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Weinberg v. Weinberg

Court of Appeals of Ohio, Second District, Montgomery

July 20, 2018

ANDREW L. WEINBERG Plaintiff-Appellant
v.
LESLIE WEINBERG, et al. Defendants-Appellees

          Trial Court Case No. 2017-MSC-160 (Appeal from Probate Court)

          GARY C. SCHAENGOLD, Atty. Attorney for Plaintiff-Appellant

          DAVID C. GREER, Atty., CHRISTINA M. FLANAGAN, Atty., Attorneys for Defendant-Appellee, Leslie Weinberg

          HEATHER F. SHANNON, Atty., Attorney for Carl D. Sherrets, Successor Trustee

          OPINION

          TUCKER, J.

         {¶ 1} Plaintiff-appellant, Andrew L. Weinberg, appeals from the probate court's judgment of December 7, 2017, overruling his motion for summary judgment and sustaining in part the reciprocal motion for summary judgment of Defendant-appellee, Leslie Weinberg. In a single assignment of error, Appellant argues that the decision should be reversed because the probate court: (1) granted summary judgment on his first cause of action-a challenge to the validity of a series of four assignments of interest-based on a misapplication of R.C. 2111.04(D); and (2) granted summary judgment on his second cause of action-a request for declaratory judgment-in disregard of evidence giving rise to a genuine issue of material fact. Although we concur with the court's conclusion that Appellant did not state a claim under R.C. 2111.04(D) on which relief could be granted, we find that the court erred by determining that Appellee met her burden to demonstrate the absence of any genuine issues of material fact regarding Appellant's claim for declaratory judgment. Therefore, we affirm the decision as it relates to Appellant's first cause of action, and we reverse the decision as it relates to Appellant's second cause of action.

         I. Facts and Procedural History

         {¶ 2} The parties' father, Sylvan Weinberg, executed the "Agreement of Trust of Sylvan L. Weinberg" (the "Trust") on April 2, 2001, in order "to create a trust for the benefit of [his] spouse" and children, and "for the other uses and purposes" specified in the Trust's terms.[1] Compl. ¶ 1 and Ex. A. Weinberg, the settlor, appointed himself initial trustee and reserved the right to revoke the Trust. Ex. A. On August 14, 2012, Weinberg executed an amendment affecting the disposition of certain assets of the Trust after his death and designating a new successor trustee. See Ex. A.

         {¶ 3} An attorney submitted an application to the probate court on April 1, 2014, seeking appointment as Weinberg's guardian. Decision Overruling Pl.'s Mot. for Summ. J. and Sustaining in Part Def.'s Mot. for Summ. J. 2, Dec. 7, 2017 [hereinafter Decision]. The application included a statement of expert evaluation completed on February 26, 2014, by Dr. Jilian Waite, who indicated that Weinberg appeared to be suffering from Alzheimer's type dementia and concluded that his condition would not improve. Id. Dr. Waite evaluated Weinberg's competence generally and did not opine upon his testamentary capacity. Appellant and Appellee filed waivers of notice in which they consented to the attorney's appointment. Id.

         {¶ 4} Thereafter, Dr. Richard Bromberg conducted a psychological examination of Weinberg on July 18, 2014. Id. Dr. Bromberg determined that Weinberg "had moderate cognitive impairment and required assistance with the activities of daily living." But, based on findings that conflicted, to some extent, with Dr. Waite's findings, he concluded that Weinberg had "testamentary capacity based on the test" formulated by the Ohio Supreme Court "in Niemes v. Niemes, 97 Ohio St. 145, 150, 119 N.E. 503 (1917)." Id. at 2-3.

         {¶ 5} With the foregoing application still pending, Weinberg executed a series of four assignments (collectively, the "Assignments") on behalf of the Trust on July 21, 2014, by which the Trust's interests in four Michigan-based limited partnerships were transferred to Appellee "effective upon the death of Sylvan L. Weinberg." See Aff. of Arnold J. Jacob ¶ 4, Ex. 2, June 23, 2017.[2] Two weeks afterward, on August 4, 2014, Carl D. Sherrets applied for appointment as guardian of Weinberg's estate, and on the same date, Appellee applied for appointment as guardian of Weinberg's person.[3] See Decision 3-4. Appellee supported her application with Dr. Waite's previously submitted expert evaluation. Id. at 3.

         {¶ 6} The probate court's docket indicates that the guardianship application of April 1, 2014, was never granted.[4] On November 3, 2014, however, the probate court granted the applications submitted by Appellee and Carl Sherrets. Id. at 3-4. Sherrets was subsequently designated to serve as the Trust's successor trustee.[5]

         {¶ 7} Weinberg died on January 17, 2017. Aff. of Christina M. Flanagan ¶ 14.[6]On May 1, 2017, Appellant filed his complaint challenging the validity of the Assignments. The complaint comprises three causes of action: (1) a claim that the Assignments are invalid as a matter of law pursuant to R.C. 2111.04(D); (2) a request for declaratory judgment that the Assignments are invalid because Weinberg lacked capacity to execute them; and (3) a claim that Weinberg executed the Assignments as the result of Appellee's exercise of undue influence. Compl. 20, 22 and 24. Appellant then filed a motion for summary judgment on May 31, 2017, after which Appellee filed a competing motion for summary judgment on June 26, 2017.

         {¶ 8} On December 7, 2017, the probate court overruled Appellant's motion in its entirety and sustained Appellee's motion in part, dismissing Appellant's first and second causes of action. Decision 28. Regarding Appellant's third cause of action, the court overruled Appellee's motion because it determined that Appellant "presented evidence on each of the elements of undue influence" and cited facts in the record establishing a genuine issue of material fact on the question of whether Appellee "actually imposed undue influence ...


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