[Cite as in re Estate of DeChellis, 2020-Ohio-5631.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: ESTATE OF JUDGES:
: Hon. W. Scott Gwin, P.J.
PHILIP JOHN DECHELLIS : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2020CA00081
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Probate Division, Case
No.233654
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 9, 2020
APPEARANCES:
For-Appellants For-Appellee
CRAIG CONLEY DAVID L. DINGWELL
604 Huntington Plaza 220 Market Avenue South
220 Market Avenue South Eighth Floor
Canton, OH 44702 Canton, OH 44702
[Cite as in re Estate of DeChellis, 2020-Ohio-5631.]
Gwin, P.J.
{¶1} Appellants Patty and Daniel DeChellis appeal the March 24, 2020 judgment
entry of the Stark County Court of Common Pleas, Probate Division, denying their motion
to remove appellee David Dingwell as fiduciary of the estate.
Facts & Procedural History
{¶2} This appeal involves the estate of Philip DeChellis (“Decedent”). Decedent
died on July 21, 2016, survived by four adult children, Ann Heffner, Michael DeChellis,
Marc DeChellis, and appellant Daniel DeChellis. Decedent was also survived by his long-
term companion, appellant Patty DeChellis. Ann was originally appointed fiduciary of the
estate. After Ann was removed as executrix, appellee was appointed as administrator of
Decedent’s estate, with will annexed, for the purpose of completing the administration of
the estate.
{¶3} In 2018, the trial court found appellants guilty of having concealed,
embezzled, conveyed away, or having been in possession of monies owed to Decedent
and now belonging to his estate. The trial court rendered judgment against appellants in
the amount of $750,000, jointly and severally, with a ten-percent penalty from the date of
Decedent’s death. The trial court’s judgment entry ordered Ann, as executrix, to include
this judgment in an amended inventory. Appellants appealed. In Estate of DeChellis v.
DeChellis, 5th Dist. Stark No. 2018CA00153, 2019-Ohio-3078, this Court overruled
appellants’ assignments of error and found the trial court’s finding of guilt was supported
by the manifest weight and sufficiency of the evidence. We denied appellants’ motions
for reconsideration and en banc certification.
Stark County, Case No. 2020CA00081 3
{¶4} In August of 2019, appellants filed a motion to vacate the 2018 concealment
entry. The trial court denied the motion to vacate and appellants appealed. In DeChellis
v. Estate of DeChellis, 5th Dist. Stark No. 2020CA00025, 2020-Ohio-5111, we overruled
appellants’ assignments of error and affirmed the trial court’s denial of the motion to
vacate.
{¶5} The trial court also issued a judgment entry finding Ann guilty of
concealment in the amount of $457,857.97. The trial court’s judgment entry specifically
ordered appellee to account for these amounts in his fiduciary account.
{¶6} On February 28, 2020, appellants filed a motion to remove appellee as the
estate fiduciary. Appellants allege appellee violated R.C. 2109.24 when he failed to
execute a settlement agreed to by all the beneficiaries. On March 3, 2020, appellee filed
a combined response to the motion to remove and motion for instructions. Appellee
requested the trial court’s instructions relative to the directive by the beneficiaries, due to
the fact that the court has to approve the fiduciary’s account and distributions. Appellants
filed a reply on March 9, 2020.
{¶7} The trial court held a hearing on appellants’ application to remove fiduciary
on March 16, 2020.
{¶8} Appellee testified that he received Exhibit A, a letter from the beneficiaries.
The beneficiaries all signed the letter addressed to appellee directing him to do the
following: immediately dismiss, with prejudice, Case No. 228240 in the Probate Court
(concealment of assets complaint against appellants); file with this Court a brief in Case
No. 2020 CA 00025 (appeal to vacate the concealment action against appellants) fully
concurring with appellants’ assignments of error and agreeing to waive oral argument;
Stark County, Case No. 2020CA00081 4
immediately make filings in the Probate Court concurring with the exceptions to inventory
as to the $750,000 amount in the concealment action; immediately file a notice of
dismissal as to Probate Court Case No. 235513 (complaint to sell real estate and
declaratory judgment); immediately refrain from executing judgment on Probate Court
Case Nos. 228240 (concealment against appellants) and 231641 (concealment against
Ann Heffner); immediately grant Michael DeChellis right of first refusal to purchase the
Market Avenue property for $125,840 and assets of the restaurant business for $25,000;
immediately list the Lancaster Gate property for sale and allow appellants thirty days after
closing to vacate the premises; distribute funds in equal shares to the beneficiaries; and
immediately concur with the “global” settlement.
