Opinion
CA2022-12-111
07-17-2023
RENEE WOOD, Appellee, v. DEBORA K. FERNANDEZ, et al., Appellants.
Coolidge Wall Co., L.P.A., and Patricia J. Friesinger and Zachary B. White, for appellee. Holcomb & Hyde, and Richard A. Hyde, for appellant.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. PC20-11-0041
Coolidge Wall Co., L.P.A., and Patricia J. Friesinger and Zachary B. White, for appellee.
Holcomb & Hyde, and Richard A. Hyde, for appellant.
OPINION
S. POWELL, P.J.
{¶ 1} Appellant, Debora K. Fernandez, appeals from the judgment issued in the Butler County Court of Common Pleas, Probate Division, finding in favor of appellee, Renee Wood, in this will contest action. For the reasons outlined below, we affirm in part, reverse in part, and remand this matter for further proceedings consistent with this opinion.
Facts and Procedural History
{¶ 2} The record establishes that Fernandez, Wood, and Kimberly Ward all share the same mother, Mary Lou Goughenour. Mary Lou and Robert E. Goughenour were married on December 31, 1989. The Goughenours remained married and resided together in Butler County, Ohio up until Mary Lou's death on October 24, 2019. Robert passed away shortly thereafter on April 29, 2020. Robert was 93 years old at the time of his passing. Wood lived with Mary Lou and Robert for nearly 30 years, before moving out to live with a cousin on December 8, 2019, approximately six weeks after Mary Lou's passing.
{¶ 3} On November 30, 2020, Wood, who is undisputedly an incompetent adult, by and through her sister and "next friend," Ward, presented a complaint for will contest to the probate court clerk for filing. In her complaint, Wood alleged that Fernandez had exerted undue influence over Robert in the preparation of the last will and testament he executed on February 14, 2020. This will named Fernandez as the sole beneficiary and executrix of Robert's estate. This was a significant departure from Robert's previous will, which left his assets to Wood. The will Robert executed on February 14, 2020, was subsequently entered into probate on June 9, 2020, with notice of probate of will and certificate of service for the notice of probate of will being filed on September 1, 2020.
{¶ 4} The front page of Wood's complaint as originally presented to the probate court clerk for filing contains two timestamps; one indicating the complaint was "RECEIVED" on Monday, November 30, 2020, with the other noting that the complaint was "FILED" on Thursday, December 3, 2020. The front page of Wood's complaint also contains a stamped Case No. PC20-12-0041, with a handwritten notation crossing out the "12" and replacing it with an "11." For reference, the relevant portions of the front page of Wood's complaint appears as follows:
{¶ 5} On December 10, 2010, Fernandez filed a motion for summary judgment on the issues of undue influence and Ward's "legal authority to bring this action" as "next friend" of her disabled sister, Wood. Fernandez additionally argued within her summary judgment motion that Wood's complaint should be dismissed because it was filed after the three-month time limit for bringing a will contest action set forth in R.C. 2107.76 expired. Wood filed a memorandum in opposition to Fernandez's motion for summary judgment on February 8, 2022.
{¶ 6} On March 23, 2022, the probate court issued an order that, as relevant to this appeal, denied Fernandez's motion for summary judgment. In so doing, the probate court determined that Ward had standing to bring a will contest action on Wood's behalf given Ward's status as her disabled sister Wood's "next friend" under Civ.R. 17(B). The probate court also determined "that issues of fact preclude judgment" to Fernandez on Wood's claim of undue influence.
The probate court granted Fernandez's motion for summary judgment as it relates to Wood's alternative argument alleging Robert lacked testamentary capacity at the time he executed the February 14, 2020 will. Wood did not appeal that decision.
{¶ 7} The probate court further denied Fernandez's request to dismiss Wood's complaint as having been untimely filed pursuant to R.C. 2107.76. In reaching this decision, the probate court explained:
The notice which triggers the three-month period [for bringing a will contest action set forth in R.C. 2107.76] was filed on September 1, 2020. Thus the complaint was required to be filed by December [2nd]. [Wood] submitted the complaint to the court on November 30th, and the court received it on that date, as evidenced by the red "RECEIVED" stamp on the upper left corner of page one of the complaint. The court also acknowledged its receipt and possession of the complaint on that date in its official "Docket Entries." It is axiomatic that a court speaks through its entries and that a court's docket entries set forth the dates on which court documents are received for filing.
