Court of Appeals of Ohio, Fourth District, Pickaway
STEVEN R. ISAAC, et al., Plaintiffs-Appellants/ Cross-Appellees,
ALICE MALOTT, Individually and as POA and as Executor, Defendant-Appellee/ Cross-Appellant.
William T. Bonham and Mark E. Phillips, Mularski, Bonham,
Dittmer & Phillips, LLC, Gahanna, Ohio, for
R. Kingsley, Kingsley Law Office, Circleville, Ohio, for
DECISION AND JUDGMENT ENTRY
MATTHEW W. McFARLAND, JUDGE
This is an appeal from the findings of fact and conclusions
of law entered by the Court of Common Pleas for Pickaway
County, Ohio, following a bench trial from April 10-12, 2018.
These cases arise out of a dispute between Appellants Steven
Isaac, Jerry Isaac and Charles Isaac (together,
"Appellants") and their sister, Appellee Alice
Malott ("Appellee"), regarding her management of
their father's affairs pursuant to a Power of Attorney
("POA") before his death and her administration of
their father's estate, as its Executor, after his death.
The trial court entered judgment for Appellee and against
Appellants on all of their claims.
On appeal, Appellants assert five assignments of error.
Specifically, they contend the trial court erred in finding
(1) their father, Ray Isaac, signed the POA granting Appellee
the right to manage his affairs, (2) Appellee's attorney
never received Appellant Steven Isaac's email containing
an offer to purchase certain real estate from their
father's estate, (3) an exhibit purporting to contain a
summary of Appellants' damages was a statistical model
based upon an inference upon an inference, (4) Appellants
were not entitled to damages under R.C. 1337.37, and (5) that
the estate liquidation company retained by Appellee itemized
every item in decedent Ray Isaac's house. Because the
trial court's challenged factual findings were not
against the manifest weight of the evidence, all of
Appellants' first, second and fifth assignments of error
are overruled. Appellants' third and fourth assignments
of error are overruled because the trial court did not commit
any legal error in its consideration of Appellants'
As Cross-Appellant, Appellee asserts three assignments of
error. She contends that the trial court erred by (1)
awarding sanction fees against Appellee for failure to
produce her tax returns in response to a discovery request,
(2) denying Appellee's motion for sanctions against
Appellants for frivolous conduct, and (3) failing to hold a
hearing before denying Appellee's motion for sanctions
for frivolous conduct. As Appellee waived her right to appeal
the award of sanctions against her, her first assignment of
error is overruled. Appellee's second and third
assignments of error are overruled because the trial
court's denial of her motion for sanctions without
conducting a hearing was not an abuse of discretion.
Accordingly, the judgment of the trial court is affirmed.
Ray Isaac died testate in Pickaway County, Ohio, on June 15,
2015. Appellants Steven Isaac, Jerry Isaac, and Charles
Isaac, Appellee Alice Malott, and non-party Glenna Hisong are
Ray Isaac's natural children.
On November 1, 2013, Ray Isaac underwent surgery for a neck
fracture, which involved the insertion of wires into the C1
and C2 vertebras at the base of his skull. On November 5,
2013, he was discharged from the hospital and taken to
Appellant Steven Isaac's house to recuperate.
Due to his injury, Ray Isaac was unable to attend to his
financial affairs, including the collection of rent for his
many residential real estate properties. The trial court
found that Ray Isaac signed a Power of Attorney
("POA") naming Appellee as his attorney-in-fact so
she could manage these tasks on his behalf. The trial court
specifically found that on November 6, 2013, Appellee's
husband, Wayne Malott, picked up the unsigned POA from Ray
Isaac's attorney and took it to Steven Isaac's house.
On the same day, Steven Isaac, Wayne Malott and Ray Isaac
drove to Steven Isaac's bank in Grove City, where Ray
Isaac signed the POA before a bank employee who was a notary
public. Wayne Malott then delivered the signed POA to
Appellee. Appellants contend that Ray Isaac never left the
house on November 6, 2013 and never signed the POA.
The trial court found that Appellee assisted Ray Isaac in
managing his financial affairs pursuant to the POA.
