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In re Guardianship of Bahktiar

Court of Appeals of Ohio, Ninth District, Lorain

May 7, 2018

IN RE: GUARDIANSHIP OF FOUROUGH BAHKTIAR

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 2013GI00040

          BRADLEY HULL, IV, Attorney at Law, for Appellant.

          ERIC ZAGRANS, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, PRESIDING JUDGE.

         {¶1} Appellant Dariush Saghafi appeals the judgment of the Lorain County Court of Common Pleas, Probate Division. For the reasons that follow, this Court affirms in part, reverses in part, and remands.

         I.

         {¶1} This matter arises from a guardianship with a long and arduous history. This Court summarized some of the previous history of this case in an earlier appeal as follows:

Mehdi Saghafi and Fourough Bakhtiar are both in their eighties and had been married for over 55 years when Mehdi filed an application for appointment as guardian of his wife's person based on allegations of her incompetence. On the same day, Dariush Saghafi, one of the couple's sons, filed an application for appointment as guardian of Fourough's estate. Another son, Kourosh Saghafi, D.O., executed the statement of expert evaluation appended to both applications. A month later, Fourough filed a complaint for divorce from Mehdi in the Cuyahoga County Domestic Relations Court. A couple days after that, the couple's only daughter, Jaleh Presutto, filed an application for appointment as guardian of her mother's person and estate. She appended a statement of expert evaluation conducted by a clinical neuropsychologist. Both experts who evaluated Fourough concluded that she was suffering from dementia. The Lorain County Probate Court subsequently found Fourough incompetent to care for herself and her property and determined that a guardianship was necessary. The probate court appointed Jaleh as interim guardian of her mother's person and Stephen Sartschev as interim guardian of Fourough's estate. Two days later, the probate court issued a judgment entry noting that it had conducted a pretrial during which all parties agreed that a guardianship was necessary for Fourough and that the court had appointed interim guardians. The trial court further prohibited the parties from proceeding with a final divorce hearing at that time.
This guardianship matter proceeded in a highly contentious manner among Fourough's various family members. In addition, other lawsuits pending in Cuyahoga County, including the divorce proceedings between Mehdi and Fourough; a civil action by Kourosh seeking to have Fourough's earlier executed powers of attorney declared invalid; a civil action by Mehdi against Jaleh; and a civil action by third parties against Mehdi and Fourough's guardians surrounding their refusal to transfer their interest in certain real estate pursuant to a real estate contract, all intertwined and served to complicate these matters to a greater extent.
Subsequently, Kourosh filed an application for appointment as guardian of his mother's person and estate. In addition, Mehdi and his sons filed multiple motions to have Fourough evaluated by an independent forensic psychiatrist and independent physician notwithstanding the parties' stipulation of incompetency and agreement that Fourough needed a guardian and that the probate court had appointed interim guardians for the ward and her estate. Mehdi and his sons further repeatedly sought to remove and/or limit the authority of Jaleh as her mother's guardian. The probate court denied those requests. It continued to prohibit the parties from proceeding with a final divorce hearing.
More than a year after the first application for appointment of a guardian was filed, the parties and attorneys involved in this matter, as well as some of the other legal matters involving this family, exhibited ongoing contentious and accusatory behaviors. While Fourough had two interim guardians, she also had her own attorney (Stephen Wolf) who moved to replace the guardian for the estate (Mr. Sartschev) who allegedly was no longer permitted to hold a fiduciary position. Mr. Wolf applied to the probate court to be permitted to "step in and take over as guardian of the estate[.]" Other members of Fourough's family challenged Mr. Wolf's application, asserting that his involvement with this matter, as well as his representation of Jaleh's husband in a criminal matter, prevented him from being a disinterested guardian. Mr. Sartschev informed the probate court that he was required to resign as guardian of the estate, and the trial court accepted his resignation. The probate court further removed Jaleh as guardian of the person and appointed attorney Zachary Simonoff as interim guardian of both the person and estate of Fourough. Mr. Simonoff filed a formal application for appointment as guardian. The probate court issued letters of guardianship of the estate to Mr. Simonoff and denied all other pending applications for guardian of the estate.
The court further issued letters of guardianship to Mr. Simonoff as guardian of Fourough's person, pending final hearing on the matter. Again, the probate court ordered that neither the parties nor the guardian may proceed with a final divorce hearing relative to Mehdi and Fourough.
A year-and-a-half after the initiation of this guardianship case, the probate court held a final hearing and issued a final judgment disposing of the pending applications. It denied the applications for guardianship filed by Mehdi Saghafi, Dariush Saghafi, and Kourosh Saghafi. It issued letters of guardianship of the person of Fourough to Jaleh Presutto and letter of guardianship of the estate of Fourough to Zachary Simonoff. [In] addition, the probate court ordered Fourough's attorney, Stephen Wolf, to "file [a] brief with Court on issue of divorce of the Ward." The court granted a 21-day period for responses to Attorney Wolfs brief.
Fourough, through Attorney Wolf, moved for an order allowing Mehdi and Fourough to proceed with a final divorce hearing. The guardian of the estate filed a brief in support. Mehdi filed briefs in opposition to both. Upon consideration of the briefs, the probate court ordered that "the Guardian is to proceed in the Cuyahoga County Domestic Relations case through to final divorce."

