[Cite as In re Estate of Boggs v. Todd, 2025-Ohio-1947.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
IN THE MATTER OF: ESTATE OF : DOROTHY K. BOGGS : : C.A. No. 2024-CA-23 RUBY ANN SOWRY, EXECUTOR : : Trial Court Case No. 90684-A Appellant : : (Appeal from Common Pleas Court- v. : Probate Division) : MARY LISA TODD :
Appellee
...........
OPINION
Rendered on May 30, 2025
WILLIAM M. HARRELSON, II & ROBERT M. HARRELSON, Attorneys for Appellant
TERRY W. POSEY, JR., GREGORY M. GANTT, & ERIK R. BLAINE, Attorneys for Appellee
.............
LEWIS, J.
{¶ 1} Plaintiff-Appellant Ruby Ann Sowry, as executor of the estate of Dorothy K.
Boggs, appeals from an order of the Miami County Court of Common Pleas, Probate
Division, which granted summary judgment to Defendant-Appellee Mary Lisa Todd on
Sowry’s complaint. For the following reasons, we will affirm the judgment of the trial
court. -2-
I. Course of Proceedings
{¶ 2} On August 19, 2020, Sowry, as executor of the estate of her mother, Dorothy
K. Boggs, filed a complaint in the probate court against her sister, Todd. According to
the complaint, while Boggs was alive, Todd removed, concealed, converted, embezzled,
or otherwise improperly took control of nearly $100,000 that was contributed solely by
Boggs to multiple joint bank accounts. The complaint sought declarations that the
money Todd transferred out of these joint accounts was an asset of Boggs’s estate.
{¶ 3} Todd filed an answer to the complaint and a motion for judgment on the
pleadings, which the trial court overruled. Todd filed a notice of appeal, but we dismissed
the appeal for lack of a final, appealable order.
{¶ 4} On November 5, 2021, Sowry moved for summary judgment on the
complaint. According to the motion, Todd had admitted to transferring certain funds,
which had been contributed solely by Boggs, from joint bank accounts in the names of
Boggs and Todd to bank accounts solely in Todd’s name. These transfers occurred
before Boggs’s death. Therefore, Sowry argued Todd had forfeited her survivorship
rights to the funds, which converted the funds to an asset of Boggs’s estate. The motion
requested that the trial court impose a constructive trust over the funds Todd had
transferred from the joint bank accounts to her own individual bank accounts.
{¶ 5} After communicating several times by text message, Todd and Sowry had a
90-minute telephone conversation on November 13, 2021, to discuss the litigation.
During their discussion, the sisters orally agreed to settle the matter, and Todd’s husband -3-
prepared a written document to memorialize what he understood to be their wishes. As
a result, on November 19, 2021, Todd filed a motion to enforce a settlement agreement.
The magistrate sustained the motion. Sowry filed objections to the magistrate’s decision.
The trial court overruled the objections and granted Todd’s motion to enforce the
settlement agreement. Sowry filed a notice of appeal.
{¶ 6} On April 18, 2023, we reversed the trial court’s judgment. We concluded
that “Todd did not provide any benefit to Sowry, nor did she incur a detriment in exchange
for Sowry’s promises.” Sowry v. Todd, 2023-Ohio-1162, ¶ 47 (2d Dist.). Therefore, the
purported settlement agreement lacked consideration, which precluded the enforcement
of the agreement. We reversed the judgment and remanded the matter for further
proceedings. Todd filed a notice of appeal to the Ohio Supreme Court, which declined
to accept jurisdiction. Sowry v. Todd, 2023-Ohio-2972.
{¶ 7} After our remand, Todd filed a memorandum in opposition to Sowry’s motion
for summary judgment and a cross-motion for summary judgment. According to Todd,
all of the transfers from the joint bank accounts had been made at the express direction
of Boggs. Sowry opposed Todd’s cross-motion, arguing that Todd’s affidavit and
deposition testimony were self-serving and could not be used on summary judgment
without corroborating evidence.
{¶ 8} The magistrate denied both of the summary judgment motions. Sowry filed
objections to the magistrate’s decision, and Todd filed a memorandum opposing the
objections and asking the trial court to grant judgment in Todd’s favor. Due to
irregularities in how the magistrate’s order was issued, the trial court remanded the matter -4-
to the magistrate to issue a proper magistrate’s decision. Around that same time, Sowry
filed a motion seeking additional discovery pursuant to Civ.R. 56(F). The trial court
granted the motion, and the parties conducted additional discovery, including taking the
deposition of Shirley Hughes, a friend of Boggs’s who eventually became Boggs’s
caretaker.
