Alibrando v. Miner

2021 Ohio 2827

• Court: Ohio Court of Appeals
• Decided: August 17, 2021
• Docket: 2021 CA 0010
• Status: Published

Opinion

[Cite as Alibrando v. Miner, 2021-Ohio-2827.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MATTHEW ALIBRANDO, ET AL. : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiffs-Appellants : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CONNIE MINER : Case No. 2021 CA 0010 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Probate Division, Case No. 2019-0068A

JUDGMENT: Reversed in Part, Vacated in Part, and Remanded

DATE OF JUDGMENT: August 17, 2021

APPEARANCES:

For Plaintiffs-Appellants For Defendant-Appellee

CHARLES H. BENDIG C. DANIEL HAYES 4937 West Broad Street 195 East Broad Street Columbus, OH 43228 P.O. Box 958 Pataskala, OH 43062 Licking County, Case No. 2021 CA 0010 2

Wise, Earle, J.

{¶ 1} Plaintiffs-Appellants, Matthew Alibrando and Vincent Alibrando, appeal the

January 25, 2021 entry of the Court of Common Pleas of Licking County, Ohio, Probate

Division, granting summary judgment to Defendant-Appellee, Connie Minor.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In August 2013, Guito Alibrando executed a last will and testament naming

his longtime girlfriend, appellee herein, as executrix. In the will, he bequeathed her

$100,000, with the remainder of his estate going to his two sons, appellants herein.

Shortly after execution, appellee read the will and was aware of the contents therein. In

October 2013, appellee was added to Guito's checking account. In August 2015, Guito

executed a durable power of attorney authorizing appellee to sell any real estate in his

name and to deposit and/or withdraw funds from any of his bank accounts, including the

joint checking account.

{¶ 3} In July 2016, Guito entered a nursing home. In July 2018, appellee sold

Guito's house and placed the proceeds, over $200,000, into the joint checking account.

Guito passed away in December 2018. In February 2019, appellee removed the funds

from the joint checking account and placed them into her personal savings account.

{¶ 4} On January 28, 2019, appellee, as executrix, filed an application to probate

Guito's will. On July 11, 2019, appellants filed exceptions to the final account, claiming

the account failed to include the proceeds from the sale of the house.

{¶ 5} On August 30, 2019, appellants filed a complaint alleging concealment of

assets pursuant to R.C. 2109.50. Also on August 30, 2019, appellants filed a motion to

substitute executrix with themselves. Licking County, Case No. 2021 CA 0010 3

{¶ 6} On October 14, 2019, appellee filed a motion for summary judgment.

Discovery was still ongoing. On November 18, 2019, appellants filed a memorandum

contra to appellee's motion, as well as their own motion for partial summary judgment.

Also on November 18, 2019, appellants filed a motion to amend their complaint to conform

to the evidence obtained through discovery and to add a claim of a constructive trust. By

entry filed January 25, 2021, the trial court granted appellee's motion for summary

judgment and denied appellants' motion for partial summary judgment, and denied

appellants' motions to substitute the executrix and amend their complaint.

{¶ 7} Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 8} "THE TRIAL COURT ERRED IN FAILING TO FIND THE POA'S

TRANSFER OF OVER $210,000, PAYABLE SOLELY TO HER PRINCIPAL, INTO A

JOINT SURVIVORSHIP ACCOUNT WHERE HIS DEATH WAS IMMINENT, AND THE

FAILURE TO RETURN THOSE FUNDS TO THE DECEDENT'S ESTATE AFTER

DEATH, WAS A MISAPPROPRIATION OF HER PRINCIPAL'S MONEY IN VIOLATION

OF HER FIDUCIARY RELATIONSHIP, IN BAD FAITH, CONTRARY TO THE

PRINCIPAL'S KNOWN ESTATE PLAN, AND CONTRARY TO THE PRINCIPAL'S BEST

INTEREST AND REASONABLE EXPECTATIONS, REQUIRING SUMMARY

JUDGMENT IN FAVOR OF APPELLANTS."

II

{¶ 9} "THE TRIAL COURT ERRED IN FAILING TO REMOVE CONNIE MINER

AS THE EXECUTOR OF THE DECEDENT'S ESTATE DUE TO PENDING LITIGATION

BY THE RESIDUAL BENEFICIARIES OF THE ESTATE AGAINST HER, AND THE Licking County, Case No. 2021 CA 0010 4

NEED FOR THE DECEDENT'S ESTATE TO INVESTIGATE PROBABLE MISCONDUCT

BY HER IN THE YEARS PRIOR TO HIS DEATH."

III

{¶ 10} "THE TRIAL COURT ERRED IN FAILING TO FIND AGAINST CONNIE

MINER FOR CONCEALMENT AND EMBEZZLEMENT OF ESTATE ASSETS

PURSUANT TO ORC 2109.50, REMOVAL AS EXECUTOR PURSUANT TO ORC

2109.53 AND JUDGMENT AGAINST HER FOR THE AMOUNTS CONCEALED OR

EMBEZZLED, WITH THE MANDATORY 10% PENALTY AND REASONABLE

ATTORNEY'S FEES."

