IN RE: ESTATE OF RUBY BOHL a.k.a. Ruby Lee Bohl
CASE NOS. CA2015-01-005, CA2015-01-006
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
2/22/2016
[Cite as In re Estate of Bohl, 2016-Ohio-637.]
RINGLAND, J.
APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Cаse No. 2012 1154
John Woliver, 204 North Street, Batavia, Ohio 45103, for appellee/cross-appellant, Pamela Throckmorton
RINGLAND, J.
{1} Appellant/cross-appellee, Larry Bohl (“Larry“), appeals from the judgment of the Brown County Court of Common Pleas, Probate Division, denying his claim for reimbursement of certain expenses against the estate of his deceased mother, Ruby Bohl (“Ruby“). Appellee/cross-appellant, Pamela Throckmorton (“Pamela“), who is one of Larry‘s two sisters, cross-appeals from the same judgment that allowed some of the claims made by Larry and their sister, Shirley Mardis (“Shirley“), for reimbursement of certain expenses
{2} Ruby and her husband, Clarence Bohl (“Clarence“), owned a 115-acre farm in Georgetown, Ohio. They had four children: Larry, Shirley, Pamela, and Roger Bohl (“Roger“). All of the children eventually moved away from the farm except Larry, who, except for a brief stint in the service, has lived and worked at the farm all of his life. In addition to helping his parents with farm-related duties, Larry also worked full-time at Cincinnati Milacron until 2007, at which timе he took early retirement.
{3} The total income from the farm that Ruby and Clarence received during Clarence‘s lifetime came from raising tobacco and selling it during the fall, or selling cattle or hogs periodically during the year. Money was always an issue for Clarence and Ruby, and neither of them paid enough into Social Security to entitle them to any payments from that program at the time of their retirement.
{4} Clarence passed away in September 2004. At the time of his death, the last two cows had been sold and there were no hogs. Larry raised the tobacco crop that year, but the crop would not be sold until the following year. The only income that Ruby received following Clarence‘s death came from a “tobacco buyout” program funded by major tobacco companies at the government‘s behest, which was designed to encourage tobacco farmers like the Bohls not to raise tobacco. From 2005 until 2011, Ruby received a total of $12,370.53 as a result of the tobacco buyout, giving her a monthly average payment of $128.86.
{5} Ruby died in July 2012 at the age of 93. Ruby‘s will named Larry as her executor, and directed that her estate, which consisted primarily of the 115-acre farm, be divided equally among Larry, Pamela, Shirley, and Roger. Larry was formally appointed by the probate court as executor of Ruby‘s will on August 15, 2012. In November 2012, Larry
{6} A hearing was held by a magistrate on Pamela‘s objections over two days. Near the start of the first day of the hearing, Larry moved to amend his claim, pursuant to
{7} During the hearing, Larry was permitted to testify, over the continuing objection of Pamela‘s attorney, that he had an “understanding” or “agreement” with his parents that since he had always lived at the farm and would continue to do so, he would “maintain the farm” and “take care of [his parents] *** until they passed,” and “would file a claim against the estate when the time arose[,]” and that he would “be reimbursed for those expenses.” Later, when Pamela‘s attorney asked Larry on cross-examination, “What was your prior testimony about filing a claim?” Larry answered as follows:
[M]y mom, my dad, and myself had an agreement that I could stay there on the farm as long as -- and you know, they knew it was going to cost money to keep the farm up. They knew that
they were going to incur medical costs. That I would pay their -- their bills and I would pay to maintain the farm in its present сondition, and when they were gone that I would present a claim to be reimbursed those expenses.
