[Cite as Cooley v. Hartland, 2014-Ohio-5452.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF THE ESTATE OF: : JUDGES:
JOAN MAE COOLEY HARTLAND, DECEASED :
:
DAVID COOLEY : Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
Objector - Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
:
ERIC HARTLAND : Case No. 14-CA-51
:
Respondent - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Probate
Division, Case No. 20130350A
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 11, 2014
APPEARANCES:
For Objector-Appellant For Respondent-Appellee
DAVID COOLEY, Pro Se CHRISTIAN D. ROLAND
1287 Hillview Cir. E. 5716 Walnut Road, Suite B
Newark, OH 43055 P.O. Box 0111
Buckeye Lake, OH 43008
Licking County, Case No. 14-CA-51 2
Baldwin, J.
{¶1} Appellant David Cooley appeals a summary judgment of the Licking
County Common Pleas Court, Probate Division, dismissing his will contest action in the
estate of Joan Cooley Hartland. Appellee is Eric Hartland.
STATEMENT OF FACTS AND CASE
{¶2} Appellant is the son of Joan Mae Cooley Hartland, the decedent in the
instant action. In 2012 at the age of 80, the decedent married appellee. The decedent
executed a will on May 30, 2012, in which she left appellee a life estate in her real
property and the contents thereof, with the remainder interest to pass in equal shares to
her three children. The remainder of her property she bequeathed to appellee.
{¶3} The decedent died on April 14, 2013. The will was admitted to probate.
Appellant filed a will contest action, alleging that the will was the direct result of undue
influence by appellee. Appellant alleged that due to her advanced age, the decedent
suffered from failing health and mental deficiencies at the time the will was executed.
{¶4} Appellee filed a motion for summary judgment, seeking dismissal of the
will contest. The trial court granted the motion. Appellant assigns three errors on
appeal to this Court:
{¶5} “I. THE PROBATE COURT DEMONSTRATED CLEAR PREJUDICE IN
MAKING A PREDISPOSITION EARLY IN THE CASE.
{¶6} “II. THE PROBATE COURT DEPRIVED APPELLANT DUE PROCESS
BY DEFENDING THE OBSTRUCTION OF DISCOVERY BY APPELLEE.
{¶7} “III. THE PROBATE COURT COMMITTED CLEAR ERROR BY
GRANTING A SUMMARY JUDGMENT AGAINST APPELLANT.”
Licking County, Case No. 14-CA-51 3
I.
{¶8} In his first assignment of error, appellant argues that the trial judge was
biased against him, making a predisposition on the merits of appellant’s case prior to
the presentation of any evidence.
{¶9} In Ross v. Belden Park Co., 5th Dist. Stark No. 2000CA00086, 2001 WL
1782650 (April 16, 2001), we addressed the proper proceeding for a litigant to follow
when claiming that a judge is biased or prejudiced:
In cases in the courts of common pleas, the Chief
Justice of the Supreme Court of Ohio has exclusive
jurisdiction to determine a claim that a trial judge is biased or
prejudiced. Jones v. Billingham (1995), 105 Ohio App.3d 8,
11. Common pleas litigants in this type of situation must
bring any challenge to the trial judge's objectivity by way of
the procedure set forth in R.C. 2701.03. See In re Baby Boy
Eddy (Dec. 6, 1999), Fairfield App. No. 99CA22, unreported,
citing In re Miller (July 16, 1999), Montgomery App. No.
17592, unreported, at 2. Since only the Chief Justice or his
designee may hear a disqualification matter, a court of
appeals is without authority to void the judgment of a trial
court because of bias or prejudice of the judge. Beer v.
Griffith (1978), 54 Ohio St.2d 440, 441-42.
Licking County, Case No. 14-CA-51 4
{¶10} Appellant failed to follow the proper proceeding to seek recusal or
disqualification of the trial judge pursuant to R.C. 2701.03, and cannot now claim that
the judge was improperly biased or prejudiced against his case.
