2006 Ohio 2176 | Ohio Ct. App. | 2006
{¶ 3} On January 5, 2005, appellant filed an opposition to appellee's motion to appoint a special administrator. Appellant alleged in her opposition that appellee had caused her emotional distress and suffering and had physically intimidated her in regard to matters arising out of their mother's death. Appellant attached a seven-page affidavit in which she averred specific accusations against appellee. Appellant further attached other documents in an effort to show the dispute between herself and appellee in regard to the management of their mother's estate. On January 10, 2005, appellee withdrew her motion to appoint a special administrator.
{¶ 4} On January 10, 2005, the probate court admitted E. Gladys Howard's will to probate and appointed appellant and Sam Travis as co-fiduciaries with the power to fully administer their mother's estate. The same day, appellee filed a notice of appearance as counsel of record on behalf of the estate.
{¶ 5} On April 7, 2005, appellee filed a second motion to appoint a special administrator "for the reason that there is dissension among the heirs and an inability to communicate in a non-violent, civil manner." Appellee failed to file a memorandum in support or attach any affidavits or other exhibits. Appellee filed a notice of hearing, stating that the matter would be heard on May 10, 2005. On May 5, 2005, appellant filed an opposition to and motion to dismiss appellee's motion to appoint a special administrator. Appellant incorporated her January 5, 2005 opposition to the first motion in her response. In addition, appellant argued that appellee's motion should be dismissed because, as the attorney for the estate, appellee had failed to put her clients' interests above her own. She further argued that appellee was precluded from presenting any evidence in support of her motion on the bases of attorney-client privilege and the Code of Professional Responsibility. Accordingly, appellant argued that the probate court must necessarily dismiss the motion for lack of evidence. Appellant again attached exhibits, including an affidavit in which she averred that appellee taunted, mocked and charged her brother John during an incident and that appellee "herself is the bully and treats the rest of us heirs in an uncivil manner[.]"
{¶ 6} Also on May 5, 2005, appellant filed a motion in limine to restrict appellee's testimony at the hearing on the motion to appoint a special administrator to comply with the proscription against testimony regarding attorney-client communications. On the same day, appellant filed a complaint against appellee for the recovery of concealed estate assets.
{¶ 7} On April 11, 2005, appellant and Sam Travis filed an inventory and appraisal and schedule of assets of the estate. On May 4, 2005, appellee filed an objection to the inventory, enumerating four alleged deficiencies in the inventory. On May 6, 2005, appellant filed a second motion in limine to restrict appellee's testimony regarding her objections to the inventory to comply with the proscription against testimony regarding attorney-client communications.
{¶ 8} On May 11, 2005, the probate court issued an entry removing the fiduciaries and finding "good cause that the interest of this trust demands the appointment of an impartial successor administrator to conclude the administration of this estate." Based on the filings submitted in the case, the probate court found that the circumstances in the case indicated distrust and hostility between one co-executrix and one heir. In addition, the probate court found acrimony between a fiduciary and an heir, which was impeding the efficient and economic administration of the estate.
{¶ 9} Appellant timely appeals, setting forth three assignments of error for review. This Court addresses the assignments of error out of order for ease of review. This Court further consolidates the first and second assignments of error, because they involve similar facts and issues.
{¶ 10} Appellant argues that the trial court failed to conduct a hearing on appellee's motion to appoint a special administrator and that such failure constituted an abuse of discretion. This Court disagrees.
{¶ 11} The decision to remove a fiduciary lies within the sound discretion of the probate court, and this Court will not reverse the decision to remove the fiduciary absent a clear showing that the probate court abused its discretion. Pio v.Ramsier (1993),
{¶ 12} R.C.
"The court may remove any such 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 trust demands it, or for any other cause authorized by law."
{¶ 13} R.C.
"It is acceptable practice for trial courts to dispose of motions without formal hearing, so long as due process rights are afforded. 56 American Jurisprudence 2d (1971) Motions, Rules, and Orders, Sections 22 and 23, 18-19. There is no requirement that a hearing be conducted in a specific manner. It may indeed, be formal, with examination of witnesses and oral arguments. The requirement of a `hearing' may be satisfied when the judge requests submission of affidavits and/or briefs by a certain date. Or, , it may be had simply of the papers filed. The type of hearing to be had is discretionary with the judge." Wilson v.Alside, Inc. (Apr. 10, 1985), 9th Dist. No. 11667.
{¶ 14} In this case, the probate court scheduled a hearing on appellee's motion on May 10, 2005. There is nothing in the record to indicate that the hearing was cancelled. The probate court issued its order removing the fiduciaries the next day. There is further nothing in the record to indicate that the probate court did not hold a hearing on the motion, although it appears to have been a non-oral hearing upon the papers filed. Appellant had filed two oppositions with exhibits, so that she was clearly heard by the trial court on the matter. Moreover, because a transcript of proceedings has not been made part of the record, there is no record of what transpired at this hearing, e.g., whether the parties attempted to present evidence or whether objections were made as to the lack of evidentiary hearing.
