IN RE THE ESTATE OF JOE MICHAEL KARDER, DECEASED
Case No. 2010CA00297
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 27, 2011
2011-Ohio-3229
William B. Hoffman, P.J., Julie A. Edwards, J., Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas, Probate Division, Case No. 203096. JUDGMENT: Affirmed.
For Plaintiff-Appellee
STEVEN P. OKEY
The Okey Law Firm, LPA
337 Third Street, N.W.
Canton, Ohio 44702-1786
MATTHEUW W. OBERHOLTZER
Oberholtzer & Oberholtzer Attorneys at Law, LLC
116 Cleveland Avenue, N.W.
Courtyard Centre, Suite 650
Canton, Ohio 44702-1724
For Defendant-Appellant
ROBERT C. MEEKER
Blakemore, Meeker & Bowler Co., LPA
19 North High Street
Akron, Ohio 44308
For Deidre A. Hanlon
JOHN M. PRELAC
JOHN S. KAMINSKI
Day Ketterer Ltd.
200 Market Ave., North, Suite 300
Canton, Ohio 44701-4213
OPINION
{¶1} Appellant, Robert Karder, former Administrator of the Estate of Joe Michael Karder, appeals from the October 7, 2010, Judgment Entries of the Stark County Court of Common Pleas, Probate Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 12, 2008, appellee R.S. filed a civil complaint against Joe Michael Karder in the Stark County Court of Common Pleas1 alleging that he had sexually abused and molested her. After Joe Michael Karder died intestate on March 16, 2008, appellant Robert Karder was appointed administrator of his estate on May 9, 2008. Appellant‘s Application for Authority to Administer the Estate listed the value of the estate at $264,000.00. Of this figure, $212,000.00 represented real property and $52,000.00 represented personal property.
{¶3} On May 22, 2008, appellee R.S. presented a claim as a creditor against the estate pursuant to
{¶4} On June 12, 2008, appellee R.S. filed a motion requesting in part, that the distribution of assets and the sale of real estate be stayed.
{¶5} On July 25, 2008, an Inventory and Appraisal was filed that listed the value of the estate at $234,817.60 with the value of the real property listed at $211,900.00.
{¶6} Subsequently, on October 1, 2008, appellee R.S. dismissed her complaint in Stark County Common Pleas Court and then, on December 5, 2008, refiled her complaint, naming the Estate of Joe Michael Karder as the defendant. On the same date, appellee R.S. filed a Notice of Refiling Action Against Estate. In such notice,
{¶7} On February 11, 2009, the trial court in appellee R.S.‘s case granted summary judgment against appellee R.S. based on the statute of limitations. Appellee R.S. timely appealed from such decision.
{¶8} On October 19, 2009, appellant filed a Motion to Approve the sale of the decedent‘s real estate. Appellant, in his motion, attached a copy of an appraisal indicating that the appraised value of the same was $175,000.00. The next day, appellant filed a Motion for Reimbursement. Appellant, in such motion, sought reimbursement of $60,820.26 for attorney fees that he alleged that he had personally advanced to a law firm for representation in the lawsuit filed by R.S. A hearing on the Motion for Reimbursement was scheduled for December 16, 2009. As memorialized in a Judgment Order filed on November 16, 2009, the trial court granted the Motion for Reimbursement and ordered that appellant reimburse himself $60,820.26 for monies that he had personally advanced to a law firm for legal services rendered in the case filed by appellee R.S. Pursuant to a Judgment Order filed the same day, the trial court approved the sale of the real property.
{¶9} Pursuant to an opinion filed on December 21, 2009, in Swartz v. Estate of Joe M. Karder, Stark App. No. 2009CA00041, 2009-Ohio-6790, this Court, in part, reversed the decision of the trial court and remanded the case for further proceedings.
{¶10} Thereafter, on March 26, 2010, appellee R.S., as a creditor of the estate, filed a Motion to Vacate pursuant to
{¶11} On May 17, 2010, appellee R.S. filed a Motion to Remove Fiduciary. Appellee R.S., in her motion, argued that appellant should be removed as the estate fiduciary because of fraudulent conduct that came to light during discovery in her civil action against the estate. Appellee R.S. specifically alleged that appellant had falsely represented to the court that a buyer, Mike Hoehn, had been obtained for the decedent‘s real property, and that Hoehn had bought the same with his own funds for $150,000.00 when, appellant had approached Hoehn and made him a straw man to buy the house for appellant using appellant‘s money. Appellee R.S. further alleged that the house was titled in Hoehn‘s name with the arrangement that he would later quit-claim it back to appellant. According to appellee R.S., this conduct did not come to light until, after appellant‘s deposition was taken on March 23, 2010, appellant signed a document entitled “Certificate“, which was an errata sheet signed by appellant on March 30, 2010 and notarized by his counsel, in which he made material changes to his sworn deposition testimony. Appellee R.S. noted that while, during his deposition, appellant
{¶12} Appellee R.S., on May 25, 2010, also filed a Motion to Vacate the Judgment Approving Sale of Real Property pursuant to
{¶13} A hearing on appellee R.S.‘s Motion to Vacate the Judgment seeking the return of the monies reimbursed to appellant and her Motion to Vacate Judgment approving the sale of the real estate was held on July 14, 2010. A hearing on appellee R.S.‘s Motion to Remove Fiduciary was held on August 23, 2010. As memorialized in Judgment Orders filed on October 7, 2010, the trial court granted all the motions.
