Thomas v. Delgado

2022 Ohio 4235, 201 N.E.3d 1021

• Court: Ohio Court of Appeals
• Decided: November 28, 2022
• Docket: 12-22-06
• Status: Published

Opinion

[Cite as Thomas v. Delgado, 2022-Ohio-4235.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

BELINDA THOMAS,

PLAINTIFF-APPELLANT, CASE NO. 12-22-06

v.

CARLOS S. DELGADO, ET AL., OPINION

DEFENDANTS-APPELLEE.

Appeal from Putnam County Common Pleas Court Trial Court No. 2020 CV 0164

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: November 28, 2022

APPEARANCES:

Drew A. Hanna for Appellant

Barry E. Schroder for Appellee Case No. 12-22-06

ZIMMERMAN, P.J.

{¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

Plaintiff-appellant, Belinda Thomas (“Thomas”), appeals the April 12, 2022

judgment of the Putnam County Court of Common Pleas granting summary

judgment in favor of defendants-appellees, Carlos S. Delgado (“Carlos”), Betty

Luna (“Luna”), and Paul Delgado (“Paul”) (collectively, “defendants”), and

dismissing her complaint. For the reasons that follow, we affirm in part and reverse

in part.

{¶2} This case stems from a dispute over the estate of Adelina Delgado

(“Adelina”). Thomas and the defendants are all adult children and heirs of Adelina.

Adelina was preceded in death by her husband (and the children’s father), Marcos

Delgado (“Marcos”), on January 4, 2004.1 Because Marcos’s death resulted from

asbestos poisoning, Adelina received a large settlement soon after his death.

{¶3} Prior to his death, Marcos managed the family’s financial dealings.

However, following his death, Carlos assumed responsibility for Adelina’s financial

matters. Compare Ross v. Barker, 101 Ohio App.3d 611, 618-119 (2d Dist.1995)

(listing that the decedent was elderly and in poor health when he moved into [the

defendant’s] home. He was dependent on her for all his needs. He was also largely

1 In his affidavit in support of his motion for summary judgment, Carlos avers that Marcos died on January 31, 2004.

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isolated from the other members of his family. [He] was illiterate. He had never

handled his own financial affairs”). Adelina was in her mid-seventies at that time.

{¶4} Further, Carlos (and his family) as well as Luna (and her family)

relocated to Adelina’s residence, resulting in 13 people residing in the residence.

See Fox v. Stockmaster, 3d Dist. Seneca No. 13-01-34, 2002-Ohio-2824, ¶ 3

(“While caring for her father, [the defendant] and her husband lived on the family

farm without paying any rent. [The defendant] did not hire any professionals to help

take care of her father or to clean the home.”). Similarly, Thomas alleges that the

defendants isolated Adelina from “outsiders” and that Adelina “suffered

considerable loss of weight and frequent falls” because the defendants “failed to

provide healthy living quarters for her, and to provide for her reasonable care.”

(Doc. No. 1).

{¶5} Adelina executed a durable power of attorney on January 23, 2004,

appointing Marcos as her attorney in fact and Carlos as her alternate attorney in fact.

The durable power of attorney authorized Adelina’s alternate agent to act with “an

affidavit or certificate of such Alternate Agent that those persons named as prior

Agents are no longer serving.” (Doc. No. 23, Ex. 1). As relevant here, the durable

power of attorney authorized as follows:

(7) Power with Respect to Bank Accounts. My Agent is authorized to * * * write checks on or make withdrawals from * * * all accounts in my name or with respect to which I am an authorized signatory, to negotiate, endorse or transfer any checks or other instruments with

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respect to any such accounts; to contract for any services rendered by any bank or financial institution.

***

(11) Power to Make Gifts. My Agent is authorized to make gifts of tangible or intangible personal property to any person, persons, * * *, or other entities (including specifically and unequivocally my attorney-in-fact named herein).

(Emphasis sic.) (Id.).

{¶6} In her complaint, Thomas alleges that Carlos improperly executed the

following money transfers under the authority of the durable power of attorney.

Between January 25, 2008 and July 26, 2010, Thomas alleges that Carlos effected

a series of cash withdrawals (which Thomas specified as 24 transactions) from

Adelina’s Fort Jennings State Bank account totaling $135,000.00. The record

reflects that Carlos signed the majority of the withdrawal slips in his individual

capacity. However, there are a fraction of withdrawal slips on which Carlos wrote

Adelina’s name (yet signed in his individual capacity); one bearing his name on

which he signed “Carlos S. Delgado P.O.A.”; and one bearing his individual

signature but with the designation “Carlos Delgado for Adelina Delgado.” (Doc.

No. 1, Ex. 2).

{¶7} Between March 25, 2008 and June 18, 2010, Thomas alleges that Carlos

completed a series of cashier’s check withdrawals (which Thomas specified as 15

transactions) made out to various companies and persons from Adelina’s Fort

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Jennings State Bank account totaling $20,455.05. The withdrawal slips reflect the

same issues that the cash-withdrawal slips reveal—that is, some of the withdrawal

slips reflect only Carlos’s name and individual signature, while some reflect that

Carlos marked Adelina’s name (yet signed in his individual capacity). As to the

cashier’s checks, Carlos signed all of the cashier’s checks in his individual capacity

except for two, which are signed “Adelina Delgado”; however, a simple comparison

of the signatures suggests that Carlos forged Adelina’s signature. (Doc. No. 1, Ex.

3).

{¶8} Between February 7, 2011 and October 19, 2011, Thomas alleges that

Carlos completed a series of eight withdrawals from Adelina’s Fort Jennings State

Bank account totaling $1,707.32, which resulted in the closure of the account.

Similarly, between December 2, 2015 and November 28, 2017, Thomas alleges that

Carlos completed a series of check and debit withdrawals (which Thomas specifies

as 18 transactions) totaling $16,371.00 from Adelina’s Union Bank account (1796).

And, between April 29, 2013 and November 21, 2017, Thomas alleges that Carlos

completed a series of seven withdrawals totaling $6,300.00 from Adelina’s Union

Bank account (8011).

{¶9} Furthermore, Thomas alleges that Carlos effected a series of wire

transfers and cashier’s check withdrawals (which Thomas specifies as 16

transactions) from Adelina’s Fort Jennings State Bank account between January 25,

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2008 and December 23, 2010 totaling $138,500.00 to Luna. Importantly, Carlos

indicated Adelina as the sender on the wire transfers but signed all transactions

(except for two) in his individual capacity. On the cashier’s checks, Carlos signed

in his individual capacity, but marked Adelina’s name on some of the withdrawal

slips. Likewise, Thomas alleges that Carlos effected a series of 13 wire transfers

from Adelina’s Fort Jennings State Bank account between January 25, 2008 and

December 7, 2010 totaling $132,000.00 to Paul. Again, Carlos indicated Adelina

as the sender but signed all (except for two) in his individual capacity.

{¶10} In sum, Thomas alleges in her complaint that Carlos improperly

transferred $450,333.37 from Adelina’s bank accounts in his capacity as attorney in

fact for Adelina.2 Likewise, Thomas alleges that Carlos unduly influenced Adelina

to transfer her real property to him on June 8, 2010.

{¶11} On January 16, 2018, the Putnam County Probate Court (“probate

court”) appointed Carlos as Adelina’s guardian.3 A “first and final account” of

2 On November 29, 2021, Thomas filed an amended exhibit list alleging that Carlos improperly withdrew (in his capacity as attorney in fact for Adelina) $500,442.37 from Adelina’s Fort Jennings State Bank account and that he transferred $464,022.37 of those funds to himself and the other defendants. Specifically, Thomas alleges that Carlos improperly transferred (1) $158,487.37 from Adelina’s Fort Jennings State Bank account between January 25, 2008 and October 19, 2011 in a series of 47 transactions; (2) $138,500.00 from Adelina’s Fort Jennings State Bank account (which Thomas specifies as 16 transactions) between January 25, 2008 and December 23, 2010 to Luna; and (3) $132,000.00 from Adelina’s Fort Jennings State Bank account (which Thomas specifies as 13 transactions) between January 25, 2008 and December 7, 2010 to Paul. Thomas further alleges that Carlos improperly transferred (in his capacity as attorney in fact for Adelina) $16,871.00 from Adelina’s Union Bank account (1796) (in a series of 18 transactions) between December 3, 2015 and December 19, 2017 and $6,300.00 (from account 8011) (in a series of 7 transactions) between April 29, 2013 and November 21, 2017 (account 8011). On December 10, 2021, Thomas amended her exhibits to allege that Carlos improperly transferred (in his capacity as attorney in fact for Adelina) $36,057.50 (in a series of 14 transactions) from Adelina’s Union Bank account (1796) between December 2015 and January 2018. 3 Thomas requested that the probate court appoint her as Adelina’s guardian.

