[Cite as In re Estate of Welch, 2024-Ohio-32.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
IN RE: :
CASE NO. CA2023-03-004
ESTATE OF FRANCIS M. WELCH, :
DECEASED OPINION
: 1/8/2024
:
:
:
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. C20151076
Craig T. Matthews & Associates, LPA, and Craig T. Matthews and Jeffrey J. Wren, for
appellant.
Vorys Sater Seymour and Pease LLP, and David F. Hine and Emily E. St. Cyr, for
appellee.
M. POWELL, J.
{¶ 1} Appellant, Sherry McCauley ("McCauley"), appeals a decision of the Clinton
Court of Common Pleas, Probate Division, denying her application to be appointed
administratix of the Estate of Francis M. Welch.
{¶ 2} Prior to the November 2013 death of his wife Janet, Francis Welch ("Frank")
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began spending time with Thelma Taylor ("Taylor"), a neighbor who was almost 30 years
his junior. Three weeks after Janet's death, Taylor completed paperwork changing the
beneficiary on Frank's life insurance policies to herself. Frank, who was infirm and legally
blind, signed the paperwork. The following week, Frank added Taylor to his bank account
as an authorized signer and established her as a joint tenant with right of survivorship. In
April 2014, Frank signed a new will naming Taylor as the beneficiary of his tangible
personal property. The will nominated Taylor as executrix; in the event Taylor would be
unable to serve, the will nominated McCauley as an alternate executrix. Over the course
of the year, Frank made several inter vivos transfers to Taylor.
{¶ 3} Frank died on April 18, 2015. Frank's next-of-kin were several nephews
and nieces, including McCauley (collectively referred to as "the heirs"). Frank's will
bequeathed his tangible personal property to Taylor. The heirs and a close family friend
were the residuary beneficiaries in Frank's will. On May 6, 2015, the will was admitted to
probate and Taylor was appointed as executrix of Frank's estate.
{¶ 4} Taylor filed an inventory and appraisal. The heirs filed exceptions to the
inventory, claiming that several items had been omitted from the inventory, including,
"[o]ther presently unknown property wrongfully taken by Thelma Taylor while decedent,
who was legally blind, disabled and a grieving widower, was under duress and/or lacked
capacity to gift." The heirs subsequently withdrew their exceptions. Taylor filed a final
and distributive account on June 13, 2016. The heirs waived notice of hearing on the
account and consented to its approval by the probate court. On July 14, 2016, the probate
court approved the final and distributive account and discharged Taylor from her duties
as executrix. Each of the heirs received approximately $40,000 from the estate.
{¶ 5} In the interim, in late 2015, the heirs' legal counsel sent a letter to Lauren
Raizk, the estate attorney, "requesting pursuant to R.C. 2107.46, that the Estate
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commence an action against Thelma Taylor for wrongful conversion of assets belonging
to decedent." No such action was commenced by the estate and the heirs did not pursue
such an action.
{¶ 6} On October 13, 2016, the heirs filed a complaint in the Clinton County Court
of Common Pleas, General Division, against Taylor, asserting claims for a declaratory
judgment, undue influence, conversion, unjust enrichment, and tortious interference with
expectancy of inheritance. The complaint generally alleged that Frank was blind and
infirm and that Taylor manipulated him to change his will, change the beneficiary on his
life insurance policies to her, and make several inter vivos transfers of his property to
Taylor. Taylor moved for judgment on the pleadings. The general division court
dismissed the heirs' lawsuit in an order granting judgment on the pleadings, finding that
the probate court held proper jurisdiction over the matter.
{¶ 7} On April 6, 2017, the heirs filed a complaint in the probate division alleging
that the inter vivos transfers from Frank to Taylor were predicated upon undue influence,
requesting declaratory judgment, and alleging that Taylor was liable for conversion and
unjust enrichment. Taylor moved for summary judgment. Taylor also moved to stay
discovery until the probate court ruled on her motion for summary judgment.
