[Cite as In re Guardianship of LaRue, 2024-Ohio-692.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
GUARDIANSHIP OF JUANITA : CASE NO. CA2023-08-060 LARUE : OPINION 2/26/2024 :
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2020 GI 1661
Donnell & Thomas Law, LLC, and Titus G. Donnell, for appellant.
Law Office of Vivian L. Martin, LLC, and Vivian L. Martin, for appellee.
PIPER, J.
{¶ 1} Appellant, The Laurels of Milford Nursing Home, LLC ("The Laurels"),
appeals from the Clermont County Probate Court's entry approving and settling the
account of Vivian Martin as guardian of the estate of Juanita LaRue. 1 For the reasons
outlined below, we reverse the probate court's decision and remand the matter for further
1. Pursuant to Loc.R. 6(a), we sua sponte remove this case from the accelerated calendar for the purposes of issuing this opinion. Clermont CA2023-08-060
proceedings.
I. Facts and Procedural History
{¶ 2} On December 7, 2020, after a series of visits from Clermont County Adult
Protective Services (APS), Juanita LaRue was placed in The Laurels of Milford nursing
home due to her declining physical and mental health. On December 10, 2020, APS filed
a petition for protective services in the probate court. APS sought an order that LaRue
remain at The Laurels, that a guardianship on her estate and person be established to
assist with the Medicaid application process, and that LaRue's personal property and
health care be managed by a guardian. On December 22, 2020, the probate court issued
an order of protective services on the terms sought.
{¶ 3} On January 12, 2021, attorney Vivian Martin applied to the probate court to
be appointed as guardian of LaRue's estate. On April 15, 2021, the probate court issued
letters of guardianship to Martin as guardian of LaRue's estate. Over the next several
months, The Laurels was in contact with Martin and sought her cooperation in qualifying
LaRue for Medicaid coverage. Martin failed over the course of the first year of
guardianship to secure Medicaid coverage for LaRue. On June 24, 2022, The Laurels
filed a complaint in probate court against Martin, alleging that Martin had been inactive in
securing necessary health benefits for LaRue, and LaRue had been denied Medicaid due
to Martin's lack of cooperation. Martin answered on July 15, 2022 denying the allegations.
A hearing was set for August 19, 2022, but The Laurels' representative failed to attend,
and on August 26, 2022, the probate court dismissed the complaint. However, The
Laurels acknowledged Martin met with their attorney on January 17, 2023. At that time,
Martin produced the necessary documentation to qualify LaRue for Medicaid coverage.
{¶ 4} LaRue passed away on April 2, 2023. On June 6, 2023, Martin filed an
Application to Expend Funds Post-Death listing some of LaRue's outstanding debts. An
-2- Clermont CA2023-08-060
attached billing statement from The Laurels indicated that LaRue owed an outstanding
balance of $124,282.46. Martin stated that the balance could be partially paid from the
funds in the guardianship checking account and LaRue's assets would then be completely
expended. On June 9, 2023, the probate court authorized the expenditure of funds and
ordered payment of $2,157.45 to The Laurels from the checking account.
{¶ 5} On July 18, 2023, Martin filed her final account in LaRue's guardianship,
and the probate court scheduled a hearing on the final account for August 23, 2023.
Creditors had until August 18, 2023 to file exceptions to the account. On July 25, 2023,
Martin filed a motion for waiver of service of the account on Donald LaRue, LaRue's only
next of kin, because Martin was unable to locate him. In the same motion, Martin further
requested that the probate court vacate the August 23, 2023 hearing and close the
guardianship. On July 26, 2023, the probate court entered an order waiving service on
Donald LaRue and ordering that the August 23, 2023 hearing be vacated and the matter
closed. On the same day, the probate court journalized an entry approving and settling
the final account, and discharging Martin as fiduciary. The record does not reflect that
The Laurels received formal notice of any of the aforesaid filings.
{¶ 6} The Laurels appealed on August 24, 2023.
II. Legal Analysis
{¶ 7} The Laurels' sole assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION SETTLING THE GUARDIAN'S FINAL ACCOUNT WITHOUT HOLDING A HEARING PURSUANT TO R.C. 2109.32.
{¶ 8} On appeal, The Laurels argues that the probate court abused its discretion
by not holding a hearing to approve the guardian's final accounting as mandated by R.C.
2109.32, thereby depriving The Laurels of the opportunity to assert its right to file
exceptions to the account. We agree.
