[Cite as Young v. Conry, 2013-Ohio-1223.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
JAMES YOUNG, et al. C.A. No. 12CA010152
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARTY CONRY, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellees CASE No. 2008PC00001
DECISION AND JOURNAL ENTRY
Dated: March 29, 2013
MOORE, Judge.
{¶1} Plaintiffs-Appellants, James H. Young, et al, appeal from the December 15, 2011
judgment entry of the Lorain County Court of Common Pleas, Probate Division. We affirm.
I.
{¶2} Crete M. Hoffman died testate on July 25, 2007. In her Last Will and Testament,
Ms. Hoffman left the contents of her home to Goodwill Industries of Lorain, Ohio, and also
made ten specific monetary bequests to both individuals and organizations. In addition, Ms.
Hoffman divided the balance of her estate as follows: 20% to St. Joseph Catholic Church of
Amherst, Ohio, 20% to St. Paul Lutheran Church of Amherst, Ohio, and the remaining 60%
shared equally between Defendants-Appellees, John and Cathy Sekletar (“the Sekletars”), or
their survivor. Further, Ms. Hoffman named her attorney, Defendant-Appellee, Martin J. Conry,
as the executor of her estate, and the Sekletars as alternate executors.
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{¶3} Although Ms. Hoffman died a widow with no children of her own, she had
several nieces and nephews, including James H. Young, Suzanne Dolesch, Cheryl Yagielo, John
R. Young, Deborah Bibb, Judy Broud, Nancy Back, Thomas H. Young, Robert Young, and
David A. Young (“Appellants”). However, Ms. Hoffman’s will did not bequeath any specific
gifts to Appellants, nor were they named as beneficiaries of her residuary estate.
{¶4} In January of 2008, Appellants filed a complaint to contest Ms. Hoffman’s will.
In their complaint, Appellants alleged that they may have an interest under the will because Ms.
Hoffman executed it while under “severe pressure” and the “undue influence” of Mr. Conry and
the Sekletars. Further, Appellants alleged that Mr. Conry and the Sekletars intentionally
interfered with their expectancy of inheritance as Ms. Hoffman’s only surviving heirs. Mr.
Conry and the Sekletars filed answers to the complaint denying the allegations and discovery
ensued.
{¶5} At the close of discovery, Mr. Conry and the Sekletars each filed motions for
summary judgment. Additionally, pursuant to Civ.R. 9(B), Mr. Conry filed a motion to dismiss
the claims of fraud because Appellants failed to state them with particularity. Appellants filed a
brief in opposition to the motions to dismiss and for summary judgment, and Mr. Conry filed a
reply. The trial court granted Mr. Conry’s motion to dismiss and both defense motions for
summary judgment.
{¶6} Appellants timely appealed, setting forth two assignments of error for our
consideration.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR IN REFUSING TO EXTEND THE DISCOVERY CUT-
OFF AND TO EXTEND OR ENLARGE DISPOSITIVE MOTIONS AND
BRIEFING DATES TO ALLOW [APPELLANTS] TO INSPECT AND
FORENSICALLY EXAMINE RELEVANT REQUESTED ORIGINAL
DOCUMENTS AFTER DEFENDANT CONRY FAILED TO ALLOW ACCESS
TO [] THE ORIGINAL DOCUMENTS AS REQUESTED BY []
[APPELLANTS] PRIOR TO THE EXPIRATION OF THE DISCOVERY CUT-
OFF DEADLINE.
{¶7} In their first assignment of error, Appellants argue that the trial court erred in not
extending the discovery cut-off date in order for Appellants to submit four sets of handwritten
notes, allegedly written by Ms. Hoffman, to a forensic document examiner to perform a
handwriting analysis and an ink age determination.
{¶8} In response, Mr. Conry and the Sekletars argue that (1) the trial court did not
abuse its discretion because it extended the parties’ discovery cut-off date on three prior
occasions, and (2) Appellants were unduly lax in their efforts to conduct discovery.
