURT ERRED IN DISMISSING [WIFE'S] APPLICATION TO
PROBATE WILL AND SENDING THE CASE TO ARIZONA WHERE THE EVIDENCE
ESTABLISHED THAT [DECEDENT] WAS DOMICILED IN WARREN COUNTY, OHIO AND
OWNED PROPERTY IN WARREN COUNTY, OHIO WHEN HE DIED.
{¶ 30} In her second assignment of error, Wife argues the probate court committed
reversible error when it found that Decedent was domiciled in Arizona and then transferred
the case to Arizona for administration. We find merit to Wife's second assignment of error.
{¶ 31} Because the probate court is a court of limited jurisdiction, probate proceedings
are restricted to those actions permitted by statute and by the Constitution. State ex rel.
Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 74 Ohio St.3d 19, 22
(1995). R.C. 2107.11, in the section titled "Jurisdiction to Probate," provides, in pertinent
part:
A will shall be admitted to probate:
(1) In the county in this state in which the testator was domiciled at the time of the testator's death;
(2) In any county of this state where any real property or personal property of the testator is located if, at the time of the testator's death, the testator was not domiciled in this state, and provided that the will has not previously been admitted to probate in this state or in the state of the testator's domicile;
(3) In the county of this state in which a probate court rendered a judgment declaring that the will was valid and in which the will was filed with the probate court.
State ex rel. Lee v. Trumbull Cty. Probate Court, 83 Ohio St.3d 369, 372 (1998) (R.C. -8- Warren CA2013-10-103
2107.11 "addresses the jurisdiction of probate courts to probate a will").
{¶ 32} As we have previously noted, "[t]he Ohio Supreme Court has directed that we
must give effect to every term in a statute and avoid a construction that would render any
provision meaningless, inoperative, or superfluous." State v. Stiles, 12th Dist. Butler No.
CA2011-01-003, 2011-Ohio-4173, ¶ 22. Accordingly, although a decedent's domicile is one
way of ensuring that the will shall be probated in the county, it is not the only method. R.C.
2107.11(A)(2) provides jurisdiction "in any county of this state where personal property of the
testator is located, despite the fact that she is not domiciled in this state, and provided that
her will has not previously been admitted to probate in this state or in the state of her
domicile." Carlin v. Mambuca, 96 Ohio App.3d 500, 504 (8th Dist.1994); Thomas v. Taylor,
1st Dist. Hamilton No. C-000624, 2001 WL 992086 (Aug. 31, 2001); Gordon v. Holly Woods
Acres, Inc., 328 F.2d 253 (6th Cir.1964).
{¶ 33} Based on our review, we find the probate court erred in transferring the case
after concluding that Decedent was domiciled in Arizona. In the present case, the probate
court found that Decedent was domiciled in Arizona. That finding meant that jurisdiction to
probate Decedent's will would not have been proper under R.C. 2107.11(A)(1). However, the
probate court may still have had jurisdiction to probate Decedent's will under R.C.
2107.11(A)(2) in any county of this state where Decedent's real or personal property is
located, despite the fact that Decedent was not domiciled in this state, provided that
Decedent's will has not previously been admitted to probate in this state or in the state of his
domicile. See Carlin at 504. Nevertheless, the probate court failed make any findings of fact
to determine if Decedent had "any real or personal property" located in Warren County and if
jurisdiction was otherwise proper under R.C. 2107.11(A)(2).
{¶ 34} Although we find that the trial court erred in failing to determine whether it had
jurisdiction under R.C. 2107.11, we note, in this situation, the trial court was not necessarily
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required to proceed with the case while the action was also pending in Maricopa County,
Arizona. "A court faced with the situation of a prior case pending in another state now has
three options: (1) it can grant a stay in the Ohio proceedings pending the resolution of the
earlier action outside of Ohio, (2) it can go forward with the action in Ohio, or (3) it can
dismiss the case under the doctrine of forum non conveniens." Walp v. Walp, 3d Dist.
Auglaize No. 2-05-10, 2005-Ohio-4181, ¶ 8.
{¶ 35} The doctrine of forum non conveniens permits a court to dismiss an action to
further the ends of justice and to promote the convenience of the parties, even though
jurisdiction and venue are proper in the court chosen by the plaintiff. Chambers v. Merrell-
Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 125 (1988). In determining whether dismissal
on the basis of forum non conveniens is proper, the trial court must consider the facts of
each case, balancing the private interests of the litigants and the public interest involving the
courts and citizens of the forum state. Id. at 126-127.