{8} The magistrate found that Larry‘s claim for reimbursement of $101,084.20 was based on an “understanding” he had with Ruby that he would pay Ruby‘s expenses “due to her lack of financial resources and would make a claim against her estate after her passing[,]” and that Larry‘s claim was “for the preservation of the assets of the estate, namely, the farm.” The magistrate determined that the “understanding” between Larry and Ruby constituted an “express contract,” for purposes of Hinkle v. Sage, 67 Ohio St. 256 (1902). The magistrate also determined that Shirley was entitled to her claim for reimbursement of the $32,600 she paid to Larry to help pay for Ruby‘s home caregiver. Lastly, the magistrate determined that Larry was permitted, under
{9} Pamela filed objections to the magistrate‘s decision. The probate court overruled Pamela‘s objections to Larry‘s claim for reimbursement of $45,556.32 for paying Ruby‘s medical bills and to Shirley‘s claim for reimbursement of $32,600 for helping pay for Ruby‘s home caregiver. However, the probate court sustained Pamela‘s objection to Larry‘s claim for reimbursement for farm maintenance expenses, farm insurance, and real estate taxes. The probate court noted that Larry had claimed the farm expenses as tax deductions while he lived at the family farm, rent free, and had claimed Ruby as a dependent on his income tax returns. The probate court concluded that “[t]o permit [Larry] those claims would be enforcing an agreement he says took place for which the court has no written evidence and for which there is case law directly on point.” The probate court also sustained Pamela‘s
{10} Larry now appeals, raising the following assignments of error:
{11} Assignment of Error No. 1:
{12} THE COURT ERRED AS A MATTER OF LAW BY REQUIRING THE APPELLANT TO PRODUCE A WRITTEN AGREEMENT WHERE THE CLAIM WAS NOT FOR SERVICES BUT FOR REIMBURSEMENT FOR FUNDS EXPENDED ACCORDING TO THE AGREEMENT.
{13} Assignment of Error No. 2:
{14} THE COURT ERRED IN FAILING TO RECOGNIZE THE CLAIMS BY THE APPELLANT WERE NOT FOR SERVICES PROVIDED TO A FAMILY MEMBER BUT WERE FOR EXPENSES PAID ACCORDING TO AN AGREEMENT AND CONTRACT PRINCIPLES.
{15} Assignment of Error No. 3:
{16} THE COURT ERRED IN DENYING THE AMENDMENT OF THE APPELLANT‘S CLAIM FOR REIMBURSEMENT OF MONEY PAID FOR HOME CARE TO A THIRD PARTY.
{17} Pamela cross-appeals, assigning the following as error:
{18} THE TRIAL COURT ERRED IN BY [sic] ALLOWING THE CLAIMS FOR MEDICAL BILLS PAID BY APPELLANT LARRY BOHL AND THE CLAIM FOR CARE SERVICES PAID BY APPELLEE SHIRLEY MARDIS.
{19} In his first assignment of error, Larry argues the probate court erred by requiring him to produce a written agreement to prove his claim for reimbursement of certain expenses against Ruby‘s estate, because, contrary to what the probate court found, Hinkle does not
{20} In Hinkle, 67 Ohio St. 256, paragraphs one and two of the syllabus, the Ohio Supreme Court discussed the effect of the “family member” or “family relationship” rule in actions brought by one family member to recover compensation for services provided to another family member, as follows:
1. In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied; and the plaintiff cannot recover in such case unless it be established that there was an express contract upon the one side to perform the services for compensation, and upon the other side to accept the services and pay for them.
2. Such contract may be in writing or it may rest entirely in pаrol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof.
(Emphasis added.) Thirteen years later, in Merrick v. Ditzler, 91 Ohio St. 256 (1915), paragraph two of the syllabus, the court modified the standard of proof needed to prove an express contract in cases where the family member rule applied, from “clear and unequivocal” to “clear and convincing.”