{¶9} “[A]bsent an abuse of discretion, an appellate court must affirm a trial court’s
disposition of discovery issues.” State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469
(1998). An abuse of discretion means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When
applying the abuse of discretion standard, an appellate court may not substitute its judgment for
that of the trial court. Freeman v. Crown City Mining, Inc., 90 Ohio App.3d 546, 552 (4th
Dist.1993).
{¶10} Here, the record indicates that Appellants served discovery requests upon Mr.
Conry and the Sekletars in May of 2009, and July of 2009, respectively. Likewise, in July of
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2009, Mr. Conry served discovery requests upon Appellants. At that time, the discovery cut-off
date was October 31, 2009. Mr. Conry responded to Appellants’ request for discovery in August
of 2009, and the trial court granted Appellants leave to respond to Mr. Conry’s discovery
requests until September of 2009.
{¶11} The trial court then extended the discovery cut-off date to May 28, 2010.
{¶12} In September of 2010, Appellants filed a motion to compel discovery alleging that
Mr. Conry issued incomplete responses to their interrogatories, requests for production of
documents, and requests for admission. At the hearing on the motion to compel, Mr. Conry
agreed to supplement his responses to Appellants’ discovery requests, and both parties agreed to
dates for depositions. Prior to the scheduled depositions, both parties supplemented their
previous discovery responses. The trial court then issued an order stating that discovery must be
completed by February 18, 2011, and that any dispositive motions must be filed by March 18,
2011.
{¶13} On February 17, 2011, the day before the discovery cut-off date, Appellants filed
a motion to extend time periods. Appellants alleged that in November of 2010, Mr. Conry
produced photocopies of documents purporting to be the writings of Ms. Hoffman. The
documents consisted of notes regarding the drafting of Ms. Hoffman’s will. Appellants further
alleged that this was the first time they had seen these documents, and, as such, needed
additional time to procure the originals in order to submit them for expert testing at Speckin
Forensic Laboratories. Instead of immediately moving the trial court for more time to conduct
discovery in November of 2010, Appellants waited approximately three months to (1) request the
original documents from Mr. Conry, and (2) file their motion for an extension of time with the
trial court. Lastly, although the complaint was filed in 2008, and discovery commenced in 2009,
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Appellants waited three years to take Mr. Conry’s and the Sekletars’ depositions. The trial court
accommodated both parties throughout the course of the litigation. In light of the record before
us, we cannot say that the trial court abused its discretion in denying Appellants’ motion to
extend time periods for discovery.
{¶14} Appellants’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
APPELLEES WHEN THE COURT CONSIDERED THE EVIDENCE
PRESENTED WITH REGARD TO SUMMARY JUDGMENT, WHICH
INCLUDED THE CREDIBILITY OF WITNESS DEFENDANT CONRY.
{¶15} In their second assignment of error, Appellants argue that Mr. Conry made false
statements of fact under oath which brought his credibility into issue and made the trial court’s
granting of summary judgment improper. We disagree.
{¶16} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,
viewing the facts in the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party.” (Citation omitted.) Garner v. Robart, 9th Dist. No.
25427, 2011-Ohio-1519, ¶ 8.
{¶17} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:
(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; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary
judgment motion, the movant bears the initial burden of demonstrating that there are no genuine
issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,
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75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must
set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.
56(E).
{¶18} As stated above, Appellants alleged that Mr. Conry and the Sekletars exerted
severe pressure and undue influence upon Ms. Hoffman with regard to the drafting of her will.
R.C. 2107.74 provides, in relevant part, that “[o]n the trial of any will contest under section
2107.71 of the Revised Code, the order of probate is prima-facie evidence of the attestation,
execution, and validity of the will or codicil.” Further, “[a] presumption arises from the order of
admission of the will to probate that the testator was free from restraint. The burden of proving
undue influence is upon the contestants * * *.” Krischbaum v. Dillon, 58 Ohio St.3d 58, 64
(1991), quoting West v. Henry, 173 Ohio St. 498, 502 (1962).
