Jacobson v. Resnick

[Cite as Jacobson v. Resnick, 2020-Ohio-5424.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

WENDY JACOBSON, ET AL., :

Plaintiffs-Appellees, :
No. 108169
v. :

BEVERLY RESNICK, ET AL., :

Defendants-Appellees. :

[Appeal by Jonathan Gross] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 25, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2016ADV220849

Appearances:

Mansour Gavin L.P.A., Charles T. Brown, and Michael P.
Quinlan, for appellee.

Jonathan Gross, pro se.

FRANK D. CELEBREZZE, JR., J.:

Defendant-appellant Jonathan Gross (“appellant”) brings the instant

appeal challenging the trial court’s granting of summary judgment in favor of

plaintiffs-appellees Wendy Jacobson, Deborah Gross, and Linda Gross and
defendant-appellee Beverly Resnick, executor of the estate of Delores Gross

(collectively “appellees”). Appellant argues that the trial court erred by failing to

apply the proper standards in considering a motion for summary judgment under

Civ.R. 56 and for denying appellant’s motion for additional time to submit evidence

under Civ.R. 56(F). After a thorough review of the record and law, we affirm the

decision of the trial court.

I. Factual and Procedural History

Delores Gross (“decedent”) died testate on April 25, 2016. Appellees

Wendy Jacobson (“Wendy”), Deborah Gross (“Deborah”), Linda Gross (“Linda”),

and appellant are the children of the decedent and are her heirs and beneficiaries.

Appellee Beverly Resnick was appointed executor of the decedent’s estate.

Pursuant to Item III, 4 of the decedent’s last will and testament dated

April 11, 2015 (“will”), the decedent specifically bequeathed her jewelry to Deborah,

Wendy, and Linda as follows:

My engagement and wedding rings, the diamond stud, and the
diamond ring made for me by my daughter, I give to my daughter,
Deborah A. Gross. All of the rest of my jewelry, I give to my
daughters, Wendy G. Jacobson and Linda B. Gross, share and
share alike.

(Emphasis sic.)

The parties were previously involved in a related suit involving the

Marvin G. Gross Revocable Trust (“trust”), wherein Wendy, Deborah, and Linda

sued the decedent and appellant for actions taken with regard to the trust assets.

The decedent, Deborah, Linda, Wendy, and appellant entered into a settlement
agreement and release. As part of the settlement, the parties agreed that decedent’s

April 11, 2015 will would provide for the disposition of the decedent’s assets, which

included the jewelry that is the subject of the instant matter.

Prior to her death, the decedent had signed a durable power of attorney,

appointing appellant as her attorney-in-fact. In the final days of decedent’s life,

appellant moved into her condominium and began residing with her.

Appellant asserts that during this time the decedent gave him her

diamond engagement/wedding band (“ring”) and diamond watch (“watch”) as a

gift. He took the jewelry to his hotel for a few days, but he claims the decedent

wanted to wear them for the remainder of her life, and therefore he brought them

back to her “on loan” until she passed. The only people alleged to be aware of this

arrangement were appellant, the decedent, and appellant’s fiancée, Michelle White.

Immediately after the decedent’s death, appellant claimed ownership of both pieces

of jewelry. On June 24, 2016, in the estate administration case, the trial court

ordered appellant to deliver the ring and the watch to the law firm of Vorys, Sater,

Seymour and Pease, L.L.P., for safekeeping until further order of the court.

On October 24, 2016, appellant filed a presentation of claim against the

estate after attempting to negotiate a check purportedly issued to him by decedent

in the amount of $24,000. The decedent wrote the check to appellant on April 7,

2016; however, he did not attempt to cash it until after her death. The estate denied

appellant’s claim.
 On November 7, 2016, appellees filed a complaint for declaratory

judgment asking the court to declare the following: (1) that the ring and watch

owned by the decedent, which were being held in safekeeping by the law firm of

Vorys, Sater, Seymour and Pease, L.L.P., were assets of decedent’s estate and subject

to distribution to Deborah, pursuant to Item III, 4 of the will; and (2) that the

$24,000 check made payable to appellant (a) resulted from a breach of his fiduciary

relationship with the decedent and is therefore invalid; (b) was a product of undue

influence or, in the alternative, that decedent lacked capacity to enter the

transaction; or (c) was improper because the transaction was a breach of the

October 16, 2016 settlement agreement.

