[Cite as In re Estate of Crain, 2023-Ohio-571.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
IN THE MATTER OF: CASE NO. 2022-T-0053
ESTATE OF RALPH A. CRAIN, DECEASED Civil Appeal from the Court of Common Pleas, Probate Division
Trial Court No. 2014 EST 0464
OPINION
Decided: February 27, 2023 Judgment: Affirmed
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Appellants).
Bryan Crain, pro se, 2878 Niles-Vienna Road, Niles, OH 44446 (Appellee).
David A. Shepherd, pro se, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (Appellee).
Thomas J. Wilson, Comstock, Springer & Wilson Co., LPA, 100 Federal Plaza East, Suite 926, Youngstown, OH 44503 (For Appellee, Frederick J. Crain).
MARY JANE TRAPP, J.
{¶1} Appellants, Debra Pirock (“Ms. Pirock”), Jill Sferra (“Ms. Sferra”), Marcia
McNelis (“Ms. McNelis”), and Thomas Crain (“Thomas”) (collectively, “the plaintiffs”),
appeal the judgment entry of the Trumbull County Court of Common Pleas, Probate
Division, denying their motion to vacate the court’s 2019 judgment approving and settling
the fiduciary’s final account in the Estate of Ralph A. Crain (“Ralph”). {¶2} The plaintiffs assert two assignments of error, contending that the probate
court (1) disregarded a clear statute and clear judicial precedent by refusing to reopen
Ralph’s estate; and (2) abused its discretion in refusing to reopen Ralph’s estate.
{¶3} Upon a careful review of the record and the pertinent law, we find as follows:
{¶4} (1) The plaintiffs have not established that the probate court misapplied R.C.
2901.35(A) or binding judicial precedent in denying their motion to vacate. The guilty
verdict against appellee, Frederick Crain (“Frederick”), in the concealment action was not
equivalent to a finding of fraud pursuant to R.C. 2109.35(A), and the cases that the
plaintiffs cite are factually and legally distinguishable.
{¶5} (2) The plaintiffs have not established that the probate court abused its
discretion in denying their motion to vacate. The plaintiffs do not explain why the court’s
reasoning process was unsound.
{¶6} Thus, we affirm the judgment of the Trumbull County Court of Common
Pleas, Probate Division.
Substantive and Procedural History
{¶7} The parties to this appeal are the six surviving children of Ralph and
Margaret Crain (“Margaret”). The underlying proceeding implicates a longstanding
dispute between the plaintiffs, on one side, and appellees Frederick and Bryan Crain
(“Bryan”), on the other side, regarding assets that Ralph allegedly owned prior to his
death, i.e., approximately $782,000 in cash and coins. Although we have summarized
the parties’ litigation history in prior decisions, we reiterate and supplement that history to
provide proper context.
{¶8} The Crain family is from Weathersfield Township in Trumbull County, Ohio.
Ralph and Margaret had seven children born from 1950 through 1960: Thomas; 2
Case No. 2022-T-0053 Frederick; Marlys (who passed away in 1998); Bryan; Ms. McNelis; Ms. Sferra; and Ms.
Pirock. For many years, Ralph and Margaret operated a farm and sold produce from a
stand located on their property.
{¶9} Margaret died in 2013 at age 89. The plaintiffs objected to the appointment
of Ralph as the executor of her estate, alleging that he was not mentally competent to
serve. The trial court overruled the objection and appointed Ralph and Attorney Daniel
Letson to serve as co-commissioners of Margaret’s estate.
{¶10} The plaintiffs also alleged that after Margaret’s death, Frederick and Bryan
isolated Ralph from the rest of his family and asserted control over his personal affairs.
According to the plaintiffs, they saw their father infrequently in the last year of his life.
{¶11} Ralph died in June 2014 at age 91. The day after his death, Frederick and
Ms. Sferra filed competing applications in the probate court to administer Ralph’s probate
estate (case no. 2014 EST 0464). The probate court appointed Attorney David Shepherd
(“Attorney Shepherd”) as Special Administrator WWA. Following his appointment,
Attorney Shepherd inspected the farmhouse to secure apparent valuables. He did not
locate any lockboxes of money but later inventoried $727.37 in coins and $28.28 in
Canadian coins. He also discovered a money market bank account containing
$76,552.10.