{¶19} In West at 501, the Supreme Court of Ohio stated that “undue influence to avoid a
will must so overpower and subjugate the mind of the testator as to destroy his free agency and
make him express the will of another rather than his own, and the mere presence of influence is
not sufficient.” In addition, “[u]ndue influence must be present or operative at the time of the
execution of the will resulting in dispositions which the testator would not otherwise have
made.” Id. According to West at 510-511, “[t]he essential elements of undue influence are: (1) a
susceptible testator, (2) another’s opportunity to exert it, (3) the fact of improper influence
exerted or attempted and (4) the result showing the effect of such influence.”
{¶20} In their motions, Mr. Conry and the Sekletars argued that there is no evidence that
Ms. Hoffman was under severe pressure or undue influence at the time she executed her will,
and, as a matter of law, summary judgment must be granted in their favor. In support of this
argument, Mr. Conry averred that: (1) he did not meet Ms. Hoffman prior to drafting her will in
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2005, (2) he does not consider the Sekletars to be close personal friends, (3) Ms. Hoffman’s
capacity to sign a will was never in question, (4) Ms. Hoffman arrived at their first appointment
with notes for him to use in preparing her will, (5) Ms. Hoffman did not appear to be in poor
health and walked to all of her appointments, and (6) the Sekletars had no idea that Ms. Hoffman
made them beneficiaries in her will, and were not informed of this fact until after Ms. Hoffman’s
death. Further, Mr. and Mrs. Sekletar averred that they: (1) had no knowledge that Ms. Hoffman
made a will, (2) had no knowledge that they were named beneficiaries in the will until after Ms.
Hoffman’s death, and, (3) never had a discussion with Ms. Hoffman regarding her will.
{¶21} Mr. Conry also attached Appellants’ responses to discovery as further proof that
no genuine issues of material fact exist as to whether Ms. Hoffman was severely pressured or
unduly influenced in the drafting and executing of her Last Will and Testament. Further, the
deposition testimony of John R. Young, David A. Young, Suzanne Dolesch, Thomas H. Young,
Judy Broud, Cheryl Yagielo, and James H. Young collectively shows that there are no genuine
issues of material fact with regard to any of the claims raised in Appellants’ complaint.
{¶22} In his deposition, John R. Young stated his reason for suing Mr. Conry as
follows: “[w]ell, because, based on the way I knew my aunt and every time I’ve ever talked to
her, she had nothing at all whatsoever against anybody in the family. She never ever said
anything to me about having problems with anybody in the family. And it surprised me when we
were told that other people were in charge of everything.” John R. Young also stated that he
knew of no facts supporting the claim that the Sekletars exerted severe pressure or undue
influence upon Ms. Hoffman.
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{¶23} David A. Young admitted that he had no factual basis for the claims in the
complaint, and stated that, in the two-and-a-half years preceding her death, he often saw Ms.
Hoffman at Hot Dog Heaven, walking around town, and at bingo several times a week.
{¶24} Suzanne Dolesch attested that she sued Mr. Conry because of her aunt’s feelings
about family and “the fact that she didn’t mention [the will] to anybody at all.” Ms. Dolesch also
admitted that Ms. Hoffman was a very private person.
{¶25} Thomas H. Young, Ms. Hoffman’s godson, admitted that in the two-and-a-half
year period preceding her death, he often had telephone conversations with her and she “sounded
all right.” Additionally, when asked if he came to learn of any fact that would support the claim
that Mr. Conry applied undue influence upon Ms. Hoffman, Thomas H. Young stated “[u]ndue
influence, what’s that mean?”
{¶26} Judy Broud explained her reason for suing Mr. Conry in the following manner:
“[b]ecause I feel like, knowing my aunt, she would have done something to show the family that
she cared. She was a very private person, but I think she loved us all.” Ms. Broud also attested
that she did not know the Sekletars, and only saw them at hospice.