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Adelina’s guardianship was provided to the probate court indicating a balance of

$198,771.38 following $223,692.25 in disbursements.4 (Doc. No. 1, Ex. 10).5

{¶12} Adelina died on June 10, 2019. Adelina’s will, which was executed

on August 22, 1984, was admitted to the probate court on October 3, 2019. As

relevant to this case, the will devises equal shares of Adelina’s estate to each of her

children. An “inventory and appraisal” of Adelina’s probate estate was provided to

the probate court reflecting a balance of $10,293.00.6

{¶13} Consequently, Thomas alleges that the defendants misappropriated

$862,503.00 from Adelina, depriving Thomas of $215,626.00 (a 1/4 share of that

4 Only page 11 of 11 of the final account of Adelina’s guardianship was filed in this case. 5 In its entry granting summary judgment in favor of the defendants, the trial court notes that the final account of Adelina’s guardianship was filed with the probate court on December 1, 2019; however, the record reflects that it was file stamped March 30, 2020. (See Doc. No. 1, Ex. 10). Under Evid.R. 201, judicial notice permits a court to accept a well-known and indisputable fact without requiring a party’s proof for the purpose of convenience. NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, ¶ 16 (8th Dist.). “However, a trial court cannot take judicial notice of court proceedings in another case.” Id., citing Campbell v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 97APE05-616, 1997 WL 678199, *2 (Oct. 28, 1997). “Similarly, ‘a trial court may not take judicial notice of prior proceedings in the court even if the same parties and subject matter are involved.’” Id., quoting First Michigan Bank & Tr. Co. v. P. & S. Bldg., 4th Dist. Meigs No. 413, 1989 WL 11915, *4 (Feb. 16, 1989). See also In re Change of Name K.S.G. to K.S.G- B., 3d Dist. Hancock No. 5-20-03, 2020-Ohio-4515, ¶ 9. That is, “[a] trial court ‘may only take judicial notice of prior proceedings in the immediate case.’” NorthPoint Properties at ¶ 16, quoting In re Lodico, 5th Dist. Stark No. 2003-CA-00446, 2005-Ohio-172, ¶ 94. Importantly, “‘[t]he rationale for the rule that a trial court cannot take judicial notice of proceedings in a separate action is that the appellate court cannot review the propriety of the trial court’s reliance on such prior proceedings because that record is not before the appellate court.’” Id., quoting Campbell at *2. 6 In its entry granting summary judgment in favor of the defendants, the trial court notes that the final account of Adelina’s probate estate was filed with the probate court on December 29, 2020; however, the record reflects that it was file stamped on May 8, 2020. (See Doc. No. 1, Ex. 11). Importantly, the Supreme Court of Ohio has authorized trial courts to take judicial notice of its own docket, including the docket in a separate case. In re Change of Name K.S.G. to K.S.G-B. at ¶ 10. However, “[t]he trial court cannot take judicial notice of a docket ‘“‘for the truth of the matters asserted the other litigation,’”’ however, but only ‘“‘to establish the fact of such litigation.’”’” Pollard v. Elber, 6th Dist. Erie No. E-17-050, 2018-Ohio-4538, ¶ 15, quoting State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 20, quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992), quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991).

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amount) of her inheritance of Adelina’s estate. As a result, on December 29, 2020,

Thomas filed a complaint in the trial court asserting eight claims against the

defendants: (1) tortious deprivation of plaintiff’s right to inherit; (2) fraud; (3)

conversion; (4) an accounting; (5) unjust enrichment; (6) a constructive trust; (7) a

lis pendens; and (8) intentional infliction of emotional distress. Importantly,

Thomas sought compensatory and punitive damages as well as the return of

Adelina’s residence to the estate. The defendants filed an answer on February 2,

2021 along with an amended answer on November 8, 2021.

{¶14} On January 28, 2022, the defendants filed a motion for summary

judgment, arguing (in relevant part) that they are entitled to judgment as a matter of

law because the durable power of attorney unequivocally authorized Carlos to

execute the money transfers. The only evidence submitted in support of the

defendants’ motion for summary judgment is an affidavit from Carlos. That same

day, the defendants filed a motion for attorney fees.

{¶15} On February 24, 2022, Thomas filed a memorandum in opposition to

the defendants’ motion for summary judgment, arguing that genuine issues of

material fact remain regarding as to whether Carlos acted within his fiduciary duty

under the durable power of attorney.

{¶16} On April 12, 2022, the trial court granted summary judgment in favor

of the defendants and dismissed the complaint. The trial court concluded that the

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defendants are entitled to judgment as a matter of law since “[a] valid [power of

attorney], a valid transfer of real estate and a valid guardianship plainly indicates

that transfers were conducted legally even though maybe not equally.” (Doc. No.

63). Further, the trial court denied the defendants’ motion for attorney fees.

{¶17} On May 4, 2022, Thomas filed a notice of appeal. She raises three

assignments of error for our review, which we will discuss together.

Assignment of Error No. I

The Trial Court Erred in Granting Summary Judgment As The Procurement of The Power of Attorney By Defendant-Appellee Carlos Delgado Was the Result of Undue Influence.

Assignment of Error No. II

The Trial Court Erred in Granting Summary Judgment in Favor of Defendant-Appellees Because Genuine Issues of Material Fact Remained By Which a Reasonable Mind Could Have Found in Favor of Plaintiff-Appellant on the Issues of:

(1) Tortious Deprivation of Right to Inherit (2) Fraud.

Assignment of Error No. III

The Trial Court Erred in Granting Summary Judgment As to the $188,478 Unaccounted For Between the Termination of the Guardianship and the Opening of the Estate.

{¶18} In her assignments of error, Thomas argues that the trial court erred by

granting summary judgment in favor of the defendants after concluding that there is

no genuine issue of material fact that the transfers were lawfully effected. In

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particular, under her first assignment of error, Thomas argues that there is a genuine

issue of material fact whether the transfers were lawfully effected because “the

procurement of the Power of Attorney by [Carlos] was the result of Undue

Influence.” (Appellant’s Brief at 11). Under her second assignment of error,

Thomas specifically argues that there are genuine issues of material fact as to

whether the defendants intentionally interfered with her expectancy of an

inheritance under Adelina’s will and whether the defendants fraudulently

transferred $862,503.00 from Adelina’s estate. Finally, Thomas contends under her

third assignment of error that judgment in favor of the defendants is improper based

on the $188,478.38 discrepancy between the final account of Adelina’s

guardianship and the final account of Adelina’s probate estate provided to the

probate court.

Standard of Review

{¶19} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing the

evidence in favor of the non-moving party, and the conclusion is adverse to the non-

moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd.

of Edn., 69 Ohio St.3d 217, 219 (1994).

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Analysis

{¶20} We will begin by discussing Thomas’s argument that the trial court

erred by granting summary judgment in favor of the defendants as to her intentional-

interference-with-the-expectancy-of-an-inheritance claim, followed by Thomas’s

argument that the trial court erred by granting summary judgment in favor of the

defendants as to her undue-influence claim. Finally, we will address whether the

trial court erred by granting summary judgment in favor of the defendants as to

Thomas’s fraud claim.

Intentional Interference With The Expectancy Of An Inheritance

{¶21} Resolving that Thomas’s complaint is properly before the general

division of the court of common pleas, we conclude that genuine issues of material

fact as to Thomas’s intentional-interference-with-expectancy-of-an-inheritance

claim remain.7 Compare Love v. Love, 4th Dist. Jackson No. 20CA4, 2021-Ohio-

558, ¶ 33 with Roll v. Edwards, 156 Ohio App.3d 227, 2004-Ohio-767, ¶ 28 (4th

Dist.). See also Firestone v. Galbreath, 895 F.Supp. 917, 927 (S.D.Ohio 1995);

Widdig v. Watkins, 4th Dist. Scioto No. 13-CA-3531, 2013-Ohio-3858, ¶ 36.

{¶22} To prove a claim of intentional interference with the expectancy of an

inheritance, a plaintiff must demonstrate (1) an existence of an expectancy of

7 Because neither the defendants (in their motion for summary judgment or appellee’s brief) nor the trial court addressed the application of the statute of limitations to Thomas’s intentional-interference-with- expectancy-of-inheritance claim, we will not address it for the first time here.

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inheritance; (2) an intentional interference by the defendant with that expectancy of

inheritance; (3) conduct by the defendant involving the interference which is

tortious in nature, such as fraud, duress, or undue influence; (4) a reasonable

certainty that the expectancy of inheritance would have been realized, but for the

interference by the defendant; and (5) damages resulting from the interference.

Firestone v. Galbreath, 67 Ohio St.3d 87, 88 (1993).

{¶23} Here, there is no dispute that Thomas had an expectancy of inheritance

under Adelina’s will. Accord McWreath v. Cortland Bank, 11th Dist. Trumbull No.

2010-T-0023, 2012-Ohio-3013, ¶ 51 (establishing that “the terms of a will or a trust

can suffice, in and of themselves, to establish the existence of a proper expectancy

of an inheritance”), citing Sull v. Kaim, 172 Ohio App.3d 297, 2007-Ohio-3269, ¶

14 (8th Dist.); Beadle v. O’Konski-Lewis, 6th Dist. Lucas No. L-15-1216, 2016-

Ohio-4749, ¶ 18 (establishing that “appellant has an expectancy of inheritance by

virtue of the March 23, 2000 will”). See also Brown v. Ralston, 7th Dist. Belmont

No. 14 BE 0051, 2016-Ohio-4916, ¶ 56; R.C. 2107.04. Nor is there a dispute as to

whether the defendants were aware of the provisions of Adelina’s will. See

Firestone, 895 F.Supp. at 930. See also Brown at ¶ 59.

{¶24} Nonetheless, the parties dispute whether the defendants intentionally

interfered with Thomas’s expectancy of that inheritance through fraud or undue

influence and that, but for the defendants’ conduct, Thomas would have received

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“one fourth of [Adelina’s] Estate, or the sum of $163,125.09.” (Appellant’s Brief

at 13). (See also Appellee’s Brief at 6). Specifically, Thomas contends that there

was “a coordinated effort among [the defendants] to control Adelina so to benefit

from her wealth at her expense and at the expense of [Thomas]” through the power

of attorney to transfer “a total of $862,503.00 of Adelina’s wealth to and among

[Carlos] and the other [defendants]” without disclosing “these transfers to Adelina.”

(Appellant’s Brief at 14-16). The defendants dispute Thomas’s argument and

contend that “gifting, including self-gifting, was permitted under this power of

attorney” and that Adelina “had at least two opportunities (the creation of the power

of attorney and her transfer of her home) to consult with counsel.”8 (Appellee’s

Brief at 5, 7).

{¶25} Generally,

“[f]raud has various elements: (1) a representation (or concealment of a fact when there is a duty to disclose) (2) that is material to the transaction at hand, (3) 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, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the reliance.”

8 The defendants allege that Thomas’s “factual allegations should not be considered under review, as they are not timely.” (Appellee’s Brief at 5). However, “whether to consider an untimely filed affidavit is within the trial court’s discretion” even though “Civ.R. 56(C) is clear that affidavits must be timely filed.” Brown v. Ralston, 7th Dist. Belmont No. 14 BE 0051, 2016-Ohio-4916, ¶ 32, citing Bush v. Dictaphone Corp., 10th Dist. Franklin No. 00AP-1117, 2003-Ohio-883, ¶ 76 and Widlar v. Young, 6th Dist. No. L-05-1184, 2006- Ohio-868, ¶ 37. Since the trial court considered Thomas’s factual allegations provided in her memorandum in opposition to the defendants’ motion for summary judgment, this court will also review those factual allegations in our review of whether summary judgment in favor of the defendants is proper.

