Estate of DeChellis v. DeChellis

[Cite as Estate of DeChellis v. DeChellis, 2019-Ohio-3078.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

ESTATE OF PHILIP JOHN :
DECHELLIS BY ANN HEFFNER, :
EXECUTRIX : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2018CA00153
:
PATTY DECHELLIS, ET AL. :
:
:
Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Probate Division, Case
No. 228240

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: July 29, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendants-Appellants:

MARIO GAITANOS CRAIG T. CONLEY
437 Market Ave. N. 604 Huntington Plaza
Canton, OH 44702 220 Market Ave. S.
Canton, OH 44702
Stark County, Case No. 2018CA00153 2

Delaney, J.

{¶1} Defendants-Appellants Patty DeChellis and Danny DeChellis appeal the

October 10, 2018 judgment entry of the Stark County Court of Common Pleas, Probate

Division.

FACTS AND PROCEDURAL HISTORY

The DeChellis Family

{¶2} Philip DeChellis was the patriarch of a large, blended family living in Canton,

Ohio. Philip had three children with his first wife: Ann Heffner, Marco DeChellis, and

Michael DeChellis. Philip began a 30-year romantic relationship with Defendant-Appellant

Patty DeChellis, resulting in the birth of Defendant-Appellant Daniel Patrick Skiba nka

Daniel Patrick DeChellis. Philip and Patty divorced their spouses and moved with the

children to Ohio in 1986. Philip and Patty never married but cohabited as domestic

partners until Philip’s death on July 21, 2016.

{¶3} Philip and Patty resided in a home on Lancaster Gate Street, Canton, Ohio.

Also residing in the home was Philip’s mother, Daniel, Daniel’s wife, and Daniel’s child.

Ann, Marco, and Michael did not have a key to the Lancaster Gate home. Ann and

Michael frequently visited their father at the Lancaster Gate home.

The DeChellis Family Business

{¶4} When Philip moved to Ohio in 1986, he took over a pizza shop. The

business was originally located on Cleveland Avenue in Canton, Ohio; later, the business

relocated to Market Avenue and was named “Napoli’s Italian Eatery.” Napoli’s Italian

Eatery is a well-known dining establishment in downtown Canton and is regularly

frequented by downtown employees.
Stark County, Case No. 2018CA00153 3

{¶5} The DeChellis family have all worked at Napoli’s Italian Eatery at some

point. Philip managed the business and handled its finances. Patty and Michael

supervised the operations of the restaurant.

{¶6} It was well known in the DeChellis family and to Philip’s friends that Philip

preferred to handle his business and personal finances with cash, not credit. Philip had a

distrust of banks. Philip’s accountant, Stephen Miller, C.P.A., confirmed that Philip paid

his employees with cash and his personal and business expenses with cash whenever

possible. Family members observed Philip take cash home from the business in a

briefcase on a daily basis. Ann and Michael saw stacks of cash in the Lancaster Gate

home. Michael saw his father’s safe in his basement office at the Lancaster Gate home.

Peter Kazakis, Philip’s long-term friend, observed Philip retrieve at least $5,000 in cash

from Philip’s basement office and bedroom. Philip did not purchase birthday or Christmas

gifts for his family; instead, he would give them cash.

{¶7} Due to Philip’s exclusive use of cash, his net worth was somewhat of a

mystery, even to his accountant. For example, Philip purchased a $279,000 home with

$60,512.57 as a down payment. He reported to the bank that he had liquid assets of

$86,295.00 but paid off the $232,000 30-year mortgage in four years. Philip drove a

Cadillac and owned two vintage Corvettes. Philip paid Patty an allowance that amounted

to $26,000 per year. Daniel asked for $26,000 for day-trading and Philip gave him a

cashier’s check for the money. Philip did not have any business debt. His accountant

relied on the information provided from Philip to prepare his tax returns but did not verify

the financial integrity of Philip’s data. His accountant knew it was not uncommon for cash

businesses to under report income.
Stark County, Case No. 2018CA00153 4

The Last Will and Testament

{¶8} In 2013, Philip suffered a serious heart attack. In 2015, Philip suffered a

stroke and heart attack, resulting in surgery. In 2016, Philip was diagnosed with lung

cancer.

{¶9} Philip worked with Attorney Stanley Rubin for business related legal issues.

