Carpenter v. Carpenter , 2023 Ohio 274 ( 2023 )

[Cite as Carpenter v. Carpenter, 2023-Ohio-274.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
MARY LOU CARPENTER, INDIVIDUALLY, AND AS ADMINISTRATRIX
OF THE ESTATE OF JERRY N. CARPENTER, DECEASED,
Plaintiff-Appellee,
v.
ROGER D. CARPENTER, INDIVIDUALLY, AND AS TRUSTEE OF THE
CARPENTER FAMILY TRUST U/A DATED JANUARY 27, 2014, ET AL.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0049
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 18-CV-22
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Erik A. Schramm, Atty. Kyle W. Bickford and Atty. Erik A. Schramm, Jr., Hanlon,
McCormick, Schramm, Bickford & Schramm Co., LPA, 46457 National Road West, St.
Clairsville, Ohio 43950, for Plaintiff-Appellee and
Atty. Clifford C. Masch and Atty. Brian D. Sullivan, Reminger Co., L.P.A., 101 West
Prospect Room, Suite 1400, Cleveland, Ohio 44115, for Defendants-Appellants
Timothy P. Jarvis and Jarvis Law Office, LLC.
Dated: January 27, 2023
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D’Apolito, P.J.
{¶1} Appellants, Jarvis Law Office, LLC (“JLO”) and Attorney Timothy Jarvis,
JLO’s sole member, (“Jarvis”)1, appeal two judgment entries issued by the Belmont
County Court of Common Pleas. In the first judgment entry, the trial court awarded partial
summary judgment in favor of Appellee, Mary Lou Carpenter, individually and as
Administratrix of the Estate of Jerry N. Carpenter, deceased, and against Appellants on
claims for intentional interference with expectation of inheritance (“IIEI”); lack of capacity
relating to the Carpenter Family Trust u/a dated January 27, 2014 (“Trust”), in which Jerry,
who suffered from dementia and resided in a nursing home at the time the Trust was
created, is the grantor; undue influence; and fraud. Appellants likewise appeal a second
judgment entry, in which the trial court sustained Mary Lou’s unopposed motion for
damages. The trial court awarded damages in the amount of $147,742.032, and
1Jarvis’s professional liability carrier denied coverage for the claims asserted in this lawsuit. At
his deposition, Jarvis explained that he switched carriers, and verified that he was securing a
“claims-made” policy, but he later learned that his current liability carrier defined “claims-made”
as “claim[s] where the underlying event took place after they were the carrier.” (Jarvis Depo., p.
70.) Jarvis conceded the “onus was on [him] for not reading through the contract. (Id.) As a
consequence, Jarvis represented himself and JLO before the trial court. However, Jarvis and JLO
retained counsel for this appeal.
2 According to the partial motion for summary judgment on damages, the damages award
is divided as follows:
$40,088.43 for the improper extinguishment of Mary Lou’s life estate;
$55,207.58 for the loss of one-half of the oil and gas lease, which was executed
after she transferred her life estate to the Trust;
$20,602.94 for the loss of the oil and gas royalties and her intestate share;
$10,750.00 based on her intestate share for the necessary tax payments as a
result of “Defendant’s failed defective grantor trust”;
$11,164.00, which reflects the amount billed for the various legal documents
prepared by Jarvis and JLO; and
$9,929.08 for Jerry’s funeral.
The damage calculation is not before this Court on appeal.
Case No. 21 BE 0049
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attorneys’ fees, costs, and expenses in the amount of $87,969.17. This appeal is limited
to the attorneys’ fees award.
{¶2} In her amended complaint, Mary Lou asserts claims for IIEI, lack of capacity,
fraud, and conversion against JLO, Jarvis, Jerry’s son, Roger Carpenter, both individually
as the beneficiary of the Trust, and in his capacity as the trustee, Jerry’s son, David
Carpenter, the co-beneficiary of the Trust, and Alexandra Manes, an attorney employed
by JLO. Mary Lou asserts an undue influence claim against Roger both individually and
on behalf of the Estate. Mary Lou further requests an accounting relating to the Trust, as
well as declaratory and injunctive relief voiding the Trust. In the alternative, Mary Lou
seeks an order directing the Trust to grant a life estate in the property to Mary Lou. She
further seeks an order holding all income from an oil and gas lease executed after she
transferred her life estate in the property be held in suspense by Gulfport Energy Corp.
and Gulfport Appalachia, LLC “(“Gulfport defendants”) during the pendency of this case. 3
{¶3} Roger, David, and the Trust (“Cross-Claimants”) filed cross-claims against
JLO and Jarvis for indemnification.4
{¶4} Prior to the entry of summary judgment, Mary Lou dismissed her claims
against Manes without prejudice. Mary Lou dismissed her claims against Roger and
David with prejudice after settling her claims against them.
{¶5} The claims asserted on Mary Lou’s behalf and those she asserts on behalf
of the estate are all predicated upon the legal representation provided by Jarvis and JLO
to Mary Lou and Jerry, following Jerry’s diagnosis of dementia and his admission to a
long-term care facility.
3 If an oil and gas lease is executed after a life estate is created, Ohio courts have observed that
the life tenant is entitled to income from the property and the remaindermen are entitled to the
corpus. Delay rentals are considered income. Royalties and leasing bonuses are considered a
part of the corpus of the estate. At least one Ohio court has observed that the life tenant may
collect the interest generated from the investment of the royalties and bonuses during the life
tenancy. When the life estate ends, the remaindermen are entitled to the principle. Fourth &
Cent. Tr. Co. v. Woolley, 31 Ohio App. 259, 165 N.E. 742 (1st Dist.1928).
4 On October 4, 2021, the trial court granted the motion for partial summary judgment on
indemnification filed by the Cross-Claimants. On November 9, 2021, the trial court sustained the
Cross-Claimants unopposed partial motion for summary judgment on the issue of damages,
awarding $80,039.30, reflecting the attorney’s fees incurred by the Cross-Claimants during the
above-captioned lawsuit. Neither judgment entry was appealed.
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{¶6} According to Jarvis’s deposition testimony, he was retained to preserve
Jerry’s assets through the creation of a spend-down trust for purposes of Medicaid. Mary
Lou argues that she transferred her life estate in the property at issue in this appeal to
the Trust in order to qualify Jerry for Medicaid. She further argues that her life estate had
no impact on Jerry’s ability to qualify for Medicaid, and that she was not informed by
Jarvis, who was jointly representing Mary Lou and Jerry, that her life estate would not be
returned to her after Jerry’s death. Finally, Mary Lou argues that Jerry did not have the
requisite capacity to create the Trust.
