In re Disinterment of Glass
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Opinion
[Cite as In re Disinterment of Glass, 2023-Ohio-3509.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN THE MATTER OF : THE DISINTERMENT OF : MARION J. GLASS, DECEASED : C.A. Nos. 29700; 29707 IRENE J. GLASS, DECEASED : : Trial Court Case Nos. 2020 MSC : 00382; 2020 MSC 00383 : : (Appeal from Common Pleas Court- : Probate Division) :
...........
OPINION
Rendered on September 29, 2023
RICHARD A. TALDA and JOSHUA R. LOUNSBURY, Attorneys for Appellant, Kathleen Glass
AARON M. HERZIG, JULIA B. MEISTER, CHRISTOPHER M. WOLCOTT, ROBERT R. DUNLEVEY and GLEN R. MCMURRY, Attorneys for Appellees, Roger Glass Estate and Carol Pollock
.............
WELBAUM, P.J.
{¶ 1} In these consolidated cases, Kathleen Glass (“Kathleen”) appeals from
probate court judgments granting applications to disinter her parents, Marion and Irene -2-
Glass.1 The appellees are Carol Pollock (Kathleen’s sister) and Larry Mullins, Executor
of the Estate of Roger Glass (collectively, “Applicants”). Roger Glass, Kathleen’s brother
and the original applicant for disinterment, died during the course of the litigation, and the
court substituted Mullins as a party.
{¶ 2} According to Kathleen, the probate court erred in four ways: (1) by admitting
evidence about settlement discussions; (2) by failing to find that Carol and Roger had
waived their right to seek disinterment; (3) in granting the applications for disinterment;
and (4) by denying Kathleen’s motion to strike the Applicants’ closing brief without holding
an evidentiary hearing. After considering the record, which included a four-day bench
trial and many exhibits, we find no error on the court’s part. First, the court’s admission
of limited evidence about settlement discussions did not violate Evid.R. 408, which
generally prohibits admission of such evidence. However, evidence showing bias or
motive is excluded from the rule. Here, the factors used to assess disinterment
applications require courts to consider the parties’ motives and conduct.
{¶ 3} Furthermore, Kathleen waived objections to admission of evidence under
Evid.R. 408. Specifically, while Kathleen did challenge admission of settlement matters
at various times during the trial, she had taken the opposite position before trial in
response to Applicants’ pretrial liminal motion. She also had no issue with admitting
such evidence when it was to her advantage, as in a post-trial motion she filed. Kathleen
only opposed admission when it was not to her benefit.
1 An application was filed for each parent and the cases were consolidated. Also, because several family members have the same last name, we will refer to the parties by their first names to avoid confusion. -3-
{¶ 4} The probate court also correctly found that Applicants had not waived their
right to seek disinterment, and the court did not abuse its discretion in granting the
applications for disinterment. Seven factors are used to evaluate applications for
disinterment. The court found that two factors related to the degree of relationship to the
decedents were neutral (because the parties were all siblings). The court further found
that the remaining five factors weighed either in favor of disinterment or heavily in its favor.
The court’s decision was supported by competent, credible evidence.
{¶ 5} Finally, the court did not abuse its discretion in denying Kathleen’s motion to
strike the Applicants’ closing brief and in denying her alternative motion to reopen the
proceedings and allow admission of new evidence. Kathleen alleged that Applicants had
engaged in frivolous conduct by making false statements in their closing brief. She
attempted to establish this by presenting evidence of attempts to compromise that had
occurred during mediation and at one other point before trial. However, the court
correctly noted that Kathleen had attempted to conceal such evidence during trial but then
sought to use it to her benefit after trial. The court also correctly found that counsel have
great latitude in closing argument, and that Applicants’ closing brief did, in fact, discuss
the evidence as it existed in the trial record.
{¶ 6} Finally, the court did not abuse its discretion in denying the motion to reopen.
The court actually did consider the evidence that Kathleen wished to submit but found it
was duplicative and unnecessary. Accordingly, all of Kathleen’s assignments of error
will be overruled, and the judgments of the probate court will be affirmed. -4-
I. Facts and Course of Proceedings
{¶ 7} On December 14, 2020, Roger Glass filed two applications for an order to
disinter remains. One application (in Montgomery P.C. No. 2020-MSC-00382)
concerned the remains of Roger’s father, Marion J. Glass, who had died in March 2006.
The other (in Montgomery P.C. No. 2020-MSC-00383) concerned the remains of Roger’s
mother, Irene J. Glass, who had died in January 2000. An attachment to the applications
listed the next of kin as Roger, Carol (an Illinois resident), and Kathleen (a Florida
resident), all of whom were siblings. Carol consented to the applications, but Kathleen
objected. On April 22, 2021, the probate court consolidated the two cases.
{¶ 8} After that point, Calvary Cemetery Association of Dayton, Ohio (“Calvary”)
entered the case as a non-party for purposes of filing motions to quash a subpoena and
a notice to take Civ.R. 30(B)(5) depositions of representatives of Calvary. Calvary was
the cemetery in which Marion and Irene had been interred. After the court denied the
motions to quash, Calvary appealed. Upon consideration, we found in early January
2022 that the court had not abused its discretion in denying the motion to quash. See In
re Disinterment of Glass, 2d Dist. Montgomery No. 29160, 2022-Ohio-28, ¶ 66.
{¶ 9} While that part of the action was on appeal, the rest of the case proceeded
in the probate court. For example, on July 27, 2021, the court filed an entry terminating
mediation and noting that the case had not been settled. In September 2021, the court
set trial for February 2022, and on October 27, 2021, the court granted a motion to realign
Carol as an applicant. The court then ordered that Carol be designated as a co-applicant
on the initial applications for disinterment. -5-
{¶ 10} Subsequently, the court vacated the February 2022 trial date and reset the
trial for August 9, 2022. The trial took place as scheduled, from August 9 through August
12, 2022. On August 15, 2022, the court filed an entry setting dates for filing post-trial
briefs; the order allowed each party to file a brief within 14 days after written transcripts
were made available. In addition, parties could file response briefs within 10 days after
service of the post-trial brief. On August 26, 2022, the court filed an agreed entry which
extended the briefing schedule. The parties were allowed until October 28, 2022, to file
briefs, and until November 18, 2022, to file response briefs. The court then substituted
Mullins as a party because Roger had died on August 24, 2022.
{¶ 11} Both sides filed closing briefs on October 28, 2022. At Kathleen’s request,
the court granted a further extension until December 16, 2022, to file response briefs.
Subsequently, on December 13, 2022, Kathleen filed a motion to strike Applicants’ closing
brief or, alternatively, to reopen the evidence.
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[Cite as In re Disinterment of Glass, 2023-Ohio-3509.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN THE MATTER OF : THE DISINTERMENT OF : MARION J. GLASS, DECEASED : C.A. Nos. 29700; 29707 IRENE J. GLASS, DECEASED : : Trial Court Case Nos. 2020 MSC : 00382; 2020 MSC 00383 : : (Appeal from Common Pleas Court- : Probate Division) :
...........
OPINION
Rendered on September 29, 2023
RICHARD A. TALDA and JOSHUA R. LOUNSBURY, Attorneys for Appellant, Kathleen Glass
AARON M. HERZIG, JULIA B. MEISTER, CHRISTOPHER M. WOLCOTT, ROBERT R. DUNLEVEY and GLEN R. MCMURRY, Attorneys for Appellees, Roger Glass Estate and Carol Pollock
.............
WELBAUM, P.J.
{¶ 1} In these consolidated cases, Kathleen Glass (“Kathleen”) appeals from
probate court judgments granting applications to disinter her parents, Marion and Irene -2-
Glass.1 The appellees are Carol Pollock (Kathleen’s sister) and Larry Mullins, Executor
of the Estate of Roger Glass (collectively, “Applicants”). Roger Glass, Kathleen’s brother
and the original applicant for disinterment, died during the course of the litigation, and the
court substituted Mullins as a party.
{¶ 2} According to Kathleen, the probate court erred in four ways: (1) by admitting
evidence about settlement discussions; (2) by failing to find that Carol and Roger had
waived their right to seek disinterment; (3) in granting the applications for disinterment;
and (4) by denying Kathleen’s motion to strike the Applicants’ closing brief without holding
an evidentiary hearing. After considering the record, which included a four-day bench
trial and many exhibits, we find no error on the court’s part. First, the court’s admission
of limited evidence about settlement discussions did not violate Evid.R. 408, which
generally prohibits admission of such evidence. However, evidence showing bias or
motive is excluded from the rule. Here, the factors used to assess disinterment
applications require courts to consider the parties’ motives and conduct.
{¶ 3} Furthermore, Kathleen waived objections to admission of evidence under
Evid.R. 408. Specifically, while Kathleen did challenge admission of settlement matters
at various times during the trial, she had taken the opposite position before trial in
response to Applicants’ pretrial liminal motion. She also had no issue with admitting
such evidence when it was to her advantage, as in a post-trial motion she filed. Kathleen
only opposed admission when it was not to her benefit.
1 An application was filed for each parent and the cases were consolidated. Also, because several family members have the same last name, we will refer to the parties by their first names to avoid confusion. -3-
{¶ 4} The probate court also correctly found that Applicants had not waived their
right to seek disinterment, and the court did not abuse its discretion in granting the
applications for disinterment. Seven factors are used to evaluate applications for
disinterment. The court found that two factors related to the degree of relationship to the
decedents were neutral (because the parties were all siblings). The court further found
that the remaining five factors weighed either in favor of disinterment or heavily in its favor.
The court’s decision was supported by competent, credible evidence.
{¶ 5} Finally, the court did not abuse its discretion in denying Kathleen’s motion to
strike the Applicants’ closing brief and in denying her alternative motion to reopen the
proceedings and allow admission of new evidence. Kathleen alleged that Applicants had
engaged in frivolous conduct by making false statements in their closing brief. She
attempted to establish this by presenting evidence of attempts to compromise that had
occurred during mediation and at one other point before trial. However, the court
correctly noted that Kathleen had attempted to conceal such evidence during trial but then
sought to use it to her benefit after trial. The court also correctly found that counsel have
great latitude in closing argument, and that Applicants’ closing brief did, in fact, discuss
the evidence as it existed in the trial record.
{¶ 6} Finally, the court did not abuse its discretion in denying the motion to reopen.
