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In re Guardianship of Schwarzbach

Court of Appeals of Ohio, Tenth District

August 22, 2017

In the Matter of: Guardianship of Franz Schwarzbach, (Appellant).

         APPEAL from the Franklin County Prob. No. 574161 Court of Common Pleas, Probate Division

         On brief:

          Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, for appellant.

          Thomas Taneff Co., LPA, Thomas Taneff, and Taylor Sayers, guardian of appellant.

          Kincaid, Randall & Craine, and S. Brewster Randall, II, for appellee.


          Rick L. Brunner.

          Taylor Sayers.


          SADLER, J.

         {¶ 1} Appellant, Franz Schwarzbach, appeals from a judgment of the Franklin County Court of Common Pleas, Probate Division, overruling his objections to a magistrate's decision and appointing a guardian of the person and estate based on a finding that Schwarzbach is incompetent.


         {¶ 2} This matter began with an application filed on August 19, 2015, by appellee, Maria Starr, and Lois Starr-Schram in the probate court seeking to be appointed guardians of the person and estate, respectively, of Schwarzbach. The applicants generally expressed concern over Schwarzbach's alleged mental deterioration that accelerated with the passing of his wife in 2011. Starr is Schwarzbach's daughter, and Starr-Schram is Starr's mother-in-law. Through counsel, Schwarzbach opposed the appointment of a guardian, asserting that he was fully competent and capable of managing his own business and personal affairs. Although both Starr and Starr-Schram continued to be represented in the case through counsel, Starr-Schram eventually stepped aside from personal appointment as guardian, and the trial court chose to appoint attorney Thomas Taneff as guardian in its final judgment.

         {¶ 3} The evidence established that Schwarzbach was born in 1942 and came to the United States from his native Germany at the age of 18. His proficiency in the English language was a point of contention in proceedings before the magistrate. Initially employed as a welder, Schwarzbach soon entered a long and apparently prosperous career operating central Ohio adult nightclubs. At the time of guardianship proceedings, Schwarzbach remained in partnership with one Robert Hetzel, although the formal business arrangement between the two men was unclear. It appeared that Schwarzbach had recently conveyed some of his business interests to third parties, again on terms that are difficult to clarify.

         {¶ 4} Schwarzbach and his late wife Elizabeth had three children, Maria, Thomas, and Franz Jr., now deceased. Schwarzbach lives in a home on Lakewood Drive in Minerva Park, lately shared with a 25-year-old companion named Brittany Valenzuela, formerly a dancer in one of his clubs. Schwarzbach's son, Thomas, lives across the street in another house owned by Schwarzbach; they have a contentious relationship, in part because of Valenzuela's appearance in Schwarzbach's life.

         {¶ 5} Proceedings commenced before a magistrate in the probate court on September 3 and October 20, 2015. An agreed entry filed on September 3, 2015 reflected a limited agreement between the parties to maintain Schwarzbach's finances in an approximate status quo. This agreed entry limited all expenditures from Schwarzbach's assets except for living and operating expenses paid from his personal PNC bank account, with a stated balance of $60, 000. The parties executed a further agreed entry on November 16, 2015 authorizing an additional payment from other accounts in the amount of $17, 112.07 for Schwarzbach's taxes.

         {¶ 6} On February 20, 2016, Schwarzbach's current counsel on appeal began representation in the matter and filed a request pursuant to Rule 88 of the Ohio Rules of Superintendence stating that Schwarzbach required the services of an interpreter for further proceedings.

         {¶ 7} On March 31, 2016, Schwarzbach's new counsel requested a transfer of funds from the protected financial accounts into the PNC bank account for additional living expenses, including attorney fees and costs for the guardianship proceedings, litigation costs for a Northern District of Illinois case in which the same counsel represented a corporation partially owned by Schwarzbach, and a $40, 000 lease buyout for Schwarzbach's Porsche SUV. The funds transfer request also cites the need to pay for interpreter services and to pay real estate taxes. The magistrate denied some aspects of this request by order filed April 13, 2016 after a status conference before the magistrate held on March 31, 2016. Specifically with respect to attorney fees, the magistrate noted that fees could only be approved and paid pursuant to Loc.R. 71.5 of the Franklin County Court of Common Pleas, Probate Division, after establishment of a guardianship. The magistrate further noted that counsel had not itemized and substantiated fees, or even produced a fee agreement, for either the guardianship proceedings or the federal civil litigation. The magistrate approved translation services for future courtroom proceedings and deferred consideration of translation costs for out-of-court services on the same terms as for attorney fees. The magistrate authorized payment of taxes but denied authorization to purchase the Porsche SUV at lease term.

         {¶ 8} Schwarzbach filed a motion to set aside the magistrate's order, and on May 3, 2016, the court by judgment entry upheld the magistrate's order with some modifications with respect to attorney fees, authorizing transfer of $20, 000 into the PNC account for payment of fees, and noting that fees in the guardianship proceedings would remain subject to approval under local rule. Schwarzbach attempted to appeal that order to this court, and we dismissed for lack of a final, appealable order. In the Matter of the Guardianship of Schwarzbach, 10th Dist. No. 16AP-415 (Aug. 18, 2016) (journal entry of dismissal). Schwarzbach then unsuccessfully moved for reconsideration in the trial court on the fee issue.

         {¶ 9} A three-day substantive hearing on the merits before the magistrate then took place on October 20, 2015, May 5, and May 13, 2016. On May 27, 2016, the magistrate issued her report recommending that Schwarzbach be found incompetent and that a guardian be appointed for his person and estate. The magistrate preferred appointment of an independent third-party guardian, selecting attorney Taneff.

         {¶ 10} Schwarzbach filed objections to the magistrate's decision, supported by transcripts from the October 20, 2015 and May 13, 2016 hearing dates but omitting transcripts from the May 5, 2016 hearing date; although transcripts from all three days had been timely requested by Schwarzbach, the May 5 transcript was not timely filed with the objections. By decision and judgment entry rendered September 20, 2016, a visiting judge of the probate court overruled all objections, adopted the magistrate's decision in full, and confirmed appointment of attorney Taneff as guardian of Schwarzbach's person and estate.

         {¶ 11} On November 8, 2016, Schwarzbach filed with this court a motion to correct the record, seeking to supplement the record on appeal with information establishing that Schwarzbach's live-in housekeeper, Valenzuela, had been removed from the home. This filing properly belongs before the trial court in support of further post-judgment proceedings and will not be considered as part of the record on appeal. Appellate review is limited to the record as it ...

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