ESTATE OF FRANCIS WELCH, et al., Appellants, v. THELMA R. TAYLOR, Appellee.
CASE NO. CA2020-03-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
12/28/2020
2020-Ohio-6909
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2017-4001
Vorys Sater Seymour and Pease LLP, David F. Hine, Emily E. St. Cyr, 301 East 4th Street, Suite 3500, Cincinnati, Ohio 45202, for appellee
RINGLAND, J.
{¶1} Appellants, including the Estate of Francis Welch, appeal a decision of the Clinton County Court of Common Pleas, Probate Division, granting summary judgment in favor of appellee, Thelma Taylor. For the reasons detailed below, we reverse the probate court‘s decision and remand for further proceedings.
{¶3} Three weeks after Janet‘s death, Thelma completed paperwork changing the beneficiary on Frank‘s life insurance policies to herself. Frank, who was infirm and legally blind, signed the paperwork. The following week, Frank added Thelma to his bank account as an authorized signer and established Thelma as a joint tenant with right of survivorship. Approximately four months later, Frank signed a new will naming Thelma as the beneficiary of his tangible personal property. The rest of the will provided for distribution of Frank‘s estate equally among Frank‘s next-of-kin and a close family friend. Over the course of the next year, Frank made several inter vivos transfers to Thelma, including real property and interests in bank accounts.
{¶4} Frank passed away in 2015. Within weeks, Thelma collected the proceeds from Frank‘s life insurance policies, wrote checks from Frank‘s accounts, and withdrew sizeable amounts from Frank‘s bank accounts. In total, Thelma acquired more than $500,000 from Frank.
{¶5} Thelma, after being appointed executrix of Frank‘s estate, began the process of distributing the estate after Frank‘s passing. Administration of the estate concluded with the approval of a final and distributive account approximately a year after Frank‘s death. Each of Frank‘s nieces and nephews (“Plaintiffs“) received approximately $40,000 from the estate. However, Plaintiffs later filed a complaint in the Clinton County Court of Common Pleas, General Division, alleging that Thelma exercised undue influence upon Frank before
{¶6} Within days, Plaintiffs filed a complaint in the probate division alleging that the inter vivos transfers from Frank to Thelma were predicated upon undue influence, requesting declaratory judgment, and alleging that Thelma was liable for conversion and unjust enrichment. Thelma filed an answer, and the same day, filed a motion for summary judgment. Thelma also moved to stay discovery until the probate court ruled on her motion for summary judgment.
{¶7} Plaintiffs then filed a memorandum in opposition to Thelma‘s motion to stay discovery, as well as a motion to compel discovery requests including interrogatories and document production. Plaintiffs also filed a memorandum in opposition to Thelma‘s motion for summary judgment wherein they argued that Thelma‘s summary judgment motion was premature given that no discovery had occurred, and no scheduling orders were issued. Thelma then filed a reply memorandum in support of her motion for summary judgment, as well as a reply memorandum in support for her motion to stay discovery.
{¶8} The probate court held a hearing on the motions, with counsel for both parties present, and later issued a judgment entry finding in favor of Thelma and dismissing Plaintiffs’ complaint. The probate court‘s entry indicated that it ruled upon “Defendant Thelma Taylor‘s motion for judgment on the pleadings filed 11/22/16,” which was an impossibility given that Plaintiffs filed suit in the probate court on April 6, 2017 and Thelma did not file a motion for judgment on the pleadings in response to Plaintiff‘s suit. As a result, this court reversed and remanded this matter for rulings on the proper motions, including Thelma‘s motion for summary judgment. Estate of Welch v. Taylor, 12th Dist. Clinton No. CA2017-11-021, 2018-Ohio-4558, ¶ 12.
{¶9} On remand, the parties filed a joint statement of procedural history. One month later, the trial court ruled on Thelma‘s pending motion for summary judgment and awarded judgment in her favor. The trial court provided four reasons why it found summary judgment to be appropriate. First, the trial court found:
[I]t is clear that what the Plaintiffs intended to do was to file a will contest, but that must fail because it should have been filed in this court, which it was not, and filed by October 1, 2015, which it clearly was not. This action was filed April 6, 2017, entirely too late.
