[Cite as Estate of Welch v. Taylor, 2018-Ohio-4558.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
THE ESTATE OF FRANCIS M. : WELCH, et al., CASE NO. CA2017-11-021 : Plaintiffs-Appellants, OPINION : 11/13/2018
- vs - :
: THELMA R. TAYLOR, et al., : Defendants-Appellees. :
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2017-4001
Craig T. Matthews and Associates, Craig T. Matthews, 320 Regency Ridge Drive, Centerville, Ohio 45459, for plaintiffs-appellants
Vorys, Sater, Seymour and Pease LLP, Daniel J. Buckley, Katherine G. Barnes, Great American Tower, 301 East Fourth Street, Suite 3500, Cincinnati, Ohio 45202, for defendants- appellees
PIPER, J.
{¶ 1} Plaintiffs-appellants, including the Estate of Francis Welch, appeal a decision of
the Clinton County Court of Common Pleas, Probate Division, dismissing their complaint and Clinton CA2017-11-021
ruling in favor of defendants-appellees, including Thelma Taylor.1
{¶ 2} Francis Welch ("Frank") was married to Janet Welch for over 50 years and one
child was born issue of the marriage. The Welchs' only child passed away in 2008 and soon
thereafter, Frank and Janet moved to a property in Wilmington, Ohio. There, Frank and
Janet met Thelma Taylor and her husband Ed, who lived in the neighborhood. When Janet's
health began to decline, Frank began spending more time with Thelma, who was almost 30
years his junior. Janet passed away in November 2013.
{¶ 3} Three weeks after Janet's death, Taylor completed paperwork changing the
beneficiary on Frank's life insurance policies to herself and Frank signed the paperwork. The
following week, Frank added Thelma to his bank account as an authorized signer and
established Thelma as a joint tenant with right of survivorship. Approximately four months
later, Frank signed a new will naming Thelma as the beneficiary of his tangible personal
property. The rest of the will provided for distribution of Frank's estate equally among Frank's
next-of-kin and a close family friend. Over the course of the next year, Frank made several
inter vivos transfers to Thelma, including real property and interests in bank accounts.
{¶ 4} Frank passed away in 2015. Within weeks, Thelma collected the proceeds
from Frank's life insurance policies, wrote checks from Frank's accounts, and withdrew
sizeable amounts from Frank's bank accounts. In total, Thelma acquired more than
$500,000 from Frank.
{¶ 5} Thelma, after being appointed executrix of Frank's estate, began the process of
distributing the estate after Frank's passing. Administration of the estate concluded with the
approval of a final and distributive account approximately a year after Frank's death. Each of
1. On appeal, Plaintiffs raise the following assignments of error. Assignment of Error No. 1: The Probate Court erred by granting Appellee's Motion for Summary Judgment as to the Appellants' claims regarding certain inter vivos transfers including: 1) Declaratory Judgment; 2) Undue Influence; 3) Conversion; 4) Unjust Enrichment; 5) and Tortious Interference with Expectancy of Inheritance. Assignment of Error No. 2: The trial court should have denied Appellee's Motion to Stay Discovery. -2- Clinton CA2017-11-021
Frank's nieces and nephews ("Plaintiffs") received approximately $40,000 from the estate.
However, Plaintiffs later filed a complaint in the Clinton County Court of Common Pleas,
General Division, alleging that Thelma exercised undue influence upon Frank before his
death. The general division court dismissed Plaintiffs' suit in an order granting judgment on
the pleadings, finding that the probate court held proper jurisdiction over the matter.
However, the general division's "Final Judgment" order did not include a transfer to the
probate court, but rather, was a straight dismissal of "all claims by plaintiffs."
{¶ 6} Within days, Plaintiffs filed a complaint in the probate division alleging that the
inter vivos transfers from Frank to Thelma were predicated upon undue influence, requesting
declaratory judgment, and alleging that Thelma was liable for conversion and unjust
enrichment. Thelma filed an answer, and the same day, filed a motion for summary
judgment. Thelma also moved to stay discovery until the probate court ruled on her motion
for summary judgment.