The court actually did consider the evidence that Kathleen wished to submit but found it
was duplicative and unnecessary. Accordingly, all of Kathleen’s assignments of error
will be overruled, and the judgments of the probate court will be affirmed. -4-
I. Facts and Course of Proceedings
{¶ 7} On December 14, 2020, Roger Glass filed two applications for an order to
disinter remains. One application (in Montgomery P.C. No. 2020-MSC-00382)
concerned the remains of Roger’s father, Marion J. Glass, who had died in March 2006.
The other (in Montgomery P.C. No. 2020-MSC-00383) concerned the remains of Roger’s
mother, Irene J. Glass, who had died in January 2000. An attachment to the applications
listed the next of kin as Roger, Carol (an Illinois resident), and Kathleen (a Florida
resident), all of whom were siblings. Carol consented to the applications, but Kathleen
objected. On April 22, 2021, the probate court consolidated the two cases.
{¶ 8} After that point, Calvary Cemetery Association of Dayton, Ohio (“Calvary”)
entered the case as a non-party for purposes of filing motions to quash a subpoena and
a notice to take Civ.R. 30(B)(5) depositions of representatives of Calvary. Calvary was
the cemetery in which Marion and Irene had been interred. After the court denied the
motions to quash, Calvary appealed. Upon consideration, we found in early January
2022 that the court had not abused its discretion in denying the motion to quash. See In
re Disinterment of Glass, 2d Dist. Montgomery No. 29160, 2022-Ohio-28, ¶ 66.
{¶ 9} While that part of the action was on appeal, the rest of the case proceeded
in the probate court. For example, on July 27, 2021, the court filed an entry terminating
mediation and noting that the case had not been settled. In September 2021, the court
set trial for February 2022, and on October 27, 2021, the court granted a motion to realign
Carol as an applicant. The court then ordered that Carol be designated as a co-applicant
on the initial applications for disinterment. -5-
{¶ 10} Subsequently, the court vacated the February 2022 trial date and reset the
trial for August 9, 2022. The trial took place as scheduled, from August 9 through August
12, 2022. On August 15, 2022, the court filed an entry setting dates for filing post-trial
briefs; the order allowed each party to file a brief within 14 days after written transcripts
were made available. In addition, parties could file response briefs within 10 days after
service of the post-trial brief. On August 26, 2022, the court filed an agreed entry which
extended the briefing schedule. The parties were allowed until October 28, 2022, to file
briefs, and until November 18, 2022, to file response briefs. The court then substituted
Mullins as a party because Roger had died on August 24, 2022.
{¶ 11} Both sides filed closing briefs on October 28, 2022. At Kathleen’s request,
the court granted a further extension until December 16, 2022, to file response briefs.
Subsequently, on December 13, 2022, Kathleen filed a motion to strike Applicants’ closing
brief or, alternatively, to reopen the evidence. Both sides then timely filed their response
briefs. After receiving an extension of time, Applicants filed their response to the motion
to strike on January 10, 2023, and a corrected response the following day.
{¶ 12} On January 17, 2023, the probate court filed a decision approving the
applications for disinterment. The same day, the court denied the motion to strike.
Kathleen then filed a notice of appeal from both decisions.
II. Alleged Error in Admitting Evidence
{¶ 13} Kathleen’s first assignment of error states that:
The Court Erred in Admitting Evidence Concerning Settlement -6-
Negotiations.
{¶ 14} According to Kathleen, the probate court erred in admitting and considering
evidence of settlement negotiations. In its decision approving the applications for
disinterment, the court mentioned that the attorneys for Roger and Kathleen had
communicated on October 29, 2020 (before litigation ensued). Decision, Order and
Entry Approving Application for Disinterment (Jan. 17, 2023) (“Disinterment Decision”), p.
5-6. In discussing one of the factors that is weighed in considering whether to allow
disinterment (conduct of the party seeking to prevent it), the court found Kathleen’s
conduct “nothing short of obstructive, heartless and damaging.” Id. at p. 11. While
discussing this point, the court referenced Kathleen’s testimony in court in which “she
finally admitted she may agree to sign the waiver for disinterment” under certain
conditions. Id. at p. 12. After outlining these “conditions,” the court stated, “Had
Kathleen been sincere and had she timely made this demand in October or November
2020 when asked by Roger and counsel, the matter would have been resolved.
Kathleen’s delay and insincerity in all of her conduct forced Roger to continue design and
construction without her participation.” (Emphasis sic.) Id.
{¶ 15} Kathleen contends that the court’s reliance on evidence about settlement
(or lack of settlement) violated Evid.R. 408. This rule provides that;
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as
to either validity or amount, is not admissible to prove liability for or invalidity -7-
of the claim or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible. This rule does not
require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This
rule also does not require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a witness, negativing
a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
{¶ 16} The exceptions to admitting evidence about settlement negotiations are not
inclusive. “For example, this court has sustained a trial court's admission of settlement
discussions offered to demonstrate the defendants' motives.” Hocker v. Hocker, 171
Ohio App.3d 279, 2007-Ohio-1671, 870 N.E.2d 736, ¶ 32 (2d Dist.), citing Schafer v. RMS
Realty, 138 Ohio App.3d 244, 295-296, 741 N.E.2d 155 (2d Dist.2000). See also Hignite
v. Trout, 2d Dist. Greene No. 1988-CA-5, 1989 WL 43035, *14 (Apr. 28, 1989) (letter
about settlement negotiations was properly admitted because its purpose was to show
board of directors bore no malice in firing the plaintiff).
{¶ 17} Furthermore, “[w]here a statement is not made in the context of an offer of
compromise, * * * it is not granted the protection of the exclusionary rule contained in
Evid.R. 408.” USCA/USA, Inc. v. High Tech Packaging, Inc., 6th Dist. Wood No. WD-
05-088, 2006-Ohio-6195, ¶ 34. Evid.R. 408 “only bars the admission of evidence when
the evidence is offered to show ‘that because a settlement offer was made, the offeror
must be liable, because people don’t offer to pay for things for which they are not liable.’ ” -8-
Boyle v. Daimler Chrysler Corp., 2d Dist. Clark No. 2001-CA-81, 2002-Ohio-4199, ¶ 95,
quoting In re Donahoe, 180 B.R. 491 (Bankr. N.D. Ohio 1995). “In other words, Evid.R.
408 does not bar information from settlement negotiations when it is offered for another
purpose and not to prove liability against one of the parties to the negotiations.”
USCA/USA, Inc. at ¶ 34.
{¶ 18} “Decisions involving the admissibility of evidence are reviewed under an
abuse-of-discretion standard of review.” Estate of Johnson v. Randall Smith, Inc., 135
Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22. An abuse of discretion “ ‘implies
that the court's attitude is unreasonable, arbitrary or unconscionable.’ ” (Citations
omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
However, “most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). Decisions are unreasonable if they are not supported by a sound
reasoning process. Id. The Supreme Court of Ohio has held it “axiomatic” that “ ‘[n]o
court - not a trial court, not an appellate court, nor even a supreme court - has the
authority, within its discretion, to commit an error of law.’ ” Johnson v. Abdullah, 166
Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 38, quoting State v. Boles, 187 Ohio
App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 26 (2d Dist.).
{¶ 19} After reviewing the record, we find no abuse of discretion by the probate
court. As background, we note the following matters. At trial, the court heard testimony
from the following people: Ricky Meade, Calvary’s director; Neil Fogarty, the president of -9-
Dodds Memorials (“Dodds”); Roger; Carol; and Kathleen.
{¶ 20} According to the testimony, Marion and Irene Glass were prominent
members of the local community. They established Marion’s Pizza in 1965 and, by 2006,
the business had increased from two locations to seven. They accumulated wealth
during their lifetimes and traveled quite a bit around the world. Transcript of Proceedings
(Disinterment Trial) (“Tr.”), 255-256.
{¶ 21} During their lives, Marion and Irene made generous gifts to their parish
church, which included providing cash prizes for parish festivals, re-carpeting the church,
replacing the organ, and donating $50,000. Id. at 250-251. After Irene’s death, Marion
funded stained-glass windows at St. Albert the Great church and at their Catholic church
in Florida. Both windows bore Irene’s name. In addition, Marion and Irene donated a
reception area and at least two private rooms at the Hospice in Dayton, Ohio. These
areas bore their names. Id. at 258-259. Marion also donated $500,000 to the
Archdiocese of Cincinnati, for which he received recognition. Id. at 595.
{¶ 22} Irene was described as an elegant, well-dressed woman who drove a
Mercedes automobile and lived in beautiful homes, including one in Dayton and an ocean-
front condo in Florida. She also frequently wore jewelry. Id. at 254 and 256. Marion
and Irene belonged to country clubs in Dayton and Florida and gave huge dinner dances
at their country club. Id. at 255. Both parents’ funerals were opulent, and after each
funeral, a reception was held for hundreds of people at the Dayton County Club. Id. at
261.
{¶ 23} Before deciding on Calvary Cemetery, Marion and Irene looked at other -10-
cemeteries. However, they chose Calvary because they were Catholic. Tr. at 361-362.
Calvary was founded in 1872 as a Catholic not-for-profit association. The association is
owned and is operated independently of the Archdiocese of Cincinnati. Id. at 52. From
a religious aspect, the association recognizes the canons of the Catholic Church. Id. at
54. Calvary conducts disinterments about once a year, most of the time for relocation
within the cemetery. Id. at 152.
{¶ 24} In 1979, Marion and Irene purchased eight in-ground burial plots in Section
36 of Calvary Cemetery. Irene objected because she did not want to be buried.
However, at the time, Calvary did not have a public or community mausoleum available;
this option did not become available until 1995. As of December 14, 1979, Marion, Irene,
and Roger all had the right to be interred in one of four burial plots in the southeast corner
of lot 117 of section 36. Other lots in that section were available for Kathleen and her
husband, John McKay, and for Carol and her husband, James Pollock. Id. at 55, 58-59,
61, 362, 525, 532, and 630.
{¶ 25} At a later point, Marion and Irene transferred their burial rights in the four
lots to Kathleen and arranged for a private estate mausoleum, which was a four-crypt
unit. This was a stand-alone private mausoleum, and they acquired the rights for the
ground in December 1988. Id. at 62, 64, and 123-124. Carol and John had also
previously transferred their parcels to Kathleen. Id. at 60-63 and 541. Thus, including
Kathleen’s initial two units, Kathleen and John then had eight in-ground burial units
available to them. Id. at 64.
