[Cite as In re Estate of Taylor, 2024-Ohio-1496.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN THE MATTER OF THE ESTATE OF : MARTHA TAYLOR : : C.A. No. 29906 : : Trial Court Case No. 2022 EST 01100 : : (Appeal from Common Pleas Court- : Probate Division) : :
...........
OPINION
Rendered on April 19, 2024
MICHAEL J. MARTIN, Appellant, Pro Se
ERIC STAMPS, Attorney for Appellee, Sharon Martin
.............
WELBAUM, J.
{¶ 1} Appellant, Michael J. Martin, appeals pro se from a probate court decision
rejecting his exceptions to an inventory and appraisal. The inventory and appraisal was
submitted by Appellee, Sharon Martin, in connection with the estate of Martha Taylor.1
1 We will refer to the involved individuals by their first names because most of them have -2-
{¶ 2} Michael’s brief does not comply with App.R. 16(A), and he does not raise any
assignments of error. From what we can gather, Michael claims the probate court erred
in finding that he had failed to commence a separate will contest action. Michael
contends that he did file such an action. In response, Sharon’s attorney simply states
that nothing in the record demonstrates trial court error. However, no more specific
argument is made, and the brief is not helpful. Based on our review, we find that Michael
failed to timely file objections to the magistrate’s decision, and no plain error occurred that
would justify setting aside the judgment.
{¶ 3} Although the trial court could have construed Michael’s pleading as an
attempt to file a will contest, its failure to do so was not plain error that justifies setting the
judgment aside, for several reasons. First, Michael never sought to amend the pleading
to add parties that are necessary in will contests under R.C. 2107.73. This is not a
jurisdictional defect but is grounds for dismissing an action. More importantly, Michael
failed to comply with requirements for commencing such an action, like requesting service
and filing an affidavit of indigency. Therefore, no plain error occurred that would justify
reversing the judgment. Accordingly, the judgment will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} On May 20, 2022, Sharon filed a notice in the probate court that she was
depositing Martha Taylor’s will, which was attached to the notice. In the will, which was
dated October 25, 2021, Martha left all her personal and real property to Sharon, who
the same last name. -3-
was her sister. The will further said that if Sharon failed to survive Martha by 60 days,
Sharon’s share would lapse and the property would pass to Tasha Martin. Additionally,
the will designated Sharon as executor and appointed Tasha as executor if Sharon could
not serve.
{¶ 5} On May 23, 2022, Sharon filed a document listing the surviving spouse,
children, next of kin, legatees, and devisees. According to this document, Martha did not
have a surviving spouse or adopted or biological children. Martha’s parents were both
deceased, and she had five siblings: Sharon, Ann Martin, Michael Martin, Drew Martin,
and Wanda Martin. Also on May 23, Sharon filed an application for authority to
administer the estate and listed $53,000 in personal property and $56,000 in real
property, for a total estate value of $109,000. The application said that Martha had died
on October 23, 2021. In addition, Sharon waived notice of the probate of the will and
filed a fiduciary’s acceptance, by which she agreed to assume the executor’s duties.
{¶ 6} The Waiver of Notice of Probate of Will stated that:
The undersigned, being persons entitled to notice of the probate of
this will, waive such notice. After a certificate is filed evidencing these
waivers and any notices given, any action to contest the validity of this will
must be filed no more than three months after the filing of the certificate for
estates of decedents who die on or after January 1, 2002.
{¶ 7} On June 7, 2022, the court filed entries admitting the will to probate and
approving Sharon’s application to probate the will. The same day, the court filed entries
appointing Sharon as executor and appointing an appraiser. A death certificate filed that -4-
day said Taylor had died at Miami Valley Hospital in Dayton, Ohio, on October 23, 2021.
{¶ 8} On July 5, 2022, Michael filed a pro se objection to the will and asked the
clerk to send him forms and a booklet of the court’s rules. Michael mentioned that his
facility (a prison) lacked forms for contesting the will. The court’s docket does not contain
any response to this request.
{¶ 9} On July 7, 2022, Sharon filed a certificate of service of notice of probate of
the will. This document stated that all persons entitled to notice had waived service, had
received notice of the hearing on the probate of the will or a contest as to jurisdiction, or
had not been notified because their names or places of residence were unknown or could
not be ascertained with reasonable diligence. Supporting affidavits were also filed.
One affidavit discussed unsuccessful efforts to reach Wanda. The other affidavit said
that all legatees or devisees other than Michael, Ann, and Drew had waived notice of the
will’s probate or their addresses were unknown. Certified mail receipts for Michael, Ann,
and Drew were attached to this affidavit.
{¶ 10} On September 19, 2022, the court filed “correspondence” it had received
from Ann. In this document, Ann objected to Sharon being a fiduciary. Ann further
alleged that Sharon had failed to disclose assets to her attorney that belonged to the
parties’ mother, Martha. The only identified asset was a Fifth Third Bank account that
allegedly contained $86,000 to $90,000. Another document was filed that day in what
appears to be the same handwriting, identifying Ann, Michael, and Drew as next of kin
and listing their addresses.