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McWreath, 2012-Ohio-3013, at ¶ 61, quoting Volbers-Klarich v. Middletown Mgt.,

125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 27. See also Firestone, 895 F.Supp. at 931

(listing the elements of fraud in connection with an intentional-interference-with-

the-expectancy-of-an-inheritance claim). “‘[O]ne who fails to disclose material

information prior to the consummation of a transaction commits fraud only when

he is under a duty to do so. And the duty to disclose arises when one party has

information “that the other [party] is entitled to know because of a fiduciary or other

similar relation of trust and confidence between them.”’” Universal Real Estate

Sols., Inc. v. Snowden, 9th Dist. Summit No. 27171, 2014-Ohio-5813, ¶ 12, quoting

State v. Warner, 55 Ohio St.3d 31, 54 (1990), quoting Chiarella v. United States,

445 U.S. 222, 228, 100 S.Ct. 1108 (1980).

{¶26} Alternatively, the elements of undue influence require proof that “(1)

the testator was susceptible to undue influence, (2) another person had an

opportunity to exert influence over the susceptible testator, (3) improper influence

was exerted or attempted and (4) a result showing the effect of such influence.”

Young v. Kaufman, 8th Dist. No. 104990, 2017-Ohio-9015, ¶ 52. See also Firestone

at 931 (listing the elements of undue influence in connection with an intentional-

interference-with-the-expectancy-of-an-inheritance claim). “‘Undue influence

occurs when the wishes and judgment of the transferor are substituted by the wishes

and judgment of another.’” Simon v. Aulino, 4th Dist. Adams No. 18CA1076, 2020-

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Ohio-6962, ¶ 22, quoting Grimes v. Grimes, 4th Dist. Washington No. 08CA35,

2009-Ohio-3126, ¶ 36. “Exercise of undue influence ‘need not be shown by direct

proof, but maybe inferred from the circumstances.’” Id. at ¶ 41, quoting Calloway

v. Roy, 10th Dist. Franklin No. 77AP-301, 1977 WL 200400, *3 (Sept. 8, 1977).

{¶27} “However, undue influence is presumed if the challenging party

establishes a fiduciary or confidential relationship existed between the decedent and

a beneficiary.” (Emphasis added.) Foelsch v. Farson, 5th Dist. Knox No.

19CA000036, 2020-Ohio-1259, ¶ 17. See also Young at ¶ 55; Ciszewski v.

Kolaczewski, 9th Dist. Summit No. 26508, 2013-Ohio-1765, ¶ 11 (“Where a

confidential relationship exists between the donor and the donee, a presumption of

undue influence arises.”). “A fiduciary relationship is ‘a relationship “in which

special confidence and trust is reposed in the integrity and fidelity of another and

there is a resulting position of superiority or influence, acquired by virtue of this

special trust.”’” Ciszewski at ¶ 10, quoting Ed Schory & Sons, Inc. v. Soc. Natl.

Bank, 75 Ohio St.3d 433, 442 (1996), quoting In re Termination of Employment of

Pratt, 40 Ohio St.2d 107, 115 (1974). “A fiduciary’s role may be assumed by formal

appointment or may arise from a more informal confidential relationship, wherein

‘one person comes to rely on and trust another in his important affairs and the

relations there involved are not necessarily legal, but may be moral, social,

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domestic, or merely personal.’” Foelsch at ¶ 20, quoting Craggett v. Adell Ins.

Agency, 92 Ohio App.3d 443, 451 (8th Dist.1993).

{¶28} In this case, Thomas alleges that genuine issues of material fact remain

as to whether Carlos violated his fiduciary duty to Adelina by making gifts to

himself as well as to Luna and Paul under the durable power of attorney. “A power

of attorney is a written instrument that authorizes an agent to perform specific acts

on behalf of his principal.” Bacon v. Donnet, 9th Dist. Summit No. 21201, 2003-

Ohio-1301, ¶ 28. “The holder of a power of attorney has a fiduciary relationship

with his or her principal and is not required to have used the power of attorney for

a confidential or fiduciary relationship to arise.” Young at ¶ 57, citing In re Estate

of Kiefer, 2d Dist. Miami No. 2016-CA-12, 2017-Ohio-6997, ¶ 12 and Bayes v.

Dornon, 2d Dist. Clark No. 2014-CA-129, 2015-Ohio-3053, ¶ 48, 50. Because

“[t]he holder of a power of attorney has a fiduciary relationship with the principal,”

the “fiduciary relationship imposes a duty of loyalty to the principal.” Temple v.

Temple, 3d Dist. Marion No. 9-14-26, 2015-Ohio-2311, ¶ 29, citing In re Scott, 111

Ohio App.3d 273, 276 (6th Dist.1996).

{¶29} “The law is zealous in guarding against abuse of such a relationship.”

Bacon at ¶ 30, citing In re Termination of Employment of Pratt at 115. “Any transfer

of property from a principal to his attorney-in-fact is viewed with some suspicion.”

Id., citing Studniewski v. Krzyzanowski, 65 Ohio App.3d 628, 632 (6th Dist.1989).

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Indeed, “attorneys-in-fact act outside the scope of their authority when they use a

general, durable power of attorney to make gifts to themselves.” MacEwen v.

Jordan, 1st Dist. Hamilton No. C-020431, 2003-Ohio-1547, ¶ 11.

{¶30} Importantly, “a general, durable power of attorney does not authorize

attorneys-in-fact to transfer the principal’s property to themselves or to others,

unless the power of attorney explicitly confers this power.” Id. at ¶ 12. See also

Hutchings v. Hutchings, 6th Dist. Sandusky No. S-19-008, 2019-Ohio-5362, ¶ 28

(observing that “without the express authority to self-deal, any transfer of assets

using a power of attorney [is] presumptively invalid”); Temple at ¶ 29. See also

R.C. 2109.44. “This rule applies to both transfers made to the attorney-in-fact and

gifts to third parties.” Lance v. Boldman, 9th Dist. Wayne No. 16AP0032, 2018-

Ohio-44, ¶ 38. “In such a case, the attorney-in-fact is obligated to demonstrate the

fairness of his conduct.” Bacon at ¶ 30, citing In re Scott at 276, In re Estate of

Case, 2d Dist. Montgomery No. 16747, 1998 WL 151141, *3 (Apr. 3, 1998), and

In re Estate of Harmon, 9th Dist. Wayne No. 95CA0066, 1996 WL 304281, *1

(June 5, 1996) (“It is a most egregious violation of a fiduciary’s duty to abuse the

relationship through acts of self-dealing.”). In other words, “where * * * the

principal has made an express grant of authority to an attorney-in-fact to make gifts

to third persons, including the attorney-in-fact, the attorney-in-fact may, in the

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absence of evidence of undue influence upon the principal, make such gifts.”

MacEwen at ¶ 12.

{¶31} “Notwithstanding any express authority included in a power of

attorney to make gifts to oneself and to create trusts, a fiduciary remains subject to

a standard of care.” Bacon at ¶ 44. See also MacEwen at ¶ 13 (“While this grant of

authority effectively extinguishes any duty the attorney-in-fact has to avoid self-

dealing, it does not remove all obligations owed to the principal.”). “The fiduciary,

therefore, continues to be bound by the overriding duty of loyalty to act for the

benefit of the principal and not for the benefit of himself.” (Emphasis added.)

Bacon at ¶ 44. “Any gifts must be made in the best interests of the principal and

solely to further the interests of the principal, even at the expense of the agent’s

interests.” Id. That is, “[a] fiduciary may not use the special confidence and trust

which a fiduciary duty imposes to acquire or retain property for himself.” Id. at ¶

45, citing Connelly v. Balkwill, 160 Ohio St. 430, 440-441 (1954), Gotthardt v.

Candle, 131 Ohio App.3d 831, 835 (7th Dist.1999), and In re Scott at 276. “Thus,

attorneys-in-fact bear the initial burden of proving the validity of a transfer to

themselves [or a third party] under the power of attorney, while the party attacking

the transfer retains the ultimate burden of proving undue influence by clear and

convincing evidence.” MacEwen at ¶ 13. See also Lance at ¶ 39. “‘The donee may

rebut the presumption of undue influence by a preponderance of the evidence.’”

-18- Case No. 12-22-06

Fox, 2002-Ohio-2824, at ¶ 51, quoting In re Guardianship of Blumetti, 11th Dist.

Trumbull No. 92-T-4752, 1994 WL 45250, *3 (Jan. 14, 1994).

{¶32} “‘Clear and convincing evidence’ is more than a preponderance of the

evidence, but does not rise to the level of certainty required by the beyond a

reasonable doubt standard in criminal cases.” Young, 2017-Ohio-9015, at ¶ 52. “It

is that measure or degree of proof that produces in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established.” Id. However,

“[b]ecause ‘the person who can give the best evidence is dead,’ most evidence of

undue influence ‘will be circumstantial, leaving the factfinder to draw permissible

inferences.’” Young at ¶ 52, quoting Redman v. Watch Tower Bible & Tract Soc. of

Pennsylvania, 69 Ohio St.3d 98, 102 (1994).

{¶33} When “determining the validity of such a transfer, a court must first

look to the express grant of authority in the text of the power of attorney. Absent

that grant, the transfer is presumptively invalid.” MacEwen at ¶ 14.

A court must next look to other considerations, based upon the unique facts of the case, which may include whether a transfer depleted assets necessary to maintain the principal’s lifestyle; whether the principal knew of the gift and authorized it in some manner; whether the recipient of the transfer was the natural object of the principal’s bounty and affection; whether the transfer was consistent with the principal’s estate plan; whether the gift was a continuation of the principal’s pattern of making gifts; and whether the transfer was made for another legitimate goal, such as the reduction of estate taxes.

Id.

-19- Case No. 12-22-06

{¶34} In this case, there is no dispute that Carlos was Adelina’s attorney-in-

fact and that the power of attorney expressly authorized Carlos to make gifts to third

parties (including himself). Indeed, the trial court granted summary judgment in

favor of the defendants after concluding that the power of attorney authorized Carlos

“to make gifts to himself or to others as he saw appropriate.” (Doc. No. 63).