{¶9} Appellee stated his concern with the actions requested by the beneficiaries
is that they would violate previous court orders. Appellee testified that, as a fiduciary
appointed by the court, he is accountable not only to the beneficiaries, but to the court.
Accordingly, he filed the motion for instructions. Appellee testified the judgment entry
rendered by the court in the concealment action, Case Number 228240, contained a
specific directive with regards to including the amount of missing cash in the inventory as
an asset of the estate that needed to be accounted for. Appellee stated that while the
concealment judgment entry does not specifically prohibit him from dismissing Case
Number 228240, the entry requires a fiduciary to take certain steps, which appellee
believes will be violated if he dismisses the case. Appellee has the same concerns about
dismissing the concealment case against Heffner.
{¶10} Upon questioning by the court, appellee stated he is supposed to follow the
intent of Decedent, as set forth in his will.
Stark County, Case No. 2020CA00081 5
{¶11} The trial court issued a judgment entry on March 24, 2020, denying
appellants’ application to remove fiduciary. The trial court found there was no evidence
presented that appellee violated his fiduciary duties or engaged in any conduct that would
cause the court to remove him as administrator. Rather, the trial court found appellee’s
concerns set forth in his response and motion for instructions demonstrates he is
cognizant of his duties as administrator to obey the court’s instructions and carry out the
terms of the last will and testament of Decedent. The trial court stated the efforts of the
beneficiaries to direct appellee to take actions that would potentially violate any of those
duties are improper. The trial court directed appellee to proceed with the administration
of Decedent’s estate in accordance with the court’s judgments, the Ohio Revised Code,
and Decedent’s last will and testament.
{¶12} Appellants appeal the March 24, 2020 judgment entry of the Stark County
Court of Common Pleas, Probate Division, and assign the following as error:
{¶13} “I. THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION FOR
REMOVAL OF ESTATE FIDUCIARY.”
I.
Motion for Instructions
{¶14} In appellants’ introduction portion of their brief, they contend appellee’s
motion for instructions was an improper request for an advisory opinion from the trial
court. Appellants did not separately include or separately assign this as error as required
by Appellate Rule 16. Thus, we may disregard this argument pursuant to Appellate Rule
12(A)(2).
Stark County, Case No. 2020CA00081 6
{¶15} Even if we consider this argument, we find appellee’s motion for instructions
is not an improper request for an advisory opinion. Unlike cases in which a party attempts
to utilize a motion for instructions to obtain a ruling prematurely or about a speculative
future event or controversy that has not yet arisen, appellee filed the motion in direct
response to the directive by the beneficiaries. The motion for instructions directly impacts
and affects the issues in the case. Napier v. Ickes, 5th Dist. Licking No. 2018 CA 00081,
2019-Ohio-2774, appeal not allowed, 157 Ohio St.3d 1466, 2019-Ohio-4419, 133 N.E.3d
535.
{¶16} In probate cases, executors, guardians, trustees, and other parties routinely
file motions for instructions that probate courts rule on, as the probate court is the superior
guardian of a ward and because the probate court has to ascertain the intent of the
testator in an estate case. R.C. 2111.50(A)(1) (probate court is superior guardian of
wards); Tootle v. Tootle, 22 Ohio St.3d 244, 490 N.E.2d 878 (1986) (sole purpose of the
court should be to ascertain and carry out the intention of the testator); In re McCauley,
5th Dist. Stark No. 2013CA00188, 2014-Ohio-3692 (motion for instructions as to
irrevocable trust); In re Fournas, 5th Dist. Licking Nos. 99CA52, 99CA53, 99CA55, 2000
WL 502685 (April 5, 2000) (executor filed motion for instructions as to whether document
purporting to be an inter vivos revocation trust should be filed; probate court ruled on the
motion); In re Guardianship of Napier, 10th Dist. Franklin No. 05AP-405, 2005-Ohio-5355
(trial court ruled on motion for instructions filed by guardian asking the probate court to
decide what funeral arrangements should be made and whether the children had a right
to be part of the funeral); In re Guardianship of Brockman, 160 Ohio App.3d 112, 826
N.E.2d 320 (7th Dist. Mahoning 2005) (probate court granted motion for instructions filed
Stark County, Case No. 2020CA00081 7
by the guardian); In re Estate of Bochik, 24 Ohio App.3d 98, 493 N.E.2d 297 (8th Dist.
