[Cite as Hatfield v. Heggie , 2020-Ohio-1156.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

Irvin Hatfield Court of Appeals No. OT-19-023 Appellant Trial Court No. 18CV356

v. Cheyenne Marie Heggie DECISION AND JUDGMENT Appellee Decided: March 27, 2020

* * * * * John A. Brikmanis, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} This is an appeal from the judgment of the Ottawa County Court of Common Pleas, following a bench trial, which dismissed appellan t’s, Irvin Hatfield, complaint for reimbursement of funeral expenses. For the reaso ns that follow, we

reverse.2. I. Facts and Procedural Background {¶ 2} Appellant had a longtime romantic relationship with the deceden t, Amy L. Heggie. On March 3, 2018, Heggie passed away. That same day, appellant paid the funeral expenses, totaling $6,846. {¶ 3} On May 15, 2018, appellant executed a letter “To whom it may co ncern: In regards to the estate of Amy Lynn Heggie.” In the unaddressed letter, appellant stated that he was filing a claim against the estate for the funeral e xpenses. On September 10, 2018, appellee, Cheyenne Marie Heggie, the daughter of the dece dent and the executrix of her estate, rejected appellant’s claim for reimbursement. I n the September 10, 2018 letter, appellee stated that the claim was being rejected becau se (1) it was not properly presented as required under R.C. 2117.06, (2) appellant had alr eady received $5,000 in cash from monies belonging to the estate, and (3) appellant was in possession of the decedent’s tangible personal property and has refused to cooper ate in transferring the property to the heirs of the estate. {¶ 4} Upon receiving the rejection of his claim, appellant initiated the present action by filing a complaint in the Ottawa County Court of Comm on Pleas. Attached to his complaint was a copy of the funeral bill and the May 15, 20 18 letter. {¶ 5} In her answer, appellee agreed that appellant paid the funeral expenses. She also attached a copy of the funeral bill to her answer. Howeve r, appellee denied that appellant submitted proof of the claim to the estate for reimbu rsement. Appellee alleged that she was not identified by name as an executor of the estat e, and that appellant did not3. hand deliver, mail, or send certified or registered mail any co rrespondence to her regarding his claim. Appellee further alleged in her answer th at the claim was rejected because appellant had already procured $1,200 in cash from the decedent’s purse, had taken $5,000 from $10,000 worth of proceeds from a benefit held before the decedent’s death, and had failed to return $28,000 in cash kept by the dec edent in appellant’s safe. {¶ 6} The matter was called for a bench trial on March 18, 2019. At the trial, appellant testified that he paid nearly $7,000 for the funeral. He then asked for reimbursement from the estate, which was rejected. Appellant t estified that he asked for reimbursement from appellee by sending her a text message. On redirect, appellant

testified that he also submitted a written claim for reimbursem ent to the estate. {¶ 7} Appellant then testified that the $5,000 that he was accused of keeping was given to him on the day that the decedent died, and was for a t railer that was next to his property. {¶ 8} Appellee then testified on her own behalf. Appellee testified that on the day her mother died, appellant had possession of the entire $10,000 cash from the benefit, and would not give her the money until he got his $5,000. Appellee also testified that the decedent’s personal property is still at appellant’s house. On cross-examination, appellee did not dispute the funeral bill. Further, appellee acknowledg ed that a written claim asking for reimbursement from the estate was given to the attor ney for the estate, that she has seen it, and that she rejected the claim. Finally, appelle e testified that the estate currently had approximately $14,000 in cash, which was comprise d of the remaining4. $5,000 in benefit money and $9,000 that appellant had given to her on an occasion when she went to retrieve the decedent’s property. {¶ 9} Appellee then called her aunt, Sue Ann Kincaid, as her final wi tness. Kincaid testified that she organized the benefit, and that it r aised almost $11,000 for the decedent. Kincaid testified that on the day the decedent died, it was agreed that if appellant was given $5,000 for the lot next door, then appellan t would pay for the funeral. Kincaid also testified, on cross-examination, that her daughter had the decedent’s purse, which contained approximately $1,200, and that her daughter gav e the purse to appellant

because she did not know what to do with it. {¶ 10} Following the testimony, appellant asked the trial court to tak e notice of the funeral bill that was attached to the complaint. However, no s eparate exhibits were presented or entered into evidence. The trial court then took the matter under

advisement. {¶ 11} On June 6, 2019, the trial court entered its judgment denying a ppellant’s claim. The trial court reasoned that appellant “presented no d ocumentary evidence to support his claim. Even considering the documents attached to [appellant’s] Complaint, the Court finds that [appellant] has presented insufficient evi dence to support his claim.” II. Assignment of Error {¶ 12} Appellant has timely appealed the trial court’s June 6, 2019 ju dgment, and now asserts two assignments of error for our review:5. 1. The Court erred as a matter of law when it considered matt ers that should have been brought in as a counterclaim but no count erclaim was

ever filed. 2. The Court’s decision was against the manifest weight of th e evidence when the Court required further foundation to support admissions by the defendant. III. Analysis {¶ 13} An appellate court reviews judgments from the trial court follo wing a bench trial under the manifest weight of the evidence standard. Terry v. Kellstone, Inc. , 6th Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 12. The manifes t weight standard is the

same in a civil case as in a criminal case. Eastley v. Volkman , 132 Ohio St.3d 328, 2012- Ohio-2179, 972 N.E.2d 517, ¶ 17. Thus, “[t]he [reviewing] cour t weighs the evidence and all reasonable inferences, considers the credibility of wit nesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgme nt] must be reversed and a

new trial ordered.” Id. at ¶ 20. “In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984),

fn. 3. {¶ 14} Appellant’s assignments of error are interrelated, thus we will address them together. In his first assignment of error, appellant argues t hat the trial court erred by6. considering appellee’s claims that appellant had already receiv ed $5,000 from the benefit, and that he took $1,200 from the decedent’s purse. At the begi nning of the trial, the court recognized that the issue of a rejected claim pursuant to R.C. 2117.06 was properly before the court, but the issues raised in appellee’s answer—an d which were not counterclaims—were properly addressed in probate court. {¶ 15} On appeal, appellant argues that the trial court disregarded it s original statement of law, and took into account the disputed issues sur rounding the $5,000 and $1,200. It is on this issue, however, that we have difficulty engaging in a meaningful review. Appellant assumes that the trial court took into accou nt the testimony surrounding the $5,000 and $1,200, but the judgment entry is no t so clear. In fact, the entire judgment entry states, This cause comes before this Court for hearing on a Complaint filed September 21, 2018. Amy L. Heggie passed away on March 3, 2018. Prior to her deat h, she lived with Plaintiff Irvin E. Hatfield for 9 years. Defend ant Cheyenne Marie Heggie is the daughter of Amy Heggie and was appointed Ex ecutor

of her estate. Plaintiff paid the funeral bill for Amy Heggie in the amount o f $6,846.00 and submitted a claim to the Estate. Defendant, as E xecutor, rejected the claim. Plaintiff filed the instant Complaint agai nst Cheyenne Marie Heggie, individually.7. Plaintiff presented the testimony of one witness, to wit: the Plaintiff. Plaintiff testified about a funeral bill that Plaintiff paid wi thout being asked by Defendant. He also testified about the Will of the decedent , which purportedly required the funeral bill be paid by the Estate. F inally, he testified that he presented a claim to the Estate for reimburse ment of the funeral bill. Plaintiff presented no documentary evidence to s upport his

claim. Defendant testified that Plaintiff was paid for the funeral bi ll as a result of Plaintiff taking $1,200 from the decedent’s purse as well as keeping personal property of decedent and keeping $5,000 of fun ds raised at a benefit arranged for decedent. Defendant’s aunt also test ified regarding

the benefit monies that were withheld from the Estate. R.C. 2117.06 provides the process for creditors to submit clai ms against an estate. R.C. 2117.12 provides that the claimant mus t commence an action of (sic) the claim within two months after the claim is rejected. In civil cases, the burden of proof is generally carried by a “pre ponderance of the evidence,” which is defined as the greater weight of the ev idence. Central Motors Corp. v. City of Pepper Pike (1979), 63 Ohio App . 2d 34. In the present case, Plaintiff presented no documentary eviden ce to support his claim. Even considering the documents attached to the Plaintiff’s Complaint, the Court finds that Plaintiff has prese nted8. insufficient evidence to support his claim. Judgment is grante d in favor of Defendant and Plaintiff’s Complaint is dismissed. {¶ 16} Through the pleadings, it is clear that there were two issues t o be resolved at trial: (1) whether appellant presented his claim in accorda nce with R.C. 2117.06, and (2) whether appellant had already received compensation and thu s was not entitled to reimbursement. Our reading of the trial court’s judgment is th at the court ruled in favor of appellee because appellant did not demonstrate that he prese nted his claim to the estate

in accordance with R.C. 2117.06. We reach this conclusion base d on the court’s reliance on the lack of documentary evidence to support appellant’s clai m, and the fact that even when considering the documents attached to the complaint the co urt found appellant’s evidence “insufficient.” While there may be other reasons that support the denial of appellant’s claim, it would make no sense for the court to dete rmine that the evidence was “insufficient” to demonstrate that appellant was entitled t o reimbursement as it is undisputed that appellant paid the funeral bill. {¶ 17} On the issue of whether appellant presented his claim in accord ance with R.C. 2117.06, we hold that the trial court’s judgment is agains t the manifest weight of the evidence. R.C. 2117.06(A)(1)(a) provides, All creditors having claims against an estate, including claim s arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unl iquidated, shall present their claims in one of the following manners:9. (1) After the appointment of an executor or administrator and prior to the filing of a final account or a certificate of terminatio n, in one of the following manners: (a) To the executor or administrator in a writing. “A claim against a decedent’s estate need not be in any particu lar form; it is sufficient if it states the character and amount of the claim, enables the re presentatives to provide for its payment, and serves to bar all other claims by reason of it s particularity of designation.” Gladman v. Carns , 9 Ohio App.2d 135, 138, 223 N.E.2d 378 (2d Dist.1964), quoting Annotation, Sufficiency of notice of claim against decedent’s estate , 74 A.L.R. 368 (Originally published in 1931). Furthermore, a c laim satisfies the presentment requirements of R.C. 2117.06 when it is presented t o the executor’s attorney.

Caldwell v. Brown , 109 Ohio App.3d 609, 611, 672 N.E.2d 1037 (2d Dist.1996); Peoples

Natl. Bank v. Treon , 16 Ohio App.3d 410, 411, 476 N.E.2d 372 (2d Dist.1984). {¶ 18} Here, although the unaddressed May 15, 2018 letter was not ente red into evidence, appellant testified that he submitted to the estate a written claim for reimbursement of the funeral expenses. Indeed, appellee acknow ledged that the funeral expenses of $6,846 were paid by appellant, that a written claim was submitted to the attorney for the estate, that appellee reviewed the claim, and that appellee rejected the claim, in part because appellant already had money that belonge d to the estate. Therefore, we hold that the trial court clearly lost its way to the extent that it determined that appellant had not satisfied the presentment requirement un der R.C. 2117.06.10. {¶ 19} As to the issue of whether appellant had already received compe nsation and thus was not entitled to reimbursement, appellant argues—withou t citation to any legal authority—that consideration of the $5,000 and $1,200 is outsid e the scope of the claim. We disagree. Appellee’s allegations relative to the $5,000 and $1,200 are in effect claims for the right to an equitable setoff. The right to a setoff is an affirmative defense. Beck v. Mar Distribs. of Toledo, Inc. , 6th Dist. Lucas No. L-11-1219, 2012-Ohio-5321, ¶ 14. While appellee may not be entitled to recoup for the estate any monies wrongfully possessed or withheld by appellant in the absence of a counterc laim, we find that appellee must be able to defend against appellant’s claim by showing the amount sought as reimbursement has already been received. {¶ 20} In this case, however, the trial court did not make any finding s regarding the impact of appellee’s allegations relative to the $5,000 and $1,200 on appellant’s claim, and thus we have nothing to review. Being an appellate court, we decline to usurp the trial court’s role by considering these issues for the firs t time on appeal. See, e.g., Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992) (“If the trial court does not consider all the evidence before it, an appellat e court does not sit as a reviewing court, but, in effect, becomes a trial court.”). Not ably, our decision not to consider these issues is not to be construed as any indication of our opinion regarding

their merits. {¶ 21} Accordingly, we find appellant’s first and second assignments o f error

well-taken.11. IV. Conclusion {¶ 22} For the foregoing reasons, we find that substantial justice has not been done the party complaining, and the judgment of the Ottawa County Co urt of Common Pleas is

reversed. This matter is remanded to the trial court for consi deration of the impact of appellee’s allegations relative to the $5,000 and $1,200—or oth er similar allegations raised in the pleadings and testified to at trial—on appellant’ s claim for reimbursement, if any. Appellee is ordered to pay the costs of this appeal pursu ant to App.R. 24.

Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.