LAUREL K. YOUNG, ET AL. v. JOSH S. KAUFMAN, ET AL.
Nos. 104990 and 105359
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 14, 2017
[Cite as Young v. Kaufman, 2017-Ohio-9015.]
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division, Case No. 2014-ADV-201972
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and Jones, J.
RELEASED AND JOURNALIZED: December 14, 2017
Richard G. Johnson
Richard G. Johnson Co., L.P.A.
220 Crittenden Court Building
955 West St. Clair Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES JOSH KAUFMAN, KIM KAUFMAN AND DOUG KAUFMAN IN THEIR CAPACITIES AS CO-EXECUTORS AND CO-TRUSTEES
John E. Schiller
Jamie A. Price
Walter Haverfield L.L.P.
1301 East Ninth Street, Suite 3500
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE JOSH KAUFMAN
Leon A. Weiss
Adam M. Fried
Paul R. Shugar
Reminger Co., L.P.A.
101 Prospect Avenue, #1400
Cleveland, Ohio 44114
Adriann S. McGee
Reminger Co., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE KIM KAUFMAN
Jeffrey P. Consolo
Michael G. Latiff
McDonald Hopkins L.L.C.
600 Superior Avenue, East, Suite 2100
Cleveland, Ohio 44114
Joseph C. Weinstein
Rebecca W. Haverstick
Squire Patton Boggs
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
{1} This consolidated appeal involves a challenge by plaintiffs-appellants Laurel Young (“Lori“) and James Kaufman (“Jim“) (collectively, “appellants“) to their deceased mother‘s estate plan. Appellants claim that the estate plan, which disinherited Lori and Jim — two of the decedent‘s five children — is not valid because it was the product of undue influence by two of their siblings, Josh Kaufman (“Josh“) and Kim Kaufman (“Kim“) (the “contest claim“). Appellants also seek to remove Josh and Kim as co-executors and co-trustees of the decedent‘s will and trust based on their alleged breaches of fiduciary duty (the “removal claim“). Appellants appeal from the Cuyahoga County Court of Common Pleas, Probate Division‘s (the “probate court‘s“) orders entering summary judgment in favor of defendants-appellees Josh, Kim and Doug Kaufman (“Doug“), individually, and in their capacities as co-executors and co-trustees of the estate of Joyce Kaufman, deceased (collectively, “appellees“) on appellants’ contest claim (Appeal No. 104990) and removal claim (Appeal No. 105359). For the reasons that follow, we reverse the trial court‘s judgment and remand the matter for further proceedings.
Factual and Procedural Background
The Family and the Family Businesses
{2} The decedent, Joyce Kaufman (“Joyce“), passed away on August 6, 2013. She had five children — Jim, Lori, Doug, Kim and Josh. David Kaufman (“David“), Joyce‘s second husband, was the biological father of Josh and Kim. David adopted Jim, Lori and Doug after marrying Joyce.
{4} In the late 1990s or 2000, Jim redeemed his shares in the family businesses for $7 million. In 2002 or 2003, Lori redeemed her shares in the family businesses for a similar sum. At the end of 2009, Anchor was spun off from ACI. Doug bought Josh‘s shares of Anchor and Josh bought Doug‘s shares of Monarch. After the buyouts, Kim and Joyce remained shareholders of both Anchor and Monarch.
Joyce‘s Estate Plan
{5} In 1993, Joyce executed an estate plan that provided for the disposition of her assets first to her husband and thereafter to her five children. In 1999, she modified her estate plan to exclude Jim as a beneficiary except for a $1,000 bequest. Joyce made additional changes to her estate plan in 2000. Under these modifications to her estate plan, Joyce‘s personal property was to be disposed of at the discretion of Kim, and Lori, Doug, Kim and Josh were to receive the balance of her assets. In 2000, Joyce also executed a durable power of attorney, appointing Doug and Kim jointly as her attorneys-in-fact.
