In re Estate of Garza

SUPREME COURT CASES

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State: Ohio

Docket No: 2013-Ohio-2750

Case Date: 06/27/2013

Preview:[Cite as In re Estate of Garza, 2013-Ohio-2750.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re:                                                                                            :
                                                                                                                                    No. 12AP-1000
Estate of Gilberto Garza, Jr.,                                                                    :                                 (Prob. No. 525604)
(Demencia Vargas-Ortega et al.,                                                                   :                                 (REGULAR CALENDAR)
Appellants).                                                                                      :
D    E    C    I    S    I    O    N
Rendered on June 27, 2013
John L. Onesto, for appellants.
Baxter & Borowicz Co., L.P.A., and Louis M. Borowicz, for
appellees.
APPEAL from the Franklin County Court of Common Pleas,
Probate Division.
SADLER, J.
{¶ 1}   Appellants,  Demencia  Vargas-Ortega                                                      ("Demencia")  and  Joshua  Mark
Vargas  ("Joshua"),  co-executors  of  the  estate  of  Gilberto  Garza,  Jr.,  appeal  from  a
judgment of the Franklin County Court of Common Pleas, Probate Division.   For the
reasons that follow, we dismiss this appeal for lack of standing.
I.  FACTS AND PROCEDURAL HISTORY
{¶ 2}   On  August  14,  2007,  while  at  work  for  his  employer,  Sears  Logistics
Services, Inc., Gilberto Garza, Jr. ("the decedent"), became trapped in an industrial trash
compactor and died at the scene from injuries sustained when he fell inside and the trash
compactor was activated.    The decedent had a will devising real property located in
Hildalgo County, Texas, to his aunt, Demencia, and his nephew, Joshua.   However, the

No. 12AP-1000                                                                                    2
June  19,  2002 will made no provisions for any other property nor did it contain a
residuary clause.
{¶ 3}   Upon request of appellants, the will was admitted to probate, and appellants
were appointed to serve as co-executors of the estate.    Appellees, consisting of the
decedent's father, Gilberto Garza, Sr. ("Gilberto, Sr."), and the decedent's three siblings,
Jennifer Garza, Henry Garza, and Robert Garza, moved to have appellants removed as co-
executors.  Said motion was denied by the trial court.
{¶ 4}   The purpose of opening the estate was to assert wrongful death and survival
claims  against  decedent's  employer.    A  settlement  in  that  action  was  reached  and
appellants filed an application to approve settlement and allocation of the net settlement
proceeds, consisting of $257,210.23.   Specifically, appellants asserted that 100 percent of
the net settlement proceeds should be allocated to Demencia and Joshua as beneficiaries
of the survival claim and none of the settlement proceeds should be allocated to the
wrongful death action.   Appellees challenged the application and argued 100 percent of
the settlement proceeds should be allocated as a wrongful death settlement available only
to the decedent's next of kin, specifically appellees.   Additionally, appellees argued that
even if allocated as 100 percent to the survival claims, because the will did not contain a
residuary clause, the funds would not pass to Demencia and Joshua, but, rather, would
pass intestate to decedent's father.
{¶ 5}   The matter proceeded to a hearing before a magistrate.   After consideration
of the evidence presented at the hearing, including the testimony of six witnesses and
admission of depositions and exhibits, the magistrate rendered a decision including
findings of fact and conclusions of law.  The magistrate found there was a close, personal,
mutual, loving relationship between decedent and Demencia, decedent and Joshua, and
decedent  and  Gilberto,  Sr.    The  magistrate  also  found  there  was  a  mutual,  loving
relationship between decedent and Robert.   With respect to the accident, the magistrate
found decedent survived "seconds" in the trash compactor prior to his death.
{¶ 6}   In the conclusions of law, the magistrate concluded wrongful death actions
and survival actions are distinct legal remedies.   A wrongful death action is brought by a
fiduciary of the estate for the exclusive benefit of the beneficiaries defined by R.C. 2125.02
to cover pecuniary and emotional loss suffered as a result of the premature death of the

