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Fetters v. Duff

Court of Appeals of Ohio, Third District, Mercer

February 12, 2018

GEORGE FETTERS, PLAINTIFF-APPELLANT,
v.
CATHY DUFF, DEFENDANT-APPELLEE.

         Appeal from Mercer County Common Pleas Court Probate Division Trial Court No. 20174001A

          William E. Huber for Appellant

          James A. Tesno for Appellee

          OPINION

          PRESTON, J.

         {¶1} Plaintiff-appellant, George Fetters ("Fetters"), appeals the October 2, 2017 judgment entry of the Mercer County Common Pleas Court, Probate Division dismissing his action against defendant-appellee, Cathy Duff ("Duff), for an accounting under R.C. 1337.36. For the reasons that follow, we affirm.

         {¶2} Fetters and Duff are brother and sister, and the underlying dispute concerns Fetters's allegations that Duff abused her position as attorney-in-fact for their mother, Phyllis Lauth ("Lauth"). Fetters was originally designated as Lauth's attorney-in-fact through a written power of attorney executed by Lauth in May 2015. (Doc. Nos. 4, 12). However, after serving as his mother's attorney-in-fact for three months, Fetters was removed by Lauth in August 2015. (Doc. No. 12). Lauth appointed Duff to serve as her attorney-in-fact in Fetters's place, a role Duff occupied until Lauth's death on April 18, 2016. (Id.).[1]

         {¶3} On July 13, 2016, Fetters, by letter, requested that Duff render an accounting of her time as Lauth's attorney-in-fact. (Doc. Nos. 1, 12). Duff did not produce an accounting in response to Fetters's demand. (Doc. No. 1).

         {¶4} On January 24, 2017, Fetters filed, in the Probate Court, a complaint under R.C. 1337.36 requesting an accounting of Duff s tenure as Lauth's attorney-in-fact. (Doc. No. 1).

         {¶5} Duff filed her answer on March 2, 2017. (Doc No. 4). Duff s March 2, 2017 pleading also set forth a counterclaim against Fetters under R.C. 1337.36 requesting that Fetters be ordered to render an accounting for the brief period of time during which he served as Lauth's attorney-in-fact. (Id.).

         {¶6} In the following months, Fetters and Duff exchanged position memoranda and reply briefs. (See Doc. Nos. 9, 12, 13, 14, 15). Fetters filed his "Memorandum of Plaintiff on May 17, 2017. (Doc. No. 9). Duff submitted her "Defendant's Memorandum" on May 22, 2017. (Doc. No. 12). Fetters submitted his "Response to Memorandum of Defendant" on May 25, 2017. (Doc. No. 13). Duff filed her "Defendant's Response Memorandum" on June 5, 2017. (Doc. No. 14). On June 12, 2017, Fetters filed his "Response to Defendant's Response Memorandum." (Doc. No. 15).

         {¶7} A final hearing on Fetters's complaint and Duff's counterclaim was held on August 24, 2017. (See Doc. Nos. 17, 22).

         {¶8} On October 2, 2017, the trial court dismissed Fetters's complaint and Duff's counterclaim. (Doc. No. 22).[2] In its entry, the trial court noted that "[n]o challenges to the inventory or accounting, or other actions were filed in the estate case while it was opened." (Id.). The trial court concluded: "The Court finds that the purpose of the law in the ORC is to provide for finality in estates." (Id.).

         {¶9} On October 25, 2017, Fetters filed a notice of appeal. (Doc. No. 23). Fetters raises one assignment of error.

         Assignment ...


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