In re Durkin

Ohio Court of Appeals June 13, 2018

In re Durkin, 2018 Ohio 2283 (2018)

Teodosio Lori Jones

Opinion

[Cite as In re Durkin,

2018-Ohio-2283

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: ESTATE OF VIRGINIA DURKIN C.A. No. 28661

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2015-ES-2539

DECISION AND JOURNAL ENTRY

Dated: June 13, 2018

TEODOSIO, Presiding Judge.

{¶1} Daniel O’Halloran appeals the judgment of the Summit County Court of Common

Pleas, Probate Division, overruling his objections to the magistrate’s decision. We affirm in part

and reverse and remand in part.

{¶2} In September 2015, an application to probate the will of Virginia Durkin was filed

in the Probate Court of Summit County, Ohio. John Durkin, the son of Virginia Durkin, was the

executor of the estate. Daniel O’Halloran, the grandson of Virginia Durkin, was a beneficiary of

the estate, along with his two sisters. Mr. O’Halloran’s mother (the daughter of Virginia

Durkin), Patricia O’Halloran, had predeceased Virginia Durkin. Ms. Durkin’s will divided her

estate one-half to Mr. Durkin and one-half to Ms. O’Halloran’s three children.

{¶3} During the course of the matter, Mr. O’Halloran filed various motions, including

a motion to remove John Durkin as the fiduciary for the estate, a motion to remove Gregory 2

Plesich as attorney for the estate, and a motion to compel. Attorney Plesich filed a motion to

require Mr. O’Halloran to produce copies of documents received in response to subpoenas issued

to various banks and two motions for contempt. In February 2017, a magistrate’s decision

denied Mr. O’Halloran’s motions, granted $500.00 for contempt against Mr. O’Halloran, and

addressed exceptions to the inventory of the estate. Mr. O’Halloran filed objections to the

magistrate’s decision, which were overruled by the trial court’s judgment entry of May 8, 2018.

{¶4} Mr. O’Halloran now appeals, raising eight assignments of error.

II.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT DANIEL O’HALLORAN’S [] MOTION FOR REMOVAL OF FIDUCIARY JOHN DURKIN [] PER R.C. 2019.50 (“PROCEEDINGS WHEN ASSETS CONCEALED OR EMBEZZLED”), R.C. 2109.52 (JUDG[]MENT ON THE COMPLAINT”), R.C. 2109.53 (JUDGMENT AGAINST FIDUCIARY—REMOVAL[)], [R.C.] 2113.18 (“REMOVAL OF EXECUTOR OR ADMINISTRATOR”), AND [R.C.] 2109.24 (“RESIGNATION OR REMOVAL OF FIDUCIARY”).

{¶5} In his first assignment of error, Mr. O’Halloran argues the trial court erred by

denying his motion for the removal of the fiduciary, John Durkin. We disagree.

{¶6} “This Court reviews a trial court’s action with respect to a magistrate’s decision

for an abuse of discretion.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-

Ohio-3139, ¶ 17. “In so doing, we consider the trial court’s action with reference to the nature of

the underlying matter.” Id. at ¶ 18. Here, “[r]emoval of an executor rests within the sound

discretion of the trial court and a reviewing court will not reverse the decision absent a clear

showing of abuse of discretion.” Pio v. Ramsier,

88 Ohio App.3d 133

, 136 (9th Dist. 1993). An

abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

5 Ohio St.3d

217, 219 (1983). As a reviewing court applying the abuse of discretion standard, we may not

substitute our judgment for that of the trial court. Pons v. Ohio State Med. Bd.,

66 Ohio St.3d 619

, 621 (1993).

{¶7} We note at the outset that the first assignment of error references sections of the

Revised Code not raised in his arguments before the trial court. “Issues that were not raised to

the trial court may not be considered for the first time on appeal.” Rozhon v. Rozhon, 9th Dist.

Medina No. 05CA0075-M,

2006-Ohio-3118

, ¶ 18. To the extent these references make new

arguments that were not raised before the trial court, they are not properly before this Court for

consideration.

{¶8} In December 2016, Mr. O’Halloran motioned the trial court to remove Mr. Durkin

as the fiduciary, arguing that Mr. Durkin lied under oath and failed to communicate information

to Mr. O’Halloran. Mr. O’Halloran also presented these arguments at a hearing before the

magistrate in August 2016.

{¶9} Other than reiterating his belief that Mr. Durkin acted dishonestly, Mr.