{¶ 9} After completing additional discovery, the parties supplemented their
summary judgment briefing. The magistrate denied Sowry’s motion for summary
judgment and granted Todd’s motion for summary judgment. Sowry filed objections to
the magistrate’s decision. On September 3, 2024, the trial court overruled Sowry’s
objections, denied Sowry’s motion for summary judgment, and granted Todd’s motion for
summary judgment. Sowry filed a timely notice of appeal.
II. The Trial Court Did Not Err in Granting Summary Judgment to Todd
{¶ 10} Sowry’s first and fourth assignments of error are interrelated, and we will
address them together. These two assignments of error state:
The Trial Court committed reversible error in determining that the
imposition of a constructive trust under Cowling requires proof of an
“inequitable result” from the transaction beyond Appellee’s mere act of
withdrawing funds in excess of those she contributed.
The Trial Court committed reversible error in determining that there
existed no genuine issue of material fact and that Appellee was entitled to
summary judgment; instead, summary judgment should have been granted -5-
to Appellant.
{¶ 11} “When reviewing a decision granting summary judgment, we apply a de
novo standard of review.” State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals,
2020-Ohio-2973, ¶ 8, citing Esber Beverage Co. v. Labatt USA Operating Co., L.L.C.,
2013-Ohio-4544, ¶ 9. Summary judgment is appropriate when “ ‘(1) [n]o genuine issue
as to any material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) it appears from the evidence that reasonable minds can come
to but one conclusion, and viewing such evidence most strongly in favor of the party
against whom the motion for summary judgment is made, that conclusion is adverse to
that party.’ ” Id., quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶ 12} The moving party carries the initial burden of affirmatively demonstrating
that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 115 (1988). To this end, the movant must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). “The substantive law
of the claim or claims being litigated determines whether a fact is ‘material.’ ” Perrin v.
Cincinnati Ins. Co., 2020-Ohio-1405, ¶ 29 (2d Dist.), citing Herres v. Millwood
Homeowners Assn., Inc., 2010-Ohio-3533, ¶ 21 (2d Dist.).
{¶ 13} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is -6-
a genuine issue of material fact for trial. Dresher at 293, citing Civ.R. 56(E). “[I]f the
nonmovant does not so respond, summary judgment, if appropriate, shall be entered
against the nonmoving party.” Id. “ ‘When reviewing a motion for summary judgment,
a court must be careful not to weigh the evidence or judge the credibility of witnesses. . . .
Instead, it must consider all of the evidence and reasonable inferences that can be drawn
from the evidentiary materials in favor of the nonmoving party.’ ” McDaniel v. Daly, 2008-
Ohio-2080, ¶ 74 (2d Dist.), quoting Cox v. Barsplice Products, Inc., 2001 WL 669336, *1
(2d Dist. June 15, 2001).
{¶ 14} In its judgment overruling the objections and granting summary judgment to
Todd, the trial court explained that Sowry, as the party seeking to have a constructive
trust imposed, bore the burden of producing clear and convincing evidence justifying it.
According to the trial court, “[i]n this case, when looking at equity considerations, there is
not even a hint or suggestion of any concealment, conversion, embezzlement, improper
taking nor fraud. In fact, it is undisputed that had [Todd] not removed the money from
the joint accounts she held with [Boggs], it would have passed to her as a joint account
owner immediately upon [Boggs’s] death.” Judgment (Sept. 3, 2024), p. 5. Based on
its review of the deposition testimony and affidavits, the trial court stated that “[n]othing
[Todd] did removing money from the joint accounts with her mother impacted whatsoever
what [Sowry] received after her mother’s death. [Sowry] got one-half and her sister got
one-half of [Boggs’s] money.” Id. Therefore, “[r]easonable minds could only conclude
that [Boggs] intended both daughters to have half of the cash accounts each. There is
no evidence that the decedent ever intended that these funds should be part of her -7-
estate.” Id. The trial court concluded that Todd “presented Civ.R. 56(C) evidence that
she was co-owner of the funds in the joint accounts with [Boggs] and was authorized by
[Boggs] to withdraw the funds from the joint accounts when she made the withdrawals in
question. [Boggs] never objected to the removal of the money from her joint account
with [Todd] to [Todd’s] sole account.” Id. at 6. As a result, the trial court granted
summary judgment to Todd on Sowry’s complaint and denied Sowry’s motion for
summary judgment.
