2016 Annual Probate Court and Elder Law Seminar

Sponsored by the Probate Court & Elder Law Committee

PROGRAM MATERIALS FOR: CONTINUING LEGAL EDUCATION

2016 ANNUAL PROBATE COURT & ELDER LAW SEMINAR DECEMBER 15, 2016 3.0 GENERAL CREDIT HOURS or NLT HOURS

2016 PROBATE COURT & ELDER LAW SEMINAR AGENDA 12:45 - 1:00 pm Registration & Welcome 1:00 - 1:20

Probate Court & Legislative Update Honorable Jack Puffenberger, Lucas County Probate Court

1:20 - 2:00

Probate Case Law Update Magistrate Paul Jomantas, Lucas County Probate Court Richard Kolb, Esq., The Law Office of Richard Kolb

2:00 - 3:00

Estate Planning for Modern Families L. Paul Hood, Jr., Director of Planned Giving, The University of Toledo Foundation

3:00 - 3:15

Break

3:15 - 4:15

Probate Litigation from a Plaintiff’s Perspective John Lewandowski, Esq., Heban, Sommer, Murphree, LLC

4:15 pm

Adjourn

CLE Seminar Rules: The Supreme Court of Ohio Commission on CLE has mandated strict rules for receiving CLE credit hours. As a provider of CLE, The Toledo Bar Association is expected to enforce these rules. We ask that you please observe the following rules:

 You may not conduct business by phone or e-mail during the seminar. (please wait until break time for this)  You may not catch up on office work using your laptop or other technical devices.  You may not read anything but the handout materials for the seminar. (i.e., magazines, newspapers, books, etc.)  If you need to leave the seminar early, you must sign out on the form at the registration table and deduct this time from your total attendance credit.

 If you leave without completing and submitting your attendance paperwork, your credit will not be reported to the Supreme Court of Ohio.

Thank you for your cooperation!

JACK R. PUFFENBERGER

Judge Jack R. Puffenberger has been the Presiding and Administrative Judge of the Lucas County Common Pleas Court, Probate Division, since 1991. Prior to this, he was twice elected as a Judge of the Toledo Municipal Court in Toledo. He is currently a member of the Ohio Supreme Court Commission on the Rules of Practice and Procedure and the Ohio Judicial Conference Executive Committee where he co-chairs that organization’s Probate Law and Procedure Committee. Judge Puffenberger is also a member of the Executive Committee and a Past President of the Ohio Probate Judges Association, as well as currently serving on the Judicial Advisory Committee. Judge Puffenberger is a former Trustee of the National College of Probate Judges and a former member of the Board of Governors of the American Judges Association. He has served on the Ohio Supreme Court Board of Commissioners on Grievances and Discipline and the Ohio Supreme Court Advisory Committee on Technology and the Courts. He is also active in numerous professional and community organizations. Judge Puffenberger received his B.A. from Kent State University, M.S. from Youngstown State University and J.D. from the University of Toledo College of Law.

L. Paul Hood, Jr. Paul Hood presently is Director of Planned Giving at The University of Toledo Foundation, as well as a speaker and commentator on estate planning, planned giving and business valuation issues. A former estate planning and tax attorney in Louisiana, Paul received his undergraduate and law degrees from LSU and his LL.M. in taxation from Georgetown University Law Center. He is a frequent speaker and his articles have appeared in a number of publications. He developed and taught a course on estate planning for the online masters in taxation program for Northeastern University from 2011-2012. From 1996-2004, Paul served on the Louisiana Board of Tax Appeals, a three member board that has jurisdiction over all Louisiana state tax matters. Paul and Tim Lee wrote a book on business valuation that John Wiley & Sons published in the spring of 2011, and he and Emily Bouchard wrote a book on estate planning for blended families that was published by Self-Counsel Press in the spring of 2012. Paul authored Buy-Sell Agreements (Self-Counsel Press 2013), and he, together with Stephan R. Leimberg, are the co-authors of the upcoming Tools & Techniques of Estate Planning for the Modern Family, which the National Underwriter published in 2013. In 2914, Paul co-authored the third edition of The Tools & Techniques of Charitable Planning, which The National Underwriter published in late 2014. Paul resides in Toledo, Ohio.

John Lewdowski, Esq. Heban, Sommer & Murphree, LLC John's practice is devoted to civil matters, primarily probate and business litigation. John is licensed to practice law in Ohio, as well as the U.S. District Court for the Northern District of Ohio and the Eastern District of Michigan. John has argued cases in front of United States District Court Judges, Ohio Appellate Courts, and the Ohio Supreme Court. John is a member of the American Bar Association, the Ohio State Bar Association, the Toledo Bar Association, the Lucas County Bar Association, and the Wood County Bar Association. Along with Kevin Heban and Kent Murphree from the firm, John is a lecturer on probate litigation matters. Personal: John grew up in Toledo, Ohio, attending St. John's Jesuit High School. John graduated magna cum laude from the Ohio State University with a Bachelor’s Degree in Political Science. He received his Juris Doctorate, cum laude, from the Duquesne University School of Law (Pittsburgh, PA). John has been with the law firm of Heban, Sommer & Murphree, LLC, since law school. John resides in Toledo with his wife and daughter, where they are very active in their local community and church. John enjoys golf, Ohio State football, and his golden retriever (Herbie). Education:   

Duquesne University School of Law, Cum Laude, (2009) The Ohio State University, Magna Cum Laude, (2006) St. John's Jesuit High School (2002)

Bar Admissions:     

Ohio (2009) U.S. District Court Northern District of Ohio (2009) U.S. District Court Eastern District of Michigan (2010) U.S. Bankruptcy Court Northern District of Ohio (2009) U.S. Bankruptcy Court Eastern District of Michigan (2010)

Practice Areas:     

Civil Litigation Probate Litigation Estates and Trusts Commercial/Business Municipal Law

Richard Kolb, Esq. Richard is an experienced probate litigation attorney with more than 30 years of litigating estate and trust matters throughout Ohio. As a pioneer in this legal area, I have worked on hundreds of probate litigation cases and have tried dozens of cases, mostly before juries. Practice areas As an attorney, my probate litigation practice primarily focuses on:     

Will contests Trust contests Farm inheritance disputes Change of beneficiary designation disputes Gift disputes

   

Trust and will constructions Breaches of fiduciary duty Concealment of assets Inheritance enforcement

Education information I received my undergraduate degree from DePauw University in Greencastle, Indiana and my law degree from the Ohio State University Law School. Professional associations and memberships I belong to the Ohio State Bar Association, Toledo Bar Association and the Lucas County Bar Association. I am a former President of the Lucas County Ohio Bar Association. I have been a member of the Toledo Bar Association’s Probate Committee since 1981. I am a member of the Ohio State Bar Association’s Estate Planning, Trust & Probate Law Council (the OSBA committee that writes legislation for the estate planning area).

CONTINUING LEGAL EDUCATION

SPONSORED BY THE PROBATE AND ELDER LAW COMMITTEE

2016 ANNUAL PROBATE COURT AND ELDER LAW SEMINAR

Supporting Materials By: Mag. Paul Jomantas Lucas County Probate Court

2016 PROBATE CASE LAW DIGEST

2016 Annual Probate and Elder Law Seminar Judge Jack R. Puffenberger Lucas County Probate Court December 15, 2016 Presented by Magistrate Paul Jomantas

INDEX ADOPTIONS In re Adoption of K.L.M. In re Adoption of A.L.H. In re Adoption of A.M.L. In re Adoption of L.C.F. In re Adoption of C.R.R. In re Adoption of Z.G.A. In re Adoption of M.G. In re C.C.S. In re Adoption of K.O.D.K. In re Adoption of C.J.C. In re Placement of A.R.V. In re Adoption of N.T. R. In re A.L.A.

Pg 1 Pg 1 Pg 3 Pg 4 Pg 5 Pg 6 Pg 7 Pg 8 Pg 9 Pg 10 Pg 11 Pg 13 Pg 15

APPEALS Nejman, et al. v. Charney, et al. Burns v. Live Well Financial, Inc. et al

Pg 16 Pg 17

ATTORNEY FEES Thallman v. Thallman

Pg 18

ATTORNEY/JUDICIAL DISCIPLINE Dayton Bar Assn. v. Scaccia In re Contempt of Brewster Warren Cty. Bar Assn. v. Vardiman Disciplinary Counsel v. Williams Cleveland Bar Association v. Pryatel Disciplinary Counsel v. Thomas Cleveland Metro Bar Assoc. v. Azman

Pg 19 Pg 20 Pg 22 Pg 23 Pg 24 Pg 25 Pg 26

BIRTH REGISTRATION Zimmerman v. Mongomery Co. Pub. Health Department

Pg 28

CIVIL CONTEMPT Champaign Cty. Court of Common Pleas v. Fansler

Pg 29

CIVIL PROCEDURE Arch Bay Holdings v. Goler Smith v. Omaits

Pg 30 Pg 31

CREDITOR CLAIMS Wilson v. Lawrence Huth v. Kus

Pg 32 Pg 33

Fugate-Walton v. Walton Cessna v. Landers

Pg 34 Pg 36

DISQUALIFICATION In re Disqualification of Spencer Lingenfelter v. Lingenfelter In re Disqualification of Repp In re Disqualification of Markus In re Disqualification of Ingraham

Pg 37 Pg 38 Pg 40 Pg 41 Pg 42

ESTATE PLANNING Blausey v. Van Ness

Pg 42

ESTATES Bayes v. Dornon Graham v. Boerger In re Estate of Amoroso In the Matter of the Estate of Ronald Thatcher St. ex rel Fellows v. Everman Huntington v. Riversource Lavin v. Hervey Matheus v. Matheus Estate of Ross In re Estate of Cardi In re Estate of Abraitis Whetstone v. Binner In re Burton In re Estate of Brown In re Ball In re Estate of Fields In re Estate of Burdette

Pg 44 Pg 46 Pg 47 Pg 48 Pg 50 Pg 51 Pg 52 Pg 53 Pg 54 Pg 57 Pg 58 Pg 59 Pg 62 Pg 63 Pg 65 Pg 66 Pg 68

GUARDIANSHIP In re Guardianship of Hilt In re Guardianship of Cohodes In re Herrin In re Guardianship of Bolog In re Guardianship of Lindsey In re Guardianship of Fred Van Dyke In re I.B. In re Guardianship of Igah In re Guardianship of Mull Guardianship of Basista In re Guardianship of Shriver In re Guardianship of Carpenter

Pg 69 Pg 70 Pg 71 Pg 72 Pg 74 Pg 75 Pg 77 Pg 79 Pg 81 Pg 83 Pg 84 Pg 85

MAGISTRATES In re Estate v. Tillimon

Pg 87

MANDAMUS State ex rel. Byers v. Carr Richardson v. Byrd State ex rel Steinle v. Dewey

Pg 88 Pg 90 Pg 91

MEDICAID Phillips v. McCarthy

Pg 91

MISCELLANEOUS Estate of Atkinson v. Ohio Dept. of Job & Family Svcs. In the matter of the appointment of Ancillary Trustee for Deceased Real Estate Broker Nicholas Batt Traditions at Stygler Rd., Inc. v. Vargas-Smith Hackenberg v. Zeller Wilburn v. Cartwright McWreath v. Cortland Bank Simmons v. Lee State ex rel. Clough v. Franklin County Children Servs. Shinaver v. Shinaver State ex rel. Lorain Cty. Bd. Of Commrs. v. Lorain Cty. Court of Common Pleas Hardcastle v. McLendon Mickey v. No Named Defendant State ex rel Clay v. Cuyahoga Cty Med. Examiner’s Office In re Childress State ex rel. Samara v. Suster State ex rel Moir v. Kovack United States of America v. Runser Toledo Bar Assoc v. Abreu Brown v. Ralston In re D.B.

Pg 93 Pg 96 Pg 97 Pg 98 Pg 99 Pg101 Pg103 Pg104 Pg105 Pg106 Pg106 Pg107 Pg108 Pg109 Pg110 Pg111 Pg112 Pg112 Pg113 Pg115

MORTGAGE CitiMortgage, Inc. v. Brown

Pg115

NAME CHANGE In the Matter of: The Name Change of Cameron James Briggs Bond v. Rinaldis

Pg117 Pg119

PRE-NUPTIAL AGREEMENT Reid v. Daniel

Pg120

PROHIBITION St ex rel. Abraitis v. Gallagher St ex rel. Abraitis v. Gallagher State ex rel. Chester Twp v. Grendell

Pg121 Pg124 Pg125

TRUSTS Pitts v. Sibert Ryan v. Huntington Trust Nordloh v. McGuire Newcomer v. Roan In re Estate of Chonko Schwartz v. Tedrick KeyBank v. Thalman Estate of Thallman v. Thallman

Pg127 Pg128 Pg129 Pg131 Pg134 Pg135 Pg136 Pg137

WILLS/WILL CONTEST Beadle v. O’Konski-Lewis et al Hutchinson v. Kaforey Nolan v. Hinzey Black v. Watson In re Estate of Harris v. Harris

Pg138 Pg139 Pg140 Pg142 Pg144

WRONGFUL DEATH In re Estate of Molitor Estate of Shackelford

Pg145 Pg146

ADOPTIONS TOPIC:

Trial Court finding that consent of birthmother was necessary in adoption reversed upon further analysis.

TITLE:

In re Adoption of K.L.M., 2015-Ohio-3154.

The Probate Court determined that birth mother’s consent was necessary in adoption proceeding due to her provision of maintenance and support under O.R.C. 3107.07(A). The birth mother was found to be employed, and to have made purchases of school supplies and holiday gifts for her child, and to have provided meals and some spending money to her child, especially during regular visits with her child during the first six months of the year preceding the filing of the adoption petition. The Appeals Court reversed, and noted first that “the right to parent one’s children is a fundamental right.” It then employed the two step analysis set out by the Ohio Supreme Court in In re Adoption of M.B., 2012-Ohio-236. “The first step involves the factual question of whether the petitioner has proved by clear and convincing evidence that the parent willfully failed to have more than de minimis contact with the minor child or failed to provide maintenance and support.” This step is reviewed under an abuse of discretion standard, and upon further review it was determined that “this probate court decision is unreasonable as it clearly merges separate questions of contact and support into one issue. The question of whether a parent has met her burden of providing de minimis contact or maintenance and support must be able to stand on its own.” A review of the record reflected no more than eight visits during the one-year period and no more than $300.00 in gifts and spending money provided. “It is clear that the majority of the gifts were meant as gifts for the child’s enjoyment and not as support.” The lack of any support order is irrelevant as it would be based on the common law duty to support one’s child. “The second step occurs if a probate court finds a failure to have more than de minimis contact or provide the required maintenance and support.” This step involves the examination of whether the failure to provide either is justifiable. The burden on the petitioner is simply to prove the failure to support if the nonconsenting parent offers no evidence of justification for the lack of support. Petitioner proved by clear and convincing evidence that the birth mother failed without justifiable cause to provide maintenance and support of her child as required by law. The probate court’s judgment was reversed and remanded for further proceedings.

TOPIC:

Dismissal of petition for adoption on reasoning that adoption by grandparents was not in child’s best interest was error where trial court failed to state that it considered the statutory best interest factors and failed to articulate its reasons for denying the petition, R.C. 3107.161.

TITLE:

In re Adoption of A.L.H., 2015-Ohio-3317.

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Petitioners-Appellants Paternal Grandparents were given legal custody of their grandchild, A.L.H. on March 1, 2013 by the Crawford County Court of Common Pleas, Juvenile Division. A.L.H. had originally been placed with Paternal Grandparents in June 2012. Mother-Appellee was determined unable to care for A.L.H. due to her incarceration and heroin addiction. Pursuant to an order by the Crawford County Court of Common Pleas, Juvenile Division, Maternal Grandmother was granted visitation with A.L.H. On February 27, 2014, Paternal Grandparents filed a petition for adoption of A.L.H. with the Richland County Court of Common Pleas, Probate Division. The trial court held a hearing on July 2, 2014 to determine whether consent to adoption was required under R.C. 3107.07. Father of A.L.H. consented to adoption. Mother contested the adoption. At the conclusion of the hearing, the trial court stated on the record Mother’s consent to adoption was not required pursuant to R.C. 3107.07(A). The trial court scheduled a second hearing to determine whether the adoption was in the best interest of A.L.H. On December 3, 2014, a hearing was held before the trial court to determine whether the adoption was in the best interest of A.L.H. Sarah Dean of the Village Network Treatment Foster Care Agency testified at the hearing. On December 17, 2013, Dean conducted a home study pursuant to R.C. 3107.031 for the purpose of ascertaining whether Paternal Grandparents were suitable to adopt A.L.H. Dean testified that Paternal Grandparents met the standards for adoption of A.L.H. Dean testified, however, she was concerned that if visitation with Maternal Grandmother terminated after the adoption, it would have a detrimental effect on A.L.H. Dean felt the placement with Paternal Grandparents was appropriate but adoption by Paternal Grandparents would not be the least detrimental thing for A.L.H. On January 8, 2015, the trial court issued its judgment. It stated: The court upon a careful and thorough review of the evidence submitted, taking into consideration the demeanor, veracity, and truthfulness, of the witness testimony and upon a careful weighing of the same determines that Petitioners [Paternal Grandparents] failed to prove by the requisite standard that the adoption would be in the best interest of the minor sought to be adopted. Accordingly, the Petition for Adoption of Minor filed February 27, 2014 is hereby dismissed. Paternal Grandparents appealed. Although the appellants raised six Assignments of Error, the Court of Appeals for Richland County started its analysis with the fourth Assignment of Error, noting that it was dispositive of the appeal. Paternal Grandparents argued in the fourth Assignment of Error that the trial court erred in not setting forth its reason for denying the adoption petition pursuant to R.C. 3107.161. The court agreed.

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The court ruled that in Ohio, an adoption proceeding is a two-step process involving a “consent” phase and a “best-interest” phase. It noted that the trial court in this case found mother’s consent not necessary and she did not appeal that finding. At issue in the appeal was best interest. The Court reviewed the probate court’s decision to grant or deny the adoption petition under an abuse of discretion standard and in light of the trial court’s failure to indicate that it considered the statutory factors, it found that the trial court abused its discretion in denying the petition for adoption. The January 8, 2015 judgment entry was reversed and remanded. On remand, the trial court was ordered to reconsider its decision as to whether the adoption is in the best interests of A.L.H. It further ordered that if the trial court reaches the same conclusion, it is to demonstrate that it considered the factors set forth in R.C. 3107.161(B). It also found that based on its finding as to the fourth Assignment of Error it was premature to rule on the first second, third, fifth and sixth assignment of errors.

TOPIC:

Granting child’s stepmother’s petition for adoption was not error where the court heard detailed evidence about how the stepmother cared for the child and how the child considered the stepmother to be his mother, and other evidence showed mother’s reintroduction into his life could be harmful to the progress child had made in therapy, R.C. 3107.161.

TITLE:

In re Adoption of A.M.L., 2015-Ohio-224

A.M.L. was born in October of 2005 while the family was living in Connecticut. His parents initiated divorce proceedings in 2007 and Appellant, mother, relocated to Alabama. A.M.L.’s father was granted custody and Appellant was ordered to pay $54 per week in child support but never made any payments. Appellant has seen A.M.L. three times with the last time being in October 2010. A.M.L. received therapy for Reactive Attachment Disorder, which is a disorder that occurs when there is an abrupt break between two people with a strong bond and the person suffers a mental breakdown. Father and A.M.L. moved to Ohio and in 2011 father began a relationship with stepmother. Father and stepmother were married in July 2013 and have one child together. Stepmother is a stay-at-home mother and takes care of A.M.L. and A.M.L. refers to stepmother as “mom”. On April 15, 2014, the stepmother of A.M.L. filed a petition to adopt A.M.L. and alleged that the consent by the Appellant was not required because in the year before the adoption petition was filed the Appellant failed to support or have contact with A.M.L.. At a hearing, Appellant testified that she tried to contact the father and he did not answer his phone or know his address. During the hearing Appellant stated that she is remarried, working, and has a stable life and initiated proceedings to exercise her rights as a parent. The trial court granted the stepmother’s petition to adopt A.M.L.. Appellant appealed the trial court’s decision with her single assignment of error being an abuse of discretion.

3

Adoptions in Ohio are a two-step process involving a “consent” phase and a “best-interest” phase. The Appellant stipulated that her consent was not necessary and her argument is based upon best interest finding of the trial court. The trial court’s determination as to the best interest of the child is done after consideration of the eleven factors listed in ORC 3107.161. The person contesting an adoption petition has the burden of providing to the court “material evidence needed to determine what is in the best interest of the child” and the burden of establishing “that the child’s current placement is not the least detrimental available alternative.” The finding of the trial court will only be reversed if there was an abuse of discretion which means the decision was unreasonable, arbitrary, or unconscionable. The trial court listed the factors of ORC 3107.161(b) and indicated that it had considered those factors in determining the adoption was in the best interest of A.M.L.. The Court of Appeals found there was no abuse of discretion in the best interest determination. The Court of Appeals found no merit to the Appellant’s argument and the assignment of error was overruled.

TOPIC:

In action for adoption of children without parents’ consent, trial court erred in finding that consent was required where parents had only de minimis contact with children, parents did not financially support the children, and the record showed that the lack of support was not justified because parents were capable of financially supporting children but were unwilling to do so, R.C. 3107.07(a).

TITLE:

In re Adoption of L.C.F., 2015-Ohio-1545

The biological parents of C.P.F. and L.C.F. were both drug abusers and could not care for their children. The parents, on a handwritten note, signed temporary emergency guardianship of C.P.F and L.C.F. over to T.C. and D.C. (the “Cs”) The Cs were unable to provide full-time care for the two small children and C.F. and P.F. (the “Fs”) were appointed successors in guardianship by the court. On October 13, 2011, the biological parents filed a motion to terminate the guardianship and for visitation. On the same day the “Fs” filed petitions for the adoption of C.P.F. and L.C.F. The magistrate held a hearing in regards to whether or not the biological parents’ consent to the adoptions was required. The magistrate found that there was justifiable cause for the biological parents’ failure to maintain contact with the children and their consent was required. Appellants set forth four assignments of error. The “Fs”, with the first and fourth assignment of error, challenged the trial court’s finding that consent of the biological parents was necessary for the adoption. The 8th District Court of Appeals, pursuant to R.C. 3107.07(a), found that consent of the biological parents is not necessary when: [a]fter notice and hearing, a court finds clear and convincing evidence that the parent has failed without justifiable cause to communicate with the child or provide maintenance and support as required by law or judicial

4

decree for a least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the petitioner’s home. In the instant case, the Court of Appeals found that the biological parents did not provide maintenance and support and that there was not justifiable cause. The court noted that there is a difference between parents who are unwilling to support their children and able to do so and parents who are willing to support their children but unable to do so. The parents who are willing but unable to support their children would have a valid justification. In this case, the Court found that the biological parents were unwilling and able to provide support and maintenance for C.P.F. and L.C.F. so there is not a valid justification. The Court of Appeals ultimately held that the trial court erred in finding the biological parents have justifiable cause for failing to support C.P.F. and L.C.F. and that the ruling was against the manifest weight of the evidence. Additionally, the Court of Appeals allowed the Fs to proceed with the adoption of the children without receiving parental consent from either of the biological parents.

TOPIC:

Consent of biological father properly found necessary in step-parent adoption case.

TITLE:

In re the Adoption of C.R.R., 2015-Ohio-5399.

Heather gave birth to C.R.R. in 2006. Steven is the father. Gary married Heather and filed an adoption petition in 2014 indicating Steven’s consent was not required. Steven timely objected and the Probate Court denied the adoption, determining that the consent of Steven was required in order to proceed. On appeal, the “pivotal issue is whether appellant waived his right to an evidentiary hearing on the issue of consent.” The probate court had bifurcated on the motion of Steven the consent issue from the best interest issue. O.R.C. 3107.07 was reviewed as the governing Statute on consents in adoptions, and the record reflected that the consent matter was decided by the Probate Court based on consent related motions, proposed stipulations of fact, and additional information requested of both parties by the Court in lieu of an oral hearing. This was determined to be sufficient under the circumstances. Further, special note was made of the fact that Steven was ordered to pay $0.00 per month in child support because C.R.R. received $942.00 per month from his social security disability, which offset any support obligation. Because of this, the issue regarding support became one of law and not of fact. The Ohio Supreme Court in Williams v. Williams, 88 Ohio St. 3d 441 (2000) held a parent’s support obligation is set off by the receipt of disability benefits by the child from the disabled parent’s benefits. The Probate Court judgment was affirmed.

5

TOPIC:

In an adoption proceeding, the trial court’s denial of a father’s request to intervene in a pending adoption case was not clear error where the father failed to register as the putative father within thirty days of the child’s birth or to establish his paternity.

TITLE:

In re Adoption of Z.G.A., 2016-Ohio-238

Z.G.A. was born in Delaware County, Ohio, on February 24, 2015. Three days after she was born, Z.G.A.’s mother surrendered the child to an adoption agency. Z.G.A’s father, the appellant, was incarcerated several months before Z.G.A.’s birth and is still incarcerated. No father was listed on Z.G.A.’s birth certificate, and it was unclear the nature of the relationship between appellant and Z.G.A.’s mother. Prior to Z.G.A.’s birth, the Appellant moved to stay any adoption proceedings pending in the Delaware County Probate Court. The court filed a judgment entry, on February 23, 2015, stating that it lacked jurisdiction to grant the Appellant’s relief. On March 16, 2015, the Appellant filed a “Motion for Consideration” in the Delaware County Probate Court seeking to prevent the finalization of any adoption proceedings requested by Z.G.A.’s mother. A day later, the Probate Court again found that it lacked jurisdiction to grant relief. The Appellant then filed a “Motion for Consideration” in the Franklin County Probate Court, and attempted to register with the Putative Father Registry in April of 2015. However, the Ohio Department of Job and Family Services (ODJFS) rejected the registration form because the form had not been filed within 30 days of the child’s birth. A petition for Z.G.A.’s adoption was filed in Greene County on April 14, 2015. On July 23, 2015, Appellant filed a “Request for Paternity/Genetic Testing Establishing Paternal Rights as the Natural Father” in the Greene County Probate Court. The trial court filed a judgment entry stating it would treat this filing “as an objection contesting the adoption and whether the alleged father’s consent is required”. However, on July 31, the trial court found that the father’s consent was not required because the appellant had not registered as a putative father within 30 days of the child’s birth, as required by R.C. 3101.07(B)(1). Also, pursuant to R.C. 3107.06(B), the appellant did not establish his paternity in any other manner that would result in his consent to the adoption being required. As a result, the adoption was finalized on September 1, 2015. On appeal, the Second District Court of Appeals affirmed the judgment of the Green County Probate Court. The Court of Appeals noted that R.C. 3101.07(B) stated that the consent of a putative father is not required if the “putative father failed to register as the minor’s putative father… not later than thirty days after the minor’s birth”. See R.C. 3101.07(B). The court stated the Appellant did not register as Z.G.A’s putative father within thirty days from her birth. The court also acknowledged that the Appellant failed to demonstrate that a parental relationship had been legally established in any other way before the adoption petition was filed. Addressing the Appellant’s due process and equal protection claims, the Court noted that a putative father’s “inchoate interest in developing a relationship with a child in the future… arising solely from a biological link with the child, is afforded far less

6

constitutional protection than an already developed parent-child relationship would be.” (See In re Adoption of P.A.C., 2010-Ohio-3351 citing Lehr v. Robertson, 463 U.S. 248 (1983). The court noted that a putative father’s rights “must be balanced with protection of the best interests of children, including the provision of a permanent and stable home and the completion of the adoption process in a expeditious manner. See e.g. In re Adoption of G.V., 2010-Ohio-3349. The Court of Appeals recognized that the appellant had made misdirected and incomplete efforts to establish a parent-child relationship and held that his consent was not required.

TOPIC:

In adoption proceeding, a trial court’s requirement that a biological father’s consent was necessary for adoption of his child was not error, where the father’s failure to support the child in the preceding year was facially justifiable due to no court order for support because the mother discouraged any court involvement and refused financial assistance from the father.

TITLE:

In re Adoption of M.G., 2015-Ohio-5185

M.G. was born on January 8, 2008 to Staci and appellee, Aaron. Two weeks after M.G. was born, the parties proceeded by agreement to keep things out of court and that support was to be established at a later time. As a result, no legal action was taken by the parties to establish paternity, child support or visitation. In the winter of 2008, guardianship of M.G. was voluntarily granted to Staci and continued until July of 2012. On June 29, 2013, Staci married the appellant, Garman. Subsequently, appellee informed Staci that he would like to go to court to establish his parental rights and responsibilities. However, on December 8, 2014, Garman filed a petition to complete a step-parent adoption of M.G. without the consent of appellee. The petition alleged that the biological father’s consent was not necessary because he had failed without justifiable cause to provide for M.G.’s maintenance and support as required by law for at least one year immediately preceding the filing of the petition. On January 8, 2015, Aaron filed his answer and objection to the adoption. On March 16, 2015, a hearing was held on the necessity of Aaron’s consent. During the hearing, Staci admitted that she had originally allowed Aaron to visit with M.G. four times a month, but visitation decreased over time to twice a month. Staci also admitted that after Garman’s petition for adoption was filed, visitation was then limited to Staci’s convenience. Furthermore, appellee was not permitted to visit with M.G. anyplace besides Staci’s home and with the supervision of her or her mother. The trial court found that the preponderance of the evidence showed that Aaron had failed to support M.G. for the year immediately preceding the filing of the petition, but also determined that Aaron had put forth a facially justifiable reason for this failure. This determination was based on Staci’s rejection of child support and that she had actively interfered with the parent-child relationship between Aaron and M.G.

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On appeal, the appellant argued that the trial court’s decision was erroneous because it was based upon Staci’s failure to prosecute a claim for child support. The Third District Court of Appeals stated that Staci’s failure to prosecute was only one of the many factors considered as part of the totality of the circumstances. The appellate court reasoned that the offer of support and rejection of it by Staci, along with her repeated efforts to avoid court, backed the trial court’s determination that a facially justifiable reason was provided. The appellate court determined that there was competent, credible evidence to support the trial court’s determination that the appellee’s consent was necessary for adoption. Because the appellee’s consent was required for adoption, the Third District Court of Appeals dismissed the appellant’s adoption petition.

TOPIC:

Tenth District Court of Appeals affirmed a trial court’s involuntary dismissal of appellant’s petition for writ of habeas corpus to compel return of her biological child where appellant signed a permanent surrender agreement and failed to present evidence that surrender agreement was invalid.

TITLE:

In re C.C.S., 2016-Ohio-388.

Appellant, C.L.S., and her five children lived with J.G., her boyfriend, beginning in 2008. In 2013, appellant became pregnant by an old friend. In March 2014, J.G. told appellant the new baby could not come home. On March 27, 2014, appellant met with a social worker, Ms. Schumaker, to receive information about adoption, birth parents’ rights, alternatives to surrender, and other details. Appellant signed papers to surrender the child. Appellant made no request to seek counseling and affirmatively stated that no one was forcing her to go through with the adoption. On April 13, 2014, appellant told Ms. Schumaker that the decision to surrender was never hers. Appellant asserted that she was pressured to surrender the child. Appellant requested the child be returned to her and petitioned the Franklin County Probate court to revoke the permanent surrender agreement. Before the trial court, appellant claimed the permanent surrender was made involuntarily. After the hearing, Gentle Care, appellee, moved for an involuntary dismissal under Civ. R. 41(B)(2). On August 22, 2014, the trial court granted appellee’s motion for involuntary dismissal. Appellant appealed to the Tenth District Court of Appeals. On June 2, 2015, the appellate court remanded the issue to the trial court to further investigate and weigh the pressures Appellant faced when making her decision. In a thirty-five (35) page decision, the trial court concluded Appellant did not meet her burden of proof to receive habeas corpus, and that the execution of the permanent surrender was appellant exercising her freedom of will. As a result, the trial court granted appellee’s motion for involuntary dismissal under Civ. R. 41(B)(2). On appeal, the Tenth District Court of Appeals affirmed the judgment of the Franklin County Probate Court. Having found the C.L.S. really had a choice, the Court of Appeals ruled that it would not invalidate the permanent surrender agreement. It found

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that the evidence presented by C.L.S. at trial was insufficient to overcome the prima facie evidence of the signed permanent surrender agreement, indicating essentially that this case was a question of fact, not law. The trial court, as the fact finder, made its determination after a lengthy trial that C.L.S. failed to present clear and convincing evidence that the surrender agreement was invalid as a result of duress or other factors. The court noted that it is a great misfortune therefore that this case resulted in a newborn child living in foster care since birth for the last 21 months. Having overruled the four assignments of error, the judgment of the trial court was affirmed.

TOPIC:

The Fifth District Court of Appeals affirmed a trial court’s dismissal of a petition for adoption because appellant did not show that appellee failed to provide support or have contact with his biological child due to the child’s mother preventing appellee from contacting his child.

TITLE:

In re Adoption of K.O.D.K., 2016-Ohio-1003

K.Q. was born on October 30, 2012 and was the biological child of appellee R.Q. and M.K. M.K. is married to appellant, R.K., the child’s stepfather. In April 2015, appellant filed a petition to adopt K.Q. and alleged that appellee’s consent for the adoption petition was not required because he failed to have de minimis contact with the child for at least a year prior to the petition. Appellant also alleged that appellee failed to provide maintenance and support for R.K. for at least a year preceding the petition, as required by law. On August 25, 2015, the Probate court held a hearing on the petition. M.K. testified that R.Q. never contacted or provided support for K.Q. She also testified that she was unaware of any attempts to establish child support or a paternity action to establish a parent/child relationship. In contrast, R.Q. testified that M.K. had made several attempts to prevent R.Q. from seeing his son. In fact, R.Q. stated that he attempted to speak to his son and M.K. yanked the car seat out of his hands and said that R.Q. was not permitted to contact or speak to the child. In August of 2013, R.Q. attempted to set up a child support order, but was unable get money for a DNA test to establish that K.Q. was his biological child. However, on cross-examination, R.Q. did admit that he had never paid any support for R.Q. On October 21, 2015, the trial court denied the petition for adoption via a judgment entry. The trial court held that although the appellee failed to communicate and provide support during the one-year period prior to the adoption petition, appellant failed to establish that the appellee’s failure to communicate and provide support was without justifiable cause. Therefore, the trial court held that the appellee’s consent to the adoption was necessary and dismissed the adoption petition because appellee did not consent to the adoption. As a result, appellant appealed the Ashland County Court of Common Pleas judgment entry.

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On March 11, 2016, the Fifth District Court of Appeals affirmed the judgment of the Ashland County Common Pleas Court. On appeal, appellant argued that there was not evidence of significant interference, appellee’s efforts to locate the child was minimal, appellee provided no money or gifts to the child, and appellee exhibited violence towards M.K. The appellate court stated that consent to adoption is not required only if the court finds by clear and convincing evidence that a parent has failed, without justifiable cause, to provide more than de minimis contact with the minor or to provide support for the minor for at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner. The court also stated that a parent’s failure to support must equate to abandonment of the child. However, the Fifth District Court of Appeals found that R.Q. had presented sufficient evidence to show that his failure to communicate and support K.Q. was justified as a result of significant interference by M.K. The court noted that the trial court believed that appellee never knew where the child was located because M.K. had changed her phone number and blocked R.Q. from contacting the child. As a result of M.K.’s actions the appellate court found there was sufficient evidence to support the trial court’s decision.

TOPIC:

Approval of petition to adopt child without the consent of biological father was not error where father admitted that he did not have contact with son for a year, he did not act on his plan to request visitation with son, and mother’s actions did not prevent father from having contact, R.C. 3107.07.

TITLE:

In re Adoption of C.J.C., 2016-Ohio-4909.

Shannon Cicconetti gave birth to C.L.S. in July 2008. DNA testing later established that Mr. Topovski is C.L.S.’s father. In July 2014, Anthony Cicconetti petitioned to adopt C.L.S. and change his name to C.J.C. In his petition, Mr. Cocconetti alleged that he did not need Mr. Topovski’s consent to the adoption because Mr. Topovski had failed to provide for C.L.S.’s maintenance and support and because Mr. Topovski had not had more than de minimis contact with C.L.S. for at least one year before the date of the petition. After receiving notice of the adoption petition, Mr. Topovski objected to it, alleging that Ms. Cicconetti had intentionally interfered in his relationship with his son. The probate court subsequently held a hearing on whether Mr. Topovski’s consent was required for the adoption to proceed. Following the hearing, the court entered a judgment concluding that the adoption could proceed without Mr. Topovski’s consent because he “failed without justifiable cause to provide more than de minimis contact with C.L.S. Mr. Topovski appealed. In his first assignment of error, Mr. Topovski argued that the probate court incorrectly limited the evidence he could present about the events that occurred before he stopped communications with C.L.S.

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The Court of Appeals for Wayne County noted that the day that Mr. Topovski last had contact with his son, July 19, 2013, was actually before the one-year period that the court focused on at the hearing. The parties, however, were able to present extensive evidence about the events of that day, which Mr. Topovski alleged resulted in his not being able to contact his son. Upon review of the record, it concluded that Mr. Topovski had not demonstrated that the probate court prevented him from presenting any relevant evidence concerning whether he had justifiable cause for not contacting his son, let alone that it abused its discretion when it prohibited such evidence. Mr. Topovski’s first assignment of error was therefore overruled. In his second assignment of error, Mr. Topovski argued that the probate court incorrectly found that he did not have justifiable cause for failing to maintain contact with his son during the one-year period that preceded Mr. Cicconetti’s adoption petition. Although Mr. Topovski only referred to the weight of the evidence in his assignment of error, he also argued in his brief that the record did not contain clear and convincing evidence to support the probate court’s finding. Upon review of the record, the appellate court concluded that the probate court’s findings were supported by the record. Mr. Topovski had experience using the court system to exercise his rights to his children. He also testified that he had worked on a motion for visitation regarding C.L.S. The fact that he did not pursue his motion did not appear to have been based on any action by the Cicconettis. Accordingly, the Court of Appeals could not say that the probate court lost its way when it found that he failed without justifiable cause to provide more then de minimis contact with C.L.S. during the one year period that preceeded Mr. Cicconetti’s adoption petition. Mr. Topovski’s second assignment of error was overruled and the judgment of the Wayne County Probate Court was therefore affirmed.

TOPIC:

Dismissal of petition for placement for adoption was not error where stepgreat-grandfather of child filed the petition under R.C. 5103.16(D) and then claimed exemption from the statute; however, if he believed he was exempted from the requirements of that statute, he should have filed a petition for adoption under R.C. 3107.05

TITLE:

In re Placement of A.R.V., 2016-Ohio-4929.

Steven Colburn filed a Petition for Placement for Purposes of Adoption in the Trumbull County Probate Court. Colburn made the following averments: he is the greatgrandfather of A.R.V.; he and Joan Colburn were “awarded legal custody of the minor child by the Trumbull County Juvenile Court”; Joan Colburn died on December 28, 2012; and that A.R.V.’s biological mother and father have “failed without justifiable cause to provide more than de minimis contact with, or provide for the maintenance and support of, the minor for a period of at least one year immediately preceding the filing of the placement of the home of the petitioner.” Colburn prayed the Court grant his Petition for Placement of the minor child for purposes of Adoption.

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At a November 23, 2015 hearing on the Petition, Angel Vitale, A.R.V’s natural mother, “objected to the proposed placement for adoption with the minor’s step-great grandfather [Colburn] and requested that counsel be appointed for her.” The probate court appointed counsel to represent Vitale. Vitale, through counsel, filed a Civil Rule 12(B)(6) Motion to Dismiss. Vitale argued that, for the purposes of R.C. 5103.16, a stepgreat-grandfather is a “non-relative” and, therefore, without standing to bring a petition for placement for adoption. A hearing was held at which the parties agreed that the motion boiled down to the definition of a ‘relative’. The probate court granted Vitale’s Motion to Dismiss. The court found that in strictly construing the statute, a step-great-grandfather is not a relative under O.R.C. 5103.16(D). Colburn appealed. The issues raised in this appeal were related to R.C. 5103.16, which sets forth the procedure for independently placing a child for adoption when no public agency, certified institution or association, or foreign custodian is involved. The Court noted that the intent of the legislature in enacting R.C. 5103.16 was to provide some measure of judicial control over the placement of children for adoption which is not conducted under the auspices of a statutorily recognized and authorized agency by having the parents of the child personally appear before the proper probate court for approval of the placement and adoption. Pursuant to 5103.16(D) the Court further noted that unless the child has been placed or received for adoption by a public children services agency or related institution, the biological parents must appear before and obtain approval from the probate court. An exception to the requirement that the parents appear before the probate court exists where “the parents or parents of the child are deceased or have abandoned the child, as determined under division (A) of section 3107.07 of the Revised Code,” in which case “the application for approval of the proposed adoptive placement may be brought by the relative seeking to adopt the child * * *.” R.C. 5103.16(D)(3). There are also circumstances in which R.C. 5103.16 has no application. “R.C. 5103.16 does not apply in all private adoptions” and the statute does not apply to an adoption by a stepparent, a grandparent, a grandparent’s husband or wife, a legal custodian, or a guardian. For the purposes of R.C. 5103.16, legal custodian means a person who has been granted the legal custody of a child by a court of competent jurisdiction. In the first assignment of error, Colburn argued that the probate court’s decision to apply R.C. 5103.16(D) to the case at bar and thereby dismiss Colburn’s petition was error when Colburn is exempt from the adoption placement requirements set forth in R.C. 5103.16(D), by virtue of his being A.R.V.’s legal custodian. The court found that this argument lacks merit as the probate court did not decide to apply R.C. 5103.16(D), rather, the applicability of the statute was presupposed by Colburn filing a Petition for Placement for Purposes of Adoption pursuant to R.C. 5103.16(D). If it was Colburn’s belief that he was exempted from the requirement of

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R.C. 5103.16(D), he should not have filed a Petition for Placement under the statute but, rather, filed a Petition for Adoption pursuant to R.C. 3107.05. In the second assignment of error, Colburn argued that the trial court erred by holding that, as A.R.V’s step-great-grandparent, he did not meet the definition of a “relative” for the purposes of R.C. 5103.16(D). The Court noted that given the conclusion that Colburn was exempted from the provisions of R.C. 5103.16(E), whether he qualified as a “relative” under the statute is a moot issue. The probate court dismissed Colburn’s Petition because, “in strictly construing the statute, a step-great-grandfather is not a relative under O.R.C. 5103.16(D)” and the Court of Appeals disagreed. The court indicated that the term “relative” is generally understood as a person connected with another by blood or affinity. Significantly, the definition of “relative” adopted by the Ohio Administrative Code for family services departments encompasses relationships by affinity including the spouses of great-grandparents, i.e., step-greatgrandparents. Moreover, it noted that construing the term “relative” as used in R.C. 5103.16(D) to include the spouses of great grandparents would not exempt such person from seeking court approval for adoptive placement, it would merely enable them to do so despite lack of a prior placement by a public children services agency or related institution. The dismissal of Colburn’s Petition for Placement for Purposes of Adoption by the Trumbull County Court of Common Pleas, Probate Division, was affirmed Thomas R. Wright, Jr., concurred, Cynthia Westcott Rice, P.J. concurred with a Concurring Opinion. Judge Cynthia Westcott Rice, in a Concurring Opinion wrote that she agreed with the majority opinion’s disposition of this matter but wrote separately because she felt the analysis of what constitutes a “relative” under R.C. 5103.16(D) was irrelevant. She further wrote that as the majority points out, the trial court recognized Colburn is not precluded from moving forward with a petition for adoption under R.C. 5031.16(E)(1). Addressing the definition of “relative” as it pertains to subsection (D) is completely unnecessary to our analysis and adds nothing to the substantive character of the opinion therefore, any discussion of this issue should be withheld from consideration until it is properly before this court.

TOPIC:

Probate Court’s judgment finding that father’s consent was not required reversed.

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TITLE:

In re Adoption of: N.T.R., 2016-Ohio-3427.

The appellant and M.D. were married in 2007 and had a child, N.R., in 2008. They divorced in 2013 and M.D. was awarded sole custody of N.R. Also, in 2013, M.D. married the petitioner, K.D. Appellant is currently serving a prison sentence of 70 years to life, after being convicted of multiple counts of sexual abuse of his step daughter. K.D. filed a petition to adopt N.R. and M.D. consented. K.D. alleged in the petition that the appellant’s consent was not required for the adoption due to failure to provide: (1) more than de minimis contact with the minor, and (2) for the maintenance and support of the minor as required by law or judicial decree. R.C. 3107.07(A). The Magistrate held and the Probate Court adopted the decision that the appellant’s consent was not required for both of the reasons alleged in the petition. Appellant filed objections to that decision but did not file a transcript of the hearing. The Probate Court overruled the objections concluding that the evidence was “incontrovertible” that appellant, without justifiable cause, failed to provide for the maintenance and support of his child for the year preceding the filing of the petition. The probate court did not determine whether appellant failed without justifiable cause to provide more than de minimis contact with his child. Appellant appealed the decision based on the following errors: 1) The court’s decision stated that Mr. Roush had no justifiable reason for not supporting his son for the one year before the filing of the adoption petition; 2)the court’s decision that Mr. Roush had no justifiable reason for not having contact with his son for the one year before the filing of the adoption has no merit; 3)The lower court was prejudiced against Mr. Roush due to him currently being incarcerated; 4)The court’s decision violates many of Mr. Roush’s Constitutional Rights protected by the Bill of Rights; 5) Mr. Roush challenges the decision of the Probate court citing that the decision was against the manifest weight of the evidence; 6)The trial court erred in its decision finding that appellant’s consent was not required for adoption because its decision was not based on clear and convincing evidence. Due to the appellant’s failure to file a transcript in support of his objections to the Magistrate’s decision, the appellate court only considered whether the trial court correctly applied the law to the magistrate’s factual findings. The Court of Appeals, in regard to assignments of error one, five and six, found that the Magistrate factually found that appellant had not provided any financial support for N.R. since 2010. The Magistrate also found that appellant was ordered to pay zero in child support as part of the parties’ divorce decree. The trial court erred when it found the absence of justifiable cause. Based upon recent decisions made by the Court of Appeals, it concluded that the Probate Court incorrectly applied the law to the Magistrate’s factual findings and, therefore, its decision was against the manifest weight of the evidence. The zero support order provided justifiable cause for appellant’s failure

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to provide support for his child. The appeals court sustained the appellant’s first, fifth and sixth assignments of error. The Court of Appeals disagreed with appellant’s assignments of error three and four. The appeals court stated that rulings and decisions of a judge are not in and of themselves evidence of prejudice. The mere disagreements with the results are also not proof of prejudice. There was nothing in the record or in the probate court’s decision to indicate bias due to the appellant’s incarceration. The Court of Appeals overruled appellant’s third and fourth assignments of error. The Court of Appeals indicated that the appellant’s second assignment of error will be addressed by the probate court on remand and therefore was overruled. The Court of Appeals for Franklin County therefore reversed the judgment of the Franklin County Common Pleas Court, Probate Division and remanded the matter for the Probate Court to determine whether there is justifiable cause for appellant’s failure to provide more than de minimus contact with N.R. for the period of time set forth in R.C. 3107.07(A).

TOPIC:

Pursuant to RC § 2151.353 (F) (1), the Juvenile Court’s jurisdiction over a dependent minor child is terminated by an adoption in the Probate Court.

TITLE:

In re A.L.A., 2016-Ohio-5887.

In 2011, Trumbull County Children Services filed a complaint alleging ALA to be a dependent child. In 2012, the Trumbull County Juvenile Court terminated parental rights. In January 2016, the Juvenile Court discharged the GAL on finding that a final adopting was granted through the Mahoning County Probate Court. In January 2016, the father filed a motion to vacate the order terminating his parental rights, claiming he hadn’t been served with notice. The juvenile court denied his motion, finding he had been served and reviewing the case history. The father appealed. The 11th District Court of Appeals began by reviewing Ohio Civil Rule 60 (B), as well as GTE Automatic, the 1976 Ohio Supreme Court case that gives the proper standard one needs to prevail on a Rule 60 (B) motion. The Court made very clear that the GTE test is not fulfilled if any one of the requirements is not met. See Strack v. Pelton (1994), 70 Ohio St.3d 172. The Appellate Court found that the father’s 60 (B) motion was filed over 3 years after judgment was entered, without explanation for the delay of why it was reasonable. The Court found the juvenile court “was well within its discretion to deny it.” The Court said that, more importantly, the juvenile court’s jurisdiction was terminated by the 2015 adoption in the Mahoning County Probate Court [See RC § 2151.353 (F) (1)]. Since ALA was adopted before the father filed his motion, the juvenile court lacked jurisdiction to

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rule on the 60 (B) motion and did not fail by not holding an evidentiary hearing. Affirmed.

APPEALS TOPIC:

In action by beneficiaries of trust against trustee, partner in an out-of-state law firm, and related defendants, appeal of denial of defendants’ motion to dismiss for lack of personal jurisdiction is dismissed for lack of a final appealable order since the order did not determine the action or prevent judgment.

TITLE:

Nejman, et al. v. Charney, et al., 2015-Ohio-4087.