O’Halloran does not provide this Court with a theory as to how the trial court abused its

discretion. “[A]n appellant’s assignment of error provides this Court with a roadmap to guide

our review.” Taylor v. Hamlin-Scanlon, 9th Dist. Summit No. 23873,

2008-Ohio-1912

, ¶ 12.

This Court declines to chart its own course when an appellant fails to provide guidance. Young

v. Slusser, 9th Dist. Wayne No. 08CA0019,

2008-Ohio-4650

, ¶ 7. “It is not this Court's duty to

create an appellant’s argument for him.” Thomas v. Bauschlinger, 9th Dist. Summit No. 27240,

2015-Ohio-281

, ¶ 8. It is an appellant’s duty to demonstrate his assigned error through an

argument that is supported by citations to legal authority and facts in the record; it is not the 4

function of this Court to construct a foundation for his claims. Ohio Edison Co. v. Williams, 9th

Dist. Summit No. 23530,

2007-Ohio-5028

, ¶ 9.

{¶10} Mr. O’Halloran has failed to demonstrate an abuse of discretion on the part of the

trial court. The first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [DANIEL O’HALLORAN’S] MOTION FOR REMOVAL OF GREGORY PLESICH [] AS ATTORNEY FOR THE ESTATE.

{¶11} In his second assignment of error, Mr. O’Halloran argues the trial court abused its

discretion by denying his motion for the removal of Gregory Plesich as the attorney for the

estate. We disagree.

{¶12} “[A] court has inherent authority to supervise members of the bar appearing

before it; this necessarily includes the power to disqualify counsel in specific cases.” Kala v.

Aluminum Smelting & Refining Co.,

81 Ohio St.3d 1

, 4 (1998). Trial courts enjoy broad

discretion when considering motions to disqualify counsel. Phillips v. Haidet,

119 Ohio App.3d 322

, 324 (3d Dist. 1997). “We review a trial court's determination regarding a motion to

disqualify counsel for an abuse of discretion.” Avon Lake Mun. Utilities Dept. v. Pfizenmayer,

9th Dist. Lorain No. 07CA009174,

2008-Ohio-344

, ¶ 13.

{¶13} When considering a motion to disqualify counsel, the Supreme Court of Ohio has

recognized the need to balance the interests of the moving and non-moving parties. Kala at 5.

Disqualification interferes with a client’s right to choose counsel and is a drastic measure which

courts should hesitate to impose except when absolutely necessary. Kala at 5-6. The moving

party must provide evidence that a need for the disqualification exists. Skycasters L.L.C. v. J.W.

Didado Elec. Inc., 9th Dist. Summit No. 23901,

2008-Ohio-4849

, ¶ 21. 5

{¶14} Mr. O’Halloran contends that Attorney Plesich violated the Ohio Rules of

Professional Conduct and the Civil Rules of Procedure. Mr. O’Halloran provides examples of

what he believes are violations of these rules, but has failed to cite to any authority whereby the

alleged violations necessitate the disqualification of an attorney.

{¶15} We conclude that Mr. O’Halloran failed to demonstrate that a need for the drastic

measure of disqualification exists. The second assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [DANIEL O’HALLORAN’S] MOTIONS TO COMPEL JOHN DURKIN TO SUPPLY ALL DOCUMENTATION RELEVANT TO THE VIRGINIA DURKIN ESTATE [], IN DIRECT CONTRADICTION OF [MR. DURKIN’S] FIDUCIARY RESPONSIBILITIES.

{¶16} In his third assignment of error, Mr. O’Halloran argues the trial court abused its

discretion in denying his motion to compel Mr. Durkin to provide all documentation relevant to

the estate. We disagree.

{¶17} A trial court has the inherent authority to control its docket and to decide

discovery matters. Evans v. Sayers, 4th Dist. Ross No. 04CA2783,

2005-Ohio-2135

, ¶ 19; Riggs

v. Richard, 5th Dist. Stark No. 2006CA00234,

2007-Ohio-490

, ¶ 15; Wooten v. Westfield Ins.

