[Cite as In re Estate of Miller, 2010-Ohio-6381.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

IN THE MATTER OF: 

 CASE NO. 8-10-12 

 THE ESTATE OF 

ELIZABETH A. MILLER, 

 O P I N I O N 

 [ROSANNA MILLER - 

 APPELLANT]. 

 

Appeal from Logan County Common Pleas Court 

Probate Division 

Trial Court No. 08 ES 260 

Judgment Affirmed 

Date of Decision: December 27, 2010 

 

APPEARANCES: 

Grant A. Wolfe for Appellant 

Steven R. Fansler for Appellee, Clair R. Miller 

James R. Miller, Appellee 
Case No. 8-10-12 

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WILLAMOWSKI, P.J.

{¶1} Appellant Rosanna L. Miller (“Rosanna”) brings this appeal from 

the judgment of the Court of Common Pleas of Logan County, Probate Division, 

denying her motion to have appellee Clair R. Miller (“Clair”) removed as executor 

of the estate of Elizabeth A. Miller. For the reasons set forth below, the judgment 

is affirmed. 

{¶2} On November 24, 2006, Elizabeth A. Miller fell down her basement 

steps and died. Rosanna filed a petition to be named guardian of Clair, her father 

and the husband of Elizabeth, alleging that he was incompetent. The matter was 

assigned case number 07-GI-01. Numerous hearings were held on the matter and 

volumes of materials were filed by Rosanna, Clair, Rosanna’s siblings James, 

Ellen, Nancy, and Kathy, and other extended family members. On October 31, 

2008, prior to the ruling by the trial court on her petition, Rosanna proceeded to 

file a copy of Elizabeth’s last will and testament, an application to probate the will, 

and an application to be named executrix of the estate. The will provided as 

follows: 

I hereby nominate and appoint Clair R. Miller as my Personal 

Representative under this, my Last Will. If for any reason such 

person fails to qualify, or is unable or unwilling to serve as my 

Personal Representative, I nominate and appoint Rosanna L. 

Miller as my Personal Representative * * *. 
Case No. 8-10-12 

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Elizabeth A. Miller Will, 3. On February 10, 2009, Clair filed his own motion to 

be named as executor of the estate and stated that he had priority in the right to 

administer the estate. Clair indicated to the trial court that he was both willing 

and able to serve as executor. The matter was stayed pending the outcome of the 

guardianship proceedings. On September 2, 2009, the trial court entered 

judgment denying the guardianship and finding that Clair was legally competent.1

 

The trial court subsequently named Clair as the executor of Elizabeth Miller’s 

estate on October 27, 2009.2

{¶3} On January 19, 2010, Rosanna filed a motion to have Clair removed 

as executor and herself named as his replacement alleging two reasons: 1) Clair 

was incompetent and 2) Clair refused to pursue a wrongful death suit against 

James for the death of Elizabeth. Clair filed his response to Rosanna’s motion on 

February 2, 2010. On May 4, 2010, a hearing was held on the matter. The trial 

court entered judgment denying Rosanna’s motion on June 16, 2010. Rosanna 

appeals from this judgment and raises the following assignments of error. 

First Assignment of Error 

The Probate Court erred by failing to take judicial notice of, 

and/or otherwise considering the statements of expert 

evaluation and/or reports of court ordered psychological 

 

1

 Rosanna appealed this judgment to this court. On May 17, 2010, this court affirmed the judgment of the 

trial court in case number 8-09-20. In re Guardianship of Clair R. Miller, 187 Ohio App.3d445, 2010-

Ohio-2159, 932 N.E.2d 420. The case was appealed to the Ohio Supreme Court, but the court declined to 

hear it. In re Guardianship of Clair R. Miller, 126 Ohio St.3d 1598, 2010-Ohio-2159, 935 N.E.2d 45. 2

 After the guardianship was concluded, the trial judge removed himself from the estate proceedings and a 

different judge was appointed on October 19, 2009. 
Case No. 8-10-12 

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professionals, Dr. John Tilley, Dr. David Tennenbaum, and 

Mary Newkirk, Probate Court Investigator, when it decided 

whether to remove the executor, [Clair], pursuant to [R.C. 

2109.24]. 

Second Assignment of Error 

The Probate Court’s decision to deny [Rosanna’s] motion to 

remove executor pursuant to [R.C. 2109.24] was erroneous, 

against the manifest weigh (sic) of the evidence and an abuse of 

discretion. 

