Opinion
Case No. 16-CA-86
05-22-2017
IN THE MATTER OF: JOANNA BAUGHMAN
APPEARANCES: For Appellant C. JOSEPH MCCOY MCCOY & MCCOY 57 East Main Street Newark, Ohio 43055 For Appellee J. ANDREW CRAWFORD Reese, Pyle, Drake & Meyer, P.L.L. 36 North Second Street P.O. Box 919 Newark, Ohio 43058
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Probate Court Case No. 2015-0272A JUDGMENT: Affirmed, in part; Reversed, in part; and Remanded APPEARANCES: For Appellant C. JOSEPH MCCOY
MCCOY & MCCOY
57 East Main Street
Newark, Ohio 43055 For Appellee J. ANDREW CRAWFORD
Reese, Pyle, Drake & Meyer, P.L.L.
36 North Second Street
P.O. Box 919
Newark, Ohio 43058 Hoffman, J.
{¶1} Respondent/Appellant Torry Baughman appeals the October 18, 2016 Judgment Entry entered by the Licking County Probate Court in favor of Petitioner/Appellee Robbin Baughman.
STATEMENT OF THE FACTS AND CASE
{¶2} Joanna Baughman had four sons: Robbin Baughman, Torry Baughman, Daren Baughman and Kevin Baughman. During the last several years of her life, Joanna Baughman suffered from Alzheimer's disease. On October 30, 2009, she executed a Durable General Power of Attorney naming Respondent/Appellant Torry Baughman as her power of attorney.
{¶3} Before the onset of her disease, Joanna Baughman and Torry Baughman entered into multiple real estate arrangements together, including the purchase of 118 acres of land on Miller Church Road in Licking County, Ohio.
{¶4} On March 4, 2013, Appellant Torry Baughman filed a motion in a pending bankruptcy case seeking authority to sell real property, averring Joanna Baughman owned a ½ interest in the property and all proceeds were to be "retained by Joanna Baughman." The motion also alleged Joanna Baughman was of "advanced age" and in the "late stages of Alzheimer's disease."
{¶5} On March 21, 2013, the Bankruptcy Court issued an Order stating Joanna Baughman was to receive $275,000 in proceeds from the sale of the property. The sale closed on March 29, 2013.
{¶6} Joanna Baughman died on May 24, 2014. Appellant Torry Baughman served as the Executor of the Estate of Joanna Baughman in Licking County Probate Court Case No. 20140631. Joanna Baughman's Last Will and Testament left the residuary of her estate in equal shares to her four children. There is no cash, bank account, or other liquid asset included in the estate inventory. Section 3.4 of Joanna Baughman's will specifies two specific National City Bank accounts bequeathed to her surviving grandchildren. The accounts do not appear on the estate inventory.
Torry Baughman resigned as Executor of the Estate on June 18, 2015. Appellee Robbin Baughman now serves as Executor of the Estate.
{¶7} The estate inventory lists seven parcels of real property owned by Joanna Baughman at the time of her death. Two of the parcels were alleged to have been held under land contract.
{¶8} On April 17, 2015 Petitioner/Appellee Robbin Baughman filed a petition for review of agent's (Appellant's) conduct under the power of attorney, pursuant to R.C. 1337.36.
{¶9} On September 27, 2016, Appellee filed a motion to compel production of unredacted bank account statements as part of the accounting provided by decedent's agent. Specifically, the motion requested Appellant provide unredacted copies of bank accounts out of which he [Appellant] claims to have paid expenses of his mother.
{¶10} At the April 14, 2016 pretrial conference, Appellant was ordered by the trial court to prepare an account of his activities as his mother's agent under her power of attorney. Appellant admits to having commingled his personal funds with his mother's funds, stating "I used my own accounts to pay for her expenses at times, and at times, I used her accounts to pay for my own expenses. I intermingled funds, and I had no knowledge that there was anything impermissible about intermingling funds." Appellant provided a fiduciary's account to the trial court. Appellant identified in the itemized statement the bank accounts out of which he paid his mother's expenses as either his mother's account or five other bank accounts, either owned or controlled by him.
Torry Baughman's Responses and Objections to Petitioner Robbin Baughman's First Set of Combined Requests for Admissions, Interrogatories, and Production of Documents to Defendant Torry Baughman.
Torry Baughman Trademark LLC Account; Torry Baughman Johnstown Used Appliance Account; Torry Baughman Standard Checking Account; Torry Baughman PNC Account; Triple T. Tavern LLC Account.
{¶11} During discovery, Appellant produced account copies of his bank account statements for his mother's PNC account, the Torry Baughman Standard Checking Account and the Torry Baughman PNC Account. Appellant redacted transactions from the Torry Baughman Standard Checking Account and the Torry Baughman PNC Account which transactions he claims were not related to his mother's expenses, including every deposit made. Appellant did not provide statement copies for the Torry Baughman Trademark LLC Account, the Torry Baughman Johnstown Used Appliance Account or the Triple T. Tavern LLC Account.
{¶12} Appellant filed a memorandum in opposition to the motion to compel production on October 6, 2016. The trial court set the motion for non-oral hearing on October 11, 2016.
{¶13} Via Judgment Entry of October 12, 2016, the trial court granted Appellee's motion to compel production. Via Judgment Entry of October 18, 2016, the trial court ordered Appellant provide Appellee unredacted copies of bank account statements for the following bank accounts out of which he claims to have paid his mother's expenses: Torry Baughman Trademark LLC Account; Torry Baughman Johnstown Used Appliance Account; Torry Baughman Standard Checking Account; Torry Baughman PNC Account; Triple T Tavern Account.