Appellants, Henderson, Caverly, Pum, & Charney L.L.P. (Henderson), appealed the denial of its motion to dismiss for lack of personal jurisdiction and assigned one error for review: The trial court erred by denying appellants’ motion to dismiss for lack of personal jurisdiction despite appellee’s failure to satisfy the requirements of R.C. 2307.382 and constitutional due process. After reviewing the record and the applicable law, the court dismissed the appeal for lack of a final, appealable order. Appellees Shoshana Nejman, Carolyn Naiman, and Matthew Naiman are beneficiaries of six trusts. Jack Charney (Charney), a partner at Henderson, was the trustee of the trusts. Appellees filed suit alleging that Henderson misappropriated and mismanaged trust assets located in Ohio. The complaint also alleged that Henderson, as appellees’ counsel, withheld financial information related to the trusts from appellees and failed to protect appellees’ interests in the trust assets. The complaint asserted claims for breach of fiduciary duty, legal malpractice, and conversion. Charney is a lawyer in California and his firm, Henderson, is a California firm. Henderson filed a motion to dismiss for lack of personal jurisdiction, arguing it lacked sufficient contacts with Ohio to fall within Ohio’s long arm statute. Henderson further argued that the exercise of personal jurisdiction over the firm would violate its constitutional right to due process. The trial court denied the motion and Henderson appealed from that judgment. The Court of Appeals noted that it has generally held that the denial of a motion to dismiss for lack of personal jurisdiction is generally not a final, appealable order, and that it lacked subject matter jurisdiction to consider Henderson’s appeal in the absence of a final, appealable order. The Ohio Constitution limits appellate jurisdiction to the review of final judgments of lower courts. Henderson argued that the trial court’s order overruling its motion to dismiss for lack of personal jurisdiction is a final, appealable order because the motion determined

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the action with respect to a “provisional remedy,” and it will not be afforded a meaningful and effective remedy if it must wait until the final judgment to bring its appeal. A ruling on a motion to dismiss for lack of personal jurisdiction does not conclusively determine the action with respect to a provisional remedy. Therefore, Henderson’s motion to dismiss for lack of personal jurisdiction is not a final, appealable order under R.C. 2505.02(B)(4). Henderson also argued the trial court’s exercise of personal jurisdiction over it violates its constitutional right to due process. One’s right to due process is a “substantial right” as contemplated by R.C. 2505.02(B)(1) and (2), and may be a final, appealable order if certain conditions are met. R.C. 2505.02(B) provides that an order is a final order and may be reviewed, affirmed, modified, or reversed when it is one of the following: (1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment; (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment. R.C. 2505.02(A)(2) defines “special proceeding” as “an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.” Appellee’s claims for legal malpractice, conversion, and breach of fiduciary duty are common law actions. As common law causes of action, appellees’ claims are not subject to special proceedings. Therefore, the trial court’s order is not a final, appealable order under R.C. 2505.02. The court concluded that it had long held that an order denying a motion to dismiss for lack of personal jurisdiction does not determine the action, does not prevent judgment, and is not a final, appealable order. Accordingly, the court dismissed the appeal for lack of a final, appealable order.

TOPIC:

The Sixth District Court of Appeals remanded a case to the Lucas County Court of Common Pleas, Probate Division, to allow the trial court to have a hearing on a motion to vacate a judgment that was being appealed.

TITLE:

Burns v. Live Well Financial, Inc. et al, In the Court of Appeals of Ohio, Sixth Appellate District Lucas County Case No. L-15-1261.

Appellant, Live Well Financial, filed a motion in the Sixth District Court of Appeals to remand the matter to the trial court for a ruling on a pending Civ.R. 60(B) motion to vacate the judgment that was being appealed. The appellate court noted that when a motion to vacate is pending in the trial court and an appeal is also pending from the same judgment, the court may remand the matter to the trial court without divesting the appellate court of jurisdiction to hear the pending appeal. The appellate court found that Live Well Financial’s motion was well-taken and granted the motion. As a result, the

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Sixth District Court of Appeals remanded the case to the Lucas County Probate Court for 40 days to permit the court to rule on the pending Civ.R. 60(B) motion. As a result of the remand, the court ordered a stay of all further proceedings until the trial court judge ruled on the Civ.R. 60(B) motion.

ATTORNEY FEES TOPIC:

When trustees filed a motion for attorney fees under Ohio Civil Rule 37 (A)(4), arguing that they were entitled to attorney fees and expenses for prevailing against plaintiffs’ motion to compel, they must demonstrate by explicit documentation and expert witness testimony (if needed) that the fees are fair, reasonable and justified to prevail on appeal.

TITLE:

Thallman v. Thallman, 2016-Ohio-0992.

The Thallmans were married and had 5 children. In 1981, Mrs. Thallman created a trust agreement which stated that at her death, her husband would be provided funds for his life but when he died, the trust would terminate and the funds be distributed equally to their 5 children and any afterborn children “share and share alike, per stirpes.” Mrs. Thallman died in 1983 and was survived by her husband. In 2004, he created a trust to benefit him during his life but that would be distributed at his death into fifths as follows: one child predeceased and his 3 children would each get 1/3 of his fifth interest; the other 4 children got a full 1/5 of his trust. The primary asset of both trusts was farmland. Mr. Thallman died in 2014. The 3 grandchildren and the fiduciary of their father’s estate filed a 2014 action in the Seneca County Probate Court seeking an accounting of the trusts, including the trustees’ compensation, receipts, disbursements, debts, etc. Discovery took place. The defendant trustees filed a motion to dismiss for failure to state a claim or, in the alternative, summary judgment. They stated that they had complied with all discovery requests, but the plaintiffs wanted records from a time period that they were not even beneficiaries and under RC § 5808.13 were not entitled to such records because they weren’t “current beneficiaries” at that time. Plaintiffs filed a motion to compel, arguing that as “other beneficiaries” they were entitled to more extensive discovery/records. The trial court found that the plaintiffs did not become beneficiaries until 2014 when Mr. Thallman died, that the trustees had complied with discovery, and that the plaintiffs therefore only could get records from January 2014 onwards. Defendant trustees filed a motion for attorney fees under Ohio Civil Rule 37 (A)(4), arguing that they were entitled to attorney fees and expenses for prevailing against the motion to compel. Plaintiffs attempted to file a motion to file an amended complaint instanter which alleged inter alia breach of fiduciary duty and malicious interference. Defendants argued

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that plaintiffs motion be denied, because they were “fishing” for causes of action where none existed. Pursuant to Ohio Civil Rule 41 (A), plaintiffs now filed a voluntary dismissal without prejudice. Plaintiffs also argued, however, that their voluntary dismissal rendered defendants’ motion for attorney fees moot for lack of jurisdiction. Plaintiffs appealed the trial court’s decision denying their motion to compel. The 3 District Court of Appeals noted that the plaintiffs voluntarily dismissed all claims, and the only pending matter was that of attorney fees. Thus there was no timely appeal from a final judgment. The appeal was dismissed, and plaintiffs’ appellate motion for reconsideration was denied. rd

The probate court held a hearing on the Civil Rule 37 (A)(4) motion for expenses and attorney fees in 2015. Because the hearing was not concluded but needed to be continued, defendants argued that plaintiffs should bear the costs of those fees. In fact, defendants argued that plaintiffs’ conduct was frivolous under RC 2323.51 and they should pay all fees and expenses which amounted to over $30,000. The trial court found the plaintiffs’ motion to compel was not justified substantially and therefore granted defendants’ initial amount of fees incurred, but also found the frivolous conduct/all expenses assertions by defendants to be untimely and denied them. Plaintiffs appealed again, on their motion to compel and the award of attorney fees to defendants under Rule 37. The 3rd District Court of Appeals found the motion to compel a moot point, as plaintiffs had voluntarily dismissed their case. The Appellate Court also found that the motion to compel had not been justified, and that the there was no abuse of discretion by the trial court under RC § 5808.13 as to its determination that the defendant trustees had complied with giving the plaintiffs tax returns and relevant records. Finally, the Court found, pursuant to Ohio Civil Rule 37 (A)(4), that the award of attorney fees was justified: the defendants had called a neutral attorney with over 41 years of civil practice (including work as a prosecutor and public defender) as an expert witness under Ohio Evid. R. 702 (B). Plaintiffs never objected to his certification as an expert witness, and the attorney had testified that the attorney fees incurred by defendants to argue against the motion to compel were reasonable, documented, and justified. However, his testimony as to travel expenses incurred were not justified, and so those were denied. The Court also affirmed the lower court’s ruling denying defendants’ assertion of frivolous conduct by plaintiffs as untimely. Affirmed in part, and denied in part (as to expenses).

ATTORNEY/JUDICIAL DISCIPLINE TOPIC:

Inattention to Detail Resulted in Suspension for Dayton Lawyer.

TITLE:

Dayton Bar Assn. v. Scaccia, 2015-Ohio-2487.

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The Ohio Supreme Court suspended John J. Scaccia of Dayton for violating professional conduct rules in two clients’ cases. The court ordered a one-year suspension with six month stayed if Scaccia meets specific conditions. The suspension will run concurrently with a 2014 suspension for poor attention to detail during the same timeframe as the misconduct in this case. In 2007, John J. Scaccia took on a personal injury case for a contingent fee. After he settled the case, he did not sign the statement explaining the distribution of settlement proceeds and did not have his client sign it either – violations of attorney conduct rules. Scaccia also failed to pay about $2,300 to some of the client’s medical providers and did not keep sufficient funds in his client trust account. In second matter, Scaccia agreed to represent a Montgomery County man and later his mother in a pending criminal case. In 2013, they were indicted for drug-related charges. In the 7-0 decision, the court noted that Scaccia did not place the mother’s retainer check in his client trust account and did not inform her in writing that he had no professional liability insurance, although he told her verbally. In addition, the court concluded he did not communicate effectively with her about his representation because he failed to give a clear explanation of what he would do as her lawyer or the possible problems that might occur while representing two criminal defendants in the same case. The court in the per curiam opinion dismissed other charges brought by the Dayton Bar Association in these two cases. In a report to the court, the state disciplinary board pointed out that some of Scaccia’s misconduct took place when he and his family members were suffering health problems. Scaccia has hired additional staff and taken other steps to try to prevent mistakes in the future, the report indicated. The board also explained that this misconduct and Scaccia’s 2014 suspension, which is still in effect, stemmed from the “same inattention to detail and covered overlapping timeframes.” The court agreed with the board’s finding that Scaccia is unlikely to commit future intentional misconduct and ordered that the suspension run simultaneously with the earlier sanction. Scaccia’s one-year suspension was stayed for six months if he submits to monitored probation during the stay and for one year after, and if he takes 12 hours of law-office-management education on top of the mandated continuing education for lawyers.

TOPIC:

Prosecutor, Social Worker Not in Contempt for Failing to Obey Magistrate’s Illegal Order.

TITLE:

In re Contempt of Brewster, 2015-Ohio-4984.

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Children and Family Services (CFS) filed a complaint in juvenile court in March 2014, to declare a minor child, listed in court records by the initials J.A., dependent because of his mother’s substance abuse. CFS asked the court to order J.A. into its protective supervision. The magistrate hearing the case granted CFS’s request and then set conditions for the prospective removal of the child. The magistrate ordered the mother to be drug tested the next day, and if the mother tested positive for drugs, or if the child missed any medical appointments, the information was to be brought to the court immediately and J.A. was to be removed from the home. The mother tested negative for drugs the next day and a case plan was implemented by CFS. In May 2014, the mother tested positive for opiates. Bond was supervising the matter and learned the mother received a pain pill from her mother, who said she accidentally gave her daughter a pill that included an opiate. Bond did not report the matter to the prosecutor’s office because she did not determine J.A. was at risk and she did not notify the court because she interpreted the March order by the magistrate to only apply to the March drug test or if the child missed medical appointments. The mother continued to take drug tests and passed until September 2014, when she again tested positive for opiates. Bond then discovered J.A. was missing medical appointments. CFS did not remove J.A. from the home, based on the prosecutor’s advice that the agency could not remove the child without a court hearing. The prosecutor’s office filed a notice of violation and requested a court hearing. In October 2014, the magistrate conducted the hearing, granted temporary custody to CFS, and issued notice of contempt of court against Bond and Brewster for not immediately removing the child from the home as outlined in the March order. The magistrate found the two in contempt and imposed the $100 fines, and a juvenile judge affirmed the decision. The county appealed. Writing for the Eighth District, Judge Tim McCormack wrote the magistrate’s order lacked clarity, including specifying which agency or individual was responsible for removing the child, and who would have custody of the child if the mother failed a drug test or failed to take the child to medical appointments. He also cited the Eighth District’s 2015 In re B.W. decision that except for a few specific circumstances, any order to automatically remove a child from a home without notice to the party is unlawful. Judge McCormack cited state laws allowing the county to remove a child if there are reasonable grounds to believe removal is “necessary to prevent immediate or threatened physical or emotional harm,” and to protect against neglect. He noted that except for those instances of immediate harm or emergencies, the parent or custodian of the child must receive notice and an opportunity to be heard, and that the situation had to show more than a threat of future harm. “As this court concluded in B.W., the removal of a child requires a hearing to determine the immediacy of harm and best interest of the child, in light of the totality of circumstances existing at the time. In this case, the significant passage of time between

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the initial order and the mother’s positive drug test made such an inquiry even more essential,” he wrote. Judge McCormack found the magistrate had no authority to issue the order without a hearing and that the juvenile court could not hold Bond and Bewster in contempt for failing “to carry out its unsustainable order.” Judges Mary Eileen Kilbane and Eileen T. Gallagher concurred in this decision.

TOPIC:

Attorney received one year suspension with six months stayed on conditions for violation of Rules of Professional Conduct, including knowingly make a false statement of fact or law to tribunal, knowingly offering evidence the lawyer knew to be false and engaging in conduct prejudicial to the administration of justice.

TITLE:

Warren Cty. Bar Assn. v. Vardiman, Slip Opinion No. 2016-Ohio-352.

Attorney Vardiman had been briefly suspended by the Court in December 2007 for failing to register as an attorney, and faced charges brought against him in 2014 by the Warren County Bar Association and the Cincinnati Bar Association. The Court’s 4-3 per curiam opinion noted that both complaints centered on ethical violations regarding signatures on documents. In the Warren County case, Vardiman represented a father seeking to reduce his child support obligation, and he initially obtained the signature of the mother, who was not represented by an attorney. Four documents requiring the mother’s signature were rejected by the trial court, and when a revised a set of documents was filed by Vardiman, the court discovered he had signed the mother’s signature without her authority. Vardiman claimed he signed the mother’s name on the documents because his client was getting anxious about the time the process was taking. The board found Vardiman violated several attorney rules including “knowingly making a false statement of fact or law to a tribunal,” “committing an illegal act that reflects adversely on the lawyer’s honest and trustworthiness,” and “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.” The Cincinnati complaint came when Vardiman prepared a client’s will that required two witness signatures. Vardiman signed his own name as a witness then signed the name of another person without permission. That act violated the professional rules against “committing an illegal act,” and “engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.” In determining the appropriate sanction for Vardiman’s misconduct, the Court noted that his brief registration suspension was due to an oversight and that he did not

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have any other prior disciplinary issues. The court also considered that he had contracted with OLAP for three years to treat an attention-deficit/hyperactivity disorder (ADHD). “Vardiman’s conduct was at least partially driven by his recently diagnosed ADHD, which his treating psychologist described as an ‘inborn neurological problem.’ Given Vardiman’s acceptance of responsibility for his action; his active participation in OLAP and effective treatment for this disorder; and numerous letters attesting to his good character, repuration, and professional competence, we agree that a one-year syspension, with the final six months stayed on condition, is the appropriate sanction for his misconduct,” the Court wrote. Justices Pfeifer, Lanzinger, Kennedy, and French joined the opinion. Chief Justice O’Connor, and Justices O’Donnell and O’Neill dissented, writing they would not have stayed any portion of the suspension.

TOPIC:

Attorney suspended for two years with eighteen months stayed with conditions.

TITLE:

Disciplinary Counsel v. Williams, Slip Opinion No. 2016-Ohio-827.

Williams was appointed judge in the Akron Municipal Court in March 2009 and lost a bid to retain the seat in the November 2009 general election. The municipal court judges then hired him as a magistrate, and part of his duties was to oversee eviction cases. While presiding over a case where a landlord sought to evict a woman identified in court documents as A.B., Williams began a sexual relationship with A.B. and failed to recuse himself from the case. Weeks later, municipal court judges learned A.B. had been arrested for operating a motor vehicle while intoxicated and was referring to Williams as her boyfriend. Williams admitted the relationship to the judges, recused himself from A.B.’s case, and resigned. After leaving the court, Williams worked at a Columbus law firm, but was terminated in May 2013. Days after losing his job, he and A.B. purchased a used car by listing an address where he had not lived for more than a year and falsely stating a salary with the law firm he just left. With Williams’ consent, A.B. altered one of his paystubs to get the car loan, and Williams later defaulted on the loan. Williams also represented a woman seeking to be appointed to manage the financial affairs of an estate in Summit County Probate Court. The probate court approved a $25,000 wrongful-death settlement to the estate, and the money was deposited in Williams’ client trust account. Williams made several payments on behalf of the estate but failed to comply with a court order to pay about $10,800 for an annuity to benefit the dead man’s three children.

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In April 2011, the probate court ordered Williams to close the estate assuming the annuity had been purchased, but Williams informed the court he kept the money in his client trust account and was going to invest in a money-market account to benefit the children. More than a year later, the money had not been transferred, and Williams had taken nearly all the funds from it. In May 2013, he transferred $10,000 of personal funds back into the account. He then depleted the account again and secured personal funds to replenish it. However, while the account still had $10,800, financial experts estimated the children lost about $9,000 by not having the annuity. The Office of Disciplinary Counsel filed complaints with the professional conduct board that included violation of the Code of Judicial Conduct for Williams’ failure to disqualify himself in cases where his impartiality could be questioned, and for violations of the rules governing attorneys including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; not acting with reasonable diligence when representing a client; and engaging in conduct prejudicial to the administration of justice. Williams told the board he had no intention of continuing to serve as the magistrate in A.B.’s eviction case but did not know how to recuse himself. He also said A.B. began abusing him and that he was diagnosed with post-traumatic stress disorder (PTSD) caused by their relationship. He entered into a five-year contract with OLAP. The Court found Williams failed to establish that PTSD played a role in the causing his misconduct as an attorney, but acknowledged that “he practiced law without incident for more than 20 years before he commenced his improper relationship with A.B.” The Court found a two-year suspension with 18 months stayed was appropriate as long as Williams complies with his OLAP contract, continues counseling for PTSD, does not engage in further misconduct, and makes full restitution to the children from the mishandled estate. In the Court’s majority were Chief Justice O’Connor and Justices Pfeifer, Kennedy, French, and O’Neill. Justices O’Donnell and Lanzinger dissented, writing that they would impose a two-year suspension without a stay.

TOPIC:

Cleveland attorney disbarred for continuing to practice law after his license was suspended.

TITLE:

Cleveland Bar Association v. Pryatel, Slip Opinion No. 2016-Ohio-865.

The Ohio Supreme Court disbarred a Cleveland attorney who was caught on video representing a client in court three months after his law license was suspended. In a 4-3 per curiam decision, the Supreme Court ruled Mark R. Pryatel continued to practice law during his suspension and engaged in dishonest conduct.

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Pryatel objected to the board finding that he practiced law while suspended. He argued his conduct in Rocky River did not constitute the “practice of law” because he did not advocate for Brazell, cross-examine any witnesses, cite legal authority, or handle any legal documents. The Court rejected Pryatel’s arguments. Citing its 2006 Cleveland Bar Assn. v. Comp Management, Inc. decision, the Court stated the practice of law is not limited to advocacy or filing of legal documents, but includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf. “Here, the evidence demonstrated that Pryatel accompanied Brazell to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him,” the opinion stated. “Under any definition, Pryatel’s appearance on behalf of Brazell constituted the practice of law.” Pryatel also claimed he was “sandbagged” by the bar association about his appearance in Cleveland Municipal Court because the case against him before the board did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and Pryatel had more than two weeks to review it before his disciplinary hearing. The Court ruled that Pryatel offered no explanation about how the introduction of the video prevented him from adequately defending himself against the charges. Pryatel argued that he should not be disbarred because his actions involved a single client who benefitted from his assistance, and he helped Brazell for “sympathetic and altruistic reasons.” He also asserted that he cooperated during the disciplinary process and had a history of providing quality legal series to indigent clients. He suggested that other lawyers charged with the same conduct as his were not disbarred. The Court disagreed. “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, this actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law,” the Court concluded. In the Court’s majority were Chief Justice Maureen O’Connor, and Justices Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill. Justices Paul E. Pieffer, Sharon L. Kennedy, and Judith L. French dissented, writing that they would continue to impose the indefinite suspension.

TOPIC:

Attorney indefinitely suspended for stealing from elderly clients and filing false inventories in probate court.

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TITLE:

Disciplinary Counsel v. Thomas, Slip Opinion No. 2016-Ohio-1582.

The Ohio Supreme Court suspended the license of James W. Thomas, Jr. in July 2014 when he was convicted of two counts of theft and one count of theft from the elderly, which were felonies he committed while serving as a court-appointed guardian. He also was convicted of three misdemeanor counts of falsification. Thomas, who served as the guardian for four individuals, pleaded no contest to the theft of thousands of dollars from them and for attempting to conceal the thefts by filing false inventories with the Preble County Probate Court. He was sentenced to 4 ½ years in prison and ordered to make $208,095 in restitution, the largest award being $115,112 to one of the clients. Based on the crime, the Office of Disciplinary Counsel charged Thomas with multiple violations of the rules governing attorneys, and the Board of Professional Conduct conducted hearings based on the claims. The board found Thomas, who was first admitted to practice in 2001, violated several rules including the prohibition of a lawyer committing illegal acts; engaging in conduct involving dishonest, fraud, deceit or misrepresentation; knowingly making a false statement of fact or law to a tribunal; and knowingly offering evidence that the lawyer knows to be false. In considering the sanctions, the board found Thomas acted with a dishonest or selfish motive by using the money he misappropriated from his clients to maintain an addiction to ephedrine and to compensate for the loss of legal practice income as a result of his addiction. The board also noted that he engaged in stealing client money and trying to conceal it with false filings for more than six years. The board learned that one client owed more than $115,000 settled for $89,000 paid by Thomas’ professional-liability insurer and that Thomas’ father agreed to pay the other clients to up $18,000 over the next two years. In its unanimous per curiam, opinion, the Court noted that Thomas owes those other clients more than $90,000, and that he has made no effort to compensate the victims. The Court imposed the indefinite suspension with six conditions that Thomas would have to meet to be considered for reinstatement that include: completing his incarceration; paying full restitution to all clients; complying with the terms of his probation; completing an Ohio Lawyers Assistance Program (OLAP) substance-abuse program and addiction-treatment program; signing an OLAP recovery contract for a term determined by OLAP; and being in full compliance with all treatment recommendation.

TOPIC:

Former Cleveland Attorney Suspended for One Year.

TITLE:

Cleveland Metro Bar Assn v. Azman, Slip Opinion No. 2016-Ohio-3393.

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In a unanimous per curiam opinion, the Supreme Court suspended Brandon L. Azman of Arlington, Virginia, for one year with six months stayed on conditions. The Court found Azman not only accessed the account for his former employer, but also other employees of the firm, and he deleted some email communications then lied about the deletions under oath. Azman worked for the the Piscitelli Law Firm in 2012 and 2013, but was terminated. Azman learned the login credentials and passwords for Piscitelli’s email and those of three other employees. The day of his termination he began accessing those accounts with authorization and continued for two-and-a-half weeks. Firm employees changed their passwords, but Azman was still able to obtain their updated information and continued to view their e-mails, accessing the system at least 20 times. Azman sent two emails to Piscitelli asking if he would write a letter of recommendation, but Piscitelli did not respond. Azman then emailed Piscitelli indicating he met with one of the law firm’s clients and proposed that in exchange for the letter of recommendation, he would “be willing to negotiate a non-compete of sorts” with the firm. Piscitelli replied that he terminated Azman for poor work performance and would not provide a letter. He told Azman he would pursue legal action against Azman if he contacted firm clients, harassed firm employees, or made additional threats to him or the firm. Piscitelli forwarded the email exchange to another employee in this office. Azman then logged into the firm’s email and deleted the communications between him and Piscitelli from both Piscitelli’s and the other employee’s accounts. When Piscitelli discovered the emails were deleted, the firm contacted local police, who traced the unauthorized access to Azman’s residence. Piscitelli agreed not to pursue a criminal complaint against Azman if Azman reported his conduct to the Cleveland Metropolitan Bar Association. Azman notified the bar association of his termination and his unauthorized viewing of firm e-mail, but during a deposition he denied purposely deleting any firm emails. It was not until disciplinary hearings by the Board of Professional Conduce that Azman admitted he deleted the emails. The board found Azman violated several rules governing the conduct of Ohio lawyers including unlawfully destroying or concealing material having potential evidentiary value, engaging in conduct that is prejudicial to the administration of justice, knowingly making a false statement in connection with a disciplinary matter, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. To determine a recommended sanction, the board considered the aggravating factors in Azman’s case including his selfish motive, engaging in a pattern or wrongful conduct over a two-week period, omitting multiple offenses, and knowingly making a false statement. Mitigating factors the board considered included Azman having no prior discipline, ultimately acknowledging his wrongful conduct, and that the conduct did not involve the provision of legal services or negatively impact a client’s case. The board

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also noted that except for the false statement during his deposition, he displayed a cooperative attitude during the disciplinary process. The Court accepted the board’s recommended sentence. Azman’s one-year suspension was stayed for six months on the condition that he not engage in further misconduct and pay the costs of the disciplinary proceedings.

BIRTH REGISTRATION TOPIC:

Probate courts are of limited jurisdiction under RC § 2101.24, and although declaratory judgment actions are allowed, they do not magically enlarge the probate court’s jurisdiction. As a result, although plaintiff’s complaint superficially concerned birth registration/certificates, it did not involve a correction of birth pursuant to RC § 3705.15, the probate court therefore lacked subject matter jurisdiction to consider the complaint and properly dismissed it.

TITLE:

Zimmerman v. Montgomery Co. Pub. Health Dept., 2016-Ohio-1423.

Zimmerman was born in Dayton, Ohio, in 1946. She filed a complaint for declaratory judgment in the Montgomery County Probate Court asserting that she granted “personal” jurisdiction to the court to clarify her personal certificate of life birth and her birth certificate. She named herself, the Montgomery County Health Department (HD), the Ohio Department of Health and the State of Ohio as respondents. She claimed that her property was being used by respondents without her knowledge or consent and wanted a declaration regarding the purpose, intent, validity, etc., of her birth certificate and certificate of live birth. She also wanted any legal association she had with the State of Ohio terminated and/or dissolved. The HD filed a motion to dismiss for failure to state a claim under Ohio Civil Rule 12 (B) (6). The probate court ruled that “at best”, Zimmerman had one vague allegation, namely that the respondents used her property without her knowledge or consent. The court found it insufficient to meet a “notice pleading standard” and let the parties know it intended to dismiss the complaint, but gave time for any responsive pleadings. Zimmerman filed an Answer to the MTD 4 days out of time. The Ohio Department of Health filed its own motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Zimmerman filed a motion for summary judgment. The HD motion to dismiss was granted and Zimmerman appealed. On appeal, the 2nd District Court of Appeals found first of all, that Zimmerman’s “answer” was not a responsive pleading to the HD motion to dismiss and was also untimely. The granting of the MTD was a final, appealable order and the answer could not be considered. The Court next reviewed the issue of subject matter jurisdiction, noting that probate courts are of limited jurisdiction under RC § 2101.24, and that

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although declaratory judgment actions are allowed, they do not magically enlarge the probate court’s limited jurisdiction. As a result, although Zimmerman’s complaint vaguely concerned birth registration/certificates, it did not involve a correction of birth pursuant to RC § 3705.15, and the probate court therefore lacked subject matter jurisdiction to consider the complaint and properly dismissed it. It also could not consider Zimmerman’s arguments in her MSJ. Affirmed.

CIVIL CONTEMPT TOPIC:

Trial court did not err in finding reporter in contempt for failure to comply with orders to provide transcripts and notes where reporter failed to establish that the orders were unlawful or an affirmative defense

TITLE:

Champaign Cty. Court of Common Pleas v. Fansler, 2016-Ohio-228

Fansler, the appellant, worked as a court reporter for the Champaign County Court of Common Pleas for approximately fifteen years for Judge Wilson. However, on January 1, 2013, Judge Selvaggio replaced Judge Wilson and the appellant continued working for the court on a contractual basis. Judge Selvaggio entered several orders directing the appellant to make a transcript of several hearings. However, the appellant was untimely in producing court transcripts on several occasions. On April 7, 2014, Judge Selvaggio filed a “complaint” against the appellant asking the court to find her in criminal or civil contempt for failing to comply with his orders. After a contempt hearing, a visiting judge issued a written decision finding Fansler in contempt. The judge found beyond a reasonable doubt that Fansler failed to file transcripts timely or produce any notes or recordings as ordered. On appeal, The Second District Court of Appeals noted that although the notice given to the appellant was not consistent with Civ. R. 4.1, dealing with the service of process, the appellant’s actual knowledge of the orders was sufficient notice to her of her order. Addressing the appellant’s second and third assignments of error, the court held that it was immaterial that the Champaign County Court was a named plaintiff or that Judge Selvaggio signed the written notice. The court stated that it was clear that the Judge “initiated a contempt action to vindicate the interests of the public and Champaign County Common Pleas Court, the nominal plaintiff in this matter.” Lastly, the Second District Court of Appeals stated that the appellant clearly should be held in contempt. The court noted that R.C. 2705.02 states “a person guilty of the following acts may be punished as for a contempt: *** disobedience of, or resistant to, a lawful process, order, rule, judgment, or command of a court or office. The court noted that the trial court had evidence that the appellant disobeyed six of the Judge’s orders to produce transcripts, paper notes, and the electronic records. Because there was sufficient evidence to show the appellant’s untimeliness, the Court of Appeals upheld the trial court’s decision and held the court reporter in contempt.

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CIVIL PROCEDURE TOPIC:

When a trial court enters judgment on a magistrate’s decision but fails to explicitly rule on a party’s objections under Ohio Civil Rule 53 (D), that judgment does not constitute a final, appealable order because it does not fully determine the action, and the appeal will be dismissed.

TITLE:

Arch Bay Holdings v. Goler, 2015-Ohio-3036.

In 2007, defendant Goler executed a promissory note secured with a mortgage on her real property in Cuyahoga County (Westlake), Ohio. She stopped making payments and in 2009, plaintiff Arch Bay Holdings (ABH) filed a foreclosure action in the Cuyahoga General Division. In 2010, plaintiff filed an Ohio Civil Rule 56 motion for summary judgment unopposed by the defendant which was granted; the court later reversed its decision and allowed defendant to file a brief in opposition to the motion, which was later denied. The defendant’s motion to dismiss under Ohio Civil Rule 12 (B) (6) was denied, and the court granted leave for all parties to file new motions for summary judgment. In 2013, the plaintiff’s motion for summary judgment was granted, defendant Goler was also charged with unpaid homeowner association fees and the matter was scheduled for sheriff’s sale; Goler filed for federal bankruptcy protection, however, and the sale was stayed. By 2014, the bankruptcy stay was lifted and the sale went through and was confirmed. In fact, Arch Bay was the winning bidder at the sale and filed notice that it assigned its bid interest to US Bank National Association as substitute plaintiff. In 2014, US Bank moved to vacate the sale and its confirmation, arguing that although the trial court granted Arch Bay summary judgment, it did not give Arch Bay the right to foreclose; as a result, the order of sale should be vacated. The lower court agreed and vacated the order of sale, but the magistrate issued a supplemental decision in favor of US Bank granting foreclosure and sale. Defendant Goler filed timely objections to the magistrate’s decision under Ohio Civil Rule 53 as well as a motion “to set aside” the magistrate’s decision. US Bank moved to strike, which was granted by the trial court. The trial court ultimately ruled in favor of US Bank and adopted the supplemental magistrate’s decision. Goler appealed. The 8th District Court of Appeals reviewed the matter and dismissed Goler’s appeal for lack of a final, appealable order. The Court cited In re Strickler, 2010-Ohio2277, indicating that if a trial court enters judgment on a magistrate’s decision “but fails to explicitly rule on a party’s objections, that judgment does not constitute a final, appealable order because it does not fully determine the action.” In the instant case, because the lower court entered judgment for US Bank but did not rule on the objections there was no final, appealable order. Appeal dismissed.

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TOPIC:

The appellate court properly dismissed an appellant’s claims because he lacked standing: to make a legal claim, seeking judicial enforcement of a right or duty, a party must have a personal stake in the outcome, he suffered an injury that is fairly traceable to the alleged conduct of the defendant, and likely to be addressed by the relief requested, and there must be an actual controversy as a genuine legal dispute between parties with adverse legal interests. Standing is not dependent on the merits of the plaintiff’s claim as to the defendant’s conduct, but turns on the nature and source of the claim.

TITLE:

Smith v. Omaits, 2016-Ohio-1442.

In 1993, the Wests sold 80 acres of land to the defendants by purchase and option contract. The deed was properly recorded in 1994. The option contract allowed the defendants until 2003 to purchase an additional 38 adjacent acres, or earlier if the Wests were amenable, etc. Mr. West died testate in 2000 and his probate estate was opened in the Jefferson County Probate Court. The main beneficiary, the Wests’ daughter, was given their house and one acre of surrounding land. The executor signed a fiduciary deed over to the defendants for the 38 acres, as they had tendered $25,000 to him as per the option contract. The deed was properly recorded the next day. In 2015, the plaintiff filed a civil action against the defendants in the Jefferson County General Division, seeking nullification of the fiduciary deed and recovery of the 38 acres. He claimed that the estate’s counsel filed false probate documents, as the estate never received the $25K. In a separate action, he also wanted the 1993 contract nullified, claiming the Wests never intended to give up coal and mineral rights on the land originally purchased. In like manner, it claimed that the defendants colluded with the estate attorney to deceive the Wests into signing an unreasonable and illegal contract, resulting in criminal theft. Defendants filed a motion for summary judgment, as both cases were consolidated by the trial judge. They argued that the plaintiff lacked standing, as he was neither the executor nor a party to the contracts. They also argued that the plaintiff had received a specific bequest under the will, that he was not the residuary beneficiary and therefore was not entitled to relief. 8 minutes before the scheduled hearing on the summary judgment motion, the plaintiff filed his response, again asserting collusion with counsel to deceive the Wests and take their property illegally. The trial court granted the defendants’ summary judgment, finding that the plaintiff not only lacked standing but was barred by the statute of limitations under RC § 2305.04. The plaintiff appealed. The 7th District Court of Appeals reviewed the matter, first stating the standard to prevail under a summary judgment motion under Ohio Civil Rule 56 (C), namely that there is no genuine issue of material fact to be resolved at trial, and that the court draw all reasonable inferences strongly in favor of the non-moving party.

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The Court then turned to the issue of standing: to make a legal claim, seeking judicial enforcement of a right or duty, a party must have a personal stake in the outcome, that he suffered an injury, that said injury is “fairly traceable to the alleged conduct of the defendant, and likely to be addressed by the relief requested.” Furthermore, there must be an actual controversy as a genuine legal dispute between parties with adverse legal interests. The plaintiff-appellant argued that he was a vested remainderman who had the right to recover, rather than being just a potential beneficiary. The Court found that he was not the executor/personal representative of the estate, he was not a party to the 1993 contract or a party who could exercise the option contract, and has therefore no relation to the Wests. The Court found he had no standing: “standing is not dependent on the merits of the plaintiff’s claim as to the defendant’s conduct, but turns on the nature and source of the claim.” The summary judgment for the defendants was affirmed.

CREDITOR CLAIMS TOPIC:

In breach of contract action against estate of investor in company, trial court erred in ruling that claim was not timely presented under R.C. 2117.06 since the claim did not need to be presented directly to the executor but could be presented to the other individuals connected with the estate, and a fact issue existed whether executor ultimately timely received the claim.

TITLE:

Wilson v. Lawrence, 2015-Ohio-4677.

Joseph T. Gorman died on January 20, 2013. In September, 2011, he and Appellant James A. Wilson had entered into an installment contract for a 15% business interest. At the time of Gorman’s death, he had paid $113,000 out of the $300,000 total amount agreed on. Appellant filed a breach of contract claim against Appellee William Lawrence, executor of Gorman’s estate, to recover the unpaid balance. The trial court denied Lawrence’s motion to dismiss. In January, 2015, the Cuyahoga County Court of Common Pleas granted Appellee’s motion for summary judgment, and denied Appellant’s cross motion for summary judgment, holding that Appellant, in sending a letter expressive of his claim against the estate to two people who were not personal representatives of the estate, did not comply with the notice requirements set forth in R.C. 2117.06. Appellant alleges two assignments of error: (1) the trial court erred in granting summary judgment in favor of Appellee, and (2) the trial court erred in denying his motion for summary judgment. More particularly, as to the first assignment of error, Appellee alleges that Appellant’s letter was “a shot in the dark,” in order to satisfy the six-month deadline that R.C. 2117.06 sets forth, while Appellant alleges that the letter was sufficient because it eventually reached the executor and/or the attorney of the estate prior to the deadline.

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The Eighth Appellate District observed that while R.C. 2117.06 makes “presentment” to the correct party mandatory for a claim against the estate to proceed, the Supreme Court of Ohio, in Fortelka v. Meifert, 176 Ohio St. 476 (1964), held that the precise manner of presentment is not so rigid and inflexible as to preclude alternative, reasonable means of giving proper notification. Accordingly, the Eighth Appellate District held that the reception by the executor, administrator, or the attorney for the estate, whether directly or by “forwarding,” satisfied the statutory presentment requirement, and cited to cases from that court, the Second Appellate District, and the Clermont County Court of Common Pleas, in which the same holding was made. Nevertheless, insofar as a genuine issue of fact existed as to exactly when Appellant’s letter and claim were received by the appropriate parties, the Second Appellate District sustained the Appellant’s first assignment of error. It overruled the second assignment of error, holding that, insofar as a genuine issue of fact exists as to the timely presentation of the claim, the trial court did not err in denying Appellant’s motion for summary judgment. Judge Boyle dissented, asserting principally that the facts of the case at bar squarely compared with those in Jackson v. Stevens, 4th Dist. Scioto No. CA 1231 (1980), in which the Fourth Appellate District held that while a claim was sent initially to a third party who forwarded it eventually to the executor, that procedure did not satisfy the express requirement of R.C. 2117.06 that it be sent to “the executor or the administrator.” Judge Boyle’s view appears to be that transmission directly to the executor or administrator is the only appropriate, satisfactory means of presentment of the claims.

TOPIC:

In replevin action by plaintiffs who executed two loans to intestate decedent, one of which was secured by personal property and/or decedent’s companies, trial court did not err in granting defendant judgment on the pleadings where plaintiff’s creditors’ notices of claim had not yet been rejected by the probate court, R.C. 2117.12.

TITLE:

Huth v. Kus, 2015-Ohio-3457.

Appellants had filed two creditors’ notices of claim in the Tuscarawas County Probate Court to recover the security interest they were given in property owned by the decedent, Bryon L. Holbrook, and his two companies, in exchange for loans given him in written and verbal agreements. Appellants also filed, in the Court of Common Pleas, a complaint in replevin and a motion for order of possession against appellee, as administrator of the estate. The appellee had filed an answer and a 12(c) motion, to which appellants had filed a memorandum in opposition. Shortly thereafter, appellee rejected appellant’s claims to the estate. The appellants informed the Court of Common Pleas that the appellee had rejected their Probate Court claims. The Court of Common Pleas dismissed the replevin action. After this, the appellant’s 60(B) motion for relief from the judgment was denied.

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Appellants raised two errors to the Fifth Appellate District which, in essence, were on the same issue. Nevertheless, the first was that the Court of Common Pleas “erred and abused its discretion when it granted defendant’s/appellee’s motion for judgment on the pleadings.” The second, as a result of the Court of Common Pleas’ denial of their motion for relief from judgment, asserts that “the Court of Common Pleas erred and abused its discretion when it denied” this motion. As to the first issue, the Fifth Appellate District held that the trial court’s dismissal was proper insofar as the relevant statute does not permit “for a creditor to prematurely file a lawsuit in the civil division of a common pleas court (or other forum outside of probate) to recover from a deceased alleged debtor’s estate and then utilize a subsequent estate claim rejection to cure the procedural defect” by, in essence, dividing this issue into two separate claims or sets of motions. (Appellants seem to indicate this strategy in their brief, indicating that the “estate’s rejection of appellants’ claims is irrelevant to the determination of the instant action,” thus proposing their separation. As to the second assignment of error, the Fifth Appellate District held that the trial court’s denial of the motion for relief from judgment was proper. Citing from the statements of the Ohio Supreme Court in Argo Plastic Products Co. v. Cleveland, 15 Ohio St. 3d 389, 391 (1984), the Fifth Appellate District reproduced the enumerated procedural requirements that must be satisfied in order for a 60(B) motion to be granted. The Court found unpersuasive the appellant’s assertion that appellee had “committed fraud upon the trial court by not immediately informing [it] that appellants[’] claims had been rejected in the probate action on September 9, 2014, subsequent to the filing of appellants’ replevin complaint against Holbrook’s estate.” The Court found instead that the appellants essentially attempted to “circumvent the proper statutory procedure” by doing the reverse of actually awaiting a rejection of an estate claim prior to filing a lawsuit over it. Accordingly, the Tuscarawas County Court of Common Pleas was affirmed as to both claims.

TOPIC:

Claim filed with attorney before the appointment of executor is not valid.

TITLE:

Fugate-Walton v. Walton, 2016-Ohio-1175.

Plaintiff-Appellant Nancy E. Fugate-Wilson appealed the decision of the Court of Common Pleas, Delaware County, which denied her motion for relief from judgment subsequent to a dismissal, via summary judgment, of her action for a monetary judgment against Appellee Ken W. Walton, Executor of the Estate of Charles E. Walton, Sr. Appellant is the surviving spouse of Charles E. Walton, Sr., who passed away on August 3, 2013. Prior to their marriage, appellant and Charles purportedly entered into a prenuptial property agreement that remained in effect on the date of Charles’ death.

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Allegedly included in the prenuptial agreement was a provision indicating Charles promised to allow a claim against his estate of $100,000 to appellant. On November 6, 2013, Robert K. Kendrix, attorney for appellant, sent a letter to James M. Dietz, attorney for the Estate of Charles E. Walton. In that letter, Mr. Hendrix wrote, “As you are aware, these parties executed an antenuptial agreement which may be at odds with the terms of the will executed by Mr. Walton.” No indication was given whether such “claim” would be allowed. Charles’ estate was opened in the Delaware County Probate Court on November 7, 2013. Appellee Ken Walton was appointed executor of the estate on the same day. On April 14, 2014, appellant filed with the Delaware County Probate Court a notarized affidavit which included an attached copy of her claimed prenuptial property agreement. The affidavit states as follows: I have presented a claim against the Estate of Charles E. Walton, Sr., a.k.a. Charles Emery Walton, deceased in the amount of One Hundred Thousand and 00/100 Dollars ($100,000) pursuant to Section I(A) of the Antenuptial Property Agreement, a copy of which is attached hereto, marked “Exhibit A”, and incorporate herein by reference. ***I certify that the claim is justly due, that no payments have been made thereon, that there are no counterclaims against it to my knowledge, and that it is unsecured.” On April 21, 2014, appellee filed and served a notice of rejection of the claim. On June 20, 2014, Appellant Fugate-Walton filed a civil complaint in the Delaware County Court of Common Pleas against Appellee Walton, as executor, seeking judgment in the amount of $100,000, plus interest, court costs, and attorney fees. Appellee filed an answer on July 15, 2014. After an exchange of discovery, appellee filed a motion for summary judgment on November 13, 2014. The motion included a certificate of service by Attorney Dietz state that Attorney Hendrix was served with a copy by regular U.S. mail. The trial court, noting in part that no response had been received from appellant, granted the motion for summary judgment in favor of appellee. The court also specifically found that appellant’s November 6, 2013 communication did not constitute a claim under Ohio Revised Code Section 2117.06 and appellant’s April 14, 2014 claim was barred by the applicable statutes of limitations. On January 6, 2015, appellant filed a motion to vacate the December 15, 2014 summary judgment entry, relying on Civ.R. 60(B)(1) and (B)(5). The motion set forth the claim that counsel for appellant did not receive a copy of appellee’s summary judgment motion.

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The trial court denied appellant’s motion to vacate. Appellant filed a notice of appeal raising one Assignment of Error. In her sole Assignment of Error, appellant contended the trial court erred in denying her motion to vacate. The Court of Appeals treated appellant’s claimed lack of notice of the summary judgment motion as a stipulation by the parties, allowing it to proceed to the legal issues surrounding appellee’s denial of appellant’s “claim” against Charles’ estate. Appellant essentially contended that her motion to vacate summary judgment should have been granted, as she had a meritorious claim to present against Charles’ estate in her lawsuit based on the letter her attorney sent the attorney of the estate on November 6, 2013, referencing the prenuptial agreement. The Court of Appeals recognized that a claim presented to the executor’s attorney satisfies the statutory presentment requirements of R.C. 2117.06(A). However, it noted that the statutory provision in question clearly requires the presentation of claim “after the appointment of an executor or administrator.” The letter in question in this case was dated and was faxed prior to the opening of Charles’ estate and the appointment of appellee as executor. The Court of Appeals noted that an appellate court must generally presume the General Assembly means what it says so it cannot amend statutes to provide what we consider a more logical result. Moreover, while the form of writing to an executor under R.C. 2117.06 need only provide sufficient information to put the executor on notice that the creditor intends to pursue a claim, such information should include the amount owed. As revealed in the Court of Appeals recitation of facts, the letter in question provided no such specificity. As it has previously recognized, courts should not impose upon the administrator or executor “the task of ‘guessing’ what sum a creditor of the estate is seeking. Given the timing and vagueness concerns brought about by the nature of the November 6, 2013 letter to Attorney Dietz, the Court of Appeals could not conclude that the trial court acted in an unreasonable, arbitrary or unconscionable fashion in denying appellant’s motion to vacate summary judgment under Civ.R. 60(B). Appellant’s additional suggestion that appellee and/or Mr. Dietz would have been aware of the amounts involved in the claim based on alleged familiarity with the prenuptial agreement did not persuade the appeals court to conclude otherwise in this instance. The sole assignment of error was therefore overruled and the decision of the Court of Common Pleas, Delaware County was affirmed.

TOPIC:

Genuine issue of fact precludes summary judgment on whether statute of limitations had run on oral contracts between siblings.

TITLE:

Cessna v. Landers, 2016-Ohio-5551.

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Executor of brother’s estate retained attorney to recover from the estate money that his brother had borrowed from him on various occasions between 1990 and 2007 totaling about $170,000.00. The claim was not timely filed and was barred. A settlement with the surviving spouse was later reached. Executor and attorney were both removed from their estate roles. The surviving brother sued the attorney for negligence in failing to file the claim and maintained he would have recovered more had the claim been filed than what he was able to settle for. He filed for summary judgment and the trial court denied it, finding genuine material fact issues remained. The attorney then moved for summary judgment on the basis that the oral loans were subject to a six year statute of limitations found in O.R.C. 2305.07 and further arguing that they accrued on the date of the loan and prevented any recovery. The surviving brother argued that the loans were conditioned on decedent’s ability to repay the loans, and that the inability of the brother to ever repay them kept them current and that the statute of limitations had not yet begun to run. The trial court decided the brother had failed to establish he had suffered damages proximately caused by the breach of the attorney’s duty and granted the attorney summary judgment dismissing the matter. The appeals court reversed and remanded, determining the sole issue was only whether the attorney had satisfied his burden to show that the brother’s claims in the probate matter were barred by the statute of limitations. It found that “genuine issues of material fact remain with respect to when the causes of action would have accrued; thus, Mr. Landers has not demonstrated the absence of a genuine issue of material fact with respect to the statute of limitations issue.” The statute does not specify when a claim has accrued, leaving that issue up to the courts. The appeals court had concluded “that the record discloses at the least an issue of fact with respect to whether the loans were conditional loans.” Further, “Absent knowing when the statute of limitations began to run, we have no way to determine when it expired.”

DISQUALIFICATION TOPIC:

Affidavit of disqualification to prevent judge from proceeding with resentencing of underlying defendant-judge’s former client is denied where judge’s recusal in earlier case involving defendant was many years ago, affidavit is untimely and no grounds for disqualification have been established pursuant to R.C. 2701.03.

TITLE:

In re Disqualification of Spencer, 2015-Ohio-3949.

Herman A. Carson, counsel for defendant Roscoe Campbell (“Defendant”), filed an affidavit with the Supreme Court of Ohio to disqualify Judge Brett M. Spencer of the Adams County Court of Common Pleas on the ground that Judge Spencer, having

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recused himself from a case involving Defendant in 2005, citing a “professional conflict,” should recuse himself from the current case involving Defendant. In response, Judge Spencer claims no reason for recusal, and no prejudice or bias in Defendant’s current case. Primarily, this is due to the length of time that transpired between the recusal in 2005 from a case involving Defendant—which Judge Spencer had explained was necessary in order to “avoid any appearance of sympathy for a former client” he had shortly before represented in a traffic case as an attorney—and the time of the submission of the affidavit for his disqualification. The Court held that, by contravening the procedural expectations for filing affidavits for disqualification as set forth in their precedents—here, by waiting until years after the start of the new case before Judge Spencer in 2012—Defendant had waived his right to seek Judge Spencer’s disqualification. Furthermore, the waiver is evident in light of the absence of anything in the record that would justify the delay. Second, irrespective of the issue of waiver, the Court cites to its precedents, reiterating that “a judge’s prior representation of a party in matters wholly unrelated to a matter pending before the judge does not compel the judge’s disqualification, unless there is a specific showing of actual bias on the part of the judge,” In re Disqualification of Serrott, 2012-Ohio-6340, ¶6, and that “a judge’s voluntary removal from an earlier case does not, by itself, support disqualification from an unrelated case involving that same party or attorney,” In re Disqualification of Celebrezze, 2012-Ohio-6304, ¶7. Consequently, the Court denied the affidavit for disqualification and permitted Judge Spencer to preside over this new case.

TOPIC:

In divorce proceedings, denial of wife’s motion to disqualify magistrate was error where magistrate had known husband’s parents for more than 35 years and trial court had failed to hold a hearing on the motion to disqualify the magistrate.