No. 12AP-1000                                                                                   3
decedent.    In contrast, the magistrate concluded a survival action is brought by the
decedent's fiduciary for the benefit of the decedent's estate for injuries suffered while the
decedent was still alive.
{¶ 7}   Because the will present in this case did not contain a residuary clause,
decedent's  heirs,  defined  by  R.C.  2105.06,  were  entitled  to  any  proceeds  from  the
settlement allocated to the survival claim.    In this case, the magistrate determined,
because decedent had neither a surviving spouse nor surviving children at the time of his
death,  decedent's  only  heir  is  Gilberto,  Sr.    With  respect  to  the  wrongful  death
beneficiaries, the magistrate concluded those consisted of appellees Gilberto, Sr., Robert,
Henry, and Jennifer.
{¶ 8}   The magistrate also concluded that Demencia and Joshua were not entitled
to any amounts from the net settlement proceeds, and that 80 percent of the proceeds be
allocated to the wrongful death claims and 20 percent be allocated to the survival claims.
Accordingly, the magistrate allocated  $207,983.29 to the wrongful death claims and
further allocated 79 percent of that amount to Gilberto, Sr., and 7 percent to each sibling.
Therefore,  $51,995.82 was allocated to the survival claims to be delivered to the co-
fiduciaries of the estate for administration.
{¶ 9}   Appellants filed objections to the magistrate's decision challenging both the
magistrate's factual findings and conclusions of law.   Specifically, appellants challenged
the magistrate's factual determinations regarding the relationships between decedent and
his family, as well as the amount of time decedent survived in the trash compactor before
his death.   Appellants also challenged the magistrate's conclusions that (1) R.C. 2105.06
heirs are entitled to the proceeds of the survival claim, (2) the damages include loss of
consortium, and (3) the wrongful death proceeds should be greater than the survival
proceeds.  Appellees filed a memorandum contra and appellants replied.  After review, the
trial court overruled appellants' objections and adopted the decision of the magistrate.
II.  ASSIGNMENTS OF ERROR
{¶ 10} This appeal followed, and appellants bring the following four assignments of
error for our review:

No. 12AP-1000                                                                                      4
I.  The finding that there was a mutual loving relationship
between Decedent and his father and brother was against the
manifest weight of the evidence before the Court.
II.  The finding that the decedent survived "seconds" in an
industrial  compactor  prior  to  his  death  was  against  the
manifest weight of the uncontested and un-refuted evidence
before the Court.
III.  The Magistrate erred when he found that, because the
Will  contained  no  residuary  clause,  the  proceeds  of  the
survival claim should pass to Decedent's heirs under Ohio
Revised Code Section 2105.06.
IV.  The apportionment of the settlement to the survival claim
and the wrongful death claim was not supported by evidence.
III.  DISCUSSION
A.  Standing
{¶ 11} After oral arguments, this court requested briefing on the issue of whether
appellants,  as  co-executors  of  the  estate,  have  standing  to  appeal  the  trial  court's
judgment in this case.   In accordance with this court's request, the parties submitted
supplemental briefs.
{¶ 12} " 'It is the duty of a fiduciary of an estate to serve as representative of the
entire estate.' "   Wanamaker v. Davis, 2d Dist. No. 2005-CA-151, 2007-Ohio-4340, ¶ 20,
quoting                                                                                            Elam v. Hyatt Legal Servs., 44 Ohio St.3d 175, 176 (1989).   Such fiduciary, in the
administration of an estate, owes a duty to beneficiaries to act in a manner which protects
the beneficiaries' interests.  Id.
{¶ 13} In order to establish a right to an appeal from an order of the probate court,
a fiduciary, such as an executor, must demonstrate that he is aggrieved by the judgment in
his fiduciary capacity or that he is personally affected and appeals in his individual
capacity.  In re Estate of Wirebaugh, 84 Ohio App.3d 1, 3 (6th Dist.1992), citing                  Fineman
v. Cent. Natl. Bank of Cleveland, 87 Ohio Law Abs. 236, 241 (8th Dist.1961); Skelly v.
Graybill, 109 Ohio App. 277, 283-86 (5th Dist.1959); Doty v. Peters, 106 Ohio App. 435,
439 (12th Dist.1958); In re Estate of Hoffman, 68 Ohio App. 47 (1st Dist.1941); First Natl.
Bank of Cincinnati v. Rawson, 54 Ohio App. 285 (1st Dist.1936).  Ordinarily, an executor