In re Guardianship of Fourough Bakhtiar, 9th Dist. Lorain No. 15CA010721, 2016-Ohio-8199, ¶ 2-7 ("Bakhtiar I "). Mehdi and Fourough's divorce was finalized on October 3, 2014.

         {¶2} This Court summarized subsequent proceedings as follows in a later appeal,

In late 2015, [Dariush] Saghafi filed [a second] application for appointment as guardian and motions to remove Jaleh Presutto as guardian of person and Zachary Simonoff as guardian of estate. On January 7, 2016, Mr. Saghafi filed praecipes for subpoenas to be issued to Fifth Third Bank, Huntington Bank, the Cleveland Clinic, Nordstrom, Century Federal Credit Union, Allianz, and Visa. By its entry of January 20, 2016, the trial court stayed the subpoenas and set a hearing for February 9, 2016, "to establish if there is a basis for the motions by Darius Saghafi to proceed and the relevance of subpoenaed information." Mr. Saghafi subsequently filed a motion for relief from judgment, asking the trial court to lift the stay on the subpoenas and to cancel the hearing. After the hearing went forward as scheduled, the trial court denied Mr. Saghafi's application to be appointed as guardian and his two motions to remove, quashed the aforementioned subpoenas, and denied the motion for relief from judgment as moot.

In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 16CA010932, 2017-Ohio-5835, ¶ 3 ("Bakhtiar II "). On appeal, this court affirmed. Id. at ¶ 17.

         {¶3} The procedural history relevant to the present appeal is as follows. On or about May 11, 2016, the Lorain County Grand Jury indicted Jaleh Presutto on several non-violent felony charges unrelated to the guardianship. Consequently, Bakhtiar was moved from her daughter's house to a nursing home. On May 16, 2016, the probate court filed a judgment entry temporarily removing Jaleh Presutto as guardian of the person and, ex parte and without prior notice, re-appointed Simonoff as guardian of the person. The court simultaneously issued letters of guardianship to Simonoff as guardian of the person for the ward, Fourough Bakhtiar. That same day, Saghafi filed a pro se motion to remove Simonoff as guardian of the estate and a third application for appointment of guardian of alleged incompetent person and estate.

         {¶4} On May 18, 2016, Saghafi filed a pro se motion for temporary restraining order against Simonoff and Presutto, Presutto's husband, and Presutto's attorney in the Lorain County Court of Common Pleas, General Division. The matter was dismissed the following day for lack of jurisdiction. The Lorain County Court of Common Pleas, General Division denied Saghafi's subsequent Civ.R. 60(B) motion.

         {¶5} On May 24, 2016, Saghafi filed a motion for temporary restraining order in the probate court. Successively, Simonoff filed a motion to strike Saghafi's motion to remove guardian and motion for temporary restraining order and for sanctions pursuant to R.C. 2323.51 or in the alternative to hold Saghafi in contempt.

