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In re Estate of Green

Court of Appeals of Ohio, Twelfth District, Warren

February 26, 2018



          Danny M. Green appellant/cross-appellee, pro se

          David D. Brannon, for appellee/cross-appellant, Jennifer M. Ritchie, Administrator


          S. POWELL, J.

         {¶ 1} Appellant/cross-appellee, Danny M. Green, appeals from the decision of the Warren County Court of Common Pleas, Probate Division, in a case involving the distribution of assets from the estate of Lenna M. Green. Appellee/cross-appellant, Jennifer M. Ritchie, as the administrator with Will Annexed of the estate, also appeals from that decision. For the reasons outlined below, we affirm the probate court's decision as modified.

         The Parties

         {¶ 2} Lenna M. Green ("Lenna") and Graydon L. Green ("Grady") were married in Springfield, Ohio on June 5, 1965. During their marriage, Lenna and Grady had four children; namely, Danny M. Green ("Danny"), Bryan L. Green ("Bryan"), Jennifer M. Ritchie ("Jennifer"), and Gwendolyn S. Kellum ("Gwendolyn"). After being married for over forty years, Lenna and Grady were divorced on March 19, 2009. As part of their divorce decree, Lenna was named the "sole owner" of the family's business interests in Pools & More ("Pools & More"), a business that engaged in the sale, distribution, and servicing of pools and pool supplies.

         {¶ 3} On October 20, 2009, Lenna died leaving a last will and testament bequeathing her estate assets equally to her four children, Danny, Bryan, Jennifer, and Gwendolyn. Since Lenna's passing, it is undisputed that Bryan, who at one time served as an attorney for the estate, gave up the practice of law after placing his law license on inactive status. The record indicates Bryan now works at a Kohl's warehouse and picks up side jobs working on pools. It is also undisputed that Gwendolyn has spent a significant amount of time behind bars due to her ongoing battle with drug addiction, whereas Danny, who appears in this case pro se, is currently serving nine years in prison after being convicted of rape.[1] Although this court is unable to comment on the current status of their relationship, suffice it to say that Grady, Danny, Bryan, Jennifer, and Gwendolyn were not on good terms after Lenna's passing.

         Facts and Procedural History

         {¶ 4} As the probate court stated, "[t]o say this [case] is a complete and utter mess is a major understatement." We agree. We also agree with the probate court's assertion that "[i]f anyone was looking for a case which would underscore the importance of following court procedure, they wouldn't have to look any further than this case."[2] Nevertheless, although faced with what the probate court considered the most poorly managed and mishandled estate it had ever seen, after undertaking a thorough review of the record properly before this court, including several hundred pages of bank records, we find the following facts established.

         {¶ 5} On May 3, 2010, several months after Lenna's passing, Danny filed an application with the probate court requesting he be named the administrator with Will Annexed of his mother's estate. In support of this application, Danny submitted his mother's last will and testament, which, as noted above, bequeathed her estate's assets equally to her four children, Danny, Bryan, Jennifer, and Gwendolyn. Approximately two weeks later, on May 25, 2010, the probate court appointed Danny as the administrator of the estate and his brother, Bryan, was retained as counsel for the estate. At the time Bryan was retained as counsel for the estate, although not generally working on probate and estate matters, it is undisputed that Bryan was a properly licensed attorney within the State of Ohio.

         {¶ 6} On March 30, 2011, after an appraiser had been appointed for the estate, Danny submitted an inventory and appraisal of the estate's assets to the probate court indicating the estate had six assets worth a grand total of $548, 500. Specifically, the schedule of assets Danny submitted to the probate court listed the following:



9093 Heritage Rd.

$119, 900

1/2 interest of 40 acres on Friend Rd.