Appellee's husband collected rents on Ray Isaac's
behalf for a period of time and Appellee assisted Ray Isaac
in writing checks and making deposits into his bank account.
In June 2014, Ray Isaac became an inpatient at Pickaway Manor
Nursing Home. In June 2015, Ray Isaac's family decided
that, due to his declining health, they would return him to
his home to live with the assistance of hospice care.
Appellee and her sister, Glenna Hisong, cleaned their
father's home in anticipation of his arrival. However, on
June 15, 2015, Ray Isaac died before his planned departure
from Pickaway Manor. He was 87 years old.
On June 25, 2015, Ray Isaac's Last Will and Testament was
admitted to probate in Pickaway County Probate Court.
Appellee was appointed the Executor of Ray Isaac's
estate. Appellant Steven Isaac filed a complaint for an
accounting in Probate Court and Appellants later filed
objections to the inventory for Ray Isaac's estate. After
issues relating to the accounting and objections were
resolved, Steven Isaac voluntarily dismissed his accounting
complaint. Appellants then filed additional objections to the
inventory, which were withdrawn in August 2017.
On April 1, 2016, Appellants brought this action in Pickaway
County Common Pleas Court alleging that Appellee
misappropriated assets from Ray Isaac before his death and
from his estate after his death. They asserted claims for
intentional interference with right of inheritance, breach of
fiduciary duty, conversion and fraud. Appellee filed an
Answer denying the complaint's material allegations and
the case proceeded to discovery.
During discovery, Appellee refused to produce her tax returns
in response to Appellants' discovery requests. Appellants
filed a motion to compel production of the tax returns, which
the trial court granted. The trial court also granted
Appellants their attorney fees in bringing the motion to
compel under Civ.R. 37. The trial court set the award of
attorney fees for a hearing. Before the hearing date,
however, Appellee paid Appellants the requested fee amount.
As a result, Appellants withdrew their request for attorney
fees and the hearing was canceled.
On February 12, 2018, Appellee filed a motion for summary
judgment, which was denied on March 23, 2018. From April 10
through April 12, 2018, the trial court held a bench trial on
Appellants' claims. Post-trial the parties submitted
proposed findings of fact and conclusions of law for the
trial court's consideration. On June 11, 2018, the trial
court entered an Order adopting Appellee's findings of
fact and conclusions of law, subject to certain revisions,
and finding that Appellants were not entitled to any relief
on their claims.
On June 14, 2018, Appellee filed a motion for sanctions for
frivolous conduct under Civ.R. 11 and R.C. 2323.51. She
argued Appellants should be sanctioned because they pursued
their claims long after they knew they had no basis in fact.
On July 23, 2018, the trial court overruled Appellee's
motion for sanctions, which was the final appealable order
immediately preceding this appeal.
APPELLANTS' ASSIGNMENTS OF ERROR
"I. THE COURT ORDER FINDING DECEDENT, RAY ISAAC, SIGNED
A POWER OF ATTORNEY WAS AGAINST THE MANIFEST WEIGHT OF THE
II. THE TRIAL COURT COMMITTED ERROR BY FINDING THAT ATTORNEY
TOOTLE NEVER RECEIVED THE EMAIL CONTAINING STEVEN ISAAC'S
OFFER TO PURCHASE THE PROPERTY LOCATED AT 226 LOGAN STREET.
THE MANIFEST WEIGHT OF THE EVIDENCE INDICATES TO THE
III. THE TRIAL COURT COMMITTED ERROR WHEN IT FOUND THAT
PLAINTIFFS' DAMAGES FOR MISAPPROPRIATION OF RENT WAS
BASED UPON A STATISTICAL MODEL, AND BASED UPON AN INFERENCE
UPON AN INFERENCE.
IV. THE COURT ABUSED ITS JUDICIAL DISCRETION IN FINDING THAT
DEFENDANT IS NOT LIABLE FOR DAMAGES UNDER ORC § 1337.37.
V. THE COURT ERRED WHEN IT FOUND THE PARKERS ITEMIZED EVERY
ITEM IN THE HOUSE. THIS FINDING IS AGAINST THE WEIGHT OF THE
ASSIGNMENT OF ERROR I
In their first assignment of error, Appellants contend the
trial court's finding that Ray Isaac signed the POA
should be reversed because it was against the manifest weight
of the evidence.