{¶ 11} On October 4, 2022, the court filed two pro se documents it had received -5-
from Michael. The first was a motion seeking leave to file in forma pauperis without
posting a $250 filing fee for civil cases. The motion also asked the court to waive other
filing requirements, including page size and copies. In the motion, Michael stated that
he had been incarcerated since March 2016 and received only $18 per month, which he
used for necessities. The court never ruled on the motion.
{¶ 12} In the second document, Michael challenged the will pursuant to R.C.
2107.71, contending it was fraudulent because the signature did not belong to Martha.
Michael also noted the will was dated October 25, 2021, when the death certificate stated
Martha had died two days earlier. Like Ann, Michael asked the court to appoint a
different executor due to Sharon’s alleged fraud.
{¶ 13} On October 11, 2022, Michael asked the court to “appoint counsel” and to
grant an extension of time so he could more fully respond to the matters at issue.
According to Michael, Martha was “on” an account from Wright Patterson or Fifth Third
Bank that belonged to Roberta James, who had died approximately one week before
Martha died. Allegedly, Roberta was the siblings’ mother. Michael claimed Roberta’s
account had contained $90,000 to $100,000, and he asked for an investigation. On
October 21, 2022, Michael filed another document in which he claimed a medical doctor
had determined that Martha had not been competent to sign anything on October 25,
2021, and that she had lacked mental capacity to sign a will, meaning her signature had
been forged. The court’s docket summary lists all the items Michael filed in October
2022 as “correspondence.”
{¶ 14} Sharon filed an inventory and appraisal on October 28, 2022, listing the -6-
following estate assets: $1,573 in tangible property; $93,081.64 in intangible property;
and $56,240 in real property, for a total of $150,894.64. As intangible property, the
schedule of assets included three accounts at Fifth Third Bank totaling $93,081.64. The
court set a November 30, 2022 decision date for the inventory and appraisal. Before
that date, on November 23, 2022, Michael filed exceptions to the inventory (which the
court again listed as “correspondence”). Once more, Michael claimed the Fifth Third
Bank accounts belonged to the parties’ mother, not to Martha. He also alleged fraud
with respect to a property deed in that it had been changed two weeks after Martha’s
death to remove the name of Martha’s late husband, Charles.
{¶ 15} On January 6, 2023, the court filed an entry approving the inventory and
appraisal because “no exceptions” had been filed. Entry Approving Inventory and
Appraisal (Jan. 6, 2023), p. 1. On July 31, 2023, Sharon reported some minor newly
discovered assets like escrow refunds, and the court approved that report as well.
{¶ 16} On August 23, 2023, a magistrate filed a decision overruling Martin’s
exceptions. The court adopted the decision that same day. On September 8, 2023,
Martin filed a motion requesting a jury trial and another document that included two items:
objections to the magistrate’s decision and judge’s order and a notice of appeal. In
addition, Martin filed a motion seeking leave to file delayed objections. However, on
September 8, 2023 (the same day), Martin filed a notice of appeal with our court.
II. Discussion
{¶ 17} As noted, Michael’s brief fails to comply with App.R. 16(A), which contains -7-
various requirements for briefs, including: “(3) A statement of the assignments of error
presented for review, with reference to the place in the record where each error is
reflected[;] (4) A statement of the issues presented for review, with references to the
assignments of error to which each issue relates”; “(6) A statement of facts relevant to the
assignments of error presented for review, with appropriate references to the record in
accordance with division (D) of this rule[; and] (7) 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.” “Where an appellant fails to comply with these
requirements, App.R. 12(A)(2) allows us to disregard a party's assignments of error.”
State v. Huelsman, 2d Dist. Miami No. 2022-CA-21, 2023-Ohio-649, ¶ 7, citing State v.
Mize, 2022-Ohio-3163, 195 N.E.3d 574, ¶ 77 (2d Dist.).
{¶ 18} Despite this failure, we may decide to consider error in the interest of justice.
However, we are not required to do so. E.g., Dayton City School Dist. Bd. of Edn. v.
Dayton Edn. Assn., 2018-Ohio-4350, 122 N.E.3d 249, ¶ 43 (2d Dist.) (disregarding
alleged error); Ransom v. Aldi, Inc., 2017-Ohio-6993, 95 N.E.3d 699, ¶ 23 (2d Dist.)
(considering error in the interest of justice).
{¶ 19} We choose to consider Michael’s alleged error here, or at least what we
perceive it to be. However, our review is constrained by Michael’s failure to timely object
to the magistrate’s decision. Under Civ.R. 53(D)(3)(b)(i), “[a] party may file written
objections to a magistrate's decision within fourteen days of the filing of the decision,
whether or not the court has adopted the decision during that fourteen-day period as -8-
permitted by Civ.R. 53(D)(4)(e)(i).” The magistrate’s decision was issued on August 23,
2023, and objections were required to be filed by September 6, 2023.
{¶ 20} No timely objections were filed. Instead, on September 8, 2023, Michael
filed untimely objections with no substantive content. That day, he also filed a motion for
a jury trial, which was not an objection, and another document seeking to file delayed
objections. This was combined with a notice of appeal. Neither was an objection.
