Lehmann v. Westhoeffer

2021 Ohio 529

Opinion

[Cite as Lehmann v. Westhoeffer, 2021-Ohio-529.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

PAUL T. LEHMANN, ET AL. : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MARIE WESTHOEFFER, ET AL. : Case No. 2020 AP 01 0001 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2017 ES 59150

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 24, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

PAUL T. LEHMANN, PRO SE JOSEPH I. TRIPODI 165 Co. Rd. 425 114 East High Avenue Fayette, MO 65248 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2020 AP 01 0001 2

Wise, Earle, J.

{¶ 1} Appellant Paul Lehmann, et al appeals the December 19, 2019 nunc pro

tunc judgment of the Tuscarawas County Court of Common Pleas Probate Division which

rejected appellant's motion and amended motions for summary judgment, his objections

to the final accounting in the estate of Carole Kies, and his complaint for concealment.

Appellee is Marie Westhoefer, the administrator of Kies' estate. The relevant facts are as

follow.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 11, 2017, Kies, ill with cancer, enlisted the assistance of

Westhoefer, her friend and neighbor of 30 years, in making a will. Kies, having never

married and leaving no issue, left her entire estate to Westhoefer and additionally made

Westhoefer the executrix of her will. The will was signed by one witness, Regina Rummes.

While both Westhoefer and another woman, Carol Fay Breehl, were present during the

preparation of the will, neither signed the will, and Breehl left the room while Rummes

signed. Kies died the same day.

{¶ 3} On July 19, 2017, Westhoefer filed an Application to Probate Will and an

Application for Authority to Administer Estate in the Tuscarawas County Probate Court.

On the same date, the court noted its review of the document purporting to be Kies' will

and the fact that it did not conform with R.C. 2107.03. A hearing was set for August 7,

2017 for Westhoefer to present evidence and argument regarding the admission of the

will and to determine what efforts could be made to locate next of kin. Tuscarawas County, Case No. 2020 AP 01 0001 3

{¶ 4} At the hearing, the court heard testimony from Westhoefer and Rummes

explaining Kies' desire to make a will and her intent that the document presented to the

probate court be her will.1

{¶ 5} On August 18, 2017, the court issued its judgment entry finding while the

will did not meet the statutory requirements of R.C. 2107.03, because Westhoefer had

established the elements required by R.C. 2107.24, the will was admissible pursuant to

R.C. 2107.24, Ohio's non-conforming will statute.

{¶ 6} Because Kies had never mentioned any relatives to Westhoefer, an heir

search was conducted which located 31 cousins and second cousins including appellant

herein. Appellant was served with notice of probate of the will on October 11, 2017.

{¶ 7} On January 22, 2018, appellant filed a pro se complaint to contest the will

admitted to probate naming himself as plaintiff and only Westhoefer as a defendant. On

February 9, 2018, Westhoefer moved to dismiss the complaint for failure to comply with

R.C. 2107.73, describing necessary parties to a will contest.

{¶ 8} On February 12, 2018, other heirs filed a will contest complaint represented

by Akin Law, P.A. (Herein "the Akin group.")

{¶ 9} On February 14, 2018, a second group of heirs filed a will contest complaint

represented by Attorney Lundholm. (Herein "the Lundholm group.")

{¶ 10} On February 26, 2018, appellant filed an amended complaint without leave

of court. He named thirty "plaintiffs" other than himself, but did not serve those unaffiliated

with the Akin or Lundholm groups by certified mail. Throughout this matter, appellant has

1 {¶ 1} Breehl did not testify that day as she had to work, but was subpoenaed to testify at the later will contest trial. Tuscarawas County, Case No. 2020 AP 01 0001 4

persisted in his belief as to how potential heirs should be made parties despite the trial

court's rulings and direction to appellant to the contrary.

{¶ 11} On September 19, 2018, the magistrate dismissed appellant's will contest

complaint for failure to join necessary parties, "subject to possible relief to [appellant] by

way of amended pleading." On October 9, 2018, appellant objected to the magistrate's

decision. On December 5, 2018, the trial court overruled appellant's objections and

adopted the magistrate's decision. Appellant did not file an amended will contest

complaint, nor did he appeal the dismissal of his will contest complaint. He did, however,

file a motion to vacate which essentially disagreed with the trial court's findings dismissing

his will contest. Appellant stated he had properly joined all of the R.C. 2105.06 heirs as

plaintiffs because none of them had refused to be plaintiffs. He further argued if that was

improper, the trial court should have moved "a plaintiff across the aisle to the defendant's

side, and vice versa." While the court indicated appellant should move to re-amend his

complaint, he never did.

