N. Gerald DiCuccio, Plaintiff-Appellant,
Quintin Lindsmith, Esq. et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
& Yaklevich and John A. Yaklevich, for appellant.
Brown, Todd, LLC, and Stephen E. Chappelear, for appellees.
Stephen E. Chappelear.
1} Plaintiff-appellant, N. Gerald DiCuccio, appeals
from the December 29, 2016 judgment of the Franklin County
Court of Common Pleas granting Wrightsel & Wrightsel and
R. Douglas Wrightsel's (collectively
"appellees") motion for sanctions. For the reasons
that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
2} The facts relevant to this appeal are as follows.
Appellant and Attorney Alphonse P. Cincione are partners in
the law firm of Butler, Cincione & DiCuccio. Cincione
drafted the Will, the Trust, the Second Amendment to the
Trust, and the Draft Power Of Attorney ("POA") that
are discussed in this opinion. Appellant is an attorney and
has been continuously engaged in the private practice of law
for 50 years.
3} Anne Marie Gante was the widow of Dr. Helmut
Gante. Dr. Gante died on February 17, 2013. Mrs. Gante was
the beneficiary of a Trust, which named Dr. Gante and Mrs.
Gante as co-trustees. Under the terms of the Trust, upon Dr.
Gante's death, Mrs. Gante would become the sole trustee
and the sole beneficiary of the Trust. Dr. Gante's
sister, Sigrid Griffiths, was the remainder beneficiary of
the Trust and successor-trustee.
4} Approximately ten months after Dr. Gante's
passing, appellant notified Mrs. Gante that there was a
Second Amendment to the Trust, which was signed by Dr. Gante
and Mrs. Gante. This amendment substituted appellant as the
successor-trustee once Dr. Gante had died.
5} The Second Amendment was the main point of
contention between appellant and Mrs. Gante. Mrs. Gante
challenged appellant's claims to be the successor-trustee
arguing that she, as sole beneficiary, did not want appellant
to serve as trustee, and that the Second Amendment was
invalid, unenforceable, ineffective, and had been revoked by
Dr. Gante's subsequent actions.
6} By way of history, the Trust at issue was
executed on May 5, 1993. Over ten years later, on March 23,
2005, Dr. Gante, apparently in poor health and concerned
about his wife's ability to act as successor-trustee,
executed and twice signed the Second Amendment to the Trust.
Mrs. Gante also signed the Second Amendment. The Second
Amendment removed Mrs. Gante's nomination as trustee and
replaced her with appellant.
7} In 2011 or 2012, Dr. Gante contacted Cincione and
appellant to inquire about a limited POA for Mrs. Gante that
would allow her to remain in the family home after Dr.
Gante's death. Appellant and Cincione sent Dr. Gante
their standard draft POA which gave the attorney-in-fact the
power to place Mrs. Gante in a nursing home. The Gantes were
not happy with the broad draft POA.
8} Shortly thereafter, Dr. Gante asked a relative to
help him find another attorney, unassociated with Butler,
Cincione & DiCuccio, to assist him in estate matters. Dr.
Gante wanted new estate plans drafted to alleviate his
worries. Dr. Gante was referred to attorney Karen Moore of
the Bricker and Eckler firm. Dr. Gante provided Moore with
copies of the Will, the Trust, and the First Amendment.
Neither Dr. Gante nor Mrs. Gante provided a copy of the
Second Amendment to Moore. Apparently, neither Dr. Gante nor
Mrs. Gante recalled the March 23, 2005, execution of the
9} Moore drafted a new Last Will ("the draft
Will") which nominated Mrs. Gante as executor, and
Clayton R. Jones as the alternate executor, removing any
mention of Cincione and appellant. Jones is Dr. Gante's
long time investment advisor who works at Merrill Lynch
Wealth Management ("Merrill Lynch"). Moore also
drafted an Amended and Restated Trust Agreement ("the
draft Trust") which nominated Dr. Gante and Mrs. Gante
as co-trustees. If neither Dr. Gante nor Mrs. Gante were able
to serve as trustee, the draft Trust nominated Jones as
successor-trustee. The draft Trust removes any mention of
10} Because of changes involving federal and state
estate tax laws, the drafts were not completed until sometime
in January 2013. Moore scheduled a date in late February 2013
for Mr. Gante to sign the draft Will and the draft Trust. On
February 17, 2013, prior to being able to sign the draft Will
and draft Trust, Dr. Gante died.
11} After the death of Dr. Gante, pursuant to the
terms of the original Trust, Mrs. Gante proceeded to function
as the trustee of the Trust with the help of Jones, Moore,
and attorney Quintin Lindsmith, also of the Bricker and
Eckler firm. Sometime in October 2013, over eight months
after Dr. Gante's death, Cincione reminded appellant of
appellant's nomination as successor-trustee of the Trust