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In re Estate of Virginia Durkin

Court of Appeals of Ohio, Ninth District, Summit

June 13, 2018

IN RE: ESTATE OF VIRGINIA DURKIN

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2015-ES-2539

          DANIEL O'HALLORAN, pro se, Appellant.

          GREGORY T. PLESICH, Attorney at Law, for Appellee.

          MICHELE MORRIS, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE.

         {¶1} Daniel O'Halloran appeals the judgment of the Summit County Court of Common Pleas, Probate Division, overruling his objections to the magistrate's decision. We affirm in part and reverse and remand in part.

         I.

         {¶2} In September 2015, an application to probate the will of Virginia Durkin was filed in the Probate Court of Summit County, Ohio. John Durkin, the son of Virginia Durkin, was the executor of the estate. Daniel O'Halloran, the grandson of Virginia Durkin, was a beneficiary of the estate, along with his two sisters. Mr. O'Halloran's mother (the daughter of Virginia Durkin), Patricia O'Halloran, had predeceased Virginia Durkin. Ms. Durkin's will divided her estate one-half to Mr. Durkin and one-half to Ms. O'Halloran's three children.

         {¶3} During the course of the matter, Mr. O'Halloran filed various motions, including a motion to remove John Durkin as the fiduciary for the estate, a motion to remove Gregory Plesich as attorney for the estate, and a motion to compel. Attorney Plesich filed a motion to require Mr. O'Halloran to produce copies of documents received in response to subpoenas issued to various banks and two motions for contempt. In February 2017, a magistrate's decision denied Mr. O'Halloran's motions, granted $500.00 for contempt against Mr. O'Halloran, and addressed exceptions to the inventory of the estate. Mr. O'Halloran filed objections to the magistrate's decision, which were overruled by the trial court's judgment entry of May 8, 2018.

         {¶4} Mr. O'Halloran now appeals, raising eight assignments of error.

         II.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT DANIEL O'HALLORAN'S [] MOTION FOR REMOVAL OF FIDUCIARY JOHN DURKIN [] PER R.C 2019.50 ("PROCEEDINGS WHEN ASSETS CONCEALED OR EMBEZZLED"), R.C. 2109.52 (JUDG[]MENT ON THE COMPLAINT"), R.C. 2109.53 (JUDGMENT AGAINST FIDUCIARY-REMOVAL[)], [R.C] 2113.18 ("REMOVAL OF EXECUTOR OR ADMINISTRATOR"), AND [R.C] 2109.24 ("RESIGNATION OR REMOVAL OF FIDUCIARY").

         {¶5} In his first assignment of error, Mr. O'Halloran argues the trial court erred by denying his motion for the removal of the fiduciary, John Durkin. We disagree.

         {¶6} "This Court reviews a trial court's action with respect to a magistrate's decision for an abuse of discretion." Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 17. "In so doing, we consider the trial court's action with reference to the nature of the underlying matter." Id. at ¶ 18. Here, "[r]emoval of an executor rests within the sound discretion of the trial court and a reviewing court will not reverse the decision absent a clear showing of abuse of discretion." Pio v. Ramsier, 88 Ohio App.3d 133, 136 (9th Dist.1993). An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As a reviewing court applying the abuse of discretion standard, we may not substitute our judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993).

         {¶7} We note at the outset that the first assignment of error references sections of the Revised Code not raised in his arguments before the trial court. "Issues that were not raised to the trial court may not be considered for the first time on appeal." Rozhon v. Rozhon, 9th Dist. Medina No. 05CA0075-M, 2006-Ohio-3118, ¶ 18. To the extent these references make new arguments that were not raised before the trial court, they are not properly before this Court for consideration.

         {¶8} In December 2016, Mr. O'Halloran motioned the trial court to remove Mr. Durkin as the fiduciary, arguing that Mr. Durkin lied under oath and failed to communicate information to Mr. O'Halloran. Mr. O'Halloran also presented these arguments at a hearing before the magistrate in August 2016.

         {¶9} Other than reiterating his belief that Mr. Durkin acted dishonestly, Mr. O'Halloran does not provide this Court with a theory as to how the trial court abused its discretion. "[A]n appellant's assignment of error provides this Court with a roadmap to guide our review." Taylor v. Hamlin-Scanlon, 9th Dist. Summit No. 23873, 2008-Ohio-1912, ¶ 12. This Court declines to chart its own course when an appellant fails to provide guidance. Young v. Slusser, 9th Dist. Wayne No. 08CA0019, 2008-Ohio-4650, ¶ 7. "It is not this Court's duty to create an appellant's argument for him." Thomas v. Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 8. It is an appellant's duty to demonstrate his assigned error through an argument that is supported by citations to legal authority and facts in the record; it is not the function of this Court to construct a foundation for his claims. Ohio Edison Co. v. Williams, 9th Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 9.

         {¶10} Mr. O'Halloran has failed to demonstrate an abuse of discretion on the part of the trial court. The first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [DANIEL O'HALLORAN'S] MOTION FOR REMOVAL OF GREGORY PLESICH [] AS ATTORNEY FOR THE ESTATE.

         {¶11} In his second assignment of error, Mr. O'Halloran argues the trial court abused its discretion by denying his motion for the removal of Gregory Plesich as the attorney for the estate. We disagree.

         {¶12} "[A] court has inherent authority to supervise members of the bar appearing before it; this necessarily includes the power to disqualify counsel in specific cases." Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 4 (1998). Trial courts enjoy broad discretion when considering motions to disqualify counsel. Phillips v. Haidet,119 Ohio App.3d 322, 324 (3d Dist.1997). "We review a trial court's determination regarding a motion to disqualify counsel for an abuse of ...


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