{¶ 8} Continuing, the probate court stated:
The court did not reject the complaint for filing. The court, however, did not place its "FILED" stamp on page one of the complaint until December 3rd, at which time the court assigned the complaint the number PC20-12-0041. The court recognized its administrative error of assigning the complaint a December date and corrected the case number to PC20-11-0041. The change is seen on page one of the complaint itself where presumably the deputy clerk, by hand, drew a line through "12" and above it hand wrote "11." The amended case number is the only number used to refer to the case in the court's Docket Entries. The change consisted only of changing the middle number in the series of three numbers from "12" to "11." The significance of this change was the court's acknowledgement that it received and accepted for filing the complaint in the eleventh month of 2020 rather than in the twelfth month. The court has never entered any explicit amendment to or correction of its "FILED" stamp date, but it is clear that the court received the complaint for filing on November 30th.
{¶ 9} Concluding, the probate court noted:
[Fernandez] is asking the court to find that despite the above set of circumstances the correct date of the complaint's filing is December 3rd and thus beyond the statute of limitations [set forth in R.C. 2107.76]. She desires to have the court's original, inadvertent, improper "FILED" stamp date be dispositive to
preclude [Wood] from receiving an adjudication of her complaint on its merits. Such a finding would be grossly inequitable, unjust, and contrary to law, whether [Wood] was under legal disability or not.
{¶ 10} On October 18, 19, and 20, 2022, a three-day jury trial was held on Wood's claim of undue influence. During that trial, the jury heard testimony from a total of 14 witnesses. This included testimony from both Wood and Fernandez, as well as testimony from Ward. Upon both parties resting, the probate court provided its final instructions to the jury. This included instructions that the burden of proof required to prove a claim of undue influence in a will contest is by a preponderance of the evidence, rather than by clear and convincing evidence. The probate court provided this instruction to the jury over Fernandez's protestations that such an instruction was an incorrect statement of law. The jury was then excused to begin its deliberations.
{¶ 11} October 21, 2022, the jury returned to the courtroom with a unanimous verdict finding in Wood's favor, thereby determining by a preponderance of the evidence that the will Robert executed on February 14, 2020 was a product of Fernandez's undue influence. Shortly thereafter, on November 9, 2022, the probate court issued a final judgment entry setting forth the jury's verdict and declaring invalid the will Robert executed on February 14, 2020, naming Fernandez as the sole beneficiary and executrix of his estate. Three weeks later, on November 30, 2022, Fernandez filed a timely notice of appeal from the trial court's final judgment entry. Oral argument was thereafter held before this court on June 12, 2023. Fernandez's appeal now properly before this court for decision, Fernandez has raised three assignments of error for review.
Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY FAILING TO DISMISS THE SUIT ON THE GROUNDS THAT PLAINTIFF- APPELLEE FAILED TO PROPERLY BRING SUIT WITHIN THE TIME PERIOD PRESCRIBED BY THE APPLICABLE STATUTE OF LIMITATIONS.
{¶ 13} In her first assignment of error, Fernandez argues the probate court erred by failing to dismiss Wood's complaint as having been filed after the three-month time limit for bringing a will contest action set forth in R.C. 2107.76 expired, on Wednesday, December 2, 2020. To support this claim, Fernandez heavily relies on the fact that a timestamp included on the front page of Wood's complaint indicates the complaint was "FILED" one day late, on Thursday, December 3, 2020. However, just as the probate court found, Wood's complaint was in actuality received by the probate court clerk for filing three days earlier, on Monday, November 30, 2020. This was made clear by the other timestamp included on the front page of Wood's complaint indicating the complaint was presented and "RECEIVED" by the probate court clerk for filing on that date.
{¶ 14} The probate court clerk, immediately upon being presented with and receiving Wood's complaint, had a duty to treat Wood's complaint as having been filed and stamped it with the appropriate "FILED" timestamp. Therefore, although the probate court clerk who was presented with Wood's complaint merely timestamped the document as having been "RECEIVED" rather than "FILED," the practical and legal effect of Wood presenting her complaint to the probate court clerk for filing on November 30, 2020 remains the same. That is, although nearing the expiration date, Wood's complaint was nevertheless filed within the three-month time limit for bringing a will contest action as set forth in R.C. 2107.76. Anything in the record indicating otherwise is, as the probate court found, merely a clerical error that has since been corrected on the probate court's docket statement.
Excluding any documents needing the judge's signature, this holds true for any other documents that may be presented to the probate court clerk for filing. This is assuming, of course, that any required filing fee had been paid.