{¶14} Appellant now raises the following assignments of error on appeal:
{¶15} “I. THE PROBATE COURT ABUSED ITS DISCRETION, PURSUANT TO
{¶16} “II. THE PROBATE COURT ABUSED ITS DISCRETION WHEN IT REMOVED ROBERT KARDER AS ADMINISTRATOR FOR THE ESTATE, PURSUANT TO
{¶17} Appellant, in his first assignment of error, argues that the trial court abused its discretion when it granted the Motion to Vacate the Judgment Order approving the sale of the decedent‘s real property and the Judgment Order approving the reimbursement of $60,820.26 to appellant. Both motions were filed pursuant to
{¶18}
{¶19} “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.”
{¶20} A motion for relief from judgment under
{¶21} In GTE Automatic Electric Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus, the Supreme Court of Ohio held the following:
{¶22} “To prevail on a motion brought under
{¶23} The first issue to address is whether or not the trial court abused its discretion in granting the motion to vacate the Judgment Entry approving the sale of the decedent‘s real estate. As is stated above, appellee R.S., on May 25, 2010, filed a Motion to Vacate the Judgment Approving Sale of Real Property pursuant to
{¶24} There is no dispute that such motion was filed within a reasonable time. While the order granting the sale was issued in November of 2009, the motion was filed in May of 2010.
{¶26} At the July 14, 2010 hearing in this matter, appellant testified that, during his March 23, 2010, deposition2 he testified that Mike Hoehn used his own money to buy the decedent‘s house from the estate and that Hoehn purchased the same using money that appellant had repaid him for loans that Hoehn had made to him over the years. Appellant testified that, after the deposition, he signed an errata sheet on March 30, 2010, that was notarized by his counsel. On the errata sheet, appellant indicated that he had provided the funds for buying the house and that he had approached Hoehn
{¶27} During his July 12, 2010, deposition, Michael Hoehn testified that appellant showed him the decedent‘s house in late summer or early fall of 2009 and that appellant‘s nephew was living there at the time. He testified that he bought the house, but that during his discussion with appellant, he had told him that he could not afford it. Hoehn testified that he did not have the money to buy the house and that he got the money to buy the house from appellant‘s repayment of a loan. Hoehn specifically testified that he had loaned appellant $150,000.00 to $160,000.00 over a period of time and that appellant repaid the same. Hoehn testified that he did not have any notes or ledger documenting the loans, that he never asked appellant to sign any type of note indicating that appellant owed him the money, and that he did not know the dates or amounts of any of the loans. Hoehn further testified that ,as of the date of the July 12, 2010 deposition, he was not living in the decedent‘s house and that, since he became owner of the property on October 16, 2009, he had slept there less than 10 times and had never moved into the same.
{¶29} As is stated above, appellant also argues that the trial court erred in granting the motion to vacate the judgment approving reimbursement.
{¶30} As is stated above, appellant, on October 20, 2009, filed a Motion for Reimbursement, seeking reimbursement of $60,820.26 for attorney fees that he had personally advanced to a law firm for representation in the lawsuit filed by appellee R.S. Attached to appellant‘s motion were copies of checks and/or receipts showing that appellant had paid such amount to the law firm. There is no indication that a copy of the Motion for Reimbursement was served on anyone. The trial court scheduled a hearing on such motion for December 16, 2009, and did not serve a copy of the notice setting the hearing on appellee R.S. or her counsel. Pursuant to a Judgment Order filed on November 16, 2009, the trial court granted such motion.
{¶31} Thereafter, on March 26, 2010, appellee R.S., as a creditor of the estate, filed a Motion to Vacate the November 16, 2009 Judgment Order pursuant to
{¶32} We note that while appellee filed a motion to vacate the judgment, she did not have to satisfy the requirements of
{¶33} Moreover, applying
{¶34} We further find that appellee R.S. demonstrated that she had meritorious claims or defenses to present if relief was granted.
{¶35}
{¶36} Moreover, appellee R.S. had a meritorious defense to present if relief is granted. Appellee R.S. has a meritorious defense in that, under
{¶37} Appellant‘s first assignment of error is, therefore, overruled.