{¶12} In July 2014, the plaintiffs filed a concealment action in the probate court,
alleging that Frederick, Bryan, and two other individuals “concealed, embezzled,
conveyed away and remain in possession of certain moneys and tangible personal
property” of Margaret’s estate (case no. 2014 CVA 0033). In December 2015, the probate
court dismissed the plaintiffs’ complaint for failing to present any evidence at trial in
support of their claims. 3
Case No. 2022-T-0053 {¶13} In September 2014, the plaintiffs filed a will-contest action in the probate
court, alleging that Frederick and Bryan exerted undue influence over Ralph to change
his will for their exclusive benefit (case no. 2014 CVA 0039). The matter was tried to a
jury. The jury entered a verdict in the plaintiffs’ favor and invalidated Ralph’s later will.
The probate court entered judgment in the plaintiffs’ favor. Frederick and Bryan appealed,
and we affirmed the probate court’s judgment in Sferra v. Shepherd, 11th Dist. Trumbull
No. 2014-T-0123, 2015-Ohio-2902.
{¶14} In February 2016, the plaintiffs filed an action in the probate court seeking
a declaration that Frederick and Bryan withheld Ralph’s prior will in violation of R.C.
2107.10(A) (case no. 2016 CVA 0002). The matter was tried to a jury. Frederick and
Bryan moved for a directed verdict, asserting that the plaintiffs failed to establish that they
had knowledge of or control over Ralph’s prior will. The probate court granted Frederick’s
and Bryan’s motion. The plaintiffs appealed, and we affirmed the probate court’s
judgment in McNelis v. Crain, 2016-Ohio-8523, 78 N.E.3d 1237 (11th Dist.).
{¶15} Meanwhile, in September 2014, Frederick delivered to Attorney Shepherd
four sealed lockboxes and a safe that his father had allegedly given him for safekeeping.
Attorney Shepherd inventoried the contents and determined that the lockboxes contained
$20,379.80 in cash and coins. In November 2014, the plaintiffs filed exceptions to the
amended inventory and appraisal that Attorney Shepherd filed in Ralph’s estate,
contending that $750,000 in cash was missing. Following an evidentiary hearing, the
probate court filed a judgment entry dismissing the exceptions.
{¶16} The plaintiffs appealed, and we affirmed the probate court’s judgment in In
re Estate of Crain, 11th Dist. Trumbull No. 2016-T-0017, 2017-Ohio-2724. We found that
the plaintiffs had failed to prove, by clear and convincing evidence, that $750,000 in cash 4
Case No. 2022-T-0053 existed at the time of Ralph’s death and should have been included in the amended
inventory. Id. at ¶ 24. We noted that if the plaintiffs believed Frederick and Bryan had
taken the allegedly missing money, they could have filed a concealment action pursuant
to R.C. 2109.50. Id. at ¶ 23.
{¶17} In June 2017, the plaintiffs filed a concealment action in the probate court,
alleging that Frederick and Bryan “concealed, embezzled, conveyed away or have
possession of” assets belonging to Ralph’s estate, including approximately $750,000 in
cash (case no. 2017 CVA 0035). The plaintiffs voluntarily dismissed their action in
November 2017.
{¶18} On October 26, 2018, Attorney Shepherd filed the final account in Ralph’s
estate, along with a certification stating that he served a copy on the estate’s beneficiaries.
The probate court scheduled a hearing on the final account. There is no indication that
any party filed exceptions to the final account.
{¶19} In November 2018, the plaintiffs refiled their concealment action against
Frederick and Bryan (case no. 2018 CVA 0039). The probate court issued writs of citation
requiring Frederick and Bryan to appear for a jury trial. Prior to the start of the jury trial,
the probate court held hearings on Frederick’s motion in limine and motion to dismiss.
On April 8, 2019, the probate court filed a judgment entry granting Frederick’s motions
and dismissed the concealment action.
{¶20} On April 29, 2019, the probate court filed an entry approving and settling
the final account in Ralph’s estate and discharging Attorney Shepherd as fiduciary. None
of the parties appealed the probate court’s entry.
{¶21} In May 2019, the plaintiffs appealed the probate court’s dismissal of their
concealment action. This court reversed the probate court’s judgment and remanded for 5
Case No. 2022-T-0053 further proceedings. See Pirock v. Crain, 2020-Ohio-869, 152 N.E.3d 842 (11th Dist.),
appeal not accepted, 159 Ohio St.3d 1465, 2020-Ohio-3882, 150 N.E.3d 112.
{¶22} On remand, the concealment action was tried to a jury over three days in
August 2021. Following deliberations, the jury issued verdicts finding Bryan “not guilty”
and Frederick “guilty” of concealing assets belonging to Ralph. The probate court filed
an entry rendering judgment on the jury’s verdicts. On September 13, 2021, the probate
court held an evidentiary hearing on damages.