         {¶6} On June 3, 2016, Jaleh Presutto filed a motion to complete renovations or, in the alternative, to restore the home to its prior condition and an amended motion on June 22, 2016. In response, Saghafi filed a pro se brief in opposition to Presutto's amended motion.

         {¶7} Thereafter, on June 15, 2016, Saghafi filed a motion to strike Simonoff s motions or in the alternative, to dismiss the motions, a motion for sanctions against Simonoff, a motion for frivolous conduct against Simonoff, a motion to strike filings since May 16, 2016, and a request that the probate court proceed on his motions and application. Simonoff filed a response to Saghafi's motions on June 29, 2016.

         {¶8} On June 23, 2016, Presutto filed an amended motion to complete renovations or, in the alternative, to restore the home to its prior condition. On July 5, 2016, Saghafi filed a brief in opposition to Presutto's amended motion. Presutto thereafter filed a motion to strike Saghafi's brief in opposition. Saghafi, through counsel, filed a brief in opposition to Presutto's motion to strike his brief in opposition to Presutto's amended motion to complete renovations or, in the alternative, to restore home to its prior condition and for sanctions.

         {¶9} Also on July 5, 2016, Saghafi filed a pro se request for production of documents propounded upon Simonoff requesting an extensive list of documents relating to the guardianship. Simonoff did not respond to Saghafi's request.

         {¶10} On August 5, 2016, the probate court held an oral hearing on all of the pending motions, with the exception of the motions related to the renovations of the Presutto home and Saghafi's application for appointment of guardian.

         {¶11} On September 20, 2016, Saghafi filed a renewed request to obtain copies, inspect records and documents and a new request to obtain copies, inspect records and personal belongings. Saghafi also filed a subpoena duces tecum commanding a wireless company to produce all of the records relating to all forms of communication related to Simonoff. Thereafter, Simonoff filed a motion to stay discovery pending ruling on the motions subject to the August 5, 2016 hearing.

         {¶12} In an order filed September 23, 2016, the probate court found that Saghafi's motion to remove Simonoff as guardian of the estate, requesting ex parte and emergency relief, motion for temporary restraining order, and brief in opposition to amended motion to complete renovations or, in the alternative, to restore the home to its prior condition, all filed pro se, sought relief on behalf of Bakhtiar. The probate court further found that Saghafi is not a licensed attorney in the state of Ohio and that Attorney Wolf had at all times therein represented Bakhtiar and Attorneys Barrett and Reddy represented Bakhtiar in her divorce proceedings. Accordingly, the probate court determined that Saghafi had violated R.C. 4705.01 and struck his motions to remove Simonoff as guardian of the estate, requesting ex parte and emergency relief and motion for temporary restraining order, and brief in opposition to amended motion to complete renovations or, in the alternative, to restore the home to its prior condition. The probate court then denied Saghafi's motion to strike Simonoff s motion to strike Saghafi's motion to remove guardian and motion for temporary restraining order. The probate court additionally found that Saghafi's filings constituted frivolous conduct and awarded attorney fees to Bakhtiar and Presutto as well as the guardianship of Bakhtiar. The probate court did not address Saghafi's third application to appoint guardian in the September 23, 2016 order.

         {¶13} Saghafi timely appealed the September 23, 2016 order, raising five assignments of error for our review.

         {¶14} Then, on September 26, 2016, Simonoff filed a guardian's motion for clarification of pending matters after the September 23, 2016 decision. The next day, Simonoff filed a motion for protective order and to quash subpoena. On September 27, 2016, the probate court granted the motion for protective order and the motion to quash subpoena.

         {¶15} Saghafi timely appealed the September 27, 2016, order raising two assignments of error for our review. This Court sua sponte combined Saghafi's appeals. For the ease of analysis we elect to consider the assignments of error out of order. Additionally, as Saghafi's second and third assignments of error relating to the September 23, 2016 order raise similar issues, we elect to consider them together.

         II.

         Assignment of Error II

         The honorable trial court committed reversible error when it ruled that Dariush Saghafi's conduct was frivolous under [R.C.] 2323.51.

         Assignment ...


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