He also retained Attorney Rubin’s services for his estate planning. In 2015, Philip told

Attorney Rubin multiple times he had $750,000 in cash that upon his death, he wanted to

be divided equally between his four children. In April or May 2016, Attorney Rubin

attended a family meeting with Philip, Ann, Patty, and Daniel. At the meeting, Philip told

those present he had $750,000 in cash that he wanted to divide equally between the four

children. Philip did not say at the family meeting where the $750,000 in cash was located

or show anyone the $750,000 in cash. In accordance with Philip’s wishes, Attorney Rubin

prepared a Last Will and Testament with a residuary clause that provided for the equal

division of residuary assets among the four children. The Will was signed by Philip on

July 19, 2016 and admitted to Probate on August 1, 2016. Philip named Ann as the

Executrix.

{¶10} Philip passed away on July 21, 2016. After his death, Ann spoke with Patty

regarding the $750,000 in cash to be split among the children. Ann wanted to meet to

divide the cash, but Patty delayed the meeting. On September 2, 2016, Ann and her

fiancée came to Lancaster Gate home with an appraiser for purposes of executing the

Will. During the appraisal of the personal property in the home, Ann observed two of her

father’s briefcases in his bedroom that appeared to be broken into and empty. She also

observed a safe in the bedroom that appeared to be broken into and empty. Ann and the
Stark County, Case No. 2018CA00153 5

appraiser were not permitted to enter Daniel’s room. In her father’s basement office, Ann

observed the room in disarray and the basement safe was missing. Ann called Attorney

Rubin after the September 2, 2016 appraisal because she was upset and felt that Patty

and Danny had taken the $750,000 in contravention of her father’s will.

The Lawsuits

{¶11} On April 25, 2017, Patty and Daniel filed a complaint in the Stark County

Court of Common Pleas, General Division, Case No. 2017CV00858, against Ann,

Michael, Marco, and the Estate of Philip J. DeChellis alleging intentional tortious

interference with inheritance, failure to pay bills, and intentional interference of emotional

distress. The defendants answered and filed a counterclaim against Patty and Daniel,

alleging concealment of assets, conversion, and intentional infliction of emotional distress

in regard to the $750,000 in cash. In their answer to the counterclaim, Patty and Daniel

stated, “Plaintiffs/Counterclaim Defendants invoke their Fifth Amendment right to remain

silent in response to allegations in paragraphs 6, 7, 8, 10 and 11 of Defendants’

counterclaim for quasi-criminal claims for Concealment of Assets and Conversion.”

(Answer, July 19, 2017).

{¶12} Case No. 2017CV00858 was voluntarily dismissed by joint stipulation on

January 15, 2018.

{¶13} On February 28, 2017, Plaintiff-Appellee Ann Heffner, duly appointed

Executrix of Philip J. DeChellis, filed a R.C. 2109.50 concealment of assets action in the

Stark County Court of Common Pleas, Probate Division against Respondents-Appellants

Patty and Daniel. On April 26, 2017, Ann amended her complaint and requested recovery

of $750,000.
Stark County, Case No. 2018CA00153 6

{¶14} The matter proceeded to a bench trial on August 29-30, 2018. Ann

presented seven witnesses on direct: Ann, Michael, Maria DeChellis, Peter Kazakis,

Rodney Dimmerling, Stephen Miller, and Ann’s fiancée. Ann presented the testimony of

Patty and Daniel on cross examination. During cross, counsel questioned Patty and

Daniel about the discovery depositions where they were asked about the location of the

cash in the Lancaster Gate home and whether they were in possession of the $750,000

in cash. Both Patty and Daniel invoked their Fifth Amendment rights against self-

incrimination. The videotaped depositions of Maria DeChellis, Stephen Miller, and

Rodney Dimmerling were viewed by the trial court and incorporated into the trial record.

At the conclusion of Ann’s case, Patty and Daniel rested without the presentation of

evidence.

{¶15} On September 25, 2018, the trial court reconvened the parties and

announced its decision on the record. The trial court found Patty and Daniel guilty of

having concealed, embezzled, conveyed away, or having been in possession of monies

owned by Philip and now belonging to his Estate.

{¶16} On October 10, 2018, the trial court journalized its verdict in its findings of

fact and conclusions of law. The trial court rendered judgment in favor of Ann as Executrix,

in the amount of $750,000 against Patty and Daniel jointly and severally, with a ten-

percent penalty from the date of Philip’s death.

{¶17} It is from this judgment Patty and Daniel now appeal.
Stark County, Case No. 2018CA00153 7

ASSIGNMENTS OF ERROR

{¶18} DeChellis raises four Assignments of Error:

{¶19} “I. THE TRIAL COURT ERRED IN CONSIDERING AND RELYING UPON

INDIRECT EVIDENCE.

{¶20} “II. THE TRIAL COURT ERRED BY ADMITTING, OVER OBJECTION,

HEARSAY TESTIMONY.