Co.,

181 Ohio App.3d 59

2009-Ohio-494

, ¶ 20 (8th Dist.). See also State ex rel. Grandview

Hosp. and Med. Ctr. v. Gorman,

51 Ohio St.3d 94

, 95 (1990) (“Trial courts have extensive

jurisdiction and power over discovery.”); State ex rel. Citizens for Open, Responsive &

Accountable Govt. v. Register,

116 Ohio St.3d 88

2007-Ohio-5542

, ¶ 18 (“[C]ourts have broad

discretion over discovery matters.”). A trial court’s ruling on a motion to compel discovery is

reviewed for an abuse of discretion. State ex rel. The V Cos. v. Marshall,

81 Ohio St.3d 467

, 469

(1998). 6

{¶18} In support of this assignment of error, Mr. O’Halloran contends that Mr. Durkin

committed misconduct in his role as power of attorney and that his motion to compel should

have been granted for discovery of documentation related to Mr. Durkin’s power of attorney for

Virginia Durkin. Mr. O’Halloran has failed, however, to demonstrate that the denial of his

motion to compel constituted an abuse of discretion. We again note that “an appellant’s

assignment of error provides this Court with a roadmap to guide our review.” Taylor, 2008-

Ohio-1912, at ¶ 12. This Court declines to chart its own course when an appellant fails to

provide guidance. Young,

2008-Ohio-4650

, at ¶ 7.

{¶19} Upon review, we cannot say the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. We conclude Mr. O’Halloran has failed to show an abuse of

discretion by the trial court. The third assignment of error is overruled.

ASSIGNMENT OF ERROR FOUR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DECIDED THAT THE BONDS INCLUDED IN THE INVENTORY WERE PROPERLY INCLUDED IN THE ESTATE, IN CONTRADICTION OF [VIRGINIA DURKIN’S] KNOWN ESTATE PLAN AND [MR. DURKIN’S] RESPONSIBILITY AS FIDUCIARY TO PRESERVE THAT ESTATE PLAN.

{¶20} In his fourth assignment of error, Mr. O’Halloran contends that Mr. Durkin

breached his fiduciary duty through his inaction that resulted in certain bonds being included in

the estate instead of passing to Patricia O’Halloran’s children. We disagree.

{¶21} The U.S. Savings Bonds at issue were purchased by Virginia Durkin between

1985 and 2000 and named Patricia O’Halloran as the co-owner. Upon the death of Ms.

O’Halloran, the bonds were not reissued and remained in the name of Virginia Durkin. The

magistrate’s decision found that upon the death of Ms. Durkin, the bonds became assets of the

estate, to be distributed according to her last will and testament. Mr. O’Halloran contends that 7

Mr. Durkin should have taken action to insure that the bonds passed to Ms. O’Halloran’s

children rather than becoming a part of the estate, and consequently divided between Mr. Durkin

and Ms. O’Halloran’s children.

{¶22} In its May 2017 judgment entry accepting the estate accounting, the trial court

does not directly address this issue. The trial court noted that Mr. O’Halloran’s objections to the

magistrate’s decision and his amendment to the objections “contain no specific references to the

trial transcript, offer no case law, and are very difficult * * * to follow * * *.” With regard to

Mr. O’Halloran’s allegations of misconduct by Mr. Durkin, the trial court found he “offer[ed] no

evidence to support his allegations” and that because he did not reference the transcript, the trial

court stated it was unable to consider the objections regarding those matters.

{¶23} As we have noted, “[t]his Court reviews a trial court’s action with respect to a

magistrate’s decision for an abuse of discretion.” Tabatabai,

2009-Ohio-3139

, at ¶ 17. “In so

doing, we consider the trial court’s action with reference to the nature of the underlying matter.”

Id. at ¶ 18. In this assignment of error, Mr. O’Halloran fails to identify how, or if, the trial court

abused its discretion in its treatment of this issue, but rather, continues to assert that Mr. Durkin

breached a fiduciary duty. Mr. O’Halloran has not demonstrated an abuse of discretion by the

trial court.

{¶24} Mr. O’Halloran’s fourth assignment of error is overruled.

ASSIGNMENT OF ERROR FIVE

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERRORS AND ABUSED ITS DISCRETION WHEN IT RENDERED A FINAL JUDGMENT ON THE ACCOUNTING OF THE VIRGINIA DURKIN ESTATE, DESPITE [MR. O’HALLORAN] PRESENTING NEW EVIDENCE OF SUBSTANTIAL IMPORTANCE TO THE FINAL ACCOUNTING, AND IN DENYING [MR. O’HALLORAN] A HEARING ON THIS EVIDENCE IN VIOLATION OF HIS DUE PROCESS RIGHTS. 8

{¶25} In his fifth assignment of error, Mr. O’Halloran argues the trial court erred in

entering judgment on the accounting of Virginia Durkin’s estate and denying him a hearing

despite his presentation of new evidence in his objections to the magistrate’s decision. We

disagree.