-3- Clermont CA2023-08-060
{¶ 9} R.C. 2109.302(A) requires that "every guardian or conservator shall render
a final account within thirty days after completing the administration of the ward's estate
or within any other period of time that the court may order." R.C. 2109.32(A) mandates
that the probate court set the final account for a hearing not earlier than 30 days after the
filing of the account. At the hearing the probate court "shall inquire into, consider, and
determine all matters relative to the account and the manner in which the fiduciary has
executed the fiduciary's trust." R.C. 2109.32(A).
{¶ 10} R.C. 2109.33 provides that, "[a guardian] may serve notice of the hearing
upon the fiduciary's account to be conducted under section 2109.32 of the Revised Code,
or may cause the notice to be served, upon any person who is interested in the estate or
trust, including creditors as the court may direct." Separate and apart from the service of
notice of hearing on the account, R.C. 2109.33 further provides:
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.
The Laurels is a creditor of LaRue's estate. R.C. 2109.33 recognizes that a "person
interested" in the estate includes creditors of the estate. Thus, The Laurels is authorized
by R.C. 2109.33 to file exceptions to a guardian's account.
{¶ 11} In this case, Martin filed her final guardian's account on July 18, 2023 and
the probate court scheduled a hearing for August 23, 2023. On July 25, 2023, Martin
requested that the probate court waive service of the account upon LaRue's next of kin,
vacate the August 23, 2023 hearing, and close the guardianship. The next day, July 26,
2023, the probate court granted Martin's motion, vacated the hearing and closed LaRue's
guardianship. By doing so, the probate court failed to comply with the hearing
-4- Clermont CA2023-08-060
requirements set out in R.C. 2109.32 and denied The Laurels' right to file an exception to
the account pursuant to R.C. 2109.33. As the hearing had been scheduled for August
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[Cite as In re Guardianship of LaRue, 2024-Ohio-692.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
GUARDIANSHIP OF JUANITA : CASE NO. CA2023-08-060 LARUE : OPINION 2/26/2024 :
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2020 GI 1661
Donnell & Thomas Law, LLC, and Titus G. Donnell, for appellant.
Law Office of Vivian L. Martin, LLC, and Vivian L. Martin, for appellee.
PIPER, J.
{¶ 1} Appellant, The Laurels of Milford Nursing Home, LLC ("The Laurels"),
appeals from the Clermont County Probate Court's entry approving and settling the
account of Vivian Martin as guardian of the estate of Juanita LaRue. 1 For the reasons
outlined below, we reverse the probate court's decision and remand the matter for further
1. Pursuant to Loc.R. 6(a), we sua sponte remove this case from the accelerated calendar for the purposes of issuing this opinion. Clermont CA2023-08-060
proceedings.
I. Facts and Procedural History
{¶ 2} On December 7, 2020, after a series of visits from Clermont County Adult
Protective Services (APS), Juanita LaRue was placed in The Laurels of Milford nursing
home due to her declining physical and mental health. On December 10, 2020, APS filed
a petition for protective services in the probate court. APS sought an order that LaRue
remain at The Laurels, that a guardianship on her estate and person be established to
assist with the Medicaid application process, and that LaRue's personal property and
health care be managed by a guardian. On December 22, 2020, the probate court issued
an order of protective services on the terms sought.
{¶ 3} On January 12, 2021, attorney Vivian Martin applied to the probate court to
be appointed as guardian of LaRue's estate. On April 15, 2021, the probate court issued
letters of guardianship to Martin as guardian of LaRue's estate. Over the next several
months, The Laurels was in contact with Martin and sought her cooperation in qualifying
LaRue for Medicaid coverage. Martin failed over the course of the first year of
guardianship to secure Medicaid coverage for LaRue. On June 24, 2022, The Laurels
filed a complaint in probate court against Martin, alleging that Martin had been inactive in
securing necessary health benefits for LaRue, and LaRue had been denied Medicaid due
to Martin's lack of cooperation. Martin answered on July 15, 2022 denying the allegations.
A hearing was set for August 19, 2022, but The Laurels' representative failed to attend,
and on August 26, 2022, the probate court dismissed the complaint. However, The
Laurels acknowledged Martin met with their attorney on January 17, 2023. At that time,
Martin produced the necessary documentation to qualify LaRue for Medicaid coverage.
{¶ 4} LaRue passed away on April 2, 2023. On June 6, 2023, Martin filed an
Application to Expend Funds Post-Death listing some of LaRue's outstanding debts. An
-2- Clermont CA2023-08-060
attached billing statement from The Laurels indicated that LaRue owed an outstanding
balance of $124,282.46. Martin stated that the balance could be partially paid from the
funds in the guardianship checking account and LaRue's assets would then be completely
expended. On June 9, 2023, the probate court authorized the expenditure of funds and
ordered payment of $2,157.45 to The Laurels from the checking account.