{¶21} “III. THE TRIAL COURT ERRED BY INCORPORATING, OVER

OBJECTION, PLEADINGS AND PRETRIAL DISCOVERY MATERIALS INTO THE

TRIAL RECORD.

{¶22} “IV. THE TRIAL COURT’S GUILTY FINDING WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.”

ANALYSIS

I.

R.C. 2109.50

{¶23} A concealment action is brought under R.C. 2109.50 and permits a

complaint to be made to the probate court “against any person suspected of having

concealed, embezzled, or conveyed away or of being or having been in the possession

of any moneys * * * of the estate.” R.C. 2109.50. The purpose of R.C. 2109.50 is to provide

a speedy and effective method of discovering assets belonging to the estate and securing

their recovery. In re the Estate of Gordon, 5th Dist. Richland No. 13-CA-77, 2014-Ohio-

2087, ¶ 21 citing Wozniak v. Wozniak, 90 Ohio App.3d 400, 629 N.E.2d 500 (9th

Dist.1993). It is a quasi-criminal statute requiring a finding of guilty or not guilty. Id. citing

Ukrainiec v. Batz, 24 Ohio App.3d 200, 202, 493 N.E.2d 1368 (9th Dist.1982).
Stark County, Case No. 2018CA00153 8

{¶24} While R.C. 2109.50 is a quasi-criminal special statutory proceeding, this

type of action is controlled by the laws governing civil proceedings in the probate court.

Lance v. Boldman, 2018-Ohio-44, 93 N.E.3d 1013 (9th Dist.), ¶ 33 citing Wozniak at 411,

629 N.E.2d 500. Thus, the complainant must prove the elements of a R.C. 2109.50 claim

by a preponderance of the evidence. Id. at ¶ 33 citing Kasick v. Kobelak, 184 Ohio App.3d

433, 2009-Ohio-5239, 921 N.E.2d 297 (8th Dist.), ¶ 13.

{¶25} Because of the quasi-criminal nature, “[w]rongful or culpable conduct on the

part of the person accused is an element of the offense, which must be proven by a

preponderance of the evidence.” Id. at ¶ 34 citing Kaforey v. Burge, 9th Dist. Summit No.

17050, 1995 WL 283774, at *2 (May 10, 1995), citing Ukrainiec at 202, 493 N.E.2d 1368.

Thus, the complainant must prove more than “mere possession” of the estate assets. Id.

citing Longworth v. Childers, 180 Ohio App.3d 162, 2008-Ohio-4927, ¶ 21, 904 N.E.2d

904 (2nd Dist.); Ukrainiec, 24 Ohio App.3d at 202, 493 N.E.2d 1368. “[T]he inquiry under

R.C. 2109.50 focuses on the ownership of the asset and whether possession of the asset

is being impermissibly concealed or withheld from the estate.” Id. citing Wozniak at 407,

629 N.E.2d 500.

Burden of Proof

{¶26} In their first Assignment of Error, Patty and Daniel contend the trial court

used the incorrect evidentiary standard in the R.C. 2109.50 action. They contend the trial

court relied upon indirect evidence to reach its verdict, when the correct burden of proof

to establish a prima facie case of concealment of assets is by direct evidence as held in

Silcott v. Prebble, 12th Dist. No. CA2002-04-028, 2003-Ohio-508.
Stark County, Case No. 2018CA00153 9

{¶27} In Silcott v. Prebble, 12th Dist. No. CA2002-04-028, 2003-Ohio-508, the

decedent’s daughter brought claims against her siblings, including two brothers who had

served as the decedent’s attorney-in-fact, seeking an accounting of probate assets and

alleging concealment of assets and intentional interference with expectancy interests.

The trial court entered judgment requiring the attorneys-in-fact to reimburse the estate.

The Twelfth District Court of Appeals affirmed. In its opinion, the court stated:

In her fifth assignment of error, Lana argues that the probate court erred by

awarding judgment only against Roger and Robert, the attorneys-in-fact.

Lana argues that judgment should also have been entered against the other

six appellees for receiving funds improperly from the attorneys-in-fact. We

disagree. Unlike Roger and Robert, the other six appellees were not

attorneys-in-fact in charge of Lowell's assets. In addition, although claiming

in her complaint that all of appellees had concealed, embezzled, or

conveyed away $126,800, Lana failed to produce any evidence to trace any

assets to those six appellees. It is well-established that in a proceeding for

concealment of assets, the burden of proof is upon the complainant to

establish a prima facie case by direct evidence. Maag, Troy, and Barlow,

2002 Ohio Probate Practice and Procedure, 144, Section 12.08; see, also,

In re Estate of Woods (1959), 110 Ohio App. 277, 167 N.E.2d 122. Lana

has failed to meet her burden. Lana's fifth assignment of error is accordingly

overruled.