{¶ 26} Calvary's executive director, Ricky Meade, was hired by Calvary in 1990 as -11-
a superintendent; his title had changed to executive director in 2014. Tr. at 51. While
private mausoleums and estate monuments are typically located on prominent corners
on frontage lots, Meade’s predecessors at Calvary used a military format, with everything
in straight lines. Because private mausoleums and estate monuments would have
disrupted the flow of modern maintenance, Meade’s predecessors had selected a location
for these structures in the far reaches of the back corner of the cemetery. That location
was not attractive; it was bordered by a chain-link fence and barbed wire, as well as by
power lines. When the Glasses purchased the land in 1988, there was no other choice
of location for private mausoleums. Id. at 67, 69, 130, and 633.
{¶ 27} The Glasses’ private mausoleum had four spaces and was about five to six
feet wide and seven to eight feet deep. It was configured to have a concrete inner
structure, which provided upper and lower levels, allowing for two caskets up and two
down. Id. at 127-128. At this time, Kathleen still owned the eight in-ground burial plots.
Id. at 66 and 632-633.
{¶ 28} In 1995, Calvary began constructing a public mausoleum called Stations of
the Cross (“SoC”). Id. at 67. The restriction about where mausoleums could be placed
was dissolved about two years after SoC was constructed. Id. at 134. As Calvary was
constructing the SoC, it reached out to the two families, including the Glasses, who had
private mausoleums in the unattractive area and gave them an opportunity to resettle
their existing buildings in another location in the cemetery. Meade’s understanding was
that Irene and Marion were more interested in moving to the community mausoleum
versus relocating the private mausoleum. Id. at 71. However, the section that Roger -12-
obtained in 2020 for the new private mausoleum had not been opened yet and was not
available. Id. at 72.
{¶ 29} Marion and Irene exchanged their private mausoleum, and four spaces in
the SoC mausoleum were conveyed to them on May 5, 1997. At that time, Roger, Carol,
and Kathleen were the listed heirs for the SoC spaces. Tr. at 78-80 and Exs. 3 and 5.
Irene died in 2000 and Marion died in 2006. They were interred in two of the spaces in
the SoC mausoleum, and two contiguous spaces remained vacant. Tr. at 82 and 133-
134. Under Calvary's bylaws and under the Ohio Revised Code, cemetery spaces pass
upon an acquiring owner's death on a “first come, first serve basis.” Where there is no
designation, the next of kin has first rights to whatever space is available. Id. at 77-78.
Thus, while any one of the three siblings could have used the SoC spaces, there was
room for only two siblings.
{¶ 30} After starting chemotherapy for a blood (cancer) disorder in June 2020,
Roger began thinking about being buried with his father and mother. Id. at 262 and 320.
Roger was aware of the two available SoC spaces, but he thought the SoC was very
impersonal. He also wanted to honor his parents, who had been very honorable people
and had been very respected and well-known in the community. Id. at 263-264. Roger
assumed his sister, Carol, was going to be buried with her family in Chicago, as she did
not live in Dayton. He also assumed that his other sister, Kathleen, would be buried with
her family, since she had three children. Additionally, Kathleen lived in Florida and
Michigan, not in Ohio. Id. at 265-266.
{¶ 31} Roger went by himself to Calvary to find out if space was available or if he -13-
was allowed to put a mausoleum anywhere. He did not talk to either sister before going.
After Calvary indicated that space existed, Roger was told that they had to get permission
from Roger’s siblings. Meade explained Ohio legal requirements for disinterment to
Roger, and Roger did not appear to have had any prior knowledge of them. Id. at 76.
Roger was unaware of the permission requirement but did not anticipate any problems.
Id. at 267-268. As noted, the location for the new mausoleum had not been available
when Marion and Irene changed from their private mausoleum. Id. at 72.
{¶ 32} Roger and Carol talked frequently, and he told Carol of his desire, given his
condition, to build a mausoleum for his parents. At that point, Carol said she thought she
would like to be part of it. Consequently, while the original design was for three spaces,
Roger enlarged it to eight spaces because he had nieces, nephews, and another sister.
Tr. at 270-271. Roger talked to Carol about this before talking to Kathleen because he
and Kathleen did not communicate often, i.e., they spoke only once a year at board
meetings. In contrast, Roger usually talked to Carol about once a week. Id. at 272.
The evidence at trial indicated that Roger and Carol had a close relationship, but they did
not have the same relationship with Kathleen.
{¶ 33} The design and build work for the new Glass mausoleum (“GM”) was
coordinated through Dodds, which worked directly with Rock of Ages, a corporation
located in Vermont. Dodds typically did the artwork, and the manufacturer did the actual
fabrication of granite. Id. at 84 and 171-172. In early August 2020, the design for the
GM was in its very initial concept. Id. at 175-176. At that point, Dodds and Roger were
discussing birth and death dates to go with names on four statues, which were to be -14-
located at the front of the building. The names at that time were Marion, Irene, Roger,
and Carol. Id. at 176-177. However, nothing prevented the design from being changed.
The design was not final, and Roger had not signed a contract with Dodds. Id. at 178
and 181.
{¶ 34} After finding out that he needed Kathleen’s consent, Roger contacted her
by email on October 20, 2020. At that time, they were developing the GM concept, but
the plans could have been modified. Id. at 284-285 and 293-294, and Ex. 38. In the
email, Roger explained what he wanted to do with the GM and that he needed Kathleen’s
and Carol’s consent to move their parents. He further said he had contacted Carol and
she had no objection, and that his attorney (Bob Dunlevey) would be sending forms to
both sisters to sign. Roger asked Kathleen to email him concerning whether the form
should be sent to her Michigan or Florida address and also said to call or email if she had
questions. Id. at Ex. 38. Kathleen did not respond to the email. Tr. at 287 and 650.
{¶ 35} Before sending this email to Kathleen, Roger had sent it to Carol for her
review. Id. at 593-594 and Ex. 55. On October 21, 2020, Carol called Kathleen and left
a voice mail, discussing the fact that the mausoleum was their mother’s wish and that she
(Carol) was going to be involved. Carol’s intent was to talk to Kathleen about joining her
and Roger in the family crypt that Roger was planning to construct. Kathleen did not
respond to this call. Tr. at 529-530 and 579. Instead of responding to her siblings,
Kathleen called her business attorney, Sam Warwar. Warwar then asked Dunlevey to
have Roger provide information about plans and specifications. Id. at 651-652.
{¶ 36} On October 29, 2020, Dunlevey emailed Warwar and indicated that Roger -15-
would be sending tentative drawings to Kathleen. In addition, Dunlevey stressed that
“time was of the essence.” Exhibits(s) Respondent Trial Exhibits (Part 1 of 2), filed Dec.
21, 2022, Bates Stamp KGlass-000002. The same day, Roger emailed a sketch of the
proposed mausoleum to Kathleen and to Warwar. Tr. at 295, 308-309, 330-331, and
652, and Exs. 39 and 56. In the email to Warwar, Roger noted that he and Carol had
tried to contact Kathleen by phone and email, but she refused to return their calls or
emails. Ex. 39, p. 2. Roger also stressed the personal urgency of his request. Id.
Kathleen did not respond to the email. Tr. at 308. Responding on October 30, 2020,
Warwar congratulated Roger on the mausoleum design, stating that “[i]t is a classic,
handsome structure.” Ex. 39 at p. 1. Warwar further stated that while Kathleen had
seen the drawing and had given the matter serious consideration, “[u]nfortunately, Kathi
cannot consent to your request.” Id. No specific reasons were given. Evidence at trial
suggested that Kathleen’s refusal may have been motivated by business disagreements
and sibling animosity. Tr. at 622-623.
{¶ 37} Dunlevey responded to Warwar on the same day, stating that “Roger does
not understand the basis on which Kathi has made this decision and is most interested in
knowing such.” See Tr. at 356-359 and Ex E, p. 1. Dunlevey further said that if
Kathleen needed more information about the plans and specifications, the information
could be provided when it was developed. Dunlevey stated that the information was not
in Roger’s possession at that time and stressed that “Kathi is not being asked to defray
the expense of the family mausoleum. If she wishes to have a crypt within the
mausoleum, Roger is prepared to accommodate that under certain terms and conditions.” -16-
Id. The record does not contain any response to this email.
{¶ 38} On November 3, 2020, Roger wrote another email to Kathleen and copied
both Warwar and Dunlevey. Roger attached a letter to the email. Tr. at 308-309, 499,
and 500-501, and Ex. 57. In the letter, Roger explained his reasons for the disinterment
request, including that his parents had reluctantly purchased space in the Calvary
mausoleum (which Carol and their cousin could corroborate), his chemo treatments for a
blood disorder, and the fact that, because he had no children, “it would be wonderful to
construct a free-standing mausoleum near by [sic] that would be a fitting tribute to our
family so that I could be interned [sic] with mom and dad.” Ex. 57, p. 2. Roger further
stated:
Now, I am at a loss as to why you would refuse my request to have our
parents reinterned [sic] in a mausoleum with me. You no longer live in
Dayton and you at least have children who you can be buried with, so why
would you care? Or, if you wish, I can add a space for you to be interned
[sic] with me and mom and dad if you prefer.
Ex. 57 at p. 2.
{¶ 39} Again, Roger indicated that Kathleen could contact him if she had any
questions. Id. She did not do so until November 19, 2020, when she wrote a short
email, stating she was sorry about Roger’s chemotherapy and that her parents’ “wish to
be entombed in the prevailing mausoleum was truly their last dying wish.” Tr. at 501-
502 and 671-672, and Ex. 43, p. 2. Kathleen did not mention Roger’s offer to provide
her with space of her own. Roger did not interpret this response as anything other than -17-
an absolute “no.” Tr. at 299. On November 25, 2020, Roger responded to Kathleen’s
email, disputing that being buried in the public mausoleum was Irene’s dying wish,
because Irene had died of a sudden heart attack. Id. at 324-326 and Ex. J.
{¶ 40} In the meantime, on November 4, 2020, Roger had purchased the ground
(easement rights) for the GM at a cost of $278,775. Roger paid the entire purchase price
himself. Tr. at 81-82 and 296-297, and Exs. 11, 41, and 42. The vacant spaces in the
SoC were not sold back or exchanged, and no credit was applied to Roger's purchase of
the land; instead, Calvary’s director, Meade, believed a court would provide direction
about what would occur with the remaining spaces. Those two spaces in the public
mausoleum were available to any of the three Glass children, should they decide to be
entombed there at no additional cost for the entombments. Absent an agreement among
the children, it would be on a first come, first served basis. Tr. at 83 and 160-161.
{¶ 41} Kathleen wrote another email to Roger on December 1, 2020, stating that
their mother had been happy with the SoC space and that their parents had liked to
donate anonymously. She suggested that Roger donate money to non-profit
organizations rather than build an expensive mausoleum. Id. at 311 and 501, and Ex.