{¶ 15} Before determining whether the trial court erred in granting Todd’s motion
for summary judgment and overruling Sowry’s motion for summary judgment, we will
summarize the testimony of Hughes and Todd.
a. Deposition Testimony
{¶ 16} Shirley Hughes was deposed on April 24, 2024. She had been Boggs’s
neighbor for several years before Boggs died. A couple of years before Boggs died and
after Boggs’s husband had passed away, Hughes began mowing Boggs’s yard for her
and occasionally took food to her. Approximately 18 months before Boggs died, Hughes
began doing additional tasks for Boggs and spending more time with her. She eventually
became Boggs’s caretaker. While she was in the caretaker role, Boggs wrote her checks
at the rate of $15 per hour for her assistance. Hughes considered Boggs a friend.
{¶ 17} Hughes was aware that Sowry shared joint bank accounts with Boggs
because Sowry’s name was on the checks that Boggs wrote Hughes to pay her for
mowing the lawn. Hughes observed Boggs reviewing her bank statements, but Boggs -8-
never discussed anything with Hughes regarding the bank statements.
{¶ 18} Boggs asked Hughes to accompany her to a couple of banks one day so
that Boggs could “make things right with [Todd].” Todd and her husband also
accompanied Boggs and Hughes to the banks. The first bank they went to was Fifth
Third Bank. There, Hughes heard Boggs tell the bank employee to put all of the money
in Todd’s name. According to Hughes, Todd said, “no, Mom, make it fair if you’re going
to do it.” The bank representative then asked Boggs how much to put in Todd’s name,
and Boggs responded “half.” Hughes also accompanied Boggs into the Wright-Patt
Credit Union later that day but did not pay much attention to what was said at that bank.
At the time Boggs and Hughes went to the banks, Boggs had a difficult time walking but
was fully coherent from a mental standpoint.
{¶ 19} Hughes stated that she had had many conversations with Boggs about life
and that Boggs had said on multiple occasions that she wanted to make things right with
Todd. However, Hughes conceded that she could only remember one specific
conversation at the time of her deposition. Hughes also acknowledged that she
assumed Boggs’s statements about “making things right” meant she wanted to make
things right regarding finances, but she never asked Boggs any follow-up questions to
confirm that her assumption was correct. During her deposition, Hughes agreed that
some of the statements in her affidavit were inaccurate or based on assumptions she had
made. However, Hughes reiterated that “[i]t was clear to me that [Boggs] wanted to
provide money to [Todd] and that she wanted to do so during life and upon her passing.”
{¶ 20} Todd was deposed on September 15, 2021. She had been married to her -9-
husband Ryan since 2010. When Boggs passed away in October 2019, she was 92
years old. Although Boggs had some health issues before she passed away, Todd
testified that Boggs’s mind was still sharp at the time of her death. Sowry had been
involved in making all the medical decisions for Boggs.
{¶ 21} On September 4, 2019, Todd accompanied her husband, Boggs, and
Hughes to Fifth Third Bank and Wright-Patt Credit Union. At Fifth Third Bank, Boggs
transferred $49,509.65 out of a joint bank account that was in Boggs and Sowry’s names
into a new joint bank account that was in Boggs and Todd’s names. The $49,509.65
withdrawn by Boggs from the joint bank account with Sowry constituted half of the amount
that was in Boggs and Sowry’s account. Todd believed all the money that was in Sowry
and Boggs’s joint bank accounts had been contributed solely by Boggs. Todd
subsequently transferred all but $100 out of the new joint account and put it into her own
personal account. As of the date of her deposition, that money was still in Todd’s
personal bank account. Todd testified that she made that transfer at Boggs’s instruction
and that she discussed this transfer with her husband before she made it. Boggs also
withdrew money from her Wright-Patt Credit Union joint bank account with Sowry and
transferred it to a new joint account with Boggs and Todd’s names on the account. Todd
subsequently transferred all but $100 from that new joint bank account into her own
personal bank account pursuant to Boggs’s instructions. As of the date of Todd’s
deposition, all of that money was still in her personal account. All of the money that was
in Boggs and Todd’s joint bank accounts was contributed by Boggs.