{¶7} In their sole assignment of error, Appellants assert that the trial court erred
in granting summary judgment on the claims of IIEI, lack of capacity, and fraud as there
exists genuine issues of material fact relating to the substantive elements of each claim.
They further argue that the trial court erred in entering summary judgment in favor of Mary
Lou and against Appellants on Mary Lou’s undue influence claims, as they were asserted
exclusively against Roger in the amended complaint. Finally, Appellants argue that the
trial court erred in awarding attorneys’ fees in the absence of a finding or malice and/or a
right to punitive damages.
{¶8} For the following reasons, the judgment entries of the trial court granting
partial summary judgment in favor of Mary Lou and against JLO and Jarvis on the
substantive claims and awarding attorneys’ fees to Mary Lou are affirmed.
FACTS AND PROCEDURAL HISTORY
{¶9} A history of the life estate and the formation of the Trust at issue in this
appeal informs our decision. In a November, 2007 deed Jerry reserved a life estate for
himself, granted a life estate to his then-girlfriend Mary Lou, and named his three children
and their spouses as the remaindermen in the property located at 55880 Pipe Creek Road
in Bellaire, Ohio (“Property”). Jerry had previously inherited the Property from his late
wife, who was the mother of his three children.
{¶10} In an April, 2013 deed the parties to the November 2007 deed reconfigured
ownership of the Property, severing one acre (excepting the oil and gas) and conveying
it to Jerry’s daughter, conveying life estates to Jerry and his now-wife Mary Lou in the
remaining acreage, with Roger and David named as the remaindermen.
Case No. 21 BE 0049
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{¶11} Jarvis attached an affidavit to the opposition brief to the motion for summary
judgment, which summarizes the events leading to the creation of the Trust. According
to his affidavit, the first time that Jarvis met with Mary Lou and Roger was on January 17,
2014. The parties discussed a plan to qualify Jerry for Medicaid while preserving his
assets.
{¶12} Until his deposition, Jarvis denied that Mary Lou was his client. However,
Jarvis recognized at his deposition that legal representation in Ohio is predicated upon
the client’s reasonable expectations, and he conceded that it was reasonable for Mary
Lou to expect that she was his client. It is undisputed that the $11,000.00 fee charged
for legal services provided by Jarvis and JLO was paid with joint funds belonging to Jerry
and Mary Lou.
{¶13} At the January 17th meeting, Jarvis explained the relevant Medicaid rules
to Mary Lou and Roger and proposed a strategy involving the creation of an irrevocable
trust. Jarvis further explained that neither Jerry nor Mary Lou could be the beneficiary of
the proposed trust, otherwise the trust would be considered a countable resource for
Medicaid.
{¶14} Jarvis informed Mary Lou and Roger that Jerry’s life estate in the Property
would not be considered regarding his qualification for Medicaid, but the life estate would
be subject to Medicaid Estate Recovery. After Jerry’s death, any amount that Medicaid
paid for his care could be recovered against the Property, up to the value of his life estate
interest at the time of his death.
{¶15} Jarvis further informed Mary Lou and Roger that Mary Lou’s life estate
interest would also not be considered regarding Jerry’s qualification for Medicaid.
However, if Mary Lou was admitted to a long-term care facility at some point in the future,
the Property would likewise be subject to Medicaid Estate Recovery based on the value
of Mary Lou’s life estate at the time of her death.
{¶16} Based on the foregoing information, Jarvis “explained that if the goal was to
protect the [Property] to the greatest extent possible, from either Jerry or Mary Lou’s
Medicaid claims, they could terminate their life estate interests. [He] offered this as an
option only, not as a requirement in order to get Jerry eligible for Medicaid.” (Jarvis Aff.,
¶ 8.)
Case No. 21 BE 0049
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{¶17} According to Jarvis, both Mary Lou and Roger agreed that forfeiting the life
estates was “the better option.” (Jarvis Aff., ¶ 9.) Jarvis provided the following
alternatives relating to the potential forfeiture of Mary Lou’s life estate:
I explained that by giving up her life estate interest, Mary Lou would no
longer have a legal right to live in the homestead property nor would she
have the any rights to any future proceeds from any oil & gas income. I
suggested that I could prepare an occupancy agreement, as well as an
agreement specifying the appropriate division of any future oil & gas
income. I explained that there would be an additional fee of $500 per
agreement. [Mary Lou and Roger] indicated to me that the agreements
were not necessary and they could work things out between them.
(Jarvis Aff., ¶ 9.)
{¶18} Jarvis admitted at his deposition that the potential Medicaid Estate
Recovery based on Mary Lou’s life estate would have no legal or financial impact on Mary
Lou, only on the remaindermen in the Trust. Jarvis testified, “That would be money that
the remaindermen would either have to come up with to buy out the State’s lien or sell
the Property and the State gets their cut.” (Jarvis Depo., p. 286.)
{¶19} Jarvis further admitted that he did not separate Mary Lou and Roger when
he explained the Medicaid rules regarding life estates and the legal effect of Mary Lou’s
potential transfer of her life estate to the proposed trust. However, Jarvis testified that he
asked Mary Lou and Roger several times if they had any questions and if they understood
the information that he had provided. Both Mary Lou and Roger interrupted him several
times for clarification on various issues. They each indicated that they understood
everything that Jarvis had explained.
{¶20} Jarvis conceded at his deposition that January 27, 2014, the day that Jerry
executed the legal documents creating the Trust, as well as powers of attorney and a will,
was the first time that he met with Jerry. Jarvis testified that he spent “a good hour” with
Jerry explaining the legal effects of the documents. Their meeting took place in the lobby
at the nursing home where Jerry resided.
Case No. 21 BE 0049
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{¶21} Jarvis testified that he was not aware of the specific reason that Jerry had
been admitted to the nursing home. Jarvis opined that many of his clients who suffer
from dementia reside in nursing homes due to their inability to physically care for
themselves, not their mental limitations.
{¶22} Jarvis further testified that both Mary Lou and Roger warranted that Jerry
had the requisite capacity to execute the proposed documents despite his diagnosis.
Nonetheless, Jarvis recognized his responsibility to make an independent determination
of Jerry’s capacity before executing the documents.
