In re Estate of Alibrando v. Minor

2026 Ohio 133

• Court: Ohio Court of Appeals
• Decided: January 15, 2026
• Docket: 2025 CA 00051
• Status: Published

Opinion

[Cite as In re Estate of Alibrando v. Minor, 2026-Ohio-133.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: THE ESTATE OF GUITO ALIBRANDO MATTHEW ALIBRANDO, ET AL Case No. 2025 CA 00051

Appellants-Cross-Appellees Opinion And Judgment Entry

-vs- Appeal from the Licking County Court of Common Pleas, Probate Division, Case No. 2019-0068A CONSTANCE MINOR Judgment: Affirmed in part; Reversed in Appellee, Cross-Appellant part; Remanded

Date of Judgment Entry: January 15, 2026

BEFORE: ANDREW J. KING, P.J., ROBERT G. MONTGOMERY, & KEVIN W. POPHAM, J.; Appellate Judges

APPEARANCES: Charles H. Bendig for Appellants/cross-appellees; C. Daniel Hayes, for-Appellee/cross-appellant

OPINION

Popham, J.

{¶1} Appellants/cross-appellees Matthew and Vincent Alibrando appeal the

judgment entries of the Licking County Court of Common Pleas, Probate Division.

Appellee/cross-appellant Constance Miner also appeals the judgment entries of the

Licking County Court of Common Pleas, Probate Division. For the reasons noted below,

we affirm in part, reverse in part, and remand for proceedings consistent with this opinion. Facts & Procedural History

{¶2} Miner and decedent Guito Alibrando were romantic partners from 1996 until

his death in December 2018. Guito had two sons, Matthew and Vincent Alibrando. In

August of 2013, Guito executed a last will and testament, designating Miner as the

executrix of his estate and bequeathing her $100,000. The will stated that the remainder

of the estate would be split equally between Matthew and Vincent.

{¶3} In November of 2013, Guito added Miner to a Chase Checking Account

(“Joint Checking Account”), which was previously in his name only. There is no dispute

that this account is a joint account with right of survivorship1. There is also no dispute

that the funds in this account were used exclusively for Guito’s monthly expenses.

{¶4} On August 25, 2015, Guito granted Miner durable power of attorney. This

document authorized Miner to sell any of Guito’s real or personal property and to withdraw

funds from any banking institution. In July 2018, two years after Guito entered nursing

care, Miner sold Guito’s home using this power of attorney and deposited the sale

proceeds into the Joint Checking Account.

{¶5} Guito died on December 18, 2018. Miner was notified by the nursing facility

that day of his death, and she was subsequently appointed executrix of Guito’s estate.

She filed a final account, which included: $163,969.84 from Guito’s Voya account,

$144,125.75 from Guito’s JPMorgan Annuity Account (“Annuity Account”), and

$58,472.58 from Guito’s life insurance proceeds. According to Miner’s final account, she

1 We note that in November 2013 when Guito added Miner to the Joint Checking Account, had he

intended to effectuate his estate plan as set forth in his will executed 3 months prior, rather than adding Miner to the joint and survivorship account, he could have simply executed a financial power of attorney providing for Miner’s ability to transact from his individual checking account. would receive $100,000, while Matthew and Vincent would each receive $132,327.14.

Miner did not take any fiduciary fees.

{¶6} On July 11, 2019, Matthew and Vincent filed exceptions to the final

accounting, claiming it failed to include proceeds from the sale of Guito’s home. They

also filed a complaint on August 30, 2019, alleging Miner concealed assets, and

requesting her removal as executrix.

{¶7} Matthew and Vincent’s original complaint alleged the following: Guito

lacked the capacity to execute the 2013 will; the will was executed under Miner’s undue

influence; Guito lack the capacity to execute the 2015 power of attorney; the power of

attorney was executed under Miner’s undue influence; and Miner misused the power of

attorney to make herself a co-owner of the Joint Checking Account, sell Guito’s real

estate, and deposit the proceeds from the real estate into the Joint Checking Account.

Miner responded with an answer and counterclaim for frivolous conduct.

{¶8} Miner filed a motion for summary judgment, while Matthew and Vincent filed

a partial motion for summary judgment. The trial court granted Miner’s motion for

summary judgment and denied the sons’ motion. Matthew and Vincent appealed to this

Court. In Alibrando v. Miner, 2021-Ohio-2827 (5th Dist.) (“Alibrando I”) we reversed and

remanded the case, finding the trial court erred in granting summary judgment to Miner

because genuine issues of material fact existed regarding whether Miner, as a fiduciary,

properly transferred the funds from the Joint Checking Account to her individual account

for her sole benefit as opposed to the beneficiaries under the will.

{¶9} Additionally, we found the trial court erred in denying Matthew and Vincent’s

motion to amend their complaint. {¶10} Following remand, Mathew and Vincent filed an amended complaint

containing two claims: a claim for concealment pursuant to R.C. 2109.50, and a claim for

constructive trust. The same three factual allegations form the basis of each claim: (1)

Miner misused the power of attorney when she sold Guito’s home in July of 2018; (2)

Miner misused the power of attorney when she deposited the proceeds from the sale of

Guito’s home into the Joint Checking Account; and (3) Miner violated her fiduciary duties

and misused the power of attorney when she transferred the funds from the Joint

Checking Account into her personal account in 2019, after Guito’s death. The amended

complaint alleges Miner’s conduct amounted to concealment pursuant to R.C. 2109.50,

violated the Uniform Power of Attorney Act, or in the alternative, the circumstances

resulted in a constructive trust in favor of Matthew and Vincent.

{¶11} On September 12, 2023, Matthew and Vincent disclosed Michael John

Johrendt as an expert witness. The following day, Miner filed a motion to exclude this

expert witness because he was disclosed after the expert witness disclosure deadline –

August 15, 2023. On December 8, 2023, the trial court granted Miner’s motion to exclude.

{¶12} On December 12, 2023, the trial court held a hearing on Matthew and

Vincent’s amended complaint during which the following testimony was adduced.

Miner Testimony

{¶13} Miner testified about the Joint Checking Account, which was originally

established when Guito had a plumbing business. When Guito retired, his Social Security

check went into the Joint Checking Account. Additionally, Guito had $1,000 per month

from his Annuity Account transferred into the Joint Checking Account. Prior to Miner’s

addition on the Joint Checking Account, Miner would help Guito pay his bills each month; however, Guito would sign the checks. Miner testified Guito never had any conversations

with her about adding her name to the Joint Checking Account.

{¶14} Miner never lived in Guito’s home. After Guito entered nursing care and

prior to selling Guito’s home, Miner had to move approximately $5,000 per month from

the Annuity Account to the Joint Checking Account to pay for Guito’s monthly expenses,

which included funds for the nursing facility, diapers, spousal support to Guito’s ex-wife

(Matthew and Vincent’s mother), and all bills associated with Guito’s home.

{¶15} Miner decided to sell Guito’s home in 2018 – at which point Guito had been

in nursing care for two years. Miner believed that, due to Guito’s condition, he was not

going to be able to return home. The home had been empty for two years, things were

falling apart, the gutters were stopped up, and the grass was not being cut. Also, Miner

was having trouble obtaining insurance for the home because it was empty.