75, 000

Debt owed From Grady Green upon Sale of Property

156, 000

Pools & More Business (84% Interest)

187, 600

2000 Lincoln Navigator

4, 000

Household furnishings

6, 000

         {¶ 7} As a point of contention, Pools & More was appraised by Gail Berry, a certified appraiser employed by Sibcy Cline Realtors. According to Berry, at the time of Lenna's death, Pools & More had a total value of $223, 300, "[a]ll value being placed on inventory and no dollar value on the business entity." In explaining this appraisal further, Berry stated, in pertinent part, the following:

Justification for valuing the business entity at $0 is as follows:
1) This business, as any business, is highly dependent upon the knowledge and expertise of the owners/managers, and therefore; marketable only to persons of trade specific knowledge.
2) Pools & More is acquired through divorce action. Court proceedings for previous 2 years regarding said divorce, gave the owner at that time, ample time to engage in behavior that has diminished the reputation and name value of Pools & More.
3) Following the death of Lenna M. Green; landlord of current location of Pools & More (ex-spouse to Lenna M. Green) has engaged in every attempt to evict this company from current location and/or raise the rent to a level unsustainable by the company. Should the landlord succeed in evicting the subject company from present location of business, Pools & More would not have a place to further conduct business.
4) It has been discovered, for the past nine (9) years previous to Lenna M. Green acquiring the company, Mr. Green (previous owner), failed to file corporate income tax returns. This neglect successfully makes this company more of a liability than an asset.

         {¶ 8} Concluding, Berry stated that it was her understanding that Bryan owned a "16% interest in Pools & More, making the value of Pools & More to the estate $187, 600."[3]Not until many years later does it appear anybody ever objected to Berry's appraisal of Pools & More at $233, 300, all of which was based on the business's inventory and not the business itself, nor to Berry's appraisal of the Friend Road property at $75, 000.

         {¶ 9} In the years following, Danny and Bryan distributed the six listed estate assets to themselves and to their two sisters, Jennifer and Gwendolyn. Although there were some exceptions, these distributions were usually done without the probate court's knowledge or approval. For instance, pursuant to what they believed to be a global agreement, Danny and Bryan took over the business operations of Pools & More in exchange for Jennifer receiving their mother's Heritage Road house. Unfortunately, although making every effort to keep the business afloat, Pools & More floundered, thus leading Grady, the owner of the property where the business was located, to file a forcible entry and detainer suit against the business. Although the suit was later settled, Pools & More was nevertheless dissolved and reestablished a short time later as BDG Enterprises, LLC dba Leisure Town.[4]

         {¶ 10} On January 3, 2013, Danny submitted an accounting to the probate court indicating he had distributed the Heritage Road property to Jennifer and, after he, Jennifer, and Gwendolyn executed a series of quitclaim deeds, the Friend Road property to Bryan. Following these distributions, Danny submitted additional accountings to the probate court indicating he had also distributed the 2000 Lincoln Navigator and the $156, 000 debt Grady owed to the estate to Gwendolyn. These additional accountings, one of which was considered Danny's final accounting of the estate, further indicated that Jennifer received her mother's household furnishings and a 2000 Ford Windstar, a vehicle the parties agree had never been listed as an estate asset.[5] Shortly after these distributions were made, Bryan sold the Friend Road property to a nearby farmer for $100, 000. It is undisputed that the farmer who purchased the Friend Road property had previously leased that same property in 2011 and 2012 for a total of $7, 400.

         {¶ 11} On January 15, 2014, Jennifer sent a letter to the probate court expressing her concern that her interest in her mother's estate may be impacted by Danny's recent imprisonment following his conviction for rape. As part of this letter, Jennifer also stated, in pertinent part:

I am aware that there is a long standing familial feud between my father "Grady" and my brothers, however it has nothing to do with me and yet I fear that as this feud continues I may be simply collateral damage in a family feud where my interest is of no concern.
Four years ago my father stood in front of me and told me that he would "bankrupt" the estate before he would allow the four "heirs" to take what he considered "his money." My mother passed a few short months after their divorce was final and my father to this day blames my brothers for it citing that they "talked her into it so that they could take his (Grady's) business away from him."