TITLE:

Lingenfelter v. Lingenfelter, 2015-Ohio-4002. 9/30/2015.

Nicole Lingenfelter (fka Sorenson) and Jason Lingenfelter married on April 15, 2000. Jason (“Husband”) filed for divorce on June 27, 2012. For the purpose of discussing various unresolved issues, such as allocation of debts and arranging of spousal support, two hearings before a Wayne County magistrate were held; one on June 30, 2013, and the other on October 10, 2013. After the first hearing, the magistrate, during an on-the-record conversation with the attorneys, informed them that he had known Husband’s parents for thirty-five years and that Husband’s mother’s niece was the magistrate’s former secretary.

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On October 25, 2013, the magistrate issued his decision, which included more than one indication as to his belief in the greater credibility of Husband’s testimony as opposed to Nicole’s (“Wife’s.”) On January 18, 2014, Wife, through her new counsel, moved to object to the findings of the magistrate and to disqualify the magistrate for his conflict of interest in adjudicating this case. The trial court overruled the objections and denied the motion to disqualify, stating that the magistrate’s mere acquaintance with Husband’s parents is insufficient to warrant his disqualification; furthermore, the trial court did not detect any indications on the record that the magistrate’s acquaintance was implicated in his decision. Wife subsequently raised four assignments of error in the Ninth Appellate District (“the Court.”) The first was that the trial court abused its discretion in denying Wife’s motion to disqualify. The Court explained that cases before the Supreme Court of Ohio involving judicial disqualifications, and the Code of Judicial Conduct, respectively, caution against the potential damage to the public confidence in the impartiality and fairness of the judiciary, and prescribe the circumstances under which disqualification is required. While conceding its jurisdictional inability to review judicial misconduct, the Court explained its capacity to review challenges to a magistrate’s impartiality. The Court expressed concern with the summary manner in which the trial court dismissed Wife’s motion for disqualification, in contravention of the standard set forth by the Supreme Court of Ohio, which provides, in most pertinent part, that “[a] judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge’s impartiality.” In re Disqualification of Farmer, 2014-Ohio-2046, ¶7. Additionally, the Court expressed concern over the potential bias of the magistrate in terms of insufficiently evidentially supported findings of favorable credibility of Husband over Wife. As to the trial court’s dismissal of the motions on the ground of their untimely submission, the Court brings up several possible factual scenarios that could explain and justify the tardy filing, including whether or not the magistrate had actually informed the parties themselves of his acquaintance with the parents, and whether or not Wife’s new counsel was aware of that particular issue. Accordingly, the Court held that the manner in which these filings occurred did not constitute “an unreasonable delay or amount to a forfeiture in light of the particular circumstances of this case,” and found that the trial court, while perhaps not needing to ultimately decide in favor of disqualification, nonetheless abused its discretion in not holding a hearing to discuss the merits of the motion and the circumstances of the filing delay. Wife had raised three additional assignments of error: (1) the trial court abused its discretion and erred as a matter of law when the trial court used the date of separation as opposed to the stipulated termination date of the marriage when calculating the equity in

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the marital home; (2) the trial court abused its discretion and erred as a matter of law when it determined length and amount of spousal support awarded to [Wife]; and (3) the trial court abused its discretion when it calculated child support, failed to make a child support award to [Wife] and nam[ed] [her] the child support obligor. However, the Court held that the latter three issues were not properly before it in light of the likelihood of the need for a “new hearing before a new magistrate” given the findings as to the first assignment of error. Consequently, the first assignment of error was sustained, the remaining three were tentatively declined, and the judgment of the Wayne County Court of Common Pleas was reversed and remanded. The Presiding Judge, concurring in part and dissenting in part, worried that various Ninth District precedent would counsel the trial court in favor of its concern over the untimeliness of the filing of the motions. Furthermore, there is no explicit allegation that “Wife was actually unaware” of this conflict of interest; thus, a new hearing by the trial court would not be necessary. The Presiding Judge nonetheless agrees with the reversal and remanding, specifically so as to allow the trial court to appropriately evaluate the status of the couple’s property and debts.

TOPIC:

Affidavit of disqualification to disqualify judge from presiding over further proceedings is denied where judge’s unnecessary comment at bond hearing and alleged ex parte communication are insufficient to justify disqualification.

TITLE:

In re Disqualification of Repp, 2015-Ohio-5611.

Counsel, John Kahler II, asserts that Judge Repp presided over an improper ex parte hearing and made a biased comment at his client, defendant’s, arraignment. Thus, Kahler asserts that an appearance of impropriety exists if Judge Repp presides over trial. This court has found that no basis has been established to order the disqualification of Judge Repp because Kahler has not clearly established that Judge Repp held an improper ex parte hearing. According to the record, the alleged victim, defendant’s wife, sent Judge Repp a letter requesting that he lift the order prohibiting defendant from having contact with her. Judge Repp scheduled a hearing on her request, but the clerk of courts sent notice of the hearing to defendant, rather than Kahler. Neither the defendant nor Kahler appeared for the scheduled hearing, where the Judge read the alleged victim’s letter for the record and denied her request. Kahler claims that Judge Repp acted inappropriately by failing to provide defendant with a copy of the alleged victim’s letter and engaging in an ex parte hearing. At the time of the hearing, the judge was not aware that Kahler had entered an appearance for the defendant. Based upon this record, no appearance of impropriety exists. The better practice would have been for Judge Repp to promptly notify the parties of his receipt of the letter,

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immediately provide them copies, and ensure that notice of the hearing was sent to counsel of record. However, under the facts here, no reasonable and objective person would question Judge Repp’s impartiality merely because he decided to proceed with the scheduled hearing. Additionally, Kahler alleges that at defendant’s arraignment, the judge stated the following to an individual who helped defendant post bond, “I don’t know why you’re doing this. Good luck.” If Judge Repp made this comment, it was unnecessary and illadvised. The Code of Judicial Conduct directs that judges should be “patient, dignified, and courteous” to litigants and others in their courtrooms and should refrain from using words that might manifest bias or prejudice. Nonetheless, the disqualification of a judge is an extreme remedy, and this comment alone is insufficient to remove Judge Repp for bias.

TOPIC:

Affidavit of disqualification to disqualify judge from presiding over further proceedings is denied where the fact that judge was involved in litigation with affiant’s firm 13 and 25 years previously did not overcome presumption of impartiality.

TITLE:

In re Disqualification of Markus, 2015-Ohio-5612.

Kahn Kruse, counsel for plaintiff, claims that Judge Markus has an “exceptionally contentious” litigation history with Kruse and that the judge will be biased against the law firm and carry a prejudice against the plaintiff. Kruse asserts two examples. First, Kruse states that his law firm represented the plaintiffs in a legal-malpractice lawsuit against Judge Markus’s former law firm and that during that case, Kruse aggressively deposed Judge Markus and challenged his credibility. Second, Kruse asserts that Judge Markus, while serving as opposing counsel, threatened to sue Kruse unless his client dismissed the lawsuit against the judge’s client. Moreover, Kruse claims that Judge Markus has previously recused himself from a case involving Kruse as counsel. For the reasons explained below, no basis has been established to order the disqualification of Judge Markus. A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions. Indeed, “judges are presumed to be capable of putting aside old disagreements with former opposing counsel.” Here, Kruse has failed to set forth sufficiently compelling evidence to overcome Judge Markus’s presumption of impartiality. Nothing in Kruse’s affidavit would lead a reasonable person to conclude that Judge Markus has developed such a strong personal bias against Kruse – based on two cases, occurring between 13 and 25 years ago – that the judge would be unable to preside fairly over the underlying matter. Additionally, that Judge Markus may have previously recused himself from a case involving Kruse does not necessarily warrant his removal here. The judge states that the events from these two long-past cases will have no significance in the underlying matter

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and that he will decide the matter based on the law and evidence. Here, Judge Markus’s response reinforces the conclusion that disqualification is not warranted in this case.

TOPIC:

Affidavit of disqualification of judge, claiming personal bias reflected in the judge’s alleged mistreatment of attorney in chambers and in court, is denied where attorney waived his claim since his affidavit was not timely filed, and attorney did not establish bias since, inter alia, he relied on hearsay to try to establish his claim. Disqualification was denied.

TITLE:

In re Disqualification of Ingraham, 2015-Ohio-3371.

Matthew W. Chapel claimed that Judge Jeffrey R. Ingraham was personally biased against him and that this bias was demonstrated by the judge’s ill temper and hostility toward Chapel in both private and in court settings. To support this claim, Chapel produced the results of an investigation conducted by Dianna M. Anelli. Anelli spoke to four individuals, including a former employee of the court, regarding Judge Ingraham’s past treatment of Chapel. Judge Ingraham responded in writing to the allegations and denied personal bias against Chapel. The court found no basis to order the disqualification of Judge Ingraham. First, Chapel waived many of these bias claims. Chapel claimed that Judge Ingraham demonstrated bias against him in various cases pending between 2004 and 2010. However, Chapel filed his affidavit for disqualification in 2015 and additionally, did not set forth any specific bias allegations within his affidavit. By this failure to file an affidavit as soon as possible after the incident, Chapel waived his right to object. Second, even if Chapel had not waived these bias claims, he had not set forth sufficient grounds for disqualification. Without overcoming the presumption that Judge Ingraham failed to follow the law and not to be biased, Chapel’s allegations based on hearsay and speculation were insufficient to establish bias or prejudice. Specifically, Anelli’s investigation unsuccessfully produced signed affidavits supporting Chapel’s allegations that the individuals overheard Judge Ingraham making derogatory statements about Chapel. The record, therefore, did not support a conclusion that Judge Ingraham had a personal bias against Chapel that would warrant his removal from any case in which Chapel appears as counsel.

ESTATE PLANNING TOPIC:

In plaintiffs-will beneficiaries’ challenge to separate transfer on death deed for real property to defendants, summary judgment to defendants on plaintiffs’ claim for constructive trust was not error where deed followed statutorily prescribed form and was recorded, former R.C. 5302.23(B), and

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there was no evidence that decedent mistakenly failed to execute a new deed. TITLE:

Blausey v. VanNess, 2016-Ohio-5068.

In 2001, Verna Blausey executed a last will and testament, a power of attorney, and a transfer on death (“TOD”) deed in favor of appellees, Richard VanNess and his wife, Verna VanNess, who is now deceased. In the TOD deed, Verna Blausey granted appellees an 80-acre parcel of land in Graytown, OH. In 2005, Verna Blausey and appellees had a falling out and she executed a new last will and testament and power of attorney in favor of appellants, Ronald and Jean Blausey, who were related to Verna Blausey through marriage. However, Verna Blausey did not change the TOD deed granting the 80-acre parcel to appellees so after her death in 2008, appellees filed documents transferring title to the 80-acre parcel to themselves. Appellants made several unsuccessful attempts to challenge appellees’ ownership of the 80-acre parcel, including filing a complaint for a quiet title action in 2009 which was dismissed for lack of standing, and a second complaint in 2010 in which they raised claims of unjust enrichment and constructive trust, which were denied by the trial court on summary judgment. On appeal from that judgment, the Court of Appeals upheld the trial court’s denial of the unjust enrichment claim and remanded the case back to the trial court for a further determination as to the constructive trust claim. Blausey v. VanNess, 6th Dist. Ottawa No. OT-13-011, 2013-Ohio-5624. On remand, the trial court again denied appellants’ constructive trust claim and granted summary judgment to appellees based on R.C. 5302.23(B), which states that “any attempt at testate or intestate transfer is superseded by a properly prepared and duly filed TOD transfer affidavit for any interest in real property.” Appellants’ sole assignment of error was that the trial court erred by granting Appellants’ motion for summary judgment. Appellants asserted that the trial court erred because it is the doctrine of equity, and not Ohio law, that controls the outcome of the appeal. In support, appellants argued that Verna Blausey intended to transfer all of her assets to them, including the 80-acre parcel, and she failed to do so only because her attorney “forgot” to have her execute a new TOD document. Accordingly, appellants concluded that equity requires the imposition of a constructive trust in their favor on the 80-acre parcel. The Court of Appeals for Ottawa County held that a “constructive trust” has been found to arise in cases ‘”where a person holding title to property is subject to an equitable duty to convey it to another on the grounds that he would be unjustly enriched if he were permitted to retain it***.’’’ Appellants correctly asserted that a constructive trust can be raised “by equity to satisfy the demands of justice.” However, a constructive trust ordinarily “will be

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declared only on wrongful acquisitions or retentions of property by which equity, in accordance with its fundamental principles and the traditional exercise of its jurisdiction or in accordance with statutory provision, takes cognizance.” Former R.C. 5302.22, which was in effect at the time the TOD deed in favor of appellees was executed, stated that a deed which conveys an interest in real property, follows the statutorily prescribed form, and is properly recorded in the county recorder’s office, creates “a transfer on death interest in the beneficiary of beneficiaries” which, upon the grantee’s death, vested the decedent’s interest in “the beneficiary or beneficiaries.” Former R.C. 5302.23(B)(8) further stated that a transfer on death of an interest in real property pursuant to a TOD deed “is not testamentary.” Although R.C. 5302.22 and 5302.23 were amended in 2009 and the term TOD “deed” was changed to “affidavit,” the substance of those statutes remains the same and is not in dispute in this case. The Court concluded that it is undisputed that the TOD deed in this case followed the statutorily prescribed form and was duly recorded. Noting that at least one Ohio court has recognized that a TOD deed creates a legal interest in property that is transferrable on the death of the property owner under such circumstances it stated that there was no finding of unjust enrichment, and no direct evidence was presented to show Verna Blausey intended to execute a new TOD deed, but for the alleged mistake made by her legal counsel. It found that the trial court did not err by refusing to impose a constructive trust on the 80-acre parcel and granting summary judgment to appellees. It further found that there remains no genuine issue of material fact and, considering the evidence most strongly in favor of appellants, reasonable minds can only conclude that appellees are entitled to judgment as a matter of law. The judgment of the Ottawa County Court of Common Pleas was therefore affirmed.

ESTATES TOPIC:

Finding of concealment upheld as trier of fact was in best position to determine credibility of witnesses.

TITLE:

Bayes v. Dornon, 2015-Ohio-3053.

The appeals court affirmed the judgment of the trial court that it had jurisdiction to decide whether an inter vivos gift or transaction was invalid, making it subject to the concealment statute of O.R.C. 2109.50. It also found that the finding that the fiduciary was guilty of concealment or embezzlement was not against the manifest weight of the evidence. Decedent passed at age 79 about two years after being diagnosed with lymphoma. His son was made his executor under his will and successor trustee of a revocable living

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trust, as well as health care agent and financial power of attorney. This son was one of five surviving children, and he had accompanied his father to an attorney’s office when his father consulted an estate planner. Decedent had accumulated over $300,000.00 in assets over the years in his work as a carpenter. He left any estate not directed to the trust equally to four of his children, excluding one who had ample assets of her own. In addition, shares of two of the remaining children were reduced by loans they had taken out from their father. The father had neglected to follow his attorney’s POD instructions until shortly before passing. A daughter had quit work to care for him upon his diagnosis two years earlier, which care was reduced during a period of remission. The son made power of attorney was an acknowledged gambler and took out a $20,000.00 “loan” from his father during this time period due to financial difficulties, in part related to foreclosure of a residence owned in his wife’s name, which was also subject of a bankruptcy petition. His father’s remission period ended with a quick turn for the worse, resulting in a move into the son’s home with hospice care. Friction soon arose with his siblings over visits and the like. The father finally signed PODs with a number of institutions, one of which sent a representative to the son’s home. The father closed one account with a cashers’ check, made out to him OR his son, in the amount of $138,895.61. He made out another check in a different account for $41,658.98, made POD to the son, leaving $300.00 in that one. The father commented to the son that his money should be buried in the yard, which the son attributed as a response to a sheriff’s visit a few days earlier. A little over a week later the father passed. Two of his daughters filed a concealment action against their brother because he was spending money on extravagant items. The probate court found him guilty and ordered him to pay $135,415.94 (after crediting him with his share of the trust) plus a 10% penalty into the estate. It also removed him as executor and successor trustee and granted a preliminary injunction, preventing further transfer of any assets other than those in his checking account to pay his normal living expenses. The appeals court determined that the trial court did not need to find decedent incompetent in order to find a fiduciary relationship between father and son was established, and that the trial court was in the best position to weigh son’s testimony regarding the matter. The son had made a statement in a deposition indicating that his father had directed him to deposit the checks in son’s bank without further instruction, but at trial he claimed his father told him that the checks were his (the son’s). The son told his siblings nothing regarding the checks and admitted quickly spending those as well as his share of trust proceeds on a motor home, his wife’s bankruptcy, gambling, and just “blowing it”. Testimony was conflicted regarding the father’s mental condition in the final two weeks of his life, but it was noted that the son and his wife established a password with the hospice nurse visiting the father to avoid information being released to other family members, which she had described as “uncommon”. The appeals court relied on recent case law, including a Supreme Court notation in Goldberg v. Maloney, 2006-Ohio-5485, that supported probate court jurisdiction over

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the recovery of assets wrongfully concealed, embezzled, or conveyed away before death. It found the transfer of the checks to the son was not a valid inter vivos gift to him. The trial court had properly determined son’s actions were suspicious (especially in light of the “self-serving” testimony that the checks were given to him at trial which contrasted with his deposition statement). In addition, the trial court was in the best position to determine that the father was not in total command of his faculties when transferring his funds after examination of witnesses. Also, the trial court could conclude that by including his own name (the father’s) on the checks, he indicated his intention that the funds eventually be placed in the trust when handing the checks over to the son. Finally, the trial court was in the best position to determine that the son’s testimony was not credible and that he did not act in good faith as either the successor trustee of the trust or as attorney in fact under the power of attorney, which the son claimed he was “unaware” of. The trial court was accorded substantial deference as the trier of fact and the findings of the trial court were found not to be against the manifest weight of the evidence.

TOPIC:

When language in a settlement agreement that resolves all conflicts in a decedent’s estate is clear and unambiguous, it extinguishes all rights to filing claims under RC § 2117.06.

TITLE:

Graham v. Boerger, 2015-Ohio-3261.

Dorothy died testate in 2010 and her estate was filed in the Darke County Probate Court. She had seven adult children, all who survived her, and were to take equal shares under the will. Two sons were named co-executors and had previously been named cotrustees of Dorothy’s 1997 inter vivos trust. The estate’s inventory indicated that two siblings were making payments to the estate on promissory notes for substantial sums of money they had borrowed from Dorothy. They attempted to reduce the two siblings’ indebtedness to the estate. Hostility between siblings ensued, with accusations made regarding estate debts and assets. One daughter filed a motion to remove her brothers as fiduciaries and for appointment of a neutral third party. The court removed the co-executors and appointed an attorney as administrator dbn WWA. The same daughter filed an action to remove her brothers as co-trustees; the brothers resigned and the same attorney was appointed as successor trustee. She argued that the debts to the estate should be treated as advancements and charged against the shares of inheritance. A settlement agreement was reached by the parties, but daughter had leave to file a motion for her attorney fees. The former fiduciaries/trustees opposed her attorney fees, because they were not part of the settlement agreement, nor did she present them to the former or current fiduciaries as required by RC § 2117.06; daughter claimed they should be paid as a “caretaking” claim. The motion was denied by a magistrate and the decision was adopted by the court. Daughter appealed.

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The 2nd District Court of Appeals reviewed the matter. It found that all parties and the court relied on the settlement agreement’s express language to release all claims. The Court found that the language of the settlement agreement, reviewed by all parties and counsel for the same had language that was clear and unambiguous. As a result, daughter’s claim was extinguished and she could not prevail on her assertion of a caretaker claim. Affirmed.

TOPIC:

As “next of kin” is defined in RC § 2113.06 as persons entitled to inherit a portion of the estate, and niece was disinherited in decedent’s Will, she was not entitled to inherit and therefore not a next of kin under Ohio law. She was not therefore entitled to priority to serve over a non-relative applicant as administrator.

TOTAL:

In re Estate of Amoroso, 2015-Ohio-3352.

Mrs. Amoroso died testate in 2014 leaving no surviving spouse or children, only a sister and 4 nieces, her husband having predeceased her. One niece filed to be the Administratrix of her estate in the Cuyahoga County Probate Court, though she was not named a beneficiary in Amoroso’s will, which named no alternate executor other than decedent’s deceased husband. Amoroso’s POA (deceased husband’s cousin) also applied to be administrator. Various witnesses testified at the hearing. Some indicated that the decedent and her husband had an argument with the niece after which they no longer spoke, and the niece was disinherited. Others said the niece was fine. The niece herself testified that she had a priority to serve over the husband’s cousin, as she was a blood relative of Amoroso. The magistrate found that, under RC § 2113.06 because the niece was not entitled to anything under the will, she was not “next of kin” and had no priority to serve, citing a case that although RC § 2113.06 deals with persons who died intestate, it should be read in pari materia when determining suitability of an administrator. Driggers v. Osdyke (1996), 1996 LEXIS 5264 (11th District). The magistrate turned next to suitability, finding that neither applicant was “reasonably disinterested” and recommended that an independent, third party administrator should be appointed. The niece objected timely to the magistrate’s decision, but the trial court overruled the objections and adopted the decision as the order of the probate court. The niece appealed. The 8th District Court of Appeals reviewed the matter. It found that RC § 2113.05 says that administration is for a “suitable person” who would have been entitled to administer had the decedent died intestate, which gives the probate court discretion on who to appoint. The Court found that a suitable person is “one who is reasonably disinterested and in a position to reasonably fulfill the obligations of a fiduciary.” To determine whether the applicant is reasonably disinterested, the court can consider the following: the nature/extent of hostility and distrust among parties, the degree of conflicting interests and obligations including personal and financial, and the complexity

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of the conflict. The Court of Appeals found that the trial court did not find the niece to be credible for purposes of suitability. On the issue of priority to serve, the Court stated that it was moot because the husband’s cousin did not contest the appointment of a suitable third party administrator to serve as the fiduciary. However, the Court found that the niece’s argument was without merit anyway: generally, next of kin is preferable to strangers for appointment unless found unsuitable. As “next of kin” is defined in RC § 2113.06 as persons entitled to inherit a portion of the estate (which niece was not), and niece was not named in Amoroso’s will, she was not entitled to inherit and therefore not a next of kin under Ohio law. She was not therefore entitled to priority to serve over the husband’s cousin. Affirmed.

TOPIC:

Probate Court overrules DuPont’s Motion to Intervene in wrongful death but allowed DuPont to participate in the hearing on the allocation to assert any subrogation interest or otherwise protect their rights or interest created under ORC 4123.931.

TITLE:

In the Matter of the Estate of Ronald Thatcher, In the Court of Common Pleas of Pickaway County, Ohio, Probate Division, Case No. 20121115.

Before the court was a Motion to Intervene filed by E.I. DuPont DeNemours and Co. (hereafter referred to as “DuPont”). The central issue before the court was whether DuPont is entitled to intervene as a party as a matter of right or by court discretion pursuant to Civil Rule 24 and section 4123.93 and 4123.931 of the Revised Code in a Wrongful Death proceeding. Upon hearing, no evidence was presented. Counsel for Executor and DuPont indicated that certain stipulations were made that were sufficient for the court to render a decision on the initial narrow issue. The stipulations involved two letters. One was dated April 27, 2012 and the other dated July 12, 2012. The letters were sent by DuPont’s counsel opposing counsel noting DuPont’s subrogation claim pursuant to sections 4123.93 et. seq. of the Revised Code. There appeared to be no dispute that DuPont is a subrogee. Additionally, the Memorandum of Executor did not dispute that DuPont already paid death benefits and a funeral bill. As noted above, the question to be decided was whether DuPont was a party to the probate court Wrongful Death proceeding so that they may participate in determining the allocation of the proceeds that were being offered to the Executor for settlement of the underlying wrongful death action. The application to bring the issue of settlement before the court was contained in Standard Probate Form 14.0, entitled “Application to Approve Settlement and Distribution of Wrongful Death and Survival Claims.”

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DuPont submitted a Notice of Supplemental Authority, along with reference to a case recently decided by the Eighth District Court of Appeals, State of Ohio Bureau of Worker’s Compensation v. Mal-Sarkar, 2015-Ohio-2015. From a review of the Supplemental Briefs of both parties, it was clear that there was agreement that the Probate Court had exclusive jurisdiction over the approval and allocation of the proceeds recovered under a Wrongful Death action, including the allocation of proceeds that may be the subject of review under section 4123.931(J). The only question remaining was whether DuPont had a right to participate as a party in the approval/allocation proceeding. The court believed that a fundamental rule of statutory construction was that the Legislature intended for every statute enacted to have meaning. Statutes should be read in light of other statutes and sections. “Statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent.” State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463. Thus, if section 2125.02(C) already conferred jurisdiction on the probate court to approve or authorize consent to settlements tendered to personal representatives, then why would the Legislature enact 4123.931(J) unless it intended the latter to grant additional authority to the probate court in as it relates to the approval of the probate court of specific cases involving subrogation claims of workers compensation issues? The Court noted that the pertinent section of ORC 4123.931 read as follows: “(J) If a claimant’s claim against a third party is for wrongful death or the claim involves any minor beneficiaries; amounts allocated under this section are subject to the approval of the probate court.” Thus, the Legislature had authorized the Probate Court to approve the allocation of amounts made under ORC 4123.931. This was different than the authority granted under ORC 2125.02(C). The latter authorizes the probate court to approve settlements and either approve or adjust the shares that are to be distributed among beneficiaries. This case presented an opportunity for a review of the Wrongful Death probate court procedure. As noted, Wrongful Death actions are established in Chapter 2125 of the Revised Code. That statute permits the estate personal representative to commence a claim on behalf of designated persons entitled to recovery. The claim may proceed to trial or be settled. If there is a trial, the trier of fact allocates the award. Such allocation would include amounts, if any to the survival claim and to the wrongful death claim, as well as an allocation to those entitled to recovery. However, if there is a settlement, the function of the court is to approve of such settlement and thereafter adjust the shares of the rightful beneficiaries. The Court indicated that this appears quite different than the probate court’s role under ORC 4123.931. In fact, the court’s function is to approve. No statutory direction is given to the court about adjusting shares or allocating amounts.

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Thus, the court believed that in order to provide purpose to ORC 4123.931, that a construction of the statute was necessary. The court construed the statute as follows. ORC 4123.931 is entirely different than ORC 2125.02. If the recovery by the personal representative involves a claim that is subject to the subrogation statute of ORC 4123.931, then approval of the probate court must first be sought before approval of a Wrongful Death claim may be obtained. As a result, the sole focus of approval of the award involving subrogation and triggering ORC 4123.931 is to review whether there has been compliance with the statute. Further, the court believes that any party who might claim a subrogation interest must be given notice and an opportunity to participate in the hearing. Once this is accomplished, if the court approves the allocation, then the personal representative would continue on with an Application for approval of the Wrongful Death. The Pickaway County Probate Court, Judge Long, therefore ordered that DuPont’s Motion to Intervene in the Wrongful Death proceeding was overruled. It further ordered that pursuant to ORC 4123.931 a hearing to consider approval of the amounts allocated as a result of a workers compensation claim be set on a date certain.. It was also ordered that DuPont be entitled to participate in the hearing to assert any subrogation interest or otherwise protect their rights or interest created under such section and that the Executor of the Estate be directed to cause Notice of the hearing to be served on any other party that might have a subrogation interest under ORC 4123.931, who also would be entitled to participate in such hearing. Such parties, including but not necessarily limited to DuPont, are entitled to participate in discovery to the extent necessary to protect their claim.

TOPIC:

Petition for writ of mandamus to compel administrator of estate to return and record all assets of estate for allegedly stripping estate of its assets is dismissed where petitioner acknowledged receiving all notices regarding administration of the estate, giving him the opportunity to participate, and administrator satisfied all of the probate court’s requirements.

TITLE:

State ex rel. Fellows v. Everman, 2015-Ohio-2200

On August 11, 2014, this matter came before the court by pro se petition filed by relator, Randal Fellows (“Relator”). Relator requested that the court compel Cynthia L. Everman (“Respondent”) to return and record all true assets related to the Trumbull County Probate estate Case No. 2013-EST-0805 and the land sale proceeding case No. 2014-CVA-0004. Relator requested this action so that creditors would be paid before the Respondent continued into insolvency hearings. Relator argued that Respondent was stripping assets of the estate as fiduciary and failing to record all estate assets. On July 25, 2013, Shirley L. Fellows died intestate and was survived by a son and a daughter. The Trumbull County Probate Court issued letters of Administration to Respondent in September 2013. On September 2, 2014, Respondent filed a motion to

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dismiss petition for writ of mandamus. Respondent claims that Relator’s claim is moot because as the court appointed Administratrix, she followed all the orders of the court during the administration of the estate. Respondent also asserts that Relator was served all appropriate notices regarding the estate but failed to appear in court or hire legal representation. Respondent also asserts that the inventory for the estate was approved by the Probate Court and was a final, appealable order and Relator failed to file any exceptions or file a timely notice of appeal. Finally, there was a land sale to sell the real estate of the decedent and Relator was a party to that litigation and was properly served notices, yet he did not respond to the complaint in a timely manner. Relator, to have a writ of mandamus issued, must establish a clear legal right for the relief prayed for, the Respondent must have a clear legal duty to perform the act, and Relator must have no plain and adequate remedy in the ordinary course of the law. Relator filed no responsive pleading to Respondent’s motion to dismiss, nor did he deny the assertion that he was sent all the appropriate notices. Relator also acknowledged he received “Notice of Hearing on Inventory”. These acknowledgements estop him from denying that he was stripped of the opportunity to participate in the estate proceedings. Respondent satisfied all requirements prescribed to her by the Probate Court. Relator cannot satisfy the requirements to request a writ of mandamus directed to respondent, Relator has many opportunities to file exceptions and responses and had an adequate remedy at law, but failed to exercise any of his rights in a timely manner. Respondent’s Motion to dismiss Petition for Writ of Mandamus is granted.

TOPIC:

Trial court finding of undue influence reversed for lack of evidence of undue influence.

TITLE:

Huntington v. Riversource, 2015-Ohio-5600.

Decedent Esther Dickinson passed in Ohio at age 102 in 2012. She left most of her assets in a trust drafted in 1995, including thirteen beneficiaries. She amended the trust in 2005, when it included ten beneficiaries, and again in 2007, when it included seventeen beneficiaries, including Donna Dyke, a first cousin once removed who was also made attorney in fact in 2007. Donna became a beneficiary for the first time and was to receive fifteen percent of the trust’s assets upon the death of Esther. Huntington National Bank was the trustee, and Thomas Moushey was retained as Attorney to prepare the second amendment as well as the power of attorney. Donna executed a new oil and gas lease in 2010, replacing an old lease on Utah property, as attorney in fact for Esther, a long-time resident at Copeland Oaks Nursing Home. She had Esther sign a deed later that year conveying the oil and gas interest to Donna. A notary at the home notarized the document with Donna present.

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Huntington became executor of Esther’s estate upon her death and filed a complaint that included an allegation that the oil and gas interest was transferred while Esther was in a weakened state and unduly influenced by Donna, and that Donna had retained certain valuables and jewelry belonging to the estate. The matter was heard by a Magistrate, who found the deed valid and found no basis for concealment. The trial court upheld the finding as to valuables and jewelry, but rejected the finding of a valid deed, and ordered further proceedings on that matter. Trial was held, and the Court found Donna had created “a situation where she could acquire title to the oil and gas lease and defeat, in part” Esther’s estate plan. Undue influence was exerted on Esther by Donna, and as a result, the quitclaim deed was void and any royalties paid Donna were to be paid Huntington as trustee. The appellate Court first determined that the trial court had mistakenly excluded under the hearsay rules certain statements admissible as evidence of Esther’s then existing mental condition under Evid. R. 803(3), which reflected her wish to keep the oil and gas interests out of the trust and “keep it in the family”. Further detailed statements by Esther remained excluded. It then reviewed the record and determined that “the evidence was not clear and convincing that Dyke (Donna) exerted or attempted to exert undue influence”, noting that the notary to the quitclaim deed had testified that Esther both knew what was being signed and wanted Donna to have the oil and gas interest. Further, Donna’s son had testified that the deed was read to Esther “word for word” when executed and that Esther had asked him questions about it. The magistrate had found no “actual evidence of coercion, fraud, mistake of fact, or undue influence”. The mere opportunity to exert undue influence due to advanced age and decisions made by Esther outside the pattern of her estate plan did not prove the exertion of undue influence without further evidence. The probate court finding of undue influence was reversed.

TOPIC:

In executor’s concealment action claiming that attorney and firm which represented decedent refused to turn over records necessary for administration of estate, trial court did not err in inspecting records in camera and in declining to hold a hearing before ordering certain records to be released as not protected by attorney-client privilege where court had not yet determined whether defendants were guilty of concealment, R.C. 2109.50 and 2109.52.

TITLE:

Lavin v. Hervey, 2015-Ohio-3458.

Martha died testate on February 17, 2014. In August of that year, the appellee was named fiduciary of the estate by virtue of the consent of three of decedent’s four children. Just over one month later, on September 15, the appellee filed a concealment action in the Stark County Probate Court, alleging that the appellants refused to relinquish documents “necessary to the full and effective administration of the estate.”

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Thereafter, appellants moved to dismiss on the ground that the documents in question were subject to protective privilege. The Probate Court did order the release of certain documents it found not so protected. Appellants asserted two errors: (1) that the Probate Court had not conducted an evidentiary hearing as to the propriety of revealing the documents in question, and (2) that the Probate Court had not addressed the implications of Professional Conduct Rule 1.6 of ordering the release of the documents. Under the holding by the Ohio Supreme Court in Smith v. Chen, 2015-Ohio-1480, the appellants have been able to assert both errors insofar as they describe “[the] order compelling disclosure of privileged material . . . [as] truly render[ing] a postjudgment appeal meaningless or ineffective.” The Fifth Appellate District found that the Probate Court did not err in either respect, as (1): having properly waited, under the terms of the relevant statute, to determine the guilt or innocence of the appellants before resolving the concealment action itself, it had engaged in an in camera inspection to determine whether the documents in question were subject to protective privilege; and (2): it was not error to omit discussion of Professional Conduct Rule 1.6 on the issue of the coverage of said documents under protective privilege, since that Rule does not state what kinds of documents are to be so protected. The Stark County Probate Court was affirmed.

TOPIC:

In estate dispute about existence of will and related matters, appeal or order finding concealment is dismissed since there are a number of issues, including motion to remove plaintiff as administrator and whether there were any estate assets capable of being concealed, that were not resolved under R.C. 2505.02 and Civ. R. 54(b).

TITLE:

Matheus v. Matheus, 2015-Ohio-3993.

Joan Matheus (“Decedent”) died on May 19, 2013. In her application to administer Decedent’s estate, filed on July 15, 2013, appellant indicated that Decedent died without a will. The appellant succeeded in getting the Ashland County Court of Common Pleas Probate Division to grant a temporary restraining order against “sell[ing] transfer[ing], gift[ing], encumber[ing], destroy[ing], or tamper[ing] with any estate property.” However, on August 6, 2013, prior to the appellant’s application to administer, appellee had filed a last will and testament, indicating that appellee was the executrix of the Decedent’s estate. On March 24, 2014, appellant filed a concealment complaint against appellee and appellee’s husband, alleging that various assets were known to be with the appellees and that they continue to possess theretofore unreturned and/or unaccounted for assets. The

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judgment entry of the trial court, issued on December 12, 2014, indicated that the will was admitted to court, though not yet to probate. Nevertheless, the court was inclined to proceed, and found appellees not guilty of concealment. Appellants have appealed the trial court’s judgment, assigning three errors: (1) the trial court erred as a matter of law when it considered evidence of the existence and content of a will as an excuse or mitigation for uncontroverted conduct that unquestionably constituted a concealment of estate assets; (2) the trial court erred when it relied on appears to have adopted conclusory legal statements made by [Appellee] concerning the existence or non-existence of probate assets in lieu of allegations of facts which would logically lead to this determination; and (3) the trial court erred when it found that [Appellant] had not met her burden of proof in the concealment action, as such finding is against the manifest weight of the evidence and is not supported by any competent, credible evidence. The Fifth District Court of Appeals first addressed the propriety of considering this case under R.C. 2505.02, which, in prescribing what constitutes a “final and appealable order” appropriate for appellate review, provides, in pertinent part: (B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: (1) an order that affects a substantial right in an action that in effect determines the action and prevents a judgment; (2) an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment. It held that the present case satisfied those particular statutory requirements. However, the Court held that Civil Rule 54(B) was not met, insofar as the concealment action is intertwined with various, external issues of the estate case itself, themselves unresolved, such as considerations of “the motion to remove appellant as administrator, the question of whether there are any estate assets that are capable of being concealed, the validity of the will, whether the trial court accepts and/or disposes of [Appellee’s] application for administration with will annexed, and the resolution of the restraining order.” Accordingly, and in combination, the trial court’s judgment is not “a final and appealable order,” and, consequently, the Court lacked jurisdiction to address these assignments of error. The appeal was, therefore, dismissed.

TOPIC:

In estate accounting, probate court did not err in denying decedent’s son’s exception to the amended inventory where the estate was litigated for more than four years, the son did not follow time limit set by probate court for submitting an amended inventory, and the son failed to carry burden of

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proof regarding valuation of disputed estate property or that certain funds were a gift to him rather than a loan. TITLE:

Estate of Ross, 2015-Ohio-4030.

Decedent, Joseph M. Ross, died on January 3, 2011. Appellee, Brian G. Ross, remains the sole fiduciary of his father’s estate after one of his siblings resigned from coexecution of the estate and another sibling and appellant were removed by the Trumbull County Court of Common Pleas, Probate Division, for lack of administrative cooperation. On September 9, 2011, and May 29, 2012, respectively, appellee filed an initial inventory and an amended inventory. Objections to the inventories were filed by appellants on June 29, 2012, containing the following four exceptions: (1) The inclusion of property located in Westlake, Cuyahoga County, Ohio, at its stated value in the inventory; (2) the failure to include Ross, Maiorca and Associates, Inc. and its value; (3) the 2009 transaction made to appellant from the decedent with a debt due to First Place Bank in the amount of $199,405.47; and (4) the failure to list the decedent’s personal property as an asset. On October 10, 2012, a hearing was held, during which particular attention was devoted to the third exception. Appellee claimed that the transaction by the decedent through First Place Bank to appellant in the amount of $235,000 was a loan—the particular amount contained in the third exception being the remaining balance—whereas the appellant claimed it was a gift. The appellant, as the evidence indicated, had made twenty payments on the First Place Bank loan; fourteen from the time of its inception until the death of his father, and six thereafter. There was no evidence among any of the Decedent’s records indicating that this was a gift. Nor was any federal gift tax ever filed. On October 23, 2012, the Probate Court held, on the basis of a pattern of payments on the money that continued after the Decedent’s death, that the money in question was a loan, not a gift. On October 30, 2012, Appellant had filed a Civ. R. 60(b) motion for relief from the October 23, 2012 judgment, which was denied on November 21, 2012. On October 26, 2012, Appellee filed a second amended inventory, to which the Appellant filed exceptions on November 21, 2012, which was overruled by the Probate Court on July 5, 2013. (On September 18, 2013, a new 60(b) motion was filed.) On June 24, 2013, the Eleventh Appellate District dismissed Appellant’s appeal of the first amended inventory insofar as it was not a final, appealable order. On October 25, 2013, Appellee was authorized by the Probate Court to pay the remaining balance to First Place Bank.

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Yet a third amended inventory was filed, and objections lodged, on November 11, 2013, and February 12, 2014, respectively. On January 9, 2015, the Probate Court approved the corrected third amended inventory and appraisal. The Appellant appealed, and raised the following four assignments of error: (1) The trial court erred when it determined that Brian G. Ross had the burden to prove by clear and convincing evidence that the $235,000 transferred to him by the decedent, Joseph M. Ross, was a gift when, in fact, as a family member and son of the decedent, the transfer is presumed to be a gift. (2) The trial court abused its discretion in determining the transfer of funds from the decedent to the Appellant was a loan when no evidence was introduced to establish a loan or to rebut the family gift presumption. (3) The trial court erred in ruling that even absent the family gift presumption that Appellant/Movant, Brian G. Ross, failed to prove by clear and convincing evidence that a valid gift had occurred. (4) The trial court erred in approving the value of decedent’s interest in the accounting practice of Ross, Maiorca and Associates, Inc., as submitted by the Appellee. The Court addressed the first three errors together given their similar subject matter. The Court presented the Ohio Supreme Court’s precedential definition of an inter vivos gift. The cases establish the general proposition that clear and convincing evidence is necessary to establish that a particular transaction is a gift, while recognizing the rebuttable presumption, adopted by Ohio courts as far back as 1852, of a gift when the recipient is a family member. Acknowledging more recent case holdings on the ability to rebut the presumption based on the circumstances of particular cases, as well as the presentation of payment records by Appellee on the part of Appellant to overcome the presumption of a gift, the Court held that the deliverance of $235,000 to Appellant was not a gift. Not being a gift, the first, second, and third assignments of error were deemed unmeritorious. In the fourth assignment of error, Appellant alleged that the Probate Court erred in calculating a zero-dollar value of the Decedent’s interest in the accounting practice. However, insufficient procedural progress had been made on the Appellant’s obligation to establish any valuation of the Decedent’s interest in the practice, even after the Appellee had filed a memorandum indicating her compliance with a limited discovery order pertaining to business records of the practice. Accordingly, the Court found the fourth assignment of error to be unmeritorious. All four being so found, the judgment of the Probate Court was affirmed. Concurring in the judgment, the Presiding Judge, notwithstanding his disagreement with the proper legal standard for evaluating the decisions of probate

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courts, agreed with the determination that a loan, rather than a gift, had occurred in this case.

TOPIC:

The judgment of the trial court was affirmed based on a showing that no exceptions to inventory were filed, and the appellant appealed the wrong case for consideration of exceptions to the estate’s inventory.

TITLE:

In re Estate of Cardi, 2016-Ohio-3.

Janet Cardi died on August 7, 2014. On September 19, 2014, her estate was opened. Cheryl Testerman was appointed executor of the estate on November 19, 2014. On February 19, 2015, Cheryl Testerman filed her inventory on the estate. One of the assets listed was an account receivable from Carl V. Cardi, III, in the amount of $558,800.00. An inventory hearing was scheduled for March 20, 2015. Three days later, the trial court approved the inventory, stating that no exceptions had been filed to the inventory. On March 25, 2015, the estate filed a memorandum contra to exceptions to inventory filed by the appellant, John Cardi. The memorandum stated that counsel for the estate received a non-filed copy of appellant’s exceptions to the inventory claiming that Carl Cardi did not owe the estate $558,800.00. The memo also indicated that the appellant was an alleged creditor of Carl Cardi and had filed a complaint to attach the share of Carl Cardi. The trial court noted appellant had also filed a civil complaint in equity on March 13, 2015. The trial court filed a judgment on March 26, 2015, stating that no timely exceptions to the inventory had been filed. The appellant appealed both the trial court’s March 26, 2015 entry and March 23, 2015 entry that approved the inventory. In his only assignment of error, the appellant contended that the “Probate Court erroneously failed to accept the exception to inventory to allow appellant to demonstrate fraud in the inventory, at a hearing before the court.” The Appellant argued that pursuant to R.C. 2115.16, the time limit for filing exceptions to the inventory did not apply in cases of fraud. Therefore, appellant claimed that his exceptions were timely filed because they were based on fraud. The Fifth District Court of Appeals found that there were no exceptions filed in the estate case because the exceptions to inventory were in the record before the Court. The Fifth District Court of Appeals held that, based on the March 26, 2015, entry, the appellant’s exceptions were improperly filed in his civil complaint, rather than in the estate case. Therefore, the Court determined appellant’s exceptions to inventory were filed in a case that the appellant had not filed his notice of appeal. Because there were no exceptions filed in the estate case, the Fifth District affirmed the trial court’s approval of the inventory. As a result, the appellate court dismissed the appellant’s claim.

TOPIC:

Removal of decedent’s son as fiduciary of mother’s estate was not error where, inter alia, son failed to protect assets of the estate, and he was

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unable to explain how or why distributions were made from the estate to himself as a beneficiary and to his attorney for attorney fees. TITLE:

In re: Estate of Abraitis, 2015-Ohio-4077.

Appellant Sarunas Abraitis (Sarunas) appealed from the probate court’s December 1, 2014 judgment removing him as a fiduciary of the Estate of Vlada Sofia Stancikaite Abraitis. Sarunas is one of Vlada Sofia Stancikaite Abraitis’s (Vlada) two sons. Vlada’s other son is Vytautas Abraitis (Vytautas). Vlada died in December 2008 and Vytautas died in November 2013. Vytautas died without children; his ex-wife Vivian Abraitis Newcomer (Vivian) is the fiduciary of his estate. In 2011, Sarunas opened an estate in probate court for his mother and was appointed fiduciary. The court removed him in 2014 and appointed attorney Adam Fried (Fried) as fiduciary of Vlada’s estate. The standard of review used to review a probate court’s decision to remove a fiduciary or guardian is abuse of discretion. In its judgment entry removing Sarunas as fiduciary of the estate, the trial court found that there were “significant inconsistencies between pleadings and arguments made by Sarunas in the IRS case, the Estate case and the Guardianship case involving the decedent.” The issue for review is narrow and straightforward: did the trial court act unreasonably, arbitrarily, or unconscionably in removing Sarunas as the fiduciary of Vlada’s estate? The court finds that it did not. R.C. 2109.24 governs the resignation or removal of a fiduciary and provides as follows: The court may remove any fiduciary, after giving the fiduciary not less than ten days’ notice for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the property, testamentary trust, or estate that the fiduciary is responsible for administering demands it, or for any other cause authorized by law. In its judgment entry removing Sarunas as the fiduciary, the trial court found that: (1) Sarunas “failed to protect the assets of the Estate,” (2) Sarunas “failed to administer the Estate in a timely manner,” (3) there were “significant inconsistencies between pleadings and arguments made by Sarunas in the IRS cases, the Estate case and the Guardianship case involving decedent,” and (4) Sarunas “must be removed as the fiduciary of this Estate due to incompetency and fraudulent conduct and because the interest of the Estate demands it.” Upon review, the Court of Appeals found that the trial court did not act unreasonably, arbitrarily, or unconscionably in making these findings. The record, from both the pleadings and testimony at the hearing to remove Sarunas, demonstrated that this case has been pending since October 2011 (after having been filed three years after Vlada’s death), and that numerous extensions to administer the estate were granted at the

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behest of Sarunas. As the trial court found, Sarunas “really had no explanation for why he did not probate the most recent will [initially] but that he put it away for later.” Further, Sarunas continued for three years to administer the 1978 will, despite his knowledge of the more recent 1993 will. Sarunas admitted that he sought to probate the 1993 will so that Vivian could not make a claim. The record also demonstrated the inconsistencies found by the trial court. The record showed that Sarunas presented conflicting positions regarding the account involved and his inability to explain to the court how or why distributions were made from the estate to himself as a beneficiary, an attempted distribution to Vytautas, and to his attorney for attorney fees. In light of all of this, the trial court did not abuse its discretion in removing Sarunas as the fiduciary of the estate of his mother, Vlada. Judgment affirmed.

TOPIC:

Estate of wrongdoer can be subject to punitive damages award.

TITLE:

Whetstone v. Binner, Slip Opinion No. 2016-Ohio-1006.

A woman with terminal cancer was alive when found liable for assault and other offenses in a civil case, but died before a court determined the damages she owed for nearly suffocating a 5-year-old relative. The Ohio Supreme Court ruled that the woman’s estate can be held responsible for punitive damages if a trial court awards that to the child and her family. In the 4-3 decision, the Supreme Court ruled punitive damages can be imposed on a deceased wrongdoer in limited circumstances. Ohio joins the minority of states that allow estates to be assessed punitive damages, but the opinion authored by Chief Justice Maureen O’Connor noted the limited Circumstance. Unlike any other case decided by other state high courts, this Ohio case involved a wrongdoer who was alive when declared legally responsible, but died before financial damages could be assessed. In June 2010, Christine Whetstone dropped of her 5- and 2-year-old daughters at the home of their great-aunt Roxanne McClellan who was to babysit. Whetstone returned to find McClellan had one hand on the 5-year-old’s neck and a pillow over her face. Whetstone freed the child, grabbed her other daughter, and fled the home. She reported the incident to the police and took the girl to the emergency room, where a doctor noted a hemorrhage in her eye, scratches on her chin and chest, and a mark on her face. Whetstone and the two daughters attended counseling and were all diagnosed with post-traumatic stress disorder from the incident. Whetstone filed a lawsuit against McClellan charging assault, false imprisonment, emotional distress, and loss of consortium.

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Whetstone sought compensatory damages for the costs of the incident and punitive damages. McClellan did not respond to the lawsuit, and the trial court awarded a default judgment to Whetstone. About a month later, McClellan asked the court to vacate the judgment and postpone the damages hearing, adding that she had been diagnosed with terminal cancer and had been undergoing chemotherapy treatments around the time the case was filed. In April 2011, the trial court judge denied McClellan’s request and let the default judgment stand. The judge announced another hearing would be set to determine what damages should be awarded to Whetstone. Three weeks later McClellan died. The court allowed Erin Binner, the administrator of McClellan’s estate, to be substituted as a party to the case and scheduled an April 2012 hearing to consider the damages. Binner argued that punitive damages should not be awarded because Whetstone presented no evidence of malice by McClellan that would trigger eligibility for punitive damages. In December 2012, the trial court awarded Whetsone about $50,000 in actual damages, but concluded punitive damages could not be assessed against the estate of a dead wrongdoer. Denying the punitive damages resulted in the court also denying Whetstone an award of attorney fees. Whetstone appealed the Fifth District Court of Appeals, which in a 2-1 decision, reversed the trial court, and found that assessing punitive damages against the estate of a dead wrongdoer is permissible. Binner appealed to the Supreme Court. The Court majority stated the policy of awarding punitive damages in Ohio is to both punish the offending party and to deter others from similar behavior. Citing the Court’s 1994 Cabe v. Lunich decision, Chief Justice O’Connor wrote that the deterrence is intended to be both a specific punishment to the wrongdoer and an example to others in general. Chief Justice O’Connor noted the majority of other state courts ruled punitive damages cannot be assessed against dead wrongdoers. She cited Pennsylvania as one of the states that does allow it. That court concluded the punishment still serves as a general example to deter others from malicious behavior, the estate would not have had the money available if the wrongdoer paid the damages while alive, and other safeguards protect against an arbitrary award. Ohio has no statute preventing the imposition of punitive damages on a dead wrongdoer, Chief Justice O’Connor explained, and this case differs from the ones in other states that have rejected the award. In all of those cases, the wrongdoer was already dead before the court determined the person was liable. She wrote the distinction is important because the determination that the wrongdoer is legally responsible for compensable harm triggers the availability of punitive damages, and McClellan was alive when she was found responsible.