{¶23} Jarvis testified that Jerry knew his children’s names and identified Mary Lou
as his second wife. In order to ascertain Jerry’s knowledge of his assets, Jarvis asked
Jerry if his total assets were valued at more or less than one million dollars. Jerry was
amused by the question, and indicated that his net worth was far less than one million
dollars. Jerry estimated that the Property was worth between $100,000.00 and
$150,000.00. Jerry acknowledged that he lived “here,” that is, the nursing home at the
time, rather than on the Property.
{¶24} Melissa Evick, a non-lawyer employee of JLO who assisted Jarvis on
January 27, 2014, corroborated Jarvis’s testimony regarding Jerry’s response to Jarvis’s
questions about his net worth. She further testified that Jerry was “perfectly rational in all
respects” on that day. (Evick Depo., p. 128.)
{¶25} At his deposition, Jarvis conceded that he did not ask Jerry for his date of
birth or address, nor did Jarvis ask Jerry to identify the day of the week or the month or
year. Jarvis reasoned that he was only required to ascertain Jerry’s awareness of the
nature and extent of his assets and the identity of his natural heirs.
{¶26} Jarvis further conceded that Jerry did not read the trust document, despite
a provision in the proposed trust that warranted Jerry had read the document in its
entirety. Jarvis admitted at his deposition that he was not aware that Jerry was able to
read, however there is no evidence in the record that Jerry was illiterate. Jarvis testified
that he explained the purpose and effect of the proposed trust to Jerry. Jarvis asserted
that many attorneys would not understand each and every provision.
{¶27} Jarvis testified that Jerry asked a few questions about Medicaid. Jerry also
asked Jarvis to explain the purpose of the trust.
Case No. 21 BE 0049
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{¶28} Throughout the trial court and appellate proceedings, Mary Lou has
represented that Jarvis admitted that he did not tell her that she could be evicted from the
Property if she abandoned her life estate. Mary Lou repeatedly represents that Jarvis’s
response to this inquiry at his deposition was “I don’t believe I did.” To the contrary, the
actual exchange at Jarvis’s deposition is as follows:
Q: Did you tell [Mary Lou] by herself alone that that could happen?
A: I don’t believe I did.
Q: Did you put it in writing as a CYA?
A: I think we talked about it in the meeting.
Q: Did you put it in writing as a CYA?
A: What I put in writing is right here [referring to the meeting notes].
Q: Where in here does it say that you told Mary Lou what could happen
if she does this?
A: That specifically is not spelled out. It’s in regards to the occupancy
agreement. It’s not needed.
(Emphasis added)(Jarvis Depo., p. 231.)
{¶29} The depositions of Jarvis, Mary Lou, Roger, and Evick are in the record.
Although Jarvis represented himself and JLO before the trial court, he did not participate
in the depositions of Mary Lou, Roger, or Evick.
{¶30} Mary Lou provided the following testimony at her deposition. Mary Lou
owned a restaurant, which she sold in 2003, the same year that Jerry’s first wife, Ruth,
died. Mary Lou and Jerry were married in 2010.
{¶31} Jerry was diagnosed with dementia shortly after he and Mary Lou were wed.
He was admitted to the hospital after he injured his hip as the result of a fall in 2013. Mary
Lou wanted Jerry to return to the residence they shared, but “they said, ‘No, you can’t
Case No. 21 BE 0049
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have him at home.’ ” (Mary Lou Carpenter Depo., p. 10.) Mary Lou did not define “they.”
Shortly thereafter, Jerry became a resident at Shadyside Care Center, a nursing home in
Belmont County, Ohio.
{¶32} Mary Lou contacted JLO “because the nursing home said [Jerry] needed a
trust to take care of him while he was in the nursing home.” (Id., p. 32.) Mary Lou
presumed that Roger was with her when the nursing home administrator recommended
Jarvis, based on the fact that Roger handled all of Jerry’s financial matters.
{¶33} According to Mary Lou, the first meeting with Jarvis was conducted in the
nursing home and Jerry and Roger were present. She sat in the lobby and did not
participate in the conversation. Mary Lou’s trial counsel intervened during the deposition
to clarify that there was only one meeting at the nursing home with Jarvis and it occurred
after Mary Lou and Roger attended a meeting with Jarvis at JLO.
{¶34} At the first meeting at JLO with Roger in attendance, Jarvis suggested the
creation of a trust. Jarvis told Mary Lou and Roger that only one of them could perform
the duties of the trustee. Because Roger had a college education, Mary Lou
recommended that Roger act as trustee.
{¶35} Mary Lou could not recall anything Jarvis said regarding the proposed trust,
simply that it would be designed to pay for Jerry’s expenses at the nursing home. With
respect to the proposed trust, Mary Lou recalled that Jarvis “pulled down a screen and
wrote numbers and stuff up there on it.” (Id., p. 22.)
{¶36} At the second meeting at JLO, Jarvis told Mary Lou “[t]hat she needed to
sign [her] lifetime rights over for Jerry to get on Medicaid because they were holding it
against the house.” (Id., p. 27-28.) Mary Lou “just thought [she] was signing [the life
estate] over for Jerry to get on Medicaid and everything would stay the same.” (Id.)
{¶37} According to her deposition testimony, Mary Lou was unaware that she was
permanently relinquishing her life estate to the Trust. She thought the transfer of her life
estate was “temporary. [She] didn’t know it was everything for the rest of [her] life.” (Id.,
p. 29.) When asked if Jerry’s successful Medicaid application was “the goal,” Mary Lou
responded, “It wasn’t a goal for me. They just told me I needed to do it.” (Id.)
{¶38} According to Mary Lou, Jarvis did not explain the quitclaim deed transferring
the life estate or its legal consequence. (Id., p. 40-42.) She testified, “[t]here was no legal
Case No. 21 BE 0049
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advice, only for me to sign it.” (Id., p. 42.) She further testified that she “did not know the
quitclaim deed and the lifetime rights were the same thing.” (Id., p. 40.)
{¶39} At the third meeting with Jarvis, which was conducted at the nursing home,
Jarvis and Roger spoke with Jerry, while Mary Lou “[sat] off to the side.” (Id., p. 33.) She
was not a part of the conversation, nor did she overhear any part of the conversation.
However, Roger denied participating in Jarvis’s roughly one-hour meeting with Jerry.