{¶38} Appellant, in his second assignment of error, argues that the trial court abused its discretion in removing him as administrator pursuant to
{¶39} Our standard of reviewing a Probate Court‘s decision to remove a fiduciary or guardian is the abuse of discretion standard. In Re: Estate of Russolillo (1990), 69 Ohio App.3d 448, 590 N.E.2d 1324. The Supreme Court has repeatedly defined the term abuse of discretion as implying the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In applying the abuse of discretion standard, this court may not substitute our judgment for that of the trial court. Pons v. Ohio State Medical Board 66 Ohio St.3d 619, 621, 1993-Ohio-122, 614 N.E.2d 748.
{¶40}
{¶42} While appellant, at the July 14, 2010, hearing, testified that he owed money to Hoehn and that the money he provided to Hoehn to purchase the house was in repayment of various loans, significantly, Hoehn, at the August 23, 2010, hearing,4 was unable to remember the amounts of the loans or to provide any documentation. The following is an excerpt from Hoehn‘s testimony at the August 23, 2010 hearing before the trial court:
{¶43} “Q. Let‘s talk about the money that you claim that you are borrowing to Robert Karder. How much in total did you loan to Robert Karder?
{¶44} “A. Around a hundred and fifty five thousand dollars. I don‘t know actually. I never kept a record of it.
{¶45} “Q. When did you make the first loan?
{¶47} “Q. Why did you make the first loan?
{¶48} “A. He was needing some money.
{¶49} “Q. Why did he need money?
{¶50} “A. I guess his was all tied up in some stocks. I don‘t know why he needed it.
{¶51} “Q. Was there any writing or documentation at the time of the loan?
{¶52} “A. I never made any.
{¶53} “Q. Why not?
{¶54} “A. It wasn‘t necessary.
{¶55} “Q. How much was that first loan?
{¶56} “A. I don‘t know.
{¶57} “Q. When did you make the second loan?
{¶58} “A. I don‘t know. I have no dates. I couldn‘t tell you any dates.
{¶59} “Q. How much was the second loan?
{¶60} “A. I don‘t know.
{¶61} “Q. Was there any writing?
{¶62} “A. No.
{¶63} “Q. No documentation?
{¶64} “A. No documentation.
{¶65} “Q. When was the third loan?
{¶66} “A. I don‘t know.
{¶68} “A. I don‘t have any dates or exact amounts.
{¶69} “Q. Can you tell us the dates, amounts, of any loans?
{¶70} “A. No, I never kept track. I didn‘t think it was necessary.
{¶71} “Q. Do you know if anyone was keeping track of those loans?
{¶72} “A. At the time, no.
{¶73} “Q. Why do you say at the time?
{¶74} “A. Cause when I made them I didn‘t write down and I didn‘t see him write it down.
{¶75} “Q. Then how do you have any idea that the total of approximately, when you said, repeat again, I‘m sorry, how much did you say you loaned to him?
{¶76} “A. Close to a hundred and fifty five.
{¶77} “Q. How do you have any idea that that is accurate?
{¶78} “A. Bob told me how much it was.
{¶79} “Q. When did Bob tell you that?
{¶80} “A. When he was probably giving me the money back he said he wanted to pay the money back to what he owed me.” Transcript of August 23, 2010 hearing at 21-23.
{¶81} As noted by the trial court in its October 7, 2010 Judgment Entry:
{¶82} “Karder has not been forthcoming with the Court surrounding the sale of the Athens Avenue real estate and has given conflicting accounts regarding the circumstances surrounding the sale of the real estate while under oath. Karder does not dispute that it was his signature on the errata sheet although he now claims that the
{¶83} “Karder introduced evidence in the form of the testimony of Hoehn to support his position. However, the Court does not find Hoehn to be a credible witness. Hoehn cannot remember when he made the loans to Karder and cannot remember the amounts of the loans. Hoehn has no record or documentation of the loans and did not see or know that Karder was writing down the loan amounts. Hoehn only knew the amount of the loans because Karder told Hoehn that amount, which was the same amount that Karder was going to receive for the sale of the Athens Avenue home.
{¶84} “Further evidence also displays Karder‘s lack of candor to the Court regarding the Athens Avenue transaction. Although Hoehn purchased the Athens Avenue home in October of 2009, he does not live there. He has only spent approximately ten nights in the home since October of 2009. Karder lives in the Athens Avenue home and although he is ‘fixing up’ the home, Hoehn testified that the only work Karder has done is some clean-up and landscaping. Hoehn testified that there is no reason why he could not have moved into the Athens Avenue home. Hoehn testified that he has not paid or hired Karder to do any work at the Athens Avenue home.
{¶85} “Thus, Karder has misrepresented and failed to disclose material facts to the court regarding the funds utilized to complete the real estate transaction and the fact that the funds came from Karder himself. Accordingly, the court finds that it is in the best interest of the estate to remove Robert Karder as Administrator.”
{¶87} Appellant‘s second assignment of error is, therefore, overruled.
{¶88} Accordingly, the judgment of the Stark County Court of Common Pleas, Probate Division, is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Delaney, J. concur
JUDGES
JAE/d0419
CASE NO. 2010CA00297
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas, Probate Division, is affirmed.
Costs assessed to appellant.
JUDGES