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Audrey Ward, As Administrator of the Estate of Richard Shine v. Linda Patrizi

September 30, 2011


Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 10 PC 000152.

The opinion of the court was delivered by: Timothy P. Cannon, P.J.

Cite as Ward v. Patrizi,


Judgment: Affirmed.

{¶1} This appeal is submitted to this court on the record and the briefs of the parties. Appellant, Linda Patrizi, appeals the judgment entered by the Probate Division of the Geauga County Court of Common Pleas. After a bench trial, the trial court entered judgment in favor of appellee, Audrey Ward, as Administrator of the Estate of Richard Shine. The trial court ordered Patrizi to pay $700 as a penalty for being found guilty of concealment; pay $3,959.50 in attorney fees incurred by the estate; and return two items of personal property to the estate.

{¶2} Patrizi is Richard Shine's ("Richard") niece. Patrizi was designated as Richard's power of attorney and served in that capacity. Patrizi paid Richard's bills from his checking account, signing the checks as the power of attorney.

{¶3} Richard died intestate on October 8, 2009. Patrizi drafted a check from his account, made payable to cash, in the amount of $7,000. The check was dated October 8, 2009, and Patrizi signed the check using her power of attorney designation. Within hours of Richard's death, Patrizi went to the bank and cashed the check.

{¶4} In the days following Richard's death, Patrizi took several items of personal property from his residence. She claimed she had permission to take these items from Robert Shine ("Robert"), who is Richard's son. Patrizi admitted taking a frying pan, a table stand, a microwave, and a lock box containing paperwork from Richard's home. In addition, the estate alleged that Patrizi took additional items from the home such as a soup tureen, diamond earrings, a mantle clock, and a Bose radio.

{¶5} Upon his death, the real estate that included Richard's residence transferred to Patrizi and Robert as a non-probate asset. Also, Patrizi and Robert were designated as beneficiaries, in equal shares, on Richard's IRA account held at Fidelity, which was also a non-probate asset.

{¶6} Audrey Ward was appointed administrator of Richard's estate. Robert is the only beneficiary of the estate.

{¶7} On April 12, 2010, the administrator filed a "complaint for concealment, embezzlement, and conversion of assets" against Patrizi. The complaint alleged that Patrizi took the $7,000 from the proceeds of the cashed check. Also, it alleged that she took items of personal property, including diamond earrings, a mantle clock, and a microwave oven. The complaint sought a return of the $7,000 and personal items, imposition of a ten percent penalty pursuant to R.C. 2109.52, and an order that Patrizi pay the estate's attorney fees for the concealment action.

{¶8} Patrizi filed an answer to the complaint, wherein she denied the substantive allegations of the complaint. Also, in the same pleading, Patrizi filed a counterclaim against the estate. Therein, Patrizi claimed she had paid $3,149.62 in funeral expenses for Richard. In addition, Patrizi asserted that she paid $750 in real estate taxes for Richard's property in January 2010, for the taxes accrued for the first half of 2009.

{¶9} In May 2010, the estate filed a motion to dismiss Patrizi's counterclaim. The estate argued the counterclaim should be dismissed for several reasons, one of which being that Patrizi did not follow the proper procedure pursuant to R.C. 2117.06 for presenting claims to the administrator of an estate. Patrizi responded to this motion. She argued that she was required to advance any compulsory counterclaims pursuant to Civ.R. 13.

{¶10} A pretrial conference occurred on August 17, 2010. During the conference, the estate acknowledged that Patrizi gave the estate $7,000 and returned the microwave oven, the mantel clock, and the safety deposit box and its contents.

{¶11} A hearing on the merits was held before the trial court on September 21, 2010. Patrizi returned the frying pan to the estate that day. Several witnesses testified at the hearing, including Patrizi, Robert, and Administrator Ward. In addition, Attorney John Thomas, who represented Administrator Ward and the estate, testified regarding the attorney fees he billed the estate as a result of the concealment action against Patrizi.

{¶12} Following the hearing, the trial court issued a judgment entry finding Patrizi guilty of concealment of assets. The court found Patrizi "conveyed away" multiple items belonging to the estate, including $7,000 cash, a table stand, a frying pan, a Bose radio, and a safety deposit box and its contents. The trial court noted that the $7,000, the frying pan, and the safety deposit box and its contents were returned to the estate after the complaint was filed. The trial court found that the estate did not present sufficient evidence on its claim that Patrizi concealed the diamond earrings and soup tureen. The trial court ordered Patrizi pay $3,959.50 in attorney fees to the estate. Also, the court imposed a $700 penalty on Patrizi, representing ten percent of the $7,000 she had taken from the estate. Finally, the trial court ordered Patrizi to pay the costs of the proceeding.

{¶13} Patrizi timely appealed the trial court's judgment entry to this court. On appeal, Patrizi raises three assignments of error. Her first assignment of error is:

{¶14} "The trial court erred in dismissing appellant's compulsory counterclaims thereby compelling appellant to unnecessarily incur future additional time and expense in prosecuting her claims against the estate."

{ΒΆ15} At the September 2010 hearing, the trial court ruled on the estate's motion to dismiss ...

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