{¶16} Upon deciding to sell, Miner asked both Matthew and Vincent if they wanted

Guito’s home; both declined. When Guito went into nursing care in 2016, Miner told both

Matthew and Vincent they should come take anything they wanted out of the home.

However, once she put the home up for sale in 2018, she gave them a one-week deadline

to retrieve such items from the home.

{¶17} Miner deposited the home sale proceeds into the Joint Checking Account.

Miner testified that, in 2018 when she placed the money from the sale of Guito’s home

into the Joint Checking Account, she did not know the account was a joint and

survivorship account, and she did not know the funds would go to her upon Guito’s death.

Miner stated the first time she found this out was when she went to an attorney’s office

after Guito’s death. When asked what she thought would happen to the money in that account, Miner testified she assumed the money would be spent for Guito’s care and his

monthly expenses, and she did not know where it would go after that. After the home

was sold and the funds placed into the Joint Checking Account, Miner stopped moving

$5,000 out of the Annuity Account each month. Rather, the money from the sale of the

home was used to pay Guito’s monthly bills and expenses.

{¶18} Miner also testified how she used the durable power of attorney, including

to place Guito into nursing care, to sell his car, truck, and tractor, and to sell his home.

She stated she understood her obligation to act in good faith, which meant “that I would

do whatever is best for the party involved [Guito].” Miner stated neither Vincent nor

Matthew ever objected to her use of the power of attorney, and, in fact, she used the

power of attorney to transfer one of Guito’s cars to Vincent’s wife.

{¶19} Miner agreed that Guito’s “estate plan” was to leave her $100,000 and leave

the remainder to Matthew and Vincent but also testified that Guito wanted and needed to

be taken care of during his lifetime - by using the money in his accounts for his nursing

care and monthly expenses. Miner testified that the funds for the nursing home and

monthly expenses, “had to come from somewhere.”

{¶20} Initially when Guito was in nursing care, Miner visited him every day. After

some time, she visited every other day. Prior to Guito’s death, Miner testified that he had

good days and bad days, and he recognized her until the day before he died. Miner heard

nothing from the staff at the nursing facility that made her think Guito “was on death’s

door.” Guito passed away because he aspirated on his food.

{¶21} Miner testified that on March 11, 2019 – after Guito’s death - she transferred

$207,487.90 from the Joint Checking Account to her personal savings account. Matthew Testimony

{¶22} Matthew worked with Guito in the plumbing business before Guito retired.

At some point, Matthew, Vincent, and Miner went together to look at nursing facilities for

Guito. Matthew initially visited Guito at the nursing facility every weekend. However,

Matthew did not see Guito for over two months before he died, because when Matthew

went to visit, Guito was crying. When Matthew was asked who was looking out for Guito

after he stopped visiting, Matthew testified, “I don’t know. I wasn’t going.” He thought

Miner “may have been looking out for him [Guito].” When asked about Miner’s care of

Guito near the end of Guito’s life, Matthew responded, “I don’t know, because the last

end of his life, I didn’t go.” Prior to when Matthew stopped visiting, he “felt she [Miner]

took care of my father.” Additionally, prior to being placed in nursing care, Miner was

Guito’s primary caregiver, and Matthew felt she did a “fine” job with Guito’s care.

{¶23} Matthew testified he did not know, prior to Guito’s death, the contents of

Guito’s will, but his father told him he would be “taken care of.” Matthew confirmed that

Miner asked him if he wanted Guito’s house before she put it up for sale and also that he

informed Miner that he did not want it. When asked if he was aware the power of attorney

gave Miner the authority to sell real estate and deposit funds into the Joint Checking

Account, Matthew stated, “I’m not aware of anything.”

{¶24} Matthew testified during deposition that Guito understood what his assets

were in 2016. At the December 2023 hearing, Matthew testified Guito’s memory “may

have been questionable” prior to that date. However, Matthew stated that in 2014, when

Guito conveyed real estate associated with the plumbing business to him via quit-claim deed, Guito’s memory was not questionable, Guito had the mental capacity to sign the

deed, and Guito understood his actions.

{¶25} Matthew testified that while he originally thought Miner took Guito to an

attorney’s office, exerted undue influence upon Guito, and committed fraud in the

inducement in making the new will, he has “no evidence” of undue influence or fraud and

“we dropped that a long time ago” because “we don’t have any evidence.” Similarly,

Matthew stated that while he originally thought Miner took Guito to the bank and

fraudulently induced Guito to place her on the Joint Checking Account, he “had no

evidence” of fraud. Further, Matthew testified that while his original complaint alleged

Miner took Guito to an attorney’s office in 2015 to obtain a new power of attorney via fraud

and undue influence, he “had no evidence” Miner was present at the attorney’s office

when Guito executed the power of attorney and “did not have any evidence” that Miner

had any involvement in the preparation of the power of attorney.

{¶26} When asked if he had any evidence Miner stole from Guito during Guito’s

lifetime, Matthew responded, “I do not.” Additionally, Matthew was aware Miner was

using the power of attorney to transact business on Guito’s behalf, and he never objected

to such use. When asked “when she [Miner] sold the real estate, are you alleging that

action was a breach of her duties to your father,” Matthew responded, “no.” Counsel

additionally asked, “when she [Miner] deposited funds into the joint account, was this a

breach of her duties to your father,” Matthew responded, “no.” Matthew specifically

testified that the only breach he alleges Miner committed was the breach that allegedly

occurred after Guito’s death, when Miner took the funds from the Joint Checking Account

and placed them into an account solely in her name. {¶27} When asked who he thought should be the executor to wrap-up Guito’s

estate, Matthew testified, “I don’t know.”

Shook Testimony

{¶28} Stephanie Shook (“Shook”) is the attorney who prepared Guito’s will and

power of attorney. Shook had been Guito’s neighbor for thirty years and knew Guito well.

Shook testified that when Guito signed these documents, Miner was not present. Shook

had no concerns about Guito’s capacity to execute either document.

Vincent Testimony

{¶29} Vincent visited Guito approximately once or twice per year both prior to

Guito being placed into the nursing facility, and after the placement. Vincent was asked

by counsel, “at this time are we going forward with any allegations of misconduct by

Connie other than the movement of the funds out of the checking account into her savings

account,” and he responded, “no.” Vincent testified Miner used the power of attorney in

2016 to transfer Guito’s car to Vincent’s wife. Vincent had no issues with Miner’s use of

the power of attorney in that capacity.

Procedural History

{¶30} The trial court requested the parties file proposed findings of facts and

conclusions of law, along with written closing arguments, which the parties each

submitted. To be sure, the trial court did not issue a ruling for over one year. Thus, on

December 17, 2024, Matthew and Vincent filed a request for status conference. The trial

court did not rule on the request but, on June 16, 2025, issued its judgment entry on the

December 12, 2023, hearing. {¶31} The trial court found Miner not guilty of concealment pursuant to R.C.

2109.50, stating there was no evidence of efforts to hide Guito’s funds. The trial court

concluded Miner’s mere possession of the funds did not constitute wrongful conduct.