59.
{¶ 42} On December 3, 2020, Roger wrote another email to Kathleen, asking what
it would take to resolve the issue, “$5,000, 10,000, or what?” Roger asked for a figure,
but Kathleen did not reply. According to Roger, he sent this because Kathleen was
“known to like money” and he was kind of desperate, so he was making a last-ditch effort.
Tr. at 304-305 and 479-480, and Ex. 44. Kathleen viewed these amounts as “insulting.” -18-
Id. at 481. In this regard, she testified that “I think, to disturb my parents’ remains is not
something that money can pay for. But if someone really was serious, you’d think they
would offer a little bit more. But there were no other things * * * offered to me.” Id. at
487. As to what “other things” Kathleen was referencing, she said that Roger could have
explained to her that the mausoleum was a family thing. She also stated that if Roger
had said he’d like for all of them to be in one mausoleum and honor their parents, she
would have been willing to move the bodies in order to keep peace, even though she was
opposed to it. Id. at 489 and 497.2
{¶ 43} As indicated, the applications for disinterment were filed on December 14,
2020. Oh December 17, 2020, Roger signed the contract with Dodds for the GM. At
that point, various modifications had been made to the design. In fact, changes could
be made at any time before construction began and did occur after the contract was
signed. Id. at 187, 192, 195, 198, 200-201, 203-205, 208-209 and 217. Roger paid for
half of the construction costs when he signed the contract. The balance was later paid
by Roger. No one else paid for any part of the project. Id. at 210-211.
{¶ 44} In late December 2020, Kathleen called Calvary Cemetery. At Meade’s
request, the employee who dealt with Kathleen made a memo about the call. According
to the memo, the employee spoke with Kathleen on December 22, 2000. Kathleen had
called to request ownership information for Marion and Irene’s spaces. Kathleen also
asked about a waiver that would allow her to be buried next to her Mother. However, the
employee informed Kathleen that no such record existed. Kathleen did not believe her.
2 These, in fact, are things Roger directly said by telling Kathleen he wanted to honor
their parents and implied by offering her a space in the mausoleum. -19-
On December 20, 2020, Kathleen had also sent an email to another Calvary employee,
stating that she had had no idea that she owned the eight plots originally purchased by
Marion and asking if she could sell them. 3 Subsequently, on December 24, 2020,
Calvary sent Kathleen a full copy of the ownership file. Tr. at 88-92, 98, and 101-103,
and Exs. 25, 26, and 27. Furthermore, it informed her that another family owned the
crypt next to Irene; therefore, any adjacent crypt would be next to Marion. Tr. at 92-93
and 95, and Ex. 25.
{¶ 45} Construction of the GM did not begin until after the applications for
disinterment were filed on December 14, 2020. In fact, the actual construction did not
start until the end of June or the beginning of July 2022. At the time of trial, the
mausoleum had been constructed and placed and had eight crypts available. Tr. at 153,
167, and 211-213. During the design process, no design was produced that did not
include eight crypts. Id. at 195.
{¶ 46} With this background in mind, we will consider Kathleen’s argument
regarding the court’s improper admission of evidence of settlement negotiations.
According to Kathleen, the court improperly considered this evidence in reviewing three
of seven factors used to evaluate whether an application for disinterment should be
granted.
{¶ 47} Under R.C. 517.24(B)(1), a person who is not the decedent's surviving
spouse may file an application in the probate court of the county in which the decedent is
3 Kathleen’s statement was contradicted by Calvary’s records, which indicated that Marion, Irene, and Roger gave Kathleen and her husband permission to use four graves in June 1983. The records also stated that Kathleen retained the cemetery graves per her November 26, 2001 divorce decree. See Tr. 73 and Ex. 4. -20-
buried, asking the court to issue an order for disinterment of the decedent's remains. In
this situation, notice is given to various persons, including all persons who would have
been entitled to inherit from the decedent under R.C. Chap 2105 if the decedent had died
intestate. R.C. 517.24(B)(2)(a).4
{¶ 48} “Well-established public and legal policy has been that a person, once
buried, should not be exhumed except for the most compelling reasons.” In re
Disinterment of Frobose,163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, ¶ 15
(6th Dist.), citing Spanich v. Reichelderfer, 90 Ohio App.3d 148, 628 N.E.2d 102 (2d
Dist.1993). “This general policy is exemplified in the requirement that good cause for
disinterment must be demonstrated before the probate court may issue an order for
disinterment.” Jasper v. White, 3d Dist. Marion No. 9-22-52, 2023-Ohio-2358, ¶ 25,
citing former R.C. 517.24(B)(3)(a).5
4 In its decision, the probate court noted that the governor had just signed S.B. 202, which
would be effective April 3, 2023. The court stated that the bill’s purpose was “to provide consistency between the disinterment statute[s] (R.C. 517.23 and R.C. 517.24) and right of disposition statute[s],” meaning the statutory scheme in R.C. 2108.70 through R.C. 2108.90. Disinterment Decision at p. 15. The court found the amendments would not impact the case before it. Id. at 16. After reviewing the amendments, which took effect after the court’s decision and three years after the applications were filed, we agree. The legislation does not provide that it should be applied retroactively with respect to any section involved here. See Am. Sub. S.B. 202, 2022 Ohio Laws 152. 5 The amendments effective in April 2023 removed the “good cause” requirement and
the requirement that the court find a “compelling reason” for disinterment from R.C. 517.24. However, the amendments substituted a requirement that courts consider the provisions in R.C. 2108.82. See R.C. 517.24(B)(3)(a) (2023). R.C. 2108.82(B) contains factors that are consistent with ones courts have traditionally used to decide these issues. Compare Frobose at ¶ 16. R.C. 2108.82(C) further states, “There shall be no disinterment or other change of the original or last disposition unless the court makes a finding of compelling reasons based upon the factors listed in division (B) of this section.” Therefore, analysis under the revised statute would not differ materially from the prior analysis. We also note that R.C. 2108.70 through 2108.90 (relating to final -21-
{¶ 49} A hearing is not required if all persons who are entitled to be given notice
consent to the disinterment. R.C. 517.24(B)(3)(b). When courts decide contested
requests for disinterment, they apply a “flexible, multifactor-equitable standard.” In re
Estate of Eisaman, 2018-Ohio-1112, 110 N.E.3d 96, ¶ 13 (3d Dist.), citing In re
Disinterment of Swing, 2014-Ohio-5454, 26 N.E.3d 827, ¶ 16 (6th Dist.). (Other citations
omitted.)
{¶ 50} “These equitable factors include, but are not limited to (1) the degree of
relationship that the party seeking reinterment bears to the decedent, (2) the degree of
relationship that the party seeking to prevent reinterment bears to the decedent, (3) the
desire of the decedent, (4) the conduct of the person seeking reinterment, especially as
it may relate to the circumstances of the original interment, (5) the conduct of the person
seeking to prevent reinterment, (6) the length of time that has elapsed since the original
interment, and (7) the strength of the reasons offered both in favor of and in opposition to
reinterment.” Frobose at ¶ 16, summarizing Spanich at 152-155. (Other citation
{¶ 51} According to Kathleen, the probate court’s error occurred in relation to
factors four, five, and seven, which the court found weighed heavily in favor of
disinterment. Appellant’s Brief, p. 17, and fn. 14. Kathleen’s reply brief objects to
several conclusions in the court’s decision, including comments the court made about her
conduct before litigation. In addition, Kathleen argues that the court elicited settlement
disposition of adult remains) were not effective until October 12, 2006, which was after Marion was interred on March 17, 2006. See Sub.H.B. 426, 2006 Ohio Laws 139 and Ex. 1. -22-
discussion evidence from her during the hearing that turned out to match offers Kathleen
conveyed to Roger and Carol before the 2021 mediation, and ten months later.
Appellant’s Reply Brief, p. 3.6 Kathleen argues that no one would ever participate in
settlement negotiations in disinterment cases if they could later be asked about
statements made during those negotiations.
{¶ 52} Ironically, the parties have changed positions in that Kathleen was the party
initially seeking to introduce evidence of settlement negotiations, and Applicants were the
ones who asked the trial court to exclude this evidence. See Respondent Kathleen
Glass’ Pretrial Statement and attached Ex. A (List of Trial Exhibits), July 11, 2022;
Applicants’ Motion in Limine to Exclude Evidence of Compromise Negotiations, August
2, 2022; Respondent Kathleen Glass’ Memorandum in Opposition to Applicants’ Motion
in Limine to Exclude Evidence of Compromise, August 8, 2022; and Tr. at 11-16
(discussing Respondent’s Exs. B and E, pre-litigation emails between Kathleen’s attorney
and Roger’s attorney).
{¶ 53} Kathleen's position in this regard was that no settlement negotiations were
occurring at the time of the pre-litigation emails; they were just “conversations” between
Kathleen and Roger. Tr. at 13. In addition, Kathleen argued that other statements
Roger's attorney made had nothing to do with a settlement or a dispute. Included among
such statements was a comment from Roger's attorney that “If she, meaning Kathleen
* * * wishes to have a crypt within the mausoleum, Roger is prepared to accommodate
6 The claim about matching offers is not based on evidence in the trial court record. Instead, it refers to evidence attached to Kathleen’s motion to strike, which will be discussed later. -23-
that under certain terms and conditions.” Id. at 15-16.
{¶ 54} After considering the matter, the court overruled Roger’s and Carol’s liminal
motion, subject to further objections. Id. at 16. As a result, Roger testified during direct
and cross-examination about his pre-litigation emails with Kathleen, emails with
Kathleen’s attorney, and emails between his attorney and Kathleen’s attorney (over his
renewed objection). See Tr. 293-294, 295, 298-300, 304, 308, 311, 330, 331, 324-326,
and 356-360, and Exs. 38, 39, 43, 44, 56, 57, 59, C, E, and J.
{¶ 55} During cross-examination, Kathleen’s attorney asked Roger about Ex. E,
which was an email from Roger’s attorney to Kathleen’s attorney. At that point, Roger’s
attorney objected, noting that “this was the subject of a prior motion in limine” and that
“[t]he court was going to consider the question as the evidence was coming in.” Id. at
356. A discussion then ensured, during which Kathleen’s attorney argued that the
questioning was intended to show that a “deception was being perpetrated on both Mr.