{¶10} In addition, to ruling that the action was time barred, the trial court also found:
Plaintiffs’ claim must fail pursuant to
R.C. 2109.35 which specified that an order of the probate court upon the settlement of a fiduciary‘s account shall have the effect of a judgment and may be vacated only...for fraud, but no fraud is alleged herein. Further, pursuant toR.C. 2117.06 , claims are to be presented to the executor of the estate, in writing, within six months of the death of the decedent, whether or not the estate is released from administration or an executor or administrator is appointed during that six-month period. The Ohio Supreme Court has emphasized this section in its recent ruling in Wilson v. Lawrence, 2017 Ohio 1410, making it very clear that the code means what it says, and that the requirements ofR.C. 2117.06(A)(1)(a) are mandatory.
{¶11} Finally, in addition to the other reasons listed, the trial court found that Plaintiffs’ claims must fail, as they are barred by res judicata because Plaintiffs “filed and lost in the General Division.”
{¶12} In a subsequent entry, the trial court granted attorney fees in favor of Thelma in the amount requested, $63,789. Plaintiffs now appeal, raising four assignments of error for review.
{¶13} Assignment of Error No. 1:
{¶14} THE PROBATE COURT ERRED BY NOT GRANTING BENEFICIARIES’ REQUEST TO CONDUCT DISCOVERY IN ORDER TO RESPOND TO THE SUMMARY
{¶15} In their first assignment of error, Plaintiffs argue the trial court erred by not granting their request to conduct discovery in order to respond to Thelma‘s motion for summary judgment. We agree.
{¶16} This court reviews summary judgment decisions de novo, which means we review the trial court‘s judgment independently and without deference to the trial court‘s determinations, using the same standard in our review that the trial court should have employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8. Pursuant to
{¶17} The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In determining whether a genuine issue of material fact exists, the evidence must be construed in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 8.
{¶18}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be
obtained or discovery to be had or may make such other order as is just.
{¶19}
{¶20} Furthermore, while “[a] trial court maintains the discretion to manage the discovery process,” such discretion is not without limits. Kolenich at ¶ 19; Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 592 (1996). Although unusual, an appellate court will reverse a discovery order when the trial court has erroneously denied or limited discovery. Mauzy at 592. Thus, “an appellate court will reverse the decision of a trial court that extinguishes a party‘s right to discovery if the trial court‘s decision is improvident and affects the discovering party‘s substantial rights.” Id.
{¶21} Following review, we find the trial court abused its discretion in failing to address Plaintiffs’
{¶22} As noted above, after Thelma moved for summary judgment, Plaintiffs filed a memorandum in opposition wherein they argued that Thelma‘s summary judgment motion was premature given that no discovery had occurred, and no scheduling orders were issued. In an affidavit, Plaintiffs’ counsel alleged that Thelma had obtained a stay of
{¶23} In the prior appeal, we acknowledged that we understood the confusion associated with this case. There have been multiple complaints filed in different courts, as well as multiple motions filed by all parties involved. However, despite the claims raised in this case, there does not appear to have been any significant discovery. This may be because the trial court found it “clear that what the Plaintiffs intended to do was file a will contest.”
{¶24} Though we need not exhaustively discuss the merits of this case, we note that review of the record reveals that Plaintiffs have not contested the validity of the will.1 This is an action to recover assets that were allegedly transferred from the estate by its fiduciary to herself both before and after the decedent‘s death.2
{¶25} A party may seek to have property included in the estate assets even after the final inventory has been approved and the estate settled. In re Estate of Lucitte, 6th Dist. Lucas No. L-10-1136, 2012-Ohio-390, ¶ 93. That party may file an action in the court of common pleas at any time to seek recovery of his property from all but a bona fide purchaser for value without knowledge of another‘s equitable interest in the property. Id., citing Service Transport Co. v. Matyas, 159 Ohio St. 300 (1953). Furthermore, the probate court has jurisdiction to hear declaratory judgments.