{¶32} Next, the trial court found that the funds in the Joint Checking Account, apart

from the proceeds from the sale of Guito’s home, belong to Miner, because Guito’s

creation of a joint and survivorship account was conclusive evidence of Guito’s intent to

transfer the balance of the account to Miner upon his death.

{¶33} The trial court then determined Miner violated her fiduciary duties pursuant

to R.C. 1337.34(A)(1), R.C. 1337.34(A)(3), and R.C. 1337.42(B) when she sold Guito’s

home and placed the proceeds from the sale into the Joint Checking Account. The trial

court reasoned that, even if Miner’s testimony that she had no knowledge of the

survivorship nature of the bank account prior to Guito’s death was credible, the deposit

of proceeds from the sale of the home into the Joint Checking Account was a “gift,” which

was not permitted under the power of attorney document, and contradicted the clear

intention of Guito, which was to leave Miner a “small amount” in the bank account and the

$100,000 specifically bequeathed to her in the will.

{¶34} The trial court found that Miner had the authority to sell Guito’s home

pursuant to the power of attorney, and that her testimony “provided a good faith

justification” for the sale of the home. Accordingly, due to this “good faith justification,”

Miner was not liable pursuant to R.C. 1337.34(A)(4). Despite this, the trial court found

that by moving proceeds from the sale of the home into the Joint Checking Account and

claiming those funds after Guito’s death, Miner created an “interest in said proceeds that

would not have existed otherwise, via her authority as a fiduciary,” and this violated R.C. 1337.42(B). Further, the trial court found credible Miner’s testimony that she acted in

good faith at the time of the transaction; however, this did not protect her because Miner’s

actions defeated the expectations of Guito, went beyond the scope of her authority as

Guito’s agent, and were not in accordance with his estate plan. The trial court concluded

the proceeds from the sale of Guito’s home were property of the estate.

{¶35} The trial court additionally denied Matthew and Vincent’s request for

attorney fees and their request to remove Miner as executrix of Guito’s estate.

{¶36} Miner appeals the judgment entry of the Licking County Court of Common

Pleas, Probate Division, and assigns the following as error:

{¶37} “I. THE COURT ABUSED ITS DISCRETION IN FINDING DEFENDANT

CONNIE MINER LIABLE TO PLAINTIFFS FOR VIOLATING R.C. 1337.34 AND R.C.

1337.42, AS THE PLAINTIFFS EXPLICITLY ABANDONED THEIR CLAIMS

REGARDING CONNIE MINER’S CONDUCT AS DECEDENT GUITO ALIBRANDO’S

POWER OF ATTORNEY, CONCEDED THAT HER CONDUCT PRIOR TO GUITO’S

DEATH WAS APPROPRIATE, OR, ALTERNATIVELY, THE COURT’S FINDING THAT

CONNIE MINER BREACHED HER DUTY AS POWER OF ATTORNEY WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶38} Matthew and Vincent also appeal judgment entries of the Licking County

Court of Common Pleas, Probate Division, and assign the following as error:

{¶39} “I. THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE LAW OF

THE CASE DOCTRINE AND EXPEDITIOUSLY ANSWER THE FOUR QUESTIONS

POSED BY THE APPELLATE COURT ON REMAND AND IMPLEMENT THE

MANDATORY REQUIREMENTS OF OHIO REVISED CODE 2109.50, ORDERING THE PERSON HAVING THE POSSESSION OF MONEYS OF THE ESTATE TO PROMPTLY

AND WITHOUT DELAY RETURN THE MONEYS TO THE ESTATE.”

{¶40} “II. THE TRIAL COURT ERRED IN FAILING TO EXPEDITIOUSLY

IMPLEMENT THE MANDATORY REQUIREMENTS OF OHIO REVISED CODE

2109.50, ORDERING THE PERSON HAVING THE POSSESSION OF MONEYS OF

THE ESTATE TO PROMPTLY AND WITHOUT DELAY RETURN THOSE MONEYS TO

THE ESTATE.”

{¶41} “III. THE TRIAL COURT ERRED IN FAILING TO EXPEDITIOUSLY

2109.52, WHERE THE PERSON FOUND GUILTY IS THE FIDUCIARY, RENDERING

JUDGMENT IN FAVOR OF THE NEW FIDUCIARY AGAINST THE REMOVED

FIDUCIARY FOR THE AMOUNT OF THE MONEYS HELD IN POSSESSION,

TOGETHER WITH PENALTY AND COSTS AS PROVIDED IN THIS SECTION.”

{¶42} “IV. THE TRIAL COURT ERRED IN FAILING TO EXPEDITIOUSLY

2109.53, REMOVING THE FIDUCIARY, APPOINTING THE ALTERNATE FIDUCIARIES

AS STATED IN THE WILL TO CONTINUE THE ADMINISTRATIVE PROCESS,

ORDERING THE FIDUCIARY THAT IS REMOVED SHALL NOT RECEIVE

COMPENSATION FOR ACTING AS FIDUCIARY AND SHALL BE CHARGED FOR THE

AMOUNT OF THE JUDGMENT, FINDING THE FIDUCIARY’S PROPERTY LIABLE FOR

THE SATISFACTION OF THE JUDGMENT ON EXECUTION ISSUED ON THE

JUDGMENT BY THE FIDUCIARY’S SUCCESSOR.” {¶43} “V. THE TRIAL COURT ERRED IN FAILING TO EXPEDITIOUSLY

2109.54, ENTERING JUDGMENT FOR THE NEW FIDUCIARY UNDER SECTION

2109.52 OF THE REVISED CODE, DELIVERING TO THE CLERK OF THE COURT OF

COMMON PLEAS A CERTIFICATE OF THAT JUDGMENT IN ACCORDANCE WITH

SECTION 2329.04 OF THE OHIO REVISED CODE, COMPLETE AND DELIVER THE

CERTIFICATE TO THE FIDUCIARY ON DEMAND, WHERE THE CLERK WILL THEN

ISSUE AN EXECUTION OF THE COURT OF COMMON PLEAS FOR THE AMOUNT

OF THE JUDGMENT AND THE COSTS THAT HAVE ACCRUED OR THAT MAY

ACCRUE ON THE JUDGMENT WHERE PROCEEDINGS ON EXECUTION SHALL BE

THE SAME AS IF THE JUDGMENT HAD BEEN RENDERED IN THAT COURT OF

COMMON PLEAS.”

{¶44} “VI. THE TRIAL COURT ERRED IN FAILING TO ORDER PRE-

JUDGMENT INTEREST FROM FEBRUARY 19, 2019, FOR THE AMOUNT OF MONIES

WITHHELD, $207,487.90.”

{¶45} “VII. THE TRIAL COURT ERRED IN EXCLUDING THE EXPERT

WITNESS TESTIMONY OF MICHAEL JOHRENDT.”

{¶46} “VIII. THE TRIAL COURT ERRED IN FAILING TO ORDER REASONABLE

ATTORNEY FEES AND COSTS AS POINTED BY MICHAEL JOHRENDT IN THE

AMOUNT OF $67,562.75, AND COSTS TO DATE IN THE AMOUNT OF $18,955.50.”