Warwar and * * * Ms. Glass.” Id. at 358. In contrast, Roger’s attorney argued that “the
context of this is that we had two lawyers understanding there was a dispute. There was
a planned process and application for disinterment,* * * [s]o the lawsuit was not a maybe;
it was a definite.” Id. at 359. The court again overruled the objection to the extent it was
based on Evid.R. 408 and allowed Kathleen’s attorney to question Roger about
statements his attorney made in the email, i.e., in Ex. E. Id. at 359-360.
{¶ 56} Further discussion of this issue occurred during Kathleen’s testimony, when
Roger’s attorney tried to cross-examine Kathleen about her response to Roger’s
December 3, 2020 email, in which, as noted, Roger had offered to pay Kathleen an -24-
amount of money that she found “insulting.” Tr. 480-482 and Ex. 44. After Kathleen’s
attorney objected because this was “probably a settlement communication,” the court
stated that it believed some of the evidence should be admitted because the conduct of
the parties was involved, particularly with consideration of factor seven (which involves
“the strength of the reasons offered both in favor of and in opposition to reinterment.”
Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 16; Tr. at 482-
483. After further discussion (which included the fact that Roger’s counsel had
previously discussed Ex. 44 without objection by opposing counsel), the court decided it
would continue to consider these matters on a case-by-case basis. The court therefore
allowed Roger’s attorney to question Katherine about Roger’s email. Id. at 483-485.
{¶ 57} During Carol’s testimony, the subject of Evid.R. 408 arose again, when the
court asked Carol questions about whether she ever found out if Kathleen would have
participated in the mausoleum process after Carol called her (in October 2020). Tr. at
579-585. After discussion, the court stressed that it did not want to hear about
statements made during mediation. Id. at 585. The court followed this by asking Carol
about her opinion of what Kathleen’s real objection to disinterment was and whether Carol
felt Kathleen would have wanted to participate if she had seen the schematics with the
four statues and names in August 2020. Id. at 586-587. Carol responded that she
honestly did not know why Katherine objected and that she did not “understand why
someone would not want to move their parents to a better place where we could all be
buried together.” Id. at 586. Carol also said that in her heart of hearts, she thought that
Kathleen would maybe want to be with them, but maybe Kathleen did not want to settle. -25-
Id. at 586-587.
{¶ 58} During her own case, Kathleen’s attorney asked Kathleen about the email
that Roger’s attorney had sent to Kathleen’s attorney on October 30, 2020 (Ex. E) and
statements made in the email. Tr. at 669-671. Thus, during trial, Kathleen advocated
for admission of settlement matters when it suited her and objected when she wished
such evidence to be kept out of evidence.
{¶ 59} Kathleen also said in her pretrial statement that she intended to call Roger’s
attorney at trial to testify about communications he had had with her attorney “and
associated documents.” Respondent Kathleen Glass’ Pretrial Statement (July 11,
2022), p. 3. And finally, the exhibit list attached to Kathleen’s pretrial statement included
all the pre-litigation emails between Roger and Kathleen; all such emails between Roger
and Carol; Roger’s email to Kathleen’s attorney; and the email from Roger’s attorney to
Kathleen’s attorney. See Ex. A attached to Kathleen Glass Pretrial Statement, Items A,
B, C, D, E, F, J, K, M, S, T, and QQQ (the last item being a January 23, 2020 email from
Roger to Kathleen that was not identified or discussed at trial).
{¶ 60} In light of the above discussion, we conclude that Kathleen waived
objections to admission of evidence under Evid.R. 408. Specifically, while Kathleen did
object to admission of evidence at various times during trial, she had no issue with
admitting such evidence when it was to her advantage, both during trial and in responding
to Applicants’ pre-trial liminal motion. However, Kathleen opposed admission when it
was not to her benefit. The law is well-established that “a party cannot be permitted to
occupy inconsistent positions or to take a position in regard to a matter which is directly -26-
contrary to or inconsistent with one previously assumed by him.” (Citations omitted.) Van
Dyne v. Fid.-Phenix Ins. Co., 17 Ohio App.2d 116, 127, 244 N.E.2d 752 (7th Dist.1969).
{¶ 61} The quoted statement typically applies to parties who act in a particular
manner before litigation is filed and then advocate for an inconsistent position during
litigation. While the current situation does not fit neatly into that context, the principle
rings true here, as it did in Nationwide Ins. Co. v. Hall, 7th Dist. Jefferson No. 1258, 1978
WL 214906 (Mar. 23, 1978). There, the court stressed that “[i]t is fundamental that a
party cannot take inconsistent positions such as plaintiffs are attempting to do in this case
by introducing evidence as to the death of defendant's sister and then objecting to
defendant’s doing the same thing.” Id. at *3. At a minimum, Kathleen’s inconsistent
postures significantly detract from the force of her argument.
{¶ 62} Furthermore, even if waiver did not apply, the probate court did not abuse
its discretion. In the first place, the parties tried the case to the court. In this situation,
trial courts are presumed “to know the law.” Donofrio v. Whitman, 191 Ohio App.3d 727,
2010-Ohio-6406, 947 N.E.2d 715, ¶ 46 (9th Dist.), citing E. Cleveland v. Odetellah, 91
Ohio App.3d 787, 794, 633 N.E.2d 1159 (8th Dist.1993). Trial courts are also presumed
“to have considered only admissible evidence unless the record indicates otherwise.”
White v. White, 2d Dist. Clark No. 2013-CA-86, 2014-Ohio-1288, ¶ 11, citing Cleveland
v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 27 (8th Dist.).
{¶ 63} We also agree with the probate court that the evidence in question was not
precluded by Evid.R. 408. As a preliminary point, none of the witnesses testified as to
the content of the mediation proceedings or about statements made during mediation. -27-
This was the only formal settlement negotiation that was conducted. Furthermore,
disinterment cases are somewhat unique. Specifically, the factors outlined in deciding
whether disinterment is allowed require courts to consider motive and conduct.
{¶ 64} For example, the seventh factor, “the strength of the reasons offered both
in favor of and in opposition to reinterment,” does consider motive, which can be
expressed by statements, but is also often shown through an individual’s conduct. See
Spanich, 90 Ohio App.3d at 154-155, 628 N.E.2d 102 (noting that “[i]f the person seeking
or opposing reinterment does so to harass another, his case will be very weak”). See
also Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 24. In
Frobose, the court considered the applicant’s conduct after filing her action for
disinterment, i.e., that shortly after the action was filed, the decedent’s son “completely
acquiesced to [the applicant’s] demands,” which removed her professed reasons for
seeking disinterment. Id.
{¶ 65} In the case of In re Estate of Eisaman, 2018-Ohio-1112, 110 N.E.3d 96 (3d
Dist.), a decedent’s sister told his widow that she could not be buried beside her husband
in the family plot because the deed had been given to a trust that precluded the widow
from being buried there. As a result, the widow disinterred her husband’s body and
moved it to another cemetery. The decedent’s sister then filed an application for
disinterment, seeking to move the body back to the family plot. Id. at ¶ 1-5.
{¶ 66} During trial, the sister testified contradictorily that the deed transfer allowed
the widow to be buried in the family plot and that she was not opposed to the widow’s
being buried there. Id. at ¶ 23. The trial court found that the sister’s “testimony -28-
concerning her change of heart was disingenuous” and “that her objection * * * softened
only in the face of litigation.” Id. The court of appeals concluded that competent,
credible evidence supported these conclusions. Id. The court therefore considered the
sister’s pre- and post-litigation statements because they related to motive.
Consequently, in the case before us, the probate court correctly found that Kathleen’s
comments before the action was filed, as well as her motives expressed through conduct
in continuing to oppose disinterment, were relevant to its analysis.
{¶ 67} Accordingly, the first assignment of error is overruled.
III. Waiver of Right to Seek Disinterment
{¶ 68} Kathleen’s second assignment of error states that:
The Court Erred in Failing to Find that Applicants Waived Their Right
to Seek Disinterment.
{¶ 69} Under this assignment of error, Kathleen contends that Roger and Carol
waived their right to seek disinterment because they had not objected to placement of
their parents in the SoC and had failed to seek disinterment of Irene and Marion for about
20 and 16 years, respectively.
{¶ 70} As a preliminary point, we stress again that this case involved a bench trial.
“When appellate courts review judgments following bench trials, a presumption applies
that the trial court's findings are correct.” McNelly v. Conde, 2021-Ohio-146, 166 N.E.3d
697, ¶ 18 (2d Dist.), citing Fed. Ins. Co. v. Fredericks, 2015-Ohio-694, 29 N.E.3d 313,
¶ 21 (2d Dist.). “Consequently, appellate courts may not substitute their judgment for -29-
that of trial courts and must affirm judgments that are ‘supported by some competent,
credible evidence going to the essential elements of the case.’ ” Id., quoting State ex rel.
Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 81 (10th Dist.).
(Other citations omitted.)
{¶ 71} We also keep in mind that we must defer to the factfinder in bench trials.
“The underlying rationale of giving deference to the findings of the trial court rests with
the knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984). Accord McNelly at ¶ 19.
{¶ 72} R.C. 517.24 does not contain a statute of limitations, nor does it say
anything about “waiver.” The length of time is only one factor in assessing applications,
and the circumstances in each disinterment case obviously differ. The fact that Roger
and Carol waited for some time was not significant. As the probate court noted, when
Marion died, only two spaces remained for the three children, and it “created a math
problem that was not remedied until the construction of the Glass Family Mausoleum.”
Disinterment Decision at p. 4. While the court stated that the time lapse weighed against
disinterment, it found the lapse understandable since the GM was not completed until
July 2022 and was not an option when Marion and Irene were interred. Id. at 12-13.
This is true. The court also stated that, because Roger had died in 2022, the GM would
likely be permanent, and the court viewed “time periods of one or two decades as
significant to one life, but not eternity.” Id. at 13. The court’s reasoning was not -30-
unsound.
{¶ 73} The case Kathleen primarily relies on is Spanich, 90 Ohio App.3d 148, 628
N.E.2d 102, in which we found “substantial, relevant and probative evidence to support
the trial court's conclusion that the appellant waived his rights to disinter his wife by failing
to object to her place of burial for nearly two years.” Id. at 156. However, the facts in
Spanich were quite different from those involved here.
{¶ 74} Specifically, at the time of her death, the decedent and her husband had
been separated for nearly two years, and she was living in her hometown. The reason
for the separation was that the husband had forged the decedent’s name on $40,000 in
checks in Atlantic City, New Jersey, and had admitted he had a gambling problem. Id.
at 150. Shortly before dying of blunt force trauma, the decedent had consulted an
attorney about divorcing her husband. Her parents paid for the decedent’s funeral and
grave site, purchased two plots next to her, and paid for a monument that included their
names as well as that of their daughter. Id.