{¶ 21} Notably, however, on September 8, 2023, Michael filed a notice of appeal
with our court and thereby deprived the trial court of an opportunity to rule on the request
to file delayed objections. See State ex rel. State Fire Marshal v. Curl, 87 Ohio St.3d
568, 570, 722 N.E.2d 73 (2000) (once a notice of appeal is filed, the trial court is deprived
of jurisdiction over the case, other than collateral matters like contempt that are not
inconsistent with an appellate court’s power to affirm, modify, or reverse the trial court’s
decision).
{¶ 22} When a party fails to timely object to a magistrate’s decision as required by
Civ.R. 53, courts apply the “plain error” rule. E.g., Curry v. Bettison, 2023-Ohio-1911,
216 N.E.3d 797, ¶ 63 (2d Dist.); Barclay Square Condominium Owners Assn. v. Ruble,
2d Dist. Montgomery No. 29613, 2023-Ohio-1311, ¶ 23. “In appeals of civil cases, the
plain error doctrine is not favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no objection was made at the
trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.”
Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. -9-
{¶ 23} In the case before us, the magistrate’s decision outlined the procedural
background, including the “correspondence” from Ann and Martin. The magistrate
concluded that no action to contest the will had been filed within three months of the July
7, 2023 filing of the certificate of notice. Because no separate action had been filed, the
magistrate disregarded the fraud allegations as legal nullities. Magistrate’s Decision
Overruling Exceptions to Inventory & Other Correspondence Filed by Decedent’s Siblings
(Aug. 23, 2023) (Mag. Dec.), p. 2.
{¶ 24} The magistrate further found that Martha’s will had been witnessed by two
licensed attorneys who regularly appeared before the court. According to the magistrate,
this produced a “substantial amount of credibility” to the court even if a will contest action
had been filed. Id. at p. 2-3. Finally, the magistrate found that Martin was not entitled
to make exceptions to the inventory because he was not named as a beneficiary in the
will and therefore lacked standing. Id. at p. 3.
{¶ 25} As noted, on the same day, the probate court filed a judgment entry. The
court said it had reviewed the magistrate’s decision and found no errors of law or other
defects on its face. Consequently, the court adopted the decision as its own. Judge’s
Order Adopting Magistrate’s Decision (Aug. 23, 2023) (“Decision”), p. 1. In reviewing
the court’s decision for plain error, we will first consider whether a final appealable order
exists. If it does, we will then consider the decision.
A. Whether a Final Appealable Order Exists
{¶ 26} When we reviewed the record, questions arose about whether the order -10-
being appealed is a final appealable order and whether we have jurisdiction over this
case. We must consider these points before addressing any alleged errors, because
jurisdiction cannot be either waived or bestowed on a court. Care Risk Retention Group
v. Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing
State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d
72 (1997). We are entitled to raise jurisdictional issues on our own motion. Id.
{¶ 27} “It is axiomatic that an appellate court has jurisdiction to review only final
orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio
Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that
is not final, and an appeal therefrom must be dismissed.” Nored v. Dayton City School
Dist. Bd. of Edn., 2019-Ohio-1476, 129 N.E.3d 503, ¶ 3 (2d Dist.), citing Gen. Acc. Ins.
Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 28} “In order to be final, an order must comply with the requirements of both
R.C. 2505.02 and Civ.R. 54(B), if applicable.” In re Guardianship of Igah, 2d Dist.
Montgomery No. 26416, 2015-Ohio-4511, ¶ 19. “R.C. 2505.02 defines a final order for
purposes of appeal.” State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8,
839 N.E.2d 911, ¶ 18. As relevant here, R.C. 2505.02(B) provides that: “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: * * * (2) An order that affects a substantial right made in a
special proceeding or upon a summary application in an action after judgment.”
{¶ 29} “ ‘The hearing of exceptions to an inventory under Section 2115.16, Revised
Code, is a summary proceeding conducted by the Probate Court to determine whether -11-
those charged with the responsibility therefor have included in a decedent's estate more
or less than such decedent owned at the time of his death.’ ” Sheets v. Antes, 14 Ohio
App.3d 278, 279, 470 N.E.2d 931 (10th Dist.1984), quoting In re Estate of Gottwald
(1956), 164 Ohio St. 405, 131 N.E.2d 586 (1956), paragraph one of the syllabus. In
Sheets, the court concluded that an order approving the inventory was a special
proceeding because it affected a substantial right. This was because the assets were
liquid and, absent appeal, the co-beneficiary might not have had an effective remedy. Id.
at 280.
{¶ 30} Subsequently, the Tenth District Court of Appeals noted division among
appellate courts over whether probate court estate administration is a special proceeding
under R.C. 2505.02(A)(2). In re Estate of Robison, 10th Dist. Franklin No. 17AP-232,
2017-Ohio-8980, ¶ 25. However, the court also noted its prior holding that “ ‘[a] probate
court's order approving an inventory which does not include certain items appellant claims
are assets of an estate is an order affecting a substantial right made in a special
proceeding. Thus, under R.C. 2505.02, the order is final and appealable.’ ” Id., quoting
Sheets at paragraph two of the syllabus. In this context, our own district has agreed that
“proceedings in probate court generally qualify as ‘special proceedings’ under the
statute.” In re Estate of Goubeaux, 2023-Ohio-647, 209 N.E.3d 967, ¶ 14 (2d Dist.),
referencing R.C. 2505.02(B).