{¶23} On September 16, 2021, the plaintiffs filed a motion to vacate the probate
court’s 2019 entry approving and settling the final account in Ralph’s estate pursuant to
R.C. 2109.35. The plaintiffs argued that the jury’s verdict against Frederick established
that he fraudulently concealed assets from Ralph’s estate; therefore, the probate court
should reopen the estate and reappoint Attorney Shepherd to administer the assets in
accordance with Ralph’s will.
{¶24} In October 2021, the probate court filed a judgment entry on damages in
the concealment action. The probate court found that the plaintiffs failed to prove by a
preponderance of the evidence that Ralph owned assets of approximately $782,000 at
the time of his death. Rather, Frederick was found guilty because he possessed Ralph’s
lockboxes and safe before he turned them over to Attorney Shepherd in September 2014,
which contained $20,379.80. The probate court assessed damages of $2,038 against
Frederick and in favor of the state of Ohio, which represented a 10% penalty on the sum
of $20,379.80, plus the costs of the proceeding.
{¶25} The probate court held a separate evidentiary hearing on the plaintiffs’
request for attorney fees. In December 2021, the probate court filed a judgment entry
denying the plaintiffs’ request pursuant to the American rule. 6
Case No. 2022-T-0053 {¶26} The plaintiffs appealed the probate court’s judgments. In Pirock v. Crain,
2022-Ohio-3612, 198 N.E.3d 996 (11th Dist.), we found that the plaintiffs failed to
establish reversible error with respect to the probate court’s assessment of damages.
See id. at ¶ 6-7. However, we determined that the probate court erred in its application
of the American rule by failing to consider the applicability of the “bad faith” exception. Id.
at ¶ 9. Therefore, we affirmed the probate court’s October 2021 judgment, reversed its
December 2021 judgment, and remanded for further proceedings. See id. at ¶ 10. The
plaintiffs appealed to the Supreme Court of Ohio, which declined jurisdiction. See Pirock
v. Crain, Slip Opinion No. 2023-Ohio-381.
{¶27} During the pendency of the appeal, in January 2022, Frederick filed a brief
in opposition to the plaintiffs’ motion to vacate. Frederick stated that despite the certificate
of service, the plaintiffs failed to properly serve a copy of their motion on his counsel. He
argued the plaintiffs failed to present any factual or legal basis to vacate the 2019 entry
based on fraud pursuant to R.C. 2109.35(A).
{¶28} In March 2022, the probate court held an evidentiary hearing on the
plaintiffs’ motion. Following argument from counsel, the plaintiffs presented testimony
from Ms. Pirock. She testified that the jury found Frederick guilty of concealing
approximately $782,000 in cash and coins. She further testified that during the jury trial,
she first learned that Frederick had transferred farm equipment to himself while he held
Ralph’s power of attorney. During cross-examination, the plaintiffs’ counsel stipulated
that the plaintiffs had been claiming since September 2014 that Frederick and Bryan had
stolen approximately $782,000 in cash and coins.
{¶29} On May 17, 2022, the probate court filed a judgment entry denying the
plaintiff’s motion to vacate. The probate court determined that fraud is not a necessary 7
Case No. 2022-T-0053 element of a concealment action. It further determined Ms. Pirock’s testimony did not
prove, by clear and convincing evidence, “the elements, the existence and the
perpetration of fraud.”
{¶30} The plaintiffs appealed and present two assignments of error:
{¶31} “[1.] The Trial Court Disregarded a Clear Statute and Clear Judicial
Precedent by Refusing to Reopen the Estate of Ralph Crain.
{¶32} “[2.] The Trial Court Abused its Discretion in Refusing to Reopen the Estate
of Ralph Crain.
Standard of Review
{¶33} Both of the plaintiffs’ assignments of error assert that the probate court erred
in denying their motion to vacate. The probate court’s decision whether to grant a motion
to vacate pursuant to R.C. 2109.35 is within its sound discretion and will not be disturbed
absent an abuse of discretion. In re Stropky, 5th Dist. Stark No. 2018CA00055, 2018-
Ohio-5371, ¶ 14. An abuse of discretion is the trial court’s “‘failure to exercise sound,
reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004). “When a pure
issue of law is involved in appellate review, the mere fact that the reviewing court would
decide the issue differently is enough to find error.” Id. at ¶ 67. “By contrast, where the
issue on review has been confided to the discretion of the trial court, the mere fact that
the reviewing court would have reached a different result is not enough, without more, to
find error.” Id.