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“Thus, the court determined before McClellan’s death that she was liable for assault, false imprisonment, emotional distress, and loss of consortium and that these acts were committed with malice and were egregious,” she wrote. “Therefore, McClellan, and her estate after her death, faced the potential award of punitive damages.” Chief Justice O’Connor concluded that the Court did not decide whether McClellan’s action actually warranted punitive damages, but remanded the case to the trial court so that it could conduct a hearing and determine if punitive damages and attorney fees should be assessed. Justices Pfeifer, French, and O’Neil joined the opinion. Justices O’Donnell and Lanzinger wrote separate dissenting opinions both finding it inappropriate to assess punitive damages against the estate based on the actions of the wrongdoer, described in civil cases as the “tortfeasor.” “Because the purpose of awarding punitive damages is to punish the tortfeasor, in my view, punitive damages may not be awarded against the estate of a tortfeasor. Such as assessment does not serve that purpose,” Justice O’Donnell wrote. Justice O’Donnell noted the prior Ohio cases that stated the purpose of punitive damages was to punish and deter the particular offender and make that person an example to others. He disagreed with the Court majority’s attempt to separate punishment of individual and the goal of general deterrence. Justice O’Donnell quoted from cases referencing the majority view of the courts deciding this issue across the United States, including those of the Supreme Court of Florida and New Mexico. He noted that the Supreme Court of Florida has stated: “The punishment actually is inflicted upon (the tortfeasor’s) heirs. Separation of the ‘punitive’ and ‘exemplary’ aspects of (punitive damages) awards is unjustified because general deterrence logically depends upon the perception of punishment suffered by the wrongdoer. When that punishment is diffused and unjustly inflicted upon the innocent, through a doctrine analogous to attainder, the deterrent effect is frustrated. It is unrealistic to suppose that such awards deter other prospective tortfeasors, especially if the criminal laws fail to do so.” Justice O’Donnell also explained that the dead cannot be punished or deterred, and as the New Mexico Supreme Court has stated, “[w]hen the tortfeasor cannot be punished for his culpable behavior, punitive damages no longer have the desired effect and, therefore, the victim loses the legal entitlement to recover those damages.” Justice Lanzinger would accept the position of a majority of states that punitive damages abate at the death of the wrongdoer. She wrote that punitive damages are separate from a tort action and the primary goal of punitive damages is to punish and deter the future misconduct of a particular wrongdoer.

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“General deterrence is accomplished by imposing punishment on the tortfeasor. The rationale for allowing punitive damages has been recognized in Ohio as that of punishing the offending party and setting him up as an example to others that they might be deterred from similar conduct,” Justice Lanzinger stated, citing the Supreme Court’s 1992 Detling v. Chockley decision. If the punishment cannot be imposed on the deceased, no example can be made of the person, leaving only the innocent descendants to be used as the example, she concluded. Justice Sharon L. Kennedy joined both dissents.

TOPIC:

Denial of decedent’s children’s motion to remove administratordecedent’s wife was not error where, claim that administrator was not married to decedent is meritless where no evidence showed that the person officiating at the wedding was not properly licensed and, even if that were true, the marriage could only be rendered void with a court order dissolving marriage.

TITLE:

In re Burton, 2016-Ohio-2683.

Richard Sr., the biological father of Gerald, Cyndi, Richard Jr., Carla, and Nancy Burton, died intestate on December 22, 2014. On February 19, 2015, the Warren County Probate Court appointed Angela Fugate aka Burton, who had married Richard Sr. on April 12, 1987, as the administrator of Richard Sr.’s estate. Approximately one month later, on March 23, 2015, the above named descendants of Richard Sr. filed a motion seeking to remove Angela as the administrator of their father’s estate. However, after holding a hearing on the matter, the probate court denied their motion upon finding “the testimony lacks any credible evidence” that would necessitate Angel’s removal as the administrator of Richard Sr.’s estate. Gerald, Richard Sr.’s eldest son, appealed from the probate court’s decision raising three assignments of error for review. 1) The trial court erred in denying Appellants Motion to Remove Administrator and Fiduciary; 2) The trial court erred by denying Appellant’s objection to the marriage of Richard Burton Sr. and Angela Fugate aka Burton; 3) The trial court erred in its conclusion denying the common law marriage between Richard Burton, Sr. and Marsha Burton per O.R.C. 3105.12 Common Law Marriage. The Court of Appeals for Warren County overruled the first assignment of error finding that the testimony regarding the allegations lacked credibility, noting that the probate court is the best judge of credibility. It further held that “A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not.” As to the second assignment of error, Gerald argued that the probate court erred by finding his father was married to Angela at the time of his death. In support of this

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claims, Gerald argued that the marriage between Richard Sr. and Angela that occurred on April 12, 1987 was invalid since the Ohio Secretary of State does not have any record indicating the officiant who performed the wedding was licensed to solemnize marriages in accordance with the Ohio Revised Code. However, although being instructed several times, Gerald continued to ignore the fact that prior to June 4, 1976, Ohio General Code section 11183 allowed ministers who wished to solemnize marriages to register directly with the “probate judge of any county within this state in which he officiates[.]” The record was devoid of any evidence indicating that had not occurred here. Moreover, even if there was some evidence to indicate the marriage between Richard Sr. and Angela was solemnized by an individual who was not properly licensed in Ohio, that would merely render the marriage voidable, not void. In his third assignment of error, Gerald argued that the probate court erred by finding his father had not entered into a valid common-law marriage with Marsha Burton, his biological mother. The Court of Appeals disagreed. It found that the issue of whether Richard Sr. had entered into a common-law marriage with Marsha was barred by the doctrine of res judicata since that issue had already been conclusively determined by the Warren County Court of Common Pleas, Domestic Relations Division, in Marsha Burton v. Richard Burton, Sr., Warren C.P. No. 10202. In that case, the domestic relations court specifically found Richard Sr. and Marsha had not entered into a common-law marriage prior to Marsha filing for divorce, thereby dismissing her complaint for divorce with prejudice. The domestic relations court’s decision was issued on January 12, 1987, with final judgment entry issued on March 10, 1987, a mere 33 days before Richard Sr. married Angela on April 12, 1987. As noted above, the marriage between Richard Sr. and Angela was, at worst, a voidable marriage that had not been dissolved by a lawful court order prior to Richard Sr.’s death, thereby rendering any alleged common-law marriage that Richard Sr. and Marsha may have entered into after that date polygamous and void. The third assignment of error was therefore overruled and the Judgment of the Probate Court affirmed.

TOPIC:

Joint and Survivorship accounts were wrongly included as probate assets.

TITLE:

In re Estate of Brown, 2016-Ohio-3074.

Albert Brown died in 2013. Hall was Brown’s niece and Stevenson was Brown and his late wife’s close friend. Stevenson was appointed executor of Brown’s estate. In his will, Brown stated that his estate should be split equally between Hall and Stevenson. Stevenson filed an inventory and appraisal with the probate court in October 2014, which included a checking and savings account at KeyBank. Hall filed exceptions to the inventory objecting to the inclusion of the two KeyBank accounts, claiming that they were non-probate assets because she and Brown had jointly held the accounts.

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The magistrate held a full hearing during which Hall presented the KeyBank signature cards and deposit agreements. Hall testified that KeyBank paid her the balance of the accounts, $140,974.94, in September 2013. The magistrate found no credible evidence to the existence of fraud, duress, or undue influence and determined that the exceptions to the inventory should be granted. Stevenson objected, but the trial court overruled her objections and adopted the magistrate’s decision. In September 2014, Stevenson filed a notice of appeal, but the Court of Appeals for Cuyahoga County dismissed the appeal for lack of a final appealable order. In November 2014, Stevenson filed a partial account of the estate. Hall filed objections. In December 2014, Stevenson filed a motion for fiduciary fees; Hall filed objections. The court set the matters for a hearing and subsequently ordered the parties to mediation, but the parties were unable to reach a settlement. In May 2015, the trial court denied approval of the inventory and appraisal and ordered Stevenson to submit an amended inventory and appraisal. In August, the court determined that the amended inventory and appraisal were inconsistent and incomplete and ordered Stevenson to be removed as the estate’s executor. The court declined to approve the amended inventory and denied Stevenson’s motion for fiduciary fees. Stevenson objected, but the trial court overruled her objections and adopted the magistrate’s decision. Stevenson filed a notice of appeal and raised four assignments of error. As an initial matter, Stevenson had not challenged the trial court’s decision to remove her as fiduciary or to deny her motion for payment of fiduciary fees. Therefore, she has waived these issues and they were not considered on appeal. Stevenson argued that the court abused its discretion when it found that Hall was a joint owner of the KeyBank accounts and, therefore, the accounts were not an asset of the estate. According to Stevenson, it was Brown’s intention that the bank accounts be considered part of the estate. To support these claims she pointed to the following evidence. The estate also included a safety deposit box Brown had at KeyBank. Stevenson and Brown possessed the only keys to the safety deposit box even though Hall’s name was on the safety deposit box. Other evidence included the fact that Hall never made deposits to or withdrawals from the contested accounts; Hall’s name was on the accounts only as a matter of convenience; and Brown’s signature on the signature cards was forged. Ohio law establishes that the opening of a joint and survivorship account, in the absence of fraud, duress, undue influence, or lack of capacity, is conclusive evidence of

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the intention to transfer to the surviving party the survivorship interest in the remaining balance at the time of co-owner’s death. The record showed that, at the time of his death, Brown had two joint accounts at KeyBank: a checking account with a balance of $109,412.79 and a savings account with a balance of $31,562.15. In 1993, Brown opened the checking account. In 1999, he added Hall to the account and they both signed the signature card. In 2007, Brown opened the savings account. Hall, who by this time was living in Florida, did not sign the signature card, but her name was listed as the joint owner on the account and signature card. Stevenson contended that Brown’s signature on the checking account’s signature card was forged, but she has provided no evidence to support her allegation. The magistrate found, and the trial court agreed, that there was no credible evidence of any fraud, duress, or undue influence in the titling of the joint bank accounts. The Court of Appeals agreed. Next, Stevenson claimed that the fact that she, and not Hall, had a key to Brown’s safety deposit box at KeyBank meant that Hall’s name was on the safety deposit box and Brown’s bank accounts solely as a matter of convenience. The Court of Appeals disagreed. It noted that this matter came up during the hearing and the magistrate found that the bank allowed Stevenson, as executor of the will, to open and take an accounting of Brown’s safety deposit box. The existence of the safety deposit box and the names on it, however, were not related to the ownership of the bank accounts. In fact, Hall agreed that the safety deposit box was an asset of the estate and should be divided up equally between Stevenson and herself. Therefore, the trial court did not err or otherwise abuse its discretion when it granted the exceptions to the inventory. The assignments of error were overruled and the judgment affirmed.

TOPIC:

Oil and gas rights lease was an encumbrance on title that passed with the farm and was not an estate asset, so exception to report of newly discovered assets found well taken on appeal.

TITLE:

In re Ball, 2016-Ohio-4917.

Decedent passed in 2013, having created a trust with himself as trustee in 2006. He put his farm into the trust with his daughter as sole beneficiary. In 2008 he transferred the farm to himself and then executed a general warranty deed naming his grand-daughter as transfer-on-death (TOD) beneficiary. In 2009, he signed an oil and gas lease on the farm property. A few months after this he named his daughter as his attorney in fact in a durable power of attorney (DPOA) and executed a will devising his farm machinery to his grand-daughter and the residue of his property to his daughter. His daughter recorded

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the DPOA a few years later and used her powers to revoke the TOD and name herself as TOD beneficiary. She also transferred the farm back into the trust. The grand-daughter filed a complaint for intentional interference with an expectancy of inheritance in common pleas court more than six months after decedent passed. The daughter applied to probate decedent’s Will in 2014 and was appointed as executrix. She filed an inventory with no mention of the lease or oil and gas rights, only reporting these rights as newly discovered assets after the original inventory had been approved and the common pleas court had voided her actions as attorney in fact and put the grand-daughter back in possession of the farm property. The grand-daughter responded by filing an exception to the report of newly discovered assets and a motion to remove her mother as executrix and disqualify her attorney. The probate court allowed the report of newly discovered assets, made the lease an estate asset, and dismissed the removals of the executor and her attorney. Upon further inquiry, the lower court clarified it’s judgment to make clear it found the oil and gas lease to be an estate asset. The appeals court reversed and granted the grand-daughter’s exception to the report of newly discovered assets. It held that the lease was not an estate asset and that the grand-daughter owned the farm property subject to the lease. Statutory and case law was reviewed: “Pursuant to R.C. 5301.02 every grant or conveyance of lands shall convey the entire interest which the grantor could lawfully grant or convey “unless it clearly appears by the deed, mortgage, or instrument that the grantor intended to convey or mortgage a less estate.” In addition, R.C. 5302.22(D)(2) requires a TOD affidavit to include a statement of any specific property transferred if less than the entire property. The appeals court determined that on decedent’s passing, the entire property passed to the grand-daughter, except for expressly excepted coal and mining rights, and that the lease remained in effect. The Ohio Supreme Court has found that a lease affects both the mineral and surface estates, in Chesapeake Expl. L.L.C. v. Buell, 2015-Ohio-4551. This led to the conclusion in the present case that “Moreover, because a recorded oil and gas lease affects title in a manner similar to a mortgage, the Lease is an encumbrance on the title that remains with the realty if title is transferred during its terms.” Both the daughter and grand-daughter had ratified the lease and extended the term of the lease.

TOPIC:

Denial of motion to reopen estate on reasoning that there was not a reasonable person to administer it was error where justice would be served by the probate court acting pursuant to its statutory authority and appointing an administrator to act on behalf of the decedent, R.C. 2113.05.

TITLE:

In re Estate of Fields, 2016-Ohio-5358.

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This matter concerns the estate of Jacquie R. Fields, who died testate on January 26, 2012. A copy of decedent’s last will and testament was admitted to the probate court on September 5, 2012. Decedent named her sons, Robert Geren and appellant, Rodney Geren as co-executors. At the time, the co-executors were represented by counsel. The will bequeathed all real and personal property to her sons. Soon after the will was admitted, the attorney moved to withdraw from the case, citing a conflict of interest. Then, each of the sons moved to have the other removed as executor. Robert, who was represented by personal counsel at the time, alleged that appellant removed fixtures from the home, including the furnace, hot water heater, stove, air conditioning unit, furniture, and appliances, rendering the home uninhabitable. On February 27, 2013, following a hearing, the probate court removed both parties as executors. The court based its decision on the following: the brothers harbored “deep suspicions” of the other; both had removed personal property from decedent’s home; and the required inventory of the estate had yet to be filed due to the parties’ inability to work together. Finally, the court cited the following factor: Robert has a specific interest in the real estate of the decedent by virtue of his being a party to a land contract with the decedent to purchase one of the decedent’s parcels of real estate. The debt owed on this parcel is an area of significant dispute. The probate court ordered all estate property frozen until an independent third party applied and was named administrator of the estate. In the absence of anyone applying for the position, the court ordered the estate closed on April 22, 2013. Over the next 21 months, appellant wrote a series of letters to the court, in which he asked the probate court to take various actions and/or to provide legal advice. Robert Geren also wrote to the court. The court took no action, however, citing the closure of the estate for want of an administrator. At issue in this appeal is appellant’s February 2, 2015 motion to reopen the estate and letter to the court. In his motion, appellant complains that the court’s failure to find a suitable person to administer the will was causing serious harm to himself and to the estate. Appellant alleged that Robert owed more than $50,000 to the estate, pursuant to the land contract and that he had been in arrears since 2009. In a letter attached to the motion, appellant requested that the court enforce the terms of the land contract between the estate and Robert. Appellant also required that the probate court intervene and stop the tax foreclosure case that was pending in the General Division of Wood County Court of Common Pleas. Finally, appellant accused the probate court judge, the Honorable David E. Woessner, of personal bias against appellant.

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On February 10, 2015, the probate court ruled that it was not the appropriate court to resolve the land contact issue because the general division had jurisdiction over the real estate “purportedly giving rise to the alleged land contract.” It further declined to reopen the estate based upon the continued absence of a suitable individual to administer it. Appellant timely appealed acting pro se. The Sixth District Court of Appeals found no error with the court’s ruling on the foreclosure action as at the time the action was commenced the probate matter closed and there was no administrator. Given the status of the case at the time, the probate court could hardly have exercised jurisdiction in the foreclosure action. It did find error, however, with the court’s failure to appoint someone to administer the estate. The Court noted that while appellant could, and should have, attempted to procure the appointment of an administrator, he did make repeated requests that the probate reopen the estate to preserve the assets therein. The Court noted that while appellant could, and should have, attempted to procure the appointment of an administrator, he did make repeated requests that the probate court reopen the estate to preserve the assets therein. Absent appellant doing so himself, the probate court should have acted to find someone suitable, especially, as here, where the estate may have a legal claim against Robert and where there are two named beneficiaries. In so ordering this remand, the Court of Appeals recognized that the record contained many accusations of misdeeds by both beneficiaries. The Court of Appeals believed, however, that justice would be served for the probate court to exercise its statutory authority and to appoint someone who can act on behalf of the decedent. The Court of Appeals reversed that part of the judgment and remanded the case with the instruction that the court appoint a “suitable person”, pursuant to R.C. 2113.05, so that the estate could be administered according to the term of the decedent’s last will and testament.

TOPIC:

While a valid birth certificate is prima facie evidence of the facts under RC § 3705.23 (A) (3) and 3705.23 (B) (1), it is not conclusive evidence. Furthermore, it is not enough for appellant to prove she is decedent’s biological child; rather, before being deemed an heir for intestate succession, she must prove that the decedent publicly acknowledged her as an heir, or that paternity was established.

TITLE:

In re Estate of Burdette, 2016-Ohio-5866.

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Burdette died intestate (no surviving spouse) and two adult children were listed on the next of kin form (SPF 1.0). However, Wright was not listed as a daughter/next of kin, though the decedent’s name was on her birth certificate as her father. Burdette’s estate was opened in the Montgomery County Probate Court, a wrongful death action and settlement was filed and reached, a final account was filed, and the estate closed. 14 months later, when Wright heard about it, she filed a motion for relief from judgment under Ohio Civil Rule 60 (B), stating she had never been notified of the estate administration and was unaware of the settlement. Subsequent genetic testing confirmed Wright is Burdette’s biological child. Wright was never adopted by decedent, designated as an heir of law, or acknowledged by him as a child. There was never a legal parentage action during decedent’s life. Wright moved for summary judgment, claiming that decedent always acknowledged her, she was involved with part of the family, and that the family could corroborate this. The estate also moved for summary judgment, asserting that Wright was only ever treated as a step-sister. A magistrate’s decision was done on the pleadings and Wright’s motion for relief and for summary judgment were overruled. She filed objections under Ohio Civil Rule 53, which were denied by the trial court. Wright appealed. The 2nd District Court of Appeals reviewed the matter. The Court first found that a valid birth certificate is prima facie evidence of the facts under RC §§ 3705.23 (A) (3) and 3705.23 (B) (1), but not conclusive evidence. The Court found it is not enough for Wright to prove she is Burdette’s biological child; rather, before Wright could be deemed an heir for intestate succession, she must prove that the Decedent publicly acknowledged her as an heir, or that paternity was established. In the instant case, none of this occurred. Nor was there an Equal Protection Clause violation, as Wright never established she was a legal heir, and thus was not in the same class as the two legally acknowledged adult children. The probate court acted properly. Affirmed.

GUARDIANSHIP TOPIC:

Unsuitability of family applicants necessitated dismissal of their applications despite nomination in the case of two of them.

TITLE:

In re Guardianship of Hilt, 2015-Ohio-3186.

Ms. Hilt already had a guardian when her three children filed their own guardianship applications. A son who was a financial advisor sought to become successor guardian of both person and estate, a daughter applied to be guardian of estate, and another son sought guardianship of person.

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After two days of hearings, the trial court specifically found that all three applicants were unsuitable to serve as guardian of their mother and ordered that the guardian in place, originally thought to be a temporary one by consent of all parties, continue as guardian of person and estate indefinitely. The financial advisor son was sole trustee of a trust established by the ward prior to guardianship for her benefit. He was also power of attorney and was the one who took his mother to her physician for an expert evaluation when her condition deteriorated. The doctor confirmed she was no longer capable of managing her own affairs and the son soon admitted her to Otterbein, an assisted living facility, despite her objections and her wish to remain in her home. She contacted her other two children in response. The second son initiated an adult protective services investigation, which determined the manner in which the mother was placed in Otterbein involved abuse and that she was quite able to “self-determinate”. The other two children had an attorney meet with their mother, resulting in a revocation of the power of attorney to the financial advisor son, and a power of attorney to the other two with a nomination of them to serve as guardian if needed. The trial court noted a past “fissure” in the relationship between mother and children over a testamentary trust established when the applicants’ father passed. The relationship between the financial advisor son and his siblings remained strained. The court found all the children loved their mother and she loved each of them, but it was clear the three siblings disagreed on what was in their mother’s best interests. The court specifically found them each unsuitable to be named guardian, citing distance issues with one, convictions for dishonesty offenses of another, lapses in judgment displayed in handling by each in respect to “handling of certain situations and interactions with their mother and each other”, and “serious communication resistance” between the siblings. The appeals court first found there was no question over whether a guardian was needed. Second, the financial advisor son was specifically found unsuitable. The trial court did not abuse it’s discretion in so finding and the trial court’s primary responsibility is to “ensure that the person appointed will act in the best interests of the ward.” Third, the appeals court then reviewed statute and case law regarding the nomination of the other two by their mother and determined the “the trial court is not required to blindly give meaning to any valid power of attorney which identifies a prospective guardian.” Again, no abuse of discretion was found in the denial of their applications under the circumstances of this case, and the trial court denial was affirmed.

TOPIC:

In appeal of appointment of successor guardians for sister and mother of appellant who sought to remove allegedly objectionable findings from magistrate’s decision that was adopted by the trial court, judgments are affirmed where guardianship is an ongoing process, and the purpose of the proceeding is to gather as much information as possible to determine the best interests of the prospective ward.

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TITLE:

In re Guardianship of Cohodes, 2015-Ohio-2532

In 2001, Sharon Cohodes was appointed to be the guardian of Jane Cohodes’s person and estate. In 2011, Sharon was removed as the guardian of Jane’s person and estate and Attorney David Belinky was appointed guardian of Jane’s person and estate. The probate court also found that Sharon was incompetent and Attorney Bradley Glover was appointed as guardian of her estate and Attorney David Belinky was appointed as guardian of her person. Attorney Belinky died on November 3, 2013. On November 8, 2013, the court appointed Attorney Kevin Crane the successor guardian of the estate of Jane. Many other applications for appointment as successor guardian of the person of Jane and Sharon were filed, including the application of Andrew Cohodes, appellant. On December 5, 2013, a magistrate held a hearing to consider the applications for successor guardian of the person of Jane and Sharon. The attorney representing Teri Morof, Sharon’s daughter and Jane’s sister, asked the magistrate to review the appellant’s action and behavior found in court documents and recordings. The appellant did not object to this and the magistrate considered the findings while making the decision. On December 17, 2013, the magistrate issued a decision that denied the applications of the appellant. Attorney Bradley Glover was appointed as the successor guardian for the person of Sharon and Attorney Kevin Crane was appointed as successor guardian of the person of Jane. In the decision, the magistrate referred to appellant’s past actions and behavior in court proceedings. Appellant filed an objection to the decision on December 30, 2013. On March 19, 2014, the court overruled the objections and adopted the magistrate’s decision. On June 24, 2014, Attorneys Kevin Crane and Bradley Glover, in their capacities as guardians, filed a joint motion for remand. The attorneys asked the court to reach the same result but without considering the objected to findings of fact. The trial court denied the removal of the findings of fact. The trial court found that the findings of fact were part of the basis for the denial of the application. The court noted that the rules of evidence do not apply in guardianship appointment proceedings because the purpose of the proceeding is to determine the best interest of the ward. Appellant’s appeal was granted in which he claims the trial court abused its discretion by including outdated information and facts that were not included in the December 5, 2013 hearing. The Court of Appeals found that the trial court did not abuse its discretion in adopting the magistrate’s decision in its entirety. The Court of Appeals also found that the trial court did not abuse its discretion in including the objected to facts. The appellant offered no legal support, and the court of appeals could find no legal support for the claim that the probate court committed reversible error by not removing the objected to findings of fact. The Court of Appeals overruled appellant’s sole assignment of error and affirmed the March 19, October 31, and November 25, 2014 judgment entries of the trial court.

TOPIC:

Probate Court finding that appellant was not the child of decedent reversed.

TITLE:

In re Herrin, 2015-Ohio-5374.

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Mr. Herrin required a guardian, and the first guardian was appointed in 2001. Ms. Shepard believed she was the ward’s daughter and over the years clashed with his guardians on many occasions over his care. In 2014, his current guardian at that time filed a motion for genetic testing citing O.R.C. 2015.25 and 26 providing that such a test is required in order for an adult child and parent to obtain a declaration of parenthood, which the probate court granted. The probate court magistrate found that Mr. Herrin was not the father of Ms. Shepard upon reviewing the test results indicating a zero percent probability that such a relationship existed, and denied her further standing with regard to the guardianship. The probate court overruled her objections, but on the basis of O.R.C. Chapter 3111. The appeals court dismissed her first assignment of error that the probate court wrongfully interpreted O.R.C. 2105.25, citing the lower court’s reliance on O.R.C. Chapter 3111. It then agreed with her second assignment of error that any reliance of the probate court on O.R.C. Chapter 3111 was inappropriate, finding that “because any action under Section 3111.04 was time-barred, we conclude that the probate court incorrectly held that Ms. Shepard is not Mr. Herrin’s daughter under Chapter 3111”. O.R.C. 3111.05 sets out that while a child or a personal representative of the parent both have standing to bring an action to determine a parent and child relationship, such an action “cannot be brought later than five years after the child reaches the age of eighteen.” The Probate Court judgment was therefore reversed.

TOPIC:

Appeal from denial of son’s application for guardianship of his parents is untimely where interim attorney-guardian conducted duties as guardian for nearly a year before appeal was filed and son was in receipt of the judgment entry and the judgment was a final appealable order under Civ. R. 58(b).

TITLE:

In re Guardianship of Bolog, 2015-Ohio-4095.

Frank K. Bolog (referred to as either “Father” or “Decedent”) passed away on May 29, 2015. In October of 2013, siblings Patricia A. Schaefer and Frank A. Bolog each filed applications in the Stark County Court of Common Pleas, Probate Division, to be appointed guardian of Father. They each separately filed applications to be appointed guardian of their mother, Elizabeth A. Bolog, as well. The siblings’ applications for guardianship for each parent were heard in the Probate Division on November 26, 2013. Not having appointed either sibling as guardian, the Probate Division, the next day, appointed Attorney John R. Frank as “interim guardian of the person and estate” of the mother through January 31, 2014. A hearing was scheduled for December 19, 2013, presumably to determine an official, long-term guardianship for both parents, which, by joint motion, was moved to February 4, 2014.

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On the same day of the hearing, the Probate Division, pursuant to R.C. 2111.02, found Father to be incompetent and Attorney Frank was appointed guardian of the estate. The order was appropriately finally appealable, but there was no docket record that the Clerk served notice of the February 4, 2014 order to the parties under Civ. R. 58(b). Frank A. Bolog and Father, on August 28, 2014 and September 11, 2014, respectively, filed motions to vacate the February 4, 2014 judgment entry. Each, on October 15, 2014, filed motions to terminate the guardianship. Father, on January 30, 2015, just under two months before his death, filed a notice of appeal of the February 4, 2014 judgment entry. Having passed away in the interim, the estate is now in the Mahoning County Probate Court for a “will contest procedure.” The (now) Decedent’s assignments of error are as follows: 1) The trial court erred in finding, via the judgment entry now on appeal, the ostensible ward/instant appellant ‘incapable of taking proper care of his property’ without first having found him to be ‘mentally impaired’ under O.R.C. 2111.01(d). 2) The trial court erred in appointing, via the judgment entry now on appeal, a guardian of the ostensible ward’s/instant appellant’s estate without said ostensible guardian having ever filed a probate form 17.0 application of guardian of alleged incompetent as required under O.R.C. 2111.03. 3) The trial court erred by denying the ostensible ward/instant appellant’s constitutional due process rights. At the outset, the Fifth Appellate District (“the Court”) expressed concern that Decedent’s filing of his notice of appeal 360 days after the initial filing of the judgment entry might not squarely satisfy the precise requirements of Ohio App. R. 4(A)(1), which provides that “a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App. R. 3 within 30 days of that entry.” Decedent argued that his appeal, while 360 days later, was “timely filed” based on the holding of the Supreme Court of Ohio, just one day before, in Clermont City Transportation Improvement District v. Gator Milford, 141 Ohio St. 3d 542 (2015), that the 30-day period specified in Ohio App. R. 4(A)(1) begins “upon service of notice of the judgment and notation of service on the docket by the clerk of courts regardless of actual knowledge of the judgment by the parties.” This registration of service on the docket did not occur in the instant case. Attorney Franks made two contentions to the Fifth Appellate District; first, that prior to the January 29, 2015 holding of the Supreme Court of Ohio, Father should have filed his appeal by March 6, 2014, within the ordinary 30-day window. Also, Frank contended that, notwithstanding the occurrence of the Supreme Court of Ohio’s opinion one day prior to Father’s appeal, that holding should not be applied by the Fifth Appellate District “retroactively”—that is, to the previously recognized 30-day window of time for appeal.

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The Court ultimately held, under the unique factual circumstances and procedural history of the instant case, that Gator Milford should not apply to render the filing of appeal timely. Consequently, the appeal of the Probate Division’s February 4, 2014 judgment entry was dismissed.

TOPIC:

Dismissal of civil action for concealment, filed in conjunction with exceptions to estate account, was error where there was no indication that trial court followed the procedures under R.C. 2109.50 et seq., including reducing any possible examinations to writing and making a finding of guilty or not guilty.

TITLE:

In re Guardianship of Lindsey, 2015-Ohio-4235.

Audrey Lindsey (“Decedent”) died in 2012. Prior to her death, in December 2009, Sasser and Noel P. Lindsey became her co-guardians after she was deemed to be incompetent. On June 14, 2014, after her death, a first and final accounting of Decedent’s assets was filed by the co-guardians. As it yielded the presence of assets from a predeceased husband, two one-half interests in real estate, a vehicle, and a checking account, all totaling $152,236.43, it differed significantly from the inventory filed in the Preble County Probate Court, on March 2, 2011, by these guardians, which consisted of one, undivided one-half interest in real estate, a bank account, and a certificate of deposit, all totaling $67,184.30. Exceptor-appellant Christina A. Reeder filed exceptions to this latter accounting, which were heard on September 19, 2014, and overruled on December 10, 2014. In so overruling them, as well as in dismissing a separate, civil concealment action, the Probate Court, while it appeared to recognize the impropriety of the co-guardians’ manner of establishing and expending the ward’s funds, stated that “it appears that the funds that the guardians expended were or would have been the ward’s funds, that the funds expended were expended on behalf of the ward and the ward was appropriately cared for before her death.” Reeder subsequently asserted two assignments of error. 1) The Probate Court erred when it failed to hold the guardians responsible for their failure to follow proper procedures in protecting the incompetent ward and her assets. 2) The Probate Court erred when it dismissed the civil concealment action against the guardians. The Twelfth Appellate District (“the Court”) began by recounting the statutory duties, under R.C. 2111.14, that both guardians and probate courts have with respect to wards. The Court, while recognizing the constitutionally and statutorily conferred “plenary power” to handle guardianships and associated accounting procedures, specified the statutory obligation for a probate court to “validate each and every aspect of the account,” from Page 4, and the obligation, as recognized by the Supreme Court of Ohio,

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to “fix the liability, if any,” In re Guardianship of Zimmerman, 141 Ohio St. 207, 215 (1943), in the event of the inadequate accounting for “the care or lack of care of assets belonging to the estate of a ward”. The Court pointed out that, as it was operating without the benefit of a written transcript of the allegedly defective hearing by the Probate Court, it was constrained, under prior case holdings of the Supreme Court of Ohio, to “presume the regularity or validity of the lower court’s proceedings and affirm,” Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). Considering this, as well as the operating of the Probate Court consistent with the judicially recognized obligation for the Probate Court to “act as the superior guardian of the ward,” the Twelfth Appellate District overruled Reeder’s first assignment of error. As to the second assignment of error, the Court recounted the jurisdictional capacity of a Probate Court to consider a civil concealment action, the procedural expectation that a Probate Court should “reduce any examinations conducted in a civil concealment proceeding to writing,” In re Estate of Meyer, 63 Ohio App. 3d 454, 457 (12th Dist. 1989), and its abilities to make findings of guilty or not guilty and impose penalties appropriate in the circumstances. Having, however, found no indication of the Probate Court’s compliance with these requirements, the Court did sustain Reeder’s second assignment of error. Consequently, the Probate Court was affirmed in part and reversed in part, with a remand to the Probate Court so it could comply with the provisions of R.C. 2109.50 governing the disposition of civil concealment actions.

TOPIC:

After guardian of estate was removed for failing to file an acceptable accounting, the trial court did not err in imposing surcharge on former guardian under R.C. 2109.50 since that statute applies to situations in which a person has conveyed away assets of guardianship estate and is not limited to fraud and embezzlement.

TITLE:

In re the Guardianship of Fred Van Dyke, 2015-Ohio-4202.

Appellant Mary K.C. Soter appeals from a judgment of the Montgomery County Probate Court, pursuant to R.C. 2109.50, surcharging her $18,271.50, charged due to her reception of money from a guardianship without court approval, reimbursement of expenses to the estate that were incurred to prepare the accounting by Cowan, a new attorney, after Soter was removed as guardian of Fred van Dyke for repeated failure to file an acceptable accounting, and expenses associated with the prosecution of the surcharge motion itself. Soter objected to the decision of the Probate magistrate. However, the trial court overruled her objections, as she did not file a transcript of the hearing from which this judgment was decided. A hearing was conducted on July 15, 2014, regarding an

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application for fees filed by Cowan. Soter objected to being assessed fees and costs. Even though the Probate Court sustained her objection and partially modified the assessment, Soter objected and appealed the aforementioned surcharge of the trial court. In total, Soter asserts three assignments of error. They are; 1) At no time has Mrs. Soter been Accused of Concealing or Embezzling Assets Belonging to Mr. Van Dyke or Found Guilty Thereof. 2) Ohio Rev. Code Section 2109.50 Does Not Authorize Charging the Attorney for Costs of Bringing an Action, or for Payment to an Expert Witness 3) The Guardianship of Fred Van Dyke has been Unjustly Enriched by Having Benefitted from the Services of Mrs. Soter as Guardian of his Person and Estate and as the Attorney for the Guardianship without Properly Compensating her for her Services. In particular, as to the first assignment of error, Soter asserted that R.C. 2109.50, permitting for a “surcharge for assets ‘conveyed away’ from a Guardianship Estate,” is not applicable to her conduct because “there is no evidence that she concealed or embezzled any assets of the estate” and because “she was not found guilty, and thus cannot be made to remunerate the guardianship estate.” However, the Court, in reciting the statutory language in question, accordingly cited its applicability to cases involving “any person suspected of having concealed, embezzled, or conveyed away” the relevant items of the estate. Thus, the Court held, Soter’s conduct would trigger this provision. The Court made five holdings in broader connection with the first assignment of error. First, it found unmeritorious, based on the facts of this case, the notion that Soter was supposedly not informed that she could not pay fees to herself, finding that she did in fact do so, knowingly without the requisite court approval. Second, the Court held that, contrary to Soter’s assertion, and notwithstanding the magistrate not having expressly so stated, Soter was indeed “found guilty” of engaging in the unauthorized self-payment. Third, the Court held, contrary to Soter’s assertion, that R.C.2109.50 does permit a surcharge against her, both for immediate court costs as well as costs incurred by virtue of necessary actions antecedent to the litigation itself, including, as specified by the First Appellate District in a prior case, “costs necessary to trace assets, reconstruct records, attorney fees, accountant fees and costs that ‘are a direct and proximate result of [the prior guardian’s] actions in the administration of [her] duties to the estate, as well as [her] failure to file [an accounting] in a timely manner.” (from In re Guardianship of Cawein, 1995 WL 653853). Fourth, the Court found “ample support” for the finding of the disarray of Soter’s records and her failure to properly prepare an accounting. Fifth, the Court found unmeritorious Soter’s assertion that surcharging her would result in a “double payment” to Cowan for his own work. For the aforementioned reasons, the Court overruled Soter’s first assignment of error. As to the second assignment of error, the Court disagreed with Soter’s assertion that R.C. 2109.50 does not allow the assessment of costs associated with expert witness involvement in a concealment action, bringing forth an Eleventh Appellate District case

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which holds to the contrary (In re Estate of Simons, 2005-Ohio-2362). Consequently, the Court overruled the second assignment of error. As to the third assignment of error, Soter objected to the magistrate’s finding that Soter should not be paid for legal work associated with the deficient accounting, alleging that testimony and evidence, which would be contained in a transcript of the proceedings, would vindicate her claims for fees. However, while Soter had twice been notified that the transcript was ready, and while the trial court had subsequently set a deadline by which the transcript had to be filed before it determined the validity of the objections without it, Soter did not file it until well after. Consequently, the trial court overruled Soter’s objections and, as Soter did not properly preserve this objection as a matter for appellate review, the Court did not review it. Even with the benefit of the transcript, the Court did not find error on the part of the magistrate with regard to his calculation of fees. Consequently, the Court overruled the third assignment of error. Therefore, the Court affirmed the judgment of the trial court in its entirety.

TOPIC:

In dispute about guardianship/custody of child whose mother was deceased and father’s whereabouts were unknown, the probate court did not err in awarding guardianship to appellee whom mother had nominated to be guardian in her will; grandmother’s effort to invoke juvenile court’s jurisdiction after proceedings in probate court were underway was meritless.

TITLE:

In re. I.B., 2015-Ohio-4181.

The Eighth Appellate District began by setting forth the five assignments of error that constituted this appeal. They were, 1) the Juvenile Court erred in dismissing appellant’s complaint and terminating the temporary custody order, as the juvenile court had (and continues to have) exclusive jurisdiction over the minor child; 2) the trial court erred in denying appellant’s motion to certify jurisdiction; the trial court lacked jurisdiction to rule and establish a guardian for the child; the trial court’s guardianship order is void; 3) the trial court erred in awarding guardianship to [Appellee] and utilized an incorrect test to analyze guardianship; 4) the trial court erred (and violated Civ. R. 53) in issuing a defective judgment entry; and 5) evidentiary rulings prejudiced [A]ppellant. I.B.’s mother (“Mother”) died of cancer in June, 2014. I.B.’s father’s whereabouts are unknown. She and her mother had been living with Appellee, Mother’s ex-boyfriend and father of Mother’s other two children. The Cuyahoga County Probate Court received applications from both Appellee, whom Mother’s last will and testament had specified to be I.B.’s guardian, and Appellant, I.B.’s maternal grandmother, to be appointed guardian.

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The court-appointed social worker, after conducting the investigations as to the fitness of the applicants, discovered three, previously undisclosed criminal convictions on the part of Appellee, but stated that these were “sporadic incidents” over 12 years and “should [not] disqualify him from serving as I.B.’s guardian because he is a loving father[.][“] The Court recounted the finding of the safety and appropriateness of Appellee’s home, the manifestation of a father-daughter relationship, and the fact that I.B. was enrolled in a local school. The Court also recounted the domestic and economic circumstances of Appellant and her husband. Appellant alleged that Appellee was preventing Appellant from seeing I.B., while Appellee maintained that he “encourage[d] I.B.’s relationship with [A]ppellant and pays her telephone bill so she can communicate with all of her extended family.” Appellant and Husband expressed concern over I.B. being in a relationship with R.B., Appellant’s son, as he is a convicted Tier III sex offender. But even I.B.’s greatgrandmother testified in favor of Appellee, rather than her daughter, Appellant, being appointed guardian. Appellant filed a complaint in the Juvenile Division of the Cuyahoga County Court of Common Pleas, alleging that I.B. was neglected and dependent. She attempted to have the Probate Court establish the Juvenile Court’s jurisdiction over the matter, and, while the Juvenile Court did grant Appellant temporary custody, it later rescinded its own order for lack of jurisdiction, which continued upon the denial by the Probate Court to certify jurisdiction to the Juvenile Court. Subsequently, the Probate magistrate, affirmed by the trial court, awarded the guardianship of I.B. to Appellee. With regard both to the dismissal by the Juvenile Court of its own order due to lack of jurisdiction and the rejection by the Probate Court of a certification of jurisdiction to the Juvenile Court, Appellant asserted that the Juvenile Court had exclusive jurisdiction under R.C. 2151.23(A) to determine custody, particularly with regard to Appellant’s allegations of I.B.’s neglect and dependence. The Court brought forth the language from R.C. 2151.23(A) (2), which vests the Juvenile Court with “exclusive jurisdiction ‘to determine the custody of any child not a ward of another court of this state.’” After discussing some additional statutory provisions, and mentioning an Eighth Appellate District case on the following point as well, the Court concluded that the Juvenile Court could not determine I.B.’s custody, as she was already a ward of the Probate Court at the time of Appellant’s attempt to secure the guardianship/legal custody. Also, and somewhat more generally than the specific context of adjudications of guardianships by two courts simultaneously, the Court cited a case in which the Ohio Supreme Court cautioned that [a]s between courts of concurrent jurisdiction and coextensive jurisdiction, the one whose power is first invoked by the institution of proceedings and the service

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of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. State ex rel. Balson v. Harnishfeger, 55 Ohio St. 2d 38, 39 (1978). Consequently, this bifurcated assignment of error was overruled. Appellant further alleged the defective nature of the Probate Court’s disposition of the guardianship application insofar as it appeared at the end of the magistrate’s decision, thus not as a separate entry. The Court, however, held that the Probate Court’s judgment was a valid, final order in that it did overrule Appellant’s objection and adapt the magistrate’s order. Additionally, Appellant had evidently alleged error of the trial court appointing Appellee as guardian under R.C. 2111.02(B), when, in fact, the court appointed Appellee on the basis of 2111.02(A). Consequently, the Court overruled the third assignment of error. As for the fourth assignment of error, Appellant alleged two elements. First, “the probate court erroneously allowed . . . undisclosed witnesses to testify at trial, and [second] the admission of hearsay and character evidence.” The Court held that Appellant was not “unfairly surprised or prejudiced by [the] witnesses,” considering that they “consiste[d] of [A]ppellant’s own children, her mother, and one of Mother’s closest friends.” Appellant also asserted the impropriety of the admission into evidence of a letter from I.B.’s assistant principal about I.B.’s performance in school under the circumstances of Mother’s death. However, insofar as this letter did not address the character of either Appellee or Appellant with regard to prospective guardianship appointment, the admission of the letter was harmless, and, consequently, the Court elected to overrule Appellant’s fourth assignment of error. Appellant also alleged the unreliability of the Probate Court’s determination of Appellee as the appropriate party to be appointed guardian. The Court, however, while indicating that the trial court found both parties to be suitable for appointment, indicated that the trial court was nonetheless statutorily constrained to follow the previously expressed wish of Mother, absent the contravention, by a particular appointment, of the child’s best interests. The Court reiterated the favorable position of Appellant’s own family members towards the appointment of Appellee as guardian. Consequently, this assignment of error was overruled and the judgment of the probate court was affirmed.

TOPIC:

Denial of ward’s motion to remove guardian or appoint alternative guardian was not error where ward was given a hearing on her claims and was represented by counsel, R.C. 2111.02 and 2111.49(C); ward’s claim of abuse by guardian submitted in letter to court and not decided did not prevent judgment from being a final appealable order or require Civ. R. 54(B) language.

TITLE:

In re Guardianship of Igah, 2015-Ohio-4511.

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In November of 2006, the Montgomery County Probate Court appointed Flora Igah the guardian over her daughter, Roswitha (Appellant), after a finding that she was incompetent. Contesting the necessity of the appointment of a guardian over her in the first place, Appellant, after initially requesting and then subsequently cancelling a hearing for this purpose in the summer of 2013, requested a hearing again in October of 2013, which was scheduled for January 15, 2014. However, the hearing did not occur until June 23, 2014, due to such factors as Appellant’s psychiatric hospitalization, the inability of her attorney to contact her, and her request for a new attorney. The magistrate, on July 22, 2014 found that Appellant was still incompetent and that the guardianship should remain in effect. Between July 23, 2014 and August 15, 2014, Appellant sent documents to the Probate Court alleging the “unfair[ness]” of the magistrate’s decision, the alleged misunderstanding on the part of her attorney as to her wish to merely change guardians and not to terminate the actual guardianship per se, and alleging the current guardian’s abusiveness. The trial court overruled these objections on August 26, 2014. Consequently, the Appellant asserted the following assignment of error: The Trial Court Erred by Overruling Appellant’s Motion to Terminate Guardianship. The Second Appellate District began with jurisdictional considerations, holding that, in the instant case, there was no adequate indication that service was made in accordance with Civ. R. 58(b). In light of this and the broader ability of the Court to raise jurisdictional matters on its own, the Court concluded that it had proper subject matter jurisdiction. The Court then addressed whether the denial of the motion to replace the guardian satisfied the definition of a “final appealable order.” Citing In re Guardianship of Hosey, 2d Dist. Clark No. 2004 CA 33, 2005-Ohio53, the Court observed that guardianship proceedings are identifiable as “special proceedings” involving a “substantial right.” The Court then considered whether certification under Rule 54(B) was warranted, insofar as the trial court’s entry referred the allegations of abuse to the magistrate to determine whether investigations would be required and, consequently, not all claims were disposed of. Ultimately, the Court concluded that such certification was not necessary both because of the untimeliness of the presentation of these allegations and the fact that they were submitted in a letter Appellant sent to the Probate Court rather than in the form of a proper motion before the court. Further to the points of the untimeliness and procedural invalidity of her raising these allegations, the Court then cites to State ex rel. Pallone v. Ohio Court of Claims, Slip Opinion No. 2015-Ohio-2003, for the proposition by the Supreme Court of Ohio that filing a statement with a court does not override the claimant’s failure to comply with the procedural requirements for properly objecting to a magistrate’s findings.

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The Court also references Appellant’s tardiness in filing a transcript as well as the impropriety of not having filed it with the trial court to aid it in its dealing with Appellant’s objections to the magistrate’s decision. The Court dismissed the Assignment of Error, in that Appellant was afforded a hearing and received the assistance of counsel. Therefore, the circumstances set forth by the Supreme Court of Ohio in Goldfuss v. Davidson, 79 Ohio St. 3d 116 (1997), which would or could warrant the finding of plain error by a trial court, did not exist in this case. The judgment of the Montgomery County Probate Court was affirmed.

TOPIC:

A 1987 family agreement, improperly executed, is still a contract, and may be validly ratified and republished by a subsequent, properly executed amendment.

TITLE:

In re Guardianship of Mull, 2015-Ohio-5440.