{¶40} When Mary Lou was asked if she discussed the proposed trust with Jerry
prior to Jerry’s meeting with Roger and Jarvis at the nursing home, Mary Lou testified that
Jerry “would not have understood anything that anybody told him.” (Id., p. 43.) She further
testified that Jerry would not have understood the concept of Medicaid or a trust designed
to shelter assets.
{¶41} Mary Lou stated that Jerry had to re-sign the legal documents because his
initial signature was illegible. (Id., p. 36.) When asked why she allowed Jerry to sign the
documents, Mary Lou responded, “I trusted Roger to do the right thing.” (Id.)
{¶42} At his deposition, Roger testified that he was simply doing what Mary Lou
and Jarvis had decided in earlier meetings was the proper course and in Jerry’s best
interest. At the first meeting with Mary Lou and Jarvis, Roger described the two as “very
well acquainted and completely on board.” (Roger Carpenter Depo., p. 60.) After the
creation of the Trust was described by Jarvis, Roger stated that he asked Mary Lou, “Are
you okay with this plan?” She responded, “Yes, absolutely.” (Id.)
{¶43} However, Roger summarized Jarvis’s explanation to Mary Lou regarding
the transfer of her life estate to the Trust as follows:
The reason why it had to be signed over is because the State of Ohio
Medicaid could still consider that an asset and that it would be used and
drained as part of the spend-down for Medicaid. In other words, her life
estate would actually cause her to probably lose the house and living there.
(Id., p. 57.) Roger testified that Jarvis told Mary Lou that the Property constituted “a
countable resource for Medicaid.” (Id., p. 58.)
{¶44} In his affidavit, Roger avers that Mary Lou and Jarvis, at the January 27,
2014 meeting, “proposed to [Roger] the formation of a Trust with fifty percent (50%) of
Case No. 21 BE 0049
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[Jerry’s] liquid assets going to the Trust and the other fifty percent (50%) going outright to
[Mary Lou] in exchange for Mary Lou’s giving up the life estate, which is the subject of
this case.” (Emphasis added)(Roger Carpenter Aff., ¶22.) At his deposition, Roger
testified that Jarvis offered to draft an occupancy agreement for Mary Lou at the January
17, 2014 meeting. Specifically, Roger testified, “I do know that at that meeting in January,
they offered her an occupancy agreement, but she didn’t feel that she needed it.” (Roger
Depo., p. 134.)
{¶45} Roger, an associate professor of nursing at West Virginia University,
testified that he made no effort to independently ascertain Jerry’s cognitive ability, but
instead, relied on Mary Lou’s representations that Jerry’s mind was failing. Roger
explained that medical professionals intentionally avoid diagnosing family members,
terming the decision a “professional boundary.” (Roger Depo., p. 22.)
{¶46} When asked if he attended any of Jerry’s doctor appointments, Roger
responded that “[Jerry’s] wife took him.” (Roger Depo., p. 15.) Roger further claimed that
Jerry’s doctor could not discuss Jerry’s infirmity with Roger due to privacy laws.
{¶47} According to Roger, the family decided that Jerry should stop driving when
Mary Lou reported that Jerry suffered episodes of disorientation and agitation in the fall
of 2013. The decision was also based on the fact that Jerry was prescribed Seroquel,
which Roger described as having a sedating effect.
{¶48} According to Roger’s affidavit, he visited Jerry at the nursing home on a
weekly basis. At all times relevant to the creation of the Trust, Jerry could always
remember and discuss current events, as well as talk about his children and his
granddaughter, Colby.
{¶49} Roger further avers, “[f]rom my observation, I know that my father
understood the nature and effect of the trust and the quit-claim deed; and, his goals (and
Mary Lou’s goals) were accomplished by the creation of an ongoing administration of the
Trust.” (Roger Aff., ¶ 28.) Roger continues that Jerry “expressed his idea that the
[Property] was to be in the Trust and the ‘kids’ would end up owning the ‘ground.’” Finally,
Roger avers, “[Jerry] would tell me that his ultimate goal was that his only grandchild
(Colby) would eventually own the [Property.]” (Roger Aff., ¶ 28.)
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{¶50} Roger testified that he trusted Mary Lou and they had a great relationship
prior to the disagreement over the maintenance of the Property. Roger conceded that
Mary Lou wanted to execute the oil and gas lease on the Property before the Trust was
created. According to Roger, he declined to execute the lease prior to the transfer of the
Property to the Trust because the oil and gas companies were “low-balling” the
Carpenters. (Roger Depo., p. 101.) Roger asserted that the delay in executing the lease
was the product of his desire to generate “maximum income to pay for [Jerry’s] care.”
(Roger Depo., p. 102.) Roger denied that the delay was undertaken to foreclose Mary
Lou from any financial gain.
{¶51} One of the deposition exhibits is a document captioned “Certification of
Hospital Records.” Attached to the certification is correspondence from Mary Lou’s trial
counsel to Steven Timms, M.D., a physician who treated Jerry for “Dementia and/or
Alzheimers.”
{¶52} The correspondence reads, in pertinent part, “[i]n an effort to avoid being
forced to subpoena you for a deposition in this matter, please review the attached records
and any other records in your possession. Upon your review, please complete, sign, and
return the attached form to us * * *.” In the check box form signed by Dr. Timms, he
warrants to a reasonable degree of medical certainty that Jerry suffered from “[d]ementia
and/or Alzheimer’s disease” as of January 27, 2014, and that Jerry was incompetent as
a result of “dementia and/or Alzheimer’s disease” as of January, 2014.” (Jarvis Depo.,
Exh. 20.)
{¶53} A series of documents, captioned “MEETING FOCUSER,” were offered as
deposition exhibits. The first meeting focuser, dated December 5, 2013, memorializes a
meeting conducted by Evick and identifies the clients as “Jerry and Mary Lou Carpenter.”
The handwritten notes read, in relevant part, “3 yrs Dementia; fell hip 11-8; at 10 Lakes –
walking with walker doing better; not going home; Atty. Tomlin [the attorney who drafted
the deeds granting the life estates to Jerry and Mary Lou].”
{¶54} The second meeting focuser, dated December 19, 2013, memorializes a
meeting conducted by Evick and identifies the client as “Carpenter.” The meeting focuser
lists various amounts held in Jerry’s individual retirement account, life insurance policies,
and joint bank accounts in the names of Jerry and Mary Lou.