Q. * * * And she talked about her estate plan then?
A. Not specifically her estate plan, but the idea that she wanted each kid to have equal liquidity and I received mine.
Q. And what did that mean to you?
A. At that point in time that meant to me that if she was doing a will or trust or any estate planning it would probably be divided by four.
Q. Because you had been bought out?
A. Correct.
Q. So that made sense to you, didn‘t it?
A. It did.
Q. And you knew, you‘ve come to learn that you were excluded from your mom‘s trust?
A. And I would agree with that and was not necessarily aware of it, but was in agreement that that should have been done that way.
Q. What do you mean it was an agreement?
A. I didn‘t know that she did that, but I had no dispute with that being done * * * [b]ecause she had explained to me about the liquidity and I was okay with that.
Joyce Revises Her Estate Plan
{7} In 2009, Joyce took steps to revise her estate plan. Joyce initially worked with attorney Joan Gross, a partner with the law firm Hahn Loeser & Parks, L.L.P.
{8} Around the time Joycе began working with Gross, she also began working with accountant Phil Baptiste, who assisted her with tax-related issues. According to Baptiste, Joyce and ACI had been clients of his accounting firm, Cohen & Company, for a number of years but the family had become unhappy with them. In an effort to retain the family as a client, in early 2009, Baptiste met first with Josh, then with Joyce, to discuss the family‘s issues.
{9} Baptiste testified that when he first met with Joyce, he inquired about the state of her estate planning. He testified that Joyce indicated that she wanted to update her estate plan. According to Baptiste, Joyce did not indicate specifically what changes she wanted to make, but that, “in broad terms,” “[s]he was well kind of settled that * * * Jim and Lori had both been bought out of the businesses, so they sort of had received their money already.” Baptiste testified that “from day one” Joyce was “very clear” that her beneficiaries would be Josh, Kim and Doug and that the details that were being worked out from April 2009 until her estate plan was finalized in 2010 were “smaller but
{10} In January 2009, Joyce had a meeting with Gross, Baptiste, Gross’ partner Larry Oscar, and Joyce‘s business advisor, David Stith, to discuss her objectives for her new estate plan. Gross testified that, at the meeting, Joyce stated that she wanted only three of her children to inherit under her new estate plan — Josh, Kim and Doug — and that she documented this in her notes. According to Gross, Joyce explained that she did not intend to include Jim and Lori as beneficiaries in her new estate plan because they had already received their share of the family‘s wealth when they redeemed their company stock.2 Oscar similarly testified that Joyce had informed him that Jim and Lori were to be excluded from her estate plan because they had already received their inheritance through the buyout of their interests in the family businesses.
{11} Following the January 2009 meeting, Gross sent Joyce a summary of a proposed estate plаn and a flow chart showing how the estate plan would work. The summary excluded Jim and Lori from inheriting under the new estate plan. After a second meeting in February, Gross sent Joyce a revised summary and flow chart. The
{12} In April 2009, Gross forwarded draft estate planning documents that excluded Jim and Lori as beneficiaries to Joyce for her review. Joyce, however, never signed them. Gross testified that Joyce informed her that she would not sign the estate planning documents Gross had prepared until some of her children repaid several outstanding promissory notes they owed her.3 According to Gross, Joyce wanted to use the proceeds of the notes to fund a trust for her grandchildren and refused to sign the estate planning documents as Joan had drafted them becausе she was considering making additional changes to her estate plan once the promissory notes were repaid. Joyce did not indicate to Gross what those changes might be. Gross testified that she communicated with Joyce via mail, federal express, in-person meetings or telephone.