{¶47} “IX. THE TRIAL COURT ERRED IN FAILING TO EXPEDITIOUSLY FIND

MINER, AS A FIDUCIARY, IMPROPERLY TRANSFERRED THE FUNDS FROM THE

JOINT CHECKING ACCOUNT TO HER INDIVIDUAL ACCOUNT FOR HER SOLE BENEFIT AS OPPOSED TO THE BENEFICIARIES UNDER THE WILL; MINER’S

ACTIONS WERE NOT IN GOOD FAITH; MINER FAILED TO ACT IN ACCORDANCE

WITH GUITO’S REASONABLE EXPECTATIONS; MINER FAILED TO ATTEMPT TO

PRESERVE GUITO’S ESTATE PLAN, WHICH WAS TO BEQUEATH HER $100,000

WITH THE REMAINDER TO APPELLANTS.”

{¶48} “X. THE TRIAL COURT ERRED IN FAILING TO ORDER JUDGMENT

AND PRE-JUDGMENT INTEREST FROM FEBRUARY 19, 2019, FOR THE AMOUNT

OF MONIES WITHHELD, $207,487.90, ATTORNEY FEES, AND COSTS.”

{¶49} “XI. THE TRIAL COURT ERRED IN FAILING TO REMOVE THE

EXECUTOR, AND SUBSTITUTE THE ALTERNATE EXECUTORS NAMED IN THE

DECEDENT’S WILL, DENYING THE REMOVED EXECUTOR FEES, DENYING THE

REMOVED EXECUTOR ATTORNEY FEES.”

Miner’s Assignment of Error I.

{¶50} In her sole assignment of error, Miner argues the trial court committed error

in finding her liable to Matthew and Vincent for violating R.C. 1337.34 and R.C. 1337.42

because they abandoned their claims regarding her conduct as Guito’s power of attorney

and conceded that Miner’s conduct prior to Guito’s death was appropriate. Alternatively,

that the trial court’s finding that Miner breached her duty as power of attorney was against

the manifest weight of the evidence. We agree with Miner on both arguments.

Abandonment of Claims

{¶51} Matthew and Vincent’s amended complaint included two claims: an action

for concealment and a claim for constructive trust. Three factual allegations supported

each claim: (1) Miner misused the power of attorney when she sold Guito’s home in 2018; (2) Miner misused the power of attorney when she deposited the proceeds of the home

sale into the Joint Checking Account; and (3) Miner misused the power of attorney when

she transferred the funds from Guito’s home sale from the Joint Checking Account to her

personal account after Guito’s death.

{¶52} The trial court found Miner’s act of placing the proceeds from the sale of the

home into the Joint Checking Account violated R.C. 1337.34 and R.C. 1337.42 and,

because of this violation, the funds from the home sale are assets of Guito’s estate.

{¶53} “The deliberate abandonment of any argument at trial precludes

subsequently raising the abandoned claim for the first time on appeal.” Popovich v.

Webster & Webster, L.L.P., 2014-Ohio-1825, ¶ 33 (8th Dist.); Jones v. Billingham, 105

Ohio App.3d 8 (2nd Dist. 1995) (parties abandoned claims). The testimony by both

Matthew and Vincent at the December 2023 hearing clearly establishes that they both

abandoned their claim [at trial] that Miner’s action of placing the proceeds from the sale

of the home into the Joint Checking Account violated the Uniform Power of Attorney Act

and/or her fiduciary duty.

{¶54} Matthew testified as follows:

Q. Ms. Miner sold your father’s real estate while he was alive, correct?

A. I think so.

Q. Okay. When she did that, are you alleging that action was a breach of

her duties to your father?

A. No. Q. Okay. When she deposited those funds into the account at Chase Bank

that was jointly owned by herself and your father, do you feel that was a

breach of her duties to your father?

A. No.

Q. Okay. So as you sit here today, the breach that you’re alleging in your

complaint is that she, after your father died, took money from that account

and transferred it to a different account; is that correct?

A. That’s correct. (T. at p. 130).

{¶55} Vincent testified:

Q. And so at – at this time are we going forward with any allegations of

misconduct by Connie other than the movement of the funds out of the

checking account into her savings account?

(T. at p. 187).

{¶56} Because Matthew and Vincent abandoned [at trial] the theory that Miner

misused the power of attorney when she deposited the proceeds of the home sale into

the Joint Checking Account, the trial court could not have based its decision on this theory.

Thus, the trial court abused its discretion in finding Miner violated R.C. 1337.34 and R.C.

1337.42 by placing the proceeds from the sale of Guito’s home into the Joint Checking

Account in 2018.

{¶57} Matthew and Vincent do not believe they abandoned this claim. They argue

that this Court’s Alibrando I decision prevented them from arguing this claim at trial. As

discussed below, we find the law of the case doctrine inapplicable. Further, as detailed above, Matthew, Vincent, and their counsel repeatedly and specifically stated they were

not alleging Miner violated her fiduciary duty in her placement of the funds into the Joint

Checking Account.

{¶58} Matthew and Vincent contend that, even if they abandoned the claim as to

the deposit of the funds into the Joint Checking Account, the trial court’s decision should

be affirmed because Miner violated her fiduciary duty and/or the Uniform Power of

Attorney Act by moving the funds from the Joint Checking Account to her personal

account in 2019, after Guito’s death. We disagree.

{¶59} Miner could not have violated either R.C. 1337.34 or R.C. 1337.42 several

months after Guito’s death because the power of attorney terminated upon Guito’s death.

R.C. 1337.30(A)(1) states, “a power of attorney terminates when … the principal dies.”

See also Saber Health Care v. Ohio Dept. of Job & Family Servs., 2020-Ohio-4044, ¶ 32

(4th Dist.). Guito died on December 18, 2018. Miner became aware of his death on that

date because the nursing facility immediately notified her of Guito’s death. The power of

attorney became invalid upon Guito’s death on December 18, 2018. Equally as

significant, upon Guito’s death, the Joint Checking Account became the sole property of

Miner.

{¶60} Questions surrounding reasonable expectations and whether Miner

preserved Guito’s estate plan are obligations imposed by the Uniform Power of Attorney

Act. When Miner transferred the funds from the Joint Checking Account to her personal

account, the power of attorney had expired. Miner cannot have violated her fiduciary duty

under the power of attorney when the conduct Matthew and Vincent complain of was

taken in her individual capacity and was carried out after the power of attorney terminated. No assets were concealed or taken from the estate because the funds were not estate

assets. Jaric v. Jaric, 2002-Ohio-5016 (7th Dist.).

{¶61} Matthew and Vincent argue the specific provisions of the power of attorney

provide the power of attorney extends after Guito’s death. It does not. The power of

attorney states as follows: “the death of the Principal shall not revoke the power of

attorney and authority of the Agent who, without actual knowledge of the death of the

Principal, acts in good faith under the Power of Attorney. Any action so taken, unless

otherwise invalid or unenforceable, shall insure to the benefit of and bind the Principal

and the Principal’s heirs, devisees and personal representatives.” The undisputed

testimony is that Miner learned of Guito’s death on the day he died - December 18, 2018.