Id. at ¶ 34.
Stark County, Case No. 2018CA00153 10

{¶28} In support of their argument, Patty and Daniel refer this Court to Kogut v.

Marcelli, 5th Dist. 2011CA00026, 2012-Ohio-183, where the appellant argued that in

contravention of Silcott, supra, the trial court failed to hold the appellee/complainant to his

burden of proof. Id. at ¶ 14. Patty and Daniel argue this Court’s reference to Silcott in

Kogut therefore establishes the required standard of proof in a concealment of assets

action is direct evidence. We find Appellants misinterpret our reliance on Silcott.

{¶29} In Kogut, the appellant’s complaint for concealment alleged, “Rose Kogut

has concealed or conveyed away monies and jewelry to the estate of the decedent in

fraud of its rights.” Id. at ¶ 30. At issue in the case were bank accounts that the appellant

alleged to be joint and survivor accounts with the decedent. The trial court found the

appellee established a prima facie case for the concealment of assets and appellant did

not meet her burden in establishing joint and survivorship accounts between her and the

decedent. Id. at ¶ 3. We affirmed. We cited to the above holding in Silcott and first found

the trial court properly acknowledged the appellee’s burden in the case, causing the

concealment matter to be put on first. Id. at ¶ 25, 30. The appellant argued that her

testimony alone was sufficient to establish joint and survivorship accounts, and no other

extrinsic evidence should have been permitted under Wright v. Bloom, 69 Ohio St.3d 596,

635 N.E.2d 31 (1994). Under Wright, the opening of an account in joint and survivorship

form shall, in the absence of fraud, duress, undue influence or lack of mental capacity on

the part of the depositor, be conclusive evidence of the depositor’s intention to transfer

the survivor the balance remaining in the account at the depositor’s death. We held

pursuant to Wright, extrinsic evidence was available as to whether there was fraud in the

opening of joint and survivorship accounts. Id. at ¶ 30. Based on the evidence presented
Stark County, Case No. 2018CA00153 11

and our deference to the trial court as to matters of credibility and weight of the evidence,

we found the trial court correctly determined the accounts were not joint and survivorship

accounts. Id. at ¶ 38. In Kogut, our reliance upon Silcott was only to find the trial court

correctly determined the burden to establish a concealment action rested on the appellee.

Id at ¶ 30.

{¶30} Under R.C. 2109.50, it is well-established the wrongful conduct on the part

of the person accused must be proved by a preponderance of the evidence. In Silcott, the

court cites to In re Estate of Woods, 110 Ohio App. 277, 167 N.E.2d 122 (10th Dist.1959)

in support of its statement that the burden of proof is upon the complainant to establish a

prima facie case by direct evidence. In re Estate of Woods states as follows:

In a proceeding for concealment of assets, the burden is upon the

complainant to prove by a preponderance of the evidence that the

respondent received the money or other thing of value claimed to have

come into his hands and that he concealed, empbezzled [sic] or conveyed

it away. Leonard v. State ex rel. Scott, 3 Ohio App. 313.

Since the proceeding requires a finding of guilty and is quasi criminal in

character, the burden must be imposed upon the complainant (or the court,

cf. In re Fife's Estate, 164 Ohio St. 449, 132 N.E.2d 185) to at least produce

evidence of such probative character that reasonable minds might reach

different conclusions upon the guilt or innocence of the respondent. * * *

In such special proceeding wherein the evidence discloses that the

respondent at some time prior to the death of the decedent had a transitory

possession of the proceeds of checks belonging to the decedent, the
Stark County, Case No. 2018CA00153 12

burden is also upon the complainant to trace the funds into the estate of the

respondent and no burden is cast upon the respondent to trace the money

elsewhere between the time of its delivery to the decedent and her

subsequent death. Cf. In re Leiby's Estate, 157 Ohio St. 374, 105 N.E.2d

583

In re Woods' Estate, 110 Ohio App. 277, 282, 167 N.E.2d 122, 125-126 (10th Dist.1959).

The complainant must prove more than “mere possession” of the estate assets. Lance v.