However, the trial court did not analyze whether Carlos satisfied his burden of

proving the validity of any of the transactions—that is, the trial court did not analyze

whether Carlos demonstrated the fairness of his actions in making the gifts to any

third party or to himself or whether the transfers were free of undue influence. See

Cartwright v. Batner, 2d Dist. Montgomery No. 25938, 2014-Ohio-2995, ¶ 4

(holding that the trial court failed to address whether the defendant rebutted the

presumption when “[t]here was sufficient evidence of transfers of funds to [the

defendant], causing the burden to shift to [the defendant] to show that his conduct

was free of undue influence and fraud”). Instead, the trial court assumed that the

transactions must have been legitimate because Adelina did not revoke the power

of attorney and because the probate court appointed Carlos as Adelina’s guardian,

which “enabled additional oversight by the probate court to ensure that assets and

expenses were appropriately maintained.” (Id.).

-20- Case No. 12-22-06

Self-Dealing

{¶35} The record reflects that Carlos engaged in several self-dealing

transactions. See Bacon, 2003-Ohio-1301, at ¶ 34 (concluding “that the moving

parties met their initial burden” of proving that “the evidence of self-dealing created

a presumption that the [transfer] was invalid as a matter of law”). See also Fox,

2002-Ohio-2824, at ¶ 54. Importantly, the record reflects that Carlos not only had

access to Adelina’s bank accounts but that he used them to benefit himself.

Compare Young, 2017-Ohio-9015, at ¶ 62 (analyzing that “although [the defendant]

was [the decedent’s] attorney-in-fact and had access to certain of [her] bank and

credit card accounts, there was no evidence she used them to benefit herself”). See

also Fox at ¶ 38 (detailing the defendant’s self-dealing by noting that she “wrote

several checks from [the decedent’s] Credit Union account totaling $11,000” and

“made $12,9006 in withdrawals to ‘cash’ from the [decedent’s] Family Trust

signing [the decedent’s] name as trustee”).

{¶36} Indeed, Thomas identified (with particularity) in her complaint the

following self-dealing transfers made by Carlos in his capacity as attorney in fact

for Adelina: (1) a series of cash withdrawals (which Thomas specified as 24

transactions) from Adelina’s Fort Jennings State Bank account totaling

$135,000.00; (2) a series of eight withdrawals from Adelina’s Fort Jennings State

Bank account totaling $1,707.32 and resulting in the closure of that account; (3) a

-21- Case No. 12-22-06

series of check and debit withdrawals (which Thomas specified as 18 transactions)

from Adelina’s Union Bank account (1796) totaling $16,371.00; and (4) a series of

seven withdrawals totaling $6,300.00 from Adelina’s Union Bank account (8011).9

{¶37} Because “[s]elf-dealing by a fiduciary creates a presumption that the

action is invalid, * * * an attorney-in-fact is obligated to demonstrate the fairness of

his conduct.” Castro v. Castro, 8th Dist. No. 98710, 2013-Ohio-1347, ¶ 28, citing

Bacon at ¶ 30. See also Fox at ¶ 54 (asserting that “the burden rested with [the

defendant] to show that her conduct was free of undue influence and that [the

decedent] voluntarily acted with full knowledge of the consequences of his actions

by a preponderance of the evidence” since the defendant “was in a fiduciary

relationship with [the decedent] as his Power of Attorney” and because “several

changes were made to [the decedent’s] estate plan which increased the amount of

[the decedent’s] estate [the defendant] would receive” during the fiduciary

relationship). Therefore, we must assess whether there is a genuine issue of material

fact that the defendants demonstrated—by a preponderance of the evidence—that

the foregoing self-dealing transfers were free from undue influence. See Fox at ¶

54.

{¶38} Based on our review of the record, we conclude that genuine issues of

material fact remain as to whether the defendants satisfied that burden. See id. at ¶

9 Thomas amended her contention to allege that Carlos withdrew (in his capacity as attorney in fact for Adelina) $36,057.50 from Adelina’s Union Bank account (1796).

-22- Case No. 12-22-06

38 (noting that the defendant “failed to produce any credible evidence to rebut the

undue influence” and that “[t]he majority of the testimony [the defendant] relies on

to prove that [the decedent] was not unduly influenced was her own”).

Significantly, instead of fulfilling the obligation of producing evidence supporting

their position while demonstrating the absence of evidence that would support

Thomas’s case, Carlos merely casts aside Thomas’s claims of self-dealing with a

broad-brush denial. See Fox at ¶ 54 (underscoring that the defendant “failed to

produce any credible evidence to rebut the undue influence other than the fact that

[the decedent’s] signature was on the documents”). See also Cartwright, 2014-

Ohio-2995, at ¶ 80 (“Instead of explaining the amounts that were expended, and

offering proof that they were legitimate expenses on [the decedent’s] behalf, or at

her behest, [the defendant] professed ignorance even of payments made for his own

mortgage.”).

{¶39} Relevantly, the only evidence put forth by Carlos alluding to the

validity of the self-dealing transfers is a self-serving affidavit in which Carlos avers

that Adelina “instructed [him] to give gifts to family members from time to time”

and that he “never received any funds from [Adelina], or distributed any gifts for

[Adelina] without her instructions to do so.” (Doc. No. 54, Ex. A). Accord Brown,

2016-Ohio-4916, at ¶ 63 (underscoring that “the only evidence of [the defendant’s]

alleged reason for the transfers were her own self-serving statements”); Love, 2021-

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Ohio-558, at ¶ 41 (noting that “appellant presented no evidence other than his own

testimony” when assessing, in part, whether summary judgment was appropriate).

Carlos further asserts that Adelina instructed him to “get money out of her account

in order to gift [Thomas] * * * .” (Id.).

{¶40} In other words, Carlos’s rudimentary denial of Thomas’s claims does

not satisfy his burden of proving the fairness of his conduct or the validity of the

self-dealing transactions identified by Thomas. See Bacon at ¶ 45 (“The fact that

[the defendant] was expressly authorized by a DPA to make gifts of [the decedent’s]

property is irrelevant if the act was done for a purpose that constituted a breach of

his duty of loyalty.”). For instance, applying Carlos’s denial to the self-dealing

transactions, Carlos failed to identify which of the specific transactions isolated by

Thomas that Adelina instructed him to distribute as gifts or which transactions were

allegedly gifts to Thomas. See In re Guardianship of Blumetti, 1994 WL 45250, at

*4 (documenting that, “although each of the alleged beneficiaries testified that [the

donor] had intended to give them the monies in question, no one testified as to the

specific statements made by [the donor]; and [the beneficiaries] testified that they

could not recall if she had ever told them that she wanted to give them the money”).

{¶41} Specifically, other than Carlos’s self-serving affidavit, there is no

other evidence in the record that Adelina intended for the self-dealing transactions

to be gifts to anyone. See Fox at ¶ 38 (noting that the defendant alleged that she

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“used the funds from the accounts and the trust to make repairs to [the decedent’s]

properties and to pay for legal fees” but “did not provide any documentation to

evidence these repairs nor did she produce any document authorizing her to

withdraw these funds”). Significantly, Carlos did not assert that Adelina intended

for any of the self-dealing transfers to be a gift to him. See Cartwright at ¶ 73

(detailing the transactions conducted from the decedent’s accounts and concluding

that the defendant “never presented any evidence indicating that these payments

were made on [the defendant’s] behalf, rather than his”). Consequently, we

conclude that Carlos’s abstruse denial does not satisfy his burden of demonstrating

an absence of a genuine issue of material fact regarding the validity of those self-

dealing transactions—that is, that the transactions were free from undue influence.

See Bacon at ¶ 42. See also Castro at ¶ 28; Fox at ¶ 57.

{¶42} Similarly, we conclude that reasonable minds could reach different

conclusions as to whether those self-dealing transfers were procured through fraud

since Carlos was under a duty to disclose material information prior to conducting

those transactions. In addition to the foregoing evidence, Thomas presented

evidence suggesting that Carlos misrepresented his authority to conduct the self-

dealing transactions.

{¶43} Specifically, as to the series of cash withdrawals (which Thomas

specified as 24 transactions) from Adelina’s Fort Jennings State Bank account

-25- Case No. 12-22-06

totaling $135,000.00, Thomas presented evidence that Carlos signed the majority of

the withdrawal slips in in his individual capacity and that Carlos wrote Adelina’s

name (yet signed in his individual capacity) on a small fraction of the withdrawal

slips. Importantly, Thomas presented evidence that Carlos signed only one

withdrawal slip as “Carlos S. Delgado P.O.A.” and that only one withdrawal slip

bears Carlos’s individual signature but with the designation “Carlos Delgado for

Adelina Delgado.” (Doc. No. 1, Ex. 2).

{¶44} Furthermore, as to the remaining self-dealing transactions from

Adelina’s Fort Jennings State Bank account (resulting in the closure of the account)

and the transactions from Adelina’s Union Bank accounts, Thomas argues that

Carlos did not present any evidence to demonstrate the absence of a genuine issue

of material fact that the transactions were authorized by Adelina. In particular,

Carlos’s general denial that he did not receive any “funds from [Adelina], or

distribute[] any gifts for [Adelina] without her instruction to do so” does not identify

which of those transactions were authorized as gifts or to whom the alleged gift was

intended. Indeed, many of the withdrawals from Adelina’s Union Bank account

(1796) reflect personal checks written for relatively small amounts. However,

Carlos did not provide any documentation evidencing the purpose of those personal

checks. Likewise, many of the transactions from that account reflect purchases from

retail stores—e.g., Wal-Mart, including many transactions on the same day.

-26- Case No. 12-22-06

{¶45} Therefore, based on our de novo review of the record, and after

construing the facts in light most favorable to Thomas (as we are required to do),

we conclude that genuine issues of material fact remain as to the validity of the

transfers that Carlos executed in his capacity as Adelina’s attorney in fact for his

own benefit. See Alibrando v. Miner, 5th Dist. Licking No. 2021 CA 0010, 2021-

Ohio-2827, ¶ 21.