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{¶55} The third meeting focuser, dated January 13, 2014, memorializes a meeting
conducted by Evick with Mary Lou and Roger and once again identifies the client as
“Carpenter.” The handwritten notes read, in pertinent part, “Oil +Gas? $100,800 16 acres
$6300 – 100% $78K-75%”. A section of the meeting focuser captioned “next action,”
indicates that a “vis[ion]/design” meeting set for January 17, 2014 with Jarvis.
{¶56} The fourth meeting focuser, dated January 17, 2014, memorializes the
meeting conducted by Jarvis with Mary Lou and Roger. The clients are identified as Jerry
and Mary Lou. The handwritten notes read, in pertinent part, “Goals: Get MCD – protect
Assets.” Relevant to the above-captioned appeal, additional handwritten notes read, in
pertinent part:
H+W have life estate only
No OCC agreement needed – they can work together
Nothing needed for future O+G – they will work out between them
Seem to get along well
***
Explained that if we build life estate into trust, may open property to estate
recovery. Told them we could do separate occupancy agreement for ML.
They said not needed – they can work together. May be signing O+G lease
at some point – don’t have one yet. Asked if they needed any agreement
for O+G – they said they can come to agreement between them. Told them
we don’t do O+G leases [illegible].
Boys will be only bens of trust.
ML will keep ½ of countable assets other ½ will go to trust.
Roger [sic] + ML will give up life estate to avoid asset recovery. Roger + ML
seem like they get along well + in agreement on everything. Both want to
make sure Dad is taken care of [sic].
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{¶57} Ultimately, both Jerry and Mary Lou conveyed their life estates by quitclaim
deed to the Trust. Roger and David likewise transferred their remainder interest in the
Property to the Trust. Jerry subsequently transferred the remainder of his assets to the
Trust. Jerry’s sons are the beneficiaries of the Trust and Roger is the Trustee. In addition
to the Trust, Jerry executed a will, a living will, a health care power of attorney, a general
power of attorney (naming both Mary Lou and Roger) and the quitclaim deed transferring
his life estate to the Trust.
{¶58} The retainer agreement identifies Jerry and Mary Lou as JLO’s clients,
however, the retainer agreement was executed by Roger. Jarvis conceded at his
deposition that Roger had no authority to execute the retainer agreement on behalf of
Mary Lou. Roger likewise had no authority to bind Jerry, prior to the execution of the
POA. Jarvis could not recall the order in which the documents were executed, but
acknowledged that Roger did not add “POA” to his signature on the retainer agreement.
(Jarvis Depo., p. 165-168.)
{¶59} There are a series of typographical errors in the documents executed on
January 27, 2014. For instance, the location where the documents were signed are
incorrect. Of greater concern, the memorandum of trust identifies both Jerry and Mary
Lou as the grantors.
{¶60} A few months after the Trust and related documents were signed by Jerry,
on or about April 11, 2014, Roger, acting in his capacity as Trustee, executed an oil and
gas lease between the Trust and the Gulfport defendants. Roger and David, as
beneficiaries of the Trust, executed a ratification of the oil and gas lease dated July 27,
2015. Jerry died on August 12, 2016.
{¶61} At Roger’s deposition, he conceded that Jerry wanted Mary Lou to continue
to reside on the Property until she died. When the HVAC system malfunctioned, Mary
Lou scheduled a meeting with Manes at JLO to determine her responsibility for
maintaining the Property.
{¶62} In correspondence dated January 27, 2017, Alexandra Manes, on behalf of
JLO, notified Mary Lou that the law office was unable to provide any information regarding
the administration of the Trust, as JLO had been “retained by Roger to represent the
[Trust].” (1/27/17 Letter, p. 1.) The correspondence continues:
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Therefore, we are unable to discuss this case with you, as we are required
to maintain confidentiality for our clients and protect the attorney-client
privilege.
Further, we are unable to provide you with any legal advice or
recommendation, as that would be in direct conflict of interest to our client.
You are welcome to hire an attorney if you would like to obtain legal advice.
I understand that you have concerns about the house you currently live in
as it is owned by the [Trust]. At this time, unfortunately we are only able to
provide you with confirmation that the house is owned by the [Trust] and we
are working on the trust administration process with the Trustee, Roger.
Until you are informed otherwise, you may continue to live at the house, and
you are responsible for all utility and other maintenance expenses for the
time you are living there.
(Id.)
{¶63} Next, Mary Lou wrote a letter to Roger requesting financial assistance to
replace the HVAC system. When Roger did not respond, she contacted her current
counsel. Angered by Mary Lou’s decision to retain counsel in the matter, Roger
threatened to evict Mary Lou from the Property. Shortly thereafter, this action was filed.
The trial court granted a temporary restraining order/preliminary injunction prohibiting
Roger from evicting Mary Lou from the Property.
{¶64} On October 4, 2021, the trial court entered partial summary judgment in
favor of Mary Lou and against JLO and Jarvis on Mary Lou’s claim for IIEI, and on her
undue influence claim both individually and on behalf of the Estate. The trial court also
entered summary judgment in favor of Mary Lou and against JLO and Jarvis on the
Estate’s claim that Jerry lacked testamentary capacity to execute the estate planning
documents on January 27, 2014. The trial court predicated summary judgment on four
facts: (1) Mary Lou did not have to extinguish her life estate in order for Jerry to qualify
for Medicaid; (2) Jarvis did not advise Mary Lou that she could be evicted from the
Property in the absence of the life estate or an occupancy agreement, nor did he
Case No. 21 BE 0049
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recommend that she retain separate counsel; (3) Jerry was incompetent as he suffered
from dementia on January 27, 2014, and “did not arrange for the creation of the [ ] Trust,”
(J.E., p. 6); and (4) Jerry did not read the Trust prior to its execution. In a separate
judgment entry, the trial court entered summary judgment in favor of Mary Lou on her
unopposed motion for damages.
{¶65} This timely appeal followed.
STANDARD OF REVIEW
{¶66} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court’s decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (1) no genuine
issue as to any material fact remains to be litigated; (2) the moving party is entitled to
judgment as a matter of law; (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the party
against whom the motion for summary judgment is made, the conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is “material” depends on the substantive law of the claim being litigated.
Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995).
{¶67} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293. In other words, when presented with a properly supported motion for summary
judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party’s favor. Doe v. Skaggs, 7th Dist. No. 18 BE
0005, 2018-Ohio-5402, ¶ 11.