{¶26} “A determination by a trial court whether to reopen a record for the submission of

further evidence rests within the sound discretion of the court.” Askin v. Askin, 10th Dist.

Franklin No. 94APF05-720,

1995 Ohio App. LEXIS 313

, *20, citing Pyle v. Pyle,

11 Ohio App.3d 31

, 37 (8th Dist. 1983). See also Ketcham v. Miller,

104 Ohio St. 372

(1922), paragraph

three of the syllabus; Nozik v. Mentor Lagoons, 11th Dist. Lake No. 93-L-057,

1994 Ohio App. LEXIS 1957

, *6; Schindler v. Schindler, 3d Dist. Defiance No. 4-88-18,

1990 Ohio App. LEXIS 3583

, *11. Such a decision “will not be disturbed in the absence of abuse of discretion.” Pyle at

37. This corresponds to the sound principle that “[t]he admission or exclusion of relevant

evidence rests within the sound discretion of the trial court.” State v. Sage,

31 Ohio St.3d 173

(1987), paragraph two of the syllabus; see also Ohmer v. Renn-Ohmer, 12th Dist. Butler No.

CA2012-02-020,

2013-Ohio-330

, ¶ 17.

{¶27} The trial court’s refusal to hear new evidence is, in and of itself, not an abuse of

discretion. Mr. O’Halloran has failed to demonstrate the trial court was unreasonable, arbitrary,

or unconscionable in its ruling. Therefore, the fifth assignment of error is overruled.

ASSIGNMENT OF ERROR SIX

THE TRIAL COURT COMMITTED A REVERSIBLE AND PLAIN ERROR IN GRANTING [MR. DURKIN’S] MOTION FOR REQUIRING DANIEL O’HALLORAN TO PROVIDE COPIES OF ALL DOCUMENTS RECEIVED IN RESPONSE TO SUBPOENAS ISSUED TO VARIOUS BANKS [], WHERE THE COURT’S LOCAL RULES PROVIDED DANIEL FOURTEEN DAYS TO RESPOND TO THE MOTION. [MR. O’HALLORAN] WAS NOT PROVIDED NOTICE OR AN OPPORTUNITY TO RESPOND TO THE MOTION IN 9

VIOLATION OF LOCAL RULES AND [MR. O’HALLORAN’S] DUE PROCESS RIGHTS.

{¶28} In his sixth assignment of error, Mr. O’Halloran argues the trial court erred and

violated his due process rights in ruling on Mr. Durkin’s motion to require him to produce copies

of documents received in response to subpoenas issued to various banks without allowing him 14

days to respond pursuant to Loc.R. 57.1(C). We disagree.

{¶29} Loc.R. 57.1(C) of the Summit County Court of Common Pleas, Probate Division,

provides that “[w]ithin fourteen (14) days after the receipt of a copy of a Motion, opposing

counsel shall prepare and file a reply to the Motion, setting forth written statements of opposition

to the Motion, together with a citation of authorities relied upon in opposition.” The record

indicates that Mr. Durkin filed his motion requiring Mr. O’Halloran to provide copies of all

documents received in response to subpoenas issued to various banks on November 4, 2016, and

that the trial court granted the motion by order dated November 7, 2016. Mr. O’Halloran

subsequently filed objections to the motion on November 17, 2016.

{¶30} This Court has recognized “that local rules are of the court’s own making,

procedural in nature, and not substantive principles of law * * * [and accordingly we have] held

that there is no error when, in its sound discretion, the court decides that the peculiar

circumstances of a case require deviation from its own rules.” Lorain Cty. Bank v. Berg, 9th Dist.

Lorain No. 91CA005183,

1992 Ohio App. LEXIS 3799

, *6 (July 22, 1992). We have

previously discussed the application of local rules with regard to due process:

Different standards of review have developed in regard to a trial court’s failure to comply with its local rules when ruling on motions. In cases where the local rule is merely administrative, is designed to facilitate case management, and does not implicate constitutional rights, the trial court is not bound to comply with it. In other situations, this Court has recognized that a trial court has discretion in regard to its enforcement of local procedural rules where the peculiar circumstances of the case warrant deviation from the local rule. However, when 10

the trial court’s failure to comply with local rules implicates issues of due process, depriving a party of a “reasonable opportunity to defend” against the disposition of the case in favor of the other party, the trial court is bound to comply with its local rules. Where due process rights are implicated, but the trial court’s premature ruling does not dispose of the ultimate issue in the case, this Court has placed the burden on the aggrieved party to show not only that the trial court failed to comply with its local rule, but also that the party was prejudiced by that failure.

