[Cite as Miller v. Shreve, 2014-Ohio-4612.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT MILLER, EXECUTOR OF : JUDGES:
THE ESTATE OF DECATUR MILLER, :
SR. : Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 14CA3
:
JOANN SHREVE, ET AL. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court
of Common Pleas, Probate Division,
Case No. 13 PV 051761
JUDGMENT: REVERSED & REMANDED
DATE OF JUDGMENT ENTRY: October 16, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RICHARD A. BAKER KENT D. BIEGLER
819 Steubenville Ave. TRIBBIE, SCOTT, PLUMMER et al.
Cambridge, OH 43725 139 West 8th Street
P.O. Box 640
Cambridge, OH 43725
Guernsey County, Case No. 14CA3 2
Delaney, J.
{¶1} Defendant-Appellant Joann Shreve appeals from the January 3, 2014
Judgment Entry Final Order of the Guernsey County Court of Common Pleas, Probate
Division. Plaintiff-Appellee is Robert Miller, Executor of the Estate of Decatur Miller, Sr.
FACTS AND PROCEDURAL HISTORY
{¶2} Decatur Miller, Sr. (“Decatur”) and Marguerite Miller (“Marguerite”) were
husband and wife and owned property located at 517 Orchard Avenue, Cambridge,
Ohio (the “Property”) as tenants in common. Appellant is the daughter of Decatur and
Marguerite.1
{¶3} On June 22, 2001, Marguerite executed a durable Power of Attorney
(POA) granting Decatur or appellant the ability to act as her POA.
{¶4} On October 20, 2003, three documents relevant to this case were
recorded: the POA on behalf of Marguerite by appellant; a quit-claim deed executed by
Marguerite, through appellant as POA, purporting to transfer Marguerite’s interest in the
Property to Decatur; and a transfer-on-death deed executed by Decatur and Marguerite,
through appellant as POA, purporting to transfer the Property to appellant.
{¶5} Marguerite died testate on January 3, 2004. No probate estate was
opened.
{¶6} Decatur died testate on September 16, 2010. His executor listed the
Property as an asset of the estate filed on November 19, 2012.
1
Default judgment was granted against the remaining children and grandchildren of
Decatur named in his probated Will to share properties of the estate in equal shares.
Those children and grandchildren are not parties to this appeal (with the exception of
Robert Miller as the executor of Decatur’s estate).
Guernsey County, Case No. 14CA3 3
{¶7} Appellant objected to listing the Property in the inventory. A hearing was
held on January 9, 2013; appellant’s objections were overruled and the Probate Court
issued a Judgment Entry Order Approving Inventory and Appraisal. Pertinent to this
appeal, the Probate Court found, e.g., “[t]he executor has proved that the entire interest,
but maybe only an undivided one-half (1/2) interest in the real estate is a probate asset
of the estate and should be included as an estate asset (sic).” The Probate Court also
found:
The request of the executor to settle the issue of ownership is
denied by this Court. The hearing was upon exceptions to the
inventory and this court cannot render a finding as to a partial or full
interest in the real estate. The title to the real estate should be
settled either in the General Division or the Probate Division with all
parties in interest due process rights protected (sic).
{¶8} To that end, appellee filed a complaint for declaratory judgment in the
instant case on February 15, 2013, asserting the transfer of the Property to appellant
was invalid and the Property is an asset of the estate which should be distributed
according Decatur’s will.
{¶9} On April 15, 2013, appellee filed a motion for summary judgment;
appellant responded and appellee replied.
{¶10} The trial court granted summary judgment for appellee on January 3,
2014, finding appellant did not rebut the legal presumption of undue influence under
these circumstances, voiding the purported transfer of the Property to appellant, and
finding the Property to be an asset of Decatur’s probate estate subject to administration.
Guernsey County, Case No. 14CA3 4
{¶11} Appellant appeals from the trial court’s judgment entry of January 3, 2014.
