Perry v. Bostelman

916 N.E.2d 1095, 183 Ohio App. 3d 281
CourtOhio Court of Appeals
DecidedJuly 17, 2009
DocketNo. WD-08-059
StatusPublished
Cited by1 cases

This text of 916 N.E.2d 1095 (Perry v. Bostelman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Bostelman, 916 N.E.2d 1095, 183 Ohio App. 3d 281 (Ohio Ct. App. 2009).

Opinion

Osowik, Judge.

{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas that denied appellants’ motion for summary judgment on their complaint seeking declaratory judgment as to the validity of a writing regarding the handling of an account established for the care and support of the parties’ ailing mother. For the reasons that follow, the judgment of the trial court is affirmed in part and reversed in part.

{¶ 2} The undisputed facts relevant to the issues raised on appeal are as follows. On August 14, 2000, Lucille Lee executed a power of attorney appointing her children Wilma Bostelman, Ronnie Perry, and Jimmie Perry as her attorneys-in-fact. On March 15, 2001, Lee signed a letter drafted by Jimmie and addressed to Jimmie, Ronnie, and Wilma. The letter indicated that Lee had established in their names a Vanguard money market account in the approximate amount of $216,000. According to the letter, the account was intended to earn a higher rate of interest for Lee’s money and to reduce the amount of future taxes, [283]*283probate fees, and attorney fees she would pay. The letter also specified that the account would be used to provide for Lee during the remainder of her lifetime if necessary and that her sons and daughter would be equal residual beneficiaries of any funds remaining at the time of Lee’s death.

{¶ 3} On May 23, 2007, appellants Jimmie and Ronnie, on behalf of Lucille Lee, filed a complaint seeking declaratory judgment and an accounting in the Wood County Court of Common Pleas. Jimmie and Ronnie sought to establish that Wilma had withdrawn account funds for her own personal use and that Wilma refused to provide statements of the account and remit the funds to Jimmie as Lee’s attorney-in-fact. The complaint alleged that the funds originally placed in the account were needed for Lee’s care and should be returned to Jimmie. Specifically, Jimmie and Ronnie sought a declaratory judgment that Lee had rights in the Vanguard account; that the funds in the account be transferred to Jimmie in an account to be held by him in his exclusive control for Lee’s benefit; that Wilma relinquish all rights in the account, retaining only those rights to any funds remaining upon Lee’s death, and that the conditional gift given to Jimmie, Ronnie, and Wilma failed pursuant to its terms.

{¶ 4} Wilma filed an answer and a counterclaim for declaratory judgment alleging that the March 15, 2001 letter was void because it was the product of fraud and undue influence. She sought a declaration that the writing attached to the complaint was void because Lee was not competent at the time she signed it; that she was an attorney-in-fact for Lee pursuant to a valid power of attorney executed on August 14, 2000; that Lee’s last will and testament of June 11, 1992, was the only valid will, and so a constructive trust must be imposed upon the money in the account.

{¶ 5} In May 2007, the parties filed cross-motions for summary judgment as to all claims in their complaints. This ease was stayed, however, after Wilma initiated proceedings in probate court asking to be appointed Lee’s guardian. Jimmie filed a similar application. After a hearing held April 7, 2008, the probate court determined that Lee was incompetent and, upon stipulation of the parties, named a third party, Dawn Sanderson, an attorney, as guardian of Lee’s estate. The probate court also ordered Wilma to transfer “certain funds” in her possession — totaling approximately $135,000 — to the guardian of the estate and ordered Ronnie to do the same with funds of approximately $25,000 in his possession. The guardian subsequently revoked all powers of attorney previously executed by Lee. The stay was lifted on March 24, 2008, and this matter proceeded in the trial court as set forth below. By stipulation of the parties, Sanderson was joined as a party-plaintiff in this case.

{¶ 6} Upon consideration of the evidence, the trial court concluded that Ronnie and Jimmie (hereafter “appellants”) could not establish any of the elements [284]*284necessary to obtain a declaratory judgment. The tidal court found that Lee’s March 15, 2001 letter, upon which appellants relied in support of their case, could not be the basis for a declaratory-judgment action because it was not a “deed, will, written contract, or other writing constituting a contract” as set forth in R.C. 2721.03. The trial court further found that even if the writing was a proper basis for a declaratory-judgment action, appellants’ case had become moot because Sanderson had revoked all prior powers of attorney made by Lee; therefore, appellants no longer represented Lee’s interests and lacked standing to pursue the action for declaratory judgment and accounting. The trial court found Ronnie and Jimmie’s motion without merit and Wilma’s motion well taken. Lee died August 30, 2008, approximately two weeks after the trial court issued its order on summary judgment.

{¶ 7} Appellants set forth the following assignments of error:

{¶ 8} “First Assignment of Error:

{¶ 9} “The trial court erred when it denied appellants’ motion for summary judgment and granted summary judgment for appellee on appellants’ claim for declaratory judgment.

{¶ 10} “Second Assignment of Error:

{¶ 11} “The trial court erred when it denied appellants’ motion for summary judgment and granted summary judgment for appellee on appellants’ claim for an accounting.

{¶ 12} “Third Assignment of Error:

{¶ 13} “The trial court erred in its determination that Lucille Lee’s death renders moot the entire action below.”

{¶ 14} Our review of summary-judgment determinations is conducted on a de novo basis, applying the same standard used by the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198; Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment will be granted when there remains no genuine issue of material fact and, considering the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).

{¶ 15} We will first address appellants’ third assignment of error, in which they assert that the trial court erred by determining that Lee’s death rendered the entire matter moot. The trial court had found that the guardian appointed in the probate action revoked all prior powers of attorney made by Lee, leaving Jimmie and Ronnie without standing to pursue the action for declaratory judgment and accounting. Shortly after appellants filed their notice of appeal, [285]*285but before they filed their brief in this court, appellee, Wilma, filed a motion to dismiss the appeal, arguing in this court that Lee’s death did in fact render declaratory judgment moot. Appellants opposed dismissal. In a decision released December 15, 2008, this court found that Lee’s death did not render the appeal moot, because the writing on which the declaratory action was based was executed before Lee was determined to be incompetent, and that this court therefore had authority to determine the appeal on its merits. Based on our prior determination as to appellee’s motion to dismiss, we find appellants’ third assignment of error well taken and now consider the merits of appellants’ first and second assignments of error.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Salim v. Smith
2016 Ohio 2764 (Ohio Court of Appeals, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 1095, 183 Ohio App. 3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-bostelman-ohioctapp-2009.