J. Richard Cain et al., Plaintiffs-Appellants,
Harry F. Panitch et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas, Probate
Division No. 502785A
Morganstern, MacAdams & DeVito Co., L.PA., and
Christopher M. DeVito, for appellants.
Christopher M. DeVito.
Dulaney LLP, and Andrew M. Engel; William H. Dulaney, III,
for appellees Harry F. Panitch, Individually and as Executor
of the Estate of Ruth Freed.
& Brewer, LLC, and Jonathan M. Bryan, for appellee Ohio
Casualty Insurance Company.
Jonathan M. Bryan.
1} This is an appeal by plaintiffs-appellants, J.
Richard Cain (individually "Cain"), Cheryl
Lewandowski (individually "Lewandowski"), and the
Estate of Roy Greenawalt (individually "the Greenawalt
Estate"), from a judgment of the Franklin County Court
of Common Pleas, Probate Division ("the probate
court"), denying appellants' motion for summary
judgment and granting summary judgment in favor of
defendants-appellees, Harry F. Panitch (individually
"Panitch"), the Estate of Ruth Freed (individually
"the Freed Estate"), and Ohio Casualty Insurance
Company (individually "OCI").
2} The following background facts, essentially not
in dispute, are drawn primarily from the probate court's
summary judgment decision. Roy Greenawalt (hereafter
"the decedent"), died testate on May 1, 2004. The
decedent's will named William A Bricker
("Bricker") as the beneficiary of the
decedent's estate. In the event Bricker predeceased the
decedent, the entirety of the decedent's estate was to
pass to the decedent's sister, Ruth Cain (hereafter
"Ruth Cain"), based on the following directive:
Second, I give, devise, and bequeath all my personal property
to WILLIAM A. BRICKER of Reynoldsburg, Ohio 43068.
Third: Should WILLIAM A. BRICKER, predecease me, or should he
and I be deceased in a common accident, I give, devise, and
bequeath my entire estate to my sister, RUTH CAIN, of Mount
(Oct. 31, 2016 Decision & Entry at 3.)
3} Bricker, who was unrelated to the decedent,
predeceased both the decedent and Ruth Cain. The
decedent's sibling, Ruth Cain, also predeceased the
decedent. The decedent's next of kin were ten nieces and
nephews, including appellants Cain and Lewandowski (the
children of Ruth Cain).
4} On May 26, 2004, the decedent's estate was
opened. Attorney Ruth Freed ("Freed") applied to be
administrator of the decedent's estate; Freed's son,
Panitch, an attorney employed by Freed's law firm, signed
as her attorney for the estate.
5} On June 7, 2004, Freed was appointed
administrator of the decedent's estate. The original bond
on the estate was set at $600, 000, which Freed posted from
OCI. Subsequent to an inventory filed October 12, 2004, an
additional bond in the amount of $589, 000 was posted for a
total of $1, 189, 000 (as assets totaled approximately $700,
000 for the estate).
6} The estate filings included a "Waiver of
Notice of Probate of Will from all ten nieces and nephews,
including * * * Cain and * * * Lewandowski, filed on August
2, 2004." The probate court noted that Cain and
Lewandowski "were aware of the administration of the
estate" based on conversations with Freed (during the
pendency of the action), as well as from written
correspondence by both Freed and Panitch regarding the
estate. The probate court cited a letter from Panitch to Cain
and Lewandowski, dated May 12, 2005, in which Panitch
indicated the estate would be divided among the ten nieces
and nephews of the decedent according to the statute of
descent and distribution because the named beneficiaries in
the will had both predeceased the decedent.
7} On August 26, 2005, Freed filed a first account
for the decedent's estate, indicating disbursements to
beneficiaries in the amount of $572, 662.60, representing ten
shares of $57, 266.26 distributed to each of the ten nieces
and nephews of the decedent. On September 29, 2005, an entry
was filed reducing the bond amount from $1, 189, 000 to $3,
8} The probate court entered an order setting a
hearing on the first account, and Cain and Lewandowski were
served with notice of the hearing. No objections were filed
to the first hearing, and the probate court filed an entry on
October 11, 2005 approving and setting estate accounts for
the first account.
9} Cain and Lewandowski, as well as the
decedent's other nieces and nephews, consented to both
the fiduciary fees and attorney fees. Specifically, on
November 17, 2004, a "consent to attorney fee" form
was filed providing for payment of fiduciary fees to Freed in
the amount of $15, 000, and for attorney fees to Panitch in
the amount of $10, 000; further, on May 31, 2005, a consent
to attorney fee form was filed providing for payment of
fiduciary fees to Freed in the amount of $25, 000, and
attorney fees to Panitch in the amount of $43, 500.
10} On December 16, 2005, Freed filed the final
account; Cain and Lewandowski were served with the final
account, and they both received an additional distribution of
$881.14. The probate court set a hearing date on the final
account, and no objections were filed. On January 30, 2006,
the probate court filed an entry approving the final account.
11} On September 5, 2013, Freed passed away. The
Freed Estate was opened on September 10, 2013, and Panitch
was appointed executor of her estate.
12} Approximately one year after Freed's death,
attorney Timothy Howard discovered $106, 838.40 in the name
of Roy Greenawalt in the Ohio Division of Unclaimed Funds.
Howard contacted Cain and Lewandowski in an attempt to
collect the funds on their behalf based on Howard's
understanding that Cain and Lewandowski, as the issue of Ruth
Cain, were the proper beneficiaries of the estate; it was at
that time Cain and Lewandowski received ...