Boldman, 9th Dist. No. 16AP0032, 2018-Ohio-44, 93 N.E.3d 1013, 2018 WL 327799, ¶

34. “ ‘[T]he inquiry under R.C. 2109.50 focuses on the ownership of the asset and whether

possession of the asset is being impermissibly concealed or withheld from the estate.’ ”

Gustafson v. Miller, 5th Dist. Perry No. 15–CA–00008, 2015–Ohio–5515, ¶ 23 quoting

Wozniak at 407, 629 N.E.2d 500.

{¶31} Upon review of the trial court’s verdict and October 10, 2018 judgment entry,

we find the trial court utilized the correct burden of proof in determining whether Ann

established that Patty and Daniel concealed, embezzled, or conveyed away or was in

possession of $750,000 belonging to the Estate of Philip J. DeChellis. As will be

discussed further in our analysis of the fourth Assignment of Error, the trial court found

Ann demonstrated by a preponderance of the evidence that Patty and Daniel

impermissibly concealed or withheld the $750,000 from the Estate. (October 10, 2018

Judgment Entry).

{¶32} The first Assignment of Error is overruled.
Stark County, Case No. 2018CA00153 13

II.

{¶33} In its second Assignment of Error, Patty and Daniel argue the trial court

erred in admitting, over objection, hearsay testimony.

{¶34} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Huth v. Kus, 5th Dist. No. 2017 AP 06 0015, 2018-

Ohio-1931, 113 N.E.3d 140, 2018 WL 2230727, ¶ 30 quoting Rigby v. Lake Cty., 58 Ohio

St.3d 269, 271, 569 N.E.2d 1056 (1991). “Ordinarily, we review a trial court's hearsay

rulings for an abuse of discretion.” State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d

126 (1967). However, “[w]hether evidence is admissible because it falls within an

exception to the hearsay rule is a question of law, thus, our review is de novo.” State v.

Truitt, 9th Dist. No. 25527, 2011-Ohio-6599, 2011 WL 6749811, ¶ 24 (quoting Monroe v.

Steen, 9th Dist. No. 24342, 2009-Ohio-5163, 2009 WL 3119693, ¶ 11.

{¶35} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one of

the recognized exceptions. Evid.R. 802; State v. Steffen, 31 Ohio St.3d 111, 119, 509

N.E.2d 383 (1987).

{¶36} Appellants’ argument on their second Assignment of Error states in total:

All of the aforesaid hearsay testimony elicited at trial by Appellee over

Appellants’ repeated objections was clearly inadmissible under Evid R 802;

and, that hearsay testimony (deemed as dispositive by the Trial Court

below) was not otherwise admissible under Evid R 805 (B) (5) as an
Stark County, Case No. 2018CA00153 14

exception to the hearsay rule, noting that Appellants’ testimony at trial (as

well as before trial) did not “open the door” to that hearsay exception. (See,

e.g., Mancz v. McHenry (2nd Dist.), 2012-Ohio-3285, at ¶ 27 and 28.)

Accordingly, this Assignment of Error should be sustained and this

Appeal should be granted.

{¶37} Appellants do not cite to the record to show where the trial court’s alleged

evidentiary errors may be located. We reviewed the direct examination of Ann Heffner

and find that counsel objected at least 15 times to her testimony on the basis of hearsay.

Ann presented eight other witnesses in her case in chief and Appellants’ counsel objected

during their testimony on the basis of hearsay. App.R. 16(A)(7) requires an appellant's

brief to contain “the contentions of the appellant with respect to each assignment of error

* * * and the reasons in support of the contentions, with citations to * * * parts of the record

on which appellant relies.” Thus, an appellant must indicate to the appellate court

specifically where the trial court's alleged errors may be located. “It is not the duty of an

appellate court to search the record for evidence to support an appellant's argument as

to any alleged error.” Silcott v. Prebble, supra, ¶ 19 citing State v. Watson, 126 Ohio

App.3d 316, 321, 710 N.E.2d 340 (12th Dist.1998).

{¶38} We assume because Patty and Daniel reference Evid.R. 804(B)(5) in their

appellate argument, they contend the trial court impermissibly allowed statements made

by Philip, the decedent. Evid.R. 804(B) provides in relevant part:

(B) Hearsay Exceptions. The following are not excluded by the hearsay rule

if the declarant is unavailable as a witness:

***
Stark County, Case No. 2018CA00153 15

(5) Statement by a Deceased or Incompetent Person. The statement was

made by a decedent or a mentally incompetent person, where all of the

following apply:

(a) the estate or personal representative of the decedent's estate or the

guardian or trustee of the incompetent person is a party;

(b) the statement was made before the death or the development of the

incompetency;

(c) the statement is offered to rebut testimony by an adverse party on a

matter within the knowledge of the decedent or incompetent person.