Third-Party Beneficiaries

{¶46} Furthermore, because Carlos was Adelina’s attorney-in-fact, a

fiduciary relationship existed between Carlos and Adelina, giving rise to a

presumption of undue influence by Carlos to effect transfers to third-party

beneficiaries. Accord Young, 2017-Ohio-9015, at ¶ 55, 61. See also Fox, 2002-

Ohio-2824, at ¶ 53. “Where a presumption of undue influence arises based on the

existence of a confidential or fiduciary relationship between a donor and a

beneficiary, ‘the burden of going forward with evidence’ shifts to the beneficiary

accused of exercising undue influence to show that his or her conduct was free from

undue influence.” Young at ¶ 59, quoting Landin v. Lavrisiuk, 8th Dist. Cuyahoga

No. 84893, 2005-Ohio-4991, ¶ 23, and citing Ryerson v. White, 8th Dist. Cuyahoga

No. 100547, 2014-Ohio-3233, ¶ 17. See also Huntington v. Riversource, 7th Dist.

No. Mahoning 14 MA 90, 2015-Ohio-5600, ¶ 41. Again, “[t]he beneficiary may

rebut the presumption by demonstrating [by a preponderance of the evidence] that

-27- Case No. 12-22-06

the donor acted voluntarily, in an exercise of his or her free will, with a full

understanding of his or her actions and their consequences.” Young at ¶ 59, citing

In re Guardianship of Simmons, 6th Dist. Wood No. WD-02-039, 2003-Ohio-5416,

¶ 26. See also Ciszewski, 2013-Ohio-1765, at ¶ 11. Nevertheless, “‘the party

attacking the transfer retains the ultimate burden of proving undue influence by clear

and convincing evidence.’” Young at ¶ 59, quoting Ament v. Reassure Am. Life Ins.

Co., 180 Ohio App.3d 440, 2009-Ohio-36, ¶ 38, 40 (8th Dist.), and citing In re

Estate of Eyrich, 11th Dist. Trumbull No. 2016-T-0002, 2016-Ohio-7165, ¶ 25 and

Evid.R. 301.

{¶47} Here, Thomas alleges that Carlos (in his capacity as Adelina’s attorney

in fact) directed the following transfers: (1) a series of cashier’s check withdrawals

(which Thomas specified as 15 transactions) made out to various companies and

persons from Adelina’s Fort Jennings State Bank account totaling $20,455.05; (2) a

series of wire transfers and cashier’s check withdrawals (which Thomas specifies

as 16 transactions) from Adelina’s Fort Jennings State Bank account totaling

$138,500.00 to Luna; (3) a series of 13 wire transfers from Adelina’s Fort Jennings

State Bank account totaling $132,000.00 to Paul; and (4) the transfer of Adelina’s

real property to Carlos. Based on Thomas’s assertions, a presumption of undue

influence arose, and Carlos (in his capacity as attorney in fact) is required to rebut

that presumption by demonstrating (by a preponderance of the evidence) that the

-28- Case No. 12-22-06

transfers were free from undue influence. However, based on our review of the

record, we conclude that genuine issues of material fact remain as to whether Carlos

(in his capacity as attorney in fact) rebutted that presumption of undue influence.

Moreover, the record reflects genuine issues of material fact as to whether those

transactions were procured through fraud.

{¶48} Chiefly, Carlos’s affidavit provides no explanation as to the validity

of the transactions identified by Thomas concerning the series of cashier’s check

withdrawals made out to various companies and persons. See Cartwright, 2014-

Ohio-2995, at ¶ 77-79 (reviewing the decedent’s financial statements and

proclaiming that they reflected “disturbing trends” because “the pattern of

expenditures [was] unusual for a person in [the decedent’s] position”). That is,

Carlos did not indicate whether Adelina instructed Carlos to effect those

transactions, whether they were for Adelina’s benefit, or whether Adelina ratified

those transactions. See Bacon, 2003-Ohio-1301, at ¶ 51. See also Cartwright at ¶

72 (asserting that “[u]nless [the defendant] showed [the decedent] the statements

(and there is no indication that he did this), only [the defendant] would have known

what amounts were being expended”).

{¶49} Similarly, Carlos’s affidavit does not indicate who withdrew the funds

from Adelina’s Fort Jennings State Bank account resulting in the closure of that

account or who withdrew the funds from Adelina’s Union Bank accounts.

-29- Case No. 12-22-06

Likewise, there is no evidence in the record indicating whether Adelina instructed

Carlos to effect those transactions, whether those transactions were for Adelina’s

benefit, or whether Adelina ratified them. Moreover, Carlos did not provide any

other evidence—e.g., an affidavit or deposition testimony from the bank or

beneficiary of the cashier’s checks—indicating that the transactions were at

Adelina’s direction, for Adelina’s benefit, or ratified by Adelina. Compare Modie

v. Andrews, 9th Dist. Summit No. 19543, 2000 WL 1026682, *5 (July 26, 2000)

(acknowledging that “[t]he bank officer who closed the certificate of deposit and

the savings account testified that she spoke with [the decedent] on the phone

regarding the accounts and that [the decedent] confirmed that the accounts were to

be closed” and that the attorney in fact consulted with the decedent regarding

transactions).

{¶50} Moreover, the withdrawal slips connected to the series of cashier’s

check withdrawals (which Thomas specified as 15 transactions) made out to various

companies and persons from Adelina’s Fort Jennings State Bank accounts totaling

$20,455.05 reflect the same issues that the cash-withdrawal slips reveal.

Specifically, some of the withdrawal slips reflect only Carlos’s name and individual

signature, while some reflect that Carlos marked Adelina’s name (yet signed in his

individual capacity). As to the cashier’s checks, Carlos signed all of the cashier’s

checks in his individual capacity except for two, which are signed “Adelina

-30- Case No. 12-22-06

Delgado”; however, a simple caparison of the signatures suggests that Carlos forged

Adelina’s signature. (Doc. No. 1, Ex. 3).

{¶51} As evidence demonstrating an absence of a genuine issue of material

fact, Carlos avers only that Adelina authorized him to distribute gifts. However, the

cashier’s check withdrawals made out to companies—including the Overhead Door

Company of Findlay, Lowe’s, Meyers Hauling, Riley’s Carpet, and the Putnam

County Treasurer—do not suggest that those withdrawals signified that they were

gifts. Importantly, Carlos does not aver that he made any withdrawals (including

the cashier’s check withdrawals made out to companies) for Adelina’s benefit.

{¶52} As to the wire transfers and cashier’s check withdrawals authorized by

Carlos to Paul and Luna, other than Carlos’s generalized averment that Adelina

“instructed [him] to give gifts to family members from time to time,” the defendants

did not provide any evidence reflecting that Adelina intended for the funds to be

gifts or an advancement on their inheritance. (Doc. No. 54, Ex. A). In other words,

Carlos did not detail the fairness of his actions by making those gifts to Paul and

Luna. Specifically, Carlos did not specify whether Adelina instructed him to gift

large sums of money to Paul or Luna. Conversely, Carlos detailed in his affidavit

that Adelina “request[ed] that [he] get money out of her account in order to gift to

[Thomas].” (Id.). However, there is no evidence of in the record that Thomas

received any gifts from Carlos or Adelina. Likewise, neither Paul nor Luna

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presented an affidavit bolstering Carlos’s contentions that (at least the series of wire

transfers or cashier’s check withdrawals remitted to Paul and Luna) were gifts from

Adelina or that Adelina authorized or ratified the transfers as gifts.

{¶53} Furthermore, the wire transfers reflect many of the issues

demonstrated by the cash and cashier’s check withdrawals. Specifically, Carlos

indicated Adelina as the sender on the wire transfers (to Luna as well as Paul) but

signed all (except for two) in his individual capacity. On the cashier’s checks,

Carlos signed in his individual capacity, but marked Adelina’s name on some of the

withdrawal slips.

{¶54} Finally, the transfer of Adelina’s real property to Carlos is

troublesome. Even though the face of the deed reflects that it was executed by

Adelina, our analysis does not end there. “‘“A deed executed in the correct form is

presumed to be valid and will not be set aside except upon clear and convincing

evidence.”’” Estate of Everhart v. Everhart, 12th Dist. Madison No. CA2013-07-

019, 2014-Ohio-2476, ¶ 35, quoting Fewell v. Gross, 12th Dist. Butler No. CA2006-

04-096, 2007-Ohio-5788, ¶ 27, quoting Henkle v. Henkle, 75 Ohio App.3d 732, 735

(12th Dist.1991). However, a presumption of undue influence arises from the

existence of a fiduciary relationship, which must be rebutted by the beneficiary to

demonstrate the absence of undue influence by a preponderance of the evidence.

See Lawarre v. Fifth Third Secs., Inc., 1st Dist. Hamilton No. C-110302, 2012-

-32- Case No. 12-22-06

Ohio-4016, ¶ 132; Hardy v. Fell, 8th Dist. Cuyahoga No. 88063, 2007-Ohio-1287,

¶ 21, 24. If the beneficiary successfully rebuts that presumption, the burden returns

to the “‘“party seeking rescission and cancellation of a deed”’” to prove by clear

and convincing evidence that it was obtained through undue influence. Everhart at

¶ 35, quoting Fewell at ¶ 27, quoting Henkle at 735.

{¶55} Indeed, as Adelina’s attorney-in-fact, a presumption of undue

influence by Carlos results. Accord Sigler v. Burk, 3d Dist. Crawford No. 3-16-19,

2017-Ohio-5486, ¶ 89. Nevertheless, based on our review of the record, we

conclude that reasonable minds could disagree as to whether Carlos rebutted the

presumption (by a preponderance of the evidence) that Adelina was unduly

influenced to transfer her real property to him. See Castro, 2013-Ohio-1347, at ¶

28.

{¶56} Even though Carlos avers in his affidavit that Jill Welch (“Welch”)—

the attorney that prepared the durable power of attorney and the deed—“was never

previously or at any time now, [his] attorney,” Carlos did not provide an affidavit

or deposition testimony from Welch supporting his assertion. (Doc. No. 54, Ex. A).