Cuyahoga 1985) (executor filed motion for instructions as to priority of payments of
claims; the probate court ruled certain claims must be treated as preferred claims and
shared proportionally).
Motion to Remove Fiduciary
{¶17} In their assignment of error, appellants contend the trial court committed
error in denying their motion for removal of appellee as fiduciary of Decedent’s estate.
Our standard of reviewing a probate court’s decision to remove or not remove a fiduciary
is the abuse of discretion standard. In re Estate of McCauley, 5th Dist. Stark No.
2013CA00221, 2014-Ohio-2291. The Supreme Court has defined the term abuse of
discretion as implying the court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). In applying the
abuse of discretion standard this court may not substitute our judgment for that of the trial
court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 610, 614 N.E.2d 748 (1993).
{¶18} In their motion, appellants sought appellee’s removal pursuant to R.C.
2109.24. R.C. 2109.24 provides, in pertinent part, “the court may remove any fiduciary *
* * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct,
because the interest of the * * * estate that the fiduciary is responsible for administering
demands it, or for any other cause authorized by law.” The removal of a fiduciary pursuant
to this statute is within the sound discretion of the trial court. In re Estate of Jarvis, 67
Ohio App.2d 94, 425 N.E.2d 939 (8th Dist. 1980).
{¶19} Appellants argue the trial court abused its discretion in denying their motion
for removal because appellee breached his fiduciary duty in failing to follow the directive
Stark County, Case No. 2020CA00081 8
of the beneficiaries. Appellants contend appellee had an affirmative duty to comply with
their directive because the assets belong to the beneficiaries and appellee is obligated to
follow the unanimously-made direction about estate assets.
{¶20} We find the trial court’s denial of appellants’ motion to remove was not
unreasonable, arbitrary, or unconscionable. There was no evidence before the trial court
that appellee violated his fiduciary duties. Appellants take exception to appellee’s failure
to follow their directive. However, this was the result of the decisions rendered by the trial
court in its judgments throughout the various legal proceedings in this case. In re Estate
of McCauley, 5th Dist. Stark No. 2013CA00221, 2014-Ohio-2291. Appellee, as a
fiduciary of the estate, has a duty to follow the orders of the probate court. R.C. 2109.01
(fiduciary appointed by and accountable to the probate court); R.C. 2109.02 (duties
required by law and such additional duties as the court orders). Appellee also has the
duty to seek out and collect the assets belonging to Decedent at the time of his death and
include them in the estate. In re Estate of Jarvis, 67 Ohio App.2d 94, 425 N.E.2d 939
(8th Dist. 1980).
{¶21} Appellee testified it is his duty to fulfill Decedent’s intent as set forth in the
will; if any questions arise as to Decedent’s intent in the construction of his will, the trial
court will ascertain the intention of Decedent. Solomon v. Central Trust Co. of
Northeastern Ohio, 63 Ohio St.3d 35, 584 N.E.2d 1185 (1992) (holding “it is the
fundamental duty of the courts to ascertain the intent of a testator in making a will”); In re
McCauley, 5th Dist. Stark No. 2013CA00188, 2014-Ohio-3693 (trial court may ascertain
the intent of the settler by considering the necessary implication arising from the language
of the instrument as a whole); In re Estate of Endslow, 5th Dist. Delaware No. 99 CA 36,
Stark County, Case No. 2020CA00081 9
2000 WL 502820 (April 14, 2000) (attorney for estate is required to defend a decedent’s
last will and testament and the terms therein). The concealment judgment entry against
appellants specifically orders the estate fiduciary to include the $750,000 in cash as an
asset on the inventory for the estate.
{¶22} The concealment entry against Ann specifically ordered the estate fiduciary
to account for the amount ($457,857.97) in the fiduciary’s account. Removal of the
fiduciary is clearly discretionary with the trial court. We find no abuse of discretion in the
trial court’s determination that appellee did not breach his fiduciary duty by following these
specific judgment entries issued by the trial court and affirmed by this Court on appeal.