{¶26} The fact pattern in this case is analogous to another action from the Ninth District, also not a will contest, involving similar transfers of property. In Schiavoni v. Roy, 9th Dist. Medina No. 11CA0108-M, 2012-Ohio-4435, decedent executed a will that appointed her son, Brian, as her executor and her daughter, Hallie, as her successor executor. Id. at ¶ 2. The will divided her estate equally between the two children. Id. On the same day, she also executed a durable power of attorney that named Brian as her attorney-in-fact. Following execution of the will and power of attorney, decedent developed dementia and moved into an assisted-living facility near Brian‘s home. Id. Brian and his wife visited decedent regularly and began handling her financial affairs. Id. at ¶ 3. While Hallie also visited when she was in town, she spent most of her time living out-of-state. Id. Decedent died in 2008. Id.
{¶27} At issue following decedent‘s death were two annuities decedent had at the time of her death. Id. at ¶ 4. One of the annuities was from the Hartford Life and Annuity Insurance Company. Id. Decendent purchased it in 2000 and initially named her children as co-beneficiaries. Id. In 2007, however, she designated Brian as the sole beneficiary. Id. The other annuity was from the Standard Life Insurance Company of Indiana. Id. Brian
{¶28} Hallie sued Brian for conversion, breach of fiduciary duty, undue influence, unjust enrichment, and fraud, alleging that he had misappropriated assets that belonged to the decedent. Id. at ¶ 1. Following a bench trial, the probate court determined that the decedent lacked the mental capacity to change the beneficiary of the Hartford annuity. Id. It also determined that the change-of-beneficiary designation was presumptively the product of undue influence and that Brian had failed to rebut the presumption by credible evidence. Id. Regarding the Standard Life annuity, the probate court determined that Brian had failed to rebut the presumption that the purchase was not the result of undue influence. Id. As a result, the probate court ordered Brian to pay half of the Hartford death benefit to Hallie and to pay the Standard Life death benefit to the estate. Id.
{¶29} On appeal, Brian argued that the probate court lacked jurisdiction to hear the appeal because the annuities were not probate assets. Id. at ¶ 4. The probate court overruled Brian‘s argument because
{¶31} To that end, we reiterate that there does not appear to be any appreciable discovery as to the claims made by Plaintiffs. To the extent that a vacation or order of settlement of account under
{¶32} As the Ohio Supreme Court held in Webb, a trial court “cannot weigh evidence most strongly in favor of one opposing a motion for summary judgment when there is a dearth of evidence available in the first place.” Tucker v. Webb Corp., 4 Ohio St.3d 121, 123 (1983). By preventing Plaintiffs from conducting any discovery and by failing to address their
{¶33} Assignment of Error No. 2:
{¶34} THE PROBATE COURT ERRED BY GRANTING [THELMA‘S] MOTION FOR SUMMARY JUDGMENT AS TO THE BENEFICIARIES’ CLAIMS REGARDING INTER VIVOS TRANSFERS: 1) DECLARATORY JUDGMENT; 2) UNDUE INFLUENCE; 3) CONVERSION; 4) UNJUST ENRICHMENT; AND 5) TORTIOUS INTERFERENCE WITH EXPECTANCY OF INHERITANCE.
{¶35} Assignment of Error No. 3:
{¶36} EVEN IF BENEFICIARIES’ CLAIMS FOR DECLARATORY JUDGMENT, CONVERSION, AND UNJUST ENRICHMENT ARE FOUND TO BE BARRED ON JURISDICTIONAL GROUNDS, THE PROBATE COURT ERRED IN GRANTING [THELMA] SUMMARY JUDGMENT WITH RESPECT TO BENEFICIARIES’ UNDUE INFLUENCE AND INTENTIONAL INTERFERENCE WITH THE EXPECTANCY OF INHERITANCE CLAIMS.
{¶37} In their second and third assignments of error, Plaintiffs argue the trial court erred in granting summary judgment in favor of Thelma. However, given our resolution of Plaintiffs’ first assignment of error, these assignments of error are well taken and sustained and the summary judgment granted to Thelma is reversed.
{¶38} Assignment of Error No. 4:
{¶39} THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO [THELMA] PURSUANT TO
{¶40} In their fourth assignment of error, Plaintiffs argue the trial court erred by
{¶41} The summary judgment granted in favor of Thelma is accordingly reversed and the matter is remanded for further proceedings consistent with this opinion. The award of attorney fees to Thelma is vacated.
{¶42} Judgment reversed, vacated in part, and remanded.
HENDRICKSON, P.J., and S. POWELL, J., concur.