{¶14} Appellant appeals the trial court's October 18, 2016 order, assigning as error,
I. THE TRIAL COURT ERRED IN GRANTING APPELLEE ROBBIN'S MOTION TO COMPEL MATERIAL THAT APPELLANT TORRY CLAIMED WAS CONFIDENTIAL AND IRRELEVANT BECAUSE APPELLEE ROBBIN DID NOT MAKE A CIVIL RULE 34 REQUEST FOR THE MATERIAL BEFORE FILING THE MOTION TO COMPEL.
II. THE TRIAL COURT ERRED IN ORDERING THE DISCLOSURE OF UNREDACTED COPIES OF APPELLANT TORRY'S PERSONAL AND BUSINESS BANK ACCOUNT STATEMENTS, WHICH HE ALLEGES CONTAIN CONFIDENTIAL AND IRRELEVANT INFORMATION, WITHOUT EXAMINING THE ACCOUNT THAT HAD BEEN PROVIDED, HOLDING AN ORAL HEARING, OR CONDUCTING AN IN CAMERA INSPECTION TO ADDRESS CONFIDENTIALITY AND RELEVANCY CONCERNS.
{¶15} Initially, we address the Appellee's assertion the trial court's October 18, 2016 Judgment Entry is not a final appealable order.
{¶16} On December 28, 2016, this Court denied Appellee's motion to dismiss for want of a final appealable order, because Appellant claims the privilege of confidential business records.
{¶17} Appellant maintains the bank accounts at issue are confidential, personal and beyond the scope of the accounting. In In re Guardianship of Sharp, 5th Dist. Muskingum App. No. CT2014-0003, 2014 Ohio 3613, this Court held a discovery order mandating the disclosure of confidential business records is a final appealable order. Id, citing Northeast Professional Home Care Inc. v. Advantage Home Health Services, Inc., 188 Ohio App.3d 704, 2010-Ohio-1640 (A discovery order which orders the disclosure of confidential business material qualifies as a provisional remedy pursuant to R.C. 2505.02(A)(3) and is a final, appealable order.)
{¶18} Pursuant to our prior holding on December 28, 2016 and this Court's opinion in Sharp, supra, the judgment entry appealed from is a final appealable order because the appeal is from a provisional remedy ordered in a special statutory proceeding, R.C. 1337.36.
I.
{¶19} In the first assignment of error, Appellant Torry Baughman maintains the trial court erred in grating the motion to compel where Appellee Robbin Baughman failed to make a Civil Rule 34 request for the material prior to filing the motion to compel.
{¶20} Appellant did not raise this argument before the court; therefore, Appellant cannot raise the argument for the first time on appeal. Snyder v. Snyder, Richland App. No. 2006 CA 0022, 2006 Ohio 4795.
{¶21} The first assignment of error is overruled.
II.
{¶22} In the second assignment of error, Appellant maintains the trial court erred in granting the motion to compel without first conducting an in camera inspection or holding an oral hearing and the trial court did so without examining the account Appellant provided during discovery.
{¶23} This Court may not reverse a trial court's decision on a motion to compel discovery absent an abuse of discretion. State ex rel. The V. Companies v. Marshall Co. Auditor, 81 Ohio St.3d 467, 692 N.E.2d 198, 1998-Ohio-329. The Ohio Supreme Court has frequently defined the abuse of discretion standard as implying the court's attitude was unreasonable, arbitrary, or unconscionable. Id.
{¶24} Ohio Civil Rule 26(B)(1) generally defines the scope of discovery,
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
{¶25} In In re Guardianship of Sharp, 2014 Ohio 3613, supra, this Court held,
In the instant case, appellants have argued that some of the requested material is privileged. Physicians' records are generally privileged, although R.C. 2317.02(B) sets forth situations in which the patient is deemed to have waived that privilege. The court made no finding that the privilege had been waived pursuant to statute. Further, appellee's discovery request seeks disclosure of virtually every financial, business, and medical record pertaining to Ellen and Fountain Sharp over a period of time from January of 2000 to the present. Appellants claimed the request was unwarranted and burdensome, arguing the scope is overbroad, and that some of the business records are confidential. Based on the claim of privilege, the broad scope of the discovery request, and the personal nature of the requested materials as to both Fountain and Ellen Sharp, the trial court abused its discretion in not first conducting an in camera inspection of the records to determine what records are protected from discovery by medical or other privilege, and which records are in fact relevant to the guardianship proceeding as defined in Civ. R. 26(B)(1).
(Emphasis added.)
{¶26} In accordance with Sharp, we find the trial court abused its discretion in ordering the production of Appellant's bank account records without first conducting an in camera inspection. We reject Appellee's argument the records are beyond the scope of the accounting, as Appellant has admitted to commingling the funds; thus, the accounts are necessarily within the scope of the R.C. 1337.36.
{¶27} Appellant's second assignment of error is sustained, and the matter remanded to the trial court for further proceedings in accordance with the law and this Opinion.
{¶28} The October 18, 2016 Judgment Entry entered by the Licking County Probate Court is affirmed, in part, reversed, in part and the matter remanded, for further proceedings in accordance with the law and this Opinion. By: Hoffman, J. Delaney, P.J. and Wise, Earle, J. concur
Based upon this Court's remand for an in camera inspection, we find Appellant's argument concerning the lack of an oral hearing premature. We further note the bank account statements were never provided to the trial court. Appellant produced to Appellee a fiduciary account and an itemized statement, which Appellee's attached to the motion to compel. Appellant did not produce bank account statements as to three of the accounts at issue during discovery, and produced to Appellee only redacted statements as to two of the five accounts. The bank account statements were not provided to the trial court; therefore, Appellant cannot argue the trial court's failure to review the statements. --------