{¶39} The purpose of Evid.R. 804(B)(5) is to benefit a decedent's representative

by allowing the decedent to “ ‘speak from the grave’ ” and rebut testimony by an adverse

party. Murray v. Carano, 5th Dist. Ashland No. 17-COA-005, 2017-Ohio-8235, 2017 WL

4711862, ¶ 23, quoting Bobko v. Sagen, 61 Ohio App.3d 397, 409, 572 N.E.2d 823 (8th

Dist.1989), quoting Bilikam v. Bilikam, 2 Ohio App.3d 300, 305, 441 N.E.2d 845 (10th

Dist.1982). This hearsay exception, however, “is not intended to apply to the party

opposing the decedent[, but] [r]ather, it applies to the party substituted for the decedent.”

Bilikam at 305, 441 N.E.2d 845.

{¶40} Patty and Daniel were before the probate court pursuant to a R.C. 2109.50

proceeding as respondents who were accused of concealing the Estate’s assets. Thus,

Patty and Daniel were adverse parties opposing the Estate and not parties representing

the Estate. Ann, as Executrix, was the Estate representative.1 We therefore find no error

1On March 13, 2019, the probate court issued a judgment entry removing Ann Heffner as fiduciary and
appointed Attorney David Dingwell as Administrator W.W.A. for the purpose of completing the
administration of the estate.
Stark County, Case No. 2018CA00153 16

for the trial court to overrule Appellants’ objections to the decedent’s statements under

Evid.R. 804(B)(5). In contravention of App.R. 16(A)(7), Appellants have not provided this

Court with references to the record to support a reversal of the trial court.

{¶41} Appellants’ second Assignment of Error is overruled.

III.

{¶42} Patty and Daniel argue in their third Assignment of Error that the trial court

erred in allowing pleadings and pretrial discovery materials to be part of the trial record.

The parties took discovery depositions of Ann, Michael, Patty, and Daniel, which were

filed with the trial court prior to the trial. At trial, during Ann’s case in chief, counsel cross-

examined Patty and Daniel utilizing their discovery depositions. (Vol. I, 180-183; 194-

196). Patty and Daniel did not object at trial to the use of the discovery depositions. During

cross-examination of Ann and Michael, counsel for Patty and Daniel utilized Ann and

Michael’s respective discovery depositions. (Vol. I, 98; 225-229).

{¶43} A party waives and may not raise on appeal any error which arises during

the trial court proceedings if that party fails to bring the error to the court's attention, by

objection or otherwise, at a time when the trial court could avoid or correct the error.

Lowder v. Domingo, 5th Dist. Stark No. 2016CA00043, 2017-Ohio-1241, 2017 WL

1231724, ¶ 21 citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121–123, 679 N.E.2d 1099

(1997). A failure to object at trial waives all but plain error. Id. The plain error doctrine is

applicable in civil cases only where the error “seriously affects the basic fairness, integrity,

or public reputation of the judicial process.” Id. at syllabus.

{¶44} A proceeding for the discovery of concealed or embezzled assets of an

estate is a special proceeding of a summary, inquisitorial character whose purpose is to

facilitate the administration of estates by summarily retrieving assets that rightfully belong
Stark County, Case No. 2018CA00153 17

there. State v. Harmon, 5th Dist. No. 2016AP080042, 2017-Ohio-320, 72 N.E.3d 704,

2017 WL 390204, ¶ 14, citing In re Estate of Fife, 164 Ohio St. 449, 132 N.E.2d 185

(1956), paragraphs one and two of the syllabus; Accord, Goldberg v. Maloney, 111 Ohio

St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856, ¶ 23. Because it is a discovery proceeding,

the action does not proceed in the same fashion as an ordinary civil action between two

or more parties where there is a complaint and an answer. Lance v. Boldman, 2018-Ohio-

44, 93 N.E.3d 1013 (9th Dist.2018), ¶ 24 citing In re Estate of Fife, 164 Ohio St. 449, 454.

However, the Rules of Civil Procedure are applicable to a proceeding under R.C. 2109.50.

In re Estate of Popp, 94 Ohio App.3d 640, 649, 641 N.E.2d 739, 744, (8th Dist.1994),

dismissed, 70 Ohio St.3d 1446, 639 N.E.2d 114 (1994); State v. Harmon, 2017-Ohio-320,

72 N.E.3d 704 (5th Dist.).

{¶45} A concealment action notifies the probate court of alleged misconduct, upon

which the court must investigate the charge and make a finding of guilt or innocence

based on the evidence presented. Lance v. Boldman, 2018-Ohio-44, 93 N.E.3d 1013 (9th

Dist.2018), ¶ 24 citing In re Estate of Fife, 164 Ohio St. 449, 454. The court conducts the

required investigation by examining, under oath, the respondent and any witnesses. Id.

at ¶ 25; R.C. 2109.50. Because it is the court that calls the respondent to appear before

it, it is the court that controls the examination of the respondent. Id. However, the court

may delegate the examination of the respondent to the attorneys. Id. The respondent “is

therefore in reality the witness of the court, and the character and extent of [the

respondent’s] examination rest largely in the court’s discretion.” Id.

