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In re Estate of Rotilio

Court of Appeals of Ohio, Seventh District

June 24, 2013

IN RE: ESTATE OF VIGO J. ROTILIO

Civil Appeal from the Court of Common Pleas, Probate Division, of Belmont County, Ohio Case No. 10 ES 476

For Estate of Vigo J. Rotilio, and Michael V. Rotilio, Atty. John A. Vavra.

For Patty J. Rotilio: Patty J. Rotilio, Pro Se.

JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.

OPINION

WAITE, J.

{¶1} Appellant, Patty J. Rotilio, cared for her ailing parents. After her mother's death, her father had a stroke and upon his recovery executed a power of attorney to allow her to take certain actions regarding his property, among other things. While her father was hospitalized in 2009, Appellant transferred three parcels of her father's land. The first two she transferred to herself and her father with survivorship rights, the third she transferred to herself and her brother, Michael V. Rotilio, Appellee, also with survivorship rights. She and her brother are their father's only heirs. Appellant executed the transfers before her father died intestate. Appellant's brother was appointed administrator of the estate. Appellee, as the administrator of the estate and in his individual capacity, filed a complaint for recovery of assets under R.C. 2109.50 against Appellant. After a hearing, the probate court invalidated the transfers, found Appellant guilty, ordered the return of the land to the estate, and imposed a 10% penalty and attorney's fees on Appellant using authority found in R.C. 2109.52.

{¶2} Ohio Revised Code section 2109.50, by its terms, does not apply to real property. Application of this section was not proper in this instance. Although the probate court does have the power under other statutes to invalidate the transfers and return the property to the estate, the 10% penalty and attorney's fees should not have been assessed against Appellant. The probate court's judgment is reversed in part and the matter remanded for further proceedings.

Factual and Procedural History

{¶3} At some point in 2006, Vigo J. Rotilio had a stroke. Due to his inability to fully care for himself, he executed a durable general power of attorney on February 21, 2006, listing first his daughter and then his son, and giving both of them the ability to take care of his needs. The power of attorney was broad and allowed his children to address both medical and financial needs, including the transfer of real estate. His daughter, Appellant, Patty J. Rotilio, appears to have then assumed sole responsibility for the care of her father. She lived with him at his Wagner Ave. property, routinely signed documents for him, and assisted with his medical care. At the time the power of attorney was executed, Appellant had been living with her parents for at least a decade. According to her testimony, in December of 2008, Appellant asked her brother to attend a financial planning seminar with her to learn about options for the management of their father's property if he required additional or different medical services through Medicare. (Tr., pp. 19-20.) Appellant and her brother attended the seminar, but apparently did not discuss further estate planning until July of 2009. According to Appellant, in July of 2009 she reminded her brother about the seminar and that if their father had "too much" property in his name he would not quality for Medicare and that the laws pertaining to Medicare included a five-year look back period for property transfers. (Tr., p. 20.)

{¶4} On July 20, 2009, Appellant transferred the Wagner Ave. property to her father and herself by general warranty deed with survivorship rights. According to Appellant's testimony at the probate court hearing on the complaint for concealment of estate assets subsequently filed by her brother, her brother was at the meeting with the attorney for the execution of transfer, but left angrily part way through the meeting. (Tr., pp. 16-17.) On July 22, 2009 Appellant transferred a second parcel of her father's property, Winding Hill, to herself and her brother, her father's only surviving heirs, with survivorship rights. There appear to be other properties owned by Mr. Rotilio which were not transferred on either date, and devolved to the estate. (Tr., p. 27.) Mr. Rotilio was not present during either of the 2009 transfers, because he was hospitalized. On July 24, 2009 Mr. Rotilio died intestate.

{¶5} According to Appellee Michael Rotilio, he did attend the seminar. Appellee testified that there was no discussion of estate planning between the siblings post-seminar, until he got a phone call from Appellant asking him to come to a lawyer's office in early July so that they could transfer the various properties out of their father's name. (Tr., p. 28.) According to Appellee, Appellant wanted to transfer all the properties into her name. Rather than allow this, Appellee asked that the Winding Hill property be transferred into his name only. Appellee maintained that he only wanted the Winding Hill property "which I have taken care of for the last ten to fifteen years." (Tr., p. 26.) When Appellant would not agree to transfer the Winding Hill property solely to him, Appellee refused to sign anything and, although the lawyer told them they needed to settle the transfers between them, he left the office. Appellee wanted the Winding Hill property, which adjoins his own property, even though Appellant has a mobile home located on this property. According to Appellee, there is also a house on the Winding Hill property that is falling apart and needs to be razed. Appellee testified that he did not learn that his sister had completed the two July, 2009 transfers of their father's property until April of 2010 when he looked "on line at the property taxes." (Tr., pp. 29-30.)

{¶6} On October 5, 2010 Appellee filed an application to be appointed as administrator of his father's estate. According to the application the deceased died intestate with two surviving children, Appellee and Appellant, his sister. Appellant was notified of a hearing on the application for appointment and did not contest the appointment. Appellee was appointed administrator of the estate on October 29, 2010. On December 29, 2010 he filed a complaint against his sister for embezzlement, concealing, or conveying assets of the estate, in both his personal capacity and as administrator of the estate.

{¶7} A hearing on the complaint was held on February 25, 2011. At the conclusion of the hearing, the probate court verbally stated that: "Patty J. Rotilio did convey, improperly, assets belonging to the estate through an improper use of a power of attorney which did not contain a provision allowing self-dealing, and even if it did, the Court ...


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