{21} Under the family member rule, “the general inference or presumption that the rendering of services brings forth an obligation to pay compensation is replaced by the inference or presumption that the rendering of serviсes between family members is gratuitous.” Sabin v. Graves, 86 Ohio App.3d 628, 632 (1993), citing Merrick at 263 and Annotation (1949), 7 A.L.R.2d 8, 12, Section 1. The presumption that the rendering of services between family members is gratuitous can be overcome by establishing, by clear and convincing evidence, the existence of an express contract that calls upon one family member to perform services for compensation and that calls upon another family member to accept those services and pay for them. Hinkle at paragraph one of the syllabus. The Ohio
{22} Here, it is clear that the probate court construed Hinkle as requiring that express contracts between family members be written, in order to be enforceable. The probate court noted that Pamela had cited Hinkle “for the proposition that only if a written agreement is presented should a family member be reimbursed for caring for a decedent.” The probate court also noted that “[i]t is not disputed that no written agreement was ever executed,” in this case. The probate court then ruled that “to permit [Larry his claims for farm maintenance expenses, farm insurance, and real estate taxes] wоuld be enforcing an agreement he says took place for which the court has no written evidence and for which there is case law directly on point.” Thus, it is clear that the probate court rejected Larry‘s claims against Ruby‘s estate on the basis that there was no written contract between Larry and his parents. However, Hinkle explicitly states that the express contract that is required to exist to allow one family member to recover compensation for services performed for another family member “may be in writing or it may rest entirely in parol[.]”1 (Emphasis added.) Hinkle at paragraph two of the syllabus. The probate court erred in concluding otherwise.
{23} Next, Larry asserts that the claims he is raising against Ruby‘s estate are not actually governed by Hinkle, because that decision governs claims for reimbursement for services rendered to a family member but not claims for reimbursement for paying expenses of a family member.
{24} For purposes of the family member rule set forth in Hinkle, the term “services,”
[a]lthough general statements may be found in the cases that “services,” or “personal services,” or “domestic services,” rendered by one member of a family to another are presumed to be gratuitous, the courts, generally, do not set up any specific standard for determining just what type of services will be presumed to be gratuitous. In the majority of cases the question as to the validity of a claim for services rendered by a member of a family seems to be treated simply as one of fact as to whether there was an understanding of the parties that compensation was to be made, with due consideration given to the nature of the services in the determination of this question.
Since the family relationship is the dominant consideration in determining the applicability of the presumption, it seems that the most desirable and logical view would be that the presumption would be applicable only when it is shown that the services were such as members of a family usually and ordinarily render to each other.
Annotation, Recovery For Services Rendered By Member of Household or Family Other Than Spouse Without Express Agreement For Compensation, 7 A.L.R.2d 8, Section 10 (originally published in 1949).
{25} Courts in other states have held that services by a child to a parent will give rise to an implied contract if the services provided are so “extraordinary” that the parent would not reasonably expect the child to render such services without compensation. See Craig v. Hickman, 247 Ark. 628 (1969); Russell v. Baumann, 239 Ark. 830 (1965), both of which are cited in Annotation, 7 A.L.R.2d 8, Section 10. However, we are not aware of any case that has defined the term “services” in the context of the family member rule to include the type of
{26} Nevertheless, because the oral contract involved in the present case is between family members, the same concerns identified in Hinkle at 262, i.e., that these typеs of cases are “odious” and “not favored” by the courts since they afford opportunity for fraud against the estates of deceased persons and great temptation for disappointed or “avaricious” relatives to commit perjury, are present in this type of situation. Consequently, we believe that the rule in Hinkle, as modified by Merrick, should be applied to the transaction at issue. Therefore, it was incumbent on Larry to establish, by clear and convincing evidence, that there was an express contract between him and Ruby that called upon him to pay for Ruby‘s expenses, with the understanding that he would seek payment from Ruby‘s estate upon her death, and that called upon Ruby to accept Larry‘s payment of the expenses and to allow him to continue to live at the farm and operate his farming business there, rent free. Hinkle, 67 Ohio St. 256, paragraph one of the syllabus. Additionally, the express contract could be unwritten or oral; it did not need to be in writing. Id. at paragraph two of the syllabus. Lastly, as Larry himself acknowledges in his brief, the express contract in this type of case has to be established by “clear and convincing” evidence. Merrick, 91 Ohio St. 256, paragraph two of the syllabus.
{27} Pamela acknowledges that Hinkle does not require that the express contract be in writing. Nevertheless, Pamela contends that Larry‘s claim rests primarily on his testimony at the hearing regarding assurances madе to him by their parents, which she argues was inadmissible under
{28}
Statement by a deceased or incompetent person. Thе statement was made by a decedent or a mentally incompetent person, where all of the following apply:
(a) the estate or personal representative of the decedent‘s estate or the guardian or trustee of the incompetent person is a party;
(b) the statement was made before the death or the development of the incompetency;
(c) the statement is offered to rebut testimony by an adverse party on a matter within the knowledge of the decedent or incompetent person.