Accordingly, Fernandez's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING HER MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF UNDUE INFLUENCE AND ON THE ISSUE OF CAPACITY TO BRING SUIT DESPITE GRANTING HER MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF TESTAMENTARY CAPACITY.
{¶ 16} In her second assignment of error, Fernandez claims the probate court erred by denying her motion for summary judgment on the issues of undue influence and Ward's "capacity to bring suit" on behalf of her disabled sister, Wood, as her "next friend" under Civ.R. 17(B). However, in the body of her brief, Fernandez only addresses the first portion of her assigned error. That is, Fernandez challenges only the probate court's decision denying her summary judgment motion on the issue of undue influence. App.R. 12(A)(2) provides that this court "may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A)." Therefore, because Fernandez has not set forth any argument concerning the second portion of this assignment of error, we need not address whether the probate court erred by denying Fernandez's summary judgment motion on the issue of Ward's "capacity to bring suit" as "next friend" of her disabled sister, Wood, pursuant to Civ.R. 17(B). We will instead address only Fernandez's claim that the probate court erred by denying her motion for summary judgment on the issue of undue influence. We will do this after setting forth the appropriate summary judgment standard of review.
Summary Judgment Standard of Review
{¶ 17} "Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial." Franchas Holdings, LLC v. Dameron, 12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16. "Civ.R. 56 sets forth the summary judgment standard." State ex rel. Becker v. Faris, 12th Dist. Clermont No. CA2020-10-058, 2021 -Ohio-1127, ¶ 14. "Pursuant to that rule, a court may grant summary judgment only when (1) there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead reasonable minds to a conclusion that is adverse to the nonmoving party." Spitzer v. Frish's Restaurants, Inc., 12th Dist. Butler No. CA2020-12-128, 2021-Ohio-1913, ¶ 6. "In determining whether a genuine issue of material fact exists, the evidence must be construed in favor of the nonmoving party." Assured Admin., LLC v. Young, 12th Dist. Warren No. CA2019-04-039, 2019-Ohio-3953, ¶ 14. "This court reviews a trial court's summary judgment decision under a de novo standard." Faith Lawley, LLC v. McKay, 12th Dist. Warren No. CA2020-08-052, 2021-Ohio-2156, ¶ 26. De novo review means that this court uses the same standard the trial court should have used. Brock v. Servpro, 12th Dist. Butler No. CA2021-06-075, 2022-Ohio-158, ¶ 29.
Denying Summary Judgment on the Issue of Undue Influence
{¶ 18} As noted above, Fernandez argues the trial court erred by denying her motion for summary judgment on the issue of undue influence. This is because, according to Fernandez, Wood produced "absolutely no credible evidence" in opposition to her motion for summary judgment on that issue. However, as this court has stated previously, "any error in denying a summary judgment motion is rendered moot or harmless if the motion is denied due to the existence of genuine issues of material fact, and a subsequent trial results in a verdict in favor of the party who did not move for summary judgment." Smith v. Ironwood, 12th Dist. Warren Nos. CA2021-07-065 and CA2021-08-068, 2022-Ohio-875, ¶ 17. "This is not to say that the trial court erred in denying the summary judgment motion; the point is that any alleged error in that vein is moot due to the verdict in [the non-moving party's] favor." Becker v. Direct Energy, LP, 2d Dist. Montgomery No. 27957, 2018-Ohio-4134, ¶ 44. To hold otherwise, thereby allowing a summary judgment decision based on less evidence to win out over a verdict reached by a jury on more evidence, "would defeat the fundamental purpose of judicial inquiry." 7471 Tyler Blvd., LLC v. Titan Asphalt & Paving, Inc., 11th Dist. Lake No. 2019-L-098, 2020-Ohio-5304, ¶ 177, citing Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 156 (1994).
{¶ 19} The trial court in this case denied Fernandez's motion for summary judgment on the issue of undue influence after finding a genuine issue of material fact remained as to whether Fernandez exerted undue influence over Robert in the execution of his February 14, 2020 will. Specifically, as the trial court stated in its decision denying Fernandez's motion for summary judgment on that issue:
The record contains evidence sufficient to convince a trier of fact that [Fernandez] exerted restraint, duress, or undue influence on Robert, and that as a result of this he changed his will to benefit [Fernandez] and disadvantage [Wood].