{¶11} The first assignment of error is overruled.
II.
{¶12} In his second assignment of error, appellant argues that the court erred in
the regulation of discovery.
{¶13} In the regulation of discovery, the trial court has discretionary power and
its decisions will not be overturned absent an abuse of that discretion. Mauzy v. Kelly
Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996); State ex rel. Daggett v.
Gessaman, 34 Ohio St.2d 55, 57, 295 N.E.2d 659 (1973). An appellate court reviews a
claimed error relating to a discovery matter under an abuse-of-discretion standard.
Lightbody v. Rust, 137 Ohio App.3d 658, 663, 739 N.E.2d 840 (8th Dist.2000); Trangle
v. Rojas, 150 Ohio App.3d 549, 782 N.E.2d 617, 2002–Ohio–6510 (8th Dist.). Under
this standard, reversal is warranted only where the trial court's attitude was arbitrary,
unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶14} Appellant argues that appellee filed a late response to his discovery
request, and filed the response only after appellant filed a motion to compel. Appellant
argues that appellee’s responses to discovery were incomplete and/or perjured. The
record does not support appellant’s claims that appellee’s responses were incomplete
or perjured. On the state of the record in the instant case, we cannot find that the trial
court abused its discretion in regulation of discovery.
Licking County, Case No. 14-CA-51 5
{¶15} The second assignment of error is overruled.
III.
{¶16} Appellant argues that the court erred in granting appellee’s motion for
summary judgment.
{¶17} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must
refer to Civ. R. 56(C) which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated
in this rule. A summary judgment shall not be rendered
unless it appears from the evidence or stipulation, and only
from the evidence or stipulation, that reasonable minds can
come to but one conclusion and that conclusion is adverse
to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or
stipulation construed most strongly in the party’s favor.
Licking County, Case No. 14-CA-51 6
{¶18} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for 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 that the 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 that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶19} In contesting the will, appellant argued that the decedent was not mentally
sound at the time she executed said will, and argued that appellee exerted undue
influence over the decedent regarding the will.
{¶20} The burden of proof in determining testamentary capacity is on the party
contesting the will. Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336, paragraph six
of the syllabus (1928). R.C. 2107.74 creates a presumption of the validity of a will, and
included in this presumption is that the testator was of sound mind and possessed
testamentary capacity to execute the will. Doyle v. Schott, 65 Ohio App.3d 92, 94, 582
N.E.2d 1057(1989).
Testamentary capacity exists when the testator has
sufficient mind and memory: First, to understand the nature
of the business in which he is engaged; Second, to
Licking County, Case No. 14-CA-51 7
comprehend generally the nature and extent of his property;
Third, to hold in his mind the names and identity of those
who have natural claims upon his bounty; Fourth, to be able
to appreciate his relation to the members of his family.’
Birman v. Sproat, 47 Ohio App.3d 65, 67–68, 546 N.E.2d
1354 (1988), quoting Niemes v. Niemes, 97 Ohio St. 145,
119 N.E. 503, paragraph four of the syllabus (1917).
{¶21} It is not enough to show that the testator had deteriorating health, even if
the testator suffered from poor medical health at the time the documents were
executed. Appellant must also show that the health decline actually affected the
testator's capacity to execute the will. Martin v. Dew, 10th Dist. No. 03AP–734, 2004-
Ohio-2520, 2004 WL 1109562, ¶ 19.
{¶22} In West v. Henry, 173 Ohio St. 498, 501–502, 20 O.O.2d 119, 184 N.E.2d
200 (1962), the Ohio Supreme Court held the following concerning undue influence:
General influence, however strong or controlling, is
not undue influence unless brought to bear directly upon the
act of making the will. If the will or codicil, as finally
executed, expresses the will, wishes and desires of the
testator, the will is not void because of undue influence.
The essential elements of undue influence are a
susceptible testator, another's opportunity to exert it, the fact
of improper influence exerted or attempted, and the result
showing the effect of such influence.