{¶ 22} Todd conceded that there was nothing in writing from her mother instructing -10-
her to make the transfers into Todd’s personal accounts. Rather, Boggs orally instructed
her to do it. No other individuals were present when Boggs gave this instruction. Todd
conceded that there had not been a consistent pattern of gift giving by Boggs to her.
b. Analysis
{¶ 23} Sowry argues that the trial court erred when it assumed that she must prove
an inequitable result based upon some evidence of concealment, conversion,
embezzlement, improper taking, or fraud in order to succeed on the claims against Todd.
According to Sowry, the trial court misread the Ohio Supreme Court’s decision in Estate
of Cowling v. Estate of Cowling, 2006-Ohio-2418. Sowry contends that all she needed
to show was that Todd withdrew money from the joint bank accounts Todd shared with
Boggs in excess of Todd’s contributions to those accounts. Once Sowry submitted
evidence establishing this fact, she believes she was entitled to summary judgment and
Todd’s motion for summary judgment should have been denied.
{¶ 24} Todd responds that the trial court properly granted her summary judgment
because the undisputed evidence showed that Boggs had directed the transfers that Todd
made into her own account. Appellee’s Brief, p. 7. Further, Todd contends that “there
simply is no evidence of a bad act, fraud, or principle of equity that would justify the
imposition of a constructive trust and forfeiture of the survivorship right [Todd] had in the
accounts created with her mother.” Id. at 9. According to Todd, this case is most like
the facts of DiPalma v. DiPalma, 2023-Ohio-4053 (9th Dist.), and therefore she was
entitled to summary judgment for the reasons expressed in that decision. -11-
{¶ 25} A review of the Estate of Cowling and DiPalma decisions is helpful in
resolving Sowry’s first and fourth assignments of error. Grace and Garnard Cowling
were married in 1967. It was a second marriage for both, and each had children from a
previous marriage; they had no children together. Estate of Cowling at ¶ 2. Grace and
Garnard owned various brokerage accounts and stock investments jointly with rights of
survivorship. Garnard transferred assets from their joint brokerage accounts into his own
name sometime in 1996 or 1997 and then placed those assets into transfer on death
accounts with his children named as the only beneficiaries. Id. at ¶ 3. Garnard died in
February 1998, and the $325,358.69 he had transferred passed to his children.
{¶ 26} Grace discovered these transfers and filed an equitable claim against
Garnard’s children for a declaratory judgment to establish a constructive trust over the
assets transferred by Garnard to his children. She also made claims against Garnard’s
estate for breach of contract, conversion, breach of fiduciary duty, negligent
misrepresentation, and fraud. Id. at ¶ 4. Grace’s expert estimated that 74 percent of
the assets in the joint accounts had been attributable to contributions made by Grace.
{¶ 27} The jury found that Garnard had withdrawn funds from the accounts in
excess of the contributions attributable to him and that the amount of damages suffered
by Grace was $255,354. Therefore, the trial court declared a constructive trust in the
total amount of $255,354 in proportion to the amount that each child had individually
received from Garnard. Id. at ¶ 6-7. However, the court of appeals reversed the trial
court’s denial of the children’s motions for directed verdict and judgment notwithstanding
the verdict regarding the claim for the establishment of a constructive trust. Id. at ¶ 10. -12-
The Ohio Supreme Court then accepted a discretionary appeal.
{¶ 28} The Ohio Supreme Court began its decision by noting that “ ‘[t]he existence
of a joint and survivorship bank account raises a rebuttable presumption that co-owners
of the account share equally in the ownership of the funds on deposit.’ ” Id. at ¶ 12,
quoting Vetter v. Hampton, 54 Ohio St.2d 227 (1978), paragraph three of the syllabus.
“This presumption applies in the absence of evidence to the contrary.” Id., citing Vetter
at paragraph four of the syllabus. Further, the Court noted that “ ‘[a] joint and
survivorship account belongs, during the lifetime of all parties, to the parties in proportion
to the net contributions by each to the sums on deposit, unless there is clear and
convincing evidence of a different intent.’ ” Id., quoting In re Estate of Thompson, 66
Ohio St.2d 433 (1981), paragraph one of the syllabus. Because the jury’s damages
award was not challenged on appeal, the Ohio Supreme Court assumed that the
$255,354 number was the equivalent of a determination of Grace’s net contributions.
The Court then had to determine whether the assets inherited by Garnard’s children
should be held in trust for Grace. Id. at ¶ 17.