{¶ 7} Plaintiffs then filed a memorandum in opposition to Thelma's motion to stay
discovery, as well as a motion to compel discovery requests including interrogatories and
document production. Plaintiffs also filed a memorandum in opposition to Thelma's motion
for summary judgment wherein they argued that Thelma's summary judgment motion was
premature given that no discovery had occurred, and no scheduling orders were issued.
Thelma then filed a reply memorandum in support of her motion for summary judgment, as
well as a reply memorandum in support for her motion to stay discovery.
{¶ 8} The probate court held a hearing on the motions, with counsel for both parties
present, and later issued a judgment entry finding in favor of Thelma and dismissing
Plaintiff's complaint.2 The probate court's entry indicates that it ruled upon "Defendant
2. The Ohio Supreme Court appointed a visiting judge to proceed over Plaintiffs' probate case. -3- Clinton CA2017-11-021
Thelma Taylor's motion for judgment on the pleadings filed 11/22/16," which is an
impossibility given that Plaintiffs filed suit in the probate court on April 6, 2017 and Thelma
did not file a motion for judgment on the pleadings in response to Plaintiff's suit.
{¶ 9} The only pending motions before the court were Thelma's motions for summary
judgment and to stay discovery, as well as Plaintiffs' motion to compel discovery. Thus, the
probate court's ruling was a nullity because the motion on which it ruled was filed in a
different court and had already been ruled upon. This is not a case where the trial court
converted a party's motion for the sake of procedural efficiency.
{¶ 10} We are aware that a trial court has discretion to sua sponte convert certain
motions under certain circumstances. See, e.g., Loudin v. Radiology & Imaging Servs., 128
Ohio St.3d 555, 2011-Ohio-1817, ¶ 7-8 (recognizing appropriateness of trial court's
conversion of appellant's motion to dismiss into a motion for summary judgment where both
parties' arguments relied on facts outside the pleadings). However, this court has also
recognized that a proper review of the trial court's order cannot occur if we are not first made
aware of the circumstances leading to a trial court's conversion. See Treinen v. Parrish, 12th
Dist. Butler No. CA2012-08-171, 2013-Ohio-2271, ¶ 9 (reversing the trial court's grant of
default judgment and remanding with instructions that the trial court rule upon the motion
actually filed by appellant, a motion for judgment on the pleadings).
{¶ 11} The probate court's entry clearly did not suffer from a mere typographical error
by referring to an incorrect motion caption or an incorrect reference to what motion was
before it. The probate court made specific reference to Thelma's motion for judgment on the
pleadings and agreed with certain arguments made therein regarding whether Plaintiffs
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[Cite as Estate of Welch v. Taylor, 2018-Ohio-4558.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
THE ESTATE OF FRANCIS M. : WELCH, et al., CASE NO. CA2017-11-021 : Plaintiffs-Appellants, OPINION : 11/13/2018
- vs - :
: THELMA R. TAYLOR, et al., : Defendants-Appellees. :
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2017-4001
Craig T. Matthews and Associates, Craig T. Matthews, 320 Regency Ridge Drive, Centerville, Ohio 45459, for plaintiffs-appellants
Vorys, Sater, Seymour and Pease LLP, Daniel J. Buckley, Katherine G. Barnes, Great American Tower, 301 East Fourth Street, Suite 3500, Cincinnati, Ohio 45202, for defendants- appellees
PIPER, J.
{¶ 1} Plaintiffs-appellants, including the Estate of Francis Welch, appeal a decision of
the Clinton County Court of Common Pleas, Probate Division, dismissing their complaint and Clinton CA2017-11-021
ruling in favor of defendants-appellees, including Thelma Taylor.1
{¶ 2} Francis Welch ("Frank") was married to Janet Welch for over 50 years and one
child was born issue of the marriage. The Welchs' only child passed away in 2008 and soon
thereafter, Frank and Janet moved to a property in Wilmington, Ohio. There, Frank and
Janet met Thelma Taylor and her husband Ed, who lived in the neighborhood. When Janet's
health began to decline, Frank began spending more time with Thelma, who was almost 30
years his junior. Janet passed away in November 2013.