Third Assignment of Error 

The Probate Court erred by failing to take judicial notice of, 

and/or otherwise considering the pleadings and other 

documents filed of record in a related pending wrongful death 

case when it decided whether to remove the executor, [Clair], 

pursuant to [R.C. 2113.18(B)]. 

Fourth Assignment of Error 

The Probate Court’s decision to deny [Rosanna’s] motion to 

remove executor pursuant to [R.C. 2113.18(B)] was erroneous, 

against the manifest weigh (sic) of the evidence and an abuse of 

discretion. 

Fifth Assignment of Error 

The Probate court’s journal entry approving the executor’s 

inventory and appraisement was erroneous, against the manifest 

weigh (sic) of the evidence and an abuse of discretion. 

Sixth Assignment of Error

The Probate Court’s judgment entry approving the Executor’s 

certificate of termination and discharging the executor was 

erroneous, against the manifest weigh (sic) of the evidence and 

an abuse of discretion. 
Case No. 8-10-12 

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{¶4} In the first and third assignments of error, Rosanna alleges that the 

trial court erred by not considering the psychological evaluations of her father that 

were completed for the guardianship hearings and by not considering the 

pleadings and documents filed in a wrongful death case filed by Rosanna in case 

No. CV08-11-0614 when determining whether Clair was competent to serve as 

executor of the estate. 

A judicially noticed fact must be one not subject to reasonable 

dispute in that it is either (1) generally known within the 

territorial jurisdiction of the trial court or (2) capable of 

accurate and ready determination by resort to sources whose 

accuracy cannot be reasonably questioned. 

Evid.R. 201. Generally, a court may not take judicial notice of prior proceedings, 

even when the same parties are involved. State ex rel. Everhart v. McIntosh, 115 

Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516. “The rationale for these 

holdings is that when judicial notice is taken of prior proceedings, such prior 

proceedings are not part of the record as defined in App.R. 9, and whether the trial 

court correctly interpreted such prior proceedings is not reviewable by the 

appellate court.” Id. at ¶7 (quoting Phillips v. Rayburn (1996), 113 Ohio App.3d 

374, 379, 680 N.E.2d 1279). “[T]his prohibition is especially applicable when a 

court attempts to review testimony from a prior case.” Hutz v. Gray, 11th Dist. 

No. 2008-T-0100, 2009-Ohio-3410, ¶36. However, the trial court may consider 

its prior docket as long as it is being used to determine what was filed, not the 
Case No. 8-10-12 

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truthfulness of the items filed. Id. See also State ex rel. Coles v. Granville, 116 

Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968 and Indus. Risk Insurers v. 

Lorenz Equip. Co. (1994), 69 Ohio St.3d 576, 635 N.E.2d 14. 

{¶5} In this case, Rosanna wished to have the trial court take judicial 

notice of the psychological reports of the expert witnesses in the guardianship 

proceeding. However, Rosanna did not subpoena the experts to testify at this 

hearing. The results of the psychological evaluations of Clair are not generally 

known facts nor are they capable of accurate and ready determinations by sources 

whose accuracy cannot be questioned. Thus, they do not meet the requirements 

for judicial notice. Additionally, they were being offered to prove the alleged fact 

that Clair lacked competency to serve as executor. Thus, the reports are 

testimonial evidence presented in a different case and the trial court may not take 

judicial notice of them. The first assignment of error is overruled. 

{¶6} Rosanna also wanted the trial court to take judicial notice of the 

complaint and documents filed in a wrongful death case she filed when she was 

the applicant to be executor of the estate of Elizabeth Miller. Although the trial 

court could consider that a wrongful death suit was filed by Rosanna, especially 

since she testified to such, it could not consider the pleadings that were filed in 

that case. Rosanna did not testify to the contents of those pleadings and 

documents at the hearing in this case. The facts allegedly in those documents 
Case No. 8-10-12 

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were not common knowledge in the territory and were not from a source whose 

accuracy is above question. In fact, the complaint that was filed contained mere 

allegations made by Rosanna, not facts. The truthfulness of the allegations was 

never determined. Since the requirements for judicial notice of the complaint was 

not met, the trial court did not err in failing to take judicial notice of them. The 

third assignment of error is overruled. 