{¶ 75} The husband filed exceptions to the inventory in the decedent’s estate and
also challenged some survivorship accounts that were in her name and that of her mother.
Before that litigation was resolved, the husband contacted the cemetery about moving his
wife’s body to another grave. He denied during cross-examination that he was trying to
blackmail his wife’s parents “by threatening to disinter their daughter's body in order to
obtain money from [them] to pay a $40,000 civil judgment emanating from the forgeries.”
Id. The probate court granted a permanent injunction against disinterment, stating that
the husband “ ‘has not been motivated by love, honor, or respect for the deceased or her -31-
parents. Quite the contrary, this court can only describe [his] conduct and attitude in this
entire matter as egregious, greedy, and a gross infringement of any form of decency.’ ”
Id. at 151, quoting the probate court’s decision.
{¶ 76} After we considered the factors that were later summarized in Frobose, 163
Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 16, we found that substantial
evidence supported the probate court’s decision. Id. at 156.
{¶ 77} Having given proper deference to the probate court here, we find no error
in its failure to find that Roger and Carol had waived their right to seek disinterment. As
indicated, the facts in each case are unique, and courts have not found fault where the
disinterment occurred a long time after the decedent was initially buried. See
Sencenbaugh v. Monclova Twp., 6th Dist. Lucas No. L-87-081, 1987 WL 19580 (Nov. 6,
1987) (rejecting complaint for wrongful disinterment and trespass where decedent’s son
disinterred him from an Ohio cemetery fifteen years after he had died and had moved him
to a cemetery in North Carolina, where his wife was buried. The court noted that the son
“did in fact fully comply with the statutory requirements of R.C. 517.23 and 517.24.” Id.
at *3). See also Scott v. Spearman, 115 Ohio App.3d 52, 54, 684 N.E.2d 708 (5th
Dist.1996) (finding no action for wrongful disinterment where decedent’s wife filed an
application for disinterment and was allowed to move her husband’s body more than 18
years after he was buried). Admittedly, these cases involve actions for wrongful
disinterment, but they do indicate that the lapse of time here was neither unusual nor
unprecedented. In any event, this is simply one factor in considering whether
applications for disinterment should be granted. -32-
{¶ 78} In her reply brief, Kathleen stresses our statement in Spanich that “ ‘[w]aiver
is a particularly appropriate principle to apply in the interpretation of the disinterment
statute.’ ” Appellant’s Reply Brief at p. 6, quoting Spanich, 90 Ohio App.3d at 156, 628
N.E.2d 102. However, we also emphasized in this context that “[t]he disinterment of the
Spaniches’ daughter would surely cause them to revisit the acute pain they must have
felt upon her untimely death.” Id. In contrast, both decedents here led prosperous,
apparently happy, and long lives, Irene having died at age 84, and Marion having died at
age 92. See Exs. 1 and 2. There was no indication that relocating their caskets to a
nearby location in the same cemetery would cause anyone to revisit the acute pain of
their deaths. Furthermore, Spanich involved a situation in which the conduct of the
husband who wanted to disinter the decedent was so bad that the trial court found he
could not even “ ‘be considered the surviving spouse as was intended under this statute
[R.C. 517.23] for purposes of disinterment.’ ” Spanich at 151-152. That is not the case
here. The evidence indicates that Roger and Carol desired to honor their parents.
{¶ 79} Based on the preceding discussion, the second assignment of error is
overruled.
IV. Granting the Applications for Disinterment
{¶ 80} Kathleen’s third assignment of error states that:
The Court Erred in Granting the Applications for Disinterment.
{¶ 81} Under this assignment of error, Kathleen discusses the seven-factor test
and argues that under her assessment of the facts, equitable considerations required -33-
denial of the applications. As noted, these seven factors were outlined in Frobose, 163
Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 16. The probate court found
the first two factors (degree of relationship of party seeking reinterment bears to the
decedent, and degree of relationship of person seeking to prevent reinterment) were
neutral, because all the parties bore the same relationship to their parents. Disinterment
Decision at p. 8-9. Concerning the remaining factors, the court found factor three
weighed in favor of disinterment, factors four, five, and seven weighed heavily in favor of
disinterment, and factor six, while weighing against disinterment, was not significant. Id.
at 9-15. We will discuss these matters briefly, since we have already mentioned many
relevant facts while discussing the prior assignments of error.
A. The Decedents’ Desires
{¶ 82} The third factor is “the desire of the decedent.” Frobose at ¶ 16. As noted,
the probate court considered this factor as favoring disinterment, but did not weigh it as
heavily as other factors. The court found that, in reality, one could only speculate what
Marion and Irene wanted, since the GM did not exist when they were interred and they
were limited in options when they purchased crypts in SoC. Disinterment Decision at p.
9. The court also stressed that in order to make the math work for the SoC, one child
would have had to make a concession. Id.
{¶ 83} Furthermore, the court found that the GM was consistent with many of
Irene’s and Marion’s desires, including being buried above ground, being in a Catholic
cemetery, being very close to where they were originally interred, allowing Marion to be -34-
next to Irene, and “permitting the entire family to be buried closer together, which appears
to be what the decedents wished, from their purchase of eight burial plots and then four
crypts.” Id. Additionally, the court commented that Irene had not been happy with the
aesthetics of the SoC but had little choice at the time, and that the elegant nature of the
GM would correlate with Irene’s lifestyle. Id. at 9-10.
{¶ 84} According to Kathleen, the court erred because Marion and Irene had had
“options” and Irene had been especially interested in SoC. She further argues that her
parents could have either moved their private mausoleum to a “more desirable location”
or purchased spaces in the SoC, and they chose SoC. Appellant’s Reply Brief at p. 8.
{¶ 85} First, the original private mausoleum’s location in an unattractive area
“helped create interest” for the new SoC location. Tr. at 67. This did not mean that the
decedents were particularly enamored with the SoC. It is true that Marion and Irene had
an option to relocate their mausoleum, but there is no evidence in the record that anything
“more desirable” was available at that time; in fact, there is no description at all in the
record of any other locations then available. Id. at 71-72. As indicated, the section
where Roger located the GM was not available at the time. Id. at 72. There was
testimony that the prior mausoleum was later sold to someone else and relocated to a
more attractive location, but no time period was specified with respect to that transaction.
Id. at 131.
{¶ 86} It is also true that Calvary’s director said he had met with Marion and Irene
in 1997 and that Irene had liked the SoC. Id. at 132. However, Carol testified that Irene
had had a heart-attack in the middle of the night and that she (Carol) believed SoC was -35-
a “stop-gap” measure so her parents would have somewhere to go. Id. at 539. This
may have been the basis for the court’s conclusion that Irene did not like the aesthetics
of the SoC. The court did not cite a specific part of the transcript, but the court clearly
found Roger and Carol credible and did not find Kathleen credible.
{¶ 87} Furthermore, the court was correct in every other respect. There was
testimony that Irene wanted to be in a mausoleum above ground and wanted to be with
her family, which included the three children and Marion. Id. at 532. This would not
have been possible at the SoC because the SoC had only two remaining spaces for the
children. And, as indicated, the court did not weigh this factor as heavily as the others,
which was appropriate since one could only speculate as to the decedents’ preferences.
Clearly, Marion and Irene wanted a private mausoleum but did not have other good
options when they chose interment in the SoC.
B. Conduct of Person Seeking Reinterment
{¶ 88} The fourth factor is “the conduct of the person seeking reinterment,
especially as it may relate to the circumstances of the original interment.” Frobose, 163
Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 16.
{¶ 89} In this regard, the court acknowledged the presumption that the decedents
would not wish for their remains to be disturbed but stressed that all three children could
not be buried with their parents. Disinterment Decision at p. 10. The court further noted
that Roger and Carol had no choice other than to bury Marion in the SoC in 2006, because
no other mausoleum was then available, and Marion wished to be buried next to Irene. -36-
The court therefore found their decision to bury Marion in the SoC had no bearing on the
request to disinter. Id. at 11. These observations were consistent with the statement in
Spanich that “the decedent's desire to be buried with his family may be a factor favoring
reinterment, if that desire cannot be fulfilled in the place of original interment.” Spanich,
90 Ohio App.3d at 153-154, 628 N.E.2d 102.
{¶ 90} In addition, the court emphasized that Roger invited both siblings to
participate in the design and use of the GM and paid for it, but Kathleen chose not to
participate, making Roger’s conduct “pure,” as demonstrated by his November 3, 2020
email (which offered Kathleen a space in the GM). Id., citing Ex. 57.
{¶ 91} Kathleen argues that Roger was dishonest and tampered with an image he
sent her. (Roger denied this, and there is no proof that he did so. See Tr. at 340-343
and 391-392, and Ex. 56.) Kathleen further contends that Roger sought to “trick” her into
agreeing to disinter her parents to his mausoleum, “which exclude[d] her from the Glass
family completely.” Appellant’s Brief at p. 22. As previously indicated, the court
obviously did not find Kathleen credible and did find Roger and Carol credible. Again,
we defer to a trial court’s credibility decisions because the court had the best opportunity
to see and hear witnesses. Seasons Coal, 10 Ohio St.3d at 80, 461 N.E.2d 1273.
{¶ 92} More importantly, there was uncontroverted evidence that Roger offered
Kathleen a space in the new mausoleum – a fact that she inexplicably denied at trial.
See Tr. at 500-501 and Ex. 57 (where, even after being presented with an email in which
Roger offered her a space, Kathleen insisted that she thought the GM was only for Roger
and their parents). Accordingly, the court’s findings were supported by competent, -37-
credible evidence, and the court did not err in weighing this factor heavily in favor of
disinterment.
C. Conduct of Person Seeking to Prevent Disinterment
{¶ 93} The fifth factor is “the conduct of the person seeking to prevent reinterment.”
Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249, at ¶ 16. Concerning
this factor, the probate court described Kathleen’s conduct as “nothing short of
obstructive, heartless, and damaging.” Disinterment Decision at p. 11. In this vein, the
court noted Kathleen’s failure to respond to Roger “timely and reasonably” when he
reached out in October 2020 or to respond to emails or calls from Roger and Carol. Id.
The court also referenced Kathleen’s statement about cooperating if Roger had said he
wanted a family mausoleum when he did just that, and it interpreted Kathleen’s references
to money as an indication that Kathleen was “never offered enough money” and that “this
whole debate is just about money.” Id.