{13} In the summer of 2010, Joyce began working with another Hahn Loeser attorney, Steve Gariepy, on her new estate plan. Oscar testified that in August 2010, Josh informed him that Joyce was not comfortable moving forward with Gross and wanted to retain another attorney to complete her estate plan. As to why Joyce decided to switch counsel, Oscar testified that, according to Josh, Joyce was displeased with the time and expense Gross had dedicated to a potential gift tax issue that, after additional
{14} On August 26, 2010, Gariepy had his first meeting with Joyce, Kim and Josh. His notes from the meeting include a notation, “Joyce Oh. resident; five children but only three bens. No e.p. [estate plan], just handwritten, and HLP drafts. 72.” Following the meeting, Gariepy sent a memorandum to Joyce, Kim and Josh (by fax to Joyce to her home fax5 and by email to Josh) summarizing their meeting and identifying the open issues that remained with respect to Joyce‘s estate plan (the “August 30, 2010 memorandum“). Under the heading “Joyce‘s Will and Revocable Trust,” the memorandum indicated that Joyce would leave her tangible personal property to Kim and that the balance of her estate would be divided equally into three separate trusts for Kim, Doug and Josh.
{16} On November 16, 2010, Gariepy faxed a progress report and engagement letter to Joyce, copying Josh and Kim, updating them regarding the progress he had made towards Joyce‘s estate plan and the proposed buyout of the Anchor stock. He indicated that “[a]t our August 26th meeting I could see that your goals and decisions are still in a state of flux and that you were not ready to make some basic decisions.” He further indicated that he had “not heard back yet on the basic questions, such as whom you would like to name as executor and beneficiaries, raised in my August 30th memo.” Gariepy indicаted that he could “now see that your thinking on your estate plan objectives and fiduciaries has changed” and provided fee estimates for the work that remained to be performed on Joyce‘s estate plan and related issues.6 He requested that Joyce “confirm that all of the above meets with your approval by return fax or email.”
{17} Josh responded by email, copying Baptiste but not Joyce. Josh stated that he and Baptiste had met with Joyce the previous day and responded to each of the issues raised by Gariepy. Specifically, he indicated that Kim, Josh and Doug would be the
{18} Gariepy responded to Josh via email, copying Baptiste via email and Joyce via fax. He addressed the concerns Josh had raised regarding his estimated fees and indicated that he “will need Joyce‘s approval as the client to the engagement letter with the estimates * * * in order for me to proceed.”
{19} Two weeks later, on December 2, 2010, Josh emailed Gariepy, complaining about his lack of response to “the two voicemails I left this week” and asking him “to confirm where we are with the will and trust for my mom today.” Gariepy responded that “as requested in my last e-mail, your Mom [sic] as the client will need to fax her confirmation approving my fee estimates.” Josh replied, “That was the purpose оf the voicemail she and I left you Monday.” Joyce was not copied on any of these emails. A couple of hours later, Gariepy sent an email, thanking Joyce “for approving the go ahead on the will and trust and related fee estimates” and indicated that he would have the will
{20} Josh responded to Gariepy‘s email, copying Joyce via fax and email, and stated that the signing needed to be moved up a week because Joyce was leaving for Florida on December 14. The execution of the will and trust was then scheduled for December 10, 2010.
{21} Gross drafted Joyce‘s 2010 estate plan for Gariepy. Gross testified that the 2010 estate plan involved “a very simple change” from the estate plan she had prepared for Joyce a year earlier, i.e., removing the trust for the grandchildren from the estate plan. Gross testified that because she was no longer in contact with Joyce or any other member of the Kaufman family, she relied on Gariepy to ensure that the 2010 estate planning documents accomplished what Joyce intended.
{22} On December 7, 2010, Gariepy attempted to fax a summary of the will and trust to Joyce, copying Josh via email, but the fax did not go through. He, therefore, emailed the document to Joyce and Josh and asked Josh to deliver a copy to her. Josh confirmed that he had received the document, indicated that he had faxed the document to his mother and that they planned on “reviewing it together” the following morning.