{¶7} Rosanna alleges in her second assignment of error that the trial 

court’s judgment that Clair was competent to serve as executor was against the 

manifest weight of the evidence. “The court may remove any fiduciary * * * for 

habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct * * 

*.” R.C. 2109.24. An abuse of discretion standard of review is applied to a 

Probate Court’s decision to remove or not remove an executor from an estate. In 

re Estate of Levy, 2d Dist. No. Civ.A. 20509, 2005-Ohio-446. In order for this 

court to reverse the judgment of the trial court, Rosanna would need to show that 

the trial court’s judgment was arbitrary or unreasonable. Id. 

{¶8} In support of her assignment of error, Rosanna points to evidence 

from the hearing. The trial court could not consider the psychological reports, as 

discussed above, and did not err by failing to do so. The trial court did consider 

all of the additional evidence to which Rosanna cites. 

In reviewing the evidence, the court finds that Attorney William 

Goslee testified that he had represented Clair and Ann Miller 
Case No. 8-10-12 

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several years prior to the death of Ann in a couple of lawsuits. 

He testified that the lawsuits were managed by Ann Miller, and 

that Clair did not seem to pay attention to the matters. He also 

testified that in conversations, Clair was not always “there”. 

This evidence is both stale, as Goslee has not had contact with 

Clair Miller in several years, and even if current, did not 

indicate that Miller was incompetent as defined herein. 

Clair Miller testified. He admitted that he has vision 

impairment and that he can’t read any written materials. He 

testified at length as to his present condition and his assets and 

his awareness of the current proceedings. He admitted that he 

had little understanding of the legal process, but explained 

that’s why he hired an attorney. While his answers were 

sometimes a little fuzzy, the court determines that the answers 

were appropriate and did not indicate that he was incapable of 

taking proper care of himself or his property. 

The movant, Rosanna Miller testified that she has observed her 

father “from time to time,” and that she believes that her father 

is unaware of what is going on around him. She also admitted 

in testimony that she had turned her father into the BMV, 

causing his drivers’ license revocation. And she admitted that 

she had filed a complaint against him for having junk vehicles. 

She acknowledged that she had entered her father’s home and 

removed at least $173,000 from his safe and that she had put her 

name on his bank accounts in December 2006. She 

acknowledged that she contested Clair’s appointment as 

executor of the estate and filed an application for herself to be 

appointed. It is clear that there is animosity between Clair and 

Rosanna, and because of this, the court finds her testimony as to 

his mental health to be self-serving and not credible. 

Furthermore, it is contrary to the observations of the court 

during the testimony of Clair Miller. 

For these reasons, the court finds that the movant, Rosanna 

Miller has failed to establish that Clair Miller is incompetent, 

and the motion to remove will not be granted on this basis. 
Case No. 8-10-12 

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June 16, 2010 Entry, 4-5. The trial court considered all of the evidence before it 

and set forth its reasons for its ruling. Since the evidence supports those reasons, 

the judgment is not against the manifest weight of the evidence and the second 

assignment of error is overruled. 

{¶9} The fourth assignment of error claims that the trial court erred by 

not removing Clair as executor pursuant to R.C. 2113.18(B) when he refused to 

file a wrongful death suit for the death of Elizabeth Miller. 

(B) The probate court may remove any executor * * * upon 

motion of the * * * children * * * of the deceased person whose 

estate is administered by the executor * * * if both of the 

following apply: 

(1) The executor * * * refuses to bring an action for wrongful 

death in the name of the deceased person; 

(2) The court determines that a prima-facie case for a 

wrongful death action can be made from the information 

available to the executor * * *.

R.C. 2113.18(B). A prima facie case is “a case sufficient on its face, being 

supported by at least the requisite minimum of evidence, and being free from 

palpable defects.” Barrons Law Dictionary (3 Ed. 1991), 370. This generally 

means that enough evidence has been presented to allow a reasonable juror to 

reach a conclusion favorable to the plaintiff. Id. 