{¶27} Cheryl Yagielo described Ms. Hoffman as her “second mom,” and stated that Ms.
Hoffman was walking downtown, shopping, and playing bingo up until eight months prior to her
death. Ms. Yagielo also admitted to having no factual support for the claims made in the
complaint, and indicated that Ms. Hoffman was a “very private person.”
{¶28} Finally, Mr. James H. Young, a practicing attorney in Ohio, attested that Ms.
Hoffman was a functioning person, and that he had no specific facts to back up the claims in the
complaint, only “circumstantial evidence” that his aunt would not have signed the Last Will and
Testament.
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{¶29} Based upon the foregoing, we conclude that Mr. Conry and the Sekletars met their
initial Dresher burdens of pointing to some evidence that Appellants could not prove the
essential elements of undue influence, and, specifically, the first and second elements which
require a “susceptible testator,” and “another’s opportunity to exert” influence on the testator.
See Dresher at 292-293, and West at 510-511.
{¶30} In their brief in opposition, Appellants contend that there are genuine issues of
material fact with respect to testamentary capacity, undue influence, and witness credibility. In
support of this position, Appellants attach: (1) the July 30, 2007, and August 7, 2007, transcripts
of two conversations between Mr. Conry and Mr. James H. Young, (2) a letter to Mr. Conry
from Mr. James H. Young regarding some of Ms. Hoffman’s personal possessions, including
antique furniture, a family bible, and a doll collection, and (3) the affidavit of James H. Young.
{¶31} First, with regard to testamentary capacity, we note that Appellants did not allege
in their complaint that Ms. Hoffman lacked testamentary capacity, nor did they amend their
complaint to later include this allegation. Appellants raised this issue for the first time in their
brief in opposition to Mr. Conry’s and the Sekletars’ motions for summary judgment. However,
notwithstanding any procedural issues, Appellants have failed to set forth any specific facts
regarding Ms. Hoffman’s alleged lack of testamentary capacity that would create a genuine issue
for trial. In fact, the record indicates the opposite: that Ms. Hoffman was alert, aware, and active
in the community until approximately eight months prior to her death.
{¶32} Second, with regard to undue influence, Appellants have also failed to set forth
any specific facts that create a genuine issue for trial. In his affidavit, James H. Young focuses
upon events that allegedly happened after Ms. Hoffman’s death, and, as such, are not relevant to
support a claim of undue influence in executing her Last Will and Testament. For example, the
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issue of how Mr. Conry came to possess one of Ms. Hoffman’s guns, while acting as the
executor of her estate, is not indicative of whether he exerted severe pressure and undue
influence upon her in the drafting of her will. Further, the transcribed conversations between Mr.
Conry and Mr. James H. Young, and the letter sent to Mr. Conry regarding gathering certain
items of personal property, are also dated after Ms. Hoffman’s death. This evidence does not
support Appellants’ claims of severe pressure or undue influence or create genuine issues of
material fact regarding the claims. See Daubel v. Dineen, 9th Dist. No. 11CA009994, 2012-
Ohio-5924, ¶ 40 (affirming the granting of summary judgment on the issue of undue influence
where the appellants failed to meet their reciprocal Dresher burden, and failed to prove the
essential element of undue influence).
{¶33} Third, with regard to Mr. Conry allegedly making false statements of fact
regarding Ms. Hoffman’s gun and other possessions, there is no evidence in the record that the
trial court improperly weighed the evidence in order to grant summary judgment in favor of Mr.
Conry and the Sekletars. In its decision, the trial court stated:
How the gun came into [Mr.] Conry’s possession is not a material fact relating to
the issues on summary judgment. The fact that the gun was not included in the
inventory, was given to James [H.] Young, and was not receipted, is a question
for the Inventory and Schedule of Assets in case no. 2007ES00724. * * * The
issues relating to the testimony concerning the gun, which occurred in July of
2007, two years after the Will was drafted, are immaterial to the discussion of
whether fraud, severe pressure or undue influence occurred in July of 2005.