{23} On December 10, 2010, Joyce signed her last will and testament (the “2010 will“) and the third amendment to declaration of trust (Joyce S. Kaufman Revocable Trust Agreement) dated December 10, 2010 (the “2010 trust“) (collectively, the “2010 estate
{24} Gariepy could not recall whether Joyce was sent copies of the completed estate plan documents for her review before she signed them. He testified that, based on “protocol,” he knows that he met with Joyce alone to discuss her intentions at some point prior to her execution of the estate planning documents — but he could not recall where or when they met. He also testified that he had an additional in-person meeting with Joyce to discuss her estate plan sometime between December 7, 2010, when he emailed the summary to her and Josh, and December 10, 2010, when Joyce executed the estate plan but he could not recall when it occurred, where it occurred, who was present or what was discussed regarding the estate plan. His billing records do not reflect these meetings. Gariepy testified that although he could not specifically recall having done so,
{25} Gariepy and Cheryl Mosback, a Hahn Loeser legal assistant, witnessed Joyce‘s signatures on the will and trust. Gariepy testified that, consistent with his attestation, he believed Joyce was “of sound and vigorous mind and memory” at the time she signed the 2010 estate plan and that she understood every aspect of the distribution of her estate.
{26} After Joyce executed the 2010 estate plan, Gariepy sent an email to Josh and fax to Joyce reminding them that Joyce needed to transfer her bank accounts to the trust. The following week, Josh emailed a KeyBank relationship manager and requested that his mother‘s accounts be re-titled in the name of the trust. Another KeyBank representative responded and advised him of the procedure for doing so, i.e., that they needed copies of pages from the trust and a new signature card signed by Joyce. Joyce was not copied on these exchanges.
{27} Gariepy mailed a copy of the executed 2010 estate plan to Joyce in January 2011. Gariepy requested that Joyce sign and return a copy of the cover letter acknowledging her receipt of the documents, but there is nothing in the record that indicates that she did so.
{28} In the spring of 2013, Joyce was diagnosed with Stage IV lung cancer. After her diagnosis, she once again took steps to revise her estate plan. Gariepy testified that on April 19, 2013, he had a meeting with Joyce, Josh and Kim in which Joyce
{29} The next day, Josh emailed Gariepy. Josh stated that “my mom asked that you not include her on emails” and inquired if there was “a way to send a copy of the billing as you currently do along with another that does not contain quite the detail * * *.” On April 28, 2013, Gariepy emailed an updated outline and chart to Josh “to pass along to Joyce.” Joyce was not copied on the email. In the updated draft of the new estate plan, the balance of Joyce‘s assets after specific distributions were made was to be shared by “all five children equally.” Gariepy testified that he heard nothing further from the Kaufman family regarding Joyce‘s estate plan for the next two months.
{30} Jim testified that in mid-May 2013, he had a conversation with Joyce in which she told him that he needed to “get down and see Gariepy, what he did was a sin.” Jim claims that his mother told him that “everything was supposed to be equal” and that when she executed her 2010 estate plan, she had been under “intense” pressure from Josh. Jim testified that Joyce then called Josh over and told her that he needed to set up a meeting with him, Jim and Gariepy “to get done what I asked you to get done.” Jim testified that by June 2013, Joyce was frustrated and upset regarding the lack of progress on her new estate plan.
{32} In mid-July 2013, Joyce met with all five of her children (the “July 2013 family meeting“). Jim testified that during this meeting, Joyce told each of hеr children that she wanted them all “to get along,” that she wanted her estate to be divided equally among them and that she wanted the proceeds of her life insurance policies to be used to pay her estate taxes. Jim testified that Joyce made all of her children promise that they would follow her wishes. Joyce died before any new estate plan was finalized or executed.
{33} On April 7, 2014, appellees filed an application for authority to administer Joyce‘s estate based on the 2010 estate plan and the will was admitted to probate. Josh, Kim and Doug were designated co-executors under the will and co-trustees of the trust.