{¶ 3} Three weeks after Janet's death, Taylor completed paperwork changing the
beneficiary on Frank's life insurance policies to herself and Frank signed the paperwork. The
following week, Frank added Thelma to his bank account as an authorized signer and
established Thelma as a joint tenant with right of survivorship. Approximately four months
later, Frank signed a new will naming Thelma as the beneficiary of his tangible personal
property. The rest of the will provided for distribution of Frank's estate equally among Frank's
next-of-kin and a close family friend. Over the course of the next year, Frank made several
inter vivos transfers to Thelma, including real property and interests in bank accounts.
{¶ 4} Frank passed away in 2015. Within weeks, Thelma collected the proceeds
from Frank's life insurance policies, wrote checks from Frank's accounts, and withdrew
sizeable amounts from Frank's bank accounts. In total, Thelma acquired more than
$500,000 from Frank.
{¶ 5} Thelma, after being appointed executrix of Frank's estate, began the process of
distributing the estate after Frank's passing. Administration of the estate concluded with the
approval of a final and distributive account approximately a year after Frank's death. Each of
1. On appeal, Plaintiffs raise the following assignments of error. Assignment of Error No. 1: The Probate Court erred by granting Appellee's Motion for Summary Judgment as to the Appellants' claims regarding certain inter vivos transfers including: 1) Declaratory Judgment; 2) Undue Influence; 3) Conversion; 4) Unjust Enrichment; 5) and Tortious Interference with Expectancy of Inheritance. Assignment of Error No. 2: The trial court should have denied Appellee's Motion to Stay Discovery. -2- Clinton CA2017-11-021
Frank's nieces and nephews ("Plaintiffs") received approximately $40,000 from the estate.
However, Plaintiffs later filed a complaint in the Clinton County Court of Common Pleas,
General Division, alleging that Thelma exercised undue influence upon Frank before his
death. The general division court dismissed Plaintiffs' suit in an order granting judgment on
the pleadings, finding that the probate court held proper jurisdiction over the matter.
However, the general division's "Final Judgment" order did not include a transfer to the
probate court, but rather, was a straight dismissal of "all claims by plaintiffs."
{¶ 6} Within days, Plaintiffs filed a complaint in the probate division alleging that the
inter vivos transfers from Frank to Thelma were predicated upon undue influence, requesting
declaratory judgment, and alleging that Thelma was liable for conversion and unjust
enrichment. Thelma filed an answer, and the same day, filed a motion for summary
judgment. Thelma also moved to stay discovery until the probate court ruled on her motion
for summary judgment.
{¶ 7} Plaintiffs then filed a memorandum in opposition to Thelma's motion to stay
discovery, as well as a motion to compel discovery requests including interrogatories and
document production. Plaintiffs also filed a memorandum in opposition to Thelma's motion
for summary judgment wherein they argued that Thelma's summary judgment motion was
premature given that no discovery had occurred, and no scheduling orders were issued.
Thelma then filed a reply memorandum in support of her motion for summary judgment, as
well as a reply memorandum in support for her motion to stay discovery.
{¶ 8} The probate court held a hearing on the motions, with counsel for both parties
present, and later issued a judgment entry finding in favor of Thelma and dismissing
Plaintiff's complaint.2 The probate court's entry indicates that it ruled upon "Defendant
2. The Ohio Supreme Court appointed a visiting judge to proceed over Plaintiffs' probate case. -3- Clinton CA2017-11-021
Thelma Taylor's motion for judgment on the pleadings filed 11/22/16," which is an
impossibility given that Plaintiffs filed suit in the probate court on April 6, 2017 and Thelma
did not file a motion for judgment on the pleadings in response to Plaintiff's suit.
