Court of Appeals of Ohio, Second District, Montgomery
ANDREW L. WEINBERG Plaintiff-Appellant
LESLIE WEINBERG, et al. Defendants-Appellees
Court Case No. 2017-MSC-160 (Appeal from Probate Court)
C. SCHAENGOLD, Atty. Attorney for Plaintiff-Appellant
C. GREER, Atty., CHRISTINA M. FLANAGAN, Atty., Attorneys for
Defendant-Appellee, Leslie Weinberg
HEATHER F. SHANNON, Atty., Attorney for Carl D. Sherrets,
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.
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. 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. 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. 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. 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
7} Weinberg died on January 17, 2017. Aff. of
Christina M. Flanagan ¶ 14.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 ...