The Litigation
{34} On October 10, 2014, appellants filed a “will contest” complaint against appellees, individually and in their capacities as co-executors of Joyce‘s estate and co-trustees of the trust, challenging the validity of the 2010 will and trust and seeking to
{35} Josh, Kim and Doug filed a joint answer to appellants’ complaint in their capacities as co-executors and co-trustees and separate answers to appellants’ complaint in their individual capacities. They denied appellants’ allegations of self-dealing and undue influence and asserted various affirmative defenses. In his separate answer, Doug admitted that (1) Joyce was dissatisfied with the 2010 estate plan prepared by Hahn Loeser and (2) had advised all of her children prior to her death that her estate was to be divided equally among them. Josh and Kim denied these allegations.
Motions for Summary Judgment
{37} On April 28, 2016, appellees filed a motion for partiаl summary judgment on appellants’ contest claim, asserting that there was no genuine issue of material fact that Joyce did not lack testamentary capacity when she executed the 2010 estate plan and that the estate plan was not the product of undue influence.9
{39} On June 24, 2016, the probate court granted appellees’ motion for partial summary judgment on the contest claim. The probate court found that appellants had failed to present any evidence establishing that Joyce was susceptible to undue influence
at the time she executed the 2010 estate plan, that there was no evidence of any connection between Kim‘s actions and the 2010 estate plan and that the case law did not support a finding that Josh was in a confidential relationship with Joyce so as to give rise to a presumption of undue influence. The probate court further found that undisputed evidence established that Joyce‘s 2010 estate plan reflected her “consistent stated objectives over a period of time,” that there was no evidence that Josh or Kim exerted any influence over Joyce that made her exclude Jim and Lori from her estate plan and that there were no genuine issues of material fact as to Joyce‘s testamentary сapacity at the time she executed her 2010 estate plan.{40} On June 30, 2016, appellants filed a motion for reconsideration or, in the alternative, request for a final order, asserting that the probate court had made various “mistakes” and “misstatements” that warranted reconsideration of its summary judgment ruling. The probate court denied the motion for reconsideration. On August 23, 2016, the probate court entered a judgment entry stating that its prior judgment entry on summary judgment was a final, appealable order, certifying that there was no just reason for delay under
{41} In July 2016, appellees filed a second motion for summary judgment on the removal claim, arguing that (1) in light of the court‘s ruling granting summary judgment on the contest claim, appellants lacked standing to seek removal of appellees as co-executors and co-trustees because appellants were not beneficiaries of the 2010 will and trust and (2) there was no evidence of any self-dealing by appellees in breach of their fiduciary duties. Appellants opposed the motion, asserting that they had standing based
{42} On January 5, 2017, the probate court granted appellees’ second motion for summary judgment, rejecting appellants’ “newly created oral trust theory” as a basis for standing on their removal claim. The probate court reasoned that appellants (1) appellants had failed to plead the existence of an oral trust or that they were beneficiaries of Joyce‘s estate by virtue of an oral trust in their complaint, (2) had made no argument, when opposing summary judgment on the contest claim, that the 2010 estate plan was invalid due to the creation of a subsequent oral trust and the probate court had already determined, in granting appellees’ motion for summary judgment on the contest claim, that the 2010 will and trust were valid and (3) could not establish the existence of an oral trust based on the applicable law. Once again, appellants appealed. This court granted appellants’ motion to consolidate the appeals.
{43} In their appeals, appellants have raised the following ten assignments of error for review:
Assignment of Error No. 1:
The Trial Court erred when, on or about December 9, 2015, it granted the Defendants’ Motions for a Protective Order and to Bifurcate the Claims.
Assignment of Error No. 2:
Assignment of Error No. 3:
The Trial Court erred when, on or about May 26, 2016, it denied the Plaintiffs’ Motion to Compel against non-party Hahn Loeser & Parks L.L.P.
Assignment of Error No. 4:
The Trial Court erred when, on or about May 26, 2016, it granted in part the Defendants’ Motion to Quash against non-party Cohen & Co., Ltd.