See Lake Royale Landowners Assn. v. Dengler, 11th Dist. Portage No. 2022-P-0021,

2022-Ohio-2929, ¶ 31 (noting that “courts have found that an attorney/notary’s

testimony holds a ‘special credence’ when testamentary capacity is in dispute”);

Huntington, 2015-Ohio-5600, at ¶ 42. Likewise, even though Carlos avers that

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Adelina transferred her real property to him based on Welch’s advice “to gift said

property to one or more of her children and remove her name from the property for

long term care planning purposes,” the record is devoid of any evidence from Welch

sustaining that assertion. (Doc. No. 54, Ex. A). Compare Estate of Kretzler v.

Kretzler, 5th Dist. Fairfield No. 15-CA-18, 2015-Ohio-4776, ¶ 18 (noting that the

moving party presented the deposition of the attorney who prepared the decedent’s

will to demonstrate the absence of a genuine issue of material fact as to the non-

moving party’s claim that the will was procured by fraud, duress, or undue

influence).

{¶57} Furthermore, the legal documents themselves do not support Carlos’s

burden of demonstrating the validity of the property transfer—that is, neither the

durable power of attorney nor the deed alone make it more probable that the transfer

of Adelina’s residence was free from undue influence. Significantly, the durable

power of attorney and the deed reveal that Welch also notarized each legal

document. Accord Lake Royale Landowners Assn. at ¶ 31 (noting that an attorney

is a necessary witness “because he notarized the limited power of attorney that the

principal executed while allegedly mentally incompetent”), citing In re

Guardianship of Carney, 8th Dist. Cuyahoga No. 110034, 2021-Ohio-1819, ¶ 29-

31. In other words, neither legal document bears the signature of an independent,

third-party witness verifying the veracity of the documents. See Firestone, 895

-34- Case No. 12-22-06

F.Supp. at 931 (listing the evidence presented by the defendants); Lake Royale

Landowners Assn. at ¶ 31 (documenting that an “attorney for a personal

representative was properly disqualified where the attorney prepared and notarized

the will and where the issues before the trial court concerned the testamentary

capacity of the decedent and undue influence”), citing Eccles v. Nelson, 919 So.2d

658, 660-661 (Fla.App.2006). See also Landmark Properties, L.L.C. v. Trent, 4th

Dist. Pike No. 16CA862, 2016-Ohio-8574, ¶ 24 (“Interestingly, the affidavit was

prepared and notarized by Landmark’s attorney.”). Thus, we conclude that the

defendants failed to satisfy their burden.

Unaccounted Distributions from Adelina’s Guardianship and Estate

{¶58} In her third assignment of error, Thomas alleges that the trial court

erred by granting summary judgment in favor of the defendants because genuine

issues of material fact remain concerning $184,478.00 in unaccounted for

distributions from Adelina’s estate. Specifically, Thomas avers that Carlos

provided the probate court a “first and final account” of Adelina’s guardianship

reflecting a balance of $198,771.38. (Doc. No. 1, Ex. 10). However, Thomas avers

that the defendants provided the probate court an “inventory and appraisal” of

Adelina’s probate estate reflecting a balance of $10,293.00. Accordingly, Thomas

contends that there are genuine issues of material fact as to whether the defendants

perfected any disbursement between the first and final account of Adelina’s

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guardianship and the “inventory and appraisal” of Adelina’s probate estate through

undue influence or fraud.

{¶59} “‘[T]he power to define the jurisdiction of the courts of common pleas

rests in the General Assembly and * * * such courts may exercise only such

jurisdiction as is expressly granted to them by the legislature.’” Dumas v. Estate of

Dumas, 68 Ohio St.3d 405, 408 (1994), quoting Seventh Urban, Inc. v. Univ. Circle

Property Dev., Inc., 67 Ohio St.2d 19, 22 (1981). Specifically, “‘[t]he court of

common pleas is a court of general jurisdiction. It embraces all matters at law and

in equity that are not denied to it.’” Id., quoting Saxton v. Seiberling, 48 Ohio St.

554, 558-559 (1891).

{¶60} “The probate court is a court of limited jurisdiction, and therefore it

can only exercise jurisdiction when authority is expressly construed by statute.”

Lamar v. Washington, 3d Dist. Allen No. 1-05-54, 2006-Ohio-1414, ¶ 15. See

Campbell, v. Donald A. Campbell 2001 Trust, 8th Dist. Cuyahoga No. 109585,

2021-Ohio-1731, ¶ 18 (“The probate court is a court of limited jurisdiction; it can

exercise such powers as are conferred on it by statute and the constitution of the

state.”). Generally, the probate court has exclusive jurisdiction over all matters set

forth under R.C. 2101.24(A), all matters pertaining to the administration of estates,

all matters pertaining to a guardian and his or her ward, and to all matters “touching

the guardianship.” In re Guardianship of Pieper, 12th Dist. Preble No. CA2013-

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11-010, 2014-Ohio-5195, ¶ 17, fn.3. Further, R.C. 2101.24(B) enumerates the

probate court’s concurrent jurisdiction with the general division of the court. See

also Sosnoswsky v. Koscianski, 8th Dist. Cuyahoga No. 106147, 2018-Ohio-3045,

¶ 26.

{¶61} “The jurisdictional-priority rule provides that as between state courts

of concurrent jurisdiction, the tribunal whose power is first invoked acquires

exclusive jurisdiction to adjudicate the whole issue and settle the rights of the

parties.” State ex rel. Consortium For Economic & Community Dev. for Hough

Ward 7 v. Russo, 151 Ohio St.3d 129, 2017-Ohio-8133, ¶ 8. The “rule is only

applicable when there are two cases pending in two different courts of concurrent

jurisdiction,” and demands “the judge in the second case definitively and

unambiguously lacks jurisdiction by operation of this rule.” (Emphasis added.)

Campbell at ¶ 23. But see State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty.

Court of Common Pleas, Probate Div., 150 Ohio St.3d 230, 2016-Ohio-7382.

{¶62} Regarding guardianships, “the probate court has exclusive jurisdiction

to appoint and remove guardians and to direct and control their conduct and settle

their accounts.” In re Guardianship of Derakhshan, 110 Ohio App.3d 190, 195-196

(11th Dist.1996). See also In re Guardianship of Lieber, 8th Dist. Cuyahoga No.

109646, 2020-Ohio-5625, ¶ 6 (“Probate courts have subject-matter jurisdiction over

guardianships and guardianship funds.”); R.C. 2101.24(A)(1)(c). In particular, the

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Revised Code directs a guardian “to obey all orders and judgments of the probate

court touching the guardianship.” R.C. 2111.13(A)(4). See also R.C.

2111.50(A)(1) (providing that “[a]t all times, the probate court is the superior

guardian of wards who are subject to its jurisdiction, and all guardians who are

subject to the jurisdiction of the court shall obey all orders of the court that concern

their wards or guardianships”).

{¶63} However, “‘[i]t is well-settled that the death of a ward terminates any

guardianship proceedings by operation of law.’” In re Guardianship of Lieber at ¶

7, quoting In re Guardianship of Mogul, 11th Dist. Trumbull No. 2001-T-0083,

2002 WL 819164, *2 (Apr. 30, 2002). Nevertheless, the guardianship proceedings

do not completely terminate immediately following the ward’s death—that is, “‘a

guardian has the power after the ward’s death to make a proper accounting and

settlement of any acts taken in regard to the ward’s assets.’” Id., quoting State ex

rel. Estate of Hards v. Klammer, 110 Ohio St.3d 104, 2006-Ohio-3670, ¶ 12. See

also Simpson v. Holmes, 106 Ohio St. 437, 439 (1922) (“The guardian is the

personal representative of the ward while the ward lives; upon the ward’s death the

administrator or executor becomes his personal representative.”).

{¶64} Moreover, “any matter ‘related to the administration of an estate and

the distribution of its assets [is] within the exclusive jurisdiction of the probate

court.’” Grimes v. Grimes, 173 Ohio App.3d 537, 2007-Ohio-5653, ¶ 16 (4th Dist.),

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quoting Mock v. Bowen, 6th Dist. Lucas No. L-91-210, 1992 WL 163959, *3 (July

17, 1992), citing R.C. 2101.24(A)(1)(c). Specifically, the Revised Code vests the

probate court “‘with jurisdiction over declaratory judgment actions upon questions

relating to the administration of an estate.’” Id. at ¶ 17, quoting State ex rel. Lipinski

v. Cuyahoga Cty. Court of Common Pleas, Prob. Div., 74 Ohio St.3d 19, 22 (1995).

See also R.C. 2101.24(A)(1)(l) and 2721.05. Likewise, “the probate court is vested

with exclusive jurisdiction involving will-contest actions.” Powell v. Williams, 8th

Dist. Cuyahoga No. 110536, 2022-Ohio-526, ¶ 15. See also R.C. 2101.24(A)(1)(p).

{¶65} However, based on the specific facts and circumstances of this case,

we conclude that the general division of the court had jurisdiction to hear and

determine Thomas’s intentional-interference-with-expectancy-of-an-inheritance

claim as it relates to the $184,478.00 in unaccounted distributions from Adelina’s

estate.10 Accord Phillips v. Phillips, 5th Dist. Richland No. 12CA119, 2013-Ohio-

3025, ¶ 22. See Love, 2021-Ohio-558, at ¶ 32 (asserting “that the probate court does

not have plenary jurisdiction over the claim for intentional interference with

expectancy of inheritance”); Roll, 156 Ohio App.3d 227, 2004-Ohio-767, at ¶ 29.

(“The complexity of this case arises due to the fact that, while the will contest and

10 “It has been observed that Ohio’s complex jurisdictional rules for probate courts create continuing problems in construing the relationship between Ohio’s general and probate divisions and that courts have been unable to develop any useful test to determine when a dispute regarding the administration of an estate would confer exclusive jurisdiction over an action on the probate court.” Estate of Dombroski v. Dombroski, 7th Dist. Harrison No. 14 HA 3, 2014-Ohio-5827, ¶ 16. See also Love v. Love, 4th Dist. Jackson No. 20CA4, 2021-Ohio-558, ¶ 34, fn. 2.