"We will not reverse a trial court's judgment as
against the manifest weight 'if it is supported by some
competent, credible evidence.'" Hardert v.
Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770,
¶ 18, quoting Nolen v. Rase, 4th Dist. Scioto
No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 14. When we review whether a trial court's
decision is against the manifest weight of the evidence, we
weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether in
resolving conflicts in the evidence, the factfinder clearly
lost its way and created such a manifest miscarriage of
justice that we must reverse the judgment. Martin v.
Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th
Dist.). We will reverse a judgment as being against the
manifest weight of the evidence only in the exceptional case
where the evidence weighs heavily against the judgment.
Pinkerton v. Salyers, 4th Dist. Ross No. 13CA3388,
2015-Ohio-377, ¶ 18.
The trial court's finding that Ray Isaac signed the POA
appointing Appellee as his attorney-in-fact was based in
large part on its assessment of witness testimony. The trial
"Steven's testimony that [the signing of the POA]
never happened is not credible. Plaintiffs witnesses
testified that Ray was highly medicated and could do nothing.
Defendant's witnesses testified that he was alert, aware
and ambulatory. The day before, on 11/5/13, Ray signed three
checks at Steven's house, including one for Steven's
granddaughter, Scarlett Abbitt[, ] as a birthday gift. No
handwriting expert provided testimony to this Court. To the
untrained eye Ray's signature on the POA appears to match
other documents in evidence. Presumably, if Ray was in such a
deteriorated condition his handwriting would be affected.
Plaintiffs did not challenge the deposition of Notary Melissa
Wagner that she identified the signer by drivers license.
Alice, in charge of notary tests in Pickaway County,
anticipated identification would be necessary and provided
Wayne with Ray's drivers license or a copy of it. Alice
had Ray's drivers license having obtained the same when
Ray entered the hospital. Steven's recollection is
suspect as Plaintiffs' case is based upon the premise
that the POA was forged. Ray Isaac was unexpectedly released
from the hospital on November 5, 2013. The POA was signed on
November 6, 2013. To find that the POA was forged, it is
necessary to believe that the Defendant and/or Wayne Malott
secured an impostor, arranged for him to travel to Grove City
on November 6, 2013 where he then convinced the Notary he was
Ray Isaac and provided, at least, a similar looking signature
to the other documents in evidence. Alternatively, it is
assumed that Wayne Malott could have gone to the bank in
Grove City and impersonated his 85 year old father in law
sufficiently convincing the Notary, and signed the POA in a
similar looking signature to the other documents in evidence.
Lastly, the Notary Melissa D. Wagner could have been part of
the forgery plan. There was no proof of such involvement
presented to this Court. Based upon the testimony provided,
this Court is not willing to accept any of the three above
stated scenarios, but rather find[s] that Ray Isaac appeared
before the Notary on November 6, 2013 and signed the POA as
her notarial attestation so provides."
As demonstrated by the above, witness credibility weighed
heavily in the trial court's finding that Ray Isaac
signed the POA. In reviewing that finding, this Court must be
mindful that "the credibility of witnesses and the
weight given to the evidence are issues for the trier of
fact." Britton v. Gibbs Assocs.,
2009-Ohio-3943, ¶ 46; see also State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967) ("In
either a criminal or civil case the weight to be given the
evidence and the credibility of the witnesses are primarily
for the trier of the facts."). As the Court has
observed, "[t]he trier of fact is better suited than an
appellate court to view the witnesses and observe their
demeanor, gestures, and voice inflections and to use those
observations in weighing credibility. Thus, the trier of fact
is free to believe all, part, or none of the testimony of any
witness who appears before it." Britton at
¶ 46. The trial court's finding that Steven Isaac
and Appellants' witnesses were not credible and,
conversely, that Appellee's witnesses were credible on
this issue will not be disturbed.