{¶10} Rosanna argues that since she filed a case while her application to 

be executor of Elizabeth Miller’s estate was pending, Clair was aware of 
Case No. 8-10-12 

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sufficient information to be required to file a wrongful death action. However, a 

review of the record in this case indicates no evidence to support her claim that a 

prima-facie case has been made. The sole evidence she introduced, besides her 

steadfast belief that her mother’s death was not accidental, was the testimony of 

Detective Sebring of the Bellefontaine Police Department. Detective Sebring 

testified that he received a complaint from Rosanna about her suspicions 

concerning her mother’s death. He investigated but made no determination 

concerning probable cause. He forwarded the information to the county 

prosecutor for the determination as to whether charges should be filed. As of the 

date of the hearing, the investigation was still open, but no charges were filed. 

None of the evidence presented indicates that there is anything more than 

suspicions. This does not reach the level of a prima facie case. Thus, the trial 

court did not err in denying the motion to remove Clair as executor for his failure 

to file a wrongful death claim. The fourth assignment of error is overruled. 

{¶11} In the fifth assignment of error, Rosanna alleges that the trial court 

erred by approving the inventory and appraisement filed by Clair as executor. 

Initially, this court notes that Rosanna did not file an objection to the inventory 

when it was filed and no hearing on objections was held. Thus, the trial court has 

not had an opportunity to review these objections. 
Case No. 8-10-12 

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{¶12} Rosanna first argues that the trial court erred because Clair failed to 

serve his children with notice of the filing of the inventory and the hearing date. 

The only party entitled to notice of the taking of the inventory is the surviving 

spouse. R.C. 2115.04. However, R.C. 2115.16 states that the executor “may 

serve notice of the hearing [on the inventory] * * * upon any person who is 

interested in the estate.” This court has previously held that this statute makes the 

duty of the executor to serve notice on the hearing of the inventory discretionary. 

See Estate of Heffner v. Cornwall, 3d Dist. No. 10-03-06, 2003-Ohio-6318, ¶6. A 

“person interested” has been defined as one who has a direct, pecuniary interest in 

the estate. See Bazo v. Siegel (1979), 58 Ohio St.2d 353, 390 N.E.2d 807 and 

Chilcote v. Hoffman (1918), 97 Ohio St. 98, 119 N.E. 364. The will provides that 

all of the estate was to be distributed to the trustee of the Miller Living Trust.3

 

Since Clair was the trustee of the trust, he, in his capacity as trustee, inherited all 

of the estate. Rosanna, thus, had no direct pecuniary interest in the estate and was 

not a person interested in the estate who might be entitled to notice if the executor 

chooses to give it. 

{¶13} Rosanna also argues that the trial court erred by accepting the 

inventory when there were additional assets that were not included. During the 

hearing, Rosanna testified that there were additional bonds, insurance policies and 

 

3

 In fact, the will specifically states that Elizabeth leaves “nothing to any other relative, friend, or person, it 

being my intention that my entire estate shall pass as a part of the above-mentioned Trust.” Will, 3. 
Case No. 8-10-12 

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vehicles that belonged to Elizabeth that were not included. However, she 

provided no evidence that these assets were probate assets. She did not testify 

that any of the insurance policies were payable to the estate rather than a 

beneficiary, which would make them non-probate assets. The evidence she 

provided on the vehicles indicate that one of them was owned by the trust, and is 

thus not a probate asset, and the other was owned by a “private owner.” There 

was also no evidence presented that the bonds were probate assets. In contrast, 

Clair claimed that all personal assets had already been transferred to the trust, the 

real estate was joint with rights of survivorship, one vehicle in question was 

transferred to Clair as the surviving spouse pursuant to statute, and the other 

lacked any value. Based upon the lack of evidence showing that any probate 

assets were excluded from the inventory, the trial court did not err in accepting 

the inventory. Even if the trial court had erred, Clair, as trustee, was the sole 

beneficiary. Rosanna has not provided any evidence that she would suffer any 

prejudice from any error. Thus any error is harmless as it applies to Rosanna. 

The fifth assignment of error is overruled. 

{¶14} Finally, Rosanna alleges that the trial court erred by approving the 

certificate of termination and discharging Clair as executor. Rosanna bases this 

assignment of error solely upon the claimed improper inventory and the trial 

court’s alleged error in not removing Clair as executor. This court has already 
Case No. 8-10-12 

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addressed these errors and found no prejudicial errors. Thus, the sixth assignment 

of error is also overruled. 

{¶15} The judgment of the Court of Common Pleas of Logan County, 

Probate Division is affirmed. 

Judgment Affirmed 

ROGERS and PRESTON, J.J., concur. 

/jlr