{¶ 29} The supreme court summarized the relevant law on constructive trusts as
follows:
A constructive trust is a “ ‘trust by operation of law which arises
contrary to intention and in invitum, against one who, by fraud, actual or
constructive, by duress or abuse of confidence, by commission of wrong, or
by any form of unconscionable conduct, artifice, concealment, or
questionable means, or who in any way against equity and good -13-
conscience, either has obtained or holds the legal right to property which he
ought not, in equity and good conscience, hold and enjoy. It is raised by
equity to satisfy the demands of justice.’ ” . . . A constructive trust is
considered a trust because “ ‘[w]hen property has been acquired in such
circumstances that the holder of the legal title may not in good conscience
retain the beneficial interest, equity converts him into a trustee.’ ” . . .
A constructive trust is an equitable remedy that protects against
unjust enrichment and is usually invoked when property has been obtained
by fraud. . . . “[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.” . . . “In
applying the theories of constructive trusts, courts also apply the well known
equitable maxim, ‘equity regards [as] done that which ought to be done.’ ”
...
The party seeking to have a constructive trust imposed bears the
burden of proof by clear and convincing evidence. . . .
(Citations omitted.) Id. at ¶ 18-20.
{¶ 30} The court held that Grace’s estate had presented clear and convincing
evidence of the inequitable situation or unjust enrichment that would result if Garnard’s
children were permitted to retain the assets that Garnard had transferred. Id. at ¶ 32-33.
Therefore, Grace’s estate was entitled to a constructive trust over the funds that had been
transferred to the Cowling children to which Grace had objected during her life. -14-
{¶ 31} In DiPalma, 2023-Ohio-4053 (9th Dist.), Catherine DiPalma withdrew
approximately $85,000 from two joint accounts that she shared with her father, John
DiPalma. She made these withdrawals two days prior to John’s death. John did not
object to the withdrawals before he died and neither did the bank. Id. at ¶ 2. Michael
DiPalma, Catherine’s brother, subsequently filed a complaint against Catherine relating
to the withdrawals. Michael alleged, among other things, that Catherine had concealed,
embezzled, and was in wrongful possession of the funds she had withdrawn from the joint
bank accounts. Id. at ¶ 3. The trial court ultimately granted summary judgment to
Catherine. Michael filed a timely notice of appeal.
{¶ 32} The Ninth District affirmed the judgment of the trial court. The court
explained that the existence of a joint and survivorship bank account raised a rebuttable
presumption that co-owners of the account shared equally in the ownership of the funds
on deposit. Id. at ¶ 14, citing Estate of Cowling, 2006-Ohio-2418, at ¶ 12, citing Vetter,
54 Ohio St.2d 227, at paragraph three of the syllabus. The Ninth District then noted that
“ ‘[a] joint and survivorship account belongs, during the lifetime of all parties, to the parties
in proportion to the net contributions by each to the sums on deposit, unless there is clear
and convincing evidence of a different intent.’ ” Id., quoting Estate of Cowling at ¶ 12,
citing In re Estate of Thompson, 66 Ohio St.2d 433, at paragraph one of the syllabus.
{¶ 33} The Ninth District found that there was clear and convincing evidence in the
record that John had intended for the money in the joint account to belong to both John
and Catherine. The court pointed to the terms of the joint bank account agreement,
which provided that any use of the account by either of the joint account holders shall be -15-
deemed ratified by the other joint account holder as if the transaction had been made and
authorized by all of the joint account holders. Further, the court noted that Catherine
testified that (1) her father added her to the accounts because he wanted her to share in
the money in the accounts with him, and (2) shortly before he died, her father had
instructed her to transfer the money from the joint accounts into her own account.
{¶ 34} The DiPalma court rejected Michael’s reliance on the ownership-during-
lifetime presumption set forth in In re Estate of Thompson. According to the Ninth
District:
Here, there is no controversy that arose during the parties’ lifetime.
It is undisputed, and in fact stipulated by the parties, that John never
disputed Catherine’s withdrawal of the funds during his lifetime.
Additionally, Catherine testified that she, as a joint account holder,
completed the withdrawal at her father’s request. Therefore, the
ownership-during-lifetime presumption that Michael asks this Court to apply
is not applicable.
DiPalma at ¶ 21.