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{¶68} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.
ANALYSIS
ASSIGNMENT OF ERROR
THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE
CLAIMS OF FRAUD, IIEI, UNDUE INFLUENCE, AND LACK OF
CAPACITY IN LIGHT OF THE EXISTENCE OF A GENUINE ISSUE OF
MATERIAL FACT ON THE SUBSTANTIVE ELEMENTS OF EACH OF
THESE CLAIMS.
{¶69} Appellants advance a single assignment of error with several subarguments
divided according to the trial court’s findings of fact. In addition to the assertion that
genuine issues of material fact precluded summary judgment, Appellants assert that Mary
Lou’s undue influence claim was alleged exclusively against Roger in both the original
and amended complaints. Finally, Appellants challenge the award of attorney fees in the
absence of a finding of actual malice or an award of punitive damages.
INTENTIONAL INTERFERENCE WITH EXPECTATION OF INHERITANCE
(ASSERTED BY MARY LOU INDIVIDUALLY)
{¶70} The elements of the tort of IIEI are: (1) an existence of an expectancy of
inheritance in the plaintiff; (2) an intentional interference by a defendant with the
expectancy of inheritance; (3) conduct by the defendant involving the interference which
is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty
the expectancy of inheritance would have been realized, but for the interference by the
defendant; and (5) damage resulting from the interference. Firestone v. Galbreath, 67
Ohio St.3d 87, 88, 616 N.E.2d 202 (1993).
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{¶71} It is undisputed that Jerry’s intent was for Mary Lou to continue to reside on
the Property, and reap the benefits of the life estate, until she died. But for Jarvis’s
intentional interference, that is, his misrepresentation that Mary Lou’s life estate would
prevent Jerry from qualifying for Medicaid, and his concealment of the fact that the life
estate would not be returned to her after Jerry’s death, Mary Lou would have retained her
life estate in the Property.
{¶72} Moreover, Jarvis averred that Mary Lou and Roger determined that the
relinquishment of Mary Lou’s life estate was “the better option.” Roger should not have
participated in that determination because his interest, as one of the beneficiaries of the
proposed trust, was directly at odds with Mary Lou’s interest. Jarvis conceded that the
remaindermen, that is, the beneficiaries of the proposed trust, Roger and David, would
suffer the financial consequences of Mary Lou’s life estate, should she enter a long-term
care facility.
{¶73} Insofar as Mary Lou relinquished her life estate based on the undue
influence and fraud committed by Jarvis and JLO, her legal counsel, due to an incorrect
recitation of Ohio law, we find that the trial court did not err in entering summary judgment
in favor of Mary Lou on her IIEI claim.
LACK OF CAPACITY (ASSERTED BY MARY LOU AS ADMINISTRATRIX)
{¶74} The mental capacity required to create or amend a revocable trust is the
same as that required to execute a will. R.C. 5806.01. Courts apply the test for
testamentary capacity in determining a person’s capacity to execute trust documents.
See Newcomer v. Roan, 2016-Ohio-541, 56 N.E.3d 408, ¶ 109 (6th Dist.); Daubel v.
Dineen, 9th Dist. Lorain No. 11CA009994, 2012 WL 6561262, 2012-Ohio-5924, ¶ 19; Lah
v. Rogers, 125 Ohio App.3d 164, 175, 707 N.E.2d 1208 (11th Dist.1998).
{¶75} The test for testamentary capacity is whether the person “has sufficient
mind and memory: [f]irst, to understand the nature of the business in which he is engaged;
[s]econd, to comprehend generally the nature and extent of his property; [t]hird, to hold in
his mind the names and identity of those who have natural claims upon his bounty; [and]
[f]ourth, to be able to appreciate his relation to the members of his family.” In re Estate of
Case No. 21 BE 0049
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Flowers, 2017-Ohio-1310, 88 N.E.3d 599, ¶ 84 (6th Dist.), quoting Niemes v. Niemes, 97
Ohio St. 145, 155, 119 N.E. 503 (1917), paragraph four of the syllabus.
{¶76} Evidence that a person had dementia is insufficient by itself to establish the
person’s lack of testamentary capacity; there must be evidence that dementia actually
affected the person’s capacity to make the testamentary disposition. In re Estate of
Goehring, 7th Dist. Columbiana No. 05 CO 27, 2007-Ohio-1133, ¶ 60; Garber v.
Schneider, 1st Dist. Hamilton No. C-210568, 2022-Ohio-1777, ¶ 23, Martin v. Dew, 10th
Dist. Franklin No. 03AP-734, 2004-Ohio-2520, ¶ 19.
{¶77} Courts apply this standard in considering a settlor’s capacity to execute trust
documents that form a part of an estate plan. See, e.g., Lah v. Rogers, 125 Ohio App.3d
164, 175, 707 N.E.2d 1208 (11th Dist.1998); Neumeyer v. Estate of Penick, 180 Ohio
App.3d 654, 2009-Ohio-321, 906 N.E.2d 1168, ¶ 47 (5th Dist.). The party seeking to void
the agreement due to a lack of capacity has the burden of proof by clear and convincing
evidence. Lah at 175, 707 N.E.2d 1208. “Clear and convincing evidence is that evidence
‘which will provide in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’ ” (Internal citations omitted.) State v. Garcia, 126 Ohio App.3d
485, 487, 710 N.E.2d 783 (12th Dist.1998).
{¶78} Jarvis conceded that Jerry executed the Trust and related documents within
one hour of their first and only meeting. Jarvis further conceded that he did not know the
reason that Jerry resided in a nursing home, and Jerry did not read the Trust document
despite the fact that Jerry warranted within the document that he read it in its entirety.
Mary Lou testified that she did not explain the proposed estate plan to Jerry prior to
January 27, 2014.
{¶79} Simply stated, one hour is an inadequate amount of time to determine
Jerry’s capacity to execute the Trust and related documents, to thoroughly explain the
legal effect of the Trust and the related documents, for Jerry to thoughtfully consider the
proposed plan, and for Jerry to execute the Trust and related documents. Accordingly,
we find that the trial court did not err in entering summary judgment in favor of the Estate
on the lack of testamentary capacity claim.