{¶ 94} Kathleen points to her testimony that disturbing her parents’ remains was
not worth any amount of money. Appellant’s Reply Brief at p. 23. Clearly the court did
not find this credible. The court’s decision was supported by competent, credible
evidence.
{¶ 95} At trial, Kathleen claimed she was still waiting for “information” in November
2020 and also said several times that she was not aware the GM was to be a family
mausoleum. Tr. at 465, 489-490, 501-502, and 680. This contradicted Kathleen’s pre-
litigation statement in an email to her attorney on October 29, 2020, concerning the fact -38-
that Roger had approached her about a private mausoleum. Tr. at 620-623. 7 On
October 29, 2020, Kathleen told her attorney that, “I’m positive they know exactly where
everyone would be buried [in the GM], including Carol & her three darlings. Somehow,
my gut feeling is that all of a sudden, things will get mixed up & there will be no room for
me.” Id. at 622.8 These statements also contradict Kathleen’s denial that Roger offered
her a space in the GM. Tr. at 500-501 and Ex. 57. In light of Kathleen’s contradiction
of facts established by undisputed evidence, the court did not err in discounting her
testimony.
{¶ 96} Kathleen also claims that the court improperly considered settlement
matters in violation of Evid.R. 408. However, we have already rejected that argument.
{¶ 97} An additional argument that Kathleen makes is that by selling the two
remaining SoC crypts back to Calvary, Roger removed her right to the space in the SoC.
But the crypts were not sold back to Calvary. The contract between Roger and Calvary
stated that:
Pending approved court order, the fees will be waived for relocation
of Marion & Irene Glass to the new mausoleum; a refund of $8900 will be
authorized for the return of unused crypts (M1, Mausoleum 2, Crypt #5495,
7 The parties stipulated at trial that this email had not been produced during discovery
but had been disclosed during a grievance hearing against Roger’s attorney, who waived confidentiality for purposes of the probate trial. Tr. at 620-622. 8 This also contradicted Kathleen’s trial testimony before the parties agreed to enter this
material into evidence. Specifically, Kathleen had previously testified that she had no idea until April 2021 that her sister, Carol, would be buried in the mausoleum, did not express concern that Carol and her children had firmly committed spots in the mausoleum, and did not ever express concern about Carol and her children being in there. Tr. at 466-467. -39-
5496).
(Emphasis added). Ex. 11, p. 2.
{¶ 98} Consistent with the contract, Calvary’s director, Meade, testified that no
credit had been applied to Roger’s $278,755 purchase (which had been paid in full), the
two crypt spaces had not reverted to Calvary, and the spaces were still available to all
three siblings. Tr. at 80-83, 121, 139, and 296-297, and Exs. 11, 41, and 42. According
to Meade, whether a refund would be applied depended on whether the court authorized
one or anything concerning the unused crypts. Tr. at 141-142. If the court did not order
the refund, Calvary could not provide one, since the crypt spaces belonged to the three
siblings. Id. at 142. Because the court did not provide for a refund or disposition in its
decision, Kathleen has not lost access to these spaces.
{¶ 99} Based on the preceding discussion, the probate court’s findings were
supported by competent, credible evidence, and the court did not abuse its discretion in
finding that Katherine’s conduct weighed heavily in favor of disinterment.
D. Length of Time Since Original Interment
{¶ 100} The sixth factor concerns “the length of time that has elapsed since the
original interment.” Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249,
at ¶ 16. We have already considered this point and, for the reasons stated, find no abuse
of discretion in the probate court’s findings.
E. Strength of Reasons Offered For and Against Reinterment -40-
{¶ 101} The seventh and final factor involves “the strength of the reasons offered
both in favor of and in opposition to reinterment.” Id. at ¶ 16. In this regard, the court
described Kathleen as having “concocted numerous baffling and constantly evolving
excuses as to why she would not participate in the Glass Family Museum and further,
why she would not consent to the disinterment of her parents.” Disinterment Decision at
p. 13.
{¶ 102} The court further found that Kathleen was “well-aware of how important”
the mausoleum was to Roger, and that after Roger began to provide design information,
Kathleen could have had time to negotiate a statue and participation if she had
“responded timely and with any sincerity.” Id. The court then described several
instances where “Kathleen’s reasons for refusing consent changed repeatedly.” Id. at p.
14. These included Roger’s excluding Kathleen (which was untrue); that her parents
were not “pretentious,” when in fact they had donated to charitable causes publicly and
had not hid a lavish lifestyle; and religious objections which were later withdrawn and on
which Kathleen provided no evidence. In total, Kathleen crafted “whatever excuse
appears to have occurred to her.” Id.
{¶ 103} In contrast, the court found that Roger and Carol had solved the “math”
problem caused by only having two crypts and that Roger’s November 3, 2020 email to
Kathleen “exemplified his desperation, sincerity, frustration, insight, and desire.” Id. at
p. 15.
{¶ 104} According to Kathleen, her objection never deviated: her objection was
that disinterment was not what her parents wanted. Appellant’s Brief at p. 25. However, -41-
Kathleen did not point to evidence indicating this was her parents’ position, and both
Roger and Carol testified that Marion and Irene never stated that they did not want to be
moved from the SoC. Tr. at 278 and 585. Carol also said she did not know why
Kathleen objected to disinterment; in fact, her October 2020 call to Kathleen expressed
that this was exactly what their parents wanted. Id. at 585.
{¶ 105} At trial, Kathleen related a story about the fact that her mother had been
“thrilled” with SoC and that every time Kathleen’s grown children came into town, her
mother took them to the SoC and showed them the bench where they could sit and talk
to her and pray. Tr. at 635. The court clearly did not believe this story.
{¶ 106} Our preceding discussion has mentioned a number of ways in which
Kathleen’s testimony contradicted established facts and her own testimony, all of which
supported the court’s conclusion that Kathleen gave baffling and changing reasons for
her refusal to consent. Having reviewed the entire record, we find competent and
credible evidence to support the court’s decision to approve the applications for
disinterment. Consequently, the third assignment of error is overruled.
V. Denial of Motion to Strike
{¶ 107} Kathleen’s fourth and final assignment of error states as follows:
The Court Erred in Denying Appellant’s Motion to Strike Without
Conducting an Evidentiary Hearing.
{¶ 108} Under this assignment of error, Kathleen argues that the court erred in
denying her motion to strike portions of Applicants’ closing brief or alternatively to reopen -42-
the evidentiary hearing. According to Kathleen, the closing brief contained two material
misrepresentations of fact about conditions for her consent to disinterment, and her
motion had arguable merit, thus requiring a hearing. While Kathleen mentions Civ.R. 11
briefly, her argument focuses on R.C. 2323.51 (the frivolous conduct statute) and whether
her claims had arguable merit such that the probate court erred in failing to conduct a
hearing. We will therefore focus on R.C. 2323.51.
{¶ 109} As previously noted, after the trial had ended and the parties had
submitted closing briefs, Kathleen filed a motion to strike Applicants’ brief and
alternatively sought to reopen the hearing to submit supplemental evidence. The first
alleged misstatement concerned a condition for consent to which Kathleen testified at the
hearing, i.e., that a space must be included for her niece, Meredith, and the Applicants’
claim that Kathleen “ ‘never communicated this (or any other condition) to Roger or Carol
before the hearing.’ ” Respondent Kathleen Glass’ Motion to Strike Applicants’ Closing
Brief or, in the Alternative, to Reopen the Evidence (Dec. 13, 2022) (“Motion to Strike”),
p. 4, quoting Applicants’ Closing Brief at p. 13. The second alleged misstatement was
that “ ‘Kathi’s late-arrived-at conditions for consenting were only revealed at the hearing.’ ”
Id.
{¶ 110} Despite her prior claim at trial that settlement offers were inadmissible
under Evid.R. 408, Kathleen attached two settlement offers to her motion to strike. Both
were in writing: one was dated May 14, 2021, and the other was dated February 7, 2022.
Kathleen also included a June 20, 2022 letter from Applicants’ counsel rejecting the last
settlement demand. The May 14, 2021 document (Ex. A) was marked “settlement -43-
communication subject to Evidence Rule 408” and referred to the order to mediate. The
February 7, 2022 document (Ex. B) was similarly marked.
{¶ 111} After Roger and Carol replied to the motion to strike on January 10, 2023,
the court denied the motion. See Decision, Order and Entry Denying Motion to Strike,
or in the Alternative to Reopen the Evidence (January 17, 2023) (“Strike Decision”). In
the decision, the court first noted that the documents Kathleen had attached were
unauthenticated. Id. at p. 3. However, the court’s decision to deny the motion was
based on: (1) the fact that, during trial, Kathleen opposed all relevant evidence of attempts
to settle or compromise under the guise of Evid.R. 408, when the rule did not apply; (2)
no misrepresentations were made; and (3) there was no need to reopen the trial because
the evidence was duplicative of evidence Kathleen provided at trial, and “reopening the
case to present two otherwise irrelevant letters in rebuttal to a statement made in a closing
brief is simply unnecessary.” Id. at p. 3-6.
{¶ 112} With certain exceptions that do not apply here, R.C. 2323.51(B)(1)
provides, in pertinent part, that “at any time not more than thirty days after the entry of
final judgment in a civil action or appeal, any party adversely affected by frivolous conduct
may file a motion for an award of court costs, reasonable attorney's fees, and other
reasonable expenses incurred in connection with the civil action or appeal. The court
may assess and make an award to any party to the civil action or appeal who was
adversely affected by frivolous conduct, as provided in division (B)(4) of this section.”
{¶ 113} In her motion, Kathleen alleged frivolous conduct under R.C.
2323.51(A)(2)(a)(iii) and (iv). Strike Motion at p. 3. This subdivision defines frivolous -44-
conduct as conduct of a party to a civil action or of the party’s counsel of record “that
satisfies any of the following”:
(iii) The conduct consists of allegations or other factual contentions
that have no evidentiary support or, if specifically so identified, are not likely
to have evidentiary support after a reasonable opportunity for further
investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are
not warranted by the evidence or, if specifically so identified, are not
reasonably based on a lack of information or belief.
{¶ 114} R.C. 2323.51(B)(2) allows courts to award fees, but only if the court sets
a hearing, provides notice of the hearing, holds a hearing at which the parties are
permitted to present evidence, and decides: (1) a party’s conduct was frivolous; (2) a
party was adversely affected; (3) the amount of fees to be awarded. See R.C.
2323.51(B)(2)(a), (b), and (c). Courts have held that “though R.C. 2323.51 requires a
trial court to hold a hearing before it grants a motion for attorney fees, a hearing is not
required when the court determines, upon consideration of the motion and in its
discretion, that the motion lacks merit.” State ex rel. Delmonte v. Woodmere, 8th Dist.