Licking County, Case No. 14-CA-51 8
The mere existence of undue influence, or an
opportunity to exercise it, although coupled with an interest
or motive to do so, is not sufficient, but such influence must
be actually exerted on the mind of the testator with respect
to the execution of the will in question. It must be shown that
such influence, whether exerted at the time of the making of
the will or prior thereto, was operative at the time of its
execution or was directly connected therewith. It must be
shown that undue influence was exercised with the object of
procuring a will in favor of particular parties.
It is well stated, as follows, in 94 C.J.S. Wills § 224, p.
1074:
The fact that the will of the testator of admitted
testamentary capacity disposes of his property in an
unnatural manner, unjustly, or unequally, and however much
at variance with expressions by the testator concerning
relatives or the natural objects of his bounty, does not
invalidate the will, unless undue influence was actually
exercised on the testator. (Emphasis omitted.)
{¶23} Accordingly, a finding of undue influence requires: (1) a susceptible
testator, (2) another's opportunity to exert undue influence on the testator, (3) improper
influence exerted or attempted, and (4) a result showing the effect of such influence.
Licking County, Case No. 14-CA-51 9
Redman v. Watch Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 101,
630 N.E.2d 676 (1994).
{¶24} In support of his motion for summary judgment, appellee filed an affidavit
of the decedent’s family physician. Dr. David Born averred that he consulted with the
decedent both before and after she executed the will, and at no time did she appear to
be incapable of caring for herself or handling her own affairs. He further averred that
she never spoke to him regarding excessive pressure or stress caused by appellee, but
she did indicate that appellant attempted to obstruct or prevent her marriage to
appellee, which caused her excessive strain and stress prior to her wedding.
{¶25} Appellee further supported his motion with an affidavit of Attorney Richard
Brindley, who witnessed the signing of the will in his office. He averred that he
questioned the decedent to ascertain that she knew she was signing a will, that she
understood the effect of her signing a will, that she was disposing of all her property not
otherwise dealt with, that she knew who her family members were and that she was
providing for them as she deemed appropriate, and that she was signing the will of her
own free will. He stated that he believed she had testamentary capacity and was
signing the will free of undue influence. Attorney David Morrison likewise signed an
affidavit stating that he witnessed the signing of the will, that Attorney Brindley asked
the decedent a series of questions to determine testamentary capacity and that she was
acting of her own free will, that she answered such questions appropriately, and that he
believed her to have testamentary capacity and to have signed the will free of coercion
or undue influence.
Licking County, Case No. 14-CA-51 10
{¶26} In response, appellant filed an affidavit of Judy Cartnal, a neighbor of the
decedent, in which she stated that another neighbor told her that appellee was pushing
the decedent to change her will. Mary Teter, a friend of the decedent, averred that she
found it strange that after years of being single, the decedent met and married a man
from Australia who was 17 years younger, and the affiant believed there were too many
questions concerning his past. She stated that she believed appellee was isolating the
decedent and used her to get into the United States and control her assets. Marjorie
Haymen, another friend of the decedent, averred that the decedent’s behavior changed
after her marriage, and the decedent talked about appellee changing things in her life,
including buying a new car, changing her will, and removing appellant from her life.
{¶27} Appellant presented no evidence to refute the testimony of Dr. Born and
the witnesses to the signing of the will that the decedent had testamentary capacity at
the time she signed the will. Further, while appellant presented evidence that after her
marriage, appellee encouraged the decedent to change her will, there was no evidence
presented to refute the testimony of the witnesses to the signing of the will that she
signed the will free of coercion or undue influence. The evidence presented by
appellant does not demonstrate that the will as finally executed failed to express the
wishes and desires of the decedent.
{¶28} The third assignment of error is overruled.
Licking County, Case No. 14-CA-51 11
{¶29} The judgment of the Licking County Common Pleas Court, Probate
Division, is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.