{¶ 31} Nonetheless, courts have also held that “ ‘a ruling on exceptions to an
inventory, standing alone, does not constitute a final, appealable order.’ ” In re Estate of
Persing, 11th Dist. Trumbull No. 2009-T-0120, 2010-Ohio-2687, ¶18. Accord In re -12-
Estate of Smith, 1st Dist. Hamilton No. C-190407, 2020-Ohio-3378, ¶ 11. See also
Estate of DeVore, 7th Dist. Harrison No. 18 HA 0004, 2019-Ohio-2719, ¶ 55. However,
an order denying exceptions is “a final appealable order if it also approves the inventory.”
Persing at ¶ 11, citing Sheets at 278.
{¶ 32} Unfortunately, the proceedings below display some odd procedure.
Specifically, Sharon filed an inventory and appraisal on October 28, 2022, and Michael
filed objections on November 23, 2022. After the scheduled November 30, 2023
decision date (when no decision was apparently made), on January 6, 2023, the court
filed an order approving the inventory. The order stated that no exceptions had been
filed, and it approved the inventory as proper. Entry Approving Inventory and Appraisal
(Jan. 6, 2023). This order was final and appealable because it fit within the analysis
outlined above, i.e., there was no indication that anything more needed to be done to
approve the inventory. Although the court’s decision may have been erroneous (as
exceptions had been filed, whether valid or not), Michael failed to appeal from that order.
{¶ 33} Subsequently, on July 31, 2023, Sharon reported a few minor newly
discovered assets, and the court approved the report the same day. Michael did not
appeal from that entry, either. For unknown reasons, the magistrate then filed the
August 23, 2023 decision overruling Michael’s exceptions. However, the court, in fact,
had already issued a final order on the inventory. As indicated, the current appeal was
taken on September 8, 2023, from the order adopting the magistrate’s decision.
{¶ 34} Based on the relevant case law, we would normally find that the August 23,
2023 decision overruling Michael’s exceptions was not a final appealable order because -13-
the court did not also then issue an order approving the account. However, doing so
would have been futile because the court had already filed a final order. The
magistrate’s decision, from that standpoint, was unnecessary. Nonetheless, even if the
magistrate had the ability to act, Michael’s appeal of the exceptions ruling would be barred
by res judicata to the extent it concerned his exceptions to the inventory and appraisal.
Michael could have appealed the January 6, 2023 order approving the inventory (correct
or not), but he failed to do so.
{¶ 35} “Res judicata bars relitigation of a matter that was raised or could have been
raised on direct appeal when a final, appealable order was issued in accordance with the
law at the time.” State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989,
¶ 3. Accord In re K.K., 170 Ohio St.3d 149, 2022-Ohio-3888, 209 N.E.3d 660, ¶ 60
(parents’ failure to timely appeal dispositional orders granting temporary custody to
agency barred later attempt to appeal that issue after agency was granted permanent
custody of the children).
{¶ 36} On the other hand, the magistrate was able to consider Michael’s attempt
to contest the will because that issue had not previously been decided. For the same
reason, res judicata would not bar Michael’s appeal on that point. There was also a final
appealable order to that extent. The order was entered in a special proceeding and
affected a substantial right, because Michael’s ability to contest the will was eliminated.
Consequently, we will consider the probate court decision insofar as it concerned the
attempt to contest the will. -14-
B. Will Contest
{¶ 37} “In Ohio the right to contest the validity of a will or codicil is wholly a creature
of statute * * *.” Kluever v. Cleveland Trust Co., 173 Ohio St. 177, 180 N.E.2d 579
(1962), paragraph one of the syllabus. “Prior to January 1, 1976, R.C. Chap. 2741
governed will contests. * * * However, on that date, R.C. Chapter 2741 was repealed and
R.C. Chapter 2107, dealing with will contest actions, became effective.” Smith v. Klem,
6 Ohio St.3d 16, 17, 450 N.E.2d 1171 (1983).
{¶ 38} The part of R.C. Chap. 2107 that governs will contests is found in R.C.
2107.71 through R.C. 2107.77. As relevant here, under R.C. 2107.71(A), “[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.” R.C. 2107.72(A) further provides that “[t]he Rules of Civil
Procedure govern all aspects of a will contest action, except as otherwise provided in
sections 2107.71 to 2107.77 of the Revised Code.” See also Civ.R. 73 (outlining certain
procedures for probate courts and indicating in subdivision (A) that “all of the Rules of
Civil Procedure, though not specifically mentioned in this rule, shall apply except to the
extent that by their nature they would be clearly inapplicable”). Having reviewed the
content of the will contest statutes, we find no relevant exceptions to the Ohio Civil Rules,
nor do we find that any civil rules are clearly inapplicable.
