In re Estate of Kirkland
Rendered on the 31st day of July, 2009.
Marc N. Greenberg, Atty. Reg. No. 0077480, 580 Lincoln Park Blvd., Suite 399, Kettering, OH 45429
Attorney for Defendant-Appellant
Lawrence J. Hofbauer, Atty. Reg. No. 0065994, Administrator of the Estate of Mary E. Kirkland, 4 West Main Street, Suite 224, Springfield, OH 45502
Attorney for Plaintiff-Appellee
GRADY, J.
{¶ 1} Estella F. Young appeals from an order of the probate court denying Young‘s motions to vacate the court‘s prior order approving and settling an account filed by the administrator of the estate of Mary E. Kirkland.
{¶ 2} The underlying controversy involves a bank account
{¶ 3} While the prior appeal was pending, the administrator of Kirkland‘s estate filed a fiduciary‘s account pursuant to
{¶ 4} On June 5, 2008, Young filed a petition pursuant to
{¶ 6} Dr. Darr‘s affidavit states that he was Kirkland‘s physician for eight years preceding her death, and that:
{¶ 7} “3. During his treatment of Mrs. Kirkland, she confided in him as to her wants and wishes with regard to any real property and financial interests she may have;
{¶ 8} “4. Mrs. Kirkland stated she I (sic) was going to the bank to ensure that her money did not transfer to any relatives.
{¶ 9} “5. Affiant states that Mrs. Kirkland repeatedly referred to Estella Young as her second daughter and Estella Young accompanied Mrs. Kirkland to each and every appointment and acted in a capacity fitting of the title.
{¶ 10} “6. Prior to his passing, Mr. Kirkland also indicated to the Affiant that he wanted all of his financial interest to be handled by Estella Young for the benefit of
Mrs. Kirkland until such time as she passed. {¶ 11} “7. Affiant states that he has never been contacted by the Executor of the Estate to discuss with him any issues revolving around the Decedent and that his first communication with the Executor was on Monday, February 25, 2008, whereby he passed on the information contained in this Affidavit to the Executor.
{¶ 12} “8. In the Affiant‘s professional medical opinion, Mrs. Kirkland was of sound mind up until immediately preceding her death and at all times relevant to her statements to the Affiant she was of sound mind.”
{¶ 13} On June 9, 2008, the probate court dismissed Young‘s petition, without a hearing. The court stated that while Dr. Darr‘s affidavit “might present some evidence concerning the intentions of Mary Kirkland, the court fails to see how the same has established the commission of fraud in this case.”
{¶ 14} Young filed a notice of appeal from the June 9, 2008 order of dismissal.
FIRST ASSIGNMENT OF ERROR
{¶ 15} “AS A MATTER OF LAW, THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-APPELLANT A RIGHT TO A FORMAL HEARING.”
{¶ 16} Young argues that the probate court erred when it overruled her
{¶ 18} In her brief on appeal, Young cites and relies on
{¶ 19} The order approving and settling the administrator‘s account was entered on March 29, 2007. Young‘s petition to vacate was filed on June 5, 2008, and was therefore untimely for purposes of
{¶ 20} Nevertheless, we find no abuse of discretion in the probate court‘s order of dismissal. Young‘s petition alleged that the account the administrator filed, because it included the monies in the joint bank account as an asset of Kirkland‘s estate, fraudulently misrepresented that Mary Kirkland did not intend to create an ownership interest in Young when she opened the joint account. The elements of a fraudulent misrepresentation are:
{¶ 21} “1. A false representation; actual or implied, or the concealment of a matter of fact, material to the transaction; made falsely.
{¶ 22} “2. Knowledge of the falsity - or statements made with such utter disregard and recklessness that knowledge is inferred.
{¶ 23} “3. Intent to mislead another into relying on the representation.
{¶ 24} “4. Reliance - with a right to rely.
{¶ 25} “5. Injury as a consequence of that reliance. All of these elements must be present if actionable fraud is to be found. The absence of one element is fatal to recovery.”
{¶ 27} The representations in the physician‘s affidavit demonstrate, at most, Kirkland‘s high regard for Young and Kirkland‘s reliance on her. Those representations do not support a conclusion that Kirkland intended to benefit Young by giving her an interest in the funds in the joint account. The administrator‘s failure to meet with Kirkland‘s physician in order to learn those facts presents no basis to find that the account the administrator filed was fraudulent, that he knew it to be false with respect to Young‘s alleged interest in the bank account, or that the administrator acted with an utter recklessness from which such knowledge may be inferred. Therefore, the probate court did not abuse its discretion when it denied without a hearing the
{¶ 28} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 29} “THE TRIAL COURT ERRED BY FAILING TO FOLLOW ITS OWN LOCAL RULES SETTING THE PROCEDURES FOR HANDLING THE APPELLANT‘S OBJECTION TO THE ACCOUNT.”
{¶ 30} Clark County Probate Court Local Rule 78.1(C)(6)(a) provides:
{¶ 32} Clark Prob.R. 78.1 sets out case management plans for certain civil actions. Section (C)(6)(a) applies to exceptions filed pursuant to
{¶ 33} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 34} “THE TRIAL COURT ERRED BY USING AN IMPROPER STANDARD IN RULING UPON THE APPELLANT‘S 60(B) MOTION FOR RELIEF FROM JUDGMENT.”
{¶ 35} “A motion for relief from judgment under
{¶ 37} Young argues that the court “never ruled on her Motion for Relief from Judgment under
{¶ 38} Young‘s petition never cited
{¶ 39} The third assignment of error is overruled. The judgment of the probate court will be affirmed.
DONOVAN, P.J. and FROELICH, J., concur.
Copies mailed to:
Marc N. Greenberg, Esq.
Lawrence J. Hofbauer, Esq.
Hon. Richard P. Carey