Accordingly, Miner did not take any actions “without actual knowledge of the death” of

Guito. As such, the above-noted power of attorney provision extending Miner’s power

and authority thereunder is inapplicable. The evidence at the hearing establishes that the

power of attorney was no longer in effect when Miner transferred funds in 2019.

{¶62} Miner transferred the funds in 2019, without the use of the power of attorney

or her letters of authority as executrix. This is because Guito’s opening of the account in

joint and survivorship form, in the absence of fraud, duress, undue influence, or lack of

mental capacity, is conclusive evidence of his intent to transfer Miner the balance

remaining in the account at his death. Wright v. Bloom, 69 Ohio St.3d 596, 596 (1994).

Likewise, the “survivorship rights under a joint and survivorship account of the co-party or

co-parties to the sums remaining on deposit at the death of the depositor may not be

defeated by extrinsic evidence that the decedent did not intent to create in such surviving

party or parties a present interest in the account during the decedent’s lifetime.” Id. Here, there is no evidence of fraud, undue influence, or lack of mental capacity of Guito in

November of 2013, when he added Miner to the account in a joint and survivorship

capacity. “The creation of a joint and survivorship account is a contractual arrangement

between the bank and the depositors.” Wiehe v. JPMorgan Chase Bank, N.A., 2025-

Ohio-3308, ¶ 42 (5th Dist.). Upon Guito’s death, the Joint Checking Account became

Miner’s property, a non-probate asset, pursuant to the contractual arrangement Guito had

with the bank. Wright, 69 Ohio St.3d at 596 (joint and survivorship presumption “serves

to establish the surviving party’s right to the sums remaining on deposit at the depositor’s

death as against the estate of the depositor”).

Manifest Weight of the Evidence

{¶63} Miner contends that, even if Matthew and Vincent did not abandon their

claim, the trial court’s finding that Miner’s act of placing the proceeds from the home sale

in the Joint Checking Account violated R.C. 1337.34 and R.C. 1337.42 is against the

manifest weight of the evidence. We agree.

{¶64} In Eastley v. Volkman, 132 Ohio St.3d 328 (2012), the Supreme Court of

Ohio clarified the standard of review appellate courts should employ when assessing the

manifest weight of the evidence in a civil case, and held the standard of review for

manifest weight of the evidence for criminal cases stated in State v. Thompkins, 78 Ohio

St.3d 380 (1997), is also applicable in civil cases. A reviewing court is to examine the

entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses and determine “whether in resolving conflicts in the evidence, the finder

of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered.” Id. at 387. “In a civil case, in which the burden of persuasion is only by a preponderance of the evidence, rather than beyond

a reasonable doubt, evidence must still exist on each element (sufficiency) and the

evidence on each element must satisfy the burden of persuasion (weight).” Eastley, 132

Ohio St.3d at 334.

{¶65} Under well-established law, as an appellate court, we are not fact finders;

we neither weigh the evidence nor judge the credibility of the witnesses. Further, “an

appellate court should not substitute its judgment for that of the trial court when there

exists … competent and credible evidence supporting the findings of fact and conclusions

of law.” Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

{¶66} The trial court found that Miner’s transfer of the funds from the sale of

Guito’s home into the Joint Checking Account violated R.C. 1337.34(A)(1), R.C.

1337.34(A)(3), and R.C. 1337.42(B).

{¶67} We first note that the trial court’s decision is against the manifest weight of

the evidence due to the testimony of both Matthew and Vincent. As detailed above,

Matthew testified that, when Miner deposited the funds into the Joint Checking Account,

Miner did not breach her fiduciary duties to Guito, and the only breach he (Matthew) is

alleging is the alleged breach that occurred when Miner took the money from the Joint

Checking Account after Guito’s death and placed it into her personal account. Similarly,

Vincent testified that he was not going forward with any allegations of misconduct by

Miner other than the movement of the funds out of the Joint Checking Account into her

personal savings account.

{¶68} The trial court found Miner failed to “act in accordance with the principal’s

reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest” because Guito’s will demonstrates Guito intended to leave Miner

$100,000, “as well as the remainder of the relatively small sum that would have been left

in his bank account.” However, there was no evidence presented at the December 2023

hearing that Guito intended to leave Miner only “a relatively small sum that would have

been left in his bank account.”

{¶69} The signature card on the Joint Checking Account establishes Guito’s

conclusive intent to transfer the entire balance of the account to Miner upon his death.

The power of attorney specifically permitted Miner to sell the house and place the

proceeds into a joint account. Miner testified to the pattern she established with Guito

over twenty years ago that she would use the funds in the Joint Checking Account to pay

for his monthly bills and expenses. Miner testified that Guito wanted and needed to be

taken care of prior to leaving anything to anyone in the will, and Guito understood that his

funds would go to pay his expenses, such as the nursing home, prior to any funds being

left pursuant to his will.

{¶70} Additionally, upon selling the home, Miner stopped taking money out of the

Annuity Account to pay for Guito’s monthly expenses. The money from the Annuity

Account ultimately ended up in Guito’s estate, thus preserving his estate plan and

reasonable expectations.

{¶71} Likewise, there was no evidence adduced at the hearing that Miner was not

acting in Guito’s best interest when she sold the home and placed the funds into the Joint

Checking Account. Further, to the extent that Miner had to rebut any presumption of

undue influence or fraud with evidence of fairness of the transaction, the undisputed

testimony of Miner also demonstrated the fairness of the transaction. She asked both Matthew and Vincent if they wanted the home before she sold it; they declined. She sold

the home because she could no longer insure the home due to it being vacant, and

because the house was falling into disrepair - needing to be fixed. Additionally, Miner

stated that Matthew took care of the home’s lawn but no longer wanted to do so. Miner’s

undisputed testimony (which the trial court specifically found credible) was that she was

using the money in the Joint Checking Account for Guito’s care and was preserving the

funds she had been using from the Annuity Account for his estate. Miner’s undisputed

testimony was also that the Joint Checking Account was the only account she ever utilized

in the over twenty years she helped Guito with his finances.

{¶72} The trial court’s judgment entry indicates that, had Guito lived longer and

depleted the funds from the sale of the home, Miner would not have violated R.C.

1337.34(A)(1). Perhaps if there was some evidence at the hearing that Miner sold the

home and placed the proceeds into the Joint Checking Account knowing that Guito’s

death was imminent, there may be competent and credible evidence to support the trial

court’s decision. However, at the hearing there was no evidence presented of Guito’s

imminent demise. Neither Matthew nor Vincent had seen their father in the months before

his death. Miner testified that, while Guito had dementia and had good days and bad

days, he recognized her the day before he died, and she heard nothing from the staff at

the nursing facility to make her think that Guito’s death was imminent. Certainly, there

was no such evidence at the time of the home sale in 2018. Miner anticipated that Guito

would continue to need long-term care for dementia. {¶73} Accordingly, the trial court’s finding that Miner violated R.C. 1337.34(A)(1)

by placing the funds from the sale of Guito’s home into the Joint Checking Account is not

supported by competent and credible evidence.