{¶ 39} For purposes of the current case, the necessary parties for a will contest
would include: persons designated in the will who would receive a testamentary
disposition; heirs who would take property under R.C. 2105.06 if the testator had died -15-
intestate; the “executor or administrator with the will annexed”; and “[o]ther interested
parties.” See R.C. 2107.73(A), (B), (C), and (E). Subdivision (D) also includes the
attorney general as a necessary party as provided in R.C. 109.25 (relating to charitable
trusts). However, Martha’s will did not involve such a trust.
{¶ 40} “A ‘person interested’ for purposes of a will contest is ‘[a]ny person who has
such a direct, immediate, and legally ascertained pecuniary interest in the devolution of
the testator's estate as would be impaired or defeated by the probate of the will, or be
benefited by setting aside the will.’ ” State ex rel. Abraitis v. Gallagher, 143 Ohio St.3d
439, 2015-Ohio-2312, 39 N.E.3d 491, ¶ 16, quoting Bloor v. Platt, 78 Ohio St. 46, 49-50,
84 N.E. 604 (1908).
{¶ 41} As relevant here, R.C. 2107.76 states that:
No person who has received or waived the right to receive the notice
of the admission of a will to probate required by section 2107.19 of the
Revised Code may commence an action permitted by section 2107.71 of
the Revised Code to contest the validity of the will more than three months
after the filing of the certificate described in division (A)(3) of section
2107.19 of the Revised Code.
{¶ 42} Under Civ.R. 3(A), “[a] civil action is commenced by filing a complaint with
the court, if service is obtained within one year from such filing upon a named defendant
* * *.” Thus, the time for filing such an action here would have expired on October 7,
2022, which was three months after Sharon filed the certificate of notice (July 7, 2022).
{¶ 43} In its decision, the magistrate remarked, citing R.C. 2107.71, that “Ohio law -16-
provides that a Will Contest action is a separate legal proceeding from the underlying
estate case, and must be initiated through the filing of a complaint.” Mag. Dec. at p. 2.
The magistrate further commented that:
It is plain from the record that neither Michael Martin nor Ann Martin
ever commenced a Will Contest action in this Court. As such, any of the
Sibling Correspondence alleging a fake or invalid will is irrelevant and a
legal nullity as a matter of law. A clearly defined process to challenge the
validity of Decedent’s Will exists in the Revised Code, and the Siblings did
not pursue it.
Id.
{¶ 44} On consideration, we disagree to some extent with these conclusions.
Specifically, the motion to proceed in forma pauperis and the other pleading that Martin
filed on October 4, 2022, both bore a completely different caption than the underlying
probate case, i.e., they were both captioned as “State of Ohio ex Rel. Michael Martin,
Relator, v. Sharon A. Martin, Relator.” Both documents also had a blank space for the
case number. If a separate action were not intended, the caption would have been the
same as the existing case, and the existing case number would have been used. In fact,
the rest of the documents Martin filed did contain the same caption and case number as
the underlying probate case. Furthermore, as noted, Michael asserted in the body of the
second document that he was contesting the will under R.C. 2107.71.
{¶ 45} Based on the above facts and Michael’s request for waiver of the $250 filing
fee for “civil cases” because he was indigent, it is apparent that Michael, in fact, intended -17-
to file a separate civil action. We therefore assume that Michael tried to file an action to
contest the will, as he has suggested. This pleading would also have been timely, as it
was filed within three months after Sharon filed the certificate of notice.
{¶ 46} Like the other items in the probate case file, the October 4, 2022 documents
were filed with the probate court and were time-stamped. The record lacks any specific
explanation as to why they were not docketed as a separate case, insofar as they were
captioned differently from the existing probate case and had no case number.
Consequently, while the court only considered Michael’s effort as “correspondence,” it
could properly have characterized the effort as an attempt to file an action.
{¶ 47} As Michael contends in his brief, he did not have control over how
documents were handled once they arrived at the court (although he did, as described
below, have certain obligations). Moreover, the probate court’s own rules do not include
will contest actions among the “special statutory proceedings” that “shall be filed
separately and with no other causes of action accompanying the pleading or initiating
filings.” Mont. Co. P.C.R. 78.3(B).2 This does not mean will contest actions should not
be filed separately. However, the court does not have a specific rule to that effect.
{¶ 48} However, even assuming that Michael attempted to file a complaint, it was
defective on its face because necessary parties were not joined (or at least named in the
caption). These parties included the heirs that would inherit absent the will, including
2 Mont. Co. P.C.R. 78.3(B) became effective on February 1, 2023. See https://www. mcohio.org/1319/Local-Rules (accessed on March 14, 2024). Unfortunately, the court’s website does not contain a copy of any prior rules. Nonetheless, the February 2023 rules were in effect well before the court overruled Michael’s exceptions to the appraisal and inventory in August 2023. -18-
Ann, Drew, and Wanda. We note that Michael did refer to all the necessary parties in
the body of his “complaint,” where he provided the names and addresses of the next-of-
kin, to the extent known.
{¶ 49} Before R.C. 2107.72 was enacted in 1976 to provide for application of the
Ohio Civil Rules, courts had dismissed will contest actions where all necessary parties
were not joined. State ex rel. Smith v. Court of Common Pleas, Prob. Div., 70 Ohio St.2d
213, 216, 436 N.E.2d 1005 (1982), fn. 5, citing Kluever, 173 Ohio St. 177, 180 N.E.2d
579, paragraph one of the syllabus, and Gravier v. Gluth, 163 Ohio St. 232, 126 N.E.2d
332 (1955), paragraph three of the syllabus. This was considered a jurisdictional defect.
