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Johnson v. Johnson

Court of Appeals of Ohio, Fifth District, Stark

June 5, 2017

REGINALD JOHNSON, ET AL. Plaintiffs-Appellants
v.
ROBIN JOHNSON Defendant-Appellee

         Appeal from the Stark County Court of Common Pleas, Probate Division, Case No. 225072

          For Plaintiffs-Appellants TIMOTHY B. PETTORINI SARA E. FANNING Roetzel & Andress, LPA

          For Defendant-Appellee STANLEY R. RUBIN

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          Hoffman, J.

         {¶1} Plaintiffs-appellants Reginald Johnson, et al. appeal the September 12, 2016 Judgment Entry entered by the Stark County Court of Common Pleas, Probate Division, which granted summary judgment in favor of Defendant-appellee Robin Johnson.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Appellants are the five adult children and three grandchildren of Fred Johnson ("Decedent"). Appellee is Decedent's second wife.

         {¶3} Decedent executed his Last Will and Testament on June 3, 2010 ("the Will"). Attorney Don Caplea prepared the Will at Decedent's request. Pursuant to the terms of the Will, Decedent appointed Appellee as Executor of his Estate, and bequeathed any and all of his real property as well as the residual of the Estate to Appellee. Decedent passed away on July 6, 2015, at the age of 88. Appellee applied to probate the Will, which the trial court granted on September 17, 2015.

         {¶4} On December 15, 2015, Appellants filed a will contest against Appellee, challenging the validity of the Will. Appellants alleged Appellee exerted undue influence upon Decedent to execute the Will. Appellee filed an answer and counterclaim. In her counterclaim, Appellee asserted Appellants' complaint was frivolous. Appellee filed a motion for summary judgment on August 10, 2016. Appellants filed a memorandum in opposition on August 26, 2016.

         {¶5} The evidence presented during the summary judgment proceedings established Appellants did not like Appellee. Appellee and Decedent met in the early 1980's, and were married in June, 2002. Decedent was 35 years older than Appellee. Appellee and Decedent were happily married, and cared for each other during periods of health problems throughout their marriage.

         {¶6} Appellants believed Appellee excluded them from decisions regarding Decedent's medical treatments, and failed to notify them when Decedent was hospitalized. Appellants also thought Appellee controlled Decedent's decisions regarding his property and finances. Appellants further contended Appellee purchased two rental properties with monies withdrawn from Decedent's 401(k) plan and titled the properties in only her name. In his Affidavit, Appellant Calvin Johnson, Decedent's grandson, averred Decedent was unaware of the purchases until he received a tax bill in the mail. Affidavit of Calvin Johnson at para. 5(b). Appellant Calvin Johnson stated he witnessed Decedent "become upset even irate at purchases made by [Appellee] without his knowledge and consent." Id. at para. 5. He added he observed Appellee improperly and unduly influence Decedent to act in ways Decedent would not have acted otherwise. Id. at para. 7.

         {¶7} Appellant Reginald Johnson, Decedent's son, had owned the home in which Decedent and Appellee were residing. Deposition of Robin Johnson at 15. Appellant Reginald Johnson indicated Appellee was not happy the residence was not in her and Decedent's names, and insisted Appellant Reginald Johnson transfer the house to them. Deposition of Reginald Johnson at 14. Appellant Reginald Johnson recalled a telephone conversation with Decedent during which he heard Appellee yelling in the background, "Get the house. Get the house." Id. In their memorandum in opposition to summary judgment, Appellants concluded this situation demonstrated Appellee influenced Decedent to ensure the house was transferred and, if Decedent truly wanted the house transferred, "it would have been unnecessary for [Appellee] to be in the background yelling." Plaintiffs' Memorandum in Opposition to Defendant Robin Johnson's Motion for Summary Judgment at 8.

         {¶8} Appellants also presented the Affidavit of Judge Frank Forchione. In his Affidavit, Judge Forchione stated he prepared a last will and testament for Decedent "on or around 2009", while he was still in private practice. Affidavit of Judge Frank Forchione at para. 3. Judge Forchione noted the will "included bequests to his children." Id. Judge Forchione did not retain a copy of the will. Id. at para. 4. He further stated, "If [Decedent] would have requested that I prepare estate planning documents, including a Will, that would have disinherited his children, I would have declined to prepare ...


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