{29} Contrary to what Pamela contends,
{30} We acknowledge that the statements that Clarence and Ruby made to Larry at the time they entered into their alleged oral contract were not admissible under the hearsay exception contained in
{31} Additionally, while the probate court noted that
{32} Pamela also argues that Larry‘s arguments should fail because the terms of his alleged oral contract with Ruby “are far less than definite binding promises.” We find this argument unpersuasive.
{33} To be binding, a contract must be definite and certain. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St. 3d 366, 369 (1991). While the parties need not agree on every conceivable circumstance that might arise in order for a contract to exist, they must agree on the contract‘s “essential terms.” Nilavar v. Osborn, 127 Ohio App. 3d 1, 13-14 (2d Dist.1998), modified on reconsideration. Thus, a valid contract must be specific as to its essential terms. Alligood v. Procter & Gamble Co., 72 Ohio App. 3d 309, 311 (1st Dist.1991). In a contract that is not for goods, the essential terms are, generally, the parties to the contract and its subject matter. Mantia v. House, 178 Ohio App. 3d 763, 2008-Ohio-5374, ¶ 9 (2d Dist.2008). A person cannot be subject to a contractual obligation unless the character of the obligation is definitely fixed by the parties’ express or
{34} Here, the alleged oral contract identified the names of the parties (Larry and Ruby) and its subject matter. Id. The contract was fixed by an express agreement between the parties. General Motors Corp. The contract also provides a basis for determining the existence of a breach and for giving an appropriate remedy. Mantia. We also note that oral contracts between persons that call upon one of the parties to provide services for another and then seek compensation from that other parties’ estate are enforсeable. Thus, in Moore v. Curtzweiler, 165 Ohio St. 194, 195-198 (1956), the Ohio Supreme Court indicated that an alleged oral contract in which a woman performed cleaning and nursing services for a man who had cancer, with the expectation that she was to receive payment out of the man‘s estate at the time of his death, was not an unenforceable oral contract to make a will, but instead, was an enforceable oral contract.2
{35} Larry also asserts that the magistrate “was the sole judge of the credibility of the witnesses[,]” since the magistrate was in the best position to judge the witnesses’ believability by their appearance and manner of testifying, and the reasonableness of their testimony. Therefore, Larry asserts that the probate court erred in not overruling Pamela‘s objection to his claim against the estate, and he requests that we reverse the probate court and reinstate the magistrate‘s decision. We decline to do so.
{36} Larry‘s contention that the magistrate in this case “was the sole judge of the credibility of the witnesses” is clearly incorrect. While the trial court is permitted to give weight to the magistrate‘s assessment of the credibility of witnesses in view of the
{37} Here, we havе not concluded that the probate court erred in failing to enforce the alleged oral contract between Larry and Ruby. Instead, we are finding that the probate court erred in determining that the alleged oral contract between them was unenforceable since it was not a written agreement. Therefore, we are remanding this case to the probate court with instructions that it consider whether Larry proved that he and Ruby reached an express contract, as the magistrate determined, and whether the alleged, express contract between them is unenforceable for some reason other than the ones we have rejected above.
{38} In light of the foregoing, Larry‘s first assignment of error is sustained to the extent indicated.
{39} In his second assignment of error, Larry asserts that the probate court erred by not granting his claim based on the principles of unjust enrichment. We disagree.
{40} “In order to recover on a claim of unjust enrichment, the party asserting the claim must demonstrate: (1) a benefit conferred by a plaintiff upon a defendant, (2) knowledge by defendant of the benefit, and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.” Aztec Internatl. Foods, Inc. v. Duenas, 12th Dist. Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 75. See also, Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984).
