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Norman L. Sirak v. Gail A. Arenstein

October 11, 2011

NORMAN L. SIRAK
PLAINTIFF-APPELLANT
v.
GAIL A. ARENSTEIN, ET AL DEFENDANT-APPELLEE



CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010-CV-04625

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

Cite as Sirak v. Arenstein,

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed

[Cite as Sirak v. Arenstein, 2011-Ohio-5266.]

{¶1} Plaintiff-appellant Norman L. Sirak appeals a judgment of the Court of Common Pleas of Stark County, Ohio, which found pursuant to Civ. R. 12 (B)(6), that his complaint against defendants-appellees Gail Arenstein, Ronald Arenstein, G. Gregory Arenstein, and Eleanor G. Sirak failed to state a claim on which relief can be granted. Appellant assigns five errors to the trial court:

{¶2} "I. THE LOWER COURT IGNORED THREE GENUINE ISSUES OF MATERIAL FACTS SUBMITTED BY PLAINTIFF IN ITS (sic) RESPONSE TO THE MOTION TO DISMISS. NO REASON WAS GIVEN FOR NOT CONSIDERING THESE ISSUES OF FACT, AND NO MENTION WAS MADE OF THEM IN ANY CONTEXT.

{¶3} "II. THE LOWER COURT DID NOT CONSIDER PLAINTIFF'S FACTS AND REASONABLE INFERENCES DRAWN FROM THESE FACTS, AS THEY (sic) ARE REQUIRED TO DO FOR A RULE 12 (B) (6) MOTION.

{¶4} "III. THE LOWER COURT WEIGHED AND CHARACTERIZED

PROBATIVE EVIDENCE, INVADING THE PROVINCE OF A JURY.

{¶5} "IV. THE LOWER COURT CONSIDERED AND ACCEPTED AS TRUE CONCLUSIONS OF LAW, IN PLACE OF FACTS, AND PROVIDED NO CASE LAW AUTHORITY TO SUPPORT ITS POSITION.

{¶6} "V. THE LOWER COURT HELD THAT THIS CASE IS NOT YET RIPE. THIS LEGAL CONCLUSION WILL INVALIDATE THE USE OF THE INTENTIONAL INTERFERENCE WITH AN EXPECTANCY OF AN INHERITANCE, BECAUSE IT RENDERS THE FOURTH ELEMENT IN THIS TORT EXTREMELY DIFFICULT TO FULFILL."

Stark County, Case No. 2011-CA-00053 3

{¶7} Appellees Gail and Ronald Arenstein are appellant's sister and brother-in- law. Appellee G. Gregory Arenstein is Ronald Arenstein's nephew and an attorney. Appellee Eleanor G. Sirak is the mother of appellant and appellee Gail Arenstein.

{¶8} Appellant filed his amended complaint with a jury demand on January 5, 2011. The complaint sets out a lengthy statement of facts beginning in 1986. Appellant alleges Eleanor G. Sirak has been the victim of undue influence and fraud perpetrated by Gail and Ronald Arenstein and assisted by G. Gregory Arenstein in his legal capacity. The complaint alleges appellee Eleanor G. Sirak is elderly and has a variety of ailments including mobility problems and susceptibility to outside influences. It alleges Eleanor has lost her ability to exercise her free will regarding her property, because of the way Gail has treated her.

{¶9} In 1986, Eleanor Sirak sold her home to Gail and Ronald Arenstein, and purchased a smaller one. Eleanor Sirak asked for an appraisal of the home, which Gail and Ronald provided. Appellant believes the appraisal was far too low. Appellant alleges Gail and Ronald Arenstein paid far less for the home than it was worth, and then mortgaged it for far more than they paid. Appellant alleged Gail and Ronald Arenstein were and continue to be encumbered with mortgages and debts beyond what their income would indicate they are able to pay. Appellant alleges it is quite possible Gail and Ronald Arenstein are exploiting Eleanor Sirak financially, although the complaint admits Eleanor Sirak denied paying any of their bills.

{¶10} The complaint recites various incidents which appellant urges demonstrate physical and psychological elder abuse and exploitation. The culminating incident which prompted appellant to file the lawsuit was Eleanor Sirak's execution of a Transfer on Death (hereinafter TOD) designation affidavit in favor of Gail Arenstein. Appellant alleges when he questioned Eleanor Sirak she did not recall signing the affidavit, and did not understand its significance. Eleanor Sirak allegedly told appellant she changed her name on some documents to the Estate of Eleanor Sirak. Eleanor Sirak stated the documents were supposed to make her will read better. She also allegedly told appellant appellees checked her credit score. Appellant alleged appellee G. Gregory Arenstein did the estate planning for Eleanor. Appellant indicates he believes there may be joint ownerships and/or more TOD affidavits from Eleanor to Gail.

{¶11} Essentially the complaint alleged first, that appellees had obtained Eleanor Sirak's signature on the deed by means of deception. Secondly, appellant claimed wrongful conversion of an elderly person's assets, which he alleges will be demonstrated when discovery was completed. Thirdly, he alleged tortious interference with an expectancy of an inheritance, in the fraudulent obtaining of the TOD document. Lastly, he alleges discovery may uncover a power of attorney executed in Gail Arenstein's favor which would then give rise to an action for conversion of property by a fiduciary. Appellant believed discovery might demonstrate Eleanor Sirak signed a Power of Attorney in favor of Gail Arenstein.

{¶12} Appellant asserted there could be evidence of criminal activity as well.

{¶13} Appellant's demand for relief asked the court:

{ΒΆ14} (1) to issue a declaratory judgment finding the elements of tortious intentional interference with an expectancy of an inheritance were proven and a finding he is entitled to one-half of Eleanor Sirak's gross estate, with a specific finding the TOD disposition of ...


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