{¶ 35} DiPalma also held that Catherine had presented sufficient evidence to meet
her summary judgment burden by showing she was a co-owner of the funds in the joint
accounts and was authorized to withdraw the funds from the joint accounts when she
made the withdrawals in question. However, it concluded that Michael had not met his
reciprocal summary judgment burden. Therefore, the DiPalma court affirmed the trial
court’s grant of summary judgment to Catherine. Id. at ¶ 23. -16-
{¶ 36} Based on our review of the record and the applicable legal authority, we
conclude that the trial court did not err in granting summary judgment to Todd on Sowry’s
complaint. Todd met her summary judgment burden by putting forth evidence that
Boggs had transferred money from her and Sowry’s joint accounts to new joint accounts
that belonged to Boggs and Todd. Sowry did not allege any wrongdoing, fraud, undue
influence, or lack of mental capacity that led Boggs to make these voluntary transfers.
“The opening of a joint and survivorship account in the absence of fraud, duress, undue
influence or lack of capacity on the part of the decedent is conclusive evidence of his or
her intention to transfer to the surviving party or parties a survivorship interest in the
balance remaining in the account at his or her death.” Wright v. Bloom, 69 Ohio St.3d
596 (1994), paragraph two of the syllabus, overruling In re Estate of Thompson, 66 Ohio
St.2d 433, paragraph two of the syllabus. Further, Todd presented evidence through
both her deposition testimony and Hughes’s deposition testimony that Boggs made these
transfers to ensure that Todd received half of the money in Boggs’s original bank accounts
while Sowry received the other half. This is consistent with using a joint bank account
as an estate planning tool. The nature of joint bank accounts allows either party to
access the funds in that account without the other party having to contact the bank to give
permission for the withdrawal of funds. The evidence presented by Todd carried her
initial summary judgment burden.
{¶ 37} Sowry did not meet her reciprocal burden to submit sufficient evidence to
create a genuine issue of material fact. Rather, Sowry relied solely on the legal principle
that “ ‘[a] joint and survivorship account belongs, during the lifetime of all parties, to the -17-
parties in proportion to the net contributions by each to the sums on deposit, unless there
is clear and convincing evidence of a different intent.’ ” Estate of Cowling at ¶ 12, quoting
Estate of Thompson at paragraph one of the syllabus. But we agree with the Ninth
District that this legal principle applies to disputes that are raised by an aggrieved party
during their lifetime. If Boggs had any objections to Todd’s withdrawals of money from
their joint accounts, she could have raised them during her lifetime. But Sowry presented
no evidence that Boggs raised any concerns about the withdrawals. On the other hand,
Todd presented evidence that Hughes had observed Boggs reviewing or “studying” her
bank account statements, and that Boggs never mentioned that anything was
inappropriate on the statements. The lack of concern expressed by Boggs during her
lifetime is not surprising given that joint bank accounts are often used as an estate
planning tool to ensure that beneficiaries obtain a decedent’s bank assets without having
to go through the delay or cost of probate.
{¶ 38} Sowry asked the trial court to impose a constructive trust on the amount of
money that Todd withdrew from the joint bank accounts while Boggs was alive. We
agree with the trial court that a constructive trust is a tool for addressing situations where
it is clear a party has been unjustly enriched, or an inequitable situation resulted from a
party’s improper action. See Estate of Cowling, 2006-Ohio-2418, at ¶ 32. As the trial
court correctly pointed out, Todd was due to receive at the time of Boggs’s death all of
the money from the joint bank accounts held by her and Boggs. This is unlike the facts
in the Estate of Cowling, where Grace Cowling was due to receive the money from the
joint brokerage accounts at the time of her husband’s death until her husband effectively -18-
denied her this money by transferring the money out of the accounts to ensure that his
children received the money at the time of his death, not Grace. There, Grace objected
to the transfers during her lifetime, and a constructive trust was necessary to prevent an
inequitable result. Here, there was no evidence, let alone clear and convincing evidence,
that it was inequitable for Todd to keep the money she withdrew from the joint bank
accounts with her mother. Todd, not Sowry, was due to receive the money in the joint
bank accounts at the time of Boggs’s death. Therefore, Todd’s transfer of money from
those accounts to her own personal bank accounts did not create an unjust or inequitable
result for Sowry. Indeed, Sowry had no legal entitlement to any of the funds that were in
the joint bank accounts of Boggs and Todd during Boggs’s lifetime or after Boggs died.
