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Isaac v. Malott

Court of Appeals of Ohio, Fourth District, Pickaway

August 7, 2019

STEVEN R. ISAAC, et al., Plaintiffs-Appellants/ Cross-Appellees,
v.
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 Appellants/Cross-Appellees.

          James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for Appellee/Cross-Appellant.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. McFARLAND, JUDGE

         {¶1} 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.

         {¶2} 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' exhibit.

         {¶3} 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.

         FACTS

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 EVIDENCE.
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 CONTRARY.
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 EVIDENCE."
ASSIGNMENT OF ERROR I

         {¶14} 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.

         STANDARD OF REVIEW

         {¶15} "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.

         LEGAL ANALYSIS

         {¶16} 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 court explained:

"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."

         {¶17} 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.

         {¶18} 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 public.

         {¶19} 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.

         {¶20} 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).

         {¶21} 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.

         {¶22} 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.

         ASSIGNMENT OF ERROR II

         {¶23} 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.

         ANALYSIS

         {¶24} 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 estate's attorney.

         {¶25} 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 tootlelawoffice@gmail.com It just says to ...

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