{¶ 15} Appellant further argues that the trial court erred in considering the allegations in appellee's first motion to appoint a special administrator in ordering the removal of the fiduciaries. While this Court agrees that the probate court should not have relied on the allegations in the December 17, 2004 motion, which appellee withdrew prior to ruling, we find that any error was harmless. Civ.R. 61 addresses harmless error, stating:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."
{¶ 16} In this case, the probate court noted the flurry of contentious motions, objections, and responses filed in the case by appellant and appellee. The probate court further had the opportunity to observe the parties' behavior in their management of the case. Although removal proceedings are commonly instituted by the filing of a motion, "[u]pon a proper showing the Court may act sua sponte." In re Marshall's Will (1946),
{¶ 17} In this case, the probate court relied on the constant flow of contentious motions, objections and oppositions filed by appellant and appellee to support its finding of acrimony between the parties, which interfered with the reasonable administration of the estate, wasted court and estate resources, and impeded the efficient and economic administration of the estate. Because the parties demonstrated their inability to cooperate in the administration of the estate through the repeated filing of adversarial and accusatory documents, any reliance by the probate court on the substance of the allegations in appellee's first motion to appoint a special administrator was surplusage and did not affect appellant's substantial rights. Furthermore, it was within the probate court's inherent powers and duties to consider the fiduciary's circumstances regardless of the manner in which they came to the court. Id. Accordingly, the probate court's notation of any such allegations in its order removing the fiduciaries, if error at all, constitutes harmless error. Appellant's third assignment of error is overruled.
{¶ 18} In her first and second assignments of error, appellant argues that the trial court abused its discretion by failing to dismiss appellee's second motion to appoint a special administrator, because appellee failed to cite any facts or legal authority in support of her motion. This Court disagrees.
{¶ 19} As this Court stated in regard to the third assignment of error, the decision to remove a fiduciary lies within the sound discretion of the probate court, and this Court will not reverse the decision to remove the fiduciary absent a clear showing that the probate court abused its discretion. Pio,
{¶ 20} This Court has already found that the trial court did not abuse its discretion when it relied on the entire record to reach the conclusion that the interest of the trust demanded appellant's removal as fiduciary and the appointment of a special administrator. Accordingly, the trial court did not abuse its discretion when it refused to dismiss appellee's second motion to appoint a special administrator only because appellee failed to cite specific facts and legal authority. Because this Court finds that the probate court possesses the inherent power and duty to act in the best interest of the trust, including the power and duty to sua sponte remove a fiduciary for the reasons enumerated in R.C.
{¶ 21} Appellant further argues that the probate court abused its discretion when it failed to dismiss appellee's second motion to appoint a special administrator, because any allegations by appellee against appellant would violate the attorney-client privilege and the Code of Professional Responsibility. This Court disagrees.
{¶ 22} Appellee's second motion to appoint a special administrator stated in full:
"Now comes A Mendenhall, beneficiary of the Estate of E. Gladys Howard, and moves this Honorable Court to appoint a Special Administrator for the reason that there is dissension among the heirs and an inability to communicate in a non-violent, civil manner."
{¶ 23} Appellant cites statutes, case law and provisions of the Ohio Code of Professional Responsibility for the proposition that appellee, as the attorney of record for the estate, would not have been able to present any evidence in support of her motion which disclosed any attorney-client confidences and communications. She argues, therefore, that appellee's motion must necessarily have been dismissed, and the trial court abused its discretion when it refused to dismiss the motion. This Court finds appellant's argument not well taken.
{¶ 24} Appellant has failed to demonstrate anything in the record as to any particular communications between herself and appellee, within appellee's capacity as the attorney for the estate. Appellee's motion to appoint a special administrator does not reference specific communications between herself and appellant. Rather, the motion addresses the manner in which the parties communicate, specifically the violent, uncivil manner of communication. Significantly, in appellant's opposition and motion to dismiss, she enumerated with specificity many instances of appellee's conduct evidencing the dissension between the parties. Presumably, if appellant could demonstrate the disparate approaches to the administration of the estate through the mere conduct of the parties without disclosing confidential communications, appellee could do the same. Accordingly, the trial court did not abuse its discretion by denying appellant's motion to dismiss appellee's motion to appoint a special administrator despite appellant's assertions of attorney-client privilege and alleged violations of the Code of Professional Responsibility. Appellant's first and second assignments of error are overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
Slaby, P.J., Whitmore, J., concur.