Case No. 21 BE 0049
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UNDUE INFLUENCE (ASSERTED BY MARY LOU INDIVIDUALLY AND AS
ADMINISTRATRIX)
{¶80} Next, Appellants argue that the trial court entered judgment in favor of Mary
Lou on her undue influence claim against Jarvis despite the fact that the undue influence
claim was asserted by Mary Lou individually and on behalf of the Estate exclusively
against Roger. The allegations under the caption “undue influence” from the amended
complaint are identical to the allegations asserted in the original complaint. A review of
the allegations reveals that the only undue influence claims that are asserted are: (1) by
Mary Lou individually against Roger; and (2) by Mary Lou as Administratrix on behalf of
Jerry against Roger. Mary Lou does not address this argument in her appellate brief.
{¶81} Despite the undue influence claims alleged exclusively against Roger in
the amended complaint, the undue influence argument in Mary Lou’s motion for summary
judgment is captioned, “Defendants [Jarvis and JLO] unduly influenced [Mary Lou and
Jerry.]” Further, in the body of the argument, Mary Lou asserts, “”Mary Lou is an
unsophisticated older person and was susceptible to [Jarvis’s] influence.” (MSJ, p. 18.)
Further, in the opposition brief to the motion for summary judgment, Jarvis, who
represented himself and JLO, argued the substance of the undue influence claim. Jarvis
did not assert a lack of notice.
{¶82} Civ.R. 15(B), captioned “Amendments to Conform to the Evidence,” reads,
in relevant part, “[w]hen issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been raised in
the pleadings.” Implied consent is established where it appears that the parties
understood that the evidence was aimed at the unpleaded issue. Oxford Mining Co., LLC
v. Ohio Gathering Co., LLC, 7th Dist. Belmont No. 19 BE 0016, 2020-Ohio-1363, ¶ 28,
citing State ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 448 N.E.2d 1159(1983), paragraph two of the syllabus. We have observed that “[a]n unpled affirmative
defense can be ‘tried’ with consent in the course of the summary judgment motion
practice.” Oxford Mining at ¶ 28, citing Church at Warren v. Warzala, 11th Dist. Trumbull
No. 2016-T-0073, 2017-Ohio-6947, ¶ 19. Accordingly, we find that Jarvis’s consent to
litigate the undue influence claims can be implied from his failure to raise his lack of notice
of the claim on summary judgment.
Case No. 21 BE 0049
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{¶83} In order to prove undue influence, a plaintiff must prove four elements: (1)
the individual in question was susceptible to undue influence; (2) another person had the
opportunity to exert undue influence over the susceptible individual; (3) improper
influence was exerted or attempted; and (4) the result shows the effect of such influence.
West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962); Huntington v. Riversource,
7th Dist. No. 14 MA 90, 2015-Ohio-5600, 45 N.E.3d 1053, ¶ 40.
{¶84} Mary Lou was susceptible to Jarvis’s undue influence insofar as Mary Lou
relied on Jarvis’s legal advice regarding Jerry’s ability to qualify for Medicaid. Jarvis
conceded that Mary Lou was his client. The record reflects that Jarvis failed to inform
Mary Lou that the existence of her life estate would have no impact on Jerry’s ability to
qualify for Medicaid. Jarvis likewise failed to adequately explain the legal effect of the
quitclaim deed on Mary Lou’s life estate.
{¶85} With respect to Jerry, we find that the roughly one hour Jarvis spent with
Jerry, during which he purportedly ascertained Jerry’s capacity to execute the Trust and
related documents, explained the Trust and related documents, and executed the Trust
and related documents, was woefully inadequate to accomplish the foregoing tasks,
particularly in light of Jerry’s infirmity. As a consequence, we find that the trial court did
not err in entering summary judgment in favor of Mary Lou individually and on behalf of
the Estate on the undue influence claim against Jarvis and JLO.
FRAUD (ASSERTED BY MARY LOU INDIVIDUALLY AND AS ADMINISTRATRIX)
{¶86} In order to prevail on a claim of fraud, a plaintiff must demonstrate the
following elements:
(1) a representation or, where there is a duty to disclose, concealment of a
fact,
(2) which 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,
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(4) with the intent of misleading another into relying upon it,
(5) justifiable reliance upon the misrepresentation or concealment, and
(6) a resulting injury proximately caused by the reliance.
Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984); KSMAC Holdings,
Ltd. v. Ice Zone Realty, Ltd., 7th Dist. Mahoning No. 21 MA 0001, 2022-Ohio-1456, ¶ 51.
Fraud must be shown by clear and convincing evidence. Matter of Estate of W., 7th Dist.
Jefferson No. 16 JE 0017, 2017-Ohio-7128, ¶ 25.
{¶87} Jarvis represented that Mary Lou’s life estate would be an impediment to
Jerry’s ability to qualify for Medicaid. Jarvis conceded at his deposition that the foregoing
is a misstatement of Ohio law. Jarvis made the misrepresentation, and at the same time,
concealed the fact that Mary Lou would be permanently relinquishing her life estate in the
Property. Mary Lou testified that she relied on Jarvis’s misrepresentation and
concealment when she signed the quitclaim deed. Mary Lou’s reliance was justified
insofar as Jarvis was acting as her legal counsel. Mary Lou suffered a resulting injury
proximately caused by Jarvis and JLO when she was evicted from the Property. Further,
and as previously stated above, it strains credulity that Jarvis fully informed Jerry of the
legal effect of the Trust and the related documents, or provided Jerry the requisite amount
of time to consider the legal effects of the executed documents, in the roughly one hour
he spent with Jerry on January 27, 2014.
{¶88} Accordingly, we find that the trial court did not err in entering summary
judgment in favor of Mary Lou and against Jarvis and JLO on the fraud claims asserted
by Mary Lou individually and on behalf of the Estate.
ATTORNEYS’ FEES
{¶89} An award of attorneys’ fees is subject to an abuse of discretion standard of
review. Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d 157, 160, 648 N.E.2d 488(1995). Abuse of discretion connotes more than an error of law; it implies that the trial
court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
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{¶90} It is well-settled that the award of attorney fees is appropriate in two specific
instances. The first instance, where statutorily authorized, is not applicable here. The
second instance is in situations when punitive damages would be appropriate, that is, the
conduct is so egregious as to constitute fraud, malice, bad faith or wantonness. Columbus
Finance v. Howard, 42 Ohio St.2d 178, 327 N.E.2d 654 (1975); Village of Oakwood v.
Makar, 11 Ohio App.3d 46, 463 N.E.2d 61 (1983). Attorney fees are recoverable as
compensatory damages by a plaintiff in an action in which punitive damages are proper.