{¶12} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
AND DECLARATORY JUDGMENT AS WELL AS THE OTHER RELIEF SOUGHT BY
PLAINTIFF FOR THE FOLLOWING REASONS: A) THE PLAINTIFF’S MOTIONS
FAILED TO SET FORWARD SPECIFIC FACTS TO ADDRESS THE VALIDITY OF
THE TRANSFER ON DEATH DEED OF DECATUR MILLER, SR.[;] B) ALTHOUGH
THE TRIAL COURT RESTRICTED THE APPLICATION OF MARGUERITE MILLER’S
POWER OF ATTORNEY AND QUIT CLAIM DEED, THE EXPRESS LANGUAGE OF
THE POWER OF ATTORNEY PERMITS THE ACTIONS TAKEN BY APPELLANT[;] C)
THE TRIAL COURT’S DETERMINATION THAT CERTAIN EXHIBITS OF APPELLANT
WERE INADMISSIBLE WAS IN ERR (sic) OF THE EXPRESS LANGUAGE OF THE
SECOND PARAGRAPH OF OHIO REVISED CODE 2317.02(A)(1) WHICH CONTAINS
AN EXCEPTION RENDERING THESE EXHIBITS ADMISSIBLE.”
{¶14} “II. IF THE ABOVE ASSIGNMENTS STANDING ALONE FAIL TO RISE
TO THE LEVEL OF REVERSIBLE ERROR, THE CUMULATIVE WEIGHT OF THOSE
ERRORS MERIT RECONSIDERATION OF THIS MATTER.”
ANALYSIS
I., II.
{¶15} Appellant’s two assignments of error will be considered together.
Appellant argues the trial court erred in granting summary judgment for appellee. We
agree.
Guernsey County, Case No. 14CA3 5
{¶16} Summary judgment motions are to be resolved in light of the dictates of
Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman
v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled
to judgment as a matter of law, 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 nonmoving
party, that conclusion is adverse to the party against whom the
motion for summary judgment is made.
State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628
N.E.2d 1377 (1994), citing Temple v. Wean United, Inc. 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶17} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgment motions on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 36, 56 N.E.2d 212 (1987).
{¶18} The party seeking summary judgment bears the initial burden of informing
the trial court of the basis for its motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact. The moving party may not
make a conclusory assertion that the non-moving party has no evidence to prove its
case. The moving party must specifically point to some evidence which demonstrates
Guernsey County, Case No. 14CA3 6
the non-moving party cannot support its claim. If the moving party satisfies this
requirement, the burden shifts to the non-moving party to set forth specific facts
demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio
St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d
280, 1996-Ohio-107, 662 N.E.2d 264.
{¶19} Civil Rule 56(E) requires: “Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters in the affidavit. Sworn or certified copies of all paper or parts of papers referred
to in an affidavit shall be attached to or served with the affidavit. The court may permit
affidavits to be supplemented or opposed by depositions or by further affidavits.”
{¶20} The ultimate issue in this case is whether appellant as POA for Marguerite
met her burden of proof on the issue of fairness of the underlying transactions
purporting to transfer the Property to her. To meet this burden before the trial court,
appellant responded to appellee’s complaint and motion for summary judgment with,
e.g., an affidavit of Mary B. Keith, the attorney who prepared the documents, attesting to
Decatur’s intent in effectuating the transfer of the Property by means of the quit-claim
deed and transfer-on-death deed.
{¶21} As POA and donee of the Property, appellant bears a significant burden of
proof. “A power of attorney * * * is a written instrument authorizing an agent to perform
specific acts on behalf of the principal.” In re Guardianship of Simmons, 6th Dist. Wood
No. WD–02–039, 2003-Ohio-5416, 2003 WL 22319415, ¶ 25, citing R.C. 1337.09 and
Testa v. Roberts, 44 Ohio App.3d 161, 164, 542 N.E.2d 654 (6th Dist.1988). (Other
Guernsey County, Case No. 14CA3 7
citation omitted.) “The holder of a power of attorney has a fiduciary relationship with the
principal. Such a relationship is ‘one 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.’ ” (Citations omitted.) Simmons at ¶ 25,
quoting Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094 (1981). “In such a
relationship, the person who holds the power of attorney bears the burden of proof on
the issue of the fairness of transactions between himself and the principal.” Id., citing
Testa at 164, 542 N.E.2d 654.