Assignment of Error No. 5:
The Trial Court erred when, on оr about May 26, 2016, it denied the Plaintiffs’ Civil Rule 56(F) Motion for an Extension of Time.
Assignment of Error No. 6:
The Trial Court erred when, on or about June 24, 2016, it denied the Plaintiffs’ Omnibus Motion for Clarification and Reconsideration.
Assignment of Error No. 7:
The Trial Court erred when, on or about June 24, 2016, it granted the Defendants’ First Motion for Partial Summary Judgment.
Assignment of Error No. 8:
The Trial Court erred when, on or about August 11, 2016, it denied the Plaintiffs’ Motion for Reconsideration.
Assignment of Error No. 9:
The Trial Court erred when, on or about August 23, 2016, it granted the Plaintiffs’ Request for a Final Order.
Assignment of Error No. 10:
The Trial Court erred when, on or about January 5, 2017, it granted the Defendants’ Second Motion for Summary Judgment.
Law and Analysis
Assignments of Error Not Argued
{44} As an initial matter, we note that in their opening brief, appellants have only included separate argument relating to their seventh, eighth and tenth assignments of
{45} Accordingly, we disregard and overrule appellants’ first, second, third, fourth, fifth, sixth and ninth assignments of error for failure to comply with
Motions for Summary Judgment
{46} Appellants’ seventh, eighth and tenth assignments of error relate to the trial court‘s rulings on appellees’ motions for summary judgment.
Standard of Review
{47} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference to the trial court‘s decision and conduct an independent review of the record to determine whether summary judgment is appropriate.
{48} Under
{49} On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate his or her entitlement to
Contest Claim
{50} In their seventh and eighth assignments of error, appellants contend that the trial court erred in entering summary judgment on their contest claim in favor of appellees, and thereafter denying their motion for reconsidеration, because there are genuine issues of material fact as to whether appellants exerted undue influence over Joyce.
Presumption of Validity and Claims of Undue Influence
{51} When a will is admitted to probate, there is a presumption of validity, including that the testator was free from restraint. Johnson v. Johnson, 5th Dist. Stark No. 2016CA00184, 2017-Ohio-4153, ¶ 15, citing Krischbaum v. Dillon, 58 Ohio St.3d 58, 64, 567 N.E.2d 1291 (1991);
{52} To establish undue influence, the challenging party must prove by clear and convincing evidence: (1) the testator was susceptible to undue influence, (2) another person had an opportunity to exert influence over the susceptible testator, (3) improper influence was exerted or attempted and (4) a result showing the effect of such influence. Black, 2016-Ohio-1470, at ¶ 11, citing West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962), and Ament v. Reassure Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 38 (8th Dist.). The same standard applies in establishing undue influence with respect to a trust. See
{53} In Black, this court explained what is and is not undue influence sufficient to invalidate a will as follows:
The mere existence of undue influence or an opportunity to exercise it, even coupled with an interest or motive to do so, is not sufficient to invalidate a will. [West at 501.] Rather, the influence must be actually exerted in the mind of the testator with respect to the execution of the will at issue. Id. That is, it must be shown that the undue influence resulted in the making of testamentary dispositions that the testator otherwise would not have made. Id.
Black at ¶ 11. “The fact that the testator * * * disposes of his property in an unnatural manner, unjustly, or unequally, and however much at variance with expressions by the testator concerning relatives or the natural objects of his bounty, does not invalidate the will, unless undue influence was actually exercised on the testator.” West at 502, quoting 94 Corpus Juris Secundum, 1074, at Section 224. “General influence, however strong or controlling, is not undue influence unless brought to bear directly upon the act of making the will. If the will or codicil, as finally executed, expresses the will, wishes and desires of the testator, the will is not void because of undue influence.” (Emphasis omitted.) West at 501.