(Citations omitted.) Wallner v. Thorne,

189 Ohio App.3d 161

2010-Ohio-2146

, ¶ 21.

{¶31} The order requiring Mr. O’Halloran to provide opposing counsel with documents

received as a result of the subpoenas issued to various banks did not implicate due process rights

because he was not deprived of a reasonable opportunity to defend against the disposition of the

case. Although Mr. O’Halloran is correct that the local rules afforded him the opportunity to

respond within 14 days, and the trial court made its ruling after only 3 days, he has failed to

demonstrate the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Even had

this been a situation where Mr. O’Halloran’s due process rights were implicated, he has not

demonstrated that he was prejudiced by the error. “Under Rule 61 of the Ohio Rules of Civil

Procedure, harmless errors are to be disregarded.” Oak Park Mgt. Corp. v. Via, 9th Dist. Wayne

No. 07CA0022,

2008-Ohio-2493

, ¶ 5. We therefore conclude the trial court did not abuse its

discretion in deviating from the response time for an opposition brief set forth in its local rules.

{¶32} Mr. O’Halloran’s sixth assignment of error is overruled.

ASSIGNMENT OF ERROR SEVEN

THE TRIAL COURT COMMITTED A REVERSIBLE AND PLAIN ERROR, ABUSED ITS DISCRETION, AND VIOLATED [MR. O’HALLORAN’S] DUE PROCESS RIGHTS BY FINDING HIM IN CONTEMPT.

{¶33} In his seventh assignment of error, Mr. O’Halloran argues the trial court erred

when it found him in contempt for failure to comply with the trial court’s order of November 7, 11

2016, requiring him to provide copies of subpoenas and the documentation received in response

to the subpoenas to Attorney Plesich. We agree.

{¶34} Within this assignment of error, Mr. O’Halloran raises several arguments: first, he

contends that he should not have been held in contempt because the order he was alleged to have

failed to comply with was invalid; next, contends he was not given 28 days to respond; finally,

he contends he was never given a hearing as required by R.C. 2705.05(A). We address only the

third line of argument because it is dispositive.

{¶35} We review a trial court’s contempt finding for an abuse of discretion. Morrow v.

Becker, 9th Dist. Medina No. 11CA0066-M,

2012-Ohio-3875

, ¶ 47. An appellate court will not

reverse a finding of contempt unless the trial court’s decision was unreasonable, arbitrary, or

unconscionable. See Blakemore, 5 Ohio St.3d at 219. As a reviewing court applying the abuse

of discretion standard, we may not substitute our judgment for that of the trial court. Pons, 66

Ohio St.3d at 621.

{¶36} The Supreme Court of Ohio has consistently recognized that courts possess the

inherent power to do all things necessary to the administration of justice and to protect their own

powers and processes, including the authority to punish the disobedience of the court’s orders

with contempt proceedings. Zakany v. Zakany,

9 Ohio St.3d 192

, 194 (1984). “Contempt of

court is defined as disobedience of an order of a court * * * which brings the administration of

justice into disrespect, or which tends to embarrass, impede or obstruct a court in the

performance of its functions.” Windham Bank v. Tomaszczyk,

27 Ohio St.2d 55

(1971),

paragraph one of the syllabus. As we have explained:

Contempt is classified as either direct or indirect. R.C. 2705.01 defines direct contempt as “misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” Indirect contempt includes “misbehavior of an officer of the court in the performance of official duties, or in official 12

transactions[.]” R.C. 2705.02(B). Direct contempt is further divided into two categories, namely contemptuous conduct occurring in the actual presence of the judge and contemptuous conduct occurring before an officer of the court other than the judge. Scherer v. Scherer (1991),

72 Ohio App. 3d 211

, 213-214,

594 N.E.2d 150

. The latter is referred to as contempt in the constructive presence of the court.

Id.

Because the judge acts on his or her personal knowledge of all the facts, those acts which occur in the actual presence of the judge may be dealt with summarily without either a written charge or a hearing. In re Neff (1969),

20 Ohio App. 2d 213

254 N.E.2d 25

, paragraph three of the syllabus. However, in order to hold a person in contempt for acts occurring either within the court’s constructive presence or outside the court's presence altogether, the alleged contemnor must be notified of the charges against him and a hearing must be held to establish the necessary elements of proof and to afford the defendant an opportunity to be heard. R.C. 2705.03; State v. Local Union 5760 (1961),

172 Ohio St. 75

, 82,

173 N.E.2d 331

; In Re Neff, 20 Ohio App. 2d at 223-224.