         {¶ 12} On February 28, 2014, upon learning Danny was in prison and Bryan was no longer a practicing attorney, the probate court appointed Jennifer to replace Danny as the administrator of the estate. Jennifer accepted her appointment as the administrator on March 19, 2014. A few months later, on July 10, 2014, Jennifer, as the administrator of the estate, filed a complaint against her father, Grady, and her three siblings, Danny, Bryan, and Gwendolyn, claiming they had concealed, embezzled, wrongfully retained, and/or wrongfully depleted the assets of the estate; most notably the estate's interest in the now defunct Pools & More. The complaint was brought pursuant to R.C. 2109.50, which provides that any interested party may file a proceeding in the probate court against any person alleged to have concealed, embezzled, conveyed away or in possession of monies or assets of an estate.

         {¶ 13} After a number of delays, the matter was tried to the probate court bench on October 11, 2016. Due to time constraints, the matter was then continued in progress until January 24, 2017 before being completed the following day on January 25, 2017. During trial, the probate court heard testimony from Grady, Danny (via video conference from the Chillicothe Correctional Institution), Bryan, Jennifer, and the nearby farmer who purchased the Friend Road property.[6] We note, however, that prior to hearing any witness testimony, the probate court rejected Danny and Bryan's claim that their mother's estate included only an 84% interest in Pools & More's "outstanding shares of stock." The probate court instead found that based on the language contained in Lenna and Grady's divorce decree, "[everything about that business is part of this estate, " such as its inventory and equipment, most of which had since been sold, "and we're going to hear about it." Concluding, the trial court stated:

I don't like it when families help to themselves, uh, and they don't follow the process and they throw it at me and I'm expected to read people's minds, and I have to decide what's true or not based upon what I hear in this witness box.
And I guarantee you, I'm going to hear at least a hundred things that you all are not going to agree to. And you're going to look at me and say, well, you tell me what happened. And I'm going to say, folks, I didn't even know you back then. I don't know you now. I don't know who's telling me the truth and who's not. Sometimes you can pick up on a few cues and see. I get to weigh credibility. But we're going to go back seven years. It's a mess.

         The record also indicates that after reconvening on January 24, 2017, the probate court prohibited Jennifer's expert witness from testifying at trial. The probate court also struck from the record that expert's appraisal of Pools & More that Jennifer attempted to submit as evidence. In so holding, the probate court stated:

[Y]ou can't just - when I start a trial and I have to continue it in progress because of a time limitation, that freezes everything. You don't get to go out there and shore up the rest of your evidence and pick up additional facts and additional witnesses, especially one as serious as an expert that was just thrown at them at the last minute.

         {¶ 14} After reviewing the lengthy transcript of the probate court proceedings, it is clear that Danny and Bryan believed they were administering the estate pursuant to a "global" agreement between themselves and their two sisters, Jennifer and Gwendolyn. However, not only did Danny and Bryan not obtain the probate court's approval to make many of these distributions, Jennifer specifically testified that she never entered into any such "global" agreement regarding the distribution the estate. Rather, as Jennifer testified:

It wasn't. It was never really talked about. I mean, we didn't like say, okay, well, you're going to get Friend Road and you're going to get Heritage Road and you're going to get this and you're going to get that. That didn't happen. Not around me.

         {¶ 15} Jennifer also testified that whenever she asked Danny and Bryan about the administration of the estate that she "was always told, we got this; I can explain it to you, but I can't understand it for you; just trust me." To this, Danny stated that "[t]here's a lot of Jenny's testimony that is absolutely a flat lie." Understandably frustrated, the probate court responded by stating, "I don't think I've ever seen anything handled so poorly in my life. And because of that, now we're going to have to try and - and resolve all these issues." Concluding, the probate ...

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