REGINALD JOHNSON, ET AL. Plaintiffs-Appellants
ROBIN JOHNSON Defendant-Appellee
from the Stark County Court of Common Pleas, Probate
Division, Case No. 225072
Plaintiffs-Appellants TIMOTHY B. PETTORINI SARA E. FANNING
Roetzel & Andress, LPA
Defendant-Appellee STANLEY R. RUBIN
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B.
Hoffman, J. Hon. John W. Wise, J.
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
OF THE FACTS AND CASE
Appellants are the five adult children and three
grandchildren of Fred Johnson ("Decedent").
Appellee is Decedent's second wife.
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,
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.
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.
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monies withdrawn from Decedent's 401(k) plan and titled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.
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.
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