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Lance v. Boldman

Court of Appeals of Ohio, Ninth District, Wayne

January 8, 2018

ROGER LANCE, et al. Appellants
PEGGY BOLDMAN, et al. Appellees


          CHARLES A. KENNEDY, Attorney at Law, for Appellants.

          CRAIG R. REYNOLDS, Attorney at Law, for Appellee.

          DANIEL J. HOSTETLER, Attorney at Law, for Appellee.


          LYNNE S. CALLAHAN Judge

         {¶1} Appellants, Roger Lance, Todd Lance, David Lance, Joel Lance, Gregory Lance, Charles Lance, Gary Lance, and Melodie Kinzel ("the Complainants")[1] appeal the judgment of the Wayne County Common Pleas Court, Probate Division which found Appellee, Peggy Boldman, not guilty of concealing and/or embezzling the assets of the estate of Raymond Lance ("the Estate"). For the reasons set forth below, this Court affirms in part and reverses in part.


         {¶2} Raymond Lance ("Uncle Bill") never married and did not have any children. He, however, had siblings, nieces, nephews, and great nieces. Ms. Boldman was one of Uncle Bill's nieces.

         {¶3} Uncle Bill resided by himself on the family farm. Following a fall at home, Uncle Bill was placed in a nursing home where he remained until his death. Prior to his admission to the nursing home, Uncle Bill appointed Roger Lance as his attorney-in-fact. Despite this appointment, Ms. Boldman was handling Uncle Bill's financial affairs.

         {¶4} Shortly after Uncle Bill's admission to the nursing home, some of his family members filed an application for a guardianship, which Ms. Boldman contested on Uncle Bill's behalf. Following a family meeting, it was agreed that Ms. Boldman would handle Uncle Bill's affairs, he would remain in the nursing home, and the guardianship application was withdrawn.

         {¶5} Six months after his admission to the nursing home, Uncle Bill revoked the earlier power of attorney appointing Roger Lance as his attorney-in-fact, and executed a general durable power of attorney appointing Ms. Boldman and Mr. Johnson[2] as his attorneys-in-fact. He also executed a new will the same day.

         {¶6} As his attorney-in-fact, Ms. Boldman assisted Uncle Bill with his finances. She facilitated the payment of the nursing home invoices through long term care insurance, income from social security and workers' compensation, Uncle Bill's own funds, and Medicaid. Prior to Uncle Bill passing away, Ms. Boldman closed his checking account and used the funds to pay his bills. The Complainants asserted that Ms. Boldman kept the monies from the insurance proceeds, refunds from the nursing home, and the funds from the closed checking account for her own use.

          {¶7} Additionally, Ms. Boldman facilitated Uncle Bill's directives to gift a guitar and mandolin to his great nieces, Ms. Boldman's daughters, J.W. and J.C. Upon Uncle Bill's placement in the nursing home, Ms. Boldman removed the guitar and mandolin from his home to ensure they were not damaged or thrown out while the house was being cleaned. According to Ms. Boldman and her daughters, during the preceding 20 years Uncle Bill had expressed to them on various occasions his desire to give the guitar to J.W. and the mandolin to J.C, he was aware that the guitar and mandolin were given to the great nieces, and he did not object.

         {¶8} The eight Complainants filed a complaint against Ms. Boldman for concealing and/or embezzling the assets of the Estate, challenged Uncle Bill's competency to execute the general durable power of attorney, and claimed Mr. Johnson failed to file an inventory. A hearing was held on the complaint. Ms. Boldman, her daughters, J.W. and J.C, and Melodie Kinzel, one of the Complainants, testified at the hearing.

         {¶9} The probate court dismissed the claim against Mr. Johnson because an inventory was filed subsequent to the complaint. Additionally, the probate court dismissed the claims of Joel Lance, Gregory Lance, Charles Lance, and Gary Lance for failure to prosecute, and they do not challenge that portion of the judgment. Accordingly, this Court declines to address the assignments of error as they relate to these Appellants and the probate court's dismissal of these Appellants' claims for failure to prosecute is affirmed.