The Mulls acquired hefty assets during their marriage. On 10/1/1987, they entered into an estate planning contract and created revocable trusts, which “family agreement” indicated that at one spouse’s death, the assets would transfer to the surviving spouse’s trust. When the 1st spouse died, the family agreement couldn’t be modified or terminated; in like manner, the surviving spouse couldn’t modify their own revocable trust. They signed the agreement, but it was not witnessed and not notarized. Mull’s son from a prior marriage was the major beneficiary (50%) of the trusts. In 1993, they did an amendment to the 1987 agreement that ratified and affirmed the 1987 family agreement. The amendment was witnessed and notarized. The trusts were also modified the same day adding more beneficiaries, but Mull’s son still was to receive 50%. Mr. Mull died in 1997. Mrs. Mull subsequently amended her trust twice, in 2002 and 2011. Mull’s son was excluded as a beneficiary, while various charities were named as replacement beneficiaries, although some were excluded in the 2011 amendment. Mrs. Mull removed herself as trustee in 2010 and was declared incompetent in 2012. She is still alive as of December 2015. In 2012, the Successor Trustee filed a declaratory judgment action in the Belmont County Probate Court asking which trust amendment of Mrs. Mull was controlling, and whether the 1987 family agreement was enforceable. The defendants were all named charities and Mr. Mull’s son. Defendant charities moved to have the trustee removed, because during his deposition it was revealed he had personally promised Mr. Mull that he wouldn’t remove his son as a beneficiary, and therefore had a conflict of interest. Additionally, Mrs. Mull’s trust owns stock in the trustee’s company. He claimed that, as some of the charities were removed as beneficiaries, they had no legal standing, and that he had committed no

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serious breach of his duty as trustee. After a hearing, the court found that the charities had standing, but that the trustee should not be removed. The parties now filed competing motions for summary judgment. Mull’s son asserted that the 1993 amended trust was controlling. The charities asserted that the family agreement was void and could not be validated by republication. First, the court found that Florida law controlled as the Mulls were Florida residents when both the 1987 and 1993 documents were executed, even though the family agreement was executed in Ohio. Second, it found that, although the 1987 family agreement was not executed under Florida law, it was validated by the 1993 amendment that ratified and confirmed it. Mull’s son was granted summary judgment and the charities appealed. The 7th District Court of Appeals first noted that, though the 1987 family agreement was executed in Ohio, the Mulls were Florida residents, and the agreement did not have a choice of law provision. The Ohio Supreme Court has found that factors for choice of law include the place of contracting, place of negotiation of a contract, place of performance, location of the contract’s subject matter, and the domicile, residence, etc., of the parties. The Court found that if the results under Ohio and Florida law are the same, the court can use Ohio law. The Court found that the family agreement was not valid under RC § 2107.04, because Florida law requires two attesting witnesses [Fla. Stat. 732.701(1)], and therefore was not properly executed. Therefore, if Florida law allowed for the agreement’s subsequent ratification in 1993, the 1987 agreement would be valid. The Court found that the family agreement is a contract and falls under general contract law, defined by the plain meaning of the words. In the instant case, the family agreement was clearly defined as to what it was as well as its terms; the 1993 amendment clearly stated that it was amending and ratifying the 1987 family agreement, was notarized, and had two attesting witnesses. It was properly executed and made the family agreement enforceable. Florida statutory law also allows an improperly executed will to be saved by a properly executed codicil that ratifies the original will, under Florida Statutes 732.502 (4) and 732.511. Since Florida law allows for the making of such a family agreement, and an improperly executed agreement can be ratified by the proper execution of an amendment that republishes the same, the 1987 agreement is valid under the 1993 amendment. Additionally, nothing indicated the family agreement was revoked. In fact, the successor trustee had told Mrs. Mull that she could not modify the trust after her husband’s death due to the 1987 family agreement, but she did so anyway in 2002 and 2011, even though the trustee warned her that these amendments would not stand up in court. The Court noted that Mr. Mull never intended to revoke the agreement prior to death, and Mrs. Mull’s attempted revocation was meritless. The Court went on to find there was no basis to the charities’ claim on appeal of equitable estoppel, waiver or laches. Finally, the Court found that the probate court’s denial of the charities’ motion to remove the trustee was a final, appealable order: both RC § 2505.02 (B) (4) and Ohio

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Civil Rule 54 (B)’s requirements must be met under Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, as a trustee is a fiduciary as much as an executor. The ruling of the Belmont County Probate Court was affirmed.

TOPIC:

Dismissal of father’s application to establish visitation with daughter, a ward of the court, on reasoning that the law of the case dictated the dismissal was error where daughter was an adult and was free to change her mind about with whom she wished to associate.

TITLE:

Guardianship of Basista, 2015-Ohio-3730.

Appellant, Ronald Basista, appealed the judgment granting appellee, Marijana Glass’ motion to dismiss appellant’s application to establish visitation with their daughter, Nicole Basista. The case was reversed and remanded. Basista and Glass were married and have one child together, Nicole, who suffers from Noonan’s Syndrome. In 2012 and 2013, the parties litigated Basista’s visitation with Nicole. In this prior action, Basista filed a motion to establish visitation. In response, Glass filed a motion to dismiss, arguing that there are no parental rights to visitation with an incompetent adult and that the probate court’s jurisdiction does not extend to ordering visitation with an adult ward against the ward’s wishes. The magistrate concluded, through an in-camera interview, that Nicole is “capable, as an adult, of making her own choices and having her own opinion… Ohio law makes it clear that Nicole has the right to be treated equally as a citizen under the law, and the right to choose with whom she wishes to communicate and spend time with.” The trial court affirmed this decision, Basista appealed, and in affirming the decision of the probate court, this court stated, “Although Nicole is the subject of a guardianship, it does not necessarily establish that she cannot express her own wishes and desires… The situation may be different if the ward was unable or incapable of expressing his or her desire with regard to visitation or parenting time. However, there is nothing in the record to suggest that is the case.” In Basista’s subsequent motion to establish visitation, he maintained that since the denial of his first motion, the following had occurred: (1) Nicole told Chesterland Police Officer Allen Dodge that she “misses her father,” and (2) Nicole moved to Texas with Glass. Basista also filed a motion for an order appointing a guardian ad litem to investigate Nicole’s situation. Glass filed a motion to dismiss Basista’s motion and in granting Glass’ motion to dismiss, the trial court found that Basista has no legally cognizable right to visitation with Nicole, an adult woman. Basista filed a timely notice of appeal and asserted the following assignments of error: (1) the trial court erred in holding that the March 31, 2014 decision of the Eleventh District Court of Appeals is dispositive of the issues he raised in his subsequent motions, (2) the trial court erred in denying Basista’s motion to establish visitation with Nicole without first investigating Nicole’s wishes regarding her relationship with her father, and (3) the trial court erred in denying Basista’s motion and application for appointment of guardian ad litem.

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On Basista’s first assignment of error, the court found the law of the case doctrine is inapplicable and that Basista’s assignment of error is with merit. Under his second assignment of error, Basista maintains that the trial court erred in not investigating Nicole’s wishes “in light of this new evidence.” The court found merit in Basista’s second assignment of error due to the trial court’s error in applying the law of the case doctrine. Thus upon remand, the probate court could order a hearing on the issue of visitation based on whether the trial court felt Basista presented sufficient evidence to establish that Nicole’s desire to communicate with him has changed. Lastly, under Basista’s third assignment of error, the court found that in consideration of his first and second assignments of error, this assignment of error was moot. It would only be addressed in the event of the trial court, in its discretion, decided to have a further hearing on the motion for visitation. Therefore, the judgment was reversed and remanded.

TOPIC:

In a guardianship proceeding, a trial court’s denial of a appellant son’s application for appointment as guardian for his father and a finding that the father was not incompetent were not clear error where subsequent evidence and testimony demonstrated that the father was competent.

TITLE:

In re Guardianship of Shriver , 2015-Ohio-5172.

Appellee was 97 years old and lived alone at an assisted living facility in Marietta, Ohio. Appellee had been in a relationship with a Betty D., age 89 years old, since his wife’s death in 1997. Appellant, appellee’s adult son, filed an “Application for Appointment for Guardian of Alleged Incompetent” to be named guardian of appellee’s person and estate. The appellee supported his application with an opinion by a clinical and forensic psychologist, John Tilley, which stated that appellee was incompetent and guardianship should be established. The trial court appointed Melody Zimmerman as an investigator for the court to provide a recommendation regarding appellee’s need for guardianship. Melody Zimmerman reported that she noted no impairments involving the appellee’s competence or judgment. Zimmerman also indicated that the appellee was aware and capable of performing all instrumental activities of daily living. After a hearing was conducted, the Washington County Common Pleas Court, Probate Division, entered a decision and judgment entry that found appellee competent and subsequently denied appellant’s application. Appellant appealed the decision and judgment entry of the trial court. In his appeal, appellant asserted that the trial court erred by failing to include findings supporting its decision and by finding that the appellee was competent. On appeal, the Fourth District Court of Appeals affirmed the judgment of the Washington County Probate Court. Addressing appellant’s first error of assignment, the court determined that the trial court was not required to include detailed findings to support its conclusion because appellant failed to request these findings in accordance with Civ.R. 52. The court stated that appellant could not complain that the court erred because he failed to timely request findings of fact and conclusions of law under Civ.R.

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52. Addressing appellant’s second error on appeal, the court stated that appellant failed to prove appellee’s incompetence by “clear and convincing evidence”. The Fourth District Court of Appeals noted that even under the clear and convincing standard, appellate review is deferential to the trial court’s determination. The court noted that appellant failed to offer the testimony of John Tilley as evidence at the hearing. However, on the other hand, the court noted that testimony by the appellee’s expert witness, court investigator, appellee’s lawyer, and several others clearly showed that there was sufficient evidence to affirm the trial court’s decision that the appellee was competent and did not require a guardian.

TOPIC:

Ward retained right to be heard and represented by counsel of her choice in ongoing guardianship proceedings.

TITLE:

In re Guardianship of Carpenter, 2016-Ohio-3389.

Ward-appellant E. Jodene Carpenter brought this appeal due to the Probate Court’s denial of her motion to be represented by independent counsel of her choice for the purpose of challenging the guardianship and denying her motion to be present at a hearing regarding a motion to restrict who may visit her. The Court of Appeals reversed the judgment of the Court of Common Pleas of Marion County, Probate Division and remanded for further proceedings. On January 9, 2013, the trial court found Carpenter to be incompetent and appointed Hypes to be her guardian. On July 14, 2015, Carpenter personally signed a motion for authorization to be represented by independent counsel for the purpose of evaluating the continued necessity of the guardianship or to introduce a less restrictive alternative to the guardianship. The motion specified that she wished to be represented by Brian C. Cook and requested authority to sign an engagement letter or to have the guardian sign the engagement letter. Carpenter was not indigent and was not requesting court appointed counsel. A hearing was held on the motion on July 21, 2015. At the hearing, Cook and Hypes were in attendance but Carpenter was not and had not received any personal notification of the hearing. After speaking with Carpenter’s daughter and brother about Carpenter wishing to terminate the guardianship, Cook spoke with Carpenter. In Cook’s opinion Carpenter wanted to end the guardianship so he contacted Hypes to request that he be permitted to review the file. The trial court stated that Carpenter had the right to independent counsel but Cook usurped the authority of the guardian and the Court by talking directly to Carpenter. The trial court indicated that it needed to speak to Carpenter but there is nothing in the record indicating that such a visit occurred. On August 3, 2015, a motion signed by Carpenter was filed requesting again that she be represented by Cook and be permitted to attend the hearing that Hypes had requested to restrict Carpenter’s visits with her daughter. That hearing was held on August 6, 2015 and Carpenter was not present at the hearing. On August 13, 2015, the

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trial court granted the motion for supervised visits and denied Carpenter’s request to be represented by Cook. Carpenter appealed raising three assignments of error. First, the probate court erred when it denied Carpenter’s motion to hire independent counsel of her choice for purposes relating to guardianship review and termination because a ward has such a right under the Ohio Revised Code. Second, the probate court’s decision to proceed with a hearing on Carpenter’s motion to hire independent counsel of her choice without giving notice to Carpenter and without her attendance violated her right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 16, of the Ohio Constitution. Third, the probate court’s decision to proceed with a hearing on a motion by [Hypes] to restrict Carpenter’s access to her family, without providing for Carpenter’s attendance, participation, and/or legal representation after she filed a motion requesting to attend, participate and have legal representation, violated her right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 16, of the Ohio Constitution. The Court of Appeals ruled that Carpenter was not given sufficient notice in the adversarial hearing for termination of guardianship. Due to the adversarial nature of the situation the ward should have been entitled to appear on her own behalf to tell the trial court what her wishes were. The Court of Appeals stated that the hearing was held on Carpenter’s motion without Carpenter’s knowledge, without Carpenter’s presence and with no one to protect Carpenter’s interest resulting in a clear violation of Carpenter’s due process rights. The second assignment of error was sustained. In addressing the first assignment of error, the Court of Appeals stated that since Carpenter had the money to pay for counsel, the determination of who that counsel should be was hers alone. There is no requirement that a ward has to have her choice of independent counsel approved by the guardian. The court took no steps to figure out what the actual wishes of Carpenter were. Since there was no evidence to support the judgment of the trial court, the trial court abused its discretion in denying the motion for independent counsel of Carpenter’s choosing. The first assignment of error was sustained. For the third assignment of error, the Court of Appeals found that there are no statutory provisions for a ward to challenge a decision of a guardian but the Ohio Supreme Court requires trial courts to have such a process. Even after a finding of incompetency, a ward continues to have certain rights. Carpenter’s motion indicated that she wished to be present and participate in the hearing on the matter. By local rule, the ward has a right to be present at court proceedings, however no notice of the hearing was given to Carpenter and no guardian ad litem was appointed. There is nothing in the record to indicate that Carpenter’s stated interest was given any consideration by the trial court. The trial court also failed to abide by its own rule providing a ward with the right to appear at a hearing. Carpenter was denied her due process and the third assignment of error was also sustained.

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The Court of Appeals for Marion County therefore reversed and remanded the case to the Marion County Court of Common Pleas, Probate Division.

MAGISTRATES TOPIC:

Under Ohio Civil Rule 53, when a magistrate’s decision advised parties that they had 14 days to file written objections pursuant to Civil Rule 53 (D)(3)(b)(i), no objections were filed and the judge adopted the decision as the order of the probate court, absent a showing of plain error (the burden being on appellant), appellant’s claims in an appeal are deemed waived.

TITLE:

In re Estate of Tillimon, 2015-Ohio-907.

Irene Tillimon died testate on1/20/2005 leaving one heir, adult son Duane. She had previously been an adult incompetent ward of the Lucas County Probate Court since 2004. Attorney Fischer was named as guardian. Fischer now filed her decedent’s estate in the Lucas County Probate Court. Duane objected and filed his own application, as the last will named him as executor. Ultimately, attorney Taylor was appointed as an independent third-party fiduciary by agreement of the parties. In 2007, Duane asked to be appointed as executor or “special administrator” of his mother’s estate. The magistrate’s decision denying the request was adopted by the probate court, keeping attorney Taylor as administrator. Attorney Taylor applied for fees, which were granted. Duane also filed objections to the fiduciary’s final account and in 2008 filed another request to be appointed special administrator and a motion to deny fees to attorneys Fischer and Taylor. The magistrate’s decision addressing issue applied the issue of res judicata as to attorney fees and found that RC § 2113.15 as to special administrators was inapplicable because said appointments are limited in scope and are only when there is a “delay granting letters testamentary.” In the instant case there was no “delay”, as the court had long appointed an administrator WWA. Duane did not object to the decision, which was adopted by the court 19 days later by entry. The court then approved the final account. On 9/30/2008, Duane appealed. The 6th District Court of Appeals stayed the appeal because Duane had filed for bankruptcy protection in US Bankruptcy Court, ND. The stay was lifted in 2014 when the Court discovered the bankruptcy case was closed. The Court cited Ohio Civil Rule 53, indicating that the magistrate explicitly advised parties of their appellate rights in the 2008 magistrate’s decision, and further advised them that they had 14 days to file written objections pursuant to Civil Rule 53 (D)(3)(b)(i). When no objections were filed and Judge Puffenberger adopted the decision as the order of the probate court, absent a showing of plain error, “appellant’s claims in this appeal are deemed waived.” The appellant bears the burden of showing plain error. 87

Duane neither argued nor demonstrated plain error in his appeal. The probate court’s ruling was affirmed.

MANDAMUS TOPIC:

In mandamus action in which city refused to comply with municipal court’s funding order, city failed to establish with summary judgmentquality evidence that the amount sought in the funding order was unreasonable and unnecessary. Also, because the propriety of the funding order must be evaluated as of the time the judge makes it, unrealized expenses could not be considered in determining whether city adequately funded the court.

TITLE:

State ex rel. Byers v. Carr, 2016-Ohio-241.

This case was an original action filed by the Judge of the Maumee Municipal Court Gary L. Byers, and Maumee Municipal Court Clerk of Courts, Shannon Thomasson,(“relators”). Relators sought a writ of mandamus requiring the Mayor of the City of Maumee and Maumee City Council, to appropriate additional funding to allow the municipal court to maintain its current level of staffing. The city of Maumee is the host community for the Maumee Municipal Court. The city of Maumee provides the bulk of the court’s funding. The court provides 24-hour, seven-day-a-week clerk service. It employs nine full-time deputy clerks of court, including a chief deputy clerk of court, and four parttime deputy clerks of court. Two of the full-time deputy clerks work weekday evenings and overnight shifts. The four part-time deputy clerks work the weekend shifts. The after-hours services are performed at the police station. In 2013, the cost of the court’s personnel services was $1,400,045.28. That year, 695 civil cases, 995 criminal cases, and 8,350 traffic cases were filed in the Maumee Municipal Court. The court took in criminal account receipts of $1,450,984.05. All of those receipts were disbursed to government entities, with Maumee receiving $846,365.09. In correspondence dated November 13, 2013, Mayor Carr suggested to Judge Byers that expenses for 2014 be reduced by eliminating one security position and eliminating the after-hours deputy clerk service, instead transferring the after-hours deputy clerks’ responsibility for processing warrants to police dispatchers. He also asked that no new employees be hired in 2014. Judge Byers responded to Mayor Carr that it would create a conflict of interest for police dispatchers to process warrants. In 2014, the city budgeted only $1,099,940 court personnel services – a reduction of $300,105.28 and 21.4 percent below 2013 levels. The court ran low on funding for

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personnel services by September of 2014, and city council appropriated additional funding. The ultimate cost for municipal court personnel services in 2014 was $1,341,404.35. That year, 696 civil cases, 1,083 criminal cases, and 7,999 traffic cases were filed in the Maumee Municipal Court. The court took in criminal account receipts of $1,473,888.55. Again, all of those receipts were disbursed to government entities, with Maumee receiving $873,027.97. For budget year 2015, the municipal court requested funding of $1,631,005.80, $1,398,435.80 of which was earmarked for personnel services. This increase was requested because of an anticipated retirement pay-out and a raise that resulted from the city’s collective bargaining agreement. The city, however, appropriated only $1,301,150.00, earmarking only $1,090,140 for personnel services. The amount appropriated for 2015 personnel services was $308,294.82 less that the court requested and $251,264.35 less than actual 2014 funding. On August 11, 2015, the city, which manages certain bookkeeping functions for the municipal court, notified city council that by August 31, 2015, the 2015 court personnel services funding would be exhausted and additional appropriations would need to be approved. The city requested an additional $112,000 to cover payroll for two additional pay periods. On August 18, 2015, city council declined to extend additional funding. Mayor Carr notified Judge Byers on August 19, 2015, that personnel funding for the court would cease as of August 23, 2015. Judge Byers responded by issuing an administrative order on August 21, 2015, requiring the city to appropriate the court’s total 2015 budget request for $1,631,005.80. On August 25, 2015, city council met to discuss the court personnel funding situation. Mayor Carr recommended that the city comply with the funding order except as to payroll expenses attributable to the after-hours clerk services for the remainder of the year. That amount was estimated at $53,144.00. City council voted to accept Mayor Carr’s recommendation and it appropriated an additional $276,111.80 for court operations. This meant that the city funded the court in the total amount of $1,577,861.80 – again, $53,144.00 less than the amount specified in the funding order. Relators filed a petition for writ of mandamus in the 6th District Court of Appeals on September 29, 2015, asking that it direct respondents to provide the municipal court with a total of $1,631,005.80 in operating funds for 2015. The court issued an alternative writ on October 8, 2015, ordering relators to either do the act requested in the relators’ petition or to file an answer within 28 days. Respondents answered on November 4, 2015. The Court of Appeals issued a scheduling order setting a summary judgment deadline of November 25, 2015. The parties filed cross-motions for summary judgment and they filed response briefs opposing each other’s motion. The parties agreed that the city has a duty to appropriate the court’s reasonable and necessary funding requests, however, respondents pointed out that the court’s ability to compel funding is not unfettered. The dispute in this case centered around (1) whether

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relators’ request were reasonable and necessary, and (2) whether respondents appropriate proper funding for budget year 2015. The Court of Appeals noted that respondents have a high standard to overcome in challenging the court’s funding order. They bear the burden of establishing that the court’s order constitutes an abuse of discretion and is unreasonable Durkin, 9 Ohio St.3d at 134, 459 N.E..2d 213. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,219, 450, N.E.2d 1140 (1983). Given the standard required of respondents, it found that they had failed to establish that the court’s funding order was unreasonable and unnecessary or an abuse of discretion. It, therefore, granted relators’ motion for summary judgment and issued the requested writ of mandamus, requiring respondents to appropriate funds totaling $53,144 – the amount previously withheld after the court issued its August 21, 2015 funding order. It denied respondents’ motion for summary judgment.

TOPIC:

A petition for writ of mandamus to compel clerk of courts to pay petitioner for serving as a witness in three cases was dismissed because the petition was procedurally defective and petitioner failed to attach subpoenas to testify to the complaint.

TITLE:

Richardson v. Byrd, 2015-Ohio-4090.

Petitioner filed his complaint for a writ of mandamus ordering the Cuyahoga County’s Clerk of Courts to issue payment to him for serving as a witness. Petitioner alleged that, pursuant to Crim.R. 17(D), he was entitled to witness fee payments. Respondent, the Clerk of Courts, subsequently moved to dismiss petitioner’s complaint. The Eighth District Court of Appeals granted petitioners motion to dismiss. In granting respondent’s motion to dismiss, the court noted that petitioner’s complaint was procedurally defective. Pursuant to R.C. 2731.04, the court noted that an “application for the writ of mandamus must be proven by petition…and verified by affidavit.” See e.g. State ex. rel Huntington Ins. Agency v. Duryee, 1995-Ohio-337; Gannon v. Gallagher, 145 Ohio St. 170 (1945). Because petitioner failed to comply with R.C. 2731.04, the appellate court dismissed petitioner’s complaint for writ of mandamus. Additionally, the appellate court also determined that petitioner failed to establish, by clear and convincing evidence, that he was entitled to a writ of mandamus. The court stated for a writ of mandamus to be issued, petitioner must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent official or governmental unit to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. See State ex. rel. Waters v. Spaeth, 2012-Ohio-69. The court held that petitioner failed to establish, by clear and convincing evidence, that he was entitled to a

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writ of mandamus. More specifically, the court recognized that the petitioner failed to attach any of the subpoenas requiring him to testify as a witness to his complaint.

TOPIC:

Mandamus not a substitute for appeal in dispute over marital assets.

TITLE:

State ex rel. Steinle v. Dewey, 2016-Ohio-5549, 8/30/2016.

The trial judge had ruled on three motions for partial summary judgment dealing with various assets at issue in a divorce, and the response to those motions unsupported by any affidavit or evidentiary material. The judge had granted them in part and denied them in part, and a motion for findings of fact was filed requesting the Judge to specifically address each fact found to be in dispute. The Judge denied that motion, finding it is “not practicable” under Civ. R. 56(D) to address all 138 averments offered to be uncontroverted facts. It was suggested that they be submitted to opposing counsel as a request for admissions. A mandamus action was filed requesting the Judge to issue findings of fact and the appeals court granted the Judge’s motion to dismiss the action. The court of appeals had concluded that the original action was an attempt by the husband to appeal Judge Dewey’s denial of his motion for findings of fact, and the court of appeals correctly found that mandamus is not a substitute for an appeal. The Supreme Court affirmed, agreeing with the court of appeals and determining “that appellant can prove no set of facts entitling him to relief.” Further, Civ. R. 56(D) requires findings of fact only “if practicable” and “Steinle cannot establish a clear legal right to the requested findings of fact in this situation.

MEDICAID TOPIC:

In action for quiet title of decedent’s real property that was subject to a lien for repayment for the cost of Medicaid benefits, summary judgment for state was not error since a life estate interest held by a Medicaid recipient does not extinguish upon recipient’s death and the life estate interest endures post mortem as a quantifiable asset that the state may encumber by lien, R.C. 5111.11(A)(1)(b).

TITLE:

Phillips v. McCarthy, 2016-Ohio-2994.

Prior to his death in November 2010, the decedent resided in a nursing home and received Medicaid benefits for approximately one year. After his passing, ODJFS filed a lien against the subject property seeking repayment for the costs of Medicaid benefits disbursed on the decedent’s behalf. As of the date of this decision, the agency had not yet undertaken any action to foreclose upon or otherwise execute the lien.

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In April 2013, appellants instituted a quiet title action against the ODJFS. The parties filed cross motions for summary judgment on stipulated facts. The trial court awarded summary judgment to the ODJFS and dismissed the complaint with prejudice. The sole assignment of error was that the court erred by denying appellant’s Motion for Summary Judgment and granting appellee’s Motion for Summary Judgment. The Court of Appeals for Preble County noted that pursuant to federal mandate, following the death of a Medicaid recipient, the state of Ohio is required to seek reimbursement for the costs of benefits correctly paid on behalf of that recipient during the recipient’s lifetime. Initially, Ohio’s Medicaid Estate Recovery Program permitted recoupment solely from assets within the decedent’s probate estate. The statutory scheme governing the administration of Medicaid in Ohio has been revised and renumbered multiple times since the program’s inception. For purposes of this opinion, it referred to the rules and regulations in effect when the decedent applied for and began receiving Medicaid assistance in 2009. First, Appellants contended that the Department’s lien effectively encumbered their remainder interest because the decedent’s life estate extinguished upon his death by operation of law. Appellants challenged the timing of the lien, insisting that the Department was authorized to encumber the property only during the decedent’s lifetime. This right of recovery, appellants insisted, terminated along with the decedent’s life estate upon his passing. The court noted that at common law, a life estate interest extinguished upon the death of the measuring life. Nonetheless, state law may, and at times does, depart from common law. In 2005, the General Assembly amended the Medicaid Estate Recovery Program to broaden the definition of a recoverable “estate” under Ohio Law. For purposes for Medicaid recovery, a recipient’s life estate interest transcends physical death and is subject to posthumous encumbrance by a state agency. It renders life estates amenable to Medicaid recovery. The Court of Appeals for Preble County further concurred with the reasoning espoused by the Fourth District in State Medicaid Recovery Program v. Miracle, 2015Ohio-1516. Accordingly, it held that, within the confines of Ohio’s Medicaid Estate Recovery Program, a life estate interest help by a Medicaid recipient does not extinguish upon his or her death. Rather, for purposes of Medicaid recovery, a life estate interest endures post mortem and represents a quantifiable asset which the state may encumber by virtue of a properly filed lien. In the absence of a probate estate, the state may seek recovery of Medicaid benefits from third parties to whom qualifying assets have passed. Ohio Adm. Code 5101:1-38-10(E)(2)(a). Contrary to appellant’s assertions, the Department is not typically authorized to encumber assets during a Medicaid recipient’s lifetime. Absent certain exceptions, the state must wait until the recipient dies to file a lien against property in pursuit of Medicaid recovery. 5111.111(A).

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Next, appellants alternatively argued that, to the extent of Ohio’s recovery program authorizes the Department to encumber the property by filing a lien, the laws prescribing such action effect a taking of their property requiring just compensation. In its ruling in favor of the Department, the trial court found that “a Medicaid recipient’s life estate interest in real property is separate and independent from the interest of the remaindermen in the property.” We agree. The Department is not attempting to recover against the remainder interest held by appellants. Rather, the Department seeks to recover against the decedent’s estate in general. The amount that is subject to recovery is limited to the value of the decedent’s life estate, further preserving the notion that the interest is distinct from appellants’ remainder interests. In the absence of a probate estate, the Department may recover against individuals to whom a deceased Medicaid recipient’s assets have passed. Otherwise, the state would be prevented from recovering against the value of a Medicaid recipient’s life estate following the recipient’s death. Such an interpretation would negate the broadened definition of a recoverable “estate” imposed by the 2005 amendments to the statutory scheme. Finally, the Department protested that appellants’ reply brief raises a novel issue regarding whether the application of the 2005 amendments to encumber pre-existing property interests violates constitutional prohibitions against retroactive laws. After thoroughly reviewing the record, the Court concluded it could find no assertion of this argument prior to the oblique reference in appellants’ reply brief. Therefore, any new arguments raised in appellants’ reply brief were deemed waived and are not subject to review. The Court of Appeals therefore found that the Department satisfied its burden on summary judgment. As stated, the facts are undisputed. Regarding the law, life estates are now vulnerable to Medicaid estate recovery in Ohio by operation of unambiguous statutory amendment. Furthermore, the Department’s lien against the subject property did not amount to a taking in violation of constitutional prohibitions. Accordingly, the trial court did not err in awarding summary judgment to the Department and appellants’ sole assignment of error was overruled and the Judgment of the trial court was affirmed.

MISCELLANEOUS TOPIC:

Asset transfers allowed during Medicaid application process, but only with certain limits.

TITLE:

Estate of Atkinson v. Ohio Department of Job & Family Services, 2015Ohio-3397.

In 2000, the Atkinsons placed their home in a revocable trust and named themselves as trustees. Mrs. Atkinson moved into a long-term care facility on April 25, 93

2011, and Medicaid took a “snapshot” of their financial assets that day as required in federal and state law. The Atkinsons’ house was counted as an asset for Medicaid determination because it was in the trust, not in either of their names. The house’s value of $53,750 was incorporated into their total asset calculation of $98,320. The CSRA for Mr. Atkinson was determined to be $49,160, half of the total assets. He was not required to use those assets for his wife’s care, but instead could keep the amount to cover his needs. In June 2011, the couple applied for Medicaid to assist with Mrs. Atkinson’s care. On August 8, they transferred the house to Mrs. Atkinson, and the next day, she transferred it to her husband. The Knox County Department of Job and Family Services approved the Medicaid application in September 2011 with a CSRA for Mr. Atkinson of $49,160. But the agency delayed the benefits until the following April, concluding that transferring the house to Mr. Atkinson in August was improper because the house’s $53,750 value was greater than his CRSA. The agency calculated a penalty based on a federal Medicaid provision, which essentially treated the $53,750 as money for Mrs. Atkinson’s care and delayed providing Medicaid benefits until that amount would have been spent for the nursing home costs. The Atkinsons appealed to the Ohio Department of Job and Family Services, but the state agency agreed with the county’s determination. After Mrs. Atkinson’s death, her estate appealed to the Knox County Common Pleas Court, which ruled in favor of the state and county agencies. On appeal, the Fifth District Court of Appeals affirmed the common pleas court’s decision. On appeal the Ohio Supreme Court ruled that Federal and state Medicaid law allows an institutionalized spouse to transfer a home or other assets to the spouse not in an institution, but only up to a specific amount, called the community spouse resource allowance (CSRA). This type of transfer is permitted between the time of applying for Medicaid and notification of approval, Justice Kennedy wrote in the court’s majority opinion. But any asset amount above the CSRA received by the community spouse must be available to the institutionalized spouse to use for his or her care, the court explained in the 4-3 ruling. The court noted, however, that the penalties calculated by the state against Marcella and Raymond Atkinson were based on the wrong provision in federal law. The court returned the case to the trial court in Knox County to apply a different federal provision and to adjust the penalty if needed.

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The court noted that specific provisions in federal Medicaid law govern how the transfer of assets can affect Medicaid eligibility and set penalties for improper transfers, including the penalty assessed to the Atkinsons. In 1988, the MCCA added a section stating that “[a]n institutionalized spouse may … transfer an amount equal to the community spouse resource allowance …, but only to the extent that the resources of the institutionalized spouse are transferred to (or for the sole benefit of) the community spouse: and that the transfer must take place “as soon as practicable after the date of the initial determination of eligibility.” The MCAA also included a clause declaring that its provisions superseded any other inconsistent section in the law. Because of this supersession clause, Justice Kennedy reasoned that the earlier provisions discussing asset transfers and penalties do not apply to this case. Only the newer MCCA provisions are relevant to the spousal transfer of assets, she explained. “[W]e conclude that transfers between spouses are not unlimited after the snapshot date and before Medicaid eligibility,” she wrote. “Those transfers are proper only up to the amount that fully funds the CSRA.” “One clarification is needed,” she noted. “While the language of the [MCCA] statute appears to allow the institutional spouse to transfer the entire amount of the CSRA to the community spouse regardless of the assets the community spouse already holds, the statute in fact simply authorizes the institutionalized spouse to bring the community spouse’s assets up the CSRA level.” This interpretation is supported by the U.S. Supreme Court’s decision in Wisconsin Department of Health & Family Services v. Blumer (2002), Justice Kennedy explained. She added that the Atkinsons’ transfer also was improper under Ohio’s regulations, because any transfers greater than the CSRA are only allowed by state law after a hearing, and the couple did not request a hearing. Justice Kennedy pointed out, however, that the state imposed a penalty against the Atkinsons by delaying Mrs. Aktkinson’s benefits based on the full value of the couple’s home, even though Mr. Atkinson was allowed a CSRA of $49,160. “Neither federal nor state law supports the agency’s confiscation, after the CSRA has been set, of the entire amount of transferred assets, some or all of which may have already been allocated to the community spouse as of the snapshot date,” she concluded. The majority opinion was joined by Justices Pfeifer, O’Donnell, and French. Justice O’Neill dissented in an opinion joined by Chief Justice O’Connor and Justice Lanzinger.

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Justice O’Neill countered that the 1988 MCCA provision addresses only transfers made after Medicaid’s initial decision about eligibility, while this case involves transferring a house before Medicaid was approved. From his perspective, the MCCA law does not supersede the other federal provision governing asset transfers before Medicaid approval because the two sections deal with different time periods and are not in conflict. “Under both federal and Ohio law, any transfer of the home from the institutionalized spouse to the community spouse before Medicaid eligibility is determined does not affect the eligibility of the donor spouse, provided that the transfer is for the sole benefit of the receiving spouse,” he wrote. In addition, he noted that the house is “explicitly excluded” under federal law when determining the CSRA. The state agency should never have included the home’s value when calculating the CSRA, he reasoned. He further pointed out that the Ohio Department of Job and Family Services has repealed several rules applied in this case after a 2014 ruling in federal district court. Justice O’Neill found it troubling that the Supreme Court has ordered the trial court to apply a rule in this case that no longer exists. “I would hold that the transfer of a home between spouses that is not an improper transfer at any time prior to the granting of Medicaid eligibility, Period,” he wrote. “First, it is critical to note that there is explicit language in federal law and the Ohio Administrative Code permitting transfer of the home between spouses. Second, the house in not a countable resource for purposes of computing the community-spouse resource allowance …. And third, the revocable-trust language in the federal CSRA law excludes the transfer of the home from the definition of improper transfer. It is that simple. What this family did is and was permitted by state and federal law.”

TOPIC:

Broker appointed Ancillary trustee pursuant to R.C. 4735.05(C)(3).

TITLE:

In the Matter of the Appointment of Ancillary Trustee for Deceased Real Estate Broker Nicholas Batt, In the Court of Common Pleas of Lucas County, Probate Division, Case No. 2015 MSC 1536.

The Superintendent of the Division of Real Estate and Professional Licensing, Ohio Department of Commerce filed a recommendation for appointing Joshua Bowen as Ancillary Trustee for the deceased real estate broker, Nicholas Batt. The deceased broker operated a real estate brokerage in Lucas County, Ohio. An Ancillary Trustee Appointment application and an Amended Ancillary Trustee Appointment application were filed by Joshua Bowen. Pursuant to R.C. 4735.058 (C)(3), the Court found the Application of Joshua Bowen and the recommendation of Anne M. Petit, Superintendent of the Department of

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Commerce Division of Real Estate and Professional Leasing, well taken and ordered that Joshua Bowen be appointed Ancillary Trustee for Nicholas Batt, and ordered Bowen to comply with all the duties of an Ancillary Trustee for a deceased real estate broker as set forth in the Application and as otherwise lawfully ordered by the Superintendent. The file was closed and the case terminated subject to reopening upon further motion of the Superintendent or the Ancillary Trustee.

TOPIC:

In action by skilled nursing facility against daughter of resident for fraudulent transfer and tortious interference with contract, it was not error to grant summary judgment to facility since no factual issue that daughter withdrew funds from father’s account remained, resulting in his inability to make contract payments to facility.

TITLE:

Traditions at Stygler Rd., Inc. v. Vargas-Smith, 2015-Ohio-4684.

Appellant’s father, John Turner, resided at Appellee nursing facility beginning November 9, 2013. On May 1, 2014, Appellee filed a breach of contract action against Turner, alleging that he had not been complying with his agreement to pay Appellee for services and supplies it provided him. On July 23, 2014, Appellee amended its complaint to include a claim against Appellant herself for fraudulent transfer and tortious interference with a contract, alleging that she withdrew funds from her father’s bank account so as to render him unable to pay Appellee. The Franklin County Court of Common Pleas, on December 10, 2014, struck Appellant’s substantively inadequate filings in response from the record. The trial court granted Appellee’s motion for summary judgment on January 27, 2015. While Appellant did appeal the decision, she did not make any actual assignments of error. While recognizing that Appellant’s appeal, bereft of any assignments of error, did not satisfy the substantive requirements under App. R. 16(a)(3), and while recognizing the discretion to dismiss these inadequate appeals, the Tenth Appellate District elected to review the arguments Appellant raised. The Court rejected Appellant’s contention that she herself did not sign a contract with Appellee, as the contract as issue was between Appellant’s father and Appellee; the absence of the hypothetical former contract is this not an issue of material fact, nor was it relevant for establishing the satisfaction of the elements of fraudulent transfer under R.C. 1336.04(A)(2)(b) or tortious interference with a contract set forth by the Supreme Court of Ohio in Fred Siegel Co., LPA v. Arter and Hadden, 85 Ohio St. 3d 171 (1999). The Tenth Appellate District also rejected Appellant’s second contention that she did not sign the admissions agreement, as she did not provide any evidentiary support. As

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there was no genuine issue of material fact, the trial court did not err in granting summary judgment to Appellee. Consequently, the judgment of the trial court was affirmed in its entirety.

TOPIC:

In action by new members of limited liability company to declare that husband of decedent/former sole member of limited-liability company had no membership interest because he violated operating agreement by vacating premises, it was error to grant summary judgment to husband where a fact issue remained whether his membership had vested.

TITLE:

Hackenberg v. Zeller, 2015-Ohio-3813.

Decedent Deanna Zeller (“Deanna”) died on April 10, 2013. Nine years earlier, on January 16, 2004, she created Deanna’s Properties LLC (“the Company”). On January 18th, 2004, she and William Zeller married, and on the 21st of that year, they transferred a campground, common areas, a duplex, and their personal residential cabin, to the Company. They relocated to a new home in 2009—a property not itself deeded to the Company—in which William continues to live. Deanna had executed an operating agreement at the time of the creation of the Company which provided for William’s right to occupy the property and conditions under which that right would either be inapplicable or subject to termination. Between June 20, 2014 and December 29, 2014, a lengthy series of motions and memoranda pertaining to a complaint for declaratory judgment, filed by the Appellant in the Court of Common Pleas for Logan County, were filed. The basis of Appellant’s complaint was that William Zeller had vacated the property and, consequently, no longer had an interest in it. The trial court, on January 7, 2015, granted Zeller’s motion for summary judgment filed on December 15, 2014, holding that, in this particular instance, the operating agreement did not function as a trust that would shield assets from the claims of a spouse. From this judgment, the Appellants asserted two assignments of error. Stated generally, they are that (1) the trial court erred in granting defendant’s motion for summary judgment; therefore, the trial court’s decision should be reversed, and (2) the trial court erred in denying plaintiff’s motion for summary judgment; therefore, the trial court’s decision should be reversed. The Third Appellate District (“the Court”) held that the trial court did err in granting William Zeller’s motion for summary judgment. The Court held that, contrary to the determination of the trial court, the operating agreement did not function as some fashion of testamentary document—whether a trust or otherwise—and that, conversely, it is a legitimate operating agreement as that entity is defined in R.C. 1705.01(J). Additionally, and more substantively, the Court held that it was error to grant William

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Zeller’s motion in that at least “one possible reading of the operating agreement . . . suggests Zeller’s membership interest never vested.” This relates to the paragraph that provides that the interest would either be inapplicable or be subject to termination if he “should ever vacate the premises[.]” However, the Court observed that other language in the document suggests marital separation might have been the only ground for the interest’s termination. Thus, the Court reasoned that the “seemingly mutual marital decision” to move to a new house, which technically entailed Zeller’s departure from the premises, would not run afoul of the provisions of the operating agreement. The Court furthermore deemed summary judgment for Zeller to be inappropriate in that Deanna’s overall intent as to the provisions for the disposition or use of property under the operating agreement was unclear. The alternative house to which they relocated would be bequeathed to Zeller, thus obviating the need under the operating agreement to provide for Zeller’s use of the initially deeded property. The Court accordingly sustained the first assignment of error. As to the second, which was Appellants’ contention that the trial court erred in denying their own motion for summary judgment, the Court disagreed. The Court did so insofar as the difficulty in understanding or ascertaining Deanna’s intent in drafting the operating agreement creates a “genuine issue of material fact” which, in accordance with the summary judgment standard, must be viewed more favorably to William Zeller as the non-moving party for that particular motion. Appellants, accordingly, were not entitled to judgment as a matter of law. The Court overruled the second assignment of error. Ultimately, the Court affirmed in part, reversed in part, and remanded for further proceedings.

TOPIC:

After decedent’s brothers’ quiet title action resulted in judgment for estate, trial court did not err in ruling that the brothers owed rent for their use of the property, and rent claim did not need to be asserted as a compulsory counterclaim in quiet title action since rent claim did not exist when original action was filed and did not arise from same transaction or occurrence as request to quiet title.

TITLE:

Wilburn v Cartwright, 2015-Ohio-4233.

This case involves the facts of a previous matter, recounted by the Twelfth Appellate District as appropriate and relevant. After the death of their father, Jack, Loren, and Lloyd Cartwright, each received a one-third interest in the assets of the partnership established with their father in the early 1960s. The assets included a farm in Union Township, Ohio, which Jack and Loren, in exchange for a $75,000 judgment lien, deeded to Lloyd.

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In 2000, despite never actually funding it, Lloyd created, and subsequently revoked, a trust. Prior to the revocation of the trust, it was used to facilitate the execution of a quitclaim deed to convey title to the farm to Jack and Loren. However, when Lloyd’s two daughters were granted his estate upon his death in 2008, they filed exceptions with the court due to the absence of the farm from the inventory of the estate. They claimed that the deed to Jack and Loren that he earlier filed was ineffective because he did not hold title as a trustee, and that he was both of unsound mind and under undue influence at the time he executed the deed. Jack and Loren conversely argued that Lloyd clearly intended to convey the farm to them, notwithstanding the invalidity of his previous designation as a “grantor-trustee.” The trial court held that the deed to convey the land to Jack and Loren never held in trust was void, and also declined to reform the deed, thereby quieting title in the estate’s favor. The Twelfth Appellate District affirmed. Subsequently, Wilbur, executor of Lloyd’s estate, filed suit to sell the farm to pay estate debts, and also, on the ground that Jack and Loren allegedly used buildings on the farmland for business purposes and storage, and rented approximately 18 acres of farmland to other farmers, moved to collect rents due by them to the estate. The Fayette County Probate Court approved the sale, and ordered Jack and Loren to pay, in total, $86,550 to the estate. Jack and Loren asserted two assignments of error. 1) The trial court committed reversible error by awarding judgment in favor of plaintiff for damages. 2) The trial court committed reversible error by failing to properly weigh/apply te[s]timony and facts established at trial with regard to the rental value of the subject property. The Twelfth Appellate District held that the brothers’ argument as to the procedural and substantive insufficiency of the estate’s claim of unjust enrichment was without merit, and the claim for it was, in fact, properly pled. The Court held that the requirements set forth in Civ. R. 8(a) were satisfied, largely in that it was obvious that the brothers were “completely aware that the estate was pursuing an equitable claim of unjust enrichment.” As to the brother’s second contention that the estate should have, and failed to, raise the claim for recovery of rents as a compulsory counterclaim, the Court held this claim invalid. It held that the rental issue satisfied neither of the two prongs of the test for determining the existence of a compulsory counterclaim set forth by the Supreme Court of Ohio in Geauga Truck and Implement Co. v. Juskiewicz, 9 Ohio St. 3d 12, 14 (1984). More particularly, it held that, first, the rental claim “did not exist at the time the brothers initiated the quiet title action,” and, second, the rental claim did not “arise out of the same transaction or occurrence,” required under Civ. R. 13(a), in that the determination of rightful ownership of the farmland was antecedent to the ability for rental payments to be properly recovered.

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The brothers also contended that the trial court erred in its determination that they had been unjustly enriched and requiring them to restore rents to the estate. The Court identified various amenities of the farmland that the brothers had used, and the manner(s) in which they had used them. It consequently held that a benefit had been conferred upon the brothers, and one which, furthermore, they were knowledgeable about. Additionally, their claim to not knowing they were not the true owners of the land was rejected. Finally, the Court observed that the record demonstrated how the brothers retained the benefit and that not to deliver payment for that benefit would be inappropriate. In light of the preceding three issues, which constitute the definition of unjust enrichment, and in light of the satisfaction of all three by the brothers’ conduct in this case, the Court overruled the brothers’ first and second assignments of error, and, consequently, affirmed the judgment of the Probate Court in its entirety.

TOPIC:

Summary Judgment on civil action claims for intentional interference with expectancy interest, civil conspiracy, and abuse of process upheld in absence of genuine issues of material facts.

TITLE:

McWreath v. Cortland Bank, 2015-Ohio-5457.

“The subject matter of the action concerns whether appellees engaged in acts that wrongfully required appellant to defend himself in separate legal proceedings before the Trumbull County Probate Court.” Appellant McWreath was caretaker and sole named beneficiary of his late neighbor, Mr. Kopervac. He eventually inherited pursuant to decedent’s will over a million dollars, most of which was kept at appellee Cortland Bank. Additional appellees were Trumbull County Probate Court Investigator Rish and Cortland Bank VicePresident Commons. Appellant asserted nine causes of action against all three appellees, including the three noted above. The others were for negligence, defamation, intentional interference with contract, fraud, breach of contract, and breach of obligation of good faith and fair dealing. All nine were dismissed as to Investigator Rish and six were dismissed against the bank and it’s vice-president by the trial court in 2009. An earlier appeal resulted in remand of the expectancy, conspiracy and abuse of process issues as to all three defendants. Upon remand and further discovery, the trial court dismissed all three claims against all three defendants by granting appellees’ motions for summary judgment. Appellant and other members of his family had helped decedent with his groceries, house cleaning and bill paying for over twenty years, as decedent had no living relatives when he died in 2008. In 1997, decedent named appellant sole beneficiary in a new will. In 2007, appellant and Mr. Kopervac had gone to Cortland Bank to do business and ran into some delays when it was discovered that Mr. Kopervac appeared without identification. VP Commons ultimately approved a $12,000.00 withdrawal and suggested use of a power of attorney to process transactions more smoothly. A week later

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the bank rejected the first power of attorney presented due to witness issues, but VP Commons let appellant know the second one presented would be acceptable, and it was soon put to use. In 2008, appellant was under the belief that his access to Mr. Kopervac’s funds continued to be obstructed by Cortland Bank and VP Commons, and considered transferring the funds to another institution. About the same time, appellant reported a break in at Mr. Kopervac’s home. The investigation by police determined the theft of two firearms, various checks, and $10,000.00 in cash had occurred. The police chief expressed concerns to the probate judge regarding Mr. Kopervac’s ability to care for himself and Investigator Rish was sent to further investigate. VP Commons also called the probate judge with similar concerns. GAPS, or Guardian and Protective Services, a private firm, filed for guardianship of Mr. Kopervac’s person and estate a month after the burglary, and the probate judge ordered further investigation by Investigator Rush. The probate court rejected Rish’s subsequent report due to acknowledged errors, such as in findings that Mr. Kopervac had no will and that a local attorney held the power of attorney for Mr. Kopervac. Also, it included a finding that appellant had withdrawn $250,000.00 from Cortland Bank. Meanwhile, GAPS conducted its own investigation and found appellant’s behavior toward Mr. Kopervac totally proper. Mr. Kopervac died prior to an appointment being made. An attorney filed to open the estate as special administrator three days after his death, and moved for a special investigator to determine whether appellant had exploited his neighbor. A different investigator was appointed by the probate court. Eventually, no further findings or allegations of misconduct were brought forth, and appellant moved to admit the will and administer the estate. He was appointed and inherited the estate, but estimated he had spent about $20,000.00 in estate funds simply to defend himself from the inferences of misconduct raised in the investigation and an earlier comment he had made and soon retracted to VP Commons that he was Mr. Kopervac’s grandson. Appellant claimed Investigator Rish and VP Commons had met and agreed that he was using influence over Mr. Kopervac’s to extort funds. Further he believed the two conspired to try to stop him from transferring the funds of Mr. Kopervac to another bank. He even submitted an affidavit from his mother regarding comments made in their presence by Investigator Rish in support of these allegations. The trial court however, concluded that there was a lack of evidence of conspiracy in light of the deposition of appellant expressly admitting that the original impetus for any investigation was the call from the township police chief to the probate judge. “Instead of weighing conflicting evidence, the trial court held that appellant’s materials could not be considered at all because they were in conflict with his own prior statement.”

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The trial court further determined that the interference with an expectancy claim and abuse of process were also unsupported by any substantive evidence of collusion by appellees. The probate court was affirmed, with one Judge dissenting after a thorough review of immunity provided Investigator Rish and a determination that the evidence of any communication between Investigator Rish and VP Commons that the trial court did not consider may have alerted a juror to “find, at the very least, that Rish acted recklessly and, therefore, there is a triable issue regarding qualified immunity.”

TOPIC:

In action to determine heirs of intestate decedent resulting in settlement Agreement, it was not error to deny plaintiff’s motion for attorney fees where slight delay in distribution to him resulted from need to send agreement to other parties and from the need to address plaintiff’s child support arrearage.

TITLE:

Simmons v. Lee, 2016-Ohio-25.

