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Cain v. Panitch

Court of Appeals of Ohio, Tenth District

April 24, 2018

J. Richard Cain et al., Plaintiffs-Appellants,
v.
Harry F. Panitch et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas, Probate Division No. 502785A

         On brief:

          Morganstern, MacAdams & DeVito Co., L.PA., and Christopher M. DeVito, for appellants.

         Argued:

          Christopher M. DeVito.

         On brief:

          Kendo 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.

         Argued:

          Andrew M. Engel.

         On brief:

          Bryan & Brewer, LLC, and Jonathan M. Bryan, for appellee Ohio Casualty Insurance Company.

         Argued:

          Jonathan M. Bryan.

          DECISION

          BROWN, P.J.

         {¶ 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 Pleasant, Pennsylvania.

(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, 000.

         {¶ 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 ...


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