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In re Estate Of Dotson9/28/2000
JUDGMENT: Affirmed.
This timely appeal arises from the judgment entry of the Mahoning County Court of Common Pleas, Probate Division. The entry adopted a magistrate's decision which approved the wrongful death claim of Appellee, Estate of Rayford Dotson, over the objections of Appellant, Yvonne Franklin, Dotson's estranged daughter. For the following reasons, we affirm the judgment of the Probate Court.
On October 19, 1995, Richard LaBooth filed an application for authority to administer the estate of Rayford Dotson, who died intestate on October 21, 1994. The Probate Court appointed LaBooth as administrator of the estate in November of that year. The estate included an unliquidated wrongful death claim for an asbestos related injury. On January 9, 1998, LaBooth filed an application to approve a wrongful death settlement. A notice was sent to Denise Tarver, the decedent's daughter and next of kin, for a hearing set for February 19, 1998. At that hearing, Tarver indicated the possible existence of another daughter of the decedent and supplied Appellant's name to the court. Counsel for the estate was ordered to investigate the matter and to serve appropriate notice. On February 27, 1998, LaBooth, through counsel, filed a motion captioned, "Motion to reset hearing on wrongful death application; notice of hearing; service" wherein LaBooth requested a hearing on the application to approve the wrongful death settlement. On March 2, 1998, the Probate Court notified LaBooth, Tarver and Appellant by certified mail of a hearing scheduled for March 19, 1998. That notice stated: "Please take notice that on Thursday, the 19th day of March, 1998 at 11:00 o'clock A.M. a hearing will be held in this court concerning MOTION TO RESET HEARING ON WRONGFUL DEATH APPLICATION. This shall be your only notice in this cause."
On March 19, 1998, the Court approved the wrongful death settlement of $15,100.87. Distribution of the wrongful death proceeds except for attorney fees and reimbursement of funeral expenses was taken under advisement. There was service of this order to counsel for the estate and to Tarver. Appellant, who did not appear for the hearing, did not receive notice of this order.
By a magistrate's order filed on November 6, 1998, the balance of the wrongful death proceeds were awarded to Tarver. A copy of the order was sent to Appellant by regular mail on November 13, 1998. On November 16, 1998, the Probate Court filed a letter received from Appellant. The letter was an emotional appeal for a share of the wrongful death settlement based on the fact that the Appellant was the abandoned daughter of the decedent. The Probate Court filed this letter as an objection to the magistrate's decision. On January 8, 1999, the Probate Court filed a judgment entry adopting the magistrate's decision. The court stated that children of the decedent are rebuttably presumed to have been injured by the decedent's wrongful death but that Appellant's "objections" to the magistrate's decision demonstrated that she suffered no injury by virtue of her admission that the decedent was not a part of her life.
On February 5, 1999, Appellant filed an appeal to this Court. Her sole assignment of error alleges:
"APPELLANT WAS NOT PROVIDED PROPER NOTICE OF THE HEARING ON MARCH 19, 1998 UNDER DUE PROCESS OF LAW AND APPELLANT WAS SUBSEQUENTLY DIVESTED OF HER PROPERTY CLAIM AGAINST DECEDENT'S WRONGFUL DEATH SETTLEMENT PROCEEDS BY THE COURT'S FINAL ORDER ON JANUARY 8, 1999 AFFIRMING AND ADOPTING THE MAGISTRATE'S DECISION OF NOVEMBER 6, 1998."
We begin by noting that the estate of Rayford Dotson has not filed a brief in this matter. Therefore, pursuant to App.R. 1
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