{¶ 39} If Sowry had presented evidence that Boggs did not intend for Todd to have
access to the money during Boggs’s life, that Boggs had been deceived into depositing
money into the joint bank accounts, that Boggs lacked the capacity to make the deposits
into the joint bank accounts, or that Boggs did not intend for the money to go to Todd at
the time of Boggs’s death, then summary judgment likely would not have been
appropriate. But such evidence is not in the record before us. Rather, the undisputed
facts before us show that Boggs, while she was of sound mind, voluntarily deposited
money into joint bank accounts that she shared with her daughter, Todd. Relatively
shortly before making that deposit, Boggs told her friend, Hughes, that she wanted to
make things right with Todd. Boggs asked Hughes to accompany her and Todd to the
banks to make the necessary withdrawals and deposits. Hughes interpreted Boggs’s
words and actions as meaning she wanted the money to go to Todd. This is -19-
corroborated by the nature of joint bank accounts. And Hughes’s testimony corroborated
Todd’s testimony. Therefore, the trial court correctly found that Todd was entitled to
{¶ 40} The first and fourth assignments of error are overruled.
III. The Trial Court Did Not Err By Considering the Testimony of Todd and Hughes
{¶ 41} We will address Sowry’s second and third assignments of error together
because they both concern the trial court’s reliance on alleged hearsay evidence.
Sowry’s second assignment of error states:
The Trial Court committed reversible error in determining that Appellee’s
self-serving statements, without any supporting evidence, were admissible
for purposes of summary judgment as the material statements were
inadmissible because they were not based on Appellee’s personal
knowledge or they were inadmissible hearsay.
{¶ 42} Sowry’s third assignment of error states:
The Trial Court committed reversible error in determining that Shirley
Hughes’ testimony, by deposition and affidavit, was admissible for purposes
of summary judgment as the material statements were inadmissible
hearsay; similarly, the material statements were irrelevant to the subject
transactions and did not support summary judgment for Appellee.
{¶ 43} “When ruling on a summary-judgment motion, a trial court may consider
only evidence that would be admissible at trial.” Thomas v. Servicemaster Absolute -20-
Cleaning Restoration Inc., 2023-Ohio-1837, ¶ 26 (2d Dist.), citing Turnmire v. Turnmire,
2022-Ohio-3968, ¶ 24 (12th Dist.). “This includes hearsay included in deposition
testimony, which is inadmissible in the summary-judgment context unless a hearsay
exception applies.” Id., citing Turnmire at ¶ 24-25. Under Civ.R. 32(A), a deposition
may be used to support a motion only “so far as admissible under the rules of evidence
applied as though the witness were then present and testifying[.]”
{¶ 44} Sowry argues that the only evidence that Boggs requested Todd to transfer
the money from their joint bank accounts to Todd’s separate accounts “came from
[Todd’s] own affidavit and deposition testimony, which could only be the recitation of
inadmissible hearsay, not facts based on her own personal knowledge.” Appellant’s
Brief, p. 21. Sowry contends that Todd offered no statement purportedly made by Boggs
that could be potentially admissible under Evid.R. 803(3). Further, according to Sowry,
a party’s own self-serving assertions cannot defeat a well-supported motion for summary
judgment unless the assertions are corroborated by outside evidence.
{¶ 45} Todd responds that Boggs’s instructions to her as embodied in Todd’s
affidavit and deposition testimony were statements of donative intent, indicative of a then
existing state of mind or intent, and admissible pursuant to Evid.R. 803(3). Todd also
contends that her statements in her affidavit and deposition were based on her personal
experience and Sowry had no factual evidence to dispute them.
{¶ 46} “Although we conduct a de novo review of the trial court's decision to grant
summary judgment, we review the court's rulings on the admissibility of evidence for an
abuse of discretion.” People’s Bank, Natl. Assn. v. Tome, 2011-Ohio-5412, ¶ 13 (4th -21-
Dist.), citing Lawson v. Y.D. Song, M.D., Inc., 1997 WL 596293, *3 (4th Dist. Sept. 23,
1997), and State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. The
term “abuse of discretion” implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶ 47} We conclude that the trial court did not abuse its discretion by considering
Todd’s testimony. Sowry relies primarily on the general proposition that a party’s
affidavit and testimony is by its nature self-serving and therefore not an adequate basis
on which to grant summary judgment. That proposition is not entirely accurate.
{¶ 48} “An otherwise-competent affidavit is not invalid for the sole reason that it is
executed by a party and submitted to aver facts” relating to a summary judgment motion.
Patel v. Krisjal, L.L.C., 2013-Ohio-1202, ¶ 35 (10th Dist.). Accord Smith v. CBert
Properties, LLC, 2019-Ohio-12, ¶ 11 (2d Dist.). Rather, an affidavit may be used in
support of or in opposition to a motion for summary judgment if it is made on personal
knowledge. While Civ.R. 56 imposes no absolute corroboration requirement, Smith at
¶ 11, a party has a much better likelihood of success at the summary judgment stage
when his or her testimony is supported by corroborating evidence.