{¶ 12} The matter was set for jury trial in the remaining two will contest cases filed

by the Akin and Lundholm groups on May 16, 2019. Before trial began, but after a jury

was impaneled, a settlement agreement was reached between those parties to split the

estate in thirds, distributing one third to each group and one third to Westhoefer. Appellant

was included in the settlement discussions, agreed to the settlement, and received his

proportionate share of the settlement distributed to the Lundholm group.

{¶ 13} Nevertheless, on May 17, 2019, appellant filed a motion to stay approval of

the settlement claiming he and eighteen other heirs were excluded from the settlement

negotiations which constituted a "monumental violation" of his constitutional rights as well Tuscarawas County, Case No. 2020 AP 01 0001 5

as the rights of the other 17 parties. The trial court denied the motion on May 23, 2019.

The court found the settlement agreement had been read into the record and was

approved and adopted in appellant's presence. The court further found because appellant

had no pending claim against Westhoefer, it did not matter that the recited agreement did

not state what if any benefit appellant was to receive. Because he was not a party to the

settlement, the court said, he had no standing to object to plaintiff's settlement with

Westhoefer as plaintiffs had no obligation to benefit other potential heirs who had no

pending claims in the case. The trial court noted that while theoretically, any non-settling

defendants like appellant retained the right to set aside the will, the statute of limitations

for filing a will contest had expired. The judgment entry further stated: "The settlement of

Plaintiff's complaints resolved all will-contest matters pending before this Court."

{¶ 14} On May 29, 2019, appellant filed a Motion to Stay Payments and Estate

Share Division. In this motion appellant claimed the trial court had failed to rule on his

December 21, 2018 motion to vacate the trial court's December 5, 2018 judgment

dismissing his will contest for failure to join necessary parties. Westhoefer filed a

response on May 30, 2019.

{¶ 15} On May 31, Westhoefer filed a final and distributive account with receipts

and disbursements, certificates of service to heirs and beneficiaries, and distribution

according to the will contest settlement agreement. The trial court approved the final

accounting on June 12, 2019.

{¶ 16} On June 5, 2019, appellant cashed the $5,612 check for his proportionate

share of the settlement. Tuscarawas County, Case No. 2020 AP 01 0001 6

{¶ 17} On June 20, 2019, appellant filed a "Motion for Summary Judgment"

wherein appellant argued the probate court erred in admitting the will to probate without

first invalidating any devises and bequests to Westhoefer, citing R.C. 2107.15 which voids

a will's devise to a witness if that witness was essential to establishing the validity of the

will. Appellant also took issue with Kies' capacity to make a will on the day of her death,

alleged Westhoefer engaged in fraud and concealed assets in her capacity as executrix,

and accused counsel for Westhoefer of keeping hidden the fact that Kies' will was invalid

on its face.

{¶ 18} Before any counter-filing or order on his motion, on June 26, 2019, appellant

filed an "Amended Motion for Summary Judgment Alternatively to Vacate Void

Judgment." In this motion appellant argued the probate court's May 16, 2019 judgment

approving the settlement of the will contest actions and dismissal of pending complaints

was void as was the court's August 18, 2017 judgment admitting the will to probate

pursuant to R.C. 2107.15. This motion repeated appellant's arguments that Westhoefer

could not take from the estate pursuant to R.C. 2107.15 and therefore the settlement

entry of May 16, 2019 was void.

{¶ 19} Appellant filed numerous motions thereafter, improper precipices for

subpoenas and a jury demand on his concealment of property complaint. Ultimately the

trial court, in a December 19, 2019 nunc pro tunc judgment entry, denied appellant's

motion and amended motion for summary judgment, overruled his objection to the final

accounting, and denied his complaint for concealment as having no merit. It is from this

judgment entry that appellant appeals. He raises four assignments of error as follow:

I Tuscarawas County, Case No. 2020 AP 01 0001 7

{¶ 20} "THE PROBATE COURT ERRED BY ADMITTING A WILL UNDER R.C.

2107.24: A) THAT WAS INVALID FOR LACK OF A TESTATOR SIGNATURE, AND B)

WITHOUT VOIDING THE DEVISE OF ONE OF THE WITNESSES UNDER R.C.

2107.15; THUS ALLOWING A FRAUD ON THE COURT AND THE STATUTORY

DESCENDANTS."