{41} Here, Larry cannot establish the third element necessary to prove аn unjust enrichment claim, to wit: he cannot show that allowing Ruby‘s estate to retain any benefit that Larry may have bestowed upon it by paying the farm maintenance expenses, farm insurance, and real estate taxes would be unjust without payment under the circumstances. Larry resided on his parents’ property and operated his farming business there, rent free, for many years. Not only did Larry not pay any rent to Ruby, he claimed her as a dependent on his tax returns. Larry also derived a benefit from paying the farm expenses by reporting them as deductions from his farm income. The record shows that Larry treated the family farm as his farm and any losses from the farm as his deductible farm losses. It is simply not equitable to allow Larry to obtain a double benefit by allowing him to be reimbursed for paying the expenses in question after he already availed himself of the tax deductions for paying them. Although Larry claims he can undo the benefit he received from claiming the expenses as tax deductions by “unclaiming” these expenses once he receives payment from the estate, the fact remains that the evidence shows that he used these expenses, along with the farm itself, as if they were his own.
{42} Consequently, Larry‘s second assignment of error is overruled.
{43} In his third assignment of error, Larry contends that the probate court erred in refusing to allow him to amend his claim against Ruby‘s estate, under
{44} The probate court disallowed Larry‘s claim for an additional $17,170.55 in reimbursement from Ruby‘s estate for the reason that the claim was filed “past the allowable time,” apparently, referring to the limitations period in
{45}
Certainly the Rules of Civil Procedure are clearly inapplicable to many of the ministerial procedures of the probate division such as the preparation of an inventory, a schedule of debts, or a final account. On the other hand, any of the Civil Rules will be applicable to adversary proceedings within the jurisdiction of the
probate division, particularly those proceedings governed through reference back by former statutes of civil procedure now supеrseded by the Civil Rules. Examples of such proceedings are: land sales (Chapter 2127. R.C.), will construction (§ 2107.40, R.C.), determination of heirship (Chapter 2123, R.C.), and declaratory judgment (Chapter 2721, R.C.).
{46}
(B) Amendments to conform to the evidence
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
(C) Relation back of amendments
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrencе set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
{47} The decision to grant or deny a
{48} Here, there is no question that Larry failed to bring his claim for reimbursement for the $17,170.55 within three months of August 15, 2012, the date he was appointed as executor of Ruby‘s estate. In fact, Larry did not bring this claim until October 22, 2013, the
{49} One authority has stated that the meaning of
{50} Given the foregoing, Larry‘s third assignment of error is overruled.
{51} In her cross-assignment of error, Pamela, citing Hinkle, argues the probate court erred in approving Larry‘s claim for reimbursement of $45,556.32 for Ruby‘s medical expenses, because there was no express contract between Larry and his parents that obligated him to take care of Ruby and that allowed him to seek reimbursement from Ruby‘s estatе in return. Pamela also argues the probate court erred in approving Shirley‘s claim for reimbursement of $32,600 for helping pay Ruby‘s home caregiver expense, since Shirley testified that she just wanted to make sure her mother had everything she needed, and thus did not expect to be paid back. We find these arguments unpersuasive.
{52} Ruby‘s medical bills and the cost of her home caregiver were exclusively for Ruby‘s care during her lifetime and were easily traceable as expenses that related to providing care for Ruby alone. Larry was entitled to be reimbursed for the medical bills he paid on Ruby‘s behalf and Shirley was entitled to be reimbursed for the money shе gave to Larry to help pay for Ruby‘s home caregiver, under a theory of unjust enrichment. The evidence shows that (1) Larry, by paying Ruby‘s medical bills, and Shirley, by helping to pay for Ruby‘s home caregiver, conferred a benefit on Ruby; (2) Ruby knew of these benefits; and (3) under the circumstances, it would be unjust to permit Ruby‘s estate to retain those benefits without repayment. Hambleton, 12 Ohio St.3d at 183. Thus, the probate court did not err in allowing these claims. Accordingly, Pamela‘s cross-assignment of error is overruled.
{53} The judgment of the probate court is affirmed in part, reversed in part, and this cause is remanded for further proceedings consistent with this opinion.
S. POWELL, P.J., and HENDRICKSON, J., concur.