{¶74} The trial court also found Miner violated R.C. 1337.34(A)(3) and R.C.

1337.42(B) because Miner acted outside the scope of the power of attorney by “gifting”

herself the funds from the proceeds of the house.

{¶75} “A power of attorney is a written instrument authorizing an agent to perform

specific acts on behalf of his principal.” Testa v. Roberts, 44 Ohio App.3d 161, 164 (6th

Dist. 1998). The power of attorney executed by Guito specifically permitted Miner to “sell

… any property whatsoever, real or personal … upon such terms considerations and

conditions” as Miner thought proper. It also specifically permitted Miner to “deposit and

withdraw … in either my said Agent’s name or my name, or jointly in both our names, in

or from any banking institution, any funds, negotiable paper or moneys which may come

into my said Agent’s hands as such Agent, or which I now or hereafter may have on

deposit or be entitled to.”

{¶76} The trial court found that, despite Miner’s credible testimony that she did not

know that funds in the Joint Checking Account would go to her upon Guito’s death, Miner

violated R.C. 1337.34(A)(3) and R.C. 1337.42(B) because, despite any good faith belief

held by Miner, she “gifted” herself the funds from the home by placing the funds into the

Joint Checking Account. However, there was no competent and credible evidence at the

hearing to support the trial court’s finding that Miner’s placement of the funds into the

Joint Checking Account was a “gift” to herself. Miner’s intent, which was readily evident,

was to use the funds for Guito’s continued care. {¶77} Miner testified she asked both Matthew and Vincent if they wanted the

house; they both declined. Matthew confirmed that Miner asked him if he wanted the

house and he declined. Both Matthew and Vincent testified that, at the time the home

was sold, Guito needed full-time nursing care due to his dementia. Miner testified that

she did not know the funds in the Joint Checking Account would go to her upon Guito’s

death. Additionally, Miner’s undisputed testimony is that the funds from the sale of the

home were being used to pay Guito’s monthly expenses. The trial court specifically found

this testimony credible; thus, Miner lacked the donative intent required for a gift at the

time she placed the funds from the sale of the home into the Joint Checking Account.

Wood v. Wade, 1986 Ohio App. LEXIS 6401, at * 4 (5th Dist. April 14, 1986) (donative

intent required for gift).

{¶78} Because there is not competent and credible evidence to support the trial

court’s determination that Miner’s transfer of the funds into the Joint Checking Account

was a gift, Miner did not act outside the scope of the authority given to her by the power

of attorney, and did not exercise authority under the power of attorney to create an interest

in Guito’s property via a gift to herself. The trial court’s finding that Miner violated R.C.

1337.34(A)(3) and R.C. 1337.42(B) is against the manifest weight of the evidence.

{¶79} Upon our review, Miner’s first assignment of error is sustained. The trial

court abused its discretion in finding Miner violated the Uniform Power of Attorney Act

when she transferred the funds from the home sale into the Joint Checking Account

because Matthew and Vincent abandoned this claim at the hearing. Alternatively, we find

there was not competent and credible evidence presented at the hearing that Miner

violated the Uniform Power of Attorney Act by placing the funds from the home sale into the Joint Checking Account. We find the disputed funds ($207,487.90) are non-probate

assets that passed to Miner pursuant to the contract Guito established with the bank when

he added Miner to the account in 2013 in a joint and survivor capacity. Accordingly, these

funds were not required to be included in the final account in Guito’s estate.

Matthew and Vincent’s Assignment of Error I.

{¶80} In their first assignment of error, Matthew and Vincent contend the trial court

violated the law-of-the-case doctrine because the trial court failed to answer the four

questions Matthew and Vincent allege this Court ordered [in Alibrando I] the trial court to

answer in “deciding whether to implement R.C. 2109.50.” We disagree.

{¶81} The law-of-the-case doctrine provides, “the decision of the reviewing court

in a case remains the law of the case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio

St.3d 1, *3 (1984). “The doctrine is considered to be a rule of practice rather than a

binding rule of substantive law and will not be applied so as to achieve unjust results.” Id.

at *4; R.G. v. N.G., 2022-Ohio-1886, ¶ 13 (5th Dist.). Whether the trial court properly

applied the law-of-the-case doctrine presents a question of law to which a de novo

standard of review applies. Giancola v. Azem, 2018-Ohio-1694.

{¶82} “The doctrine of the law of the case comes into play only with respect to

issues previously determined.” Quern v. Jordan, 440 U.S. 332 (1979). In the first appeal,

we did not “conclusively determine” that Miner had a fiduciary duty pursuant to the power

of attorney after Guito’s death, that Miner violated any fiduciary duty she had before

Guito’s death, that Miner violated any duty contained in R.C. Chapter 1337, or that she

concealed assets. Rather, we held that the trial court committed error in granting summary judgment because genuine issues of material fact [then] existed as to Matthew

and Vincent’s claims against Miner, and we found the trial court judge failed to properly

analyze all the issues before rendering summary judgment. We merely listed example

questions demonstrating the existence of genuine issues of material fact. However, there

was no “mandate” that the trial court answer these questions and no conclusive

determination with respect to the legal issues in the case. Accordingly, the law of the

case doctrine is not applicable. Giancola v. Azem, 2018-Ohio-1694.

{¶83} Additionally, it would have been illogical for this Court to have ordered the

trial court to answer only four questions upon remand because we specifically found that

Matthew and Vincent should have been permitted to amend their complaint to add a claim

for constructive trust (“the trial court erred in denying appellants’ motion to amend their

complaint”). Alibrando I. When Matthew and Vincent filed their amended complaint, the

amended complaint superseded the original complaint. Mercer v. Keane, 2021-Ohio-

1576, ¶ 38 (5th Dist.). Upon remand, the parties conducted additional discovery on the

amended complaint without objection from either Miner, Matthew, or Vincent. After this

extensive discovery, the trial court conducted a hearing/trial, and issued findings of fact

and conclusions of law that did not violate this Court’s previous opinion in Alibrando I.

{¶84} Upon our de novo review, we find the trial court did not violate the law-of-

the-case doctrine. Matthew and Vincent’s first assignment of error is overruled.

Matthew and Vincent’s Assignments of Error II., III., IV., and V.

{¶85} In Matthew and Vincent’s second, third, fourth, and fifth assignments of

error, they contend the trial court erred in finding Miner not guilty of concealment, and in failing to implement the provisions of the Ohio Revised Code relating to concealment

(R.C. 2109.50, R.C. 2109.52, R.C. 2109.53, and R.C. 2109.54).

{¶86} Matthew and Vincent contend the trial court improperly held that they were

required to demonstrate fraud and/or undue influence in order to find Miner guilty of

concealment. Further, that, upon finding the proceeds from the sale of the real property

belonged to Guito’s estate, the trial court had a “mandatory duty” to apply R.C. 2109.50.