{¶ 49} Sowry did not present any evidence disputing that Boggs voluntarily
contributed all of the money to her joint bank accounts with Sowry or that Boggs
voluntarily withdrew half of that money to fund her new joint bank accounts with Todd.
Further, Sowry did not point to any evidence that Todd lied about Boggs instructing her
to transfer the money from their joint bank accounts to Todd’s personal account. Sowry
also failed to present any evidence that Boggs objected to those transfers. Todd’s -22-
testimony, on the other hand, was corroborated by Hughes’s testimony and the legal
nature of joint bank accounts, which are a well-recognized tool used in estate planning.
Therefore, we cannot conclude that the trial court abused its discretion by considering
Todd’s testimony.
{¶ 50} Finally, Sowry argues that the trial court should not have considered
Hughes’s testimony because it was based on inadmissible hearsay. Sowry contends
that Hughes’s testimony that Boggs wanted to make things right occurred at least three
weeks before they went to the bank to make the transfer, which made the statement
irrelevant as to Boggs’s alleged donative intent. Sowry believes this lack of temporal
connection also made Hughes’s testimony inadmissible hearsay. Further, Sowry argues
that the testimony was based on speculation that Boggs’s statement about wanting to
make things right related to financial or estate planning. Finally, Sowry argues that
Hughes’s testimony lacked credibility due to her admission that some of the statements
in her affidavit were incorrect. Sowry believes the trial court should have granted her
motion to strike Hughes’s affidavit. Todd responds that any potential hearsay evidence
relied upon by the trial court fit within an exception to the hearsay rule.
{¶ 51} Evid.R. 803(3) provides that the following is not excluded by the hearsay
rule:
A statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the -23-
execution, revocation, identification, or terms of declarant's will.
“A declarant's statement of donative intent, at the time of delivery of the property to the
donee, is a statement indicative of a then existing state of mind or intent and is admissible
pursuant to Evid. R. 803(3).” Vogel v. Campanaro, 2021-Ohio-4245, ¶ 35 (12th Dist.),
citing Richards v. Wasylyshyn, 2012-Ohio-3733, ¶ 22 (6th Dist.), and McGrew v. Popham,
2007-Ohio-428, ¶ 30 (5th Dist.).
{¶ 52} Hughes testified that Boggs wanted to make things right financially with
Todd. Hughes understood the trip to Boggs’s banks to transfer funds into new joint bank
accounts with Todd to be Boggs’s way of making things right financially. Further, the
establishment of the joint bank accounts with Todd was evidence of Boggs’s donative
intent, especially in the absence of other reasons why Boggs would set up a joint account
with Todd. As the Eleventh District has noted, “ ‘Ohio courts no longer consider evidence
concerning the present donative intent of the decedent because the opening of the joint
and survivorship account is conclusive evidence of the decedent's intent to transfer a
survivorship interest in the balance of the account's assets at his . . . death.’ ” (Emphasis
omitted.) Dorsey v. Dorsey, 2011-Ohio-6336, ¶ 61 (11th Dist.), quoting In re Estate of
Anderson, 2000 Ohio App. LEXIS 5928, *14, fn. 1 (11th Dist. Dec. 15, 2000).
{¶ 53} On the record before us, the undisputed facts show that Boggs voluntarily
took exactly one-half of the money out of her joint bank accounts with Sowry to set up
new joint bank accounts with Todd. This is consistent both with the donative intent about
which Hughes and Todd testified and the idea of using joint bank accounts as an estate
planning tool. The timing of the transfers, shortly before Boggs’s death, also directly -24-
supported the inference that Boggs set up the joint bank accounts with Todd to ensure
that she received one-half of the money while Sowry received the other half. Moreover,
Hughes and Todd testified that although Boggs’s physical health was failing at the time
of the transfers at issue, her mental state was fully intact. Sowry submitted no evidence
showing Boggs may have had a different intent or state of mind when she set up the joint
bank accounts with Todd. Therefore, the trial court did not abuse its discretion in
considering Hughes’s testimony regarding Boggs’s donative intent.
{¶ 54} The second and third assignments of error are overruled.
IV. Conclusion
{¶ 55} Having overruled all of the assignments of error, we affirm the judgment of
the trial court.
TUCKER, J. and HUFFMAN, J., concur.