         {¶10} As to the claims of Roger Lance, Todd Lance, David Lance, and Melodie Kinzel ("the Heirs"), the probate court found Uncle Bill competent to execute the power of attorney and Ms. Boldman not guilty of concealing/embezzling the Estate's assets. The Heirs have timely appealed this judgment by asserting two assignments of error. To facilitate the analysis, this Court will address the assignments of error out of order.




         {¶11} In the second assignment of error, the Heirs argue that the probate court erred when it admitted certain testimony of Ms. Boldman and her two daughters, J.W. and J.C., regarding Uncle Bill's statements as to his intention to gift the guitar to J.W. and the mandolin to J.C. Specifically, they argue that the statements were hearsay and not subject to admission under Evid.R. 804(B)(5). For the reasons that follow, this Court agrees.

         {¶12} The decision to admit or exclude evidence lies in the sound discretion of the trial court. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 79. Accord Drew v. Marino, 9th Dist. Summit No. 21458, 2004-Ohio-1071, ¶ 8-9, 16 (abuse of discretion standard applied to court's exclusion of decedent's statements under Evid.R. 804(B)(5)). "A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by evidence, or grossly unsound." (Internal citations and quotations omitted.) Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 21.

         {¶13} The first witness was Ms. Boldman and she was initially examined by the Heirs. As to the guitar and mandolin, the Heirs limited their examination of Ms. Boldman to her and her daughters' possession of the musical instruments, their lack of payment for the instruments, and the value of the instruments. The Heirs did not make any inquiry as to why Ms. Boldman and her daughters possessed the instruments or Uncle Bill's intentions as to the instruments.

         {¶14} After the Heirs' examination of Ms. Boldman she was questioned by her attorney. With regard to the guitar and mandolin, Ms. Boldman's attorney specifically asked her why she gave the guitar and mandolin to her daughters, if Uncle Bill was aware of the gifting of the instruments, what Uncle Bill's intentions and wishes as to the disposition of the guitar and mandolin were, and if his intentions ever changed. Ms. Boldman testified that "Uncle Bill had always said, [J.W.] was the only one in the family that" he wanted to give the guitar to and it was his intention to give J.C. the mandolin. According to Ms. Boldman's testimony, Uncle Bill made his intentions regarding these instruments known on different occasions during the 20 years before his death and his intentions never changed. Ms. Boldman testified that Uncle Bill was aware that the instruments had been given to his great nieces and he did not object.

         {¶15} Ms. Boldman's counsel asked similar questions to both of her daughters during their examinations. Both of the daughters' testimony mirrored Ms. Boldman's testimony as to Uncle Bill's donative intent relative to the instruments.

         {¶16} The Heirs repeatedly asserted hearsay objections to this line of questioning directed to Ms. Boldman and her daughters. The probate court sustained the first objection, but overruled the remaining objections. At the conclusion of Ms. Boldman's examination by all of the parties, the probate court clarified its position regarding her testimony concerning Uncle Bill's statements: "there were a series of objections to statements made by the deceased regarding his intentions and as [the court] said, [it would] admit those and assign [the] appropriate weight and [the court] believe[s] that falls within [Evid.R.] 804(B)(5)."

         {¶17} In its decision, the probate court held that Ms. Boldman's testimony regarding Uncle Bill's statements was admissible because the testimony was derived while she was on cross-examination to rebut the assertion that she concealed assets. The probate court's ruling, however, is not supported by the law or the record.

          {¶18} "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). "[Statements made by a decedent would fall under the general prohibition against hearsay." Mancz v. McHenry, 2d Dist. Montgomery No. 24728, 2012-Ohio-3285, ¶ 27.

         {¶19} Hearsay statements are inadmissible except as otherwise provided in the Ohio Rules of Evidence or other relevant constitutional or statutory provision. Evid.R. 802. One such hearsay exception is found in Evid.R. 804(B)(5), the "[statement by a deceased or incompetent person" provision, which excepts from the hearsay rule admissions ...

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