Case No. 2022-T-0053 Application of Law
{¶34} In their first assignment of error, the plaintiffs contend that the probate court
disregarded R.C. 2109.35(A) in denying their motion to vacate, which provides, in relevant
part:
{¶35} “The order of the probate court upon the settlement of a fiduciary’s account
shall have the effect of a judgment and may be vacated only as follows: * * * The order
may be vacated for fraud, upon motion of any person affected by the order or upon the
court’s own order, if the motion is filed or order is made within one year after discovery of
the existence of the fraud.”
{¶36} According to the plaintiffs, they met these statutory requirements because
concealing assets from an estate is fraudulent; the jury’s guilty verdict against Frederick
established that he defrauded Ralph’s estate; and they filed their motion within one year
of the jury’s guilty verdict.
{¶37} The plaintiffs never asserted a fraud claim against Frederick, which they
would have been required to pursue in the general division of the common pleas court.
See Rudloff v. Efstathiadis, 11th Dist. Trumbull No. 2002-T-0119, 2003-Ohio-6686, ¶ 11.
In addition, Ohio law does not support the proposition that the guilty verdict against
Frederick in the concealment action was tantamount to a finding of fraud.
{¶38} R.C. 2109.50 provides for a special statutory proceeding to discover
concealed assets of an estate. In re Estate of Fife, 164 Ohio St. 449, 453, 132 N.E.2d
185 (1956). “When passing on a complaint made under section 2109.50 of the Revised
Code, the probate court shall determine, by the verdict of a jury if either party requires it
* * *, whether the person accused is guilty of having concealed, embezzled, conveyed
away, or been in the possession of moneys, chattels, or choses in action of the estate * * 9
Case No. 2022-T-0053 *.” R.C. 2109.52. “[T]he inquiry under R.C. 2109.50 focuses on the ownership of the
asset and whether possession of the asset is being impermissibly concealed or withheld
from the estate.” Wozniak v. Wozniak, 90 Ohio App.3d 400, 407, 629 N.E.2d 500 (9th
Dist.1993). The claimant’s burden of proof is by a preponderance of evidence. Kasick v.
Kobelak, 184 Ohio App.3d 433, 2009-Ohio-5239, 921 N.E.2d 297, ¶ 13 (8th Dist.).
However, “scienter is not an essential element * * * under the concealment statute[,] and
* * * a finding of guilt under R.C. 2109.52 does not require fraudulent or criminal intent.”
Kish v. Kish, 7th Dist. Mahoning No. 05 MA 186, 2006-Ohio-4686, ¶ 21; see Gustafson
v. Miller, 5th Dist. Perry No. 15-CA-00008, 2015-Ohio-5515, ¶ 23 (“R.C. 2109.52 does
not require the complaining party to establish fraud * * *”).
{¶39} By contrast, “[i]n order to vacate an order of the probate court approving the
final and distributive account on the basis of fraud [under R.C. 2109.35(A)], the movant
must show fraud by clear and convincing evidence.” Mathe v. Fowler, 13 Ohio App.3d
273, 469 N.E.2d 89 (11th Dist.1983), paragraph three of the syllabus. “The elements of
fraud are: (a) a representation or, where there is a duty to disclose, concealment of a
fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of
its falsity, or with such utter disregard and recklessness as to whether it is true or false
that knowledge may be inferred, (d) with the intent of misleading another into relying upon
it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance.” Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d
69, 491 N.E.2d 1101 (1986), paragraph two of the syllabus. “Cases vacating settlement
orders on the basis of fraud usually involve an intentional misappropriation of funds by an
administrator * * *.” Mathe at 275; see In re Estate of Sowande, 11th Dist. Portage No.
2014-P-0018, 2014-Ohio-5384, ¶ 28-30 (discussing cases). 10
Case No. 2022-T-0053 {¶40} Because of the different elements and standards of proof for concealment
and fraud, we conclude that the guilty verdict against Frederick in the concealment action
was not functionally equivalent to a finding of fraud pursuant to R.C. 2109.35(A).
{¶41} The plaintiffs’ argument also presumes that the one-year period to file a
motion to vacate under R.C. 2109.35(A) begins to run when fraud is proven. The
Supreme Court of Ohio has held that “[a] cause of action for fraud * * * accrues either
when the fraud is discovered, or [when] in the exercise of reasonable diligence, the fraud
should have been discovered.” (Emphasis added.) Cundall v. U.S. Bank, 122 Ohio St.3d
188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 29. Thus, the statute’s reference to “discovery”
relates to the accrual of a fraud claim rather than its legal establishment.