IV

{¶ 11} "THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS'

MOTION TO FILE AN AMENDED COMPLAINT."

V

{¶ 12} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR

SUMMARY JUDGMENT."

{¶ 13} We will address the assignments of error out of order for ease of discussion.

{¶ 14} In their fifth assignment of error, appellants claim the trial court erred in

granting summary judgment to appellee. We agree.

{¶ 15} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996): Licking County, Case No. 2021 CA 0010 5

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

466, 472, 364 N.E.2d 267, 274.

{¶ 16} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its Licking County, Case No. 2021 CA 0010 6

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 17} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶ 18} The August 2015 power of attorney granted to appellee authorized her to

sell any of Guito's real or personal property, and to deposit or withdraw funds from any

banking institution including the joint checking account. The document states the

following at ¶ 19: Licking County, Case No. 2021 CA 0010 7

In accordance with O.R.C. 1337.34, the following duties of the agent

are mandatory: All agents must act (i) in good faith; (ii) within the scope of

authority granted; (iii) in accordance with the principal's reasonable

expectations, if known, or in the principal's best interest, and the agent must

(iv) attempt to preserve the principal's estate plan, to the extent actually

known to the agent, if preserving the plan is consistent with the principal's

best interests based on all relevant factors.

{¶ 19} As explained by our colleagues from the Third District in Temple v. Temple,

3d Dist. Marion No. 9-14-26, 2015-Ohio-2311, ¶ 29:

" * * * [A] power of attorney is a written instrument authorizing an

agent to perform specific acts on behalf of the principal." Testa v. Roberts,

44 Ohio App.3d 161, 164, 542 N.E.2d 654 (1988). The holder of a power

of attorney has a fiduciary relationship with the principal. This fiduciary

relationship imposes a duty of loyalty to the principal. In re Scott, 111 Ohio

App.3d 273, 276, 675 N.E.2d 1350 (1996). Thus, an agent "may not make

gratuitous transfers of the principal's assets unless the power of attorney

from which the authority is derived expressly and unambiguously grants the

authority to do so." MacEwen v. Jordan, 1st Dist. No. C-020431, 2003-

Ohio-1547, 2003 WL 1571741, at ¶ 12. In re Meloni, 11th Dist. No. 2003-

T-0096, 2004-Ohio-7224, 2004 WL 3090190, at ¶ 34. The person who

holds the power of attorney bears the burden of proof on the issue of the

fairness of the transaction. Testa at paragraph five of syllabus. Licking County, Case No. 2021 CA 0010 8

{¶ 20} Pursuant to Guito's will executed in August 2013, appellee was to receive

$100,000 from the estate and the remainder was to go to appellants. After appellee sold

Guito's house in July 2018, she placed the proceeds (over $200,000) into the joint

checking account to pay Guito's bills. After Guito passed away, appellee transferred the

remaining money in the joint checking account (over $200,000) to her personal savings

account. In their motion for partial summary judgment, appellants argued this transaction

constituted self-dealing by a fiduciary in violation of R.C. Chapter 1337, concealment of

assets, embezzlement, and theft.

{¶ 21} In its January 25, 2021 entry granting summary judgment to appellee, the

trial court thoroughly analyzed Guito's capacity to execute his will and the power of

attorney, and found the undisputed facts show he had testamentary and mental capacity

at the time he executed the documents. The trial court went on to conclude the power of

attorney gave appellee the ability to sell the home and place the proceeds in the joint

checking account, but stopped short of analyzing whether appellee, as a fiduciary,

properly transferred the funds from the joint checking account to her individual account

for her sole benefit as opposed to the beneficiaries under the will. Did appellee's actions

constitute good faith? Did she act in accordance with Guito's reasonable expectations?

Did she attempt to preserve Guito's estate plan which was to bequeath her $100,000 with

the remainder to appellants? Under our de novo review, we find genuine issues of

material fact to exist on these questions.

{¶ 22} Upon review, we find the trial court erred in granting summary judgment to

appellee.

{¶ 23} Assignment of Error V is granted. Licking County, Case No. 2021 CA 0010 9

I, III

{¶ 24} In their first assignment of error, appellants claim the trial court erred in

denying their motion for summary judgment.

{¶ 25} In their third assignment of error, appellants claim the trial court erred in

failing to find against appellee for concealment and embezzlement of estate asset.

{¶ 26} Given our finding of genuine issues of material fact to exist, we deny these

assignments of error.

{¶ 27} Assignments of Error I and III are denied.

{¶ 28} In their second assignment of error, appellants claim the trial court erred in

failing to remove appellee as the executrix of Guito's estate due to their pending claims

against her. Based upon our finding below, we find this assignment to be premature.