Thompson v. Thompson, 9th Dist. Lorain No. 00CA007747,

2001 Ohio App. LEXIS 3666

, *3-4

(Aug. 22, 2001). “Direct contempt is generally dealt with summarily, whereas it has been stated

that statutory procedures must be followed in indirect contempt proceedings.” Cincinnati v.

Cincinnati Dist. Council 51,

35 Ohio St.2d 197

, 202 (1973).

{¶37} In setting forth acts constituting indirect contempt, R.C. 2705.02 provides in

relevant part: “A person guilty of any of the following acts may be punished as for a contempt:

(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command

of a court or officer[.]” Thus, the failure to comply with a court order is an indirect contempt as

it relates to the traditional meaning and R.C. 2705.02(A). When a person is charged with

contempt under the provisions of R.C. 2705.02, R.C. 2705.03 sets forth the procedure and

requires that the person accused of contempt be given notice and a hearing.

{¶38} The magistrate’s decision of February 2017 sets forth under the heading “Motion

Rulings”: “First and Second Motions for Contempt: Denied in part, allowed in sum of

$500.00[.]” Later in the decision, the magistrate states: “Contempt charges against objectors are 13

reduced to $500.00.” In overruling Mr. O’Halloran’s objection, the trial court stated “the

magistrate held [Mr. O’Halloran] in contempt for failing to comply with his previous orders.”

{¶39} This Court finds no indication in the record that a hearing was conducted on the

charges of contempt against Mr. O’Halloran. We conclude the trial court abused its discretion in

holding Mr. O’Halloran in contempt without a hearing as required under R.C. 2705.03.

{¶40} Mr. O’Halloran’s seventh assignment of error is sustained.

ASSIGNMENT OF ERROR EIGHT

THE TRIAL COURT’S CONDUCT THROUGHOUT THIS CASE HAS BEEN PREJUDICIAL AGAINST [MR. O’HALLORAN], AND BY EXTENSION HIS TWO SISTERS KELLY O’HALLORAN [] AND KATHY WILLIAMS [] WHO SHARE SIMILAR STANDING AS BENEFICIARIES OF [VIRGINIA DURKIN’S] ESTATE.

{¶41} In his eighth assignment of error, Mr. O’Halloran argues the trial court acted

prejudicially against him throughout the proceedings. The eighth assignment of error does not

specifically allege an error by the trial court, and instead states generally that the trial court acted

with prejudice against Mr. O’Halloran and his sisters.

{¶42} An Ohio district court of appeals “has no authority to render a decision with

regard to disqualification, or to void a trial court’s judgment on the basis of personal bias or

prejudice on the part of a trial judge.” (Citation omitted.) State v. Hunter,

151 Ohio App.3d 276

2002-Ohio-7326

, ¶ 18 (9th Dist.). This Court does not have authority to address Mr.

O’Halloran’s impartiality argument or to overturn the trial court’s judgment on that basis. See

Shih v. Byron, 9th Dist. Summit No. 25319,

2011-Ohio-2766

, ¶ 24 (“It is not the role of this

Court to make a determination as to whether the trial court exhibited a bias against a party.”).

“Ordinarily, matters pertaining to judicial bias may only be heard by the Chief Justice of the 14

Ohio Supreme Court or his or her designees.” King v. Rubber City Arches, L.L.C., 9th Dist.

Summit No. 25498,

2011-Ohio-2240

, ¶ 6.

{¶43} We conclude this Court does not have authority to address the alleged impartiality

of the trial court. Mr. O’Halloran’s eighth assignment of error is overruled.

III.

{¶44} Mr. O’Halloran’s first, second, third, fourth, fifth, sixth, and eighth assignments

of error are overruled. His seventh assignment of error is sustained. The judgment of the

Probate Court of Summit County, Ohio, is affirmed in part and reversed in part, and the cause is

remanded for further proceedings consistent with this decision.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 15

Costs taxed equally to both parties.

THOMAS A. TEODOSIO FOR THE COURT

HENSAL, J. CALLAHAN, J. CONCUR.

APPEARANCES:

DANIEL O’HALLORAN, pro se, Appellant.

GREGORY T. PLESICH, Attorney at Law, for Appellee.

MICHELE MORRIS, Attorney at Law, for Appellee.