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In Re the Guardianship of Hards

September 30, 2011

IN RE THE GUARDIANSHIP OF BERTINA HARDS.


Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 20 GU 0467.

The opinion of the court was delivered by: Cynthia Westcott Rice, J.

Cite as In re Guardianship of Hards,

OPINION

Judgment: Affirmed.

{¶1} This appeal arises from the judgment entered by the Lake County Court of Common Pleas, Probate Division, approving a final accounting of the Guardianship of Bertina Hards and entering a surcharge against appellant, Jacqueline Adams, on the underlying guardianship. We affirm the trial court's judgment.

{¶2} Appellant was appointed guardian of the person and the estate of her mother, Bertina Hards, in April 1995. After the appointment, appellee, State Automobile Company ("State Auto"), issued a guardian's bond of which appellant was the principal. Appellant served as guardian from April 10, 1995, until February 4, 2002, when the probate court removed her and directed appellant to turn over all estate assets and documents to the successor guardian, Appellee Russell J. Meraglio, Jr. ("successor guardian"), and file a final accounting. The ward died February 24, 2002.

{¶3} From the date of her removal through June 2007, the probate court had formally ordered appellant to file a final distributive accounting relating to the guardianship and turn over all estate documentation to the successor guardian on at least seven separate occasions. At no point did appellant comply with the court's order. She was later held in indirect criminal contempt as well as indirect civil contempt. Both contempt orders were later affirmed by this court. See In re Guardianship of Hards, 175 Ohio App.3d 168, 2008-Ohio-630 (affirming the probate court's determination that appellant was guilty of indirect criminal contempt) and In re Guardianship of Hards, 11th Dist. No. 2007-L-150, 2009-Ohio-1002 (affirming the court's judgment holding appellant in indirect civil contempt).

{¶4} On February 29, 2008, after the issuance of this court's opinion affirming the trial court's judgment holding appellant in indirect criminal contempt, the successor guardian filed a motion for surcharge order seeking an amount "in excess of

$100,000.00" against appellant and State Auto, as surety of appellant. State Auto later served the successor guardian with a memorandum in opposition to the motion. State Auto then undertook an investigation of the case to determine its potential obligations as a result of appellant's management of the guardianship.

{¶5} Pursuant to its investigation, State Auto met with the successor guardian and attempted to secure relevant estate documents. The successor guardian, however, advised he was not in possession of any such estate assets or documents due to appellant's failure to comply with the trial court's multiple orders. The record indicates that State Auto subsequently attempted to obtain the estate documentation from appellant, but was unsuccessful. State Auto also served subpoenas on the financial institutions, brokerages, and investment entities listed in the partial accountings filed by appellant prior to her removal; it deposed appellant, her husband, and her daughter; it reviewed all filings, pleadings, and decisions concerning the guardianship estate; and it reviewed all documentation filed under case number 02PE00094 in the Geauga County Probate Court, captioned In re Bertina Hards (the decedent's probate estate). After completing its investigation, however, State Auto determined the documentation necessary to provide a full and accurate accounting of the guardianship was either impracticable to obtain or impossible to locate.

{¶6} The court held a status conference on April 29, 2010. Although notice was served on appellant, she failed to appear. On May 27, 2010, after convening with the court, the successor guardian and State Auto submitted a "Joint Motion to Approve Final Account and Entry of Surcharge Against Jacqueline Adams and State Automobile Mutual Insurance Company." The joint motion provided:

{¶7} "Successor Guardian and State Auto agree that Successor Guardian is entitled to recover legal and guardian fees totaling Forty Two Thousand Five Hundred Dollars and no/100 ($42,500.00), which is a compromise on the actual attorney fees he incurred since this Court's entry dated August 13, 2007 approving fees, and hereby ask that this court enter a surcharge against Adams and State Auto for the sum of Forty Two Thousand Five Hundred Dollars and no/100 ($42,500.00), which amount shall be paid to Successor Guardian."

{¶8} On June 8, 2010, appellant filed a motion for leave to file a response to the May 27th joint motion. Several days later, the successor guardian filed a brief in opposition. Although the brief was served on appellant, she neither responded to the brief in opposition nor filed a response to the joint motion.

{ΒΆ9} On June 21, 2010, the probate court issued its judgment granting the successor guardian and State Auto's joint motion and denying appellant's motion for leave to file a response to ...


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