Having accepted the trial court's credibility
determinations, there is little evidence left to support the
contention that the trial court's finding is against the
manifest weight of the evidence. Appellants cite testimony
that Ray Isaac was heavily medicated for at least two weeks
after his surgery and that he required assistance to move
within Steven Isaac's house. However, the trial court
also found credible testimony that Ray Isaac was "alert,
aware and ambulatory" and had signed three checks the
day before he signed the POA. In addition, the trial court
accepted Wayne Malott's testimony that he and Steven
Isaac accompanied Ray Isaac to the bank. Ray Isaac therefore
had assistance to get to the bank and meet with the notary
Appellants also argue that no one testified to having seen
Ray Isaac sign the POA or anyone giving Ray Isaac's
drivers license to the notary. Only four people could have
witnessed these acts: Steven Isaac, Wayne Mallot, the notary,
and Ray Isaac himself. Steven Isaac claimed that it never
happened. Wayne Mallot testified that he was with Steven and
Ray Isaac at the bank when the POA was signed, but, from his
vantage point, Wayne Mallot could not see Ray Isaac
physically sign the POA or the notary receive Ray Isaac's
drivers license. The notary could not recall the specific
event but was adamant that she did not vary from her standard
operating procedure in witnessing Ray Isaac's signature
on the POA. That procedure involved (1) requiring a
driver's license identification, (2) administering the
oath, (3) inquiring about the document, (4) witnessing the
signature, (5) signing as a notary and (6) placing her seal
on the document. The trial court found that the notary
witnessed Ray Isaac's signature, as stated in the
notarial attestation on the POA. Thus, in context, the fact
that no one recalled seeing Ray Isaac sign the POA or the
notary receiving Ray Isaac's drivers license does not
carry significant weight.
The trial court was reasonable in its evaluation of the
contention that Ray Isaac's signature on the POA was
forged. The trial court noted that no handwriting expert
testified in the case and, based on its review, the signature
on the POA appeared to match Ray Isaac's signature on
other documents. On appeal, Appellants argue that the trial
court was "not qualified to render an opinion on this
matter." This argument misconstrues the trial
court's role in this case. In a bench trial, the trial
judge assumes the jury's role as the trier of fact. The
trial judge did not offer any opinion on the facts in this
case; it entered findings of fact. One of those findings was
that Ray Isaac's signature on the POA was authentic.
Cutshall v. Green, 8th Dist. Cuyahoga No. 62447,
1993 WL 146562 (May 6, 1993).
The trial court was also reasonable in finding
Appellants' alternative theories implausible. In order to
find Ray Isaac's signature was forged, the trial court
would also have to find one of the following scenarios
occurred: (1) that Wayne Mallot signed the POA by
impersonating Ray Isaac before the notary, (2) that Wayne
Mallot found a doppelganger for Ray Isaac to present to the
notary, or (3) that the notary lied in her attestation and
later when testifying under oath at her deposition. As the
trial court noted, there was no evidence to support a finding
that any of these things happened.
In summary, the trial court's finding that Ray Isaac
signed the POA before the notary, as stated in the
notary's attestation, is reasonably supported by
competent and credible evidence. Accordingly, Appellants'
first assignment of error is overruled.
OF ERROR II
In their second assignment of error, Appellants contend the
trial court erred by finding that the attorney for Ray
Isaac's estate never received an email containing Steven
Isaac's offer to purchase certain real estate. This
finding may be reversed only if it is against the manifest
weight of the evidence.
Among Ray Isaac's real estate was a property located at
226 Logan Street, Circleville, Ohio, 43113. Appellant Steven
Isaac testified that on January 20, 2016, he sent an email to
the estate's attorney offering to purchase the 226 Logan
Street property for $47, 500.00, less the six percent
commission for realtor's fees and the twenty percent that
he would receive as a beneficiary of his father's estate.
Steven Isaac testified that the offer was to remain open for
five days, but he never received a response from the
The estate's attorney testified that he did not know
about Steven Isaac's offer, but admitted that he later
found Steven Isaac's email, or at least portions of it,
in his files while preparing for trial. On direct
examination, the estate's attorney testified regarding
whether the email was properly addressed to his office:
Q. So from appearances, does it look like - that the email
was correctly addressed to your office?
A. Well, I'm not very astute when it comes to emails.
Now, this does not have email@example.com It just
says to ...