Cuyahoga No. 86011, 2005-Ohio-6489, ¶ 54. Accord Brock-Hadland v. Weeks, 7th Dist.
Mahoning No. 13 MA 170, 2015-Ohio-834, ¶ 9 (“[h]olding such a hearing when the court
has already determined that there is no possible basis for the award would be a waste of
judicial resources”).
{¶ 115} Our district has said that “R.C. 2323.51 does not mandate that an -45-
evidentiary hearing always be conducted to determine whether a particular action
involves frivolous conduct, but it does require that if attorney fees are to be ultimately
awarded, then a hearing indeed must be held in accordance with subsections (a), (b),
and (c) of R.C. 2323.51(B)(2).” Shields v. Englewood, 172 Ohio App.3d 620, 2007-Ohio-
3165, 876 N.E.2d 972, ¶ 50 (2d Dist.). Even where a hearing is held, it may be oral or
on written materials. Foland v. Englewood, 2d Dist. Montgomery No. 22940, 2010-Ohio-
1905, ¶ 31, citing Shields at ¶ 48. We have also discussed the issue of “arguable merit”
in this context. Classic Comfort Heating & Supply, LLC v. Miller, 2d Dist. Darke No.
2021-CA-11, 2022-Ohio-855, ¶ 62, citing Russell v. Ryan, 2021-Ohio-2505, 175 N.E.3d
969, ¶ 15-16 (10th Dist.). No precise definition of arguable merit exists in this context,
but in Russell, the court mentioned terms like “lack of a triable issue” and “no basis.” Id.
{¶ 116} “The legal standard of review depends on whether a court is reviewing
legal or factual decisions.” Horenstein, Nicholson & Blumenthal, L.P.A. v. Hilgeman, 2d
Dist. Montgomery No. 28581, 2021-Ohio-3049, ¶ 168, citing Namenyi v. Tomasello, 2d
Dist. Greene No. 2013-CA-75, 2014-Ohio-4509, ¶ 19-20. Generally, “[w]e review lower
court decisions on sanctions for abuse of discretion.” Payson v. Phipps, 2d Dist. Miami
No. 2021-CA-36, 2022-Ohio-1525, ¶ 67, citing State ex rel. Striker v. Cline, 130 Ohio
St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11.
{¶ 117} “However, reviewing factual decisions ‘involves some degree of
deference, and we will not disturb a trial court's findings of fact where the record contains
competent, credible evidence to support them.’ ” Id., quoting Shields, 172 Ohio App.3d
620, 2007-Ohio-3165, 876 N.E.2d 972, at ¶ 54. Purely legal issues, like those involved -46-
in deciding “ ‘ “whether a pleading or argument is warranted under existing law or can be
supported by a good faith argument for an extension, modification, or reversal of existing
law,” ’ ” are reviewed de novo. Id., quoting Natl. Check Bur. v. Patel, 2d Dist.
Montgomery No. 21051, 2005-Ohio-6679, ¶ 10. (Other citation omitted.) “ ‘The ultimate
decision whether to impose sanctions for frivolous conduct, however, remains wholly
within the trial court's discretion.’ ” Id., quoting Orbit Elecs., Inc. v. Helm Instrument Co.,
167 Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91, ¶ 47 (8th Dist.).
{¶ 118} As noted, “most instances of abuse of discretion will result in decisions that
are simply unreasonable, rather than decisions that are unconscionable or arbitrary.”
AAAA Ents., 50 Ohio St.3d at 161, 553 N.E.2d 597. “A decision is unreasonable if there
is no sound reasoning process that would support that decision.” Id.
{¶ 119} After reviewing the record, we find no arguable merit to Kathleen’s claims.
The probate court therefore did not abuse its discretion in overruling the motion to strike
and in rejecting the request to reopen the evidentiary hearing.
{¶ 120} As a preliminary point, the documents that Kathleen attached to the motion
were not authenticated. According to Kathleen, the court made a decision before she
had time to file a reply brief and remedy this error. However, Kathleen filed her motion
on December 13, 2022, and the court did not issue its decision until more than a month
later. As a result, Kathleen had ample opportunity to correct anything she wished.
Nonetheless, the court did not rest its decision on this point.
{¶ 121} We also agree with the probate court that Kathleen should not be permitted
to try to conceal evidence of attempts to compromise at trial and then rely on them when -47-
it suits her purposes. Strike Decision at p. 4. As noted, Kathleen asserted prior to trial
that she wanted to use evidence of emails between attorneys and opposed a motion in
limine that sought to exclude those matters. Then at trial, Kathleen attempted to limit
such evidence based on Evid. 408, but did not succeed. Subsequently, after closing
briefs had been filed, Kathleen then contradicted her trial position and sought to add this
type of evidence to the record. Ultimately, this was fatal to the motion to strike because
it demonstrated an inconsistent pattern of conduct during the litigation.
{¶ 122} The court also found that the Applicants had not misrepresented facts to
the court. In this vein, the court stressed the great latitude afforded in closing arguments.
Id. at 5. This is correct. The Supreme Court of Ohio has acknowledged that “counsel
should be afforded great latitude in closing argument * * * and that the determination of
whether the bounds of permissible argument have been exceeded is, in the first instance,
a discretionary function to be performed by the trial court.” (Citations omitted.) Pesek
v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501, 721 N.E.2d 1011 (2000).
Moreover, as we noted, in bench trials, courts are presumed to know the law and are
presumed to consider only admissible evidence. Donofrio, 191 Ohio App.3d 727, 2010-
Ohio-6406, 947 N.E.2d 715, at ¶ 46, and White, 2d Dist. Clark No. 2013-CA-86, 2014-
Ohio-1288, at ¶ 11.
{¶ 123} Further, we agree with the probate court’s decision. There is no question
that this was a fiercely-fought case with animosity between opposing parties. In fact, the
Applicants’ reply to Kathleen’s closing brief also alleged various ways in which Kathleen
had misrepresented facts and referenced facts not in evidence or that were outside the -48-
record. See Applicants’ Closing Reply (Dec. 16, 2022), p. 2, 3-6, 7, 8, and 9 (referencing
and detailing Kathleen’s “misrepresentations of the evidence”; stating that “Kathleen
misrepresents facts and relies on ‘facts not in evidence’ ” and asking to strike the
evidence; claiming that “Kathleen argues based on inferences not supported by the
record at trial”; and stating that Kathleen “creates the misleading impression” and “weaves
a revisionist tale”). The only difference between the Applicants and Kathleen in this
context was that Applicants did not file a motion to strike asserting frivolous conduct.
{¶ 124} The Applicants’ closing brief did reference the record but was overzealous
in stating that Kathleen had never communicated a condition about her niece being
entombed in the Glass mausoleum or any other conditions to Roger and Carol before the
hearing, and in stating that Kathleen’s “late-arrived at conditions were only revealed at
the hearing.” Applicants’ Closing Brief (Oct. 28, 2022), p. 13. These statements were
technically true based on the evidence presented at the hearing.
{¶ 125} However, if one considers the unauthenticated attachments to the motion
to strike, Kathleen did mention her niece in a mediation letter and did later, in February
2022, send an offer with some conditions. Applicants’ statements could have been
better phrased, but in fact, the court did prohibit testimony about mediation or actual
offers, and facts regarding these matters were not in the trial record. Tr. at 482-485, 579,
and 585. Therefore, the Applicants accurately stated the trial record as it existed.
Based on the circumstances here, which include intense advocacy on both sides, the
court correctly found no basis for the motion to strike.
{¶ 126} Kathleen has only briefly mentioned her alternative motion to reopen the -49-
evidentiary hearing. In this regard, she argues that the court should have reopened the
hearing to admit evidence of the settlement offers. Appellant’s Brief at p. 29 and fn. 18,
citing Evid.R. 611(A).
{¶ 127} “Trial courts are given great deference in controlling their dockets, and
therefore, a reviewing court uses an abuse of discretion standard when reviewing a trial
court's requirements in this area.” Mathewson v. Mathewson, 2d Dist. Greene No. 2005-
CA-35, 2007-Ohio-574, ¶ 26, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d
1078 (1981). Evid.R. 611(A) further provides that “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence so
as to (1) make the interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment
or undue embarrassment.”
{¶ 128} Typically, this rule is applied where a court restricts the time length of a
proceeding, or restricts witness questioning, or allegedly shows judicial bias in conducting
a trial. E.g., In re T.H., 192 Ohio App.3d 201, 2011-Ohio-248, 948 N.E.2d 524, ¶ 39 (2d
Dist.); Franks v. Rankin, 10th Dist. Franklin No. 11AP-934, 2012-Ohio-1920, ¶ 49; Rick's
Foreign Exchange Co. v. Greenlee, 2d Dist. Montgomery No. 26096, 2014-Ohio-4505,
¶ 27-29. However, courts have allowed parties to reopen their cases after resting in
order to introduce further evidence. Again, the decision is reviewed for abuse of
discretion. Positron Energy Resources, Inc. v. Weckbacher, 4th Dist. Washington No.
07CA59, 2009-Ohio-1208, ¶ 20.
{¶ 129} Given the limited number of cases we found in which reopening has been -50-
approved, this situation does not occur frequently. The procedure also seems
particularly inappropriate when, as here, a case has been pending for a significant period
of time and the parties were allowed all the time they needed to try the case.
{¶ 130} Nonetheless, the court did not err in this regard. In fact, while the court
denied Kathleen’s motion, it did consider the attached documents. The court noted the
content was “was not entirely different than the reasons [Kathleen] provided at trial for
refusing to consent – in other words, the evidence was already taken into consideration
– not for offers of compromise but rather substantively under Frobose.” Strike Decision
at p. 5-6. This is true. Thus, while the court denied the motion to reopen, the court
actually did consider the exhibits Kathleen submitted. However, the court found them
duplicative of the evidence Kathleen had already provided at trial. Id. at p. 7. Again,
our review of the record indicates that the court was correct.
{¶ 131} Accordingly, the probate court did not abuse its discretion in denying
Kathleen’s motion to strike, and the fourth assignment of error is overruled.
VI. Conclusion
{¶ 132} All of Kathleen’s assignments of error having been overruled, the
judgments of the probate court are affirmed.
EPLEY, J. and LEWIS, J., concur. -51-
Related
Cite This Page — Counsel Stack
2023 Ohio 3509, 225 N.E.3d 1134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disinterment-of-glass-ohioctapp-2023.