{¶ 36} Important private interests include: (1) the relative ease of access to sources of
proof; (2) availability of compulsory process for attendance of unwilling witnesses; (3) the
cost of obtaining attendance of willing witnesses; (4) the possibility of a view of the premises,
if appropriate; and (5) all other practical problems that make trial of a case easy, expeditious,
and inexpensive. Chambers, 35 Ohio St.3d at 126-127; Travelers Cas. & Sur. Co. v.
Cincinnati Gas & Elec. Co., 1st Dist. Hamilton No. C-050716, 2006-Ohio-5350, ¶ 8.
{¶ 37} Important public interests include: (1) the administrative difficulties and delay to
other litigants caused by congested court calendars; (2) the imposition of jury duty upon the
citizens of a community that has very little relation to the litigation; (3) a local interest in
having localized controversies decided at home; and (4) the appropriateness of litigating a
case in a forum familiar with the applicable law. Chambers, 35 Ohio St.3d at 127; Travelers
at ¶ 9.
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{¶ 38} The decision whether to grant a motion to dismiss on the basis of forum non
conveniens rests with the trial court's discretion, the exercise of which an appellate court may
reverse only upon a showing of an abuse of that discretion. Chambers at 127. "[W]here the
court has considered all relevant public and private interest factors, and where its balancing
of these factors is reasonable, its decision deserves substantial deference." Id.
{¶ 39} Here, the trial court dismissed the pending actions in Ohio based on the fact
that Decedent was domiciled in Arizona at the time of his death and therefore the action
pending in Arizona had "priority jurisdiction." Although forum non conveniens may properly
be invoked by the trial court in an action where jurisdiction would otherwise be proper, we find
the trial court did not make the required findings balancing the private interests of the litigants
and the public interest involving the courts and citizens of the forum state.
{¶ 40} Accordingly, Wife's second assignment of error is well-taken and sustained. We
remand this case to the probate court for a determination of whether jurisdiction is proper
pursuant to R.C. 2107.11(A)(2) based on the presence of "real property or personal
property." In so deciding, we decline to express any opinion as to whether jurisdiction is
proper under R.C. 2107.11 or whether dismissal is otherwise appropriate, as those are
matters best left to the discretion of the trial court.
{¶ 41} Assignment of Error No. 3:
{¶ 42} THE PROBATE COURT ERRED IN FAILING TO FIND THAT SHEILA WAS
ESTOPPED FROM CONTESTING JURISDICTION.
{¶ 43} In her third assignment of error, Wife argues that Mother is estopped from
contesting the probate court's jurisdiction because Mother allegedly stated that Decedent was
domiciled in Warren County when providing information to the funeral home director. We find
no merit to this argument.
{¶ 44} Equitable estoppel "prevent[s] one party from taking unfair advantage of
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another when, through false language or conduct, the person to be estopped has induced
another person to act in a certain way, with the result that the other person has been injured
in some way." Thompson v. McVey, 12th Dist. Clinton No. CA2006-03-006, 2006-Ohio-7036,
¶ 14. The essential elements of equitable estoppel are (1) the nonrelying party made a
factual misrepresentation, (2) that was misleading, (3) that induced actual reliance that was
reasonable and in good faith, and (4) that caused detriment to the relying party. Chase
Manhattan Bank v. Parker, 12th Dist. Butler No. CA2003-11-299, 2005-Ohio-1801, ¶ 20.
{¶ 45} Wife's argument centers on allegedly conflicting statements that Mother
supplied to the funeral director regarding Decedent's residence at the time of his death. Wife
argues that she relied on the fact that Mother indicated that Decedent resided in Warren
County in the filing of these probate proceedings. We find Wife's argument is without merit.
Mother is not prevented from contesting the probate court's jurisdiction to hear the case.
Wife fails to allege, let alone prove, any sufficient basis for estoppel based on the present
facts. The record reflects that Wife was well aware that Decedent had been residing in
Arizona prior to his death and there is no evidence of Wife's good faith reliance on any
allegedly erroneous statement made by Mother. Furthermore, any alleged misstatement
surely would not prevent a court from hearing evidence and attempting to determine whether
the court has jurisdiction to decide the proper location for administration of an estate.
Accordingly, Wife's third assignment of error is overruled.
{¶ 46} Judgment affirmed in part, reversed in part, and the cause is remanded for
further proceedings consistent with this opinion.
S. POWELL and PIPER, JJ., concur.
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