{¶23} Additionally, one of the central requirements of the directive by the
beneficiaries is that appellee dismiss both the concealment judgment against appellants
and the concealment judgment entry against Ann. However, unlike a traditional case in
which one beneficiary files an action against another beneficiary, a concealment action is
a quasi-criminal, special statutory proceeding that notifies the probate court of alleged
misconduct. Estate of DeChellis v. DeChellis, 5th Dist. Stark No. 2018CA0153, 2019-
Ohio-3078. The court then must investigate the charge and make a finding of guilt or
innocence. Id. During the proceeding, the court examines the respondent and witnesses.
Id. If the person is found guilty, the probate court assesses damages and, “in all cases,
except when the person found guilty is the fiduciary, the probate court shall render
judgment in favor of the fiduciary * * * against the person found guilty for the amount of
moneys * * * together with ten percent penalty and all costs of the proceedings or
complaint * * *.” R.C. 2109.52. In this case, the trial court issued two separate
Stark County, Case No. 2020CA00081 10
concealment judgement entries finding appellants and Ann guilty of concealment and
rendering judgment in favor of the fiduciary.
{¶24} During the hearing, both appellee and the trial judge confirmed it was the
court’s directive in the concealment actions to proceed and collect the money. Upon
questioning by the trial court, appellee testified the trial court was not willing to vacate the
two concealment judgments. Accordingly, the trial court did not abuse its discretion in
denying the motion to remove appellee as fiduciary. The concealment judgment is a
judgment of the court, with a finding of guilty, and not a proceeding that the beneficiaries
can order a fiduciary to dismiss.
{¶25} Appellants contend the trial court abused its discretion in denying their
motion because the “specific language” of the court’s orders does not prohibit appellee
from taking the actions directed by the beneficiaries, particularly the dismissal of the
concealment actions. Appellants argue that since the court’s orders in the concealment
actions do not say “this action cannot be dismissed,” appellee is breaching his fiduciary
duty by not doing so as ordered by the beneficiaries. We find no abuse of discretion in
the trial court’s determination. Appellee repeatedly testified that simply because the
court’s orders do not specifically state he “cannot dismiss” the concealment actions, the
specific language contained in the court’s orders require him to take certain steps, which
appellee cannot complete if he dismisses the concealment cases. Specifically, the trial
court ordered the fiduciary to include the amounts in the concealment actions in the
inventory and account as assets of the estate.
{¶26} Finally, appellants make the argument that the beneficiaries may disclaim
or renounce their rights under the will and that the two remaining beneficiaries not
Stark County, Case No. 2020CA00081 11
involved in the concealment actions, Michael and Marc, through their voluntary and
knowing agreement to the directive, deliberately disclaimed and/or renounced their
testamentary right to the concealment judgments. Appellants conclude the trial court
committed error in denying the motion to remove fiduciary because appellee wrongly did
not recognize these disclaimers/renouncements, thus breaching his duty of loyalty.
{¶27} We find appellants’ argument to be without merit. The cases cited by
appellants involve the renouncing or disclaiming of a specific gift in the will, or a
beneficiary disclaiming his or her beneficial share provided in the will. In this case, the
concealment judgements are not specific gifts or beneficial shares derived from
Decedent’s will, but come from a determination and order of the trial court. Unlike when
a testator gives a beneficiary a specific gift, bequest, or share, a concealment action is a
quasi-criminal, special statutory proceeding, in which the trial court investigates a charge
and makes a finding of guilt or innocence. Estate of DeChellis v. DeChellis, 5th Dist.
Stark No. 2018CA00153, 2019-Ohio-3078. Appellants do not cite any authority for the
proposition that a beneficiary can disclaim or renounce a court-ordered finding of guilt
and the associated penalty in a concealment case without approval from the trial court.
Stark County, Case No. 2020CA00081 12
{¶28} Based on the foregoing, we find the trial court did not abuse its discretion in
denying appellants’ motion to remove fiduciary. Appellants’ assignment of error is
overruled.
{¶29} The March 24, 2020, judgment entry of the Stark County Court of Common
Pleas, Probate Division, is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Delaney, J., concur