{¶ 29} As explained by this court in Meek v. Geneva, 5th Dist. Tuscarawas No.

2017 AP 01 0001, 2017-Ohio-7975, ¶ 43:

"The fiduciary duties of an executor are primarily to collect the estate

assets, pay debts, and make distributions." In re Estate of Faldon, 6th Dist.

Erie No. E-15-071, 2016-Ohio-7337, 2016 WL 6069077, ¶ 26 quoting Estate

of Barry, 11th Dist. Geauga No. 2013-G-3147, 2015-Ohio-1203, 2015 WL

1432344, ¶ 17. "The executor also owes various duties to the beneficiaries

of the estate, duties involving keeping proper accounts, giving timely notice,

preserving assets, avoiding the commingling of property, and basic duties

of trust and loyalty." Id. The executor "serves as a representative of the

entire estate and owes a duty to act in a manner which protects the Licking County, Case No. 2021 CA 0010 10

beneficiaries' interests." Id., citing Elam v. Hyatt Legal Serv., 44 Ohio St.3d

175, 176, 541 N.E.2d 616 (1989).

{¶ 30} Appellants made numerous claims against appellee including concealment

and embezzlement of estate assets under R.C. 2109.50, and questioned her actions as

a fiduciary pursuant to the standard set forth in R.C. 1337.34 and included in the power

of attorney document.

{¶ 31} R.C. 2113.18 governs removal of executor or administrator in a probate

case. Subsection (A) states the following: "The probate court may remove any executor

or administrator if there are unsettled claims existing between the executor or

administrator and the estate that the court thinks may be the subject of controversy or

litigation between the executor or administrator and the estate or persons interested in

the estate."

{¶ 32} Per the language in the statute, the removal of an executor lies in a trial

court's sound discretion. In its entry filed January 25, 2021, the trial court denied

appellants' motion to remove the executrix without comment as it had granted appellee's

motion for summary judgment. Given the reinstatement of appellants' colorable claims

and the existence of genuine issues of material fact as to whether appellee has violated

her fiduciary duties and/or engaged in self-dealing, we find the trial court should now

consider the motion.

{¶ 33} Upon review, we hereby vacate the ruling on the denial to remove appellee

as executrix and remand the issue for reconsideration and decision.

{¶ 34} Assignment of Error II is therefore premature. Licking County, Case No. 2021 CA 0010 11

{¶ 35} In their fourth assignment of error, appellants claim the trial court erred in

denying their motion to amend their complaint. We agree.

{¶ 36} Twenty-eight days after a responsive pleading has been made, Civ.R. 15(A)

allows for amendment of pleadings by leave of court or by written consent of the other

party. Civ.R. 15(A) specifically states: "The court shall freely give leave when justice so

requires." In Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984), the Supreme

Court of Ohio stated, "the language of Civ.R. 15(A) favors a liberal amendment policy and

a motion for leave to amend should be granted absent a finding of bad faith, undue delay

or undue prejudice to the opposing party." "The spirit of the Civil Rules is the resolution

of cases upon their merits, not upon pleading deficiencies. Civ.R. 1(B) requires that the

Civil Rules shall be applied 'to effect just results.' Pleadings are simply an end to that

objective." Peterson v. Teodosio, 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973).

"Although the grant or denial of leave to amend a pleading is discretionary, where it is

possible that the plaintiff, by an amended complaint, may set forth a claim upon which

relief can be granted, and it is tendered timely and in good faith and no reason is apparent

or disclosed for denying leave, the denial of leave to file such amended complaint is an

abuse of discretion." Id.

{¶ 37} The issues pertaining to appellee's actions regarding the joint checking

account were raised in appellants' motion for partial summary judgment filed November

18, 2019. On same date, appellants sought to amend their complaint to conform to the

evidence obtained through discovery and to add a claim of a constructive trust, narrowing

their focus from Guito's testamentary and mental capacity to appellee's fiduciary duties

under R.C. Chapter 1337 and her transfer of the funds out of the joint checking account. Licking County, Case No. 2021 CA 0010 12

The motion to amend was made less than three months after the initial complaint was

filed. Discovery was still ongoing as late as December 20, 2019. The trial court did not

issue a decision until over a year later on January 25, 2021. We do not find any evidence

of bad faith or undue delay. We do not find any undue prejudice to appellee in permitting

appellants to amend their complaint to conform to discovery.

{¶ 38} Upon review, we find the trial court erred in denying appellants' motion to

amend their complaint.

{¶ 39} Assignment of Error IV is granted.

{¶ 40} The judgment of the Court of Common Pleas of Licking County, Ohio,

Probate Division, is hereby reversed in part, vacated in part, and the matter is remanded

to said court for further proceedings consistent with this opinion.

By Wise, Earle, J.

Baldwin, P.J. and

Hoffman, J. concur.

EEW/db [Cite as Alibrando v. Miner, 2021-Ohio-2827.]