Attached to the complaint were (1) a June 24, 2016 judgment entry

from the related estate administration case where the court ordered that the ring

and watch held by appellant were to be delivered and held for safekeeping by the law

firm of Vorys, Sater, Seymour and Pease, L.L.P.; (2) the last will and testament of

Dolores Gross signed and witnessed on April 11, 2015; (3) the settlement agreement

and release of October 16, 2015, in the related trust matter; and (4) discovery

requests propounded to appellant.

Appellant filed an answer, denying all of appellees’ claims. On May 18,

2018, appellees filed a motion for summary judgment, and on June 15, 2018,

appellant moved for an extension of time to conduct discovery and respond to the

motion for summary judgment pursuant to Civ.R. 56(F). Appellees opposed this

motion.
 On August 28, 2018, the probate court denied appellant’s motion for

additional time, finding that he had had ample time in which to conduct discovery

but had not. Appellant then filed his brief in opposition to the motion for summary

judgment and appellees filed their reply brief.

The probate court granted appellees’ motion for summary judgment

and held that (1) the executor of the decedent’s estate had the right to revoke the

check that the decedent allegedly gave to appellant because it had not been cashed

or deposited prior to the decedent’s death; and (2) the gifts of the jewelry and the

check were presumed to be invalid to appellant because of his fiduciary relationship

to the decedent, and appellant had not presented clear and convincing evidence of

the decedent’s intention to make the gifts. The court also appeared to agree with

appellees that appellant unduly influenced the decedent and breached his fiduciary

duty to her.

On January 29, 2019, appellant filed the instant appeal, raising the

following assignments of error for our review:

I. The probate court erred as a matter of law when it determined that
appellees had met their burden to be awarded summary judgment.

II. The probate court abused its discretion in denying appellant’s Civ.R.
56(F) motion.

III. The probate court erred as a matter of law when it determined that
there were no genuine issues of material fact in dispute at the time of
the probate court’s entry of summary judgment.

IV. The probate court erred as a matter of law when it determined that
appellant had failed to prove that he was rightfully gifted the jewelry
and $24,000.00 check.
 II. Law and Analysis

A. Summary Judgment

The issues in appellant’s first, third, and fourth assignments of error

are interrelated regarding the court’s granting of summary judgment to appellees;

accordingly, they will be addressed together.

1. Standard of Review

An appeal from summary judgment is analyzed under a de novo

standard of review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th

Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d

212 (1987); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d

188, 699 N.E.2d 534 (8th Dist.1997). Thus, no deference is afforded to the trial

court’s decision, and the record is independently reviewed to determine whether

summary judgment is appropriate.

Summary judgment under Civ.R. 56 provides for the expedited

adjudication of matters where there is no material fact in dispute to be determined

at trial. To obtain summary judgment, the moving party must show that “(1) there

is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party,

and that conclusion is adverse to the nonmoving party.” Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton

City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
 The moving party has the initial responsibility of establishing its

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). “[I]f the moving party meets this burden, summary

judgment is appropriate only if the nonmoving party fails to establish the existence

of a genuine issue of material fact.” Deutsche Bank Natl. Trust Co. v. Najar, 8th

Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing Dresher at 293.

Once a moving party demonstrates no material issue of fact exists for

trial and the party is entitled to judgment, it is the nonmoving party’s duty to come

forth with argument and evidence that demonstrates a material issue of fact does

exist that would preclude judgment as a matter of law. Dresher at id.

2. The Alleged Gifts

In their motion for summary judgment, appellees asserted that

appellant breached his fiduciary duty by claiming the $24,000 check and the jewelry

were gifts from the decedent. Appellees further contend that the only evidence

appellant relied upon to support the alleged gifts was inadmissible hearsay

statements by the decedent. Finally, appellees argued that the alleged gifts were a

product of undue influence by appellant or the result of the decedent’s lack of

capacity.

