Thomas v. Delgado , 2022 Ohio 4235 ( 2022 )

[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.’”
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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.
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{¶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.).
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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
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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).
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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
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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.
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{¶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
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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
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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.
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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
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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-
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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
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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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Case No. 12-22-06
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.”
Id.{¶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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