{¶ 5} On July 18, 2023, Martin filed her final account in LaRue's guardianship,
and the probate court scheduled a hearing on the final account for August 23, 2023.
Creditors had until August 18, 2023 to file exceptions to the account. On July 25, 2023,
Martin filed a motion for waiver of service of the account on Donald LaRue, LaRue's only
next of kin, because Martin was unable to locate him. In the same motion, Martin further
requested that the probate court vacate the August 23, 2023 hearing and close the
guardianship. On July 26, 2023, the probate court entered an order waiving service on
Donald LaRue and ordering that the August 23, 2023 hearing be vacated and the matter
closed. On the same day, the probate court journalized an entry approving and settling
the final account, and discharging Martin as fiduciary. The record does not reflect that
The Laurels received formal notice of any of the aforesaid filings.
{¶ 6} The Laurels appealed on August 24, 2023.
II. Legal Analysis
{¶ 7} The Laurels' sole assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION SETTLING THE GUARDIAN'S FINAL ACCOUNT WITHOUT HOLDING A HEARING PURSUANT TO R.C. 2109.32.
{¶ 8} On appeal, The Laurels argues that the probate court abused its discretion
by not holding a hearing to approve the guardian's final accounting as mandated by R.C.
2109.32, thereby depriving The Laurels of the opportunity to assert its right to file
exceptions to the account. We agree.
-3- Clermont CA2023-08-060
{¶ 9} R.C. 2109.302(A) requires that "every guardian or conservator shall render
a final account within thirty days after completing the administration of the ward's estate
or within any other period of time that the court may order." R.C. 2109.32(A) mandates
that the probate court set the final account for a hearing not earlier than 30 days after the
filing of the account. At the hearing the probate court "shall inquire into, consider, and
determine all matters relative to the account and the manner in which the fiduciary has
executed the fiduciary's trust." R.C. 2109.32(A).
{¶ 10} R.C. 2109.33 provides that, "[a guardian] may serve notice of the hearing
upon the fiduciary's account to be conducted under section 2109.32 of the Revised Code,
or may cause the notice to be served, upon any person who is interested in the estate or
trust, including creditors as the court may direct." Separate and apart from the service of
notice of hearing on the account, R.C. 2109.33 further provides:
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.
The Laurels is a creditor of LaRue's estate. R.C. 2109.33 recognizes that a "person
interested" in the estate includes creditors of the estate. Thus, The Laurels is authorized
by R.C. 2109.33 to file exceptions to a guardian's account.
{¶ 11} In this case, Martin filed her final guardian's account on July 18, 2023 and
the probate court scheduled a hearing for August 23, 2023. On July 25, 2023, Martin
requested that the probate court waive service of the account upon LaRue's next of kin,
vacate the August 23, 2023 hearing, and close the guardianship. The next day, July 26,
2023, the probate court granted Martin's motion, vacated the hearing and closed LaRue's
guardianship. By doing so, the probate court failed to comply with the hearing
-4- Clermont CA2023-08-060
requirements set out in R.C. 2109.32 and denied The Laurels' right to file an exception to
the account pursuant to R.C. 2109.33. As the hearing had been scheduled for August
23, 2023, The Laurels had until August 18, 2023 to file exceptions.
{¶ 12} The proper mechanism to challenge whether the guardian has properly
administered the estate is to file exceptions to the account pursuant to R.C. 2109.33. See
In re Skrzyniecki, 118 Ohio App.3d 67, 72 (6th Dist.1997). Pursuant to R.C.
2111.14(A)(3), the duties of a guardian of a ward's estate includes the duty "to pay all just
debts due from the ward out of the estate in the possession or under the control of the
guardian * * *." The charges LaRue accrued as a resident of The Laurels are LaRue's
"just debts" and therefore Martin had a duty to pay them. This duty includes the obligation
to make timely application for Medicaid benefits. See In re Ewanicky, 8th Dist. Cuyahoga
No. 81742, 2003-Ohio-3351, ¶ 12-14 (holding that guardian was personally liable for
ward's debt accrued due to guardian's negligence in failing to timely apply for Medicaid).
By vacating the August 23, 2023 hearing, the probate court deprived The Laurels of the
opportunity to file exceptions to the account.
Conclusion
{¶ 13} In light of the foregoing, we conclude the probate court erred in vacating the
August 23, 2023 hearing and depriving The Laurels of the opportunity to file exceptions
to the account. Therefore, The Laurels' sole assignment of error is sustained and this
matter is reversed and remanded for further proceedings with the direction that the
probate court schedule a hearing on the final guardianship account.
{¶ 14} Judgment reversed and remanded for further proceedings consistent with
this opinion.
S. POWELL, P.J., and M. POWELL, J., concur.
-5-