E.g., Holland v. Carlson, 40 Ohio App.2d 325, 331, 319 N.E.2d 362 (8th Dist.1974), citing
Fletcher v. First Natl. Bank of Zanesville, 167 Ohio St. 211, 215, 147 N.E.2d 621 (1958).
{¶ 50} However, based on the 1976 enactment of R.C. 2107.72, Smith held that
“amendments may be made to plaintiff's complaint to join necessary parties in a will
contest action. These amendments would, under Civ.R. 15(C), relate back to the date
of the original filing.” Smith at paragraph two of the syllabus. See also Smith v. Klem,
6 Ohio St.3d 16, 450 N.E.2d 1171 (1983), syllabus, following and approving paragraph
two of the syllabus in Smith.
{¶ 51} After the Supreme Court of Ohio decided Smith and Klem, lower courts
struggled with the application of relation-back based on the wording of Civ.R.15(C). See
Weaver v. Donnerberg, 26 Ohio App.3d 112, 498 N.E.2d 496 (3d Dist.1985). In this
regard, Civ.R. 15(C) states that:
Whenever the claim or defense asserted in the amended pleading -19-
arose out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading, the amendment relates back to the
date of the original pleading. An amendment changing the party against
whom a claim is asserted relates back if the foregoing provision is satisfied
and, within the period provided by law for commencing the action against
him, the party to be brought in by amendment (1) has received such notice
of the institution of the action that he will not be prejudiced in maintaining
his defense on the merits, and (2) knew or should have known that, but for
a mistake concerning the identity of the proper party, the action would have
been brought against him.
{¶ 52} In Weaver, the Third District Court of Appeals observed that Civ.R. 15(C)’s
wording “would first appear to apply not to adding, but to changing, a party. The word
change implies that a named party would be omitted and a party not named in the original
complaint would be substituted.” Id. at 114. The court stressed that this interpretation
was strengthened by a Staff Note to Civ.R. 15, which referred to “misnomer of parties.”
Id.3
{¶ 53} Because no lower court in Smith had made any factual decision about the
3 This Staff Note was not included when Civ.R. 15 was amended effective July 2013.
However, the only changes from the original rule are to Civ.R. 15(A), not Civ.R. 15(C). As part of the 2013 amendment, the court stressed that “Staff Notes are prepared by the Commission on the Rules of Practice and Procedure. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Supreme Court and are not a part of the rule. As such, the Staff Notes represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court.” https://www.supremecourt.ohio.gov/ RuleAmendments/Archive.aspx (accessed on March 15, 2024). -20-
Civ.R. 15(C) requirements, the Third District interpreted Smith’s syllabus in light of this
fact. The Third District therefore added the words “ ‘if applicable under its terms,’ ” to
Smith’s holding. Id. at 115. This was because “[a]ny other interpretation would imply
that the specific requirements of Civ.R. 15(C) were meaningless.” Id. Consequently, in
will contest actions, “a complaint may be amended to add parties pursuant to Civ.R.
15(C), i.e., if its requirements are met. If these requirements are met and the
amendments are made, then these amendments will relate back to the date the initial
complaint was filed and in so doing avoid application of the * * * limitation period.” Id.
{¶ 54} After considering the facts of the case before it, the Third District found that
Civ.R. 15(C) had not been satisfied. As a result, the court affirmed the dismissal of the
will contest complaint. Weaver, 26 Ohio App.3d at 115-116, 498 N.E.2d 496. In that
particular action, the complaint had named two will beneficiaries, but it had not included
two others (two churches) or the executor. Id. at 113. The court of appeals found the
initial condition in Civ.R. 15(C) was satisfied because appellants were not trying to change
their cause of action. However, the last two conditions were not satisfied because
appellants had failed to submit evidentiary material showing the churches had notice of
the action or knew or should have known the action would have been brought against
them but for a mistake about the identify of a proper party. Id. at 115-116.
{¶ 55} Other courts have also required satisfaction of the Civ.R. 15(C)
requirements in this situation. E.g., Patzer v. Patzer, 10th Dist. Franklin No. 83AP-813,
1984 WL 4675, *1 (Mar. 15, 1984); Fortney v. Fortney, 5th Dist. Fairfield No. 45-CA-88,
1989 WL 67256, *3 (June 12, 1989); Kocis v. Chorba, 6th Dist. Ottawa No. OT-98-033, -21-
1999 WL 173638, *1 (Mar. 31, 1999).
{¶ 56} In Kocis, the trial court had previously dismissed the will contest action due
to lack of jurisdiction, based on failure to name necessary parties. However, the Sixth
District Court of Appeals reversed and remanded the case. See Kocis v. Chorba, 6th
Dist. Ottawa No. OT-97-033, 1998 WL 135078, *2 (Mar. 20, 1998) (finding the trial court
could consider amendment under Civ.R. 15(C) and there was not a lack of jurisdiction).