{¶87} As detailed above, we find the trial court committed error in finding the

proceeds from the sale of the real property belonged to Guito’s estate. Rather, the

proceeds from the sale of the home became Miner’s upon Guito’s death because they

were in a joint and survivorship account. Pursuant to R.C. 2109.50, in order to find a

person guilty of concealment, the money or property allegedly concealed or conveyed

away must be property of the estate. The Supreme Court of Ohio has determined that

an interested person states an actionable cause of action under R.C. 2109.50 with a two-

prong test: (1) the asset is the exclusive property of the estate and (2) the defendant has

unauthorized possession of the asset or in some way has impermissibly disposed of it.

Goldberg v. Maloney, 2006-Ohio-5485, ¶ 35. Because the funds at issue were not

property of the estate, the first prong of the inquiry is not met, and Matthew and Vincent

do not state a viable cause of action under R.C. 2109.50.

{¶88} Further, the trial court properly cited the concealment law. The trial court

did not require evidence of fraud and/or undue influence for a finding of concealment, as

previously prohibited by this Court in Gustafson v. Miller, 2015-Ohio-5515 (5th Dist.). The

trial court correctly found that while Matthew and Vincent did not have to demonstrate any

fraud or undue influence, they did have to establish “wrongful conduct,” by a preponderance of the evidence. In re Estate of Harmon, 2016-Ohio-2617 (5th Dist.);

Goldberg, 2006-Ohio-5486 at ¶ 36. Because of the quasi-criminal nature of the

concealment statute, “wrongful or culpable conduct on the part of the person accused is

an element of the offense, which must be proven by a preponderance of the evidence.”

Estate of DeChellis v. DeChellis, 2019-Ohio-3078, ¶ 25 (5th Dist.). Thus, a complainant

must prove more than “mere possession” of the estate assets. Id.

{¶89} We find there is competent and credible evidence to support the trial court’s

finding that Matthew and Vincent did not show, by a preponderance of the evidence, that

Miner acted “wrongfully.” The trial court found Miner’s testimony credible that she did not

know the funds in the Joint Checking Account would be hers upon Guito’s death. Matthew

and Vincent did not provide any evidence to dispute Miner’s testimony.

{¶90} Matthew and Vincent based their concealment claim on three different

actions by Miner: (1) Miner violated the Uniform Power of Attorney Act when she utilized

the power of attorney to sell Guito’s home; (2) Miner violated the Uniform Power of

Attorney Act when she deposited the proceeds from the sale of Guito’s home into the

Joint Checking Account; and (3) Miner violated the power of attorney when she

transferred the funds from the Joint Checking Account to her personal account after

Guito’s death. As detailed above, Matthew and Vincent abandoned their claims to (1)

and (2) at the hearing. Alternatively, the trial court’s finding that Miner violated the Uniform

Power of Attorney Act by placing the proceeds from the home sale into the Joint Checking

Account is not supported by competent and credible evidence. Thus, neither actions (1)

nor (2) can form the basis of any wrongful or culpable conduct by Miner – a prerequisite

of liability for concealment. As to action (3), there is no dispute that the Joint Checking Account was a survivorship account co-owned by Guito and Miner. We detailed above

that, due to this joint and survivorship designation, the funds are not estate assets. R.C.

2109.50 limits concealment proceedings to cases in which a person is suspected of

concealing funds “of such estate.” Jaric v. Jaric, 2002-Ohio-5016 (7th Dist.). The funds

passed to Miner upon Guito’s death as a non-probate asset. Thus, action (3) likewise

cannot form the basis of any wrongful or culpable conduct by Miner – a prerequisite of

liability for concealment.

{¶91} Matthew and Vincent’s second, third, fourth, and fifth assignments of error

are overruled.

Matthew and Vincent’s Assignment of Error VI.

{¶92} In Matthew and Vincent’s sixth assignment of error, they contend the trial

court erred in failing to order pre-judgment interest for the amount of monies withheld

($207,487.90).

{¶93} This assignment of error is predicated upon a finding that Miner is guilty of

concealment and/or that a constructive trust should be imposed due to conversion.

Because we affirm the trial court’s finding that Miner was not guilty of concealment and

affirm the trial court’s decision not to impose a constructive trust – see below, we likewise

overrule this assignment of error.

Matthew and Vincent’s Assignment of Error VII.

{¶94} In their seventh assignment of error, Matthew and Vincent argue the trial

court committed error in excluding the expert witness testimony of Michael Johrendt.

{¶95} A trial court has broad discretion in the admission or exclusion of evidence.

Huffman v. Pioneer Basement Water Proofing Co., 2008-Ohio-7032, ¶ 33 (5th Dist.). A trial court has discretion to set a deadline by which the parties must disclose their expert

witnesses, and to enforce its order by excluding all testimony from experts not disclosed

by the deadline. Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged, 15 Ohio St.3d

44, 45-46 (1984). An abuse of discretion connotes more than an error of judgment; it

implies that the trial court’s attitude was arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶96} We find no abuse of discretion in the trial court’s exclusion of Johrendt as

an expert witness. Johrendt was disclosed after the deadline of August 15, 2023, and

was not a rebuttal witness.

{¶97} Additionally, any exclusion of Johrendt’s report was harmless error. At his

deposition, Johrendt testified he sought to testify regarding whether Miner had a fiduciary

duty to Matthew and Vincent and regarding reasonable attorney fees arising from a

concealment violation. However, the existence of a duty is a question of law for the court

to decide. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). Further, the trial court

denied Matthew and Vincent’s request for attorney fees based upon the not guilty finding

on the concealment claim and the lack of bad faith by Miner. Thus, no substantial right

of the parties was affected because the trial court would have reached the same decision

had the error not occurred. Civil Rule 61.

{¶98} Matthew and Vincent’s seventh assignment of error is overruled.

Matthew and Vincent’s Assignment of Error VIII.

{¶99} In their eighth assignment of error, Matthew and Vincent contend the trial

court erred in failing to award them reasonable attorney fees and costs, as Johrendt

opined the legal services were reasonable and necessary. {¶100} We review the probate court’s award or lack of award of attorney fees for

an abuse of discretion. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991).

{¶101} Ohio has long adhered to the “American Rule” with respect to recovery of

attorney fees: a prevailing party in a civil action may not recover attorney fees as part of

the costs of the litigation. Exceptions to this rule include the existence of a statute or

enforceable contract specifically providing for the recovery of attorney fees, or if the

prevailing party can establish bad faith or malice on the part of the losing party. Fox v.

City of Pataskala, 2018-Ohio-1592, ¶ 32 (5th Dist.). An award of attorney fees in a

concealment action is proper upon a finding of guilty or a showing of bad faith. R.C.

2109.52. However, mere possession of an estate asset does not constitute concealment

and is insufficient to award attorney fees. In re Estate of Schoeneman, 2011-Ohio-5243,

¶ 19 (5th Dist.).

{¶102} In this case, because Miner is not guilty of concealment, there is no statute

providing for the recovery of attorney fees. Further, there is no showing that Miner acted

in bad faith. Finally, due to our decision on Miner’s cross-appeal, Matthew and Vincent

are not the prevailing parties. Accordingly, the trial court did not abuse its discretion in

denying Matthew and Vincent’s request for attorney fees.

{¶103} Matthew and Vincent’s eighth assignment of error is overruled.

Matthew and Vincent’s Assignment of Error IX.