In his brief in opposition to the motion for summary judgment,

appellant argued that the decedent was clearly competent at the time of the alleged

gifts. In addition, appellant asserted that the decedent’s hearsay statements are
admissible to demonstrate her donative intent. Appellant further stated that

appellees did not present proper Civ.R. 56(C) evidence in support of their claims.

We will first address the $24,000 check. We have previously stated

that an inter vivos gift occurs when the donor executes “‘an immediate voluntary,

gratuitous and irrevocable transfer of property’ to the donee.” Comella v. Comella,

8th Dist. Cuyahoga No. 90969, 2008-Ohio-6673, ¶ 42, quoting McLeod v. McLeod,

11th Dist. Lake No. 2000-L-197, 2002-Ohio-3710, citing Smith v. Shafer, 89 Ohio

App.3d 181, 183, 623 N.E.2d 1261 (3d Dist.1993). The essential elements of an inter

vivos gift are: (1) intent of the donor to make an immediate gift; (2) delivery of the

property to the donee; and (3) acceptance of the gift by the donee after the donor

has relinquished control of the property. McLeod at ¶ 71, citing Frederick v.

Frederick, 11th Dist. Portage No. 98-P-0071, 2000 Ohio App. LEXIS 1458, 7

(Mar. 31, 2000).

Pursuant to R.C. 1303.45, a check “does not itself operate as an

assignment of any funds in the hands of the drawee available for its payment, and

the drawee is not liable on the instrument until he accepts it.” State v. Blake, 8th

Dist. Cuyahoga No. 102420, 2015-Ohio-4762, ¶ 14, citing DeLuca v. BancOhio Natl.

Bank, Inc., 74 Ohio App.3d 233, 244-245, 598 N.E.2d 781 (10th Dist.1991) (holding

that a check, by itself, is not an assignment of funds and, therefore, any intended gift

could not be complete because the donor retains the power to stop payment on his

order); Simmons v. Cincinnati Sav. Soc., 31 Ohio St. 457, 461 (1877) (holding that

until a check is either paid or accepted, a gift is incomplete because without
consideration, the check is subject to be countermanded or revoked while remaining

in the hands of the payee).

In his deposition, appellant stated that he accepted the check from the

decedent but decided that he would not cash it until after her death. Exhibit No. 46

of appellant’s deposition was a copy of the check, which shows that it was attempted

to be cashed on May 11, 12, and 13, 2016.

The mere “intention to give is not a gift, and so long as the gift is left

incomplete a court of equity will not interfere and give effect to it.” Bolles v. Toledo

Trust Co., 132 Ohio St. 21, 27, 4 N.E.2d 917 (1936). The check itself did not deliver

to appellant the $24,000, but rather it evidenced the decedent’s intent to give the

$24,000 and to grant appellant the authority to draw the money. However, until

the funds were drawn, the check remained subject to being countermanded or

revoked. Simmons at id. As long as the check remained subject to revocation, the

decedent had not yet relinquished dominion and control over the funds it

represented.

Consequently, even assuming that the decedent did give the check to

appellant, the gift remained incomplete because it was not cashed or deposited prior

to the death of the decedent. As such, the estate’s executor had the right to revoke

the check. We therefore find that appellees demonstrated that no genuine issues of

material fact existed regarding the check, and appellant failed to meet his burden of

presenting evidence showing otherwise. Accordingly, the court did not err in

granting summary judgment to appellees with regard to the $24,000 check.
 Turning to the jewelry at issue, the ring was specifically bequeathed to

appellee Deborah Gross pursuant to Item III, 4 of the decedent’s will. This provision

also bequeaths the remainder of decedent’s jewelry, which would include the watch,

to Wendy and Linda. Further, these dispositions were reiterated when the parties

signed the settlement agreement stating that the disposition of the decedent’s assets,

including the jewelry in question, would be as provided for in the decedent’s will.