{¶22} In Simmons, the court of appeals also stated that:
Where there is a confidential or fiduciary relationship between a
donor and donee, a transfer of money or property from donor to
donee is viewed with suspicion that the donor [sic] may have
exercised undue influence on the donor. Even if a POA gives an
express grant of authority to an attorney-in-fact to make gifts to
third persons, including the attorney-in-fact, it does not remove all
obligations owed to the principal. In such cases, a presumption of
undue influence arises and the burden of going forward with
evidence shifts to the donee to show that his conduct was free of
undue influence or fraud and that the donor acted voluntarily and
with a full understanding of his act and its consequences. The
donee may rebut the presumption of undue influence by a
preponderance of the evidence. (Citations omitted.)
Guernsey County, Case No. 14CA3 8
In re Guardianship of Simmons, 6th Dist. Wood No. WD–02–039,
2003-Ohio-5416, 2003 WL 22319415, ¶ 26.
{¶23} Before we reach the merits of the parties’ arguments, however, we must
address the Civ.R. 56 evidence in the record. Appellant responded to appellee’s motion
for summary judgment with an argument premised upon, essentially, “legal advice.”
The crux of appellant’s explanation as to why the purported transfer of the Property
occurred through use of the POA, quit-claim deed, and transfer-on-death deed, is based
upon the advice of Decatur’s counsel. The trial court found it could not weigh this
evidence in its decision because it is subject to attorney-client privilege which has not
been waived by Decatur’s executor, appellee. We disagree with the trial court’s
exclusion of this evidence.
{¶24} R.C. 2317.02(A)(1) states:
The following persons shall not testify in certain respects:
An attorney, concerning a communication made to the attorney by
a client in that relation or concerning the attorney's advice to a
client, except that the attorney may testify by express consent of
the client or, if the client is deceased, by the express consent of the
surviving spouse or the executor or administrator of the estate of
the deceased client. However, if the client voluntarily reveals the
substance of attorney-client communications in a nonprivileged
context or is deemed by section 2151.421 of the Revised Code to
have waived any testimonial privilege under this division, the
attorney may be compelled to testify on the same subject.
Guernsey County, Case No. 14CA3 9
The testimonial privilege established under this division does
not apply concerning a communication between a client who
has since died and the deceased client's attorney if the
communication is relevant to a dispute between parties who
claim through that deceased client, regardless of whether the
claims are by testate or intestate succession or by inter vivos
transaction, and the dispute addresses the competency of the
deceased client when the deceased client executed a
document that is the basis of the dispute or whether the
deceased client was a victim of fraud, undue influence, or
duress when the deceased client executed a document that is
the basis of the dispute. (Emphasis added.)
{¶25} There is a dearth of case law on this statutory exception to the attorney-
client privilege. We note 1 Baldwin’s Oh. Prac. Merrick-Ripner Prob.L., Section 5.1,
Privileged communications—Statutory protection (2013) states in pertinent part:
2006 House Bill 144, effective June 15, 2006, primarily waives the
attorney-client privilege, R.C. 2317.02(A), as amended * * * in
certain post-death probate litigation such as will and trust contests,
a construction action concerning a will or trust document, a dispute
concerning joint and survivorship property, a payable on death
asset, a transfer on death deed or asset, the validity of a gift, a
change in the beneficiary provisions of a pension or insurance
Guernsey County, Case No. 14CA3 10
policy, etc., all examples where the parties to the action claim an
interest in the property through the same deceased person.
{¶26} We conclude, therefore, the Keith affidavit is competent evidence in
appellant’s response to the motion for summary judgment. Because we find the Keith
affidavit should have been weighed in the trial court’s decision based upon R.C.
2317.02(A)(1), supra, we reverse the decision of the trial court granting summary
judgment for appellee with instructions to consider the Keith affidavit in reviewing
appellee’s motion for summary judgment.
{¶27} Appellant’s first assignment of error is therefore sustained and her second
assignment of error is overruled as moot.
CONCLUSION
{¶28} Appellant’s first assignment of error is sustained, the judgment of the
Guernsey County Court of Common Pleas, Probate Division is reversed, and this matter
is remanded for further proceedings consistent with this opinion.
By: Delaney, J. and
Farmer, P.J.
Baldwin, J., concur.
Miller v. Shreve
Combined Opinion