On remand, the trial court again dismissed the case, and another appeal was taken. This
time, the Sixth District Court of Appeals affirmed the dismissal because, on remand, the
appellant failed to put forth any evidence about compliance with Civ.R. 15(C). Id.
{¶ 57} During its discussion, the Sixth District noted that:
Apparently, some confusion still exists as to whether parties may be
added, rather than just substituted, to a will contest action pursuant to Civ.R.
15(C). Appellee, citing Kraly v. Vannewhirk (1994), 69 Ohio St.3d 627, 635
N.E.2d 323, still maintains that parties may not be added, only substituted.
However, Smith v. Klem, supra, which has not been overruled, was specific
in its application of the rule to permit the addition of parties in will contest
actions. See also, Trubulas v. Doland (1987), 39 Ohio App.3d 62, 528
N.E.2d 1313, reversed on other grounds, 42 Ohio St.3d 8, 536 N.E.2d 642
and Weaver v. Donnerburg (1985), 26 Ohio App.3d 112, 498 N.E.2d 496
(pursuant to Civ.R. 15(C), parties may be added, not just substituted, in a
will contest action). In Kraly v. Vannewhirk, supra the issue involved the
addition of parties in an action to enforce coverage under a contract for -22-
uninsured/underinsured motorist insurance and is, therefore, not applicable
to this case.
Kocis, 6th Dist. Ottawa No. OT-98-033, 1999 WL 173638, at *1, fn. 1.
{¶ 58} Despite the Sixth District’s mention of confusion, the Supreme Court of Ohio
declined further review in Kocis. See Kocis v. Chorba, 86 Ohio St.3d 1437, 713 N.E.2d
1049 (1999). Moreover, the Supreme Court of Ohio has never cited or discussed either
Smith or Kelm in a relevant way since they were decided. And more recently, the Third
District has adhered to the position it took in Weaver. See Elliot v. Moeller, 3d Dist. Allen
No. 1-13-58, 2014-Ohio-4136, ¶ 5-6. See also Middlebrooks v. Beamon, 1st Dist.
Hamilton No. C-210641, 2022-Ohio-2886, ¶ 8-10 (will contest complaint may be amended
to add a party, but the trial court properly dismissed the case because appellant failed to
comply with Civ.R. 15(C)).
{¶ 59} As to subject matter jurisdiction, it “refers to the constitutional or statutory
power of a court to adjudicate a particular class or type of case.” State v. Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 23, citing Pratts v. Hurley, 102 Ohio
St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12, and 34. “ ‘A court's subject-matter
jurisdiction is determined without regard to the rights of the individual parties involved in
a particular case.’ ” Id., quoting Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-
Ohio-4275, 21 N.E.3d 1040, ¶ 19. “Rather, the focus is on whether the forum itself is
competent to hear the controversy.” Id.
{¶ 60} Probate courts are courts of limited jurisdiction, and proceedings “are
restricted to those actions permitted by statute and by the Constitution.” Corron v. -23-
Corron, 40 Ohio St.3d 75, 77, 531 N.E.2d 708 (1988). By statute, probate courts have
exclusive jurisdiction over various matters, including issues pertaining to administration
and construction of wills, conduct of fiduciaries, and hearing and determining actions to
contest the validity of wills. R.C. 2101.24(A)(1)(a)-(e), (k), (m), (p), (aa), and (bb).
Therefore, the probate court here would have had jurisdiction over all the subject matters
in question, including a will contest.
{¶ 61} This is consistent with the decisions which held, after Smith, 70 Ohio St.2d
213, 436 N.E.2d 1005, and Kelm, 6 Ohio St.3d 16, 450 N.E.2d 1171, that “joinder of
‘necessary’ parties in will contest actions, is no longer jurisdictional, but [is] governed by
the Civil Rules.” Kocis, 6th Dist. Ottawa No. OT-97-033, 1998 WL 135078, at *2, citing
Trubulas v. Doland, 39 Ohio App.3d 62, 65, 528 N.E.2d 1313 (1st. Dist.1987), rev’d on
other grounds, 42 Ohio St.3d 8, 536 N.E.2d 642 (1989). See also Simpson v. Simpson,
12th Dist. Butler No. CA95-10-180, 1996 WL 507347, *1-2 (Sept. 9, 1996) (the trial court
erred in dismissing a will contest action for lack of jurisdiction based on appellant’s failure
to name necessary parties). We agree that failing to name necessary parties is not a
jurisdictional defect.
{¶ 62} In the case before us, Michael’s “complaint” was defective, as indicated,
because he failed to include necessary parties. As also noted, Michael filed this
document on October 4, 2022, more than ten months before the August 23, 2023
magistrate’s decision. However, in the interim, Michael made no attempt to amend the
pleading to correct the defect.
{¶ 63} The probate court’s treatment of Michael’s filing as “correspondence,” while -24-
not explained, may be due to the fact that Michael failed to comply with filing
requirements. First, Michael never attempted to have the complaint served as required
by Civ.R. 73(C) and (E) and Civ.R. 4 - 4.6, which include furnishing the clerk with sufficient
copies for service. See Civ.R. 4(B). Under Mont. Co. P.C.R. 57.2(F), Michael was also
required to electronically file instructions for service, and the clerk would then issue a
summons and process the type of service that was requested. Michael never complied
with this rule.