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the claim of intentional interference with expectancy of inheritance are closely

related and may provide different forms of relief for the same or similar legal

wrongs, no single court has jurisdiction to hear both claims.”). See also Gibson v.

Shepard, 8th Dist. Cuyahoga No. 109311, 2020-Ohio-4569, ¶ 11-12.

{¶66} Indeed, the record unequivocally reflects that a settlement of the estate

accounts and an order of distribution by the probate court occurred. See Goff v.

Ameritrust Co., 8th Dist. Cuyahoga No. 65196, 1994 WL 173544, *5 (May 4, 1994),

quoting Neidecker v. Neidecker, 63 Ohio App. 416 (6th Dist.1939), syllabus.

Likewise, this case does not involve an unresolved will contest, an undue-influence

claim in probate court, or any issue as to judicial expediency. Accord Phillips at ¶

22 (analyzing that the claims were within the jurisdiction of the general division of

the court because the case did “not include an unresolved will contest, an undue

influence claim in probate court, or any issue as to judicial expediency”).

{¶67} “The relationship between a guardian and a ward is fiduciary in nature,

and in discharging the duties of a guardian, the law requires fiduciaries ‘to act in

good faith and primarily for the benefit of the ward in matters connected with his

well-being.” In re Guardianship of Guzay, 10th Dist. Franklin No. 02AP-745,

2003-Ohio-5036, ¶ 22, quoting In re Briggs, 9th Dist. Summit No. 18117, 1997 WL

416331, *2 (July 9, 1997). Likewise, “An executor, administrator, or other personal

representative of a testamentary estate is a fiduciary * * * .” In re Estate of Usiak,

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172 Ohio App.3d 262, 2007-Ohio-3038, ¶ 35 (7th Dist.). “A fiduciary is statutorily-

defined [as] ‘any person * * * appointed by and accountable to the probate court

and acting in a fiduciary capacity for any person, or charged with duties in relation

to any property, interest, trust, or estate for the benefit of another * * * .” Estate of

Dombroski v. Dombroski, 7th Dist. Harrison No. 14HA3, 2014-Ohio-5827, ¶ 40,

quoting R.C. 2109.01.

{¶68} Because the defendants—namely, Carlos (as guardian) and Paul (as

executor)—were in a fiduciary capacity with respect to Adelina’s guardianship and

estate, respectively, a presumption arises that they unduly influenced the depletion

of the guardianship account and estate account, respectively. See Foelsch 2020-

Ohio-1259, at ¶ 17. See also Fox, 2002-Ohio-2824, at ¶ 52 (“Undue influence

actions regarding * * * payable on death accounts * * * have also applied a

presumption of undue influence when there is a fiduciary relationship between the

creator of the account and the beneficiary”). Consequently, to rebut the presumption

of undue influence that arises in this instance, the defendants must present “evidence

that the decedent acted voluntarily and free from undue influence.” Fikes v. Estate

of Fikes, 1st Dist. Hamilton No. C-210515, 2022-Ohio-2075, ¶ 12. Again, “[t]he

ultimate question is ‘whether undue influence manifested a result different than

would have been reached absent the undue influence.’” Id. at ¶ 11, quoting Redman

v. Watch Tower Bible & Tract Soc., 69 Ohio St.3d 98, 102 (1994).

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{¶69} Generally, the Revised Code requires a guardian “to ‘manage the

estate for the best interest of the ward.’” In re Guardianship of Guzay at ¶ 22,

quoting R.C. 2111.14(B). See also Friedrich v. BancOhio Nat. Bank, 14 Ohio

App.3d 247, 251 (12th Dist.1984) (“The guardian has a duty to manage and

conserve the assets and property belonging to her ward in order to provide for the

ward’s care and maintenance.”). “‘Traditionally, a guardian is limited to taking

custody of a ward’s property, protecting it and, with the court’s approval, making a

certain disposition of it.’” Friedrich at 251, quoting Toledo Trust Co. v. Natl. Bank

of Detroit, 50 Ohio App.2d 147, 159 (6th Dist.1976). Furthermore, the Revised

Code “requires a guardian to ‘make and file within three months after his

appointment a full inventory of the real and personal property of the ward [and] its

value * * * .’”11 Id., quoting R.C. 2111.14(A). See also R.C. 2111.141.

{¶70} As evidence that the transfer here was free from undue influence,

Carlos avers that “[t]he disparity in what was in the guardianship account at the time

of Adelina[’s] death of $198,771 to what was transferred into the Estate of Adelina

Delgado comes from an account registration error by the Union Bank Company.”

(Doc. No. 54, Ex. A). Specifically, Carlos avers that the bank “kept Adelina[’s]

same account, and just listed [Carlos] as guardian” “[i]nstead of setting up a new

guardianship account * * * .” (Id.). As a result, Carlos avers that, because “that

11 There is no evidence in this record that Carlos filed a full inventory of Adelina’s real and personal property within three months after his appointment.

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account had a payable on death,” “[i]t paid out in equal shares to [Carlos] and all

[his] siblings, including [Thomas].” (Id.).

{¶71} “‘Although a [payable-on-death] account is contractual in nature, it

has a special purpose. It allows a person to make a testamentary disposition of assets

without following the formalities of the Statute of Wills, R.C. Chapter 2107.’”

Hillier v. Fifth Third Bank, 2d Dist. Miami No. 2019-CA-21, 2020-Ohio-3679, ¶

28, quoting Witt v. Ward, 60 Ohio App.3d 21, 26 (12th Dist.1989). See also Estate

of Eyrich, 2016-Ohio-7165, at ¶ 23 (stating that “[a] payable on death account is *

* * created by a written contract”); R.C. 2131.10. “‘The depositor of a payable-on-

death * * * account retains her rights to ownership and full control of such account

during her lifetime.’” In re Estate of Boone, 190 Ohio App.3d 799, 2010-Ohio-

6269, ¶ 61 (7th Dist.), quoting Miller v. Peoples Fed. S. & L. Assn., 68 Ohio St.3d

175 (1981), paragraph one of the syllabus. “Following a finding of incompetency

by the Probate Court, the depositor’s ownership rights pass to the legally appointed

guardian of her estate, including the right to designate a change in the registration

of such account.’” Id., quoting Miller at paragraph one of the syllabus. “Indeed,

the guardian of a person and an estate has a duty to provide for maintenance for the

ward, as paid out of the ward’s estate, which includes health care, debts and other

affairs relating to the management of the estate.” Ferguson v. Walsh, 10th Dist.

Franklin No. 02AP-1231, 2003-Ohio-4504, ¶ 18.

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{¶72} Importantly, Carlos presented no evidence substantiating his

contentions. Accord Fox, 2002-Ohio-2824, at ¶ 55-56 (concluding that the

defendant “failed to produce any credible evidence to rebut the undue influence”

and that the majority of the evidence that she relied on was her own testimony).

That is, Carlos did not provide any documentation from Union Bank reflecting an

account-designation change or—most significantly—any documentation reflecting

the payable-on-death designation or its subsequent distribution to the defendants or

Thomas. See Steinhauser v. Repko, 30 Ohio St.2d 262, 269 (1972). Indeed, the

evidence of the “first and final accounting” of Adelina’s guardianship does not

reflect that the Union Bank account had a payable-on-death designation. See Miller

at 176 (noting that the guardianship inventory reflected the “certificates as payable

on death to plaintiffs” and that an amended inventory was filed “listing the change

in payees”); In re Hards, 175 Ohio App.3d 168, 2008-Ohio-630, ¶ 10 (11th Dist.)

(noting that the summary of inventory and accounts “failed to account for

guardianship assets” or establish which assets were joint assets or had a beneficiary

prior to the establishment of the guardianship). Moreover, there is no evidence in

the record reflecting that Thomas received such payable-on-death distribution.

Instead, Thomas alleges that “$188,478 [was] money embezzled, converted, taken,

and stolen by” Carlos. (Doc. No. 1).

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{¶73} Therefore, we conclude that genuine issues of material fact remain as

to whether the defendants rebutted the presumption of undue influence. See In re

Guardianship of Blumetti, 1994 WL 45250, at *4 (concluding “that the

determination of whether this evidence is sufficient to rebut the presumption of

undue influence should be made in the first instance by the trial court”).

{¶74} Similarly, “[t]he fiduciary duties of an executor are primarily to collect

the estate assets, pay debts, and make distributions.” In re Estate of Usiak, 2007-

Ohio-3038, at ¶ 35. “The executor also owes various duties to the beneficiaries of

the estate, duties involving keeping proper accounts, giving timely notice,

preserving assets, and avoiding the commingling of property, as well as basic duties

of trust and loyalty.” Id. Consequently, as executor of Adelina’s estate, Paul had

“a duty to preserve estate assets, and was required to keep proper accounting

records.” In re Estate of Barry, 11th Dist. Geauga No. 2013-G-3147, 2015-Ohio-

1203, ¶ 19. The defendants—namely, Paul—did not provide any documentation in

support of the motion for summary judgment documenting the nature of Adelina’s

estate assets.

{¶75} Therefore, we conclude that reasonable minds could disagree with

respect to whether the abovementioned transfers were free from undue influence or

fraud. Consequently, we conclude that the defendants failed to satisfy their burden

of demonstrating an absence of a genuine issue of material fact regarding the

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validity of the transfers to third-party beneficiaries. See Castro, 2013-Ohio-1347,

at ¶ 28. As a result, based on our de novo review of the record, and after construing

the facts in a light most favorable to Thomas, there are genuine issues of material

fact remaining as to whether Carlos unduly influenced the transfers to third-party

beneficiaries (including himself) or whether Carlos produced those transfers

through fraud. See Gibson v. Shepard, 8th Dist. Cuyahoga No. 109311, 2020-Ohio-

4569, ¶ 13 (“In accordance with the foregoing, and without offering any speculation

as to whether Gibson’s claims are meritorious, we find that there are genuine issues

of material fact and that it has not been established that defendants are entitled to

judgment as a matter of law.”).