{¶ 9} The only pending motions before the court were Thelma's motions for summary
judgment and to stay discovery, as well as Plaintiffs' motion to compel discovery. Thus, the
probate court's ruling was a nullity because the motion on which it ruled was filed in a
different court and had already been ruled upon. This is not a case where the trial court
converted a party's motion for the sake of procedural efficiency.
{¶ 10} We are aware that a trial court has discretion to sua sponte convert certain
motions under certain circumstances. See, e.g., Loudin v. Radiology & Imaging Servs., 128
Ohio St.3d 555, 2011-Ohio-1817, ¶ 7-8 (recognizing appropriateness of trial court's
conversion of appellant's motion to dismiss into a motion for summary judgment where both
parties' arguments relied on facts outside the pleadings). However, this court has also
recognized that a proper review of the trial court's order cannot occur if we are not first made
aware of the circumstances leading to a trial court's conversion. See Treinen v. Parrish, 12th
Dist. Butler No. CA2012-08-171, 2013-Ohio-2271, ¶ 9 (reversing the trial court's grant of
default judgment and remanding with instructions that the trial court rule upon the motion
actually filed by appellant, a motion for judgment on the pleadings).
{¶ 11} The probate court's entry clearly did not suffer from a mere typographical error
by referring to an incorrect motion caption or an incorrect reference to what motion was
before it. The probate court made specific reference to Thelma's motion for judgment on the
pleadings and agreed with certain arguments made therein regarding whether Plaintiffs
waived their arguments given that Frank's estate had been fully administered and closed.
The court also cited, with approval, case law Thelma included "in support of her motion for
judgment on the pleadings" before deciding that Thelma was "entitled to judgment on the -4- Clinton CA2017-11-021
pleadings." The court further determined that Plaintiffs' motion to compel was moot given
"the court's granting of [Thelma's] motion for judgment on the pleadings."
{¶ 12} The record is clear that the trial court ruled on a motion that was never before
it, and one that had been decided by a different court. As such, the judgment of the probate
court is reversed, and the cause is remanded. On remand, the probate court shall rule upon
the proper motions; including Thelma's motion for summary judgment.3
{¶ 13} We understand the confusion associated with this case. There have been
multiple complaints filed in different courts, as well as multiple motions filed by all parties
involved. The probate court indicated that it had reviewed all pertinent filings and decisions
related to Frank's estate and in so doing, ruled on a motion that was filed with a different
court at a different time in those proceedings.
{¶ 14} However, the motion for summary judgment filed by Thelma is to be treated
independently from the former case filed by Plaintiffs in the general division, as well as
treated independently from the paperwork associated with the administration of Frank's
estate. Thelma's motion is to be ruled upon solely as it relates to the most current complaint
filed by Plaintiffs in the probate court.
{¶ 15} Plaintiffs' complaint alleged causes of action, including conversion and unjust
enrichment, which are specific to inter vivos transfers made to Thelma by Frank. Not all of
Plaintiffs' arguments involve Frank's will or estate, and not all implicate bequeaths paid by
Frank's estate after his death. As such, the probate court shall determine what causes of
action stated in Plaintiffs' complaint, if any, survive summary judgment.4
3. While Civ.R. 56(b) provides that a party against whom a claim is asserted, or a declaratory judgment is sought, "may, at any time, move with or without supporting affidavits for a summary judgment," it is wise to permit discovery given that a motion for summary judgment must be supported by facts. Dresher v. Burt, 75 Ohio St.3d 280, 281 (1996).
4. This court neither suggests nor espouses any given outcome regarding the probate court's future ruling on Thelma's motion for summary judgment. -5- Clinton CA2017-11-021
{¶ 16} Judgment reversed, and the cause is remanded for further proceedings.
S. POWELL, P.J., and M. POWELL, J., concur.
-6-