{54} In this case, there is no evidence that Joyce had any diminished mental or physical capacity or had any significant health issues as of December 2010 when she executed her 2010 estate plan. The evidence presented by both parties showed that as of December 2010, Joyce was in good health, astute, intelligent, independent and took care of her own needs.11 Although Joyce retained various advisors to assist her with
{55} However, undue influence is presumed if the challenging party establishes that a fiduciary or confidential relationship existed between the decedent and a beneficiary. See, e.g., In re Estate of Kiefer, 2d Dist. Miami No. 2016-CA-12, 2017-Ohio-6997, ¶ 8; Diamond v. Creager, 2d Dist. Montgomery No. 18819, 2002 Ohio App. LEXIS 844, at *9-*10 (Mar. 1, 2002). Where such a relationship exists, “the transfer is looked upon with some suspicion that undue influence may have been brought to bear on the donor by the donee.” Bayes v. Dornon, 2015-Ohio-3053, 37 N.E.3d 181, ¶ 48 (2d Dist.), quoting Studniewski v. Krzyzanowski, 65 Ohio App.3d 628, 632, 584 N.E.2d 1297 (6th Dist.1989).
{56} Appellants contend that the evidence establishes that Josh and Kim had a confidential or fiduciary relationship with Joyce, giving rise to a presumption of undue influence, based on the fact that (1) Kim was an attorney-in-fact for Joyce and an authorized user or signer on certain of Joyce‘s bank and credit card accounts, (2) Josh assisted Joyce with her financial affairs and communicated with her estate planning
{57} A “fiduciary relationship” is a relationship in which “special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.” Ryerson v. White, 8th Dist. Cuyahoga No. 100547, 2014-Ohio-3233, ¶ 18, citing Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-5077, 797 N.E.2d 1002, ¶ 32 (8th Dist.); see also In re Estate of Kiefer at ¶ 8. The holder of a power of attorney has a fiduciary relationship with his or her principal and is not required to have used the power of attorney for a confidential or fiduciary relationship to arise. In re Estate of Kiefer at ¶ 12; Bayes, 2015-Ohio-3053, at ¶ 48, 50.
{58} A “confidential relationship” exists “whenever trust and confidence is placed in the integrity and fidelity of another.” Ryerson at ¶ 19, quoting Golub v. Golub, 8th Dist. Cuyahoga No. 97603, 2012-Ohio-2509, ¶ 33; Ament, 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, at ¶ 39. “A confidential relationship can be moral, social, domestic, or merely personal in nature.” Diamond at *9, citing Thorp v. Cross, 11th Dist. Portage No. 97-P-0079, 1998 Ohio App. LEXIS 4885 (Oct. 16, 1998). The determination of whether a relationship is a confidential relationship is a question of fact dependent upon the circumstances in each case. See, e.g., Ryerson at ¶ 19; Ciszewski v. Kolaczewski, 9th Dist. Summit No. 26508, 2013-Ohio-1765, ¶ 10.
{59} Where a presumption of undue influence arises based on the existence of a confidential or fiduciary relationship between a donor and a beneficiary, “the burden of going forward with evidence” shifts to the beneficiary accused of exercising undue influence to show that his or her conduct was free from undue influence. Landin v. Lavrisiuk, 8th Dist. Cuyahoga No. 84893, 2005-Ohio-4991, ¶ 23; Ryerson at ¶ 17. The beneficiary may rebut the presumption by demonstrating that the donor acted voluntarily, in an exercise of his or her free will, with a full understanding of his or her actions and their consequences. See, e.g., In re Guardianship of Simmons, 6th Dist. Wood No. WD-02-039, 2003-Ohio-5416, ¶ 26. “[T]he party attacking the transfer retains the ultimate burden of proving undue influence by clear and convincing evidence.” Ament at ¶ 38, 40; In re Estate of Eyrich, 11th Dist. Trumbull No. 2016-T-0002, 2016-Ohio-7165, ¶ 25, quoting Estate of Niemi v. Niemi, 11th Dist. Trumbull No. 2008-T-0082, 2009-Ohio-209; see also
{60} A parent-child relationship in and of itself is insufficient to create a confidential or fiduciary relationship. See, e.g., Ryerson, 2014-Ohio-3233, at ¶ 18; Ciszewski, 2013-Ohio-1765, at ¶ 10; see also Jeffreys v. Dennis, 5th Dist. Guernsey No. 96CA25, 1996 Ohio App. LEXIS 6122, *4, *7 (Dec. 2, 1996) (indicating that to support a presumption of undue influence between a parent and a child, a confidential or fiduciary
Kim‘s Relationship with Joyce
{61} With respect to Kim, it is undisputed that Kim was her mother‘s attorney-in-fact for a number of years before Joyce executed her 2010 estate plan. Because Kim was her mother‘s attorney-in-fact, a fiduciary relationship existed between Kim and Joyce at the time she executed her 2010 estate plan, giving rise to a presumption of undue influence by Kim. Thus, the issue is whether Kim successfully rebutted the presumption of undue influence. We believe that there is no genuine issue of material fact that she did so.