{¶42} The plaintiffs next contend that the probate court disregarded “clear judicial
precedent” by denying their motion to vacate. The plaintiffs cite In re Estate of George,
20 Ohio App.2d 87, 252 N.E.2d 176 (3d Dist.1969), for the proposition that “[R.C. 2109.35]
permits a probate court to set aside an order approving a fiduciary’s final accounting and
closing an estate ‘where some asset remains upon which administration has not been
exhausted and for some lawful purpose relating to that asset administration is required *
* *.’” Brief at 6, quoting George at 90.
{¶43} George is not binding legal precedent, and the plaintiffs do not accurately
characterize its holding. In George, the appellant sought the reopening of an estate and
the reappointment of its administrators for the purpose of serving them with the summons
for his personal injury lawsuit against the decedent, which the appellant filed within the
applicable statute of limitations. See id. at 88. The Third District did not hold that the
reopening of the estate was permitted under R.C. 2109.35. Rather, it held that “an
administrator may be appointed to complete such administration only in a manner similar 11
Case No. 2022-T-0053 to, and with the same formalities, as the original appointment of an administrator.” Id. at
90.
{¶44} The Supreme Court of Ohio subsequently reversed the Third District’s
judgment; however, it did not do so on the basis that reopening was permitted under R.C.
2109.35. Rather, it held that “in a negligence action for the recovery of damages,
instituted under R.C. 2117.07 against an administrator seeking to recover only from the
decedent’s liability insurer, where the administrator of the estate of the decedent has been
discharged and the estate closed, the Probate Court may reappoint the administrator or
appoint some other suitable person for the purpose of accepting service of summons.” In
re Estate of George, 24 Ohio St.2d 18, 21-22, 262 N.E.2d 872 (1970).
{¶45} The plaintiffs also cite this court’s decisions in In re Estate of Elersic, 11th
Dist. Lake No. 2008-L-181, 2009-Ohio-4803, and In re Estate of Ryan, 11th Dist. Lake
No. 2010-L-075, 2011-Ohio-3891, ¶ 30, where we purportedly stated that “a closed estate
should be reopened when assets that may belong to that estate have been identified.”
We did not make this statement in either case. In Elersic, the probate court closed the
estate because there were no probate assets to administer. See id. at ¶ 8. We
determined the probate court did not abuse its discretion in failing to subsequently reopen
the estate where the movant “failed to offer any plausible evidence relating to the
discovery of assets which could potentially trigger a reopening * * *.” Id. at ¶ 40. In Ryan,
we quoted Elersic in an appeal of the probate court’s denial of an application to administer
an estate where there were no probate assets. See Ryan at ¶ 30.
{¶46} It should be noted that fraud is not the only statutory basis for vacation of
an order settling a fiduciary’s account. R.C. 2109.35(B) permits the probate court to
vacate the order “for good cause shown, other than fraud, upon motion of any person 12
Case No. 2022-T-0053 affected by the order who was not a party to the proceeding in which the order was made
and who had no knowledge of the proceeding in time to appear in it * * *.” The plaintiffs
have not expressly attempted to establish this exception, most likely due to the fact that,
as beneficiaries, they were parties to Ralph’s estate proceedings, and because there is
no indication that they were unaware of the filing of, and the hearing on, the final account.
{¶47} In sum, the plaintiffs have not established that the probate court misapplied
R.C. 2901.35(A) or binding judicial precedent in denying their motion to vacate.
{¶48} The plaintiffs’ first assignment of error is without merit.
Reasoning Process
{¶49} In their second assignment of error, the plaintiffs contend that the probate
court’s denial of their motion to vacate was “not the product of a sound reasoning
process.” According to the plaintiffs, the jury’s guilty verdict against Frederick was “a
totally justifiable reason to reopen the estate.”
{¶50} The plaintiffs cite AAAA Ents., Inc. v. River Place Community Urban Redev.
Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990), where the Supreme Court of Ohio
stated, “A decision is unreasonable if there is no sound reasoning process that would
support that decision.” Id. at 161. The plaintiffs do not acknowledge the next sentence
of the decision, where the court explained, “It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.” Id. The reviewing court’s task “is to determine whether there exists a
sound reasoning process that [a lower court] might have used in reaching its
determination * * *.” Id. The reviewing court “is not required to determine that it would
Case No. 2022-T-0053 have reached the same conclusion itself, had it been confronted with the question * * *.”
Id.
{¶51} The probate court fully explained its reasoning process for denying the
plaintiffs’ motion to vacate. On appeal, the plaintiffs do not explain how the court’s
reasoning process was unsound; rather, they assert a “countervailing reasoning process”
that supports “a contrary result.” AAAA Ents. at 161. As such, the plaintiffs have not
established that the probate court abused its discretion.
{¶52} The plaintiffs’ second assignment of error is without merit.
{¶53} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, Probate Division, is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2022-T-0053