{¶ 20} Therefore, because this case was subsequently tried to a jury, which ultimately resulted in the jury returning a verdict in favor of the non-moving party, Wood, on the issue of undue influence, any error the trial court made by denying Fernandez's motion for summary judgment on that issue has now been rendered moot or harmless. See, e.g., A N Bros. Corp. v. Total Quality Logistics, LLC, 12th Dist. Clermont No. CA2015-02-021, 2016-Ohio-549, ¶ 20 ("[b]ecause the case was subsequently submitted to a jury for a full trial on the merits, which resulted in a verdict in favor of [the non-moving party], any error in denying [appellant's] motion for summary judgment is rendered moot or harmless"); and South v. Browning, 12th Dist. Warren No. CA2012-09-088, 2013-Ohio-1491, ¶ 28 (finding any error the trial court made by denying a motion for summary judgment was rendered moot or harmless because "the case was then submitted to the court for a decision on the merits, which resulted in a judgment in favor of the [non-moving party]"). Accordingly, Fernandez's second assignment of error challenging the trial court's decision denying her motion for summary judgment on the issue of undue influence lacks merit and is overruled.
Assignment of Error No. 3:
{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY FAILING TO PROPERLY INSTRUCT THE JURY ON PLAINTIFF-APPELLEE'S BURDEN OF PROOF OF CLEAR AND CONVINCING EVIDENCE.
{¶ 22} In her third assignment of error, Fernandez argues the trial court erred by instructing the jury that the burden of proof required to prove undue influence in a will contest is by a preponderance of the evidence, rather than by clear and convincing evidence. We agree.
{¶ 23} It is incumbent upon the trial court to instruct the jury with correct statements of law. See, e.g., Taylor v. Garinger, 30 Ohio App.3d 184, 187 (12th Dist. 1986) (trial court did not err by refusing to provide appellant's requested jury instruction where the requested instruction "was not a correct statement of the law governing the issue of competency to make a will"). Instructing a jury that the burden of proof required to prove undue influence in a will contest is by a preponderance of the evidence, rather than by clear and convincing evidence, is an incorrect statement of law. The correct statement of law is instead set forth in the Ohio Jury Instructions, CV Section 633.01 (2)(B) (Rev. Nov. 18, 2017).
{¶ 24} Pursuant to that instruction, before a jury can find in favor of the plaintiff in a will contest action alleging undue influence, the jury must find by clear and convincing evidence that the party making the will was unduly influenced. See Allerton v. Burton, 5th Dist. Licking No. 2020 CA 00042, 2021-Ohio-500, ¶ 12 ("[a] claim of undue influence [in a will contest] must be proven by clear and convincing evidence"); and Young v. Kaufman, 8th Dist. Cuyahoga Nos. 104990 and 105359, 2017-Ohio-9015, ¶ 52 ("[t]o establish undue influence [in a will contest action,] the challenging party must prove by clear and convincing evidence" the existence of four essential elements), citing Black v. Watson, 8th Dist. Cuyahoga No. 103600, 2016-Ohio-1470, ¶ 11 ("a claim of undue influence [in a will contest action] must be proven by clear and convincing evidence"); see also Fox v. Stockmaster, 3rd Dist. Seneca Nos. 13-01-34 and 13-01-35, 2002-Ohio-2824, ¶ 50 ("[generally, undue influence must be proven by clear and convincing evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established").
{¶ 25} The probate court based its decision to instruct the jury that it was Wood's burden to prove her claim of undue influence by a preponderance of the evidence on this court's decision in Estate of Everhart v. Everhart, 12th Dist. Fayette Nos. CA2013-07-019 and CA2013-09-026, 2014-Ohio-2476. However, upon careful review of our Everhart opinion, this court never made such a grand pronouncement. This becomes evident when taking into account the assigned error and supporting arguments being addressed therein. Nevertheless, in consideration of how the trial court ultimately construed and applied our decision in Everhart to the case at bar, we find it now necessary to provide further explanation of this court's holding in Everhart.
{¶ 26} Our present case involves a will contest. Everhart involved both a will contest and two deed contests. The appellant in Everhart challenged the testator's will and the two deeds on the basis of undue influence in their execution. The will contest therein was tried to a jury, whereas the two deed contests were tried to the bench. The jury hearing the will contest action was instructed that the burden of proof for undue influence in the execution of a will was by a preponderance of the evidence. The trial court used the higher clear and convincing evidence standard when ruling on the two deeds. The jury found there was undue influence and invalidated the will. Neither party appealed that decision. The trial court, in hearing the challenge to the two deeds, found that neither of the contested deeds were subject to undue influence. It was that finding which was appealed.