{62} Viewing the evidence presented in the light most favorable to appellants, it could not support a finding that any influence Kim may have exerted over Joyce “so overpowеr[ed] and subjugate[d]” Joyce “as to destroy [her] free agency and make [her] express [Kim‘s] will rather than [her] own” with respect to her estate plan. West, 173 Ohio St. 498, 501, 184 N.E.2d 200 at 501. In this case, although Kim was Joyce‘s attorney-in-fact and had access to certain of Joyce‘s bank and credit card accounts, there was no evidence she used them to benefit herself. Likewise, although Kim may have spent a lot of time with, and communicated frequently with, her mother, there is no evidence that these communications related to her estate plan or that Kim exerted any influence — much less undue influence — over Joyce with respect to her estate plan. The record reflects that Kim accompanied her mother on a couple of meetings with her
Josh‘s Relationship with Joyce
{63} Josh‘s actions are more trоublesome. The record reflects that beginning in August 2010, Josh was regularly involved in and, in many instances, was the exclusive conduit for, communications between Joyce and her estate planning attorneys. After Gross was removed as the contact for Joyce‘s estate plan, virtually every communication with her attorneys relating to Joyce‘s new estate plan and Joyce‘s intent with respect to that estate plan went through or included Josh. Other than Gariepy‘s assumption that he did so based on years of practice and “protocol,” there is no evidence that Gariepy had any direct, independent communications with Joyce confirming that what Josh had told him — and what was ultimately included in the 2010 estate plan — accurately reflected Joyce‘s intent. Gariepy could not recall what communications he had with Joyce and his billing records do not reflect any meetings or other communications with Joyce regarding her estate plan that did not include Josh. Further, it is questionable whether Joyce even received a numbеr of the communications Gariepy sent her. It was undisputed that Joyce “didn‘t do email.” Whereas Gross and Baptiste testified that they generally communicated with Joyce by mail, federal express, telephone or in person, Gariepy‘s communications with Joyce were primarily by email or fax.
{64} Based on Josh‘s role as intermediary and spokesperson for his mother with respect to her 2010 estate plan, we believe reasonable minds could disagree as to whether
{65} We sustain appellants’ seventh assignment of error. Given that a genuine issue of material fact exists as to the validity of the 2010 estate plan, a genuine issue of material fact likewise exists as to whether appellants have standing to assert their removal claim. Accordingly, we also sustain appellants’ tenth assignment of error.
{66} Given our resolution of appellants’ seventh assignment of error, appellant‘s eighth assignment of error is moot. We reverse the probate court‘s granting of summary judgment on the contest and removal claims and remand the matter to the trial court for further proceedings consistent with this opinion.
{67} Judgment reversed; remanded.
It is ordered that appellants recover from appellees the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cuyahoga County Court of Common Pleas, Probate Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
LARRY A. JONES, SR., J., CONCUR