{¶46} In this concealment action, we find no plain error for the trial court to permit

the use of the parties’ discovery depositions during cross-examination. We note counsel
Stark County, Case No. 2018CA00153 18

for Patty and Daniel also used discovery depositions during his cross-examination of Ann

and Michael, the same act they are now alleging was error. Under the doctrine of “invited

error,” it is well settled that “a party will not be permitted to take advantage of an error

which he himself invited or induced the trial court to make.” State v. Helfrich, 5th Dist.

Licking No. 18-CA-45, 2019-Ohio-1785, 2019 WL 2051027, ¶ 86 State ex rel. Smith v.

O'Connor, 71 Ohio St.3d 660, 663, 646 N.E.2d 1115(1995), citing State ex rel. Fowler v.

Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950(1994).

{¶47} Appellants’ third Assignment of Error is overruled.

IV.

{¶48} Appellants contend in their fourth Assignment of Error that the trial court's

judgment was against the manifest weight and sufficiency of the evidence. We disagree.

{¶49} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d

517, the Ohio Supreme Court clarified the standard of review appellate courts should

apply when assessing the manifest weight of the evidence in a civil case. The Ohio

Supreme Court held the standard of review for manifest weight of the evidence for criminal

cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997) is also

applicable in civil cases. Eastley, 132 Ohio St.3d. A reviewing court is to examine the

entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses and determine “whether in resolving conflicts in the evidence, the finder

of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered.” Id; see also Sheet Metal Workers

Local Union No. 33 v. Sutton, 5th Dist. Stark No. 2011 CA 00262, 2012–Ohio–3549. “In

a civil case, in which the burden of persuasion is only by a preponderance of the evidence,
Stark County, Case No. 2018CA00153 19

rather than beyond a reasonable doubt, evidence must still exist on each element

(sufficiency) and the evidence on each element must satisfy the burden of persuasion

(weight).” Eastley, supra, 2012–Ohio–2179, 132 Ohio St.3d 328, 972 N.E.2d 517.

{¶50} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton No.

2013CA0004, 2013–Ohio–5274. Further, “an appellate court should not substitute its

judgment for that of the trial court when there exists * * * competent and credible evidence

supporting the findings of fact and conclusion of law.” Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying rationale for giving deference

to the findings of the trial court rests with the knowledge that the trial judge is best able to

view the witnesses and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proffered testimony. Id. Accordingly,

a trial court may believe all, part, or none of the testimony of any witness who appears

before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist.1998).

{¶51} Patty and Daniel argue Ann proffered no direct evidence that the $750,000

actually existed. In the alternative, if the $750,000 did exist, there is no direct evidence

that Patty or Daniel received the money and concealed, embezzled, or conveyed away

money that belonged to the Estate.

{¶52} In its judgment entry, the trial court summarized its findings of fact:

1. Phil was a successful businessman who accumulated large sums of cash

which he kept at his home.

2. Witnesses saw large sums of cash in Phil’s home which he used for

business and personal purposes.
Stark County, Case No. 2018CA00153 20

3. Phil’s expenditures for his lifestyle far exceeded his reported income.

4. [Patty and Daniel] resided in Phil’s home prior to his death and are now

the sole occupants of his house.

***

6. Phil’s declining health prompted him to consult with his attorney, Stanley

Rubin, Esq., regarding his financial affairs and a new Will.

7. Phil told Attorney Rubin many times, including shortly before his death,

that he had $750,000 cash in his home.

8. Defendants exercised their Fifth Amendment right regarding finding

money in Phil’s home after his death, but later stated that any cash in the

home belonged to them.

(October 10, 2018 Judgment Entry).

{¶53} This case turned on the credibility of the witnesses. The trial court had the

opportunity to view and listen to Ann, Daniel, Michael, Patty, and Attorney Rubin. He

observed their demeanors, gestures, and voice inflections while they were testifying and

thus the trial court “may believe all, part or none of the testimony of any witness.” In re

Estate of Gordon, 5th Dist. Richland No. 13-CA-77, 2014-Ohio-2087, ¶ 23 citing Lee v.