No. 12AP-1000                                                                                     5
is not an aggrieved party in a proceeding which affects only the rights of the beneficiaries.
Id., citing Fineman; In re Estate of Byerly, 74 Ohio Law Abs. 586, 587 (2d Dist.1956).  In
such a proceeding, the executor/beneficiary must appeal in his individual capacity or he is
presumed to be satisfied with the judgment of the lower court.   Id., citing Fineman;
Rawson.   Indeed, where the executor does not represent all of the beneficiaries and/or
those beneficiaries appear to resist the executor's contentions that the estate has been
prejudiced by a probate court's order, courts have determined that the executor cannot
appeal that order.   Id., citing Cent. Bank Co. v. McCarthy, 73 Ohio App. 431, 433 (1st
Dist.1943).
{¶ 14} The beneficiaries in this case, Gilberto, Sr., Robert, Henry, and Jennifer,
have not appealed from the trial court's judgment.   Nonetheless, appellants contend that,
as co-executors of the estate, they have standing to appeal the trial court's judgment
because (1) the trial court failed to properly identify the estate's beneficiaries, and (2) the
80/20 allocation of the net settlement proceeds damaged the estate.    According to
appellants, through this appeal, they are "attempting to rectify prejudice to the Estate and
maximize the beneficial interests to the eventual beneficiaries of the Estate once those
beneficiaries are properly determined."  (Supp. Brief, 2.)
{¶ 15} In  this  case,  it  is  without  question  that  the  will  admitted  to  probate
bequeathed no property other than real property in Hildalgo County, Texas, nor did it
contain a residuary clause.   Thus, any settlement proceeds allocated to the survival claim
would pass in accordance with R.C. 2105.06 to Gilberto, Sr., because decedent did not
have a surviving spouse, surviving children or surviving mother.
{¶ 16} To the extent appellants assert that, in their fiduciary capacity, they are
appealing to protect the assets of the estate for the "proper beneficiaries," they are in
essence contesting the will as admitted to probate.    However, it is well-settled that,
pursuant to R.C. 2741.01, a will contest action may be brought only by one who has a
direct pecuniary interest in the estate of the putative testator that would be defeated or
impaired if the will admitted to probate is a valid will.   Moore v. Dague, 46 Ohio App.2d
75, 85-86 (10th Dist.1975), citing                                                                Steinberg v. Cent. Trust Co., 18 Ohio St.2d 33 (1969)
(decided under former analogous section R.C. 2741.01).   Moreover, an executor has no
ground to appeal when the issue involves the interpretation of the will.  Fried v. Fried, 65

No. 12AP-1000                                                                                 6
Ohio App.3d 61, 63 (8th Dist.1989), citing Boulger v. Evans, 54 Ohio St.2d 371, 375
(1978).   Thus, as co-executors of the estate, appellants have no pecuniary interest in the
estate, and to the extent they are attempting to challenge the trial court's determination
that they are not beneficiaries under the will, such an action could be sustained only if
brought in their individual capacities.  In re Estate of Hoffman at 50 (an administrator of
an estate cannot use an appeal to advance his personal interests to the disadvantage of
other parties).
{¶ 17}                                                                                        Additionally, as previously stated, where the executor does not represent all
of the beneficiaries and/or those beneficiaries appear to resist the executor's contentions
that the estate has been prejudiced by a probate court's order, courts have determined
that the executor cannot appeal that order.   Wirebaugh.   Here, the settlement amounts
apportioned to the survivorship claim would be held as an asset of the estate, but with no
residuary clause, such asset would pass, in accordance with R.C. 2105.06, to Gilberto, Sr.,
who, in this appeal, resists and is actively opposing the co-executors' contention that the
estate has been prejudiced by the probate court's order.    Accordingly, we conclude
appellants, as co-executors of the estate, have not been aggrieved by the probate court's
judgment and, therefore, have no standing to appeal the same.
IV.  CONCLUSION
{¶ 18} Because, in their capacity as co-executors of the estate of Gilberto Garza, Jr.,
they have not been aggrieved by the probate's court's judgment, appellants lack standing
to appeal the judgment of the probate court and their appeal is hereby dismissed.
Appeal dismissed.
BROWN and CONNOR, JJ., concur.

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