{¶ 8} On October 19, 2017, the probate court issued a judgment entry dismissing
the heirs' claims and granting Taylor's "motion for judgment on the pleadings," a motion
that was never before the probate court. On appeal, we reversed the judgment, finding
that the probate court erred by dismissing the case pursuant to judgment on the pleadings
when the motion before it was for summary judgment. Estate of Welch v. Taylor, 12th
Dist. Clinton No. CA2017-11-021, 2018-Ohio-4558. We remanded the matter for the
probate court to rule on the proper motions, including Taylor's motion for summary
judgment. We held,
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[The heirs'] complaint alleged causes of action, including
conversion and unjust enrichment, which are specific to inter
vivos transfers made to Taylor by Frank. Not all of [the heirs']
arguments involve Frank's will or estate, and not all implicate
bequeaths paid by Frank's estate after his death. As such, the
probate court shall determine what causes of action stated in
[the heirs'] complaint, if any, survive summary judgment.
Id. at ¶ 15.
{¶ 9} On remand, and without permitting the heirs to conduct discovery, the
probate court granted summary judgment to Taylor and dismissed the heirs' complaint.
On appeal, we once again reversed the probate court's decision and remanded, holding
that the probate court "abused its discretion in failing to address [the heirs'] Civ.R. 56(F)
motion and in precluding them from conducting and obtaining discovery prior to granting
summary judgment in favor of Taylor." Estate of Welch v. Taylor, 12th Dist. Clinton No.
CA2020-03-004, 2020-Ohio-6909, ¶ 21.
{¶ 10} On remand, the heirs filed a motion to compel discovery on June 23, 2022,
seeking a box of Frank's records that Taylor had provided to Raizk, the estate attorney,
and compelling Taylor to execute a medical authorization to allow the heirs to obtain
Frank's medical records. The probate court summarily denied the heirs' motion to compel
discovery and awarded attorney fees to Taylor.
{¶ 11} On October 3, 2022, the heirs served Raizk with a subpoena duces tecum
seeking the records Taylor had given to Raizk. Raizk moved to quash the subpoena. On
October 6, 2022, before the heirs could respond to the motion to quash, the probate court
summarily granted the motion and ordered the subpoena quashed. In November 2022,
the heirs filed a notice to depose Raizk; Raizk moved for a protective order. Within hours
of Raizk's filing, the probate court granted her motion for protective order against being
deposed by the heirs.
{¶ 12} In the case at bar, on October 31, 2022, McCauley filed an application to
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reopen Frank's estate and an application to be appointed administratrix for the purpose
of obtaining Frank's records that Taylor had given to Raizk and to execute a medical
authorization for Frank's medical records. On January 30, 2023, without analysis, the
probate court denied McCauley's application to administer Frank's estate. The probate
court did not address McCauley's application to reopen the estate.
{¶ 13} McCauley appeals the probate court's decision, raising one assignment of
error:
{¶ 14} THE PROBATE COURT ERRED BY FAILING TO APPOINT APPELLANT
AS ADMINISTRATOR OF THE ESTATE.
{¶ 15} As stated above, the probate court never ruled upon McCauley's application
to reopen the estate. Rather, the court ruled only upon McCauley's application to
administer Frank's estate, denying it. Generally, when a trial court fails to rule on a
motion, the appellate court will presume that the trial court overruled the motion. Hoppes
v. Hoppes, 12th Dist. Fayette No. CA2013-03-006, 2014-Ohio-447, ¶ 37; In re Estate of
Ryan, 11th Dist. Lake No. 2010-L-075, 2011-Ohio-3891, ¶ 22. McCauley has not
appealed the denial of her application to reopen the estate. Having failed to do so,
McCauley waived any argument relative to the application to reopen the estate on appeal.
Ingram v. Glavin, 8th Dist. Cuyahoga No. 111931, 2023-Ohio-1290, ¶ 60. We will,
therefore, only address the probate court's denial of McCauley's application to administer
the estate.
{¶ 16} McCauley argues the probate court erred in denying her application to be
appointed administratix of the estate. McCauley asserts that the probate court should
have appointed her administratix under R.C. 2113.12 because Frank's will named her as
an alternate executor, she is suitable and competent, and Taylor has "effectively
renounced" when she neglected to reopen the estate and declined to turn over Frank's
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records and execute the medical authorization.