Lee, 5th Dist. Licking No. 2008 CA 112, 2009-Ohio-5250. The trial court stated in its

judgment entry that it found the testimony of Attorney Rubin to be the most credible and

reliable. Attorney Rubin testified that in 2015, Philip told him multiple times he wanted to

split $750,000 in cash between his four children. In 2016, Attorney Rubin attended a

family meeting where Philip told the family he had $750,000 and wanted to split it between

the four children. Attorney Rubin then drafted a Will containing a residuary clause for the
Stark County, Case No. 2018CA00153 21

division of the $750,000 in cash. Attorney Rubin had no interest in the cash or motivation

to misstate the wishes of his client.

{¶54} The trial court did not find the testimony and actions of Patty and Daniel

were believable. One of issues the trial court had with their credibility was their invocation

of their Fifth Amendment right against self-incrimination when asked, “Isn’t it true that you

and Danny are in possession of the cash in an amount of $750,000 that belonged to Phil

DeChellis and now should be part of the Estate of Philip DeChellis that’s filed with Probate

Court in Stark County?” (Vol. I, 182, 195). The Fifth Amendment to the United States

Constitution provides that “no person * * * shall be compelled in any criminal case to be

a witness against himself.” Courts have applied the privilege against self-incrimination to

civil proceedings. Cuyahoga Hts. Local School Dist. v. Palazzo, 8th Dist. No. 103592,

2016-Ohio-5137, 69 N.E.3d 162, 2016 WL 4037309, ¶ 22 citing McCarthy v. Arndstein,

266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924) (upholding the use of the privilege in a

bankruptcy proceeding).

{¶55} Courts have not applied the Fifth Amendment as rigidly in civil cases as

they do in criminal cases. Id. at ¶ 23. Comments regarding a criminal defendant's

invocation of the right against self-incrimination are prohibited [Griffin v. California, 380

U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)], but there is no constitutional

impediment to drawing an inference against a party invoking the Fifth Amendment

privilege in a civil case. Id. citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551,

47 L.Ed.2d 810 (1976) (“The Fifth Amendment does not forbid adverse inferences against

parties to civil actions when they refuse to testify in response to probative evidence

offered against them * * *.”) “ ‘While the umbrella of Fifth Amendment guarantees is broad,
Stark County, Case No. 2018CA00153 22

the prohibition against compulsory testimony does not relieve a party from appearing or

answering questions in a civil action.’ ” Id. citing State ex rel. Verhovec v. Mascio, 81 Ohio

St.3d 334, 337, 691 N.E.2d 282 (1998), quoting Tedeschi v. Grover, 39 Ohio App.3d 109,

111, 529 N.E.2d 480 (10th Dist.1988).

{¶56} The Eighth District Court of Appeals observed:

The Fifth Amendment right against self-incrimination might be a shield in

criminal cases, but in civil cases it can be a sword turned against the person

claiming the privilege. This is because the rule in civil cases is that an

adverse inference may be drawn against a party who invokes the Fifth

Amendment privilege against self-incrimination. Verhovec; Tedeschi,

supra. The inference exists because a witness's assertion that the answer

to a question might be self-incriminating proves that the witness engaged

in some incriminating activity relative to the question.

Cuyahoga Hts. Local School Dist. v. Palazzo, 8th Dist. No. 103592, 2016-Ohio-5137, 69

N.E.3d 162, 2016 WL 4037309, ¶ 24.

{¶57} In this case, Patty and Daniel’s use of their privilege against self-

incrimination acted as a sword, not a shield, in determining whether they were in

possession of and concealed, embezzled, or conveyed away the $750,000 from the

Estate. This inference, in conjunction with the undisputed evidence that Philip exclusively

used cash in his personal and business dealings, Philip had large amounts of cash at

home, Philip kept cash in his bedroom and basement office, Patty and Daniel had access

to the Lancaster Gate home after Philip’s death, and Patty and Daniel never met with Ann

to distribute the cash, supports the trial court’s conclusion that Patty and Daniel
Stark County, Case No. 2018CA00153 23

possessed the $750,000 and they concealed, embezzled, or conveyed away the funds

from the Estate.

{¶58} We find the trial court’s finding of guilt is supported by the weight and

sufficiency of the evidence.

{¶59} Appellant’s fourth Assignment of Error is overruled.

CONCLUSION

{¶60} The judgment of the Stark County Court of Common Pleas, Probate

Division, is affirmed.

{¶61}

By: Delaney, J.,

Gwin, P.J. and

Baldwin, J., concur.