Clary v. Pittman, 7th Dist. Monroe No. 848, 2001-Ohio-3495,*3.
{¶91} In establishing a claim for punitive damages in an action for fraud, the
plaintiff must demonstrate, in addition to proving the elements of the tort itself, “ ‘that the
fraud is aggravated by the existence of malice or ill will, or must demonstrate that the
wrongdoing is particularly gross or egregious.’ ” Davis v. Sun Refining & Marketing Co.,
109 Ohio App.3d 42, 58, 671 N.E.2d 1049 (1996), quoting Charles R. Combs Trucking,
Inc. v. Internatl. Harvester Co., 12 Ohio St.3d 241, 466 N.E.2d 883 (1984), paragraph
three of the syllabus. “Actual malice” requires proving that the debtor acted in the form of
either (1) hatred, ill will, or a spirit of revenge, or (2) a conscious disregard for the rights
of others, which had a great probability of causing substantial harm. Preston v. Murty, 32
Ohio St.3d 334, 512 N.E.2d 1174 (1987).
{¶92} Having reviewed the record, we find that Mary Lou established particularly
gross or egregious wrongdoing by Jarvis. Jarvis’s failure to represent the respective
interests of his clients, Jerry and Mary Lou, is evident from the fact that he failed to inform
Mary Lou that she and Jerry would suffer no consequence from the retention of her life
estate in the Property. Likewise, Jarvis failed to ascertain Jerry’s cognitive abilities or
determine Jerry’s intentions prior to the day that the Trust and related documents were
executed. In addition to spending roughly one hour with Jerry, during which the
documents at issue were executed, Jarvis misrepresented within the Trust document that
Jerry had read the document in its entirety. Finally, Jarvis denied that Mary Lou was his
client from January of 2017, when she contacted JLO regarding the furnace replacement,
until his deposition in January of 2019, when he begrudgingly conceded that it was
reasonable for her to assume that he was her lawyer. Accordingly, we find that the trial
court did not abuse its discretion with respect to the attorneys’ fee award.
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CONCLUSION
{¶93} For the foregoing reasons, the judgment entries of the trial court granting
partial summary judgment in favor of Mary Lou and against JLO and Jarvis on the
substantive claims, and awarding damages to Mary Lou, are affirmed.
Donofrio, J., concurs.
Waite, J., dissents in part with dissenting in part opinion.
Case No. 21 BE 0049
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Waite, J., dissenting in part.
{¶94} While I concur with the majority in regard to its conclusions on the issues of
capacity and undue influence, I respectfully dissent on the issues of IIEI and the award of
attorney fees.
{¶95} I begin by noting that the IIEI claim does not involve any inheritance at all.
Instead, it stems from Mary Lou, not Jerry’s, life estate. The majority concludes that
Appellees’ actions interfered with Mary Lou’s right to her life estate, which belonged to
her before her marriage with Jerry and was completely unaffected by his death.
{¶96} A quick review of the timeline at issue is helpful, here. In November of 2007,
Jerry executed a deed reserving a life estate for both himself and Mary Lou. Majority
Opinion at ¶ 9. His three children were named remaindersmen. Jerry and Mary Lou
married in 2010. In April of 2013, he restructured the deed to sever one acre in favor of
his daughter. Id. at ¶ 10. As to the remaining acreage, he again reserved a life estate
for himself and Mary Lou. His remaining two children were named remaindersmen.
{¶97} In January of 2014, the discussion regarding the Medicaid application
between Jarvis, Roger, and Mary Lou resulted in Mary Lou and Jerry giving up their life
estates. Id. at ¶ 57. Mary Lou was permitted to remain in the house, even without a life
estate. Jerry died in 2016. Roger threatened to evict Mary Lou in 2017 when she retained
counsel regarding a dispute as to repairs to the property, leading to the instant litigation.
Id. at ¶ 62-63.
{¶98} As stated by the majority, one of the elements of IIEI is “an existence of an
expectancy of inheritance in the plaintiff.” Id. at ¶ 70. The majority does not mention in
the analysis that Mary Lou’s life estate was created in 2007, long before any discussion
of a Medicaid trust. Thus, her right in the life estate was created by deed, not by a
testamentary document, and is in no way affected by Jerry’s death. The majority
concludes that the interference arose when Jarvis did not notify Mary Lou that she would
permanently lose her life estate. While Mary Lou did testify that she failed to understand
she would lose her life estate, this fact is irrelevant when considering an IIEI claim that
must be based on some right expected to be received through some type of inheritance.
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As such, I believe that Mary Lou’s preexisting life estate cannot serve as the basis for an
IIEI claim.
{¶99} Even if her claim was based on Jerry’s life estate, Mary Lou could not have
any expectation of inheritance concerning a right (a life estate) that ended with Jerry’s
death. In other words, Jerry’s rights in the property extinguished on Jerry’s death, thus
there is nothing for Mary Lou to inherit.
{¶100} Secondly, I disagree with the majority’s decision to affirm the imposition of
attorney fees. I take no position as to whether sufficient evidence exists to support a
finding of actual malice or conduct that is particularly wrong or egregious, because a
procedural hurdle prevents our review of this issue. Attorney fees are permitted where a
trial court makes a finding for punitive damages. Ohio law is clear that “an award of
punitive damages is available only upon a finding of actual malice.” Bizfunds, L.L.C. v.
Jetmo, Inc., 8th Dist. Cuyahoga No. 111032, 2022-Ohio-3815, ¶ 49, quoting Wills v. Kolis,
8th Dist. Cuyahoga No. 93900, 2010-Ohio-4351, ¶ 47-48, citing Berge v. Columbus
Community Cable Access, 136 Ohio App.3d 281, 316, 736 N.E.2d 517 (10th Dist.1999).
See also Levy v. Seiber, 2016-Ohio-68, 57 N.E.3d 331 (12th Dist.). The judgment entry
in the case omits a finding of actual malice or that the conduct is particularly wrong or
egregious. Thus, I would remand the matter to allow the trial court to determine whether
actual malice was present.
{¶101} For these reasons, I respectfully dissent in part as to the majority’s
conclusion regarding the IIEI claim and award of attorney fees.
Case No. 21 BE 0049
[Cite as Carpenter v. Carpenter, 2023-Ohio-274.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgments of the
Court of Common Pleas of Belmont County, Ohio, are affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.