Appellant is attempting to supersede the provisions of the will and the

settlement agreement by asserting that the decedent gave him the jewelry as an inter

vivos gift on March 8, 2016.

In their motion for summary judgment, appellees presented the will

and the settlement agreement, which met their burden of demonstrating that no

genuine issues of material fact exist regarding the status of the ring and the watch

as assets of the estate and that they were entitled to judgment as a matter of law in

this regard. The burden then shifted to appellant to show that a material issue of

fact did exist that would preclude judgment as a matter of law.

In support of his assertion that the jewelry was an inter vivos gift,

appellant offered his own affidavit and that of his fiancée, Michelle White. As noted

by the trial court, the affidavits of appellant and his fiancée are identical, even down

to an incorrect statement in Ms. White’s affidavit regarding an attached copy of “my”

complaint (to which she was not a party) and referring to actions taken by appellant

and not Ms. White.
 An affidavit submitted on summary judgment must contain more

than general, conclusory assertions to create a genuine issue of material fact for trial.

Jochum v. Listati, 8th Dist. Cuyahoga No. 106957, 2019-Ohio-166, ¶ 19. Further,

“[g]enerally, a party’s unsupported and self-serving assertions, offered
by way of affidavit, standing alone and without corroborating materials
under Civ.R. 56, will not be sufficient to demonstrate material issues of
fact. Otherwise, a party could avoid summary judgment under all
circumstances solely by simply submitting such a self-serving affidavit
containing nothing more than bare contradictions of the evidence
offered by the moving party.”

Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621, ¶ 23, quoting

Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 33.

Appellant did not offer any corroborating materials in support of his

affidavit. While he testified in his deposition that he had a document from the

decedent stating that the ring and watch were to go to him, no such document was

produced in support of his brief in opposition to the motion for summary judgment.

Moreover, the affidavit of appellant’s fiancée, Michelle White, does not provide any

actual corroboration for the statements in his affidavit. With regard to the jewelry,

Ms. White states as follows:

On March 8, 2016, Dolores Gross, Jonathan Gross’ mother, gave by
handing to Johnathan Gross as a gift, her diamond ring and watch (the
“Jewelry”), which are described in Plaintiffs’ motion for summary
judgment. On that day, I witnessed Jonathan Gross bring the Jewelry
with him to where he and I were living. Subsequent to that date, I
witnessed Jonathan Gross bring this jewelry to loan to Dolores Gross
to wear because he recognized that she wanted to wear the Jewelry for
sentimental reasons at the end of her life.

Exhibit B to appellant’s brief in opposition to motion for summary judgment, ¶ 4.
 Ms. White does not state that she witnessed the decedent give the

jewelry to appellant, nor does she describe how she came to learn that the jewelry

was gifted to appellant. Rather, she simply avers that she witnessed him bring the

jewelry home and then bring it back to the decedent. These statements are

insufficient to demonstrate the existence of a genuine issue of material fact as to

whether the decedent intended to give the ring and the watch to appellant and did,

in fact, deliver the same. The ring and the watch therefore remain assets of the

estate.

Accordingly, we cannot say that the trial court erred in finding that

there were no genuine issues of material fact with regard to the jewelry. Summary

judgment was properly granted in favor of appellees with regard to the ring and the

watch. Appellant’s first, third, and fourth assignments of error are overruled.

Finally, based on our determinations that the check was invalid

because it was not cashed or deposited prior to the decedent’s death and that the

jewelry was an asset of the decedent’s estate subject to distribution under the

decedent’s will, we need not consider, as alternative bases for granting summary

judgment in favor of appellees, whether appellant breached his fiduciary duty to the

decedent, whether appellant unduly influenced the decedent, whether the decedent

lacked capacity, or whether the check was a breach of the October 16, 2016

settlement agreement.
 B. Civ.R. 56(F) Motion for Extension of Time

In his second assignment of error, appellant argues that the trial court

erred by denying his Civ.R. 56(F) motion for an extension of time to respond to

appellees’ motion for summary judgment.

Civ.R. 56(F), which permits trial courts to allow additional discovery

before having to oppose a summary judgment motion, provides:

Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or discovery to be had
or may make such other order as is just.