II

{¶ 21} "THE PROBATE COURT ERRED WHEN IT DISMISSED THE WILL

CONTEST OF A PRO SE STATUTORY HEIR ON THE GROUNDS OF UNLICENSED

PRACTICE OF LAW AND MISJOINDER."

III

{¶ 22} "THE PROBATE COURT ERRED IN APPROVING A SETTLEMENT

AGREEMENT BETWEEN ONLY THIRTEEN OF THE STATUTORY HEIRS AND

APPELLEE WESTHOEFER BECAUSE SAID SETTLEMENT WAS FRAUDULENT,

DETRIMENTAL AND THUS VOID AB INITIO."

IV

{¶ 23} "THE PROBATE COURT ERRED IN DISMISSING APPELLANT PAUL

LEHMANN’S CONCEALMENT COMPLAINT."

I, II, III, IV

{¶ 24} As an initial matter, we note appellant filed this appeal pro se on behalf of

himself and eight other heirs of the decedent. While appellant may certainly represent

himself, he may not, as a non-lawyer, represent others. The unauthorized practice of law

includes the preparation of legal documents for others without proper admission to the Tuscarawas County, Case No. 2020 AP 01 0001 8

practice of law. We therefore consider this appeal only as it applies to appellant Paul

Lehmann.

{¶ 25} Each of appellant's four assignments of error fail for the same reason – he

never properly contested decedent's will

{¶ 26} R.C. 2107.76 addresses will contest actions and provides in relevant part:

No person who has received or waived the right to receive the notice

of admission of a will to probate required by section 2107.19 of the

Revised Code may commence an action permitted by section

2107.71 of the Revised Code to contest the validity of the will more

than three months after the filing of the certificate described in

division (A)(3) of section 2107.19 of the revised code. * * *

{¶ 27} Appellant was properly served with notice of the admission of Kies' will and

does not dispute that fact.

{¶ 28} In appellant's first assignment of error, he argues the probate court erred in

admitting Kies' will because it was invalid for lack of a testator signature, and because the

devise to Westhoefer, a witness to the will, should have been voided. We find appellant's

first assignment of error is not properly before this court.

{¶ 29} Appellant's will contest action was dismissed for failure to join necessary

parties on September 19, 2018, and appellant failed to properly re-file the same. Appellant

later again attempted to challenge admission of the will in June 2019 by way of a motion

for summary judgment. In the magistrate's decision of August 2, 2019, however, the

magistrate concluded appellant's will contest, under the guise of a summary judgment Tuscarawas County, Case No. 2020 AP 01 0001 9

motion two years after the will was admitted to probate, was untimely. The trial court

adopted the magistrate's decision. Appellant therefore never had a valid will challenge in

the probate court and may not therefore challenge the admission/validity of decedent's

will here on appeal.

{¶ 30} In his second assignment of error, appellant faults the probate court for

dismissing his will contest on grounds of misjoinder and the unauthorized practice of law.

{¶ 31} Once the probate court dismissed appellant's will contest, appellant had

two choices. He could have sought leave of court to amend his complaint to comport with

the requirements of R.C. 2107.73, or he could have timely appealed the probate court's

decision. He did neither. Because appellant's complaint was not timely appealed, we are

without jurisdiction to address it.

{¶ 32} In his third assignment of error, appellant argues the probate court erred in

approving the pre-trial settlement without including non-represented parties in the

agreement. The parties appellant appears to refer to are those who had been served with

notice of the probate of the will, but while properly served, failed to appear or respond in

any manner other than though appellant who is not a licensed attorney. Appellant may

not assert the rights of others. Further, according to the trial/settlement transcript in this

matter, appellant was present and included during the settlement negotiations and

received his proportionate share of the settlement.

{¶ 33} In his final assignment of error, appellant argues the probate court erred in

dismissing his concealment complaint. We disagree.

{¶ 34} The record reflects Westhoefer filed an inventory and three partial accounts

which listed household contents. Neither the inventory, nor the three partial accounts Tuscarawas County, Case No. 2020 AP 01 0001 10

were timely contested by any party. Moreover, any household contents were left to

Westhoefer by Kies' will and the two valid will contest actions settled. As we have stated

above, appellant never had a valid will contest before the probate court. Thus, as found

by the probate court, appellant had no standing to bring a complaint for concealment.

{¶ 35} Appellant's four assignments of error are overruled.

{¶ 36} The judgment of the Tuscarawas County Probate Court is affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/rw