{¶ 27} On appeal, the appellant in Everhart raised five assignments of error. Only the third assignment of error dealt with the two deeds. None of the assigned errors dealt with the will. In the third assigned error, appellant challenged the trial court's decision not to set aside either of the two deeds as being the product of undue influence. In so doing, appellant argued that it was inconsistent for his challenge to the will to succeed, while at the same time his challenge to the deeds to fail. The same parties were involved in both the will and the contested deeds. How could it be undue influence on the will, but not the two deeds? Our opinion in Everhart responded to that challenge by making a fact statement. Specifically, we stated, "the issues determined by the trier of fact were subject to different burdens of proof." Id., 2014-Ohio-2476 at ¶ 37.
{¶ 28} Upon making this statement, we then cited the Ohio Supreme Court's decision in West v. Henry, 173 Ohio St. 498 (1962), along with the Second District Court of Appeals' decision in Kidwell v. Pitts, 2d Dist. Montgomery No. 22370, 2008-Ohio-4395, which indicated in a footnote that a showing of undue influence in a will contest requires only a preponderance of the evidence, rather than clear and convincing evidence. That is not a statement of law by us, but rather a fact statement setting forth the burden of proof instruction that the trial court provided to the jury. Therefore, contrary to what the trial court in this case seemed to believe, we were not called upon in Everhart to rule on the burden of proof to establish undue influence in a will contest. We were instead called upon to resolve whether the trial court properly ruled on the standard to be used for undue influence in the execution of the two deeds. Therefore, because our jurisdiction was not invoked as to the burden of proof for undue influence in the execution of a will, we could not, and did not, make a statement of law on that point.
{¶ 29} Since our jurisdiction was not invoked in Everhart as to the burden of proof to establish undue influence in the execution of a will, any reader who may have misconstrued our verbiage as being a statement of law should have at the same time recognized it as being nothing more than non-authoritative, non-binding dicta. Dicta "is defined as 'expressions in court's opinions which go beyond the facts before court and therefore are * * * not binding in subsequent cases as legal precedent.'" Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 85 (J., Resnick, dissenting), quoting Black's Law Dictionary 454 (6th Ed.1990). "Dicta is not authoritative, and, by definition, cannot be the binding law of the case." Gissiner v. Cincinnati, 1st Dist. Hamilton No. C-070536, 2008-Ohio-3161, ¶ 15. "Dicta includes statements made by a court in an opinion that are not necessary for the resolution of the issues." Hicks v. State Farm Mut. Auto. Ins. Co., 2d Dist. Montgomery No. 27103, 2017-Ohio-7095, ¶ 52. This court's statement in Everhart that a showing of undue influence in a will contest requires only a preponderance of the evidence, rather than clear and convincing evidence, was just that type of statement.
{¶ 30} As to this court's statement of law on the burden of proof to establish undue influence in the execution of a will, as we have stated above, it is by clear and convincing evidence. See Ohio Jury Instructions, CV Section 633.01 (2)(B). We would also note that to the extent that the Second District in Kidwell and other cases have stated that the burden of proof on undue influence in the execution of a will is only by preponderance of the evidence, those cases routinely cite the Ohio Supreme Court's now over 60-year-old decision in West v. Henry, 173 Ohio St. 498 (1962). Our reading of that decision finds no statement that preponderance of the evidence is the standard. Rather, the only mention of a burden of proof merely states that the Ohio Revised Code "places the burden of proof upon the contestants." Id. at 502 and 511. And the only mention of preponderance of the evidence is found in the appellant's fourth assignment of error, which the Ohio Supreme Court ultimately dismissed as moot upon finding the record devoid of any evidence "of undue influence or restraint, nor any evidence from which an inference of undue influence or restraint could reasonably and lawfully be drawn." Id. at 500 and 510. Accordingly, finding merit to Fernandez's argument raised herein, Fernandez's third assignment of error has merit and is sustained.
Conclusion
{¶ 31} For the reasons outlined above, Fernandez's first and second assignments of error are overruled, and Fernandez's third assignment of error is sustained. Accordingly, having found merit with Fernandez's third assignment of error, the judgment is reversed and this matter is remanded to the probate court for further proceedings consistent with this opinion.
{¶ 32} Judgment affirmed in part, reversed in part, and remanded.
HENDRICKSON and BYRNE, JJ., concur.