{¶104} In their ninth assignment of error, Matthew and Vincent argue the trial court

committed error in not finding Miner violated her fiduciary duty and/or the Uniform Power

of Attorney Act when she transferred the funds from the Joint Checking Account to her

personal account after Guito’s death. Matthew and Vincent contend when Miner made this transfer, her actions were not in good faith, she failed to act in accordance with Guito’s

reasonable expectations, and Miner failed to attempt to preserve Guito’s estate plan.

{¶105} As analyzed above, the power of attorney terminated on December 18,

2018, as Miner found out about Guito’s death that day. Because the power of attorney

terminated, Miner cannot be held liable for violating the Uniform Power of Attorney Act

two months after Guito’s death, and she had no fiduciary duty based on that terminated

power of attorney. There is no dispute that the Joint Checking Account was a joint and

survivorship account. Upon his death, the funds in the account became the sole property

of Miner, and they are not estate assets.

{¶106} Miner did not transfer the funds in her capacity as executrix of the estate,

because funds in a joint and survivorship accounts are not probate assets. At the point

Miner transferred the funds, she was simply transferring her funds located in one bank

account to another bank account in her name.

{¶107} Matthew and Vincent’s ninth assignment of error is overruled.

Matthew and Vincent’s Assignment of Error X.

{¶108} Matthew and Vincent’s tenth assignment of error is duplicative of their sixth

and eighth assignments of error – that the trial court committed error in not awarding

prejudgment interest, attorney fees, and costs, to Matthew and Vincent.

{¶109} For the reasons stated in assignments of error six and eight, Matthew and

Vincent’s tenth assignment of error is overruled.

Matthew and Vincent’s Assignment of Error XI.

{¶110} In Matthew and Vincent’s final assignment of error, they argue the trial court

committed error by failing to remove Miner as executrix of the estate pursuant to R.C. 2113.18. They also argue the trial court committed error in failing to place a constructive

trust on the disputed funds ($207,487.90) because the “abuse of trust” by Miner as Guito’s

fiduciary when utilizing his power of attorney creates an equitable remedy. We disagree.

Removal of Executor

{¶111} R.C. 2113.18(A) provides, “the probate court may remove any executor or

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

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

the executor or administrator and the estate or persons interested in the estate.”

“Removal of the executor under R.C. 2113.18 is clearly discretionary with the trial court.”

In re Estate of McCauley, 2014-Ohio-2291, ¶ 11 (5th Dist.). Abuse of discretion is more

than an error of law or judgment; it implies the court’s attitude is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶112} We find no abuse of discretion in the trial court’s denial of the motion to

remove executor. The parties disagreed on the handling of one asset or sum of money,

the proceeds from the sale of Guito’s house. There was no conflict in the handling of the

remainder of Guito’s estate. In re Estate of McCauley, 2014-Ohio-2291 (5th Dist.).

Importantly, though the trial court did not remove Miner as the executrix of Guito’s estate,

the trial court ordered all assets of Guito’s estate, including the disputed funds at issue

($207,487.90), be placed into the IOLTA account of Miner’s attorney during the pendency

of this case. When asked at the hearing what he felt the court should do about “who’s

going to be the executor to finish up [Guito’s] estate,” Matthew testified, “I don’t know.”

We additionally note that, pursuant to both Miner’s testimony and the final account filed

in Guito’s estate, she did not take any fiduciary fees as executrix of Guito’s estate. Constructive Trust

{¶113} A constructive trust is an equitable remedy that protects against unjust

enrichment and is usually invoked when property has been obtained by fraud. Estate of

Cowling v. Estate of Cowling, 2006-Ohio-2418. However, “a constructive trust may also

be imposed where it is against the principles of equity that the property be retained by a

certain person even though the property was acquired without fraud.” Ferguson v.

Owens, 9 Ohio St.3d 223, 226 (1984). The party seeking to have a constructive trust

imposed bears the burden of proof by clear and convincing evidence. Cowling, 2006-

Ohio-2418 at ¶ 20. Accordingly, the question is whether Matthew and Vincent presented

clear and convincing evidence of an inequitable situation or that unjust enrichment would

result if Miner retained the disputed funds.

{¶114} Matthew and Vincent based their constructive trust claims on the same

three factual allegations as their concealment claim: (1) Miner’s actions of selling Guito’s

house violated the Uniform Power of Attorney Act; (2) Miner’s action of placing the funds

from the sale of the home into the Joint Checking Account violated the Uniform Power of

Attorney Act; and (3) Miner’s actions in 2019 of transferring the funds from the Joint

Checking Account to her personal account violated the Uniform Power of Attorney Act.

The trial court did not impose a constructive trust pursuant to any of these factual

allegations.

{¶115} We find no error in the trial court’s determination. As analyzed above,

Matthew and Vincent abandoned their claim that Miner’s action of selling Guito’s home

violated the Uniform Power of Attorney Act. Further, the power of attorney specifically

provided Miner with the power to sell Guito’s real estate. Matthew and Vincent additionally abandoned at the hearing their claim that Miner’s action of placing the funds

from the sale of the home into the Joint Checking Account violated the Uniform Power of

Attorney Act. Alternatively, any finding that Miner violated the Uniform Power of Attorney

Act by placing the home sale proceeds into the Joint Checking Account is against the

manifest weight of the evidence. Finally, Miner’s transfer in 2019 was not pursuant to the

power of attorney because the power of attorney was terminated upon Guito’s death in

December of 2018. Likewise, the transfer was not made pursuant to her position as

executrix of Guito’s estate. Thus, Miner had no fiduciary duty to Guito with regards to the

disputed funds. Her transfer of the funds from herself to herself in 2019 did not violate

any duty to Guito. No unjust enrichment or inequitable situation results from Miner’s

keeping the disputed funds. This is because the funds contained in the Joint Checking

Account were properly distributed to Miner pursuant to the contract Gutio created with the

bank when he made the account a joint and survivorship account in 2013.

{¶116} Accordingly, the trial court did not commit error in failing to impose a

constructive trust on the disputed funds. Matthew and Vincent’s eleventh assignment of

error is overruled.

Conclusion

{¶117} Based on the foregoing, Miner’s assignment of error is sustained. The trial

court committed error in finding Miner’s action of placing the funds from the home sale

into the Joint Checking Account in July of 2018 violated Miner’s fiduciary duty as imposed

by the Uniform Power of Attorney Act because the claims were abandoned at the hearing

and/or the finding of violations of the Uniform Power of Attorney Act was against the

manifest weight of the evidence. {¶118} Matthew and Vincent’s assignments of error are overruled. We find the

disputed funds ($207,487.90) are non-probate assets that properly passed to Miner

pursuant to the contract Guito established with the bank when he added Miner to the

account in 2013 in a joint and survivor capacity. Accordingly, these funds were not

required to be included in the final account in Guito’s estate.

For the reasons stated in our Opinion, the judgment of the Licking County Court of

Common Pleas, Probate Division, is affirmed in part and reversed and remanded in part

for proceedings consistent with this opinion.

Costs to Appellants/cross-Appellees, Matthew and Vincent Alibrando,

By: Popham, J.

King, P.J. and

Montgomery, J., concur