The trial court has wide discretion to grant or deny a request for a

continuance pursuant to Civ.R. 56(F); such decision will not be reversed absent an

abuse of that discretion. Chisholm v. Cleveland Clinic Found., 8th Dist. Cuyahoga

No. 105106, 2017-Ohio-8060, ¶ 20, citing Scanlon v. Scanlon, 2013-Ohio-2694, 993

N.E.2d 855, ¶ 24 (8th Dist.). An abuse of discretion connotes that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Ruwe v. Bd. of Twp.

Trustees, 29 Ohio St.3d 59, 61, 505 N.E.2d 957 (1987). While the trial court has

discretion to determine whether additional time to gather rebuttal evidence is

appropriate, “that discretion should be exercised liberally in favor of a nonmoving

party who proposes any reasonable interval for the production of those materials,”

where there is a realistic possibility that genuine issues of material fact will require
jury consideration. Whiteleather v. Yosowitz, 10 Ohio App.3d 272, 276, 461 N.E.2d

1331 (8th Dist.1983).

A party seeking additional time to respond to a motion for summary

judgment must do more than merely assert generally the need for additional

discovery and must present sufficient reasons that would justify the requested

continuance. Wombold v. Barna, 2d Dist. Montgomery No. 17035, 1998 Ohio App.

LEXIS 5881 (Dec. 11, 1998). A party must state the factual basis and reasons as to

why it is unable to present facts essential to its opposition to the motion. Penix v.

Avon Laundry & Dry Cleaners, 8th Dist. Cuyahoga No. 91355, 2009-Ohio-1362,

¶ 31, citing id.; see also Gates Mills Invest. Co. v. Pepper Pike, 59 Ohio App.2d 155,

392 N.E.2d 1316 (8th Dist.1978) (holding that the affidavits must state sufficient

reasons why the movant cannot presently oppose the motion and why or how the

continuance, deferral of action, or discovery would permit the party to obtain such

facts).

In the instant matter, appellant argues that the trial court abused its

discretion in denying his Civ.R. 56(F) motion. Appellant asserted in his motion that

additional time was needed to obtain affidavits or testimony from appellees, medical

professionals, hospice care workers, accountants, and others knowledgeable about

the decedent’s well-being prior to her death.

The memorandum submitted with appellant’s motion for extension

discussed at length his need for the above discovery and the evidence that he

believed he would obtain therefrom. However, appellant did not explain anywhere
in the motion, memorandum, or his affidavit in support why he had been unable to

conduct this discovery prior to the time he filed his motion. Appellant’s motion did

not claim that there was any outstanding discovery or provide any reason why his

desired depositions could not be accomplished prior to the time his brief was due.

At oral argument, appellant suggested that appellees had refused to cooperate with

discovery, but there is nothing in the record to reflect this. Even if this were the case,

the record does not demonstrate that appellant ever sought judicial intervention to

obtain appellees’ compliance.

The trial court noted in its judgment entry that at a pretrial on May 24,

2017, appellees had stated their intention to move for summary judgment following

the deposition of appellant, which was scheduled for June 20, 2017. The trial court

further stated that appellees had propounded interrogatories, requests for

admissions, and requests for production of documents at the time of the filing of the

complaint. As noted by the trial court, appellant had had ample opportunity to

conduct discovery, particularly after learning at the May 2017 pretrial that appellees

would be filing a motion for summary judgment.

After reviewing the record, we cannot say that the trial court’s denial

of appellant’s request for an extension of time was unreasonable, arbitrary, or

unconscionable.

Accordingly, we find that the trial court did not abuse its discretion in

denying appellant’s motion, and appellant’s second assignment of error is overruled.
 III. Conclusion

Appellant failed to demonstrate that the trial court erred in

determining that no genuine issues of material fact existed with regard to any of the

claims in this matter and that summary judgment was appropriate. Further, the

trial court did not abuse its discretion in denying appellant’s motion for extension

of time under Civ.R. 56(F).

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________
FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR