[Cite as In re Yeckley, 2012-Ohio-2504.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97426

 IN RE: ESTATE OF LENA M. YECKLEY 

[APPEAL BY DENNIS YECKLEY]

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Probate Court Division 

Case No. 10 EST 0164293 

BEFORE: E. Gallagher, J., Stewart, P.J., and Rocco, J. 

 

RELEASED AND JOURNALIZED: June 7, 2012 
FOR APPELLANT

Dennis Yeckley, pro se 

271 East 270th Street 

Euclid, Ohio 44132 

ATTORNEYS FOR APPELLEES 

For Thomas D. Yeckley 

James W. Tekavec 

38106 Third Street 

Willoughby, Ohio 44094 

Edwin V. Hargate 

18519 Underwood Avenue 

Cleveland, Ohio 44119 

For Linda L. Scott 

Allen C. Hufford 

22408 Lake Shore Blvd. 

Euclid, Ohio 44123 
EILEEN A. GALLAGHER, J.: 

{¶1} Appellant, Dennis G. Yeckley, appeals the trial court’s judgment entry 

denying and dismissing appellant’s objections to a magistrate’s decision and ordering the 

lost will of decedent Lena M. Yeckley to be admitted to probate. For the following 

reasons, we affirm the decision of the trial court. 

{¶2} Lena M. Yeckley passed away on April 13, 2006. An application for 

authority to administer estate was filed with the Court of Common Pleas, Cuyahoga 

County, Probate Court Division, on December 20, 2010, by Linda L. Scott, daughter of 

Lena Yeckley. A last will and testament of Lena Yeckley, dated May 11, 2001, was 

admitted to probate on that date. 

{¶3} On May 25, 2011, Thomas Yeckley, son of Lena Yeckley, filed an 

application to probate a lost or spoliated will, attaching a last will and testament of Lena 

Yeckley that was signed and dated March 24, 2003. A hearing on that application was 

conducted on July 12, 2011, before a magistrate wherein appellant, also a son of Lena 

Yeckley, opposed the application of Thomas Yeckley. The magistrate’s decision issued 

on July 28, 2011 recommended that the prior will that was admitted to probate on 

December 20, 2010 be vacated and set aside and that Thomas Yeckley’s application and 

the lost will, dated March 24, 2003, be admitted to probate. 

{¶4} Appellant filed objections to the magistrate’s decision on August 8, 2011, 

wherein he objected to the trial court’s failure to provide a court reporter to record the 

magistrate’s hearing and the testimony of certain witnesses at the hearing. Appellant 
attached to his objections an affidavit asserting that he had requested a court reporter but 

was “denied.” The trial court denied and dismissed appellant’s objections and adopted 

the magistrate’s decision as an order of the court on September 21, 2011. 

{¶5} Appellant appeals from the trial court’s order asserting the following sole 

assignment of error: 

{¶6} “[Trial] court abused its discretion by compelling and denying Dennis G. 

Yeckley appellant to proceed at hearing without court reporter, continuance, and 

witnesses.” 

{¶7} Appellant argues that the trial court erred in overruling his objections 

because the magistrate conducted the hearing without a court reporter, that the magistrate 

failed to construe his objection to the absence of a court reporter as a motion for a 

continuance of the hearing and that he “had no opportunity to present any evidence or 

testimony before the magistrate made his decision.” 

{¶8} A trial court’s ruling on objections to a magistrate’s decision will not be 

reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. No. 94148, 

2010-Ohio-4493, ¶ 16. An abuse of discretion implies that the court’s attitude was 

unreasonable, arbitrary or unconscionable, not merely an error of law or judgment. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140, (1983). 

{¶9} As an initial matter, we note that there is no evidence in the record to 

support appellant’s contention that he was denied an opportunity to present evidence at 

the magistrate’s hearing. In fact, appellant’s own affidavit that was attached to his 
objections to the magistrate decision states that he presented testimony, under oath, at the 

hearing. The trial court’s approved statement of facts, set forth pursuant to App.R. 

9(C), confirms that appellant testified at the magistrate’s hearing and had the opportunity 

to cross-examine each witness. Appellant’s argument that he was not provided an 

opportunity to present evidence is directly refuted by the record and without merit. 

{¶10} With respect to appellant’s contention that the magistrate erred in 

conducting the hearing without a court reporter present, Civ.R. 53(D)(7) states, “[e]xcept 

as otherwise provided by law, all proceedings before a magistrate shall be recorded in 

accordance with procedures established by the court.” 

{¶11} Loc.R. 11.1 of the Probate Division, at the time the hearing was 

conducted,1

 provided: 

Proceedings before a judge, magistrate, or referee may be 

recorded by stenographic means or other 

electronic means approved by the Court, 

provided that any party or counsel requesting 

such recording shall make satisfactory 

arrangements for payment of the costs. 

{¶12} The magistrate’s decision specifically notes, “[n]o transcript of the 

hearing was taken. The parties waived the appearance of a court reporter.” Appellant 

asserted in his affidavit that was attached to his objections that he “requested a [c]ourt 

[r]eporter but was denied * * *.” In denying appellant’s objections to the magistrate’s 

decision the trial court noted that, pursuant to Loc.R. 11.1, the responsibility for 

 1

The rule was extensively amended on September 12, 2011. 
arranging for a court reporter falls upon the requesting party. The trial court noted that 

appellant did not assert in his affidavit that he had made such arrangements or that he 

requested a continuance of the hearing in order to do so. Furthermore, the trial court’s 

App.R. 9(C) approved statement of facts notes that none of the parties arranged for a 

court reporter as required by local rule for the magistrate hearing. Based upon the above 

record, we cannot say that the trial court abused its discretion in overruling appellant’s 

objection to the magistrate conducting the hearing without a court reporter present. 

{¶13} Finally, appellant argues that the magistrate should have construed his 

objection to the lack of a court reporter as a motion for a continuance. Appellant failed 

to raise this argument before the trial court in his objections to the magistrate’s decision. 

Wilson v. Wilson, 8th Dist. No. 86817, 2006-Ohio-4261, ¶ 25, citing Howard v. 

Norman’s Auto Sales, 10th Dist. No. 02AP-1001, 2003-Ohio-2834. Civ.R. 

53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court’s 

adoption of any factual finding or legal conclusion [by the magistrate] * * * unless the 

party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” 

{¶14} An appellate court need not consider an error to which a party could have 

objected, but was not brought to the attention of the trial court. Wilson v. Wilson, 8th 

Dist. No. 86817, 2006-Ohio-4261, ¶ 26, citing Burns v. May, 133 Ohio App.3d 351, 358, 

728 N.E.2d 19 (12th Dist.1999). 

{¶15} Furthermore, we note that appellant’s position is expressly contradicted by 

the magistrate’s opinion that stated that the parties waived the appearance of a court 
reporter. Although appellant stated in his affidavit that he requested but was denied a 

court reporter, he did not challenge or dispute the magistrate’s statement that, in 

proceeding with the hearing, the parties waived the appearance of a court reporter. It is 

impossible to reconcile appellant’s argument that the magistrate should have construed 

his objection as a motion for a continuance of the hearing with such a waiver. 

{¶16} Appellant’s assignment of error is overruled. 

{¶17} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said lower court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

EILEEN A. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

KENNETH A. ROCCO, J., CONCUR