Plaintiff-appellant, Anthony Simmons, appealed the judgment of the probate court that denied his motion for attorney fees to enforce a settlement reached in his petition to determine the heirs of the estate of Eddie Graves (decedent). The court found no abuse of discretion and affirmed the denial of Simmons’s motion for attorney fees. Decedent died intestate on October 23, 2012. On April 8, 2013, Marilyn Lee and Roberta Lee filed a declaratory judgment action to determine whether they were beneficiaries of decedent’s estate. Also on this date, Simmons filed a petition to determine decedent’s heirs, alleging that he is the “lawful, sole heir of the decedent.” Simmons’s action, Lee’s action, and the estate proceedings were all consolidated by the probate court. In September 2014, Lee dismissed her declaratory judgment action and on October 15, 2014, Simmons entered into a settlement agreement with the administrator, Whitmore, and the decedent’s next of kin in the estate proceedings. A settlement agreement was drafted, stating that Simmons was to receive $70,000 and further provided that “within 7 days of execution of this Agreement, Plaintiff shall prepare and file a Joint Notice of Dismissal of the Lawsuit with Prejudice, with costs to be borne by the Estate…” On October 24, 2014, Simmons filed a motion to enforce the settlement proceeding, maintaining that Administrator Whitmore had refused to sign the agreement, and he demanded attorney fees. By October 31, 2014, all of the heirs had signed the settlement agreement, but Simmons had not signed the document. Additionally on October 31, 2014, the Cuyahoga County Jobs and Family Services (CCJFS) filed a motion to intervene in the estate proceedings and filed a motion for a temporary restraining order to block Simmons’s receipt of the estate funds pending his payment of a child support arrearage of $13,497. On November 4, 2014, Simmons

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finally signed the estate agreement through counsel and received his portion of decedent’s estate, while CCJFS entered into an agreed judgment entry with Simmons and Administrator Whitmore. Under the terms of this entry, CCJFS retained $13,497 of Simmons’s proceeds from the estate. The following day, Simmons filed a supplemental motion to enforce the supplemental agreement demanding attorney fees, then totaling $1,750. The motion for attorney fees was heard before a magistrate on April 6, 2015. The magistrate wrote, “… A two-week delay while circulating the settlement agreement to five additional parties, one of which resides in California, is not unreasonable or cause for attorney fee sanctions. The original settlement agreement did not specify a distribution deadline…” Simmons filed objections to the magistrate’s decision and on May 12, 2015, the trial court overruled Simmons’s objections and adopted the magistrate’s decision. In this matter on appeal, although the basis for Simmons’s motion for attorney fees is Simmons’s “untimely” receipt of his settlement proceedings from the estate, the record indicates that only 19 days elapsed from the October 15, 2014 until his November 5, 2014 receipt of funds. At the end of this short review, CCJFS apprised the probate court that Simmons had a child support arrearage and sought to intervene in the action. The court immediately permitted CCJFS to intervene on October 31, 2014. Simmons’s dispute with CCJFS was settled on November 4, 2014. Also on this date, Simmons was the last heir to sign the settlement agreement; he then received his settlement funds. Therefore, the trial court acted within its discretion in denying Simmons’s motion for attorney fees. There is no evidence of bad faith action by Administrator Whitmore and further, the delay in obtaining the proceeds was nonexistent because of the prompt review of other beneficiaries, followed by CCJFS efforts to satisfy Simmons’s child support arrearage. Thus, the judgment of the trial court was affirmed.

TOPIC:

Writ of Mandamus to inspect records of Children’s Services Agency denied.

TITLE:

State ex rel. Clough v. Franklin County Children Servs., 2015-Ohio-3425.

Relator made a request of Franklin County Children Services (FCCS) to inspect records concerning her minor daughter. FCCS denied the request for lack of good cause. Relator filed this complaint seeking a writ of mandamus to compel FCCS to allow her access to the files. The Supreme Court appointed a special master to review the file. The special master reported that the requested documents were the records of an investigation of a report of possible child abuse. The Supreme Court denied the writ, holding (1) the requested records are deemed confidential by statute; and (2) to the extent that certain ages might not be records of the child abuse investigation, they may be inspected only for good cause, and Relator has failed to show good cause for overriding confidentiality.

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TOPIC:

Marriage not void based on the fact that Plaintiff was under the influence of a controlled substance at the time of the issuance of the license.

TITLE:

Shinaver v. Shinaver, Case No. 2014-ADV-0449, In the Common Pleas Court of Lucas County, Ohio, Probate Division.

This matter came before the court, Judge Puffenberger, pursuant to a Motion to Dismiss Plaintiffs’ Claims Contesting Validity of Marriage and Marriage License filed March 31, 2015 by Attorneys on behalf of defendant Cheryl A. Shinaver. This motion sought the dismissal of counts one, two, three and four of plaintiffs’ amended complaint. The counts which were the subject of the motion all relate to the marriage between the decedent Donald J. Shinaver and the defendant, Cheryl A. (Miner) Shinaver, which occurred on October 10, 2013. The plaintiffs, decedent’s four children from a previous marriage, sought to invalidate the marriage license pursuant to Ohio Revised Code 3101.06 because the decedent was under the influence of a controlled substance at the time the marriage license was issued. The defendant urged the court to dismiss the subject counts because the plaintiffs lack standing to attach either the marriage or the marriage license. Ohio currently has no case law invalidating a marriage based on a license being issued to a person under the influence of a controlled substance in violation of Ohio Revised Code Section 3101.06. However, case law has distinguished between void and voidable marriages. (see Darling v. Darling, 44 Ohio App. 2d 5, 7 (1975), In re Marriage License for Nash, 2003-Ohio-7221, In re Estate of Stiles, 59 Ohio St. 2d 73, 75 (1979), Johnson v. Wolford, 157 N.E. 385 (Ohio, 1927), Dodrill v. Dodrill, 2004-Ohio-2225, In re Ababseh, 1996 Ohio App. LEXIS 980, *5 (Ohio Ct. App., 1996) and Cecchini v. Cecchini, 2010-Ohio-553.) Generally speaking, prior to 2015, there were only three expressed instances where marriages had been found void as against public policy. These three instances were same sex marriage, incestuous marriage, and marriage to a second spouse while still married to the first spouse. Since these types of marriage were deemed to be against the public policy of the State of Ohio they were declared void. Judge Puffenberger noted that voidable marriages are marriages that are valid when entered and remain valid until either party received a lawful court order dissolving the marriage. Instances wherein marriages have been deemed to be voidable include a situation wherein the person solemnizing the marriage did not have the proper license or authority to solemnize the marriage. While a marriage in this situation may be defective, it is merely voidable but not void so long as it is not incestuous, polygamous, or shocking to good morals. Since the marriage between Donald J. Shinaver and Cheryl A. Shinaver was neither incestuous, polygamous, or against the announced public policy of Ohio, the fact

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that Mr. Shinaver was under the influence of a controlled substance at the time of the issuance of the license, does not make the marriage void. Rather, the court held that this marriage was merely voidable by the parties and should be upheld pursuant to Ohio’s Policy of sustaining marriage. This court agreed that plaintiffs in this action lacked proper standing to attack a voidable marriage to which they were not a party. Accordingly, the motion to dismiss counts, one, two, three and four of the amended complaint was granted.

TOPIC:

Petition for writ of prohibition to prevent judge from enforcing orders for appropriation of money to be used for courthouse security is granted since the court lacks jurisdiction to enforce order where there is no lawsuit between the parties.

TITLE:

State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of Common Pleas, 2015-Ohio-3704.

A former administrative judge issued an order mandating that the board of commissioners of Lorain County appropriate an amount of money to the county sheriff to add security measures at the Lorain County Court of Common Pleas’ adult-probation department (APD) and presentence-investigation unit (PIU). The current administrative judge, Mark Betleski, then issued an order giving the commissioners the option to appropriate the money to the court, with the court then giving the money to the sheriff’s office for the same purpose. The commissioners filed this action for a writ of prohibition forbidding enforcement of the order. The Supreme Court granted the requested writ, holding that Judge Betleski and the Lorain County Court of Common Pleas lacked jurisdiction, in the absence of a case or controversy, to enforce entries that ordered the commissioners to appropriate money to the sheriff’s office for security at the APD and PIU facilities. The Court also rejected the administrative judge’s argument that he was not exercising judicial power, but acting in an administrative role. Had the administrative judge ordered the funds to be appropriated for the court to administer its own business, the Court ruled, then he might be able to claim he was not exercising judicial power. However, since the orders were for sending money to the sheriff, “the orders were attempts to resolve the informal dispute among the sheriff, the county commissioners, and the court” over the payments.

TOPIC:

Declaration that sons of decedent were entitled to proceeds of her federal life insurance policy was not error where decedent’s clearly expressed intent was reflected in a number of documents, including her email and typewritten messages.

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TITLE:

Hardcastle v. McLendon, 2016-Ohio-349.

Connie McLendon passed away on October 20, 2013 (hereinafter “the decedent”). She had three sons, Jason, James, and Justin Hardcastle, appellees herein. At the time of her death, the decedent was married to appellant, James McLendon, appellee’s stepfather. The decedent had worked for the United States Social Security Administration and was covered under a federal policy of life insurance through the Federal Employees’ Group Life Insurance Program (hereinafter “FEGLI”). The policy proceeds were $103,000. Appellant and appellees submitted claims for the proceeds. Appellees’ claim was rejected. On March 14, 2014, appellees filed a verified complaint, seeking a declaration as to who was entitled to receive the proceeds. They named appellant, The Office of Federal Employees’ Group Life Insurance, and MetLife as defendants. The funds were interpleaded and deposited with the court via notice filed November 19, 2014, and the latter two defendants were dismissed on March 18, 2015. Appellant and appellees filed motions for summary judgment. By order filed May 21, 2015, the trial court granted appellees’ motion and denied appellant’s, finding the decedent’s intention to designate appellees as the beneficiaries to the federal life insurance policy was clearly set forth in a number of documents; therefore, appellees were entitled to the proceeds. Appellant timely appealed. Upon review of the materials presented, the Court of Appeals for Muskingum County found the trial court did not err in finding the decedent clearly expressed her intent to designate appellees as the beneficiaries to her federal life insurance policy and in granting summary judgment accordingly. The decision of the trial court was therefore affirmed.

TOPIC:

In a pro se action, the trial court’s dismissal on its own motion was not error where court of appeals is unable to determine the name of plaintiff’s attempted action in the trial court or her challenge to the trial court’s dismissal.

TITLE:

Mickey v. No Named Defendants, 2015-Ohio-4013.

In 2014, Audrey Mickey, appellant, filed three sets of documents with the trial court. The first document was entitled “Relief”, while the second and third documents were both entitled “Judicial Notice Mandatory[.]” Appellant put her name and address in the captions of the filings together with “In Matter of the Private Home of Daniel Edward Private Party Deceased”. However, appellant failed to name defendants in any of the three filings. On July 14, 2015, the trial court issued an order stating that the appellant’s submitted filings should be struck in their entirety, pursuant to Ohio Civil Rule 12(F). The trial court held that appellant’s claims were insufficient to constitute Pleadings

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and/or a complaint under the Ohio Rules of Civil Procedure R. 7 because the court could not decipher the submitted items to do substantial justice. As a result, the trial court ordered the submitted filings to be struck and dismissed the matter. Appellant timely appealed from the trial court’s order. On appeal, the Ninth District Court of Appeals declined to address all of appellant’s assignments of error. The court recognized that appellant was a pro se litigant, but noted that “pro se litigants are presumed to have knowledge of the law and correct legal procedures”, so appellate courts “must hold [pro se appellants] to the same standard as any represented party. See State v. Taylor, 2014-Ohio-5738, ¶ 5, quoting Sherlock v. Myers, 2014-Ohio-5178, ¶ 3. The appellate court noted that it was unable to decipher the nature of appellant’s action in the trial court or her challenge to the trial court’s dismissal. Due to its undecipherable nature, the appellate court affirmed the trial court’s decision and dismissed appellant’s complaint.

TOPIC:

Petition for writ of mandamus to compel coroner to provide records of petitioner’s child’s autopsy is granted under R.C. 313.10(C)(1) since petitioner’s next of kin to decedent, petitioner is not seeking financial gain and he has no adequate remedy at law.

TITLE:

State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 2016-Ohio407.

Michael Clay seeks an order from this court that requires the Cuyahoga County Medical Examiner’s Office (“coroner”) to provide him with all x-rays, photographs, and written reports that were created during the autopsy of his daughter in Cuyahoga Coroner’s Case No. IN00260612 – Autopsy No. AU000082729. The coroner filed a motion for summary judgment, which the Court denied for the following reasons. The Court held that in order for the court to issue a writ of mandamus, Clay must established a clear legal right to the requested autopsy, a clear legal duty on the part of the coroner to provide the requested autopsy file, and the lack of an adequate remedy in the ordinary course of the law. Herein, Clay’s request for medical documents was premised upon R.C. 313.10. Ordinarily, many of the autopsy records maintained by the coroner are not considered “public records” and are exempted from release to the general public. Attached to Clay’s complaint for a writ of mandamus was a sworn affidavit and a birth certificate that establish that Clay was the biological father of the deceased child subject to an autopsy by the coroner. Thus, Clay has established that he possesses a clear and legal right to the complete autopsy file of the deceased child per R.C. 310.10(C)(1). Additionally, Clay possesses no other adequate remedy in the ordinary course of the law to obtain the autopsy records from the coroner.

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The Court indicated that it must determine whether the coroner possesses a legal duty to provide the complete autopsy file to Clay. The coroner, in attempt to establish that it possesses no duty to provide Clay with the complete autopsy file, argued that when R.C. 149.43 (Ohio Public Records Statute), R.C. 2105.19 (Ohio Slayer Statute), and R.C. 313.10 (Coroner Public Records Statute) are read in pari materia, it is clear that no duty exists to provide Clay with the complete autopsy file. The doctrine of law, that the body of laws governing the same subject must be read in pari materia, is not applicable to this original action, because only the body of laws governing the same subject must be read in pari materia. Therefore, it found that pursuant to R.C. 313.10(C)(1), the coroner possesses a clear legal duty to provide Clay with the complete autopsy file. Within a reasonable period of time, the coroner was ordered to provide Clay with the complete autopsy file created with regard to the death of his child. Costs were assessed to the coroner.

TOPIC:

Denial of application for relief from weapons disability after drug offense conviction was expunged was error where trial court’s basis that applicant was a “bad risk,” was not supported by the record where applicant has furthered his education, sent a son to college, and maintained gainful employment.

TITLE:

In re Childress, 2016-Ohio-814.

Plaintiff-appellant Roderick Childress appeals the trial court’s denial of his application for relief from weapons disability. We reverse. Childress presents a single assignment of error: the trial court erred and abused its discretion in denying Childress’s application for relief from disability under R.C. 2923.14. Childress was convicted of marijuana trafficking in 1987, a fourth-degree misdemeanor, with no firearm involved. His application of expungement of the case was granted in 2013 and in 2014, he filed an application for relief from disability so he would be eligible for a position as a hospital peace officer which required that he carry a weapon. Childress demonstrated that other than a traffic offense, he has had no criminal convictions and is raising two children, one of which is in college. Since the time of his conviction, Childress has received: (1) a Cuyahoga County achievement award for completing the early childhood education program in 2006, qualifying him to be a daycare administrator; (2) a certificate of completion for apprenticeship cook in 2002 sponsored by the state of Ohio; (3) an associate degree in applied science from Cuyahoga Community College in 1998; and (4) an associate degree in applied business from the same college in 1998. Most recently, Childress attended training seminars sponsored by Cuyahoga Community College Peace Officer Training Council to qualify. He completed the training up until the firearms portion, which is why he is before the court. While maintaining gainful employment since his conviction, the

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transfer to the officer of hospital peace officer would provide for a higher income and more accommodating hours. The state’s objection argued that the grant of Childress’s application “creates a bad risk.” The state does not describe what risk would be created nor did it address the fact that the single conviction had been expunged and what, if any, impact that may have on Childress’s application. Counsel for Childress stated that he was hardworking family man and wanted to improve his working options to be an example for his children. The expunging court also observed that Childress had been “sufficiently rehabilitated.” Other than the “bad risk” comment by the prosecutor, who also failed to explain the nature of the risk, the record is void of any evidence that Childress poses a risk. The record does support that, since 1987, Childress has engaged in furthering his education, sending a son to college, maintain gainful employment, and now seeks to continue his quest for improved circumstances and being a positive male role model to his children. Thus, the court adopts the analysis from State v. Dozanti providing, “Although R.C. 2923.14 provides that the trial court may grant the application for relief if the applicant meets all of the statutory criteria, the trial court abused its discretion in not granting appellant’s request for relief from disability in this case. There is nothing in the record before us which the trial court could base its decision other than an arbitrary determination that this particular applicant should not receive the requested relief. R.C. 2923.14 was enacted to provide a procedure whereby a person could secure partial relief from his disability based on his good behavior.” The court found that under the facts and record presented here the trial court abused its discretion in denying Childress’s application. Judgment reversed.

TOPIC:

Petition for writ of prohibition to prevent judge from proceeding with foreclosure case is dismissed where petitioner’s claim that the proper oaths of office do not exist, rendering void any orders by the court, is without merit where petitioner provides no authority for her claim, and also she had an adequate remedy at law by way of appeal.

TITLE:

State ex rel. Samara v. Suster, 2016-Ohio-818.

Robyn Samara petitioned the court for a peremptory and permanent writ of prohibition regarding the foreclosure action that was commenced in the Cuyahoga County Common Pleas Court. A final order was entered in that case in 2013, which was affirmed on appeal. Respondent Judge Ronald Suster moved to dismiss the petition for failure to state a claim. Samara opposed the motion arguing that the orders issued in that matter are void because “the officers involved in this case” allegedly “refused their offices” and lacked “standing in jurisdiction over the subject matter.” Respondent’s motion to dismiss was granted.

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The requirements for entitlement to a writ of prohibition are (1) the respondent against whom it us sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law and (3) there is no adequate remedy at law. Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. However, when a court is patently and unambiguously without jurisdiction to act whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a writ of prohibition. Absent such a patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction. A party challenging the court’s jurisdiction has an adequate remedy at law through an appeal from the court’s holding that it has jurisdiction. Samara contends that respondent lacked jurisdiction over the subject matter in her case because she believed that the proper oaths of office do not exist, thereby rendering the orders that were issued in this case void. Samara submitted no authority in support of her contention that the failure to produce oaths of office renders the orders issued in the foreclosure action void and subject to a writ of prohibition. It is well settled that a judgment is only void if the court lacks subject matter jurisdiction, however, a “lack of jurisdiction over a particular case merely renders the judgment voidable.” Even if Samara could establish an irregularity in respondent’s assignment or appointment that does not render his judicial actions in the foreclosure action void. Petitioner had not established the requirements necessary for issuance of a writ of prohibition. Respondent’s motion to dismiss was granted.

TOPIC:

Administrative judge has no jurisdiction to appoint magistrates in case from which judge has recused herself. Judge appointed to hear the case has authority to appoint magistrates under Civ. R. 53(A).

TITLE:

State ex rel Moir v. Kovack, Slip Opinion No. 2016-Ohio-158.

This case was an action for a writ of prohibition regarding an underlying divorce case in the Medina County Court of Common Pleas, Domestic Relations Division. The judge assigned to the case, respondent Mary R. Kovack, recused herself, and the chief justice of the Ohio Supreme Court assigned a visiting judge. Thereafter, acting in her capacity as the administrative judge of that court, Judge Kovack issued orders assigning magistrates to the visiting judge for the purpose of presiding over the divorce at issue. Relator, Gabriella Moir, brought this action against Judge Kovack and Judge Carol J. Dezso of the Summit County Domestic Relations Court, the assigned visiting judge, as well as the two courts and one of the assigned magistrates. She asserted that Judge Kovack and Judge Dezso lacked jurisdiction to assign magistrates and requested a writ of prohibition ordering them to cease assigning or referring anyone to hear the case except Judge Dezso herself.

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The Supreme Court granted a peremptory writ as to Judge Kovack only. Judge Kovack recused herself based on a potential conflict of interest. She was therefore without jurisdiction to assign magistrates in the case, even in her role as administrative judge of the court. However, the Court held that Judge Dezso as the appointed judge may assign magistrates to help her hear the case, and therefore it denied the writ as to her. The Supreme Court did not address the issue of whether any prior decisions or orders issued in this case by magistrates who were appointed by the administrative judge were void or voidable because appellant did not request the court to correct those past actions. The appellant requested only future relief from future assignments by anyone or to anyone other than the judge who recused herself.

TOPIC:

Attorney who pleaded guilty to mail fraud in cases involving fiduciaries sentenced to 22 months prison plus $807,984.27 restitution to victims.

TITLE:

United States of America v. Runser, Case Number 3:15 CR 395, United States District Court, Northern District of Ohio.

Charles Runser was an attorney licensed to practice law in Ohio until his voluntary resignation in November of 2014. He both practiced and had a business in Van Wert, Ohio. As part of his practice he did estate planning and served as trustee, executor and court-appointed guardian in a number of cases. Runser pleaded guilty to mail fraud related to the performance of his duties as an attorney and fiduciary and business owner; and specifically to a scheme involving obtaining money and property by false and fraudulent pretenses and representations. Runser was alleged and pleaded guilty to cause to be delivered by mail in Van Wert, Ohio to himself by a brokerage and investing firm a check in the amount of approximately $569,788.38. The sentence imposed included 22 months imprisonment, supervised release, a $100 fine and restitution in the amount of $807,984.27. The restitution was ordered to be paid into the estate of five different victims in amounts ranging from $15,783.17 to $471,350.00. A number of other specific special conditions and instruction were included in the Judgment and Order.

TOPIC:

Medicaid Specialist Admits to Unauthorized Practice of Law.

TITLE:

Toledo Bar Association v. Abreu, Slip Opinion No. 2016-Ohio-2972.

The Supreme Court unanimously found Raye-Lynn Abreu engaged in the unauthorized practice of law when operating under the trade names A.I.M.S. (All Inclusive Medicaid Specialists), Personalized Long Term Consulting & Medicaid Specialists, and Medicaid Solutions. The Court accepted a consent decree Abreu entered

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into with the Toledo Bar Association that was approved by the Court’s Board on the Unauthorized Practice of Law. In a per curiam decision, the Court explained that Abreu contracted with Susan Heasley for $7,975 and with Howard Williamson Jr. for $8,975, representing she would “create a strategy specific to your family’s needs,” and that “the strategy will define the exact amount of resources you will be able to retain and the date Medicaid eligibility will exist.” Williamson elected to terminate his contract with Abreu, and she returned his payment. The bar association brought a complaint against Abreu to the board. Abreu admitted to the board that when she marketed and represented to Heasley and Williamson that she was a Medicaid specialist who could create a strategy for the appropriate way to reduce resources to become Medicaid eligible, she was engaging in the unauthorized practice of law. In the board’s report to the Court, it noted that prior to starting A.I.M.S., Abreu worked for the Ohio Department of Job and Family Services for 12 years and at an Area Office on Aging where she helped clients with Medicaid applications. She began circulating brochures at Lucas County nursing homes offering estate planning. As part of the consent decree, Abreu agreed to immediately stop rendering advice or providing strategies to reduce resources to achieve Medicaid eligibility, including strategies for spending down and arranging assets and income to meet Medicaid requirements. She also agreed to stop marketing or advertising in any fashion that she will provide advice or strategy for spending down and arranging assets to become Medicaid eligible. She consented to pay Heasley $7,275 in restitution. The court did not to impose any civil penalties on Abreu but did assess $1,877.90 against her to pay the board’s costs for the matter.

TOPIC:

Summary judgment found appropriate in clear case of tortious interference of expectancy of inheritance.

TITLE:

Brown V. Ralston, 2016-Ohio-4916.

Decedent passed in 2013. In 2006, he had put his farm into a trust with himself as trustee and his daughter as sole beneficiary. In 2008 he had transferred the farm to himself and then executed a general warranty deed naming a grand-daughter as transferon-death (TOD) beneficiary. In 2009, he had signed an oil and gas lease on the farm property. A few months after this, he had named his daughter as his attorney in fact in a durable power of attorney (DPOA) and had executed a will, devising his farm machinery to his grand-daughter, and the residue of his property to his daughter. His daughter recorded the DPOA a few years later and used her powers to revoke the TOD and named herself as TOD beneficiary. She also transferred the farm back into

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the trust. The grand-daughter filed a complaint for intentional interference with an expectancy of inheritance in common pleas court more than six months after decedent passed. The appeals court affirmed the trial court’s judgment in granting summary judgment to the grand-daughter on her claim and denied her mother’s competing motion for summary judgment. The appeal contained five assignments of error. The first alleged that the grand-daughter had no present interest in the farm at the time that actions were taken. The Ohio Supreme Court in Firestone v. Galbreath, 67 Ohio St. 3d 87 has held that “any person who can prove the elements of intentional interference with expectancy of inheritance has the right to maintain that cause of action.” The elements of such an action are: 1. The plaintiff’s expectancy of an inheritance; 2. The defendant’s intentional interference with that expectancy of inheritance; 3. Conduct by the defendant involving the interference that is tortious in nature, such as fraud, duress or undue influence; 4. A reasonable certainty that the expectancy of inheritance would have been realized, but for the defendant’s interference; and 5. Damage resulting from the interference. “Clear from the claim itself, is that the inheritance is not a present interest in the property but only an expectancy.” Therefore, a present interest in the property is not required. Second, affidavits had been submitted by the daughter, but they were filed after hearing on summary judgment and after a date set out by the Court for “supplemental memoranda”. The appeals court determined that the trial court did not abuse its discretion by not considering the untimely affidavits. Third, letters from decedent to both daughter and grand-daughter regarding the farm and farm equipment were considered by the court. Although the lower court properly considered the letters relative to decedent’s present state of mind, any consideration of future intentions should not have been considered, but any such consideration in this case was harmless. Fourth, no genuine issue of material fact exists as to the expectancy of an inheritance in light of the TOD designation of the grand-daughter by decedent. Additionally, her mother did not deny interfering by making the changes. The interference was tortious in nature as decedent was no longer able due to his condition to participate in decision-making when the changes were made, and the transfer changed what he had intended. The daughter testified that while the changes were made to help pay for future anticipated care for her father, she also testified that she was not convinced that the changes would accomplish this goal of mortgaging the farm to help pay anticipated nursing care costs. But for her actions, the farm would have passed to her

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daughter on her father’s death. Finally, both parties admit the grand-daughter suffered loss due to the changes her mother made. Fifth, the mother’s attempt to use her own untimely filed affidavit to support her position contradicts testimony that she had provided in her deposition statements: “a party opposing summary judgment may not create a genuine issue of material fact” by filing an affidavit contradicting prior deposition testimony. The Court of Appeals for Belmont County therefore affirmed the judgment of the Belmont County Common Pleas Court.

TOPIC:

Judgment of juvenile court adopting and affirming magistrate’s decision recommending permanent custody affirmed.

TITLE:

In re D. B., 2016-Ohio-5558.

Magistrate decided it was in the best interests of two children, whose father was incarcerated and whose mother tested positive for unprescribed benzodiazepines, that permanent custody should be granted to the Brown County Department of Job and Family Services. That agency had earlier gotten temporary custody upon the mother’s stipulation that both her children were dependent. The juvenile court adopted and affirmed the magistrate’s decision, and the appeals court affirmed despite the mother’s assignments of error. First, the mother had argued that the notice set out in the magistrate’s decision regarding objections was in smaller print than the findings of fact and conclusions of law. The appeals court reviewed the record and Juv. R. 40(D) regarding prescribed language for objections to a decision and found that the different font did not make such language inconspicuous. Further, the font used was “not markedly different” from other language within the decision. Second, the mother requested the appeals court make an independent review of the record for any possible error. This assignment of error was stricken because she had raised the first assignment of error. The court could not consider this request because she had filed a “hybrid” brief pursuant to Anders v. California, 386 U.S 738(1967).

MORTGAGE TOPIC:

Pursuant to RC § 5302.20 (C)(2), a mortgage holder’s interest terminated on the mortgagor’s death because, in a survivorship tenancy, when one dies, the other is fully vested as sole title holder to the property. When the mortgagor died, the Court found that the mortgage interest was terminated and the surviving spouse took the real estate free of the mortgage.

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TITLE:

CitiMortgage, Inc., v. Brown, 2015-Ohio-5347.

Vernon and Theresa bought a home in 2000, as a joint tenancy with right of survivorship. Theresa was the only borrower on the note, the only mortgagor and only she signed the signature page. Vernon only signed for release of dower. CitiMortgage assumed the mortgage and allowed a loan modification in 2005. Though both spouses signed the new note, only Theresa was named the borrower. By 2012, CitiMortgage filed a foreclosure action against them in the Hamilton County General Division for failure to make payments but also sought a mortgage reformation, claiming it was an error that only Theresa was named the borrower. Otherwise, Vernon would be guilty of unjust enrichment. That same year, Theresa died. The magistrate found that Vernon took the real estate subject to the mortgage but that the mortgage only covered Theresa’s ½ interest in the property. Thus, even if CitiMortgage sold the property, it had to pay Vernon his half proceeds from the sale before the creditors. CitiMortgage filed proper objections under Ohio Civil Rule 53. The court however denied the objections and overruled the magistrate’s decision, finding that Theresa’s death extinguished the mortgage and that Vernon owned the property free of the mortgage. CitiMortgage appealed. On review, the First District Court of Appeals found that, pursuant to RC § 5302.20 (C)(2), CitiMortgage’s interest terminated on Theresa’s death because, in a survivorship tenancy, when one dies, the other is fully vested as sole title holder to the property. Theresa’s conveyance of the mortgage, under the above statute, did not sever the survivorship tenancy; rather, Citi Mortgage’s interest was contingent on Theresa being alive, because both she and Vernon would have had to sever the survivorship language to be merely tenants in common. When she died, the Court found that the mortgage interest was terminated and Vernon took the real estate free of the mortgage. The Court further found that, while the statute applied only to real estate, the principle of the holding applies to any joint tenancy with a right of survivorship in Ohio. It rejected the reasoning of the 12th District’s ruling in Fannie Mae v. Winding, 2014Ohio-1698. The Court used various cases and a review of tenancy common law to find that the 12th District’s assertion that the same statute did not apply because a mortgage is a security interest is contrary to the statute. The Court found that CitiMortgage was further not entitled to a mortgage reformation or an “equitable lien.” It found that Vernon’s signature was specifically for release of dower and nothing more. No evidence suggests he intended to sign a mortgage. The court found the original mortgage company to be inexcusably negligent by not getting a mortgage from Vernon; as the assignee, CitiMortgage stands in its predecessor’s shoes. There is no excusable neglect but inexcusable neglect on the part of CitiMortgage. Affirmed

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NAME CHANGE TOPIC:

Trial court orders transgender name change with notice given to county prosecutor, Ohio Attorney General, Ohio Bureau of Criminal Identification and Investigation, Allen County Clerk of Court, Ohio Bureau of Motor Vehicles and Ohio Department of Vital Records.

TITLE:

In the Matter of: The Name Change of Cameron James Briggs, The Common Pleas Court of Lucas County, Ohio, Probate Division, Case No. 2015 NCH 0363.

This matter came before the court pursuant to an Application for Change of name of Adult filed March 2, 2015 by Cameron James Briggs. On May 4, 2015 an objection to the application was filed by Juergen A. Waldick, a Prosecuting Attorney of Allen County, Ohio. Prosecutor Waldick objected to the change of name based upon applicant’s prior criminal convictions in Allen County, Ohio. Prosecutor Waldick argued against the granting of the name change because it would “distance him from the acts for which he had been convicted.” Further reasoning in the objection related to an inability of law enforcement to connect applicant to the prior record unless the applicant is subsequently re-arrested and fingerprinted. Applicant Brigg argued that there is reasonable and proper cause for the name change. In addition to the applicant, three character witnesses testified in support of the application. Evidence was established that the applicant has been a bona fide resident of Lucas County, Ohio for at least one year prior to the filing of the application and that notice of the application was published in a newspaper of general circulation in Lucas County at least thirty days prior to the hearing. The evidence further established that applicant had been convicted of grand theft (a felony of the fifth degree) and felonious assault (a felony of the second degree). Applicant still owes restitution in the grand theft case and court costs in the felonious assault case. The applicant testified that he had become transsexual since being released from prison and the granting of the name change is necessary for both he and the general public to relate to his current sexual identity. Applicant denies any attempt to conceal his criminal past through a change of name. He further testified that, due to his incarceration and discriminatory hiring practices against transsexuals, he has been unable to pay restitution and court costs owed. Applicant testified that he is seeking a payment plan through Allen County Clerk of Court and will resolve the past due restitution and courts costs as his financial condition improves. While all three character witnesses have known the applicant for a relatively short period of time, they all testified that he has been forthcoming with his criminal past and that they are impressed with his personal character and work ethic.

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Prosecutor Waldick emphasized the brutality involved in the felonious assault conviction and argued that public safety would be compromised if this convicted felon were permitted to change his name. He further argued that a name change in this situation is against the strong public policy of Ohio. Ohio Revised Code Section 2717.01 governs name changes in Ohio. This statute was recently amended to require a denial of a name change application if the applicant has been convicted of a sexually oriented offense and has a duty to comply with section 2950.04 or 2950.041. Additionally, an application is to be denied if the applicant has been convicted of a child-victim related offense or section 2013.49 relating to identity theft. Applicant certified in the application, and no allegation has been made, that the applicant has been convicted of any “automatically disqualifying” offenses. With regard to reasonable and proper cause for the name change, the Ohio “Supreme Court has previously ruled in the case of In re Maloney (2001), 96 Ohio 3d 307 that a transsexual male is permitted to change his name from Richard to Susan as part of his sex reassignment therapy. In the instant case, applicant has provided reasonable and proper cause for the name change. Judge Puffenberger noted that the objections to this name change are serious and substantial. He indicated that while this court is fully cognizant of the duty to protect the public from violent felons, it cannot be reasonably deducted that the general public will be better protected by the denial of this name change. The individual will be interacting with the general public every day regardless of his name. Furthermore, although recently modified to prohibit individuals with certain offenses from obtaining name changes, the legislature did not choose to amend RC 2717.01 to include all violent felonies as “automatic disqualifiers”. A further concern of the objector was the perceived inability of various agencies to share name change information so that accurate criminal background data is readily available to law enforcement and others with a right to obtain such information. Currently, under Ohio law (RC 3705.13) a certified copy of an entry ordering change of name is sent to the Vital Statistics Office of the state of birth. In this regard, it must be noted that it is discretionary with the court whether it will require applicant to perform this function or if the court will do so, because the statute does not specify. This court is of the opinion that this issue can be addressed in this matter by court order, although a legislative review of this issue certainly seems prudent. Accordingly, the court approved the Application for Change of Name of Adult filed March 2, 2015 and ordered the name of Cameron James Briggs to be changed to Lilian Ann Briggs. Furthermore, a certified copy of the order granting name change as well as a copy of the Judgment Entry was ordered to be served by the clerk upon: the County Prosecutor, Ohio Attorney General, Ohio Bureau of Criminal Identification and Investigation, Allen County Clerk of Court, Ohio Bureau of Motor Vehicles and Ohio Department of Vital Records.

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TOPIC:

Pursuant to RC § 3705.09 (F) (2), an unmarried mother had sole discretion to determine the surname of a minor, which can be changed by a court, however, when a man is seeking to establish a parent-child relationship, and the change of name is in the child’s best interests under RC § 3111.13 (C). In Wilhite (1999), the Supreme Court gave a “best interests” standard, but also expressed a preference for a hyphenated name for a child of divorced or unmarried parents who is not old enough to have established either surname as part of his or her identity.

TITLE:

Bond v. Rinaldis, 2016-Ohio-3342.

Andrew was born in 2012. His parents were engaged but never married, and the relationship failed. Andrew’s mother gave the child her surname without consulting the father. The father filed in the Franklin County Juvenile Court for genetic testing for a parent-child relationship, establishing child support, and to change Andrew’s surname to include his last name. The man was determined to be the father, a parent-child relationship was established, a shared parenting/custody plan was created, and, after hearing, the magistrate (and ultimately the trial court) found that a hyphenated name was in the child’s best interests. The mother appealed all issues. The focus in this case summary is solely on the name change issue. The 10th District Court of Appeals reviewed the matter. On the issue of name change, the Court reviewed both Appellate and Ohio Supreme Court cases. The Court noted that pursuant to RC § 3705.09 (F) (2), the mother had sole discretion to determine the surname. This can be changed by a court, however, when a man is seeking to establish a parent-child relationship, and the change of name is in the child’s best interests under RC § 3111.13 (C). The parent seeking the name change must demonstrate that it is in the child’s best interests. According to the holding of the Ohio Supreme Court in In re Wilhite (1999), 85 Ohio St.3d 28, 32, the following factors are to be considered in deciding whether a name change is in a child’s best interests: “the effect of the change on the preservation and development of the child’s relationship with each parent; the identification of the child as part of a family unit; the length of time that the child has used a surname; the preference of the child if the child is of sufficient maturity to express a meaningful preference; whether the child’s surname is different from the surname of the child’s residential parent; the embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent’s; parental failure to maintain contact with and support of the child; and any other factor relevant to the child’s best interest.” In re Change of Name of McGowan (June 6, 2005), 2005-Ohio-2938 (7th District), quoting In re Wilhite at 32.

The Wilhite progeny also affirmed this line of reasoning. In Wilhite at 33, the Supreme Court also expressed a preference for a hyphenated name for a child of divorced or unmarried parents who is not old enough to have established either surname as part of his or her identity. The 10th District applied this reasoning in the instant case. As Andrew

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was young, he could not express a meaningful preference for surname, and a hyphenated name was in his best interests. Affirmed.

TOPIC:

Under the holding of the Ohio Supreme Court in In re Wilhite (1999), 85 Ohio St.3d 28, 32, a hyphenated name was in the minor child’s best interests.

TITLE:

In re RMO, 2016-Ohio-5879.

Mother and father worked together at a store, and mother became pregnant. The father went to a few doctor appointments. The parties never married. The couple separated before the child was born in 2014, after which the man filed a complaint to establish paternity in the Warren County Juvenile Court. Father was granted some supervised visitation, which increased. He filed a motion to change the child’s surname to his own, which motion was ignored by a magistrate’s decision (Ohio Civil Rule 53) after a hearing on visitation and financial issues. After both sides filed objections to the magistrate’s decision, the trial court ruled that a hyphenated surname was appropriate. Mother appealed. The 12th District Court of Appeals found that, in name changes, there are factors to find a name change is warranted: According to the holding of the Ohio Supreme Court in In re Wilhite (1999), 85 Ohio St.3d 28, 32 (which paraphrased Bobo v. Jewell), the following factors are to be considered in deciding whether a name change is in a child’s best interests: “the effect of the change on the preservation and development of the child’s relationship with each parent; the identification of the child as part of a family unit; the length of time that the child has used a surname; the preference of the child if the child is of sufficient maturity to express a meaningful preference; whether the child’s surname is different from the surname of the child’s residential parent; the embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent’s; parental failure to maintain contact with and support of the child; and any other factor relevant to the child’s best interest.” The Court then addressed positive reasons for hyphenated names and found that it was in the minor child’s best interests. It found no abuse of discretion. Affirmed.

PRE-NUPTIAL AGREEMENT TOPIC:

In action challenging pre-nuptial agreement following husband’s death, summary judgment against wife was not error where service was made by certified mail addressed to wife’s usual place of residence, the notice stated her rights under statute to set aside the pre-nuptial agreement, and

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wife’s adult daughter signed for the certified mail, R.C. 2016.25 and Civ. R. 73; also, wife did not timely challenge agreement, R.C. 2106.22. TITLE:

Reid v. Daniel, 2015-Ohio-2423.

In this case, Defendant-Appellant, Gayle Daniel, appealed from a partial summary judgment granted in favor of Plaintiffs-Appellees, Worrell A. Reid, Administrator of the Estate of Qulo Daniel, Misti Scales, and Derrick Daniel, Sr. In support of her appeal, Gayle contended that the trial court erred in granting partial summary judgment to Appellees because proper service was not achieved, and because Appellees should be estopped from claiming that a prenuptial agreement between Gayle and Qulo was binding on Gayle. The Court of Appeals for Montgomery County concluded that the trial court did not err in finding that the certified mail service was proper. In addition, the trial court did not err in refusing to apply equitable estoppel, because the record was devoid of any misrepresentation made by the administrator of the decedent’s estate. Finally, Gayle provided evidence only of potential fraud in the inducement of the prenuptial agreement, which does not provide a basis for avoiding the effect of the limitations period contained in R.C. 2106.22. Because Gayle failed to file an action challenging the prenuptial agreement within the time period outlined in R. C. 2106.22, she was bound by the terms of the agreement. Accordingly, the judgment of the trial court was affirmed.

PROHIBITION TOPIC:

In estate dispute, petitions for writs to prohibit probate court from continuing to exercise jurisdiction over the claims in underlying action are dismissed where, inter alia, petitioner does not show that the probate court lacks jurisdiction to administer the estate whenever there are no exceptions or objections filed to the tax authority’s determination of estate tax liability.

TITLE:

State ex rel. Abraitis v. Gallagher, 2015-Ohio-1646.

Vlada Abraitis was relator Sarunas V. Abraitis’s mother. Alada died on December 16, 2008. Sarunas had a brother, Vytautas T. Abraitis. Their father, Vincas Abraitis died on April 27, 1992. On October 4, 2011, Vlada’s will dated June 30, 1978, was admitted to probate and Sarunas was appointed as the fiduciary for his mother’s Estate. Sarunas and Vytautas were the sole and equal beneficiaries under that will because Vincas had predeceased Vlada. Vytautas died on November 16, 2013. By that time, his mother’s estate was still pending and had been for two years. Vivian Abraitis-Newcomer is the personal

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representative and sole beneficiary of Vytautas’s estate. Approximately one month after Vytautas died, relator presented a second will of Vlada, dated January 8, 1993, for admission to probate. Sarunas is the sole beneficiary under this later admitted will because he survived Vlada by 30 days. On January 13, 2014, Vytautas’s estate commenced the Probate Court action, which involves a complaint for a will contest and declaratory judgment. Vytautass’s estate is petitioning the court for relief, including a request for an order to set aside the alleged Last Will and Testament of Vlada Sofija Abraitis, dated January 8, 1993, as void and a declaration that a certain survivorship deed is invalid. In the complaints currently before the court, relator refers to numerous collateral proceedings including Vlada’s guardianship matter, federal and state tax proceedings, and federal case proceedings. Some of the tax proceedings involve a jeopardy levy on certain assets held in Sarunass’s name that resulted from his apparent failure to file income tax returns for several years. There is some indication that Sarunas disputed ownership of the levied asset throughout the federal income tax litigation and that he argued during his telephonic collection hearing appeal that a levy against him was not appropriate because the Cuyahoga County Probate Court had ruled that all of the assets held by him originated from and were the sole property of [Vlada] Abraitis. According to Abraitis, he was no longer the guardian of the assets being held under the levy, and those assets were not under his control. The settlement officer determined that the assets in question were in an account under Abraitis’s name and social security number and that the levy action was a permitted collection action. Sarunas’s taxpayer suit against the IRS was dismissed for his failure to exhaust administrative remedies, which was affirmed on appeal to the Sixth Circuit Court of Appeals. Relator had also submitted a Certificate of Determination of Final Estate Tax Liability from the Ohio Department of Taxation, Estate Tax Unit that was “[b]ased on the Ohio estate tax return(s) filed for [the Estate].” The Tax Commissioner Agent presented a proposed journal entry for respondent Judge Gallagher’s approval. An Ohio Tax Commissioner Agent signified her approval of the proposed judgment entry. Respondent Judge Gallagher, however, subsequently issued a journal entry without the proposed provision “that the estate can be considered finalized.” The journal entry, signed by Judge Gallagher, reflected that “all audit issues are resolved.” At the time theses subject writs were filed, the estate was still open. There was no indication that it has been closed to date. On August 12, 2014, respondent Judge Gallagher conducted a hearing in the Estate Matter on relator’s motion to correct inventory and the representation of insolvency. Essentially, relator sought to remove a sizable account that had previously been included on the estate inventory. At this hearing, relator, through counsel, argued

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that the taxing authorities had already determined the ownership of certain assets for tax purposes and that the probate court was precluded from finding otherwise. Newcomer, through counsel, asked the court to defer ruling on the motion to correct inventory and representation of insolvency to allow her to pursue a concealment of assets claim. The court granted this request. Relator indicated that Vytautas’s estate did not respond to several of the motions filed in the Estate Matter and did not file exceptions or objections to the Certificate of Determination of Final Estate Tax Liability or a wrongful levy claim. Relator commenced these actions asserting that the probate court patently and unambiguously lacks jurisdiction to act on Newcomer’s claims in the Probate Court Action based on determinations made in collateral proceedings. The Court of Appeals for Cuyahoga County noted that it had determined that respondent Judge Gallagher had basic statutory jurisdiction over the Probate Court Action in the First Writ Action and it continued to find that respondents had basic statutory jurisdiction over the Probate Court Action. The First Writ Action involved allegations that Newcomer lacked standing. Notwithstanding relator’s failure to present all of his claims and arguments in his initial original action, relator had not satisfied the requirements necessary for the writ in the later filed complaints. According to relator, the second complaint “argues that the trial court was divested of jurisdiction” in the Probate Court Action because Vytautas’s estate did not file exceptions to the Certificate of Determination of Final Estate Tax Liability that was filed in the Estate matter. Relator had not provided any authority that would support his position that the probate court lacks jurisdiction to administer the estate whenever there are no exceptions or objections filed to the tax authority’s determination of estate tax liability. To the extent that relator was arguing that the tax authority’s determination had some type of preclusive effect on matters at issue in the estate, the probate court had jurisdiction to make that determination and an appeal affords an adequate remedy at law to challenge it. The third complaint appeared to be contending that a failure to file a wrongful levy claim concerning a jeopardy levy issued by the IRS, coupled with the federal tax authority’s resolution of Sarunas’s outstanding income tax liabilities, divested respondents of jurisdiction to deny relator’s motions to correct the inventory and representation of insolvency. Stated differently, the third complaint was based on relator’s belief that the taxing authorities’ determinations deprive respondents’ of jurisdiction to resolve the claims and determine the assets of the estate. Although relator believed respondent Judge Gallagher may “reverse the ownership determination by the IRS,” that is not the case. Contrary to relator’s contentions, there was no indication that respondents were considering a wrongful levy claim. The evidence presented reflects that Judge Gallagher repeatedly acknowledged the probate court had authority to

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determine the merits of the claims within its jurisdiction such as a concealment of assets claim. R.C. 2109.50 confers jurisdiction on the probate court over concealment actions. Neither the termination of Vlada’s guardianship nor any of the tax determinations would deprive respondents of jurisdiction to determine the claim. “Concealment actions under R.C. 2109.50 and 2109.52 could be applicable to recover certain assets wrongfully concealed, embezzled, or conveyed away before the creation of the estate.” R.C. 2109.52 expressly authorizes probate courts in concealment proceedings to resolve ‘questions of title’ for allegedly concealed, embezzled, or conveyed assets and a declaratory judgment action may be brought in the probate court to determine the validity of inter vivos transfers where the property transferred would revert to the estate if the transfers were invalidated. The Court of Appeals noted that at least one Ohio court has addressed the different duties of the probate court and the taxing authorities. In In re Estate of Beasley, 70 Ohio App.2d 131, 435 N.E.2d 91 (4th Dist.1980) the court explained the probate court’s duties include determining which claims against an estate are valid, while the state Tax Commissioner examines the final tax return and determines the validity of the return. The court in Beasley also refused to treat the executor’s failure to contest the federal tax return as an admission against interest in determining the state tax liability. Noting that “the Supreme Court upheld a different valuation between the Ohio estate tax and the federal estate tax” and recognizing that “differing results obtain in the separate jurisdictions.” The preclusive effect of any determinations regarding the ownership of various assets was properly determined by respondents and can be adequately challenged by way of an appeal. The Court of Appeals concluded that relator had failed to establish that respondents patently and unambiguously lacked jurisdiction over the Probate Court Action. Appeal was an adequate remedy at law to challenge any errors in the court’s exercise of its jurisdiction. Because relator had an adequate remedy at law by way of appeal, relief through an original action was held to be inappropriate. Respondents’ motions to dismiss were granted and the complaints dismissed.

TOPIC:

In dispute involving estate of petitioner’s mother, dismissal of petition for writ of prohibition to prevent probate court from exercising jurisdiction was not error where, inter alia, personal representative of petitioner’s brother’s estate was a person interested in mother’s estate, she had standing to bring will contest and declaratory actions, R.C. 2107.741(A) and 2721.05, and trial court did not lack jurisdiction.

TITLE:

State ex rel. Abraitis v. Gallagher, 2015-Ohio 2312.

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Relator-appellant, Sarunas Abraitis, appealed from the judgment of the Eighth District Court of Appeals dismissing his complaint for a writ of prohibition. He filed the complaint individually and in his capacity as executor of the estate of his mother, Vlada Abraitis, against respondent appellee, Judge Laura J. Gallagher of the Probate Division of the Cuyahoga County Court of Common Pleas. Abraitis sought a writ to prohibit Judge Gallagher from proceeding in a combined will-contest and declaratory-judgment action filed by the personal representative of the estate of his brother, Vytautas, his only sibling. Abraitis alleged that the personal representative lacked standing to sue. The Supreme Court of Ohio affirmed holding that Judge Gallagher does not patently and unambiguously lack jurisdicition to hear the action, and that Abraitis has adequate remedies at law. (See Abraitis v. Gallagher, 2014-Ohio-2987).

TOPIC:

Ohio Supreme Court denied Writ of Prohibition ruling that probate court judge does not patently and unambiguously lack jurisdiction to issue orders attempting to correct activities by park-district commissioners and township trustees that frustrate the purpose of the original probate court order creating the Park district.

TITLE:

State ex rel Chester Twp v. Grendell, Slip Opinion No. 2016-Ohio-1520.

In a 7-0 decision, the Ohio Supreme Court denied a writ of prohibition sought by Chester Township and its trustees to prohibit Geauga County Probate/Juvenile Court Judge Timothy J. Grendell from issuing or enforcing ruling against them in the case that created the Chester Township Park District. The township trustees argued that Judge Grendell imposed duties, obligations and fees on them without the jurisdiction to do so. The dispute arose from a March 2014 anonymous report known as the “Chester Township Park District 2013 Review.” According to the Ohio Supreme Court opinion, the report questioned whether the park district was being run in accordance with the law. It also asked if park district funds had been mismanaged. In response, Judge Grendell appointed attorney Mary Jane Trapp as a Master Commissioner under R.C. 2101.06 to investigate the issues raised in the report and make recommendations. The Ohio Supreme Court opinion noted that Trapp made a number of findings including that “the township leadership and some citizen activists have a very incomplete understanding of the independent nature of the park district and what law are and are not applicable.” She concluded the “the park district was created as a separate political body, with independent authority to levy taxes and control the park lands.” Judge Grendell entered a ruling based on Trapp’s report. He addressed several concerns laid out by Trapp, including the 2002 decision by township trustees to terminate the dedicated inside millage funding for the park district.