These issues do not determine the outcome of the will contest.
(Emphasis sic.)
{¶34} Therefore, based upon the record before us, we conclude that Appellants have not
met their reciprocal Dresher burden by setting forth specific facts showing that there is a genuine
issue for trial. See Dresher at 293. As such, we cannot say that the trial court erred in granting
Mr. Conry’s and the Sekletars’ motions for summary judgment.
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{¶35} Appellants’ second assignment of error is overruled.
III.
{¶36} In overruling Appellants’ two assignments of error, the judgment of the Lorain
County Court of Common Pleas, Probate Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
CARLA MOORE
FOR THE COURT
BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
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CARR, J.
DISSENTING.
{¶37} I respectfully dissent.
{¶38} This Court recognizes:
In ruling on a motion for summary judgment the trial court is not permitted to
weigh the evidence or choose among reasonable inferences. Dupler v. Mansfield
Journal Co., 64 Ohio St.2d 116, 121 (1980). Rather, the court must evaluate the
evidence, taking all permissible inferences and resolving questions of credibility
in favor of the non-moving party. Id.
Steward v. Urig, 176 Ohio App.3d 658, 2008-Ohio-3215, ¶ 10, quoting Harry London Candies,
Inc. v. Bernie J. Kosar Greeting Card Co., 9th Dist. No. 20655, 2002 WL 185305 (Feb. 6, 2002).
Moreover, “[t]he trial court cannot weigh credibility when considering evidentiary material
presented in favor of, or in opposition to, a motion for summary judgment.” Helms v. Cahoon,
9th Dist. No. 20527, 2002 WL 57978 (Jan. 16, 2002).
{¶39} In ruling on the defendants’ motions for summary judgment, the trial court set out
in great detail fifteen pages of “findings of fact.” Later, while acknowledging that certain of the
plaintiffs’ allegations in the record were “possibly suggestive” of undue influence, it ultimately
disregarded them. Although the trial court purported to grant summary judgment in favor of the
defendants for the reason that the plaintiffs presented “no evidence” in support of the elements of
undue influence, it was clear that it merely disregarded evidence presented by the plaintiffs on
those elements. For example, the trial court found that there was “no evidence” that Mrs.
Hoffman was a susceptible testator despite testimony by James H. Young that his 83-year old
aunt had always taken orders from men and would do anything she was told to do. In addition,
the trial court found that there was “no evidence” regarding why Mrs. Hoffman chose to
disinherit her family when it was unclear that she had in fact disinherited them. There was no
express disinheritance of them in her will. Moreover, the plaintiffs presented evidence of
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discrepancies surrounding the information used to draft Mrs. Hoffman’s will, because Attorney
Conry alternately testified during his deposition that (1) Mrs. Hoffman brought him notes
indicating how and to whom she wished to devise her property, and (2) that he was the one who
hand wrote the names of the devisees.
{¶40} Based on my review of the record, I would conclude that the trial court, despite its
assertions to the contrary, improperly weighed the evidence and credibility of witnesses when
ruling on the motions for summary judgment. Accordingly, I would reverse the trial court’s
judgment and remand the matter for proper consideration of the motions. To be clear, I do not
intend to imply how I would rule on the motions for summary judgment. It is the trial court that
must properly consider the issues in the first instance. Price v. Carter Lumber Co., 9th Dist. No.
26243, 2012-Ohio-6109, ¶ 22. I would simply remand for that purpose.
APPEARANCES:
MICHAEL J. SCHERACH, Attorney at Law, for Appellants.
PATRICK D. RILEY, Attorney at Law, for Appellee.
ANTHONY R. PECORA, Attorney at Law, for Appellee.
MICHAEL E. BROSKY, Attorney at Law, for Appellees.