{¶76} Thus, while the ultimate burden of proving by clear and convincing

evidence that Adelina was unduly influenced remains with Thomas, we conclude

(based on the evidence before us) that the trial court erred by not affording Thomas

the opportunity to litigate the presumption of undue influence. Accord Young, 2017-

Ohio-9015, at ¶ 64; Sigler, 2017-Ohio-5486, at ¶ 90. See In re Guardianship of

Blumetti, 1994 WL 45250, at *4 (concluding “that the determination of whether this

evidence is sufficient to rebut the presumption of undue influence should be made

in the first instance by the trial court” and if the trial court determines that a

preponderance of the evidence “presented overcomes the presumption of undue

influence, it must” then assess whether the plaintiff “presented clear and convincing

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evidence to rebut the * * * presumption”). In addition, we conclude that summary

judgment as to Thomas’s intentional-interference-with-an-expectancy-of-

inheritance claim was improper for the reason that genuine issues of material fact

remain whether the defendants procured those transactions through fraud.

Undue Influence

{¶77} Analogously, Thomas argues under her first assignment of error that

“the procurement of the Power of Attorney by [Carlos] was the result of Undue

Influence.” (Appellant’s Brief at 11). As we previously stated, to establish undue

influence—when no presumption arises out of a fiduciary or confidential

relationship—a party attacking the transfer must demonstrate, by clear and

convincing evidence, that “(1) the testator was susceptible to undue influence, (2)

another person had an opportunity to exert influence over the susceptible testator,

(3) improper influence was exerted or attempted and (4) a result showing the effect

of such influence.” Young at ¶ 52.

{¶78} However, based on our review of Thomas’s complaint, Thomas did

not properly raise this issue in the trial court. Specifically, “‘Ohio is a notice-

pleading state.’” Hall v. Crawford Cty. Job & Family Servs., 3d Dist. Crawford No.

3-21-19, 2022-Ohio-1358, ¶ 16, quoting Pugh v. Sloan, 11th Dist. Ashtabula No.

2019-A-0031, 2019-Ohio-3615, ¶ 26. “Under Civ.R. 8(A), ‘[a] pleading that sets

forth a claim for relief * * * shall contain (1) a short and plain statement of the claim

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showing that the party is entitled to relief, and (2) a demand for judgment for the

relief to which the party claims to be entitled.’” Id., quoting Civ.R. 8(A). “‘Each

averment of a pleading shall be simple, concise, and direct. No technical forms of

pleading or motions are required.’” Id., quoting Civ.R. 8(E)(1). “In sum, ‘[t]he

statement of the claim must give the defendant fair notice of the plaintiff’s claim

and the grounds upon which it is based.’” Id., quoting Pugh at ¶ 27. See also

Montgomery v. Ohio State Univ., 10th Dist. Franklin No. 11AP-1024, 2012-Ohio-

5489, ¶ 20 (stating that “to constitute fair notice, the complaint must allege sufficient

underlying facts that relate to and support the alleged claim; the complaint may not

simply state legal conclusions”).

{¶79} “Though a plaintiff need not advance a specific legal theory to obtain

recovery, ‘the complaint must contain either direct allegations on every material

point necessary to sustain a recovery or contain allegations from which an inference

may fairly be drawn that evidence on these material points will be introduced at

trial.’” Karras v. Karras, 2d Dist. Montgomery No. 27606, 2018-Ohio-515, ¶ 17,

quoting Strahler v. Vessels, 4th Dist. Washington No. 11 CA 24, 2012-Ohio-4170,

¶ 10. “Pleadings in general should be construed ‘liberally’ for purposes of Civ.R.

8.” Id., citing Crosby v. Beam, 47 Ohio St.3d 105, 110 (1989).

{¶80} Liberally construing Thomas’s complaint, we conclude that Thomas

failed to provide the fair notice necessary to pursue an independent claim of undue

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influence. See Montgomery at ¶ 22. Importantly, other than as an element of her

intentional-interference-with-expectancy-of-an-inheritance claim, Thomas’s

complaint lacks any indication that she is raising a claim of undue influence. See

id. Certainly, there is no inference which may be fairly drawn from Thomas’s

complaint that she is alleging that the durable power of attorney was “procured” by

undue influence as she now alleges under her first assignment of error for the first

time on appeal. “It is a long-standing rule of appellate procedure that no new issues

can be raised in the appellate court that were not raised before the trial court.”

Mason v. Meyers, 140 Ohio App.3d 474, 477 (3d Dist.2000). Therefore, we

conclude that Thomas waived her argument and refuse to address it for the first time

on appeal. Id.

Fraud

{¶81} Thomas further contends that summary judgment in favor of the

defendants as to her independent-fraud claim was improper because genuine issues

of material fact remain as to whether fraud occurred.

{¶82} Again, to satisfy a claim for fraud, a plaintiff must prove that there was

“(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.”

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Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, ¶ 47, quoting Gaines v.

Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987). Importantly, because “[fraud

must be pleaded with particularity,” “‘the pleading must contain allegations of fact

which tend to show each and every element of a cause of action for fraud.”

Parmatown S. Assn. v. Atlantis Realty Co., 8th Dist. Cuyahoga No. 106503, 2018-

Ohio-2520, ¶ 7, quoting Minaya v. NVR, Inc., 8th Dist. Cuyahoga No. 105445,

2017-Ohio-9019, ¶ 11. See also Civ.R. 9(B).

{¶83} Assuming without deciding that Thomas’s complaint complied with

the requirement for her fraud claim to be pleaded with particularity, we must first

address the jurisdiction of the general division of the court of common pleas to

consider Thomas’s claim. Again, the courts may only exercise jurisdiction that is

expressly granted to them by the legislature. Dumas, 68 Ohio St.3d at 408. As

relevant here, the Revised Code confers to “the probate court exclusive jurisdiction

over declaratory actions brought ‘to determine any question arising out of the

administration of the estate.’” Lamar, 2006-Ohio-1414, at ¶ 15, quoting R.C.

2721.05(C). However, “‘the probate division has no jurisdiction over claims for

money damages arising from allegations of fraud.’” Dumas at 408, quoting

Schucker v. Metcalf, 22 Ohio St.3d 33, 35 (1986).

{¶84} In this case, Thomas alleges a cause of action for “fraud perpetrated

on Adelina.” (Doc. No. 1). In other words, Thomas’s fraud claim does not contest

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the validity of Adelina’s will or challenge the inventory of her probate estate.

Accord Dumas at 408. Rather, Thomas alleges that Carlos fraudulently transferred

the funds and fraudulently induced Adelina to transfer the deed to him so as to

render the transfers invalid. See id. (casting the fraud claim as alleging “that [the

decedent] fraudulently transferred assets to an inter vivos trust and did so with the

intent to deprive [the plaintiff] of her rights under Ohio law”). Thus, to the extent

that Thomas is seeking a declaration by the trial court setting aside the fraudulent

transfers and returning those assets to Adelina’s estate, that argument should have

been raised in the probate court. See Lipinski, 74 Ohio St.3d at 22; Lamar at ¶ 15-

16. See also Treadway v. Free Pentecostal Pater Ave. Church of God, Inc., 12th

Dist. Butler No. CA2007-05-139, 2008-Ohio-1663, ¶ 29; Estate of Dombroski,

2014-Ohio-5827, at ¶ 33, fn.3. However, since Thomas’s “primary aim is still the

recovery of monetary damages for the alleged fraud,” Thomas’s fraud claim is

“within the jurisdiction of the general division of the court of common pleas.”

Dumas at 408. See also Lamar at ¶ 17.

{¶85} Nevertheless, “[u]nder Ohio law, a claim in fraud cannot be predicated

upon statements or representations made to a third party; i.e., the communication

must have been directly with the person who has brought the action.” McWreath

2012-Ohio-3013, at ¶ 63, citing Edwards v. Owen, 15 Ohio 500 (1846). Indeed,

“[i]n any litigation, the plaintiff must have standing because ‘[t]he requirement of

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standing ensures that the party challenging an order has a “personal stake in the

outcome of the controversy.”’” Camp St. Mary’s Assn. of W. Ohio Conference of

the United Methodist Church, Inc. v. Otterbein Homes, 176 Ohio App.3d 54, 2008-

Ohio-1490, ¶ 13 (3d Dist.), quoting Ahrns v. SBA Communications Corp., 3d Dist.

Auglaize No. 2-01-13, 2001 WL 1167240, *2 (Sept. 28, 2001), quoting Middletown

v. Ferguson, 25 Ohio St.3d 71, 75 (1986). “A party will have standing where the

party can demonstrate an injury in fact.” In re Estate of York, 133 Ohio App.3d

234, 241 (12th Dist.1999). “An injury in fact requires a showing that the party has

suffered or will suffer a specific injury, that the injury is traceable to the challenged

action, and that it is likely that the injury will be redressed by a favorable decision.”

{¶86} Significantly, the basis of Thomas’s fraud claim is predicated on an

injury suffered by Adelina. See Treadway at ¶ 30 (“Furthermore, appellants lack

standing to assert these claims. Each of the claims alleged by appellants asserts an

injury suffered by the decedent.”). See also Sirak v. Arenstein, 5th Dist. Stark No.

2011-CA-00053, 2011-Ohio-5266, ¶ 37 (concluding that “the claims for deception

or fraud in the inducement are [the mother’s] claims because she is the owner of the

property.”). “Under law, those claims belong to the estate of [the decedent] and

may not be asserted by third parties.” Treadway at ¶ 30. Specifically, “any alleged

statement not made directly to [Thomas] cannot form the basis of a viable fraud

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claim.” (Emphasis added.) McWreath at ¶ 63. See also Johnson v. Johnson, 4th

Dist. Vinton No. 98CA519, 1999 WL 527753, *2 (June 25, 1999) (surmising that

the plaintiff “would probably not have standing to raise a claim for a fraud

perpetrated on another person”). Consequently, the defendants are entitled to

judgment as a matter of law as to Thomas’s fraud claim. Thus, summary judgment

in favor of the defendants as to Thomas’s independent-fraud claim is proper.

{¶87} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in the first assignment of error, and second

assignment of error, in part, we affirm the judgment of the trial court. Having found

error prejudicial to the appellant herein in the particulars assigned and argued in the

second assignment of error, in part, and third assignment of error, we reverse the

judgment of the trial court and remand for further proceedings consistent with this

opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

MILLER and WILLAMOWSKI, J.J., concur.

/jlr

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