{¶ 64} Michael also failed to qualify as an indigent litigant by filing an affidavit of
indigency. See R.C. 2323.311(A) and (B)(1). “R.C. 2323.31 allows courts of common
pleas to require an advance deposit as security for fees or costs when a civil action is
filed.” Crenshaw v. Howard, 2022-Ohio-3914, 200 N.E.3d 335, ¶ 34 (8th Dist.), citing
R.C. 2323.31. As relevant, here, R.C. 2323.30 also states that: “In all actions in which
the plaintiff is a nonresident of the county in which the action is brought * * * or any party
required to furnish security under section 2323.31 of the Revised Code, the plaintiff shall
deposit cash or furnish security for costs.” Michael was clearly not a resident of
Montgomery County, as he was imprisoned at the Madison Correctional Facility in
London, Ohio, at the time.
{¶ 65} Consistent with the above statutes, the probate court rules state that: “A
deposit is required as security and shall be paid electronically.” Mont. Co. P.C.R.
58.1(C). The probate court has also established fees for various matters. See https://
www.mcohio.org/474/Fees (accessed on March 14, 2024). An example is collection of
$3.00 for each matter filed, in order to procure and maintain computer systems, per R.C. -25-
2101.162. See Mont.Co. P.C.R. 58.1(B)(1). An additional $10.00 charge is assessed
for each matter filed, including civil actions, for the same purposes. Id. at 58.1(B)(2).
Other authorized fees for filing actions include $15.00 for implementing resolution
procedures and $15.00 for special project fees for various items. Id. at 58.1(B)(3) and
(4).
{¶ 66} Under R.C. 2323.311(B)(1), “[i]n order to qualify as an indigent litigant, the
applicant shall file with the court in which a civil action or proceeding is filed an affidavit
of indigency in a form approved by the supreme court, or, until that court approves such
a form, a form that requests substantially the same financial information as the financial
disclosure and affidavit of indigency form used by the public defender for the appointment
of counsel in a criminal case.” In line with this statute, the Supreme Court of Ohio has
provided a probate form for affidavits of indigency. See Form 26.8, https://www.
supremecourt.ohio.gov/docs/ LegalResources/Rules/superintendence/probate_forms
(accessed March 15, 2024).
{¶ 67} R.C. 2323.311(B)(3) also states that: “Upon the filing of a civil action or
proceeding and the affidavit of indigency under division (B)(1) of this section, the clerk of
the court shall accept the action or proceeding for filing.” Because Michael never
complied with this requirement, the clerk was not required to accept his “complaint” as
such for filing. The complaint, therefore, was never accepted, but not exactly for the
reason the trial court expressed. Compare Woodgeard v. Hines, 4th Dist. Hocking No.
22CA7, 2023-Ohio-2362, ¶ 19 (because appellant “did not file an affidavit of indigency
prior to filing his objections [to a magistrate’s decision], the trial court did not abuse its -26-
discretion in requiring the payment of the fee prior to considering his objections”). Again,
while the trial court never indicated why it was filing Michael’s documents as
“correspondence,” this may have been the reason.
{¶ 68} We have previously said that deciding “indigence for purposes of whether
a plaintiff should be required to pay filing fees and court costs ‘is typically granted liberally
in order to preserve the due process rights of litigants and guarantee an access to judicial
process and representation.’ ” Guisinger v. Spier, 166 Ohio App.3d 728, 2006-Ohio-
1810, 853 N.E.2d 320, ¶ 6 (2d Dist.), quoting Evans v. Evans, 10th Dist. Franklin Nos.
04AP-816 & 04AP-1208, 2005-Ohio-5090, ¶ 23. Accord In re Adoption of U.I., 2d Dist.
Montgomery No. 29908, 2024-Ohio-682, ¶ 36. However, these considerations do not
apply where a litigant fails to properly present the indigency issue to the court.
{¶ 69} The Supreme Court of Ohio has “ ‘repeatedly declared that ‘pro se litigants
* * * must follow the same procedures as litigants represented by counsel.’ ” State ex
rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764, ¶ 10, quoting
State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5.
Furthermore, the rule is “ ‘well established that pro se litigants are presumed to have
knowledge of the law and legal procedures and that they are held to the same standard
as litigants who are represented by counsel.’ ” State ex rel. Fuller v. Mengel, 100 Ohio
St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job &
Family Servs., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238.
{¶ 70} Consequently, while the trial court could properly have construed Michael’s
document as an effort to contest the will, Michael was not harmed because his will contest -27-
action (even if actually attempted) was never successfully commenced. As a result, this
is not the “extremely rare case involving exceptional circumstances” that would justify
applying the plain error doctrine. Goldfuss, 79 Ohio St.3d 116, 679 N.E.2d 1099, at
syllabus.
{¶ 71} Based on the preceding discussion, we conclude that Michael’s apparent
assignment of error is without merit.
III. Conclusion
{¶ 72} The judgment of the trial court is affirmed.
LEWIS, J. and HUFFMAN, J., concur.