{¶ 17} R.C. 2113.12, titled "Procedure if executor renounces," provides that
If a person named as executor in the will of a decedent, or
nominated as an executor by holders of a power as described
in [R.C.] 2107.65, refuses to accept the trust, or, if after being
served notice for that purpose, neglects to appear and accept,
or if the person named or nominated as executor neglects for
twenty days after the probate of the will to give any required
bond, the probate court shall grant letters testamentary to the
other executor, if there is one capable and willing to accept
the trust, and if there is no other executor named in the will or
nominated by holders of a power as described in [R.C.]
2107.65, the court shall commit administration of the estate,
with the will annexed, to some suitable and competent person,
pursuant to [R.C.] 2113.05.
{¶ 18} We find that R.C. 2113.12 is not applicable here because the three alternate
conditions for the statute to apply are not met. Taylor did not refuse to accept the trust,
did not neglect to appear and accept the trust, and did not neglect to give any required
bond for 20 days after the probate of the will. She, therefore, did not renounce. Instead,
we address the probate court's denial of McCauley's application to be appointed
administratix under R.C. 2113.05. That statute provides, in relevant part, "When a will is
approved and allowed, the probate court shall issue letters testamentary to the executor
named in the will or to the executor nominated by holders of a power as described in
[R.C.] 2107.65, or to the executor named in the will and to a coexecutor nominated by
holders of that power, if the executor or coexecutor is suitable, competent, accepts the
appointment, and gives bond if that is required." Thus, R.C. 2113.05 mandates that the
probate court issue letters testamentary to the executor named in the will if the person so
named is "suitable, competent, accepts the appointment, and gives bond if that is
required." In re Estate of Pfahler, 64 Ohio App.3d 331, 332 (3d Dist.1989).
{¶ 19} The determination of whether an applicant for letters testamentary is a
suitable person under R.C. 2113.05 lies within the sound discretion of the probate court;
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an order granting or denying letters of appointment will not be reversed on appeal absent
an abuse of discretion. In re Estate of Henne, 66 Ohio St.2d 232 (1981), paragraph one
of the syllabus. "In accordance with R.C. 2113.05, a 'suitable' person qualified for
appointment as executor is an applicant who is reasonably disinterested and in a position
to reasonably fulfill the obligations of a fiduciary." (Emphasis sic.) Id. at paragraph two of
the syllabus. In assessing whether an applicant is reasonably disinterested, "[w]hile
acknowledging deference to the testator's nomination of an executor, the court * * * may
consider factors including, but not limited to: (1) the nature and extent of the hostility and
distrust among the parties; (2) the degree of conflicting interests and obligations, both
personal and financial; and (3) the underlying and aggregate complexities of the conflict."
Id. at paragraph three of the syllabus.
{¶ 20} We find that the probate court did not abuse its discretion in denying
McCauley's application to administer the estate. McCauley sought to be appointed
administrator of Frank's estate for the purpose of obtaining Frank's records which Taylor
gave to Raizk and to execute a medical authorization for Frank's medical records.
McCauley believes that these records will shed light upon whether the inter vivos transfers
Frank made to Taylor were legitimate as opposed to being the product of undue influence,
or made without donative capacity to do so. In other words, McCauley seeks to be
appointed administrator of Frank's estate to obtain records that could bolster the heirs'
lawsuit against Taylor for conversion, unjust enrichment, and improper inter vivos
transfers. Hostility and distrust among the parties are a consideration for a finding of
unsuitability. In re Estate of Henne, 66 Ohio St.2d at 237. So are monetary conflicts. Id.
Due to McCauley's interest in the litigation between the heirs and Taylor, and the hostility
and distrust among the parties, McCauley is unsuitable to determine whether it is in the
best interest of the estate to consent to the release of Frank's records in Raizk's
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possession and to execute a medical authorization for Frank's medical records.
{¶ 21} McCauley's assignment of error is overruled.
{¶ 22} Judgment affirmed.
S. POWELL, P.J., and BYRNE, J., concur.
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