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When the Chester Township Park District was created in 1984 under R.C. Chapter 1545, it was funded by a portion of local government and library monies, donations and an inside millage of .08 mills. In 1992, the township increased the millage to .1 mill. The Supreme Court opinion stated that in 2002, the township trustees voted to eliminate the millage, citing sufficient reserves for the park district’s 2003 budget and the trustees’ plan to shift money to other projects. From that point on, funding for the park district was provided “on a project basis,” and the township’s road maintenance department was responsible for keeping it clean. However, maintenance services were eliminated in 2013. The Ohio Supreme Court opinion stated Judge Grendell found that the township’s elimination of the millage was “contrary to the original judgment entry creating the park district as an independent governmental entity.” Judge Grendell determined that the township’s action “directly contravened the fundamental purpose” for creating the park district – to keep it “free from the vicissitudes of Township government and politics.” Judge Grendell also stated that park district commissioners and not the township trustees had the authority to levy up to one-half mill for park funding. He ordered the commissioners to take measures to make sure the park district had a dedicated source of independent funding by January 2016. He stated that since the trustees wrongfully eliminated the park district’s millage funding in 2002, they had a duty to ensure that funds were available to the park district until the commissioners were able to establish an independent funding source. The probate court judge did not order the trustee to pay any specified amount. The township and the trustees filed an appeal and motion to stay the judgment in the 11th District Court of Appeals. They also filed a motion in the probate court asking for a stay of enforcement pending appeal. In their motion, they challenged the probate court’s subject-matter jurisdiction to grant the relief that the judge prescribed. The court of appeals temporarily stayed the probate court’s order, but on March 31, 2015, it dismissed the township’s appeal “for lack of a final, appealable order.” The township and trustees asked the Ohio Supreme Court to grant a writ of prohibition. In the opinion denying the writ, the Ohio Supreme Court justices said “Under R.C. 2101.24(C), probate courts have plenary power to ‘dispose fully of any matter that is properly before the court,’ unless the power is expressly limited or denied by the Revised Code. Without the power to investigate the management of park districts and issue orders compelling compliance with R.C. Chapter 1545, a probate court’s power to appoint and remove park-district commissioners would be hollow… “In this case, the Master Commissioner determined that certain activities by the township trustees frustrated the purposes for which the park district was created. The probate court’s authority to create park districts and its plenary power ‘to dispose fully of any matter’ that is properly before it surely includes the ability to issue orders to enforce

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the entry creating the park district, including orders that impose duties on those interfering with the park district’s purposes.” The Supreme Court therefore denied the writ because the township trustees had not shown that the probate court patently and unambiguously lacked jurisdiction to issue orders attempting to correct activities by the park-district commissioners and the township trustees that frustrate the purpose of the original probate court order creating the park district.

TRUSTS TOPIC:

A trial court erred when it did not take into account sworn affidavits of bank officials when deciding a motion for summary judgment that dismissed the plaintiff’s assertion that her father had created an inter vivos trust.

TITLE:

Pitts v. Sibert, 2015-Ohio-3020.

In 2012, Pitts, who was the trustee of her father’s revocable trust, filed a declaratory judgment action in the Stark County General Division against her brother and his wife, namely the Siberts, who are Texas residents. Apparently, their father had created the revocable trust and put some Summit County real estate into it. In 2005, father removed Sibert as a co-trustee along with Pitts, leaving Pitts as the sole successor trustee. Father then moved to Texas and lived with the Siberts. However, after moving to Texas, father executed a quit-claim deed transferring the Ohio realty to the Siberts as well as allegedly executing a will disinheriting Pitts and leaving everything to Sibert. When he died, the will was probated in Texas. Pitts’ declaratory judgment suit claimed undue influence, fraud, conversion, unjust enrichment and breach of duty. The Siberts moved for summary judgment, which was granted in part, except as to questions of fact regarding the inter vivos transfers. The Siberts moved to dismiss, arguing that Pitts lacked standing and the trial court lacked jurisdiction. The court agreed with the Siberts, and Pitts appealed. The 9th District Court of Appeals first reviewed the standard for summary judgment under Ohio Civil Rule 56, viewing the facts and doubts most favorably to the non-moving party, and that the movant must show no genuine issue of material fact. Specifically, Pitts’ appeal dealt with issues related to the trust and its establishment; as a result, her appeal did not address fraud, undue influence and unjust enrichment, which had been resolved by summary judgment in favor of the Siberts. The Court found that the establishment of a trust must be by clear and convincing evidence and the burden is on the proponent to prove existence, terms, etc. The Siberts claimed that Pitts could not demonstrate the trust’s terms or its beneficiaries: in her 127

deposition, Pitts did not have a copy of the trust declaration or the 2005 modification of the trust. Rather, she had certificates of trust, a letter from a bank referencing the trust, and a 2000 quit claim deed that transferred Ohio real estate from father to father as trustee. She also had affidavits from officials who allegedly dealt with the trust. The Appellate Court found that these affidavits were never considered by the trial court, and may have contained language applicable to establishing the terms of the inter vivos trust. Because they were not considered, but should have been, the Court reversed and remanded on that issue in favor of Pitts. The Court of Appeals found that the issue of jurisdiction, etc., was not ready for ruling because the first issue as to a question of fact was not addressed. Reversed and remanded.

TOPIC:

In action for breach of fiduciary duty and related claims involving a family trust, summary judgment for defendants was not error where there were motions supported by sworn affidavits made on personal knowledge, and plaintiff did not submit any sworn affidavits or other admissible evidence in opposition to create an issue of material fact, CivR.56.

TITLE:

Ryan v. Huntington Trust, 2015-Ohio-1880

Appellant’s mother, Elizabeth Ryan, created an irrevocable spendthrift trust one week after her husband’s death and transferred all of her personal property, real property, financial accounts, and notes receivable to the trust. Elizabeth died on December 11, 2004, and appellant, Kathleen Ryan, was the second beneficiary named. Kathleen was entitled to $2000 per month either distributed directly to her or applied to pay her bills for her benefit. Appellant brought suit alleging that the trust drafter, advisor, and trustee breached the trust by failing to provide her with adequate funds from the trust for her living expenses. Appellant also brought suit against Huntington alleging that Huntington mismanaged the trust. All three Defendants filed motions for summary judgment that were granted by the trial court. Appellant appealed with four assignments of error with the second and third assignments of error both addressing the trial court’s compliance with Civ.R. 56. Summary judgment was granted for all three defendants after each party produced affidavits sworn by parties who explained their knowledge and set forth specific facts establishing competence to discuss the matters set forth in each affidavit. The appellant never filed any actual affidavits. Further, the appellant never made any specific averments or identified facts to which she purported to attest. Appellant attempted to reference her response to summary judgment but that did not set forth facts that would be admissible in the evidence. Appellant also made a statement of citizenship and residence that did not establish her personal knowledge on the information or incorporate by reference any evidentiary materials attached to the document.

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The 7th District Court of Appeals held that the appellant failed to present or place in the record by affidavit or otherwise, any evidence that supported her complaint. Since there was no material in the record indicating an existence of a material fact requiring litigation, the Court of Appeals found that the trial court’s granting of summary judgment in favor of the defendants was proper and complied with Civ.R. 56.

TOPIC:

In action by trust beneficiaries against trustee for, inter alia, misappropriating funds, grant of summary judgment to beneficiaries was error, in that award of punitive damages was made without explanation for a $250,000 award amount, and the Court did not formally consider its constitutionality or consider whether it comported with the punitive damages statute, R.C. 2315.21(D)(2)(b).

TITLE:

Nordloh v. McGuire, 2015-Ohio-4529.

Appellees Nordloh and Sheley are beneficiaries of two family trusts managed by Appellant McGuire. When McGuire began acting as trustee, they contained about $2,000,000, and McGuire personally had a 15% interest in the residuary of the trusts. Nordloh and Sheley initially filed suit against McGuire when he did not comply with their requests for him to provide documents pertaining to the trust, including matters of the property situated in and disbursements issuing from the trust. McGuire did partially comply with a subsequent order of the Butler County Court of Common Pleas to release particular documents. Following his deposition, during which he repeatedly “pleaded the Fifth,” his attorney communicated to the plaintiffs his acknowledgment of his client’s misappropriation of approximately $400,000. Appellees eventually amended their complaint to reflect accusations of misappropriation and breach of fiduciary duty with regard to both trusts managed by McGuire, and also sought damages and disgorgement of any profits. McGuire’s attorney withdrew from the representation and McGuire, despite the trial court’s permission to do so, did not obtain new counsel. At a subsequent hearing before a magistrate, summary judgment was entered in favor of the plaintiffs and damages were recommended to the trial court in the following amounts: $910,240 in misappropriation of funds, $18,190.52 in attorney fees, and $250,000 in punitive damages. The trial court overruled McGuire’s objections and affirmed the magistrate’s decision in its entirety. On appeal to the Twelfth Appellate District, McGuire asserted the following assignments of error: 1) The Trial Court Erred to the Prejudice of Defendant-Appellant when it Did Not Allow Him Sufficient Time to Retain Counsel.

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2) The Trial Court Erred to the Prejudice of Defendant-Appellant when it Granted Punitive Damages to the Plaintiffs. 3) The Trial Court Erred to the Prejudice of Defendant-Appellant when it Granted Relief to Appellees that had Not Been Sought by them in their Complaint or in the Motion for Summary Judgment. As for the first assignment of error, the Court held that not only did the trial court not abuse its discretion denying McGuire’s request for a continuance in that ample time was afforded to McGuire for the purpose of obtaining a new attorney, but McGuire did not specify with any appreciable degree of certainty the timeframe required for him to procure the necessary funds for a new attorney. Additionally, the Court held that McGuire himself, through his misappropriations which had led to the modification of the original allegations and the consequent withdrawal of his attorney, contributed to the necessity of his request for a continuance in the first place. As the trial court acted properly in denying the request for a continuance under these circumstances, the Court overruled McGuire’s first assignment of error. As for the second assignment of error, the Court observed that the Supreme Court of Ohio, in Barnes v. University Hospitals of Cleveland, 119 Ohio St. 3d 173 (2008), adopted the three-part test established by the Supreme Court of the United States for determining the constitutionality of an award of punitive damages. The test entails consideration of three factors; “(1) the degree of reprehensibility of the defendant’s misconduct, (2) the disparity between the harm or potential harm suffered by the plaintiff and the punitive-damages award, and (3) the difference between the award and the civil penalties authorized or imposed in comparable cases”. The Court also referenced R.C. 2315.21(D)(2)(b), which sets forth the statutory framework for assessing the propriety of assessed punitive damages awards. However, insofar as “[t]he trial court offered no reasoning, explanation, or analysis as to why it was awarding $250,000 in punitive damages,” presumably under either the constitutional or statutory frameworks, the Court observed that the award was inappropriate as assessed. The Court intimates that it is not necessarily dismissing the likelihood that that amount could be appropriately calculated as such, but insisted that the trial court must comply with the constitutional and statutory requirements pertaining to the limitations on punitive damages awards and the procedures for their determination. Consequently, McGuire’s second assignment of error was sustained. As for the third assignment of error, the Court identified instances in the summary judgment hearing where plaintiffs had made known their desire for McGuire to forfeit his 15% interest. The Court also explains that McGuire intimated his willingness to so act, and the absence of any objections on his part to the plaintiffs request that he so act. However, the Court held that the issue of the potential forfeiture was not included in the motion for summary judgment. Consequently, McGuire’s third assignment of error was sustained.

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Summarily, the Court, while acknowledging that the granting of summary judgment itself was proper, affirmed in part, reversed in part, and remanded to the trial court.

TOPIC:

When the argument on appeal is that the lower court’s verdict regarding conflicting trust provisions as to equalization of stock distribution was against the manifest weight of the evidence, for appellant to prevail, the appellate court must consider all evidence and conclude that the trier of fact clearly lost its way in resolving evidentiary conflicts so as to create a manifest miscarriage of justice that the decision must be reversed and a new trial ordered.

TITLE:

Newcomer v. Roan, 2016-Ohio-541.

Betty was the daughter of the founders of Spangler Candy Company in Bryan, Ohio. She was married to Neil and in 1952, she and her husband adopted Ann, and in 1955, Tom. Neil died in 1992, and Betty married Harold, who died in 1997. With both her husbands, Betty also had a residence in Florida. Betty and Neil held a substantial amount of Spangler shares, creating a revocable trust on 6/12/1991 and giving Ann and Tom income from the shares. At their death, the shares would pass to their kids. Ann and her husband had one child, Kerry; Tom had no children. Betty now created a trust dated 10/28/1991 after Neil’s death that substantially restated the original trust. It was modified from dates starting in 1998 through 2006. The 1998 version superseded Betty’s 1991 trust, but continuing to give income to Ann and Tom and eventual passing of the Spangler shares to grandchildren, but outside the trust. In 2002, an equalization provision ensured that Ann and Tom received equal shares. In 2003, two documents were signed: the first appointed Betty’s Ohio attorney, David Newcomer, to be the successor trustee; the second document (drafted by Betty’s Florida lawyer) distributed the trust estate to her living descendants “free of trust”, thus eliminating her grandson Kerry (Ann’s child) as a remainder beneficiary. Ohio attorney Newcomer then drafted the 2006 revision which does not mention the 2003 “free of trust” document at all, but has Betty replaced by Newcomer as successor trustee and also affirms the trust provisions as they were in1999. Betty died in 2011 at age 93, and her trust became irrevocable. Since the trust was irrevocable, Florida law requires that, 60 days following her death/date of irrevocability, the trustee must give notice to beneficiaries of the trust, the settlor, and a right to receive a copy of the trust as well as an accounting upon request. In 2011, Ann and Tom received a notice of the trust, signed by attorney Newcomer, that indicated Betty had served as trustee until her demise.

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Ann hired a Florida lawyer in 2012 to try and set aside the 2003 document, claiming Betty’s lack of capacity or Tom’s undue influence. Her lawyer told her that the 2006 amendment may have revoked the 2003 revisions, and wrote to attorney Newcomer opining the same. Newcomer filed a declaratory judgment action as trustee in the Williams County General Division asking which trust agreement was the last, valid agreement and naming Ann, her husband and son, and Tom as party defendants. Ann (and her husband and son) counterclaimed, arguing that the 2006 amendment revoked the 2003 revision and “readopted” the 1999 version of Betty’s trust. Ann filed a cross-claim against her brother Tom, alleging the 2006 version revoked the 2003 version and argued Tom’s undue influence, fraud, etc. Tom also answered and counterclaimed, asserting defenses including statute of limitations, but arguing the 2003 trust agreement was the final version in effect at Betty’s death in 2011. He claimed the 2006 version did not revoke or modify the 2003 revision; he also argued for Newcomer’s removal as trustee for conflict of interest and negligence. Tom answered Ann’s cross-claim, asserting that she was under duress or undue influence or lacked capacity in 2006. Tom filed an action in Florida against trustee Newcomer and Ann, who both asked the Ohio court for injunctive relief against Tom’s Florida action, which was granted. Ann filed for summary judgment, arguing for Tom to prevail, he had to demonstrate that Betty lacked capacity or was under undue influence in 2006 by clear and convincing evidence. Further, Ann argued that Tom (under the same standard) did not have evidence to remove Newcomer as trustee and lacked standing to pursue a malpractice action against Newcomer. Newcomer’s supporting affidavit stated that Betty came to him in 2006, asking that the trust conform to Neil’s original version, that she was of sound mind and memory, and that he personally saw her execute the 2006 revision. Tom filed his own cross-motion for summary judgment, but also argued that there was a question of material fact in 2006: while the draft date may have been 8/24/2006, the notarized date was 8/28/2006, when Betty was in the middle of a nine-day hospitalization and medical records demonstrated decreased cognition, confusion and difficulty with problem solving. The medical record showed that Newcomer himself had spoken to doctors about his concerns with Betty’s “thought process” at that time. Tom also argued that Newcomer was not impartial and that as a trust beneficiary, he could assert a malpractice claim against Newcomer, who he also claimed was barred by the statute of limitations to file a lawsuit since he had waited more than a year under Florida law to file his suit. He went on to argue that the 2006 revision did not include the word “revoke” toward the 2003 version, referred to a non-existent 1999 document and that regardless, the equalization of Spangler stock should occur.

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Ann’s response argued inter alia that Betty was of sound mind, notwithstanding her physician ordering her to undergo a neuropsychological exam based on his concerns, and thus the 2006 version was the final trust. They also argued that Newcomer’s time never began because he had not properly served everyone with notice as required. When actual notice was received, the time began and Newcomer was therefore timely. Ann argued that the 1999 version wherein the shares would eventually pass to their son was operative, rather than the 2003 “free of trust” provision. The trial court granted Ann’s summary judgment motion on the issue of malpractice, but denied her motion on Tom’s claim for Newcomer’s removal as trustee. Ann was also granted summary judgment on the issue of undue influence, but allowed Tom’s assertion that Betty lacked capacity and may have been incompetent in 2006. The lower court also found that the issue of whether Betty wanted her distribution to be like Neil’s original trust was a matter for trial and that the statute of limitations did not begin, because of the lack of proper notice to the 2006 document. Equalization of Spangler Candy shares also could not be decided, except at trial. In 2014, the matter went to trial. Ann had witnesses testify that Betty executed the document in their presence, although they couldn’t recall her personally. They observed that this was standard office procedure, and they would not have witnessed a document for an incompetent person. Tom presented the clinical neuropsychologist. While she used her medical records to state that Betty did have delirium and dementia in 2006 which could impair cognition, problem solving and cause confusion, the psychologist was adamant that this testing was far different from one used to determine legal competence, and that her 2006 evaluation of Betty did not allow her to give an opinion as to her legal competence, as the symptoms were transient in nature. Ann moved for directed verdict, asserting that Tom failed to prove by clear and convincing evidence that Betty was incompetent in 2006. The court found that the 2003 trust was the final and valid statement of the terms, primarily because it was a “complete restatement of Betty’s trust.” It found the 2006 trust version to be ambiguous and, under Florida law, did not establish Betty’s intent as settlor by clear and convincing evidence. Rather, because Newcomer had told Betty that the 2006 trust changed nothing, there was no substantive change to the 2003 trust. The court also noted that the equalization was to ensure that Ann and Tom got an equal amount of Betty’s shares of stock, not overall stock. Thus, stock Ann had received from her maternal grandmother was not part of the calculation. Finally, the lower court dissolved the injunction, allowing Tom to continue Florida litigation if he wished. Both Ann and Tom appealed. The 6th District Court of Appeals reviewed the matter de novo, first stating the standard for granting a motion for summary judgment and noting that there must be no genuine issue of material fact and that the winning party is entitled to judgment as a matter of law while construing all evidence in favor of the non-moving party. The adverse party must cite specific facts to show there is a genuine issue of material fact. However, on a motion for directed verdict, the standard is “reasonable minds”: is there

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any material evidence to support the argument of the non-moving party, rather than evaluating the weight of the evidence or trustworthiness of witnesses. Additionally, when the argument on appeal is that the verdict was against the manifest weight of the evidence, the appellate court must consider all evidence and conclude that “the trier of fact clearly lost its way in resolving evidentiary conflicts so as to create a manifest miscarriage of justice that the decision must be reversed and a new trial ordered.” The Court reviewed the Florida law governing amendment of revocable trusts, finding that there was no incorporation by reference. In fact, because Betty’s lawyer (Newcomer) told her there was no substantive change to the 2003 trust agreement in the 2006 version, and that Ann had argued all along that Betty was competent, the 2006 document did not incorporate the 4/20/1999 trust, but kept the 2003 version intact. Indeed, Betty had competently made amendments since 1999 that modified or even revoked parts of the same. It was illogical that, being competent, she suddenly did not intend to keep the 2003 trust, especially when her lawyer. The Court also found no abuse of discretion in the lower court’s dissolving the injunction to litigate in Florida. Ann’s appeal was found not well-taken. As to the issue of equalization, the Court found that Tom’s appeal was well-taken: the 2003 trust provision basically stated that Ann and Tom’s shares were to be equalized, regardless of the source. Therefore Ann’s “extra” shares received from her grandmother were includable for purposes of determining equal shares of Spangler Candy stock. However, the Court found Betty to have had proper testamentary capacity to be legally competent, affirming the lower court’s directed verdict for Ann on the issue, thus denying Tom’s appeal on the issue. Affirmed in part and reversed in part.

TOPIC:

In a dispute regarding the distribution of funds between a co-trustee of a family trust and a beneficiary, the trial court erred in returning administration of trust from the probate court to the co-trustee and giving her discretion to make distributions without allowing the sister an opportunity to be heard.

TITLE:

In re Estate of Chonko, 2016-Ohio-992.

Andrew and Mary Chonko had three children: Andrea Chonko, Karen Rodriguez, and Joseph Chonko, Sr. In 2004, Andrew and Mary Chonko created the Chonko Family Trust, naming Andrew and Andrew as co-trustees. Under the terms of the trust, all three adult children were named beneficiaries. In 2012, Mary and Andrew died within months of one another. As a result, Andrea filed an application to probate her father’s will in the probate court. Six months later, Karen sent a letter to Andrea questioning her handling matters related to the Trust. Donald Chonko, a trust beneficiary, also filed a letter stating that he had concerns regarding Andrea and her husband’s failure to respond to trust beneficiaries’ concerns regarding management of the trust’s funds. Andrea filed a motion to expend trust funds as reasonable compensation for trust administration based on extraordinary services provided and for lost wages for caring for Andrew and Mary

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Chonko. The probate court issued a judgment entry noting that the parties had reached an agreement after mediation as to the motion to expend trust funds. The mediation agreement and judgment entry required trust funds to be distributed to Karen Rodriguez and granted the probate court sole authority to disperse funds to Karen. About one year later, Karen wrote to the probate court inquiring about the lack of any dispersal of trust funds to her in light of the sale of her parent’s home. Two months later, Karen filed a pro se motion for a hearing to expend funds and for final dispersal of trust funds. In response to Karen’s motion, Andrea asserted that an immediate distribution to Karen was not in her best interest, but that she would make certain distributions to Karen upon verification of her need. Additionally, Andrea also argued that since the trust was modified by a court (agreed) judgment entry she was unable to make any discretionary distributions to Karen. Andrea also requested that the probate court amend the prior judgment entry nunc pro tunc to eliminate the provisions granting sole authority to the probate court to administer the trust as to Karen. Andrea moved to reinstate herself and her husband the authority to administer and disburse funds to Karen in the co-trustees’ sole decision. The probate court considered Andrea’s motion and modified the trust distributions portion of the prior judgment entry. The judgment entry granted Andrea and her husband the authority to administer Karen’s portion of the trust. As a result of the new judgment entry, Karen moved the court to reconsider and vacate the order that removed the court’s administration of Karen’s portion of the trust. The probate court set a date to rule on the motion to reconsider and vacate the order, however, Karen filed a notice of appeal before the court’s ruling. On appeal, the Ninth District Court of Appeals held that the probate court erred by vacating the agreed judgment and issuing a new judgment that reinstated Andrea’s authority to administer Karen’s trust funds. The court noted that the probate court vacated the agreed judgment entry eleven days before the scheduled hearing. This prevented Karen from being heard on the matter. The appellate court noted that trial courts are not permitted to vacate a prior order without allowing all parties the opportunity to be heard. As a result, the Ninth District Court of Appeals reversed the Lorain County Probate court’s decision and remanded the matter for further proceedings.

TOPIC:

Undue influence, which must be proved by clear and convincing evidence, is any improper or wrongful constraint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would not do if left to act freely, and must overpower and subjugate the mind of the settlor as to destroy his free agency and make him express another’s will rather than his own.

TITLE:

Schwartz v. Tedrick, 2016-Ohio-1218.

Louis entered into a 2nd marriage to a woman nearly 20 years his junior. He had 4 children from a prior marriage. He created a trust agreement as settlor in 2012 making

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inter alia gifts to his children of $100,000 each. Less than 3 months later, Louis created a trust restatement that had the new wife as trustee and removed the gifts to his children. The 4 adult children filed a complaint in the Cuyahoga County Probate Court to require the wife to give an accounting, to remove her, to prevent her from making more distributions, for damages and fees, and to void the trust restatement provisions as a result of new wife’s undue influence. After a bench trial, the probate court denied the wife’s motion for a judgment on the pleadings, denied her motion to admit deposition testimony from the lawyer who prepared the trust restatement, and finally set aside the restatement as the result of duress and undue influence, removing the wife as trustee. She appealed. The 8th District Court of appeals first defined undue influence as “any improper or wrongful constraint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would not do if left to act freely.” Said undue influence must “overpower and subjugate the mind of the testator as to destroy his free agency and make him express another’s will rather than his own.” It must be proved by clear and convincing evidence. Here, the trial court issued a 9-page judgment entry with well-defined findings of fact and conclusions of law. It found that, before his health declined, Louis (who was a retired dentist) saw his children regularly (every week), played golf with his sons, and watched his grandson play baseball. He enjoyed being with his family. The trial court found that Louis did not change his trust because the assets had changed; rather, the evidence by clear and convincing evidence was that the wife realized there would be little for her after payment was made to the children, became alarmed, and took action: as a physician’s assistant for over 30 years and Louis’ primary caregiver, she preyed on Louis’ fears of his declining health and being moved to a nursing home. She became hostile to him and even moved out for a few days. She got him to sign the trust restatement as a result of her machinations, and therefore the probate court’s findings of blatant undue influence were not against the manifest weight of the evidence. Further, the trial court found that under Ohio Civil Rule 32 (A), the wife offered no evidence at trial that the lawyer who prepared the trust restatement was unavailable at trial, that he resided outside Cuyahoga County or was beyond the subpoena power of the court, and therefore it was within the trial court’s judgment to exclude his deposition testimony. The Court of Appeals found she had abused her authority as trustee, and it was necessary to remove her to prevent trust asset manipulation for her sole benefit and thus thwarting the settlor’s intent. Affirmed.

TOPIC:

Case remanded for further proceedings on trust split and recombination.

TITLE:

KeyBank N.A. v. Thalman, 2016-Ohio-28.

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Howard A. Couse (“Howard Couse”), an attorney who is the author of several law textbooks, created a trust (“Couse Trust”) for the benefit of his children and grandchildren from the proceeds of the sale of the textbooks. Upon his death, KeyBank became the successor trustee of this trust. Following Howard Couse’s death, the Couse Trust beneficiaries were his daughter, Margaret R. Schlitt and her husband, Howard Schlitt. In 1966, when Margaret Schlitt died, her children Jeanne Schlitt Clough and Howard H. Schlitt became the trust income beneficiaries. The children of Jeanne Clough and Howard Schlitt became remainder beneficiaries. A trust was held equally for two siblings. The daughter wanted growth for her children, the son wanted income for himself. To accommodate both, the Trustee; KeyBank split the trust into two equal trusts. After both siblings died and the trust was distributable to their respective families, the question arose whether each family shared equally in both trusts or each received the greater or lesser share resulting from the split and different investment and distribution policies for each separate trust. The trustee proposed equal division, and the daughter’s family objected. The trial court sustained the trustee’s plan of equal division on summary judgment, but the Court of Appeals for Cuyahoga County reversed and remanded for further proceedings. This trust was split after the effective date of the Ohio Trust Code, and the court cited R.C. 5804.17 as authorizing the split but not any recombination. The split did not change the interest of the beneficiaries, but the recombination reduced the final distribution to the daughter’s family by almost $250,000.

TOPIC:

Trustees required to provide information on Trust for period of time grandchildren were current beneficiaries.

TITLE:

Estate of Thallman v. Thallman, 2016-Ohio-992.

Husband and wife, Claudine and Herval Thallman, each had trusts, the principal asset of each being his or her interest in the family farm. Wife died and her trust became irrevocable and was held for her husband. Later, Herval died, and both trusts became distributable equally to their five children, except that one son had died leaving children to receive his 1/5th share. Those grandchildren sued the trustees (who were three of the children), and initiated discovery. The trustees urged that they were required to supply information to the grandchildren on only the period after Herval’s death, but provided full information on the period after his death and also a great deal of information on the earlier period. The trial court ultimately halted the grandchildren and ordered them to pay counsel fees incurred by the trustees in responding to it, and the appellate court affirmed (subject to disallowing certain of the expenses). Both courts noted they were not entitled to information for the period when the grandchildren were only remainder beneficiaries and not current beneficiaries. The trial

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court held that they were not entitled to information then, and the appellate court declined to decide the issue because it found that sufficient information had been furnished to them.

WILLS/WILL CONTEST TOPIC:

Complaint to set aside and declare null and void a Last Will and Testament and recover damages for the tortious misconduct of the defendant dismissed by the Probate Court for lack of subject matter jurisdiction.

TITLE:

Beadle v. O’Konski-Lewis et al, In the Court of Common Pleas of Lucas County, Probate Division, Case No. 2014 ADV 2613 and 2016-Ohio4749.

Plaintiff Donald Beadle filed this complaint alleging the defendant O’KonskiLewis unduly influenced her spouse Laurence Lewis in the execution of his Will and Trust. The plaintiff alleges that her actions intentionally and improperly interfered with his expectation of inheritance, as the plaintiff was the sole beneficiary of Mr. Lewis’s previous Will. The plaintiff prayed that the court declare the Will and Trust executed on August 24, 2010 invalid, void and unenforceable because the testator was not competent and the instruments are a result of undue influence of the defendant O’Konski-Lewis. The Plaintiff requested also that the court award damages in excess of $25,000.00. The plaintiff also named as defendants Fifth Third Bank as the successor trustee under the Trust, Pamela Lewis and Toledo Community Foundation as beneficiaries under the Trust. In response, the defendants filed a Motion to Dismiss and Motion for Judgment on the Pleadings. The defendants argued that pursuant to Civ. Rule 12(B)(1) of the Ohio Rules of Civil Procedure the court had no subject matter jurisdiction over the claims and also that the claims fail under the ripeness doctrine. The following facts were not in dispute: the testator/settlor, Mr. Lewis is alive; he was declared incompetent by this court on October 12, 2012 and his spouse was appointed his guardian; he executed a Will on March 23, 2000 naming the plaintiff sole beneficiary; he executed another Will and Trust on August 24, 2010 giving his estate to Fifth Third Bank as Successor Trustee under the Trust Agreement he also executed on that date; his Will has not been admitted to probate. The defendants’ argued that the exclusive method of challenging a will is by will contest pursuant to R.C. 2107.19 and this can only occur after a will is admitted to probate. In Corron v. Corron (1988), 40 Ohio St. 3d 75 the Ohio Supreme Court held an

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action for declaratory judgment does not lie to challenge the validity of a will. Further the Court held: “A will is ambulatory in nature, and until the death of the testator, and until the law admits such instrument in probate, it gives no accrued rights to the potential takers of the benefit.” Id at 78 Defendant Fifth Third Bank argued the same principle applies to the Trust and cites in support the case Lewis v. State Bank, N.A. Butler County (1993), 90 Ohio App. 3d 709. Essentially the court held an inter vivos trust is ambulatory in nature and while the donor was alive, she retained all rights including changing beneficiaries. The plaintiff argued that when the Lucas County Probate Court declared Mr. Lewis incompetent the Will and the Trust ceased to be ambulatory and the court had jurisdiction to determine and declare the rights under the trust pursuant to R.C. 2101.24(B)(1)(b) and R.C. 5802.01(C). Plaintiff also cited First National Bank of Cincinnati v. Oppenheimer, 190 N.E.2d 70 in support of his claim that once incompetent a trust settlor loses the capacity to change a revocable instrument. To that end, the plaintiff argued that the court could determine the rights under the inter vivos trust. However, in Oppenheimer, the testator was dead and a will had been admitted to probate. The issue was whether the incompetent testator’s agent could exercise the agency during the incompetence of the principal to revoke an inter vivos trust. The court found the agency is revoked or suspended during the loss of capacity. The plaintiff also argued that the court had jurisdiction to determine the tort claim of intentional interference with expectancy of inheritance because an action of will contest will not provide an adequate remedy as the assets the plaintiff expected to inherit have been transferred to the inter vivos trust. This claim was completely intertwined with the plaintiff’s claims regarding the validity of the Will and Trust. The Lucas County Probate Court, Judge Dartt sitting by assignment noted that the law cited by the defendants is clear and convincing. The Probate Court lacks jurisdiction to declare a Will invalid and void when the testator is alive and the will has not been admitted to probate. The Plaintiff has cited no law that stands for the proposition that once a testator/settlor has been declared incompetent the Will and Trust cease to be ambulatory and this court has jurisdiction over the claims. In fact, the law is that until the death of the testator/settlor potential beneficiaries have no accrued rights. The Court therefore ordered that the defendants Motion to Dismiss and Motion for Judgment on the Pleadings were found well taken and the plaintiff’s complaint was ordered dismissed for lack of subject matter jurisdiction. The Sixth District Court of Appeals affirmed the decision of the Lucas county Probate Court in case number 2016Ohio-4749.

TOPIC:

Ninth District Directs Trial Court to Review Mental Capacity for Ward Who Changed Will

TITLE:

Hutchinson v. Kaforey, 2016-Ohio-354.

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Michael Hutchinson died in 2012. He executed wills in 2006 and 2007 and revised his 2008 will slightly. Hutchinson’s mother, Mary Hutchinson Barnes – who was not named in any of the wills – and two of Hutchinson’s brothers – who were named in the wills – contested the most recent will in Summit County Probate Court. In their challenge, they asserted that the will was invalid because Hutchinson lacked “testamentary capacity” and had been “unduly influenced.” The probate court granted summary judgment against Barnes and her sons. The court found that there was no “genuine issue of material fact” that Hutchinson lacked capacity or was unduly influenced. Barnes appealed the trial court’s judgment to the Ninth District Court of Appeals. The Ninth District agreed with Barnes that the trial court erred in concluding that there was no disagreement over Hutchinson’s legal and mental ability to alter his will. On the other hand, the Ninth District disagreed with Barnes on the undue influence claim. The appeals court found compelling testimony by Barnes and one of the brothers that Hutchinson’s attorney and guardian, Ellen Kaforey, told them Hutchinson was incompetent. “A trial court is not permitted to weigh credibility when considering evidentiary material presented in favor of, or in opposition to, summary judgment,” Ninth District Judge Beth Whitmore wrote in the unanimous opinion. “Here, if Kaforey did tell Barnes and Mark that she believed that Michael lacked testamentary capacity, her statement was an admission that would support Barnes’ claim that Michael was not competent to make the 2008 will. Thus, it would constitute evidence that Michael lacked testamentary capacity. The trial court is not entitled to ignore such evidence, even if the court felt that it was contrived or that Kaforey’s testimony was more credible.” As to Barnes’ second assignment of error, Judge Whitmore noted that a will admitted to probate is presumed to be executed free from restraint and that contestants have the burden to prove undue influence. She concluded that Barnes did not provide any facts or point to any evidence that one of Hutchinson’s brothers or Kaforey exerted or attempted to improperly influence Hutchinson. The appeals court sent the case back to a trial court to determine if a ward under a guardian’s legal care understood what he was doing when he changed his will to add beneficiaries. The appeals court also found that not enough evidence existed to prove others exerted influence to have the will altered.

TOPIC:

While a fiduciary has no positive duty to defend a will contest in Ohio, an executor or administrator has the right to do so and can voluntarily assume the burden to do so, thus answering for all devisees under the will, even when they are non-answering defendants. Default judgment is

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inappropriate as is a subsequent summary judgment motion under Civil Rule 56. TITLE:

Nolan v. Hinzey, 2016-Ohio-4657.

Juanita executed her Wills in 2007, 2008, 2009, 2012, and twice in 2013. She also created a trust in 2006. She died in December 2013. Her September 2013 Will was admitted to probate in the Belmont County Probate Court, and her estate was opened. The will gave almost everything to one family (the Humphreys), plus 1% of the residue. Nolan, a niece, was not listed as a beneficiary but her daughters were (Juanita’s greatnieces). Nolan filed a complaint to contest the will. Nolan alleged that the September 2013 will was executed the day before Juanita entered a cancer treatment facility, and that defendant Humphrey drove her to the law office of Hinzey (who was not a named defendant in the case). Nolan alleged that the Humphreys had a relationship with Juanita and exerted undue influence to get oil and mineral rights, the farm, house, etc. Nolan claimed she was a beneficiary in a prior will. Nolan filed an amended complaint that now named Hinzey (the attorney and executor) as a party defendant, asserting that she was mistakenly excluded from the September will. Only the State of Ohio and Hinzey answered the amended complaint. Hinzey denied undue influence, mistakenly excluding Nolan, etc., because Hinzey claimed Nolan had no close relationship with decedent Juanita. In 2014, Nolan moved for default judgment against the non-answering parties, which was granted by the court. Nolan later filed for a voluntary dismissal of all parties but Hinzey and the Humphreys, who she now filed a motion for summary judgment against. She said undue influence was proved against the Humphreys via the default judgment; thus, the will provision giving the Humphreys a large amount should be stricken as invalid. Hinzey filed a brief in response and his own summary judgment motion. After considering various pleadings, the probate court granted Nolan’s motion for summary judgment against the Humphreys because of the default, finding that this undue influence invalidated the entire Will. It found the August 2013 Will to be the valid will. Hinzey appealed. The 7th District Court of Appeals addressed the matter by first reviewing the standard for summary judgment under Ohio Civil Rule 56: there must no genuine issue of material fact, the movant is entitled to judgment as a matter of law, and that reasonable minds can only come to a conclusion in favor of the movant, though all evidence is construed in favor of the non-moving party. The Court found (after reviewing appellate and Ohio Supreme Court cases) that a fiduciary has no positive duty to defend a will contest in Ohio; however, an executor has the right to do so and can voluntarily assume the burden to do so, and thus answers for all devisees under the will. Hinzey therefore had the right to defend all devisees in the will contest and did so. As he had answered, the

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default judgment against the Humphreys and other non-answering defendants was invalid. Summary judgment was inappropriate for Nolan. However, the Court found Hinzey’s MSJ was amply supported as to the September 2013 Will’s validity; in contrast, Nolan’s evidence consisted of one page and her affidavit was “self-serving.” Hinzey and the estate met the burden for summary judgment: the Court found no undue influence and the September 2013 Will to be valid. Reversed and remanded for a finding of summary judgment for Hinzey.

TOPIC:

Expiration of legal secretary’s notarial commission did not raise a genuine issue of material fact as she signed as a witness not as a notary.

TITLE:

Black v. Watson, 2016-Ohio-1470.

The will at issue in this case is a three-page document. Decedent signed on page two, which indicated that it was executed on March 25, 2003. Page three is the witness page, and it indicated that the will was executed on March 1997. Under the will, decedent bequeathed his entire estate to Watson. The will further provided that upon Watson’s death, the remaining estate would be divided equally between Black and Watson’s son, defendant-appellee Chester Pitkiewicz. Decedent had a 1997 will that was revoked by the 2003 will. Under the 1997, 75 percent of decedent’s estate would have gone to Watson, and the remaining 25 percent would have gone to Black. Decedent passed away on July 3, 2013. In October 2013, Watson filed a copy of decedent’s March 2003 will in probate court. Watson maintained that the original will was lost, but that the copy was a true and accurate duplicate of what had been executed. In January 2014, Black filed this will contest action against Watson and Pitkiewicz. Black contended that the will should not be admitted because it (1) failed to demonstrate that it was observed by two witnesses as required under R.C. 2107.03; and (2) was executed as a “direct result of undue influence” exercised by Watson over decedent. In April 2015, Watson filed a motion for summary judgment, which Black opposed. On September 11, 2015, the trial court granted Watson’s motion for summary judgment and dismissed Black’s complaint in its entirety. Black appealed. In her first assignment of error, Black contended that the trial court erred by granting Watson’s motion for summary judgment because there were genuine issues of material fact as to whether Watson exerted undue influence over decedent. The Court of Appeals for Cuyahoga County found that based on the record, the trial court properly found that Black failed to demonstrate that a genuine issue of material fact existed as to whether Watson exerted undue influence over decedent in his execution of the 2003 will. It agreed with the trial court that decedent’s arguable imprudent business and personal financial decisions, standing alone, are insufficient to demonstrate

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that he was a susceptible testator. The other documentation submitted by Black was not relevant to the issue at hand: Whether decedent was a susceptible testator and whether Watson exerted undue influence over him to execute the 2003 will. Rather, the majority of the documentation submitted by Black related to events that allegedly occurred well after the 2003 will was executed. Black, therefore, had also failed to demonstrate that there was a genuine issue as to whether Watson did in fact exert improper influence over decedent in regard to the execution of the 2003 will. It therefore found that the trial court properly granted summary judgment in favor of Watson against Black’s claim of undue influence. The first assignment of error was therefore overruled. Black also contended that the will was not in compliance with the statutory requirements. The Court of Appeals noted that “attestation” and “subscription” to a will are two separate and distinct requirements for proper execution under R.C. 2107.03. Subscription is the physical act of affixing a signature for identification purposes. Attestation is the act by which the subscribing witnesses hear the testator acknowledge his or her signature or see him or her sign the document in their presence. The will was signed by Daniel W. Watson and witnessed by Kelly Mullins and David Riehl. Black acknowledges that there is no requirement that wills be notarized, but quotes this court’s finding a “false notary acknowledgement is a factor to be considered in making a will contest determination.” Black reasoned that the fact that the purported 2003 will was defectively notarized by a person not having a valid notary commission raises but one more genuine issue of material fact to preclude summary judgment in this will contest action. Mullins, a.k.a. Antel did not attempt to notarize the will but she signed as a witness. Therefore, there was no false notary acknowledgment in regard to the will. It further found that there was no false notary acknowledgment in regard to the affidavits of Watson, Riehl, and Antel, which Watson submitted in support of her summary judgment motion. Reihl, an attorney, notarized Watson’s affidavit; Antel notarized Riehl’s affidavit on April 13, 2015, a date that Black has not contended Antel’s commission was expired; and Antel’s affidavit was notarized by a notary not involved in this case. Therefore, the affidavits submitted by Watson in support of her motion were properly before the trial court, and established that the date of March 25, 1997, contained on the last page of the will, was a typographical mistake. The affidavits further indicated that decedent, with presence of mind and on his own accord, signed the will. Further, the affidavits established that two competent people, Riehl and Antel, witnessed decedent execute the will. Black failed to demonstrate otherwise.

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It therefore held that in light of the above, the will complied with R.C. 2107.03, and Black’s second assignment of error was overruled and the Judgment of the probate court was affirmed.

TOPIC:

The “jurat” or notarial attestation clause of a notary public acknowledged that the Decedent signed the Will in front of the notary, and that the notary subscribed/witnessed it. Because the other, actual attesting witness had indeed signed and witnessed the Decedent’s signature, both were there for the purpose of witnessing the Will, and were therefore “consciously present” when Decedent signed the Will.

TITLE:

In re Estate of Harris v. Harris, 2016-Ohio 2615.

Harris died testate in 2011, leaving a surviving spouse, seven children and eleven grandchildren. Harris’ 2005 Last Will was admitted to probate in 2012 in the Stark County Probate Court, giving everything to his wife and disinheriting everyone else. His prior 1998 Will had divided his property between his wife and children. Harris also had a pre-nuptial agreement in 1998 wherein the spouse agreed not to challenge the 1998 Will. The 2005 Will contained 4 signatures: the Decedent’s, the attesting witnesses’ signatures, and finally was the notary public’s signature. The notary jurat indicates that the testator and the witnesses appeared before the notary who executed the Will in front of him. In depositions, however, one of the witnesses stated he never signed the 2005 Will; the notary amazingly admitted he forged the signature of one witness as a favor to the Decedent; the notary was unsure as to whether the other witness was in the room when Decedent signed, but he had taken the Will to her. The notary also did witness Harris sign the Will and used the notary seal and jurat. One of Decedent’s sons filed a complaint to contest the 2005 will. It was set for a jury trial. His motion for summary judgment was denied. The jury found the Will to be valid, the trial court denied appellant’s JNOV motion, and Decedent’s son appealed. The 5th District Court of Appeals reviewed the case. Appellant argued that a notary’s signature cannot be used as a second witness’ signature if the notary signed in a notary capacity. The Court used RC § 2107.03 to go over the elements of a valid will, and noted that the probate court found that the “jurat” or notarial attestation clause acknowledges that Harris signed the Will in front of the notary (which he did), and that he subscribed/witnessed it (which the notary had done). The other, actual attesting witness had indeed signed and witnessed the Decedent’s signature. Both were there for the purpose of witnessing the Will, and were therefore “consciously present” when Decedent signed the Will. The Court distinguished the instant case from the 4th District’s holding in Timberlake v. Sayre, 2009-Ohio-6005.

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The Court also reviewed RC 2107.24, which allows a document that is executed as a Will, even if not in strict compliance with RC 2107.03, to be admitted to probate as a Will: the decedent had the document prepared to be a will, intended it to be his will, and signed it in the conscious presence of two or more witnesses. Under 2107.24 (A)(3), “conscious presence” means within the range of the senses of any witness, excluding sense of sight or sound that is sensed by telephonic, electronic or other distant communication. The 5th District Court of Appeals ruled that the burden was on the appellant to show the 2005 will was not executed in accordance with Ohio law. The one valid attesting witness did properly sign, and the notary’s signature and jurat indicate he was also a valid witness. The 2005 Will was valid and properly admitted to probate. Affirmed.

WRONGFUL DEATH TOPIC:

Probate Court properly determined equitable distribution to wrongful death beneficiaries.

TITLE:

In re Estate of Molitor, 2016-Ohio-1429.

Decedent passed in 2001 due to asbestos-related health problems. His wife and their five children survived him and wrongful death claims were filed against a number of defendants. In 2002, an estate was opened for litigation only and a number of claims were settled until 2008, when the probate court determined the proceeds should follow the intestacy statute of descent and distribution, resulting in the late wife’s estate receiving all the funds for distribution. This holding was reversed on appeal of the surviving children and upon remand, the probate court heard the arguments of the children and the spouse’s estate representative and ordered that fifty percent be distributed to the wife’s estate and that the five children equally divide the remaining fifty percent. In addition, attorney fees were approved and the 2014 judgment entry was certified under Civ R. 58(B) and provided “there is no just reason for delay”. The appeals court affirmed, holding that the appeal was untimely since the children did not appeal until August of 2015, well after the appeal period on both the 2014 entry and a subsequent January 2015 entry adding findings of fact and conclusion of law, again certified, and again providing “there is no just reason for delay”. First, the appellate rules require a timely appeal within thirty days of a final order. Second, case law supported the finding that that an “order distributing the proceeds of the settlement affected a substantial right, thus constituting a final appealable order. Finally, other orders of the probate court in 2015 touching on the ongoing litigation did not open the door to “re-litigate issues which they failed to timely appeal”. The appeals court also addressed an assignment of error that the probate court lacked jurisdiction over future proceeds from the litigation. The appeals court held that 145

the wrongful death statute sets out that the date of decedent’s death fixes the status of all beneficiaries and the amount of damages each beneficiary is awarded. The children cannot re-litigate the distribution formula each time a beneficiary passes, in this case the surviving spouse, who passed well after decedent.

TOPIC:

Before determining subrogation issues in a wrongful death action, a court must determine damages attributable to either the wrongful death claim or survival claim.

TITLE:

Estate of Shackelford, 2016-Ohio-1431.

Decedent was killed when a motorist ran a red light and struck him when he was proceeding through an intersection on his motorcycle around 4:40pm on an April afternoon in 2013. He died a little over an hour later at the hospital without regaining consciousness. He was survived by a surviving spouse who was executor of the estate and an adult son. Aetna paid $32,917.06 for treatment at the hospital and sought recovery under a plan with a subrogation and reimbursement clause giving it payment priority in survival actions. The probate court allocated the full amount Aetna sought to the survival claim based on the language of the plan and the objections of Aetna to the $880.43 proposed by the estate fiduciary. She had applied to allocate the motorist’s insurance policy limits of $102,000.00 as follows: first to go toward funeral expenses of $19,361.91; then attorney fees and expenses of $33,333 and $295.88, respectively; then the net amount was proposed to be allocated $48,128.78 for the wrongful death claim and $880.43 for the survival claim. Appellant argued the probate court should first have apportioned the settlement proceeds between the wrongful death and survival claims and then allowed Aetna to be reimbursed from the amount attributable to the survival claim. The appeals court first clarified that a “wrongful death claim belongs exclusively to the decedent’s beneficiaries and is meant to cover pecuniary and emotional loss suffered by those beneficiaries as a result of the death. By contrast, a survival claim is simply the action the decedent could have brought for the injuries he suffered prior to his death and is generally for the benefit of the estate.” It then determined that the probate court had not given consideration to the value of the wrongful death claim and that it read the language of the plan too broadly in Aetna’s favor rather than restricting its ability to recover only to “medical expenses paid for the treatment of the covered person and settlements or judgments received by the covered person”. Such an allocation does not relate to damages of the statutory wrongful death beneficiaries. “That is, under the plan’s clause, Shackelford subrogated to Aetna only his right to recover from third parties compensation for his medical expenses.”

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The appeals court found the probate court erred in applying the plan’s subrogation and reimbursement clause to the entire unallocated settlement, and in failing to give any consideration to the relative values of the wrongful death and survival claims. “Allocation of the settlement proceeds will be determined by the probate court based upon what is equitable and without regard to appellant’s proposed allocation and distribution.” The probate court judgment was reversed and remanded with directions to apply the subrogation and reimbursement clause only to the amount of proceeds it first allocated to the survival claim.

