Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dicuccio v. Lindsmith

Court of Appeals of Ohio, Tenth District

June 14, 2018

N. Gerald DiCuccio, Plaintiff-Appellant,
v.
Quintin Lindsmith, Esq. et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 14CV-11538

         On brief:

          Moore & Yaklevich and John A. Yaklevich, for appellant.

         Argued:

          John A. Yaklevich.

         On brief:

          Frost, Brown, Todd, LLC, and Stephen E. Chappelear, for appellees.

         Argued:

          Stephen E. Chappelear.

          DECISION

          HORTON, J.

         {¶ 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.

         I. 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 Second Amendment.

         {¶ 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 appellant.

         {¶ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.