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Report on Gehrke v. Senkiw

I handled the case of Gehrke v. Senkiw, 2016-Ohio-2657 (Ct. App). The effect of this appellate decision is to transmute a common pour over clause into an incorporation by reference cause, thus requiring you to bring an inter-vivos trust and its assets into a probate estate. A pour over clause in a will simply transfers the residue of probate assets to the trust and is used in almost every will where there is an inter-vivos trust. By contrast, an incorporation by reference clause in a will is usually triggered when the trust fails, such as when it is successfully contested. An “incorporation” clause prevents the trust from failing by bringing the trust and its assets into the probate estate to be administered as a testamentary trust. The problem with Gehrke is that it transmutes all pour over clauses into incorporation clauses. Since Gehrke is interpreting the Ohio Supreme Court decision of Hageman v. Cleveland Tr. Co., 45 Ohio St. 2d 178 (1976), I believe that this represents the law in the State of Ohio, and not just the law of the 2nd District Court of Appeals. To understand this topic in greater depth, you must understand the Gehrke decision, the Hageman decision, the Ohio pour over statute ORC 2107.63 and the Ohio incorporation by reference statute ORC 2107.05. I explain the interplay between these two cases and two statutes in the jurisdictional brief that I filed with the Ohio Supreme Court; excerpts of this brief are attached. This brief is much easier to understand than reading the cases and statutes separately. Gehrke was the first reported case that we could find that interprets Hageman in this manner. If you follow it, you must bring the inter vivos trust and its assets back into the probate estate and administer the trust as a testamentary trust. If you ignore

this case, then I believe you put the trustee at risk and you may be committing malpractice. Gehrke has upset many estate planning attorneys and accordingly, the OSBA Estate Planning Committee is working on a “legislative fix;” see draft attached. It will probably take at least 9-12 months to become law and it will not apply retroactively. What do you do in the short term? In your will pour over language, I would add a sentence which says “it is my intention to merely pour over estate assets to the trust, it is not the intention of this provision to incorporate the trust by reference.” What if your client dies tomorrow? My thought is that you try to get the consent of the executor, trustee, and perhaps the beneficiaries to treat the situation as originally intended, that is, to avoid probate. The largest problem would arise if the surviving spouse gets more under the right to elect against the will than under the trust. Another approach would be for the executor to file a will construction action naming as parties the executor, trustee, and all beneficiaries. I would surely believe you could convince the judge that it was the testator’s intent not to incorporate the trust by reference and bring its assets back into the probate estate. Some of you may have a better idea. Good luck.

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§ 2107.05. Incorporation by reference (A) An existing document, book, record, or memorandum may be incorporated in a will by reference, if referred to as being in existence at the time the will is executed. That document, book, record, or memorandum shall be deposited in the probate court when the will is probated or within thirty days after the will is probated, unless the court grants an extension of time for good cause shown. A copy may be substituted for the original document, book, record, or memorandum if the copy is certified to be correct by a person authorized to take acknowledgments. (B) Notwithstanding division (A) of this section, if a testator’s will incorporates the testator’s trust in the event that the trust is determined to be invalid, the trust instrument shall be deposited in the probate court not later than thirty days after the final determination that such trust is invalid. (C) The testator’s will must manifest an intent to incorporate a trust by reference through the use of “incorporate,” “made a part of,” or similar language. Absent clear, express intent, a trust shall not be incorporated into or made a part of the will. Language in the testator’s will that only identifies the trust shall not be sufficient to manifest an intent to incorporate a trust by reference. (D) Divisions (B) and (C) of this section shall apply to wills of testators dying on or after the effective date of said divisions (B) and (C).

(E) The purpose of amending this section is to reverse the holdings of the Ohio Supreme Court in Hageman v. Cleveland Trust Company, 45 Ohio St. 2d 178 (1976) and the Ohio Second District Court of Appeals in Gehrke v. Senkiw, 2016-Ohio-2657 (Ct. App.) (2016).

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IN THE SUPREME COURT OF omo

TIMOTHY J. GEHRK.E, et al, Plaintiffs!Appellants,

16­

On Appeal from the Montgomery

C01.U1ty Court of Appeals, Second Appellate District

Vs. . PETER SENKIW, JR., et al, Defendants!Appellees.

Court of Appeals Case No. 26829

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANTS, TIMOTHY J. GEHRKE, ET AL

Richard Kolb (0016449) Law Office of Richard Kolb, LLC 405 Madison Avenue, Suite 1000 Toledo, Ohio 43604 . PH: (419) 244-3006 Attorney for Appellants

T. Andrew Vollmar Freund, Freeze & Arnold Fifth Third Center 1 South Main St., Ste 1800 Dayton, Ohio 45402 Attorney for Peter Senkiw, Trustee

Wayne E. Waite Freund, Freeze & Arnold Fifth Third Center 1 South Main St., Ste 1800 Dayton, Ohio 45402 Attorney for Peter Senkiw, Individually

Todd K. DeBoe Senior Assistant Attorney General Charitable Law Division 150 East Gay St., 23 rd Floor Columbus, Ohio 43215 Attorney for Charities

J. Anthony Lehman Rushcau & Lehman 443 East Central Ave. Miamisburg, Ohio 45342

John P. Hilgeman Cowan & Hilgeman, Attorneys at Law 12 West Monument Ave., Ste 100 Dayton, Ohio 45402 Attorney for Elizabeth Kohler and Frank and Helen Keane

David H. Glover and S. Ann Glover shford Dr.

JUN 022016 SUrtl......

CLERK Or COURT SUPREME COURT OF OHIO

(BELOW ARE EXCURPTS FROM THE GEHRKE JURISDICTION BRIEF:)

WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST

Introduction: The decision in Gehrke v. Senkiw, Case Number 26829 (2016) will have a disastrous effect upon tens of thousands of estate plans in the State of Ohio that couple inter vivos trusts with pour over clauses in a will because it converts “pour over clauses” into “incorporation by reference clauses,” thereby bringing inter vivos trusts and their assets into the probate estate. This undermines the intent of Ohio residents who have relied on estate planning advice on how to avoid probate. A pour over clause is designed to transfer assets to an inter vivos trust; by contrast, an incorporation by reference clause is designed to “save” the trust by bringing it back into the probate estate if the trust is defective. These two clauses have entirely different purposes…. The case at bar overturns decades of common understanding of inter vivos trusts and pour over wills…. [and] runs counter to how tens of thousands of estate plans have been and are administered in Ohio. This consequence is exactly what the public does not want. The public wants to “avoid probate,” not increase it. The public wants privacy as to trust terms and assets, not publicity. The public wants to avoid the burdensome requirements of testamentary trusts by using the more efficient and less costly administration of an inter vivos trust…. Turning pour over clauses into incorporation by reference clauses violates the very reasons why people set up trusts and pour over wills to begin with.

Maureen Kramariuk’s will: This case arose out of a will and trust signed by the decedent, Maureen Kramariuk (Mrs. Kramariuk). Mrs. Kramariuk had an inter vivos trust and a will that directed that her residuary probate estate be distributed to her inter vivos trust. Item II of Mrs. Kramariuk’s will reads, in essence, as follows: I give, devise and bequeath all of my residuary estate...to the Successor Trustee [of myTrust] .., subject to all the terms and conditions, uses and trusts and powers as contained therein. Incorporation by reference clauses are used to save the trust: Clauses that incorporate an inter vivos trust by reference are used to “save” the intended bequest when the trust is defective, such as where the trust is found to be invalid …An incorporation by reference clause is designed to resuscitate a failed inter vivos trust, … [by bringing] the trust into the probate estate as a testamentary trust and thus allow it to continue to control the management and distribution of assets.... In this case, the lower court interpreted the clause in Mrs. Kramariuk’s will to be an incorporation by reference clause. The problem with this interpretation is that is not restricted to a failed trust, but, rather, would make such clauses apply to all trusts where there is a pour over will…. Four prominent estate planning attorneys, either by amicus brief or by affidavit, support Plaintiffs’ position … … based upon the Ohio Supreme Court decision in Hageman v. Cleveland Tr. Co., 45 Ohio St. 2d 178 (1976), the Probate Judge struck these affidavits as invading her province to interpret

the law and held that the pour over clause in Mrs. Kramariuk’s will also incorporated her trust by reference, a decision that the Court of Appeals affirmed…. The decisions of the courts below will create uncertainty among attorneys and undermine faith in our legal system, because these decisions overturn decades of what estate planning attorneys understood to be established law. The Hageman case: Both the Probate Judge at page 11 and the Court of Appeals at ¶1718 based their decisions on Hageman supra, a case discussed below. The will clause used in Mrs. Hageman’s will was similar to the clause used in Mrs. Kramariuk’s will. It is the Hageman decision which has caused the problem in the case at bar... We were unable to find a single Ohio decision that previously used the will clause in Hageman as a template for an incorporation by reference clause, but now the case at bar shines a spotlight on the Hageman will language, thereby placing estate planners in the impossible position of either continuing to administer the trust outside of the probate estate as they have always done before, or forcing them to bring the trust and its assets back into the probate estate, to the dismay of their clients… The Kramariuk will clause did not use the term “incorporate by reference;” in fact, it did not even use the word “incorporate….” The bottom line is this: neither Mrs. Kramariuk’s will clause nor the Hageman will clause is restricted to situations where the trust fails and further, neither even mentions the word “incorporate.” Thus both clauses improperly transmute a common pour over clause into an incorporation by reference clause, thereby bringing the inter vivos trust and its assets into the

probate estate with the consequence that assets held by a trustee become subject to probate administration, resulting in increased probate costs, and making the trust terms public. This is a disaster to Ohio probate practitioners and their clients who rely upon their advice in order to avoid probate.

STATEMENT OF CASE AND FACTS Plaintiffs-Appellants, Timothy Gehrke, Kerry (Gehrke) Runyeon and Traci (Gehrke) Richard filed suit in the Montgomery County, Ohio Probate Court naming as Defendants Peter Senkiw, individually and as Trustee of the Maureen Kramariuk Trust, Elizabeth Kohler, Incarnation Church, and other lesser trust beneficiaries. The suit challenged the validity of a certain restated trust signed by Mrs. Kramariuk on July 31, 2013, and its amendment signed on August 5, 2013, claiming that both were the product of Mrs. Kramariuk’s incompetency and undue influence. Plaintiffs only challenged the decedent’s trust and its amendment; they did not also challenge the decedent’s will dated July 31, 2013…. Both courts below relied upon the Hageman decision, supra, for the proposition that Mrs. Kramariuk’s will contained an incorporation by reference clause. Where a trust was specifically incorporated by reference into a will, both the will and the trust must be contested (Pushee v. Akron Nat'l Bank & Trust Co., 1977 Ohio App. LEXIS 7942 at page 5), and since Plaintiffs did not also contest the decedent’s will, the lower courts held that Plaintiffs were barred from contesting the trust….

Maureen E. Kramariuk: The decedent/settlor/testator in this case is Maureen E. Kramariuk (Mrs. Kramariuk) who died on February 10, 2014 at age 90. Her nearest next of kin in the United States were her nieces and nephew, the Plaintiffs above. Mrs. Kramariuk had a 21-year estate plan leaving the residue of her prior trusts to the Gehrkes, but this plan was radically changed 6 months before her death when she signed the final restated trust and trust amendment in 2013. The Plaintiffs: Plaintiff, Timothy Gehrke (Tim) was Mrs. Kramariuk’s nephew. In 2003 Tim was diagnosed with Asperger’s autism and as a result of this condition, he is no longer employed and is now living off of a modest government pension and Social Security disability….

Prior plans: Mrs. Kramariuk had a series of prior trusts. Mrs. Kramariuk’s most immediate prior restated trust was signed in 2008 and gave the entire residue to Tim in trust. This document was signed by Mrs. Kramariuk after she learned of Tim’s Asperger’s autism…. Thus, for a 21 year period between July, 1992 and the final Restated Trust of July, 2013, Mrs. Kramariuk favored the Gehrke family (Tim, Kerry and Traci) and excluded Pete Senkiw, Pete’s three children, and Elizabeth Kohler, but each plan left the Church $5,000 for masses…. Mrs. Kramariuk’s medical condition in July/August, 2013: Being 90 years old, Mrs, Kramariuk had a series of physical ailments. In addition, her mental condition was also compromised. Medical records dated before the July 2013 trust signing indicate “memory: impaired,” “impaired cognition,” “confused,” “talking about how she is seeing her dead sister sitting over there,” etc. Her final diagnosis 6 months after signing in July/August, 2013 was “severe dementia.”

Susan Harris, … described in an affidavit certain events which occurred before the final trust signing, including the fact that Mrs. Kramariuk removed her government bonds from US Bank and stored them in her freezer, …that Mrs. Kramariuk accused people of stealing her wedding rings which Susan later found in Mrs. Kramariuk’s dresser drawer, and that the management at Mrs. Kramariuk’s condo was concerned she would cause a fire. There was an incident in October 2011, when Mrs. Kramariuk stated to Ronnie Gallion, a furnace repairman, that her furnace blower was causing the carpet pile to rise up and cover her furniture. As a result, she purchased a new furnace even though it was unneeded. What rational person keeps their government bonds in a freezer? Who talks about their dead sister sitting over there? Who believes her furnace blower causes the carpet pile to rise up and cover her furniture... Pete’s involvement in Mrs. Kramariuk’s financial affairs and trust making: … While Pete claimed he “did not discuss the estate plan with Maureen” and that he “did not know he was a beneficiary,” the fact is he did know about the estate plan. The scrivener’s estate planning notes say: “[Maureen] wants Pete Senkiw to stay and help her” and in fact, Pete was at three of the five meetings the attorney had with her concerning the changes to her trust. The scrivener even sent Pete a draft of Mrs. Kramariuk’s trust and Pete penciled in corrections….

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW The ultimate question in this case is whether Item II of Mrs. Kramariuk’s will constitutes a pour over clause or an incorporation by reference clause. If it is merely a pour over clause, then her trust was not incorporated into her will by reference and, accordingly, there was no duty by

Plaintiffs to contest Mrs. Kramariuk’s will. Under this circumstance, the decision of the courts below should be reversed…. The purpose and content of a pour over clause: The purpose of a pour over clause is to transfer (or pour over) probate estate assets to the testator’s inter vivos trust. The Ohio pour over statute, ORC 2107.63 reads in pertinent part: A testator may by will devise, bequeath, or appoint … property ... to a trustee of a trust ... that is identified in the will... The property or interest so devised,... shall become a part of the trust estate...and shall be administered in accordance with the terms ... of the ... trust... … The common sense distinction between the two clauses: The words that describe them assist in distinguishing a pour over clause from an incorporation by reference clause. The words “pour over” are equivalent to the word “transfer.” By contrast, the word “incorporation” implies that one document is brought into another…. Failure to Show Intent to Incorporate: If the will intends to incorporate the trust by reference, this intention must clearly appear in the will: In Ohio, an existing document may be incorporated into a will by reference ... The reference in the will itself … must be in such a way as … to show the testator's intention to incorporate the document into his will and make it a part thereof. Page on Wills, § 250 (Lifetime Ed.) … This requirement is also common sense. If there is an intent to incorporate the trust, the will language should say so. Nowhere does Item II mention the word “incorporate.”

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The Hageman case: Both courts below found that the Hageman case supra carried the day…. It is clear the Supreme Court believed that the trust represented Mrs. Hageman’s intent… An article titled Problems with Pour-Over Wills by Robert J. Lynn, appeared in the Ohio State Law Journal, Volume 47, No. 1 (1986), at Pages 47 – 64. … Professor Lynn goes on to discuss the confusion between the terms as noted in several cases including Hageman and a case out of Oklahoma, stating “a court intent on reaching what it deems to be a desirable result can take clear pour over language and ‘construe’ it beyond recognition” (p 50).

Most

important, Hageman does not anoint the will language found in its Appendix 2 as incorporation by reference language. Nowhere does Hageman state that this language constitutes incorporation by reference language. We can find no decision citing the Hageman will language as containing a template for an incorporation by reference clause. … CONCLUSION For the reasons set forth above, this case involves a matter of public and great general interest. Appellants request that this Court accept jurisdiction of the case at bar to eliminate the uncertainty it causes in the common use of inter vivos trusts and pour over wills.

Respectfully submitted,

______________________ Richard Kolb Attorney for Appellants

CONTINUING LEGAL EDUCATION

SPONSORED BY THE PROBATE AND ELDER LAW COMMITTEE

2016 ANNUAL PROBATE COURT AND ELDER LAW SEMINAR

Supporting Materials By: L. Paul Hood, Jr., Director of Planned Giving The University of Toledo Foundation

12/14/2016

Estate Planning  for 

Modern Families L. Paul Hood, Jr. The University of Toledo  Foundation

Disclaimer/Warning • The views that I express here are my  own, and they do not necessarily reflect  the views of either The University of  Toledo or The University of Toledo  Foundation. • This is intended as educational material  and should not be construed as specific  legal advice. 2

Today, I’ll Address  Selected Key Aspects. I’ve Actually

EXPERIENCED (Both Professionally AND Personally) (Too) Many of The Issues I’ll Be Covering! 3

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Second marriage: Triumph of hope  over experience  Samuel Johnson

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Who  IS The Modern Family? 5

– Blended family couples – Same sex unmarried partners – Unmarried couples

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“Blended Family”

At least  one partner has  at least one child  who is not child of  other partner 7

• Each Family is Different • Each Situation Requires  Different Approach 8

Brady Bunch: Widow and Widower  Both in  40’s,  Each with 3 children  from prior marriages.  9

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May‐December Relationship: Wealthy Widower  ‐ 80  3 Adult Children in their 50s,  Marries Woman 26 With 7 Year Old Daughter 10

Empty Nesters:  Widower – 72 Has Pension, Received Late Wife’s Insurance 3 Adult Children Marries Divorced Woman – 72 3 Adult Children No Assets Except Home No Income Except Social Security 11

Eat, Drink and Remarry: 63 Year Old One son  Large alimony obligations 3 Prior Marriages  marries  35 Year Old Two‐time divorcee  Two dependent sons 12

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Same Sex Blended Family:  46 Year Old Woman Marries 37 Year Old Woman Both are Parents One Divorced with 10 Year Old One with Adopted Son ‐ 18

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Yours, Mine and Ours: Man Age 43  Divorced Marries Woman Age 41 Each ‐ Minor Child  Each ‐ Joint Custody Together – 7 and 3 Year Olds

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Blended Family Statistics:

Becoming “The Norm”:

• 50% of U.S. children raised in blended families • 1,300 new stepfamilies formed every day • Now more  blended families than any other  type of family  • At least one‐third of U.S. children expected to  live in blended family before age 18 • Over 50% of blended family divorces are  caused by the children of either or both  partners Source: http://prtl.uhcl.edu/portal/page/portal/SOE/Programs/COUNSELING_MS/Counseling_Resources/Files/BlendedFamilies.pdf 15

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Estate Planning for Modern Families Today’s Topics: • Preparing for Initial Meeting • Human Side of Estate Planning • Planning for Unmarried Couples • Powers of Attorney and Living Wills • More if Time Permits 16

Preparing  for  Initial Meeting: 17

How do blended family couples come to you? • Preexisting relationship (personal or professional) with  one partner but not other partner • Separate preexisting relationships (personal or  professional) with each partner • No preexisting relationship with either partner • Beware:  Any past relationship potentially taints you‐ (Technicalities rarely help those  attempting to use them as shield) 18

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How to handle initial conference: • Meet with each partner separately • Meet with only one partner • Meet with both partners at same time • Meet with both partners together and separately

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I suggest: • Meet with both partners, both separately and together • Never meet with just one blended family partner! (Risk of being perceived as biased in favor of partner with  whom you met too great!) (Also risk undue influence claim)

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Bottom line:  Practice defensively, especially when  representing blended family couples, or risk  being sued or serving as unpaid fact witness Unhappy clients more likely to sue you,  more likely to talk negatively about you, less likely to pay you 21

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Human Side  of estate planning For Modern Families 22

I’ve identified 12 possible fears in estate planning • Fears of estate planning process • Fears of estate planners Result: Clients procrastinate (“planning paralysis”) Result: Unforeseen results visited on blended  families, particularly on couples not legally married. Example: Health care situation ‐ patient lacks health  care power of attorney/advance care directive.   HIPAA and privacy rights might freeze the partner  out.   23

Why So Much Angst in Blended Families?

• • • • • •

Divisions based upon divided loyalties  Children often grieving loss of parents’ relationship Children often grieving loss of deceased parent Children stuck with “no one can replace momma” Children jealous of parent’s new partner Distrust of new partner’s motives

RESULT:   New partner and children often  fear – despise – are angry at ‐ each other

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Even in subsequent union,  should not be extended back‐and‐forth negotiations,  particularly through lawyers, over a marriage contract or property agreement  Why?  May undermine foundation of couple’s  relationship Psychological counseling or coaching  “helps facilitate resolution of disagreements” Leaving Money Wisely by David W. Belin 25

Few estate planners  schooled in psychological and emotional aspects  of these discussions  (Goal is  “win‐win” for couple) Problem: Most lawyers/advisors see negotiations as     zero sum games (Wrong‐headed in our opinion)

Stephen Covey: Seven Habits of Highly Effective People 26

Principal  Estate Planning Concerns Expressed by  Blended Family Partners: 27

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• Choosing between partner and children • Providing for payment/apportionment of estate taxes • Hedging bets ‐ just in case the union doesn’t work out (average  length of subsequent union is about seven years) • Dealing with “problem” children and/or step‐children • Protecting young/disabled children • Caring for elderly parents or siblings 

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Conflicts of interest  and  Ethical issues

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Conflicts of interest: Issue more vexing when blended family  involved: • Approximately 60% of second marriages fail • Failure rate worse‐ 74%‐for third marriages • Conflicts of interest worse in hindsight after time  has elapsed than at time of engagement • Be watchful for present actual conflicts of interest • Be watchful for potential future conflicts of interest

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• Conflicts of interest = bad business even if not  ethical problems • Conflicts of interest not  • confined to lawyers  • I’ll focus on conflicts of interest rules for  lawyers, since they  are well developed • (Note: similar risks attend to non‐lawyers) 31

• REMINDER: • Rules of Professional Conduct (“RPC”) for  lawyers essentially restrict attorney from  representing people who are at odds with one  another or who have issues in conflict with  each other • Potential for divided loyalties is reason for   rule

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RPC Rule 1.7: General rule for conflicts for lawyers:  Proscribes simultaneous representations of  clients with “concurrent conflict of interest”  UNLESS  [1] lawyer reasonably believes that he/she can  provide “competent and diligent” representation;  [2] it isn’t against law;  [3] matters don’t involve assertion of claim by  one client against another in same proceeding  before same tribunal; AND  [4] clients give “informed consent” ‐ in writing 33

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• “Concurrent conflict of interest” Defined: • Representation of client “directly adverse” to  another client OR (this is big “or”) • “significant risk” that simultaneous  representation will be “materially limited” by  lawyer’s responsibilities to another client, former  client or third person or by personal interest of  the lawyer” • Can’t clients simply waive conflict of interest in  writing? 34

• RPC Rule 1.0(e) defines “informed consent” &  requires lawyer to communicate “adequate  information and explanation”  about “material  risks” and “reasonably available alternatives”  • Official comments to RPC Rule 1.7 provide  conflict must be “consentable,” (i.e. Some aren’t!) • Consentable is circumstantial test under the  comments‐(not much help!) • Might have to send clients to different lawyer just  to explain conflict risks 35

Routine Modern Family Couple “Conflicts of Interest”:  • Classification of property as separate, jointly owned or as  community property • Severing joint tenancies to allow for funding of credit  shelter trust • Waiver of spousal rights in retirement plan • Advising on applicability of spousal election • Breadth of powers of appointment 36

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• Trust terms • Types of legacies and restrictions on legacies (trust  v. outright) to spouses in general • Wealth disparities or economic dependence  between partners • Interpretation of marriage contract or property  agreement, including whether agreement would  withstand attack • Legacies to children versus to partner

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Actual Case on

o

M dern Family Issues

Tools and Techniques of Estate Planning for  Modern Families ‐ 800 543 0874

• Sindell v. Gibson Dunn & Crutcher, 54 Cal. App.  4th 1457 (2nd Dis. 1997) • Husband and wife had separate grown children • Husband and wife were separately represented by counsel

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• Husband hired law firm to coordinate transfer  of interests in closely held entity (his separate  property) to his daughters • Lawyers advised: Gift and sell entity interests  to children. • Lawyers did NOT advise him to get   consent/acknowledgment of separate  property (which he had inherited) from his  wife 40

• Wife had independent wealth • Wife was represented by separate counsel • Three years later, after wife become  incapacitated, her children sued step‐father to  nullify transactions, asserting transferred  property was community property

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• A year after wife’s children filed  suit to nullify gift/sale on grounds  that some transferred property  was wife’s community property,  husband’s children sued dad’s lawyers for malpractice for failing  to get wife’s consent to and  acknowledgment of gift/sale 42

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• Trial court dismissed husband’s children’s  action against husband’s estate planning  lawyers as premature since there was no  damage yet ‐ because lawsuit by wife’s  children hadn’t been concluded • Second District reversed, holding the matter  over for trial

43

• Appellate court reasoned that damage in form  of attorney’s fees to defend against the action  was damage in and of itself and remanded for  trial. • Case never reported again (Probably  settled) • Lesson: Even if clearly separate property (as  seems to have been here), get waiver!  • “It couldn’t hoit” 44

• Some conservative lawyers won’t represent couple in   blended family (will only represent one partner) • Shouldn’t proper focus be on what is best for client? (I maintain answer is “YES!”) • Looking out for client actually is in estate planner’s  long‐term best interest too: (Happy clients pay and refer others;  unhappy clients more likely to sue,  less likely to pay and  very likely to tell others about bad experience) 45

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Benefits of joint representation: • Cost savings (only one set of estate planners) • Efficiency and synergies of effort • Can better communication between partners • Being treated as partners, not adversaries

46

Benefits of separate representation: • Undivided attention and loyalty of estate planner • Total freedom to say what client feels and wants to  have done • Lower chance of estate plan challenges Note: Doesn’t eliminate challenges by surviving  partner or partner’s children 47

Signposts of need for Separate Representation (Despite what they say that they want): • One partner is childless (partners usually have different  loyalties) • One partner does all the talking or seems to exert control  over the other • Short length of relationship • Number of past relationships • Significant age disparity  48

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• Significant disparity in wealth or income • Economic dependence of one partner on the other  used against him/her • Existence of marriage contract or property  agreement  • Information held by one partner off‐limits to other  partner, e.g., a secret, etc. 49

• Many prospects for potential conflicts  of interest when drafting wills or trusts  • Major Issue: interpretation of marriage  contract or property agreement • Major Issue:  How partners have  maintained or Should maintain  separateness of property 50

• Right of partner in property of other partner in areas  such as “equitable interest” or “quasi‐community  property” • Keeping client confidences • Any non‐reciprocal will or trust provision that adversely  impacts client’s freedoms to act or rights: Example:   One partner appoints other to serve  as fiduciary while other partner chooses someone other than  partner 51

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Bottom line: • Practice defensively because modern family estate  planning can be treacherous waters where storms  can come up instantly and without warning! • Nevertheless, trying to work within family system  best where decision is to represent couple • Recognize clients have tough choices and act  accordingly 52

Estate planning for 

unmarried couples Fastest growing  segment! 53

Key Tools and Techniques, Tips and Traps: • • • • •

Split purchases GRITs “Freezes” Perils of intestacy Perils of not having health‐care power of attorney 54

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• While critical for married couples, even more for blended family married couples, MUCH more critical that unmarried couples have estate plans • HIPAA privacy laws and laws of intestacy scream out for unmarried couples in committed relationships to gain access to physicians, medical records, medical decision making and alter default rules of intestacy

55

Still many tax differences between married and unmarried couples:

– No estate tax marital deduction, portability or gift‐splitting opportunities – Chapter 14 is inapplicable to unmarried couples (which opens up interesting opportunities married couples and families don’t have) 56

– Unmarried couples don’t have to worry about governing instrument strictures of GRATs and IRC Sec. 2702 and can, within reason, use GRITs (Caveat here is for non‐income producing property. Give income beneficiary power to make GRIT property income productive) – Buy‐sell agreement valuation can be done without 2703 and 2704 limitations – Unmarried partners can engage in split‐purchases without worrying about IRC Sec. 2702 – Unmarried partners can do old‐fashioned corporate recapitalization freezes without fear of complying with IRC Sec. 2701 57

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Funeral and Related  Issues

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• Funeral services/rituals and burial/inurnment real hot  button issues • Often create highly difficult emotional (downright caustic)  issues in blended families (and result in  difficulties for all  involved in administration of estate or trust) Best Solution:   Question and Counsel Clients,  Get Specific Wishes In Writing!

59

• Counsel Clients to Make “death arrangements” in  advance • Counsel Clients to be proactive and dictate in  writing: • • •

who they want to be invited to funerals,  arrangements to be made, and  consider writing own obituaries.

60

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Powers of Attorney  and  Living Wills 61

Property Powers of attorney issues: • Modifications often necessary to regular  forms for modern family couple • Power of attorney should not permit agent  partner to significantly alter principal’s estate  plan • Powers of agent child should be similarly  restricted 62

• Limitations might need to be both negative and  positive e.g. (negative) restricting beneficiary changes and gifts not  in accord with principal’s estate plan e.g. (affirmative) requiring continuation of annual gifts,  etc.

• To dispel uncertainty (which can lead to litigation),  power of attorney should expressly require agent to  give children of  principal access to financial and  medical information, or to  partner, if child is agent

63

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• Limit gifts of family heirlooms (e.g.,  silverware, china, jewelry, and art) • Limit changing beneficiary  designations • Limit changing distribution provisions  in IRAs and retirement plans 64

• Automatically terminate on separation or divorce • Limit exercise of powers of appointment • Do not waive accountings,  • Require periodic accountings by agent, and  probably to someone other than principal upon   incapacity of principal • Affirmatively and broadly restrict self‐dealing 65

• Coordinate selection of agent with person(s) who  will serve as executor or successor trustee to  prevent contention between fiduciary positions,  particularly if agent of deceased client has to give  an accounting with decedent’s estate • Beware of situations where same person is serving  in both fiduciary positions (no accountability) • Particularly important where persons from different sides of client’s family serve as fiduciaries 66

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Health Care  Powers of Attorney and  Living Wills Issues: 67

•

Paramount importance to unmarried partners because of  HIPAA privacy laws, particularly where client wants partner to  make health care decisions

•

Consider allowing access to medical information and doctors to  expanded group of people (Critical in a blended family if  relations are strained or non‐existent between two sides of  family)

•

Consider granting access to principal when incapacitated to   specified group. (Critical where person in control is likely to try  to limit access to principal)

68

• Decision to discontinue extraordinary life  sustaining means is  emotionally charged  and often highly contentious • Consider giving committee selected from  both sides of family that task • Alternatively, client could require agent  to confer with certain family members 69

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Family Business  Issues 70

Closely held business interest always challenging  because: • Liquidity and Non‐diversification issues • Business management succession issues that cloud  and increase complexity of estate planning issues— especially if children involved

• Further complicated if owner partner earning  livelihood from  entity 71

• Complexities magnified exponentially when blended  family partner owns or co‐owns interest in business • Issues differ depending upon when interest acquired • Working with blended family couples, expect to see  much more separate property in closely held  business interests, even in common law states,  because partners bring these interests into the  union

72

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• With Blended Families, buy‐sell agreement is  necessity • Owner partners should have non‐owner partners  sign at least acknowledgment of existence of buy‐ sell agreement • Owner partners married to non‐owner partners  should have  non‐owner partners be parties to  buy‐sell agreement. • Provide for continuing ownership and control in  owner partner upon dissolution of marriage or  relationship whether during life or at death 73

• If modern family couple is using business for support, problems  exacerbated:   Example:  One partner owns closely held business. If  owning partner dies first, surviving partner may need  business income for support.  Will it be available? • More complicated if one partner owns most, and other owns  some, and one partner has children from prior relationship in   business, and partner’s offspring with  them also interested in  working in and owning part of business.

74

• Consider how to protect both assets and  people  • Consider employment agreements and  “golden handcuff” arrangements. • Important to keep children working for business instead of competing with it  (particularly if they don’t get along with   partner) 75

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• When relations between children and surviving partner (e.g.,  stepparent) strained, parties forget (or ignore) their need for  each other.  Example: Assume surviving stepparent takes over business as trustee  of decedent’s trust that owns business interest. Assume   surviving stepparent was not involved in business during  deceased partner’s lifetime.  Survivor will need children  who work in business.  Likewise, children who work in business need their  stepparent, who is ‐ like it or not—their boss. Obviously,  problematic situation.

76

• Business owners must seriously and independently  evaluate potential successors to run business. • Too often, children don’t have training, experience,  will, or temperament  to run business if parent dies. • Too often, surviving partner doesn’t have training,  experience, will, or temperament to run business.

77

Spendthrift  Trust Clauses

78

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• Income and principal trust beneficiaries often squabble • Often difficult for them to co‐exist in same trust • Techniques to assist in dividing trust between income  beneficiary (surviving spouse) and principal beneficiaries  (usually step‐children) don’t work if spendthrift provision  prohibits all transfers Solution: Consider exit strategy: Permit specified voluntary  alienations like sales or gifts to certain related people

79

• Spendthrift trust clause that might work well (no representations or warranties):

Spendthrift Trust Provision.  The interests of the beneficiaries  shall be subject to the spendthrift trust provisions set forth  herein. The interests of all beneficiaries shall be subject to the  maximum spendthrift restraints permitted by applicable law as to  involuntary alienation as well as to voluntary alienation, except,  however, that voluntary alienation of a beneficiary’s interest shall  be permitted for transfers, sales or exchanges to or for the benefit  of the following persons: (1) any descendant, spouse, sibling or  ascendant of the beneficiary; (2) any other beneficiary of this  trust (or of any other separate trust created in this instrument);  (3) descendants, spouses, ascendants or siblings of any  beneficiary of this trust (or of any other separate trust created in  this instrument), or (4) any trust or entity owned or controlled or  held for the beneficial interest by or for any of the foregoing  persons named in (1) to (3) hereinabove. 80

Life insurance; life  insurance trusts and the Modern Family  Couple  81

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Life Insurance to the Rescue! • Life insurance can come in very handy in planning  for today’s family • If a client wants to give a business to her children  that is most of her net worth, but also wants to  provide for her partner, life insurance for the  benefit of the partner can provide support • The vice‐versa also is true, where the client wants  to give the business to the partner but also  provide a meaningful inheritance to children 82

• Life insurance trusts can work  very well in modern family  situations • Watch out for second‐to‐die life  insurance where premiums tied  to annual exclusions available to  couple where beneficiaries are  children of only one of partners 83

Annual Exclusion and the Modern Family  Couple  84

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Annual exclusion gifts:  • Beware: If life insurance premiums on a second‐to‐die life  insurance policy are tied to annual exclusion gifts from both partners in a union Problem: When one partner dies, can’t use the deceased  partner’s annual exclusion, yet policy has not paid off  yet because surviving partner is still alive

85

• Choices:  • Use part of survivor’s lifetime US gift tax applicable  exclusion amount ($5,450,000 in 2016 and $5,490,000  in 2017) to supplement that partner’s annual exclusion  gifts ($14,000 in 2016 and 2017) , or, start paying gift tax  if survivor already exhausted lifetime applicable  exclusion amount • Reduce policy coverage • Let policy lapse • Sell policy on secondary Market 86

• Imagine telling step‐parent he or she has to pay gift tax  on top of premiums for insurance to solely benefit  step‐children?  • Numerous other examples of ill‐advised annual  exclusion gifts: Example: Gift of hard to value assets that require annual valuations as  mere annual exclusion gifts or where a client isn’t likely to  have a taxable estate in the first place! 

87

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Estate Tax Apportionment • This is often included in the so‐called  boilerplate legalese in the document, but it  might be the most important provision in that  document. If you don’t address estate‐tax  apportionment in the client’s will or trust, the  state provides default estate‐tax  apportionment rules, and you should know  them! 88

Estate Tax Apportionment • This means that your client must describe his  or her intentions to you relative to estate‐tax  apportionment. You also can and should  provide for whose share is charged with the  expenses of administering the estate or trust,  since those expenses can be significant. • Again, client intent is critical here.

89

Estate Tax Apportionment • Contrary to popular belief in a married couple  estate plan, tax apportionment issues lurk at  both the first death and the second death, not  just at the second death. • Suppose that your very wealthy ($50,000,000)  client decides to leave 1/2 of his estate to his  children and 1/2 to his wife—is this intended  to be before or after estate taxes— don’t  assume! Be sure to ask about this. 90

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Estate Tax Apportionment • After making some assumptions about tax rates  and exemption amounts, there could be a  significant multi‐million dollar swing in what the  wife and children would receive: the children will  likely both fight the wife and pursue your E&O  carrier for that kind of change. • In large estates such as this one, the use of  examples with real numbers in the documents  themselves (as well as in the explanations) is  helpful and can provide ample CYA after a death. 91

Estate Tax Apportionment • At the second death, typically in a blended family  married couple, the survivor’s documents do not  waive reimbursement of the estate tax in the  survivor’s estate caused by the fictitious inclusion  of the QTIP’d property value in the survivor’s  taxable estate. • Because waiver is so prevalent in single  relationship estate plans, caution is advised,  particularly in this day and age of “cut and paste.” 92

Estate Tax Apportionment • In blended families, it is not unusual for  people to choose higher estate taxes over  giving the surviving spouse more and their  children less. In fact, it was my experience that  this occurred often. • Get clients to sign off on this.

93

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Estate Tax Apportionment • If your client is able to communicate  effectively with his or her blended family  members about your thoughts related to this  and why this seems the only possible solution,  there may be a possibility that they could all  decided on something together that might  surprise the client

94

Estate Tax Apportionment • For example, suppose Al dies in 2016 with a $50  million estate in Ohio, a state with no death tax,  and an estate tax rate of 40%, leaving 1/2 to his  surviving spouse, Beatrice, and 1/2 to his children  of a prior marriage, having $100,000 in  administrative expenses. • After the effect of the AEA, which under present  law will shelter $5,450,000 of assets from estate  tax, if taxes come off the top, Beatrice and Al’s  children will each take $20,075,000 and  $9,750,000 will go to estate taxes. 95

Estate Tax Apportionment • If taxes come out of the children’s share instead,  Beatrice will take $25 million, Al’s children will take  $17,120,000, and $7,780,000 will go to estate taxes. • In this example, then, there is a negative swing of  $4,999,250 in what Beatrice takes, a positive swing of  $2,888,750 in what Al’s children take, and an additional  $1,970,000 in estate taxes paid, just depending upon  how the estate taxes are apportioned. • Numbers courtesy of NumberCruncher.  www.leimberg.com

96

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Estate Tax Apportionment • At the second death, the issue becomes how  the estate tax is apportioned between the  share fictitiously included in the estate  pursuant to IRC Sec. 2044 (the QTIP’d share)  and the remainder of the surviving spouse’s  estate. • While the estate tax is a “flat” tax, this issue  isn’t as important because the apportionment  is on a marginal basis.  97

Estate Tax Apportionment • Given the “knee‐jerk” default drafting in single  marriage/shared children waiving  reimbursement under IRC Sec. 2207A, it is  critical to make sure that surviving spouse  expressly does not so waive in all of their  documents (will and living trust). • Otherwise a malpractice action could result,  as in Creighton Univ. v. Kleinfeld, 919 F. Supp.  142 (E.D. Cal. 1995). 98

Thank You!!!

• If you have any comments or  questions, please contact me  at [email protected] or  [email protected] or give me a call at  419.530.5303. 99

33

CONTINUING LEGAL EDUCATION

SPONSORED BY THE PROBATE AND ELDER LAW COMMITTEE

2016 ANNUAL PROBATE COURT AND ELDER LAW SEMINAR

Supporting Materials By: John Lewandowski, Esq. Heban, Sommer & Murphree LLC

12/14/2016

PROBATE LITIGATION From the Plaintiff’s Perspective

John P. Lewandowski, Esq. Heban, Sommer & Murphree, LLC

LITIGATION: WHEN THINGS GO SIDEWAYS • Aging Population. Frail physical and mental health. Vulnerable. • Wealth. Came out of the Great Depression. Savers w/ good  retirement plans. • Difficulty diagnosing mental impairment. No test; diagnosis by  exclusion.

Case Evaluation • “Smell test” for every case (It is about the $) • Attorney Involved? Who cares. • Fact‐intensive case, encompass life story. Client Questionnaire. • Independent witnesses, doctors, records • Amount in Dispute: Is it worth taking? (Expensive) • Red Flags: end‐of‐life changes; the neighbor/caregiver; the long lost  niece; attorney/financial planner; sibling rivalries; unnatural  dispositions

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Type of Action to be Filed • Will or Trust Contest • Incompetency (Niemes v. Niemes (1917) 97 Ohio St. 154) • Understand making Will/Trust • Understand nature and extent of assets • Understand relationship to natural heirs

• Undue Influence (West v. Henry (1962) 173 Ohio St. 498) • • • •

Susceptibility Opportunity to exert influence Improper influence exerted/attempted The result of such influence

Types of Actions Cont. • Will or Trust Construction  • Action to Produce Will/Trust (R.C. 2107.09; R.C. 5808.13) • Administration‐Related Actions: Removal of a Fiduciary (R.C. 2109.24  discusses standards); Request for Accounting • Declaratory Judgment Actions (R.C. 2721.05) • Use to contest inter vivos transfers (deeds, gifts, beneficiary designations) • On basis of undue influence or incompetency

• Exceptions to Inventory & Concealment Actions

Types of Actions Cont. • Contest Ante‐Nuptial Agreement (4 months from fiduciary appointment)  (R.C. 2106) • Determination of Heirship (R.C. 2123.01) • Intentional Interference with Inheritance (Firestone v. Galbreath (1993), 67  Ohio St.3d 87) • POA‐related actions; breach of fiduciary duty (R.C. 1337.37) • Claims against Estate (R.C. 2117.01) • Constructive Trust/Equity (Cowling v. Cowling (2006) 109 Ohio St.3d 276) • Pre‐death Will Contest (R.C. 2107.081) • Contested Guardianships

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Pre‐Filing Considerations  • Statute of Limitations • Will Contest  • 3 months from the date Certificate of Notice of Probate of Will is filed

• Trust Contest  • 2 years from DOD or 6 months if certain notice provided (R.C. 5806.04)

• Warning • Savings Statute does not apply to most estate actions; Cannot dismiss w/o  prejudice an re‐file outside of SOL (Will contest = 3 months) • Can NOT waive nor toll Will contest either, even if in agreement • Wisner v. Wisner, 2016‐Ohio‐5095

PRE‐FILING CONSIDERATIONS • Statute of Limitations Cont. • Breach of Fiduciary Duty (i.e., v. POA) • General rule is 4 years (R.C. 2305.09)

• Breach of Trust (v. Trustee) • 2 years if sent notice of potential breach • 4 years after first of following to occur: • • • •

removal/resignation termination of interest in trust termination of trust knew/should have known

PRE‐FILING CONSIDERATIONS • Statute of Limitations Cont. • Tort Actions – 4 years (R.C. 2305.09) • Fraud, conversion, intentional interference with inheritance 

• Exceptions to Inventory ‐ 5 days before scheduled hearing • Claims Against the Estate ‐ 6 months from DOD • If claim rejected, 2 months from date of Rejection

• Dec Action – Not sure. 4 years from discovery

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Notice to Fiduciary • R.C. 2107.46: Beneficiaries of Estate can file suit 30 days after issuing  demand upon Executor

Read the Documents • If a pour‐over will incorporates terms of Trust, must contest both Will &  Trust • Incorporation of trust into Will – Does pour‐over clause accomplish this? Gehrke v.  Senkiw, 2016‐Ohio‐2657 • Exception? R.C. 2107.05; Hayes Mem. United Methodist Church v. Artz, 2011‐Ohio‐ 3847 

• Surviving Spouse: Election to take against Will might be more beneficial • 5 months from date Fiduciary appointed

• No Contest Clause • Prior Will? How many?  • Must contest one at a time. (Corron v. Corron (1988), 40 Ohio St.3d 75)

Jurisdiction • Will Contest – exclusive jurisdiction in probate court • Trust Contest – concurrent jurisdiction (inter vivos trust) / exclusive  jurisdiction (testamentary trust) • Dec Action/inter vivos transfers – concurrent jurisdiction (R.C.  2101.24(B)(1)(c)) • Rejected claim against Estate – General Division only • Intentional Interference – General Division, must first exhaust probate  remedies • New Probate Court Jurisdictional Code (R.C. 2101.24(B)(1)(b)) ‐ concurrent • Everything can be brought in Probate Court (anything that touches a  Decedent’s/Principal’s Estate, Trust, or POA)

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Parties • Standing – “real interest in the litigation” (will plaintiff receive more  money if successful?) 1. Would inherit under descent and distribution 2. Named in the prior will

• Has Plaintiff already received distribution? Give it back?

Necessary Parties • Will Contest  • • • •

named beneficiaries next‐of‐kin fiduciary Attorney General (if charity named)

• When in doubt, name everyone • John Does & Unknown Heirs of Decedent • Name Banks (freeze money & cheap discovery)

Jury Trial • Will Contest – statutory right (R.C. 2107.72) • Trust & Inter Vivos Tranfers – Discretionary • Know your Court: Need a jury? Perhaps file in General Division

• Breach of Fiduciary Duty – Jury • Cundall v. U.S. Bank, 2007‐Ohio‐7067

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12/14/2016

Motion Practice • Disqualify Opposing Counsel?  • Remove Fiduciary (R.C. 2109.24 & 2113.18) • Motion to preclude use of Estate/Trust funds? Good luck. • TRO/Preliminary Injunction • Anticipate responding to Summary Judgment • Motions in Limine (Evid. R. 803(3))

Discovery • Paper Discovery • RFPs: • all other Wills, Codicils, Trusts, Amendments to Trusts, Ante‐Nuptial  Agreements, Powers of Attorney, Living Wills, Durable Powers of Attorney for  Health Care; all material in the file of the attorney who drew or was involved  in the preparation of the instrument at issue; the decedent’s tax returns,  check ledgers, account statements, diaries, calendars, Christmas card list,  address books, photos of the decedent; videotapes and audiotapes of the  decedent; all other writings of the decedent impacting on the instrument; all  estate tax returns and gift tax returns; and all medical records. 

Paper Discovery Cont. • Rogs: • a description of all conferences the decedent had with the attorney involved;  a list of all assets the decedent owned at certain periods of time; a  description of any gifts and loans to and from the decedent; all assets and  monies received by any person on account of the decedent’s death; the  names and addresses of all of the decedent’s physicians and the name of all  hospitals, nursing homes, hospices and visiting nurse services; the names of  all witnesses, both lay and expert; and the reason(s) for the preparation of  the instrument.

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Discovery Cont. • Get Releases From Fiduciary • HIPPA • Legal – Atty‐Cl privileged waived (R.C. 2317.02) • Get estate‐planning attorney’s file

• General • Financial

Discovery Cont. • Witness Interviews (Family, friends, doctors, nurses) • Secure affidavits up front to lock‐in testimony and use at depos

• Depositions (parties, independents, experts) • Very important • Take the parties first, prior to Experts and Independents

Trial • It will take all week • Voir Dire is critically important • Rural v. urban; family‐oriented pool? Religious?

• Medical Expert – Psychologist or Psychiatrist • Medical Records • Automatic authenticity (R.C. 2317.40 & 2317.422) • Admissibility (Evid.R. 803(6) – business record exception) • Burton v. Dutiel, 2015‐Ohio‐4134

• Financial Records • Get stipulations; may have to call custodians

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Evidentiary Issues • Hearsay Issues Galore • Evid R. 803(3); Brown v. Ralston, 2016‐Ohio‐4916

• Always Circumstantial Evidence • Best witness is dead • UI not ordinarily exhibited in open public; behind closed doors.

• Opinion testimony allowed (Evid. R. 701) • Burden‐shifting paradigm for self‐dealing fiduciaries • “When a fiduciary ends up with property originally in [the hands of the principal], bells  ring and sirens wail.” Cundall v. U.S. Bank, 2007‐Ohio‐7067 • Burden shift applies to caretakers too, not just POAs. • Burden‐shift also applies to POA/caretaker who becomes beneficiary of EP • Diamond v. Craeger, 2002‐Ohio‐916

Damages/Remedies • Set aside contested instrument/transfers • If successful, no guarantee Defendant can use Estate/Trust assets • “Common Fund Theory” Pl can recover attorneys fees for enhancing  estate for beneficiaries who did not participate • Schiavoni v. Roy, 2012‐Ohio‐4435

• Attorneys Fees? Self‐dealing fiduciary, Bad Faith (R.C. 1337.37; R.C.  5810.04; Ivancic v. Enos, 2012‐Ohio‐3639 • Treble damages! Cartwright v. Batner, 2nd Dist. No. 25938, 2014‐Ohio‐ 2995

Things to Know • Jurors want to do what is right • Medical Experts do not win cases (but PCPs might) • Attorneys do not win cases • Who is believable? • Wide‐range of evidence for undue influence • Isolation & control

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Mediation • Family Relationships • Highly Emotional Events • Family Dirty Laundry • Zero‐sum Game/Risk • Time/cost/risk • Someone else’s money • Flexibility in Resolution • Take care of Personal Property first

Appeals • Good luck • Proper party appeal? Fiduciary or individual? • Final, appealable order? • Removal of executor/trustee is immediately appealable.

HOW TO AVOID LITIGATION (You Can’t)

• Pre‐death Will Contest  • Who is your client? Who made appointment? How involved is  child/beneficiary? • Ask for physician certificate if any doubt

• Make paper; have others leave room; meet client multiple times;  videotape (smart phones); have witnesses sit in (i.e. staff); who is  paying the bill?; correspondence to client • POA/trustee needs to scrupulous receipts and an accounting  • Perhaps name 2? Check and balance.

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John P. Lewandowski 200 Dixie Highway Rossford, Ohio 43460 T:   (419) 662‐3100 F:   (419) 662‐6533 Lewandowski@hsm‐law.net

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