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In re Estate of Tuttle

Court of Appeals of Ohio, Sixth District, Erie

December 27, 2019

In re Estate of Ruth Tuttle aka Ruth Fowler Tuttle

          Trial Court No. 2018-1252

          D. Jeffery Rengel and Thomas R. Lucas, for appellant.

          Corey Speweik, for appellees.


          PIETRYKOWSKI, J.

         {¶ 1} Appellant, Judith L. Rengel, appeals from the February 12, 2019 judgment of the Erie County Court of Common Pleas, Probate Division, ordering D. Jeffrey Rengel to be removed from this case as attorney of record. For the reasons which follow, we reverse. Appellant asserts a single assignment of error:


         {¶ 2} Ruth Tuttle died on February 16, 2018. On July 16, 2018, her daughter, appellant, submitted the decedent's December 1, 1999 will for probate in the Erie County Court of Common Pleas, Probate Division, through her attorney, Thomas R. Lucas. The will made no provision for the decedent's three children and instead provided for distributions to the decedent's grandchildren. The probate court admitted the will to probate on July 26, 2018.

         {¶ 3} Appellant also filed an application to administer the estate. The will named appellant and her brother, Gordon Fowler, as co-executors. Because Fowler had not explicitly waived his right to administer the estate, the probate court held a hearing on September 5, 2018. No official record was kept of this hearing.

         {¶ 4} Appellant asserts appellees, Gordon Fowler and Ronald Fowler, appeared pro se. At a meeting in chambers, Ronald Fowler informally raised questions as to the jurisdiction of the Erie County Probate Court as the proper forum for probate of the estate. The judge requested that appellant voluntarily dismiss the application to probate the will, refile the application in an alternate jurisdiction, or file a memorandum in support of jurisdiction in Erie County.

         {¶ 5} Accordingly, on September 19, 2018, appellant filed a brief in support of jurisdiction in Erie County with several unauthenticated documents attached and appellant's affidavit: 1) the decedent's death certificate indicating that she resided in Erie County at the time of her death but died in a Columbus, Ohio, hospital and was buried in Sandusky, Ohio; 2) a copy of the decedent's Erie County voting record from 1992 to 2016 and a letter from the Erie County Board of Elections to the decedent's Huron County address notifying her family that her voter registration had been cancelled due to her death; 3) copies of the appellant's 2016 and 2017 tax returns indicating the decedent was named as a dependent residing in Erie County at appellant's residence; and 4) the decedent's Erie County burial plot in Sandusky, Ohio, purchased shortly before her death. Also attached to the brief was the affidavit of appellant, who attested the decedent had not resided in her own home in Huron, Ohio, since 2013, except for a brief period of less than six months. Appellant further attested the decedent resided with appellant from 2012 through September 2017, and all of her doctors were located in Erie County. In September 2017, the decedent moved temporarily to live with Ronald Fowler in Lancaster, Ohio, to give appellant a break as caregiver. While the decedent expressed a desire to return to appellant's home, she was unable to do so because of her declining health. She was instead transferred to several hospital and nursing facilities until her death. Appellant further asserts that Ronald Fowler had control over the decedent's financial accounts and paid her medical bills.

         {¶ 6} Appellees moved on October 30, 2018, to transfer venue to Fairfield County, Ohio, on the ground that the decedent had lived most recently with Ronald Fowler. Appellees asserted the following facts in their brief and not by affidavit: the decedent had alternated living at her home in Huron, Ohio, and staying with appellant in Erie County, Ohio. However, because of the decedent's declining health, appellant was unable to care for decedent and, on August 16, 2017, demanded that Ronald Fowler move the decedent to his home in Fairfield County, Ohio. They further asserted that the decedent established her final home at Ronald Fowler's home and indicated she did not desire to return to Erie County, Ohio, prior to her death approximately five months later. She also established new doctors near Fairfield County and appellant never saw the decedent again until shortly before the decedent's death. Appellees asserted the proper venue for administration of the estate was Fairfield County, Ohio. Appellant opposed the motion and challenged the factual assertions in appellees' brief

         {¶ 7} Attorney D. Jeffery Rengel filed a notice of appearance as co-counsel for appellant on January 8, 2019. Appellees moved to disqualify Rengel, pursuant to Prof.Cond.R. 3.7, on the ground that Rengel, as the decedent's son-in-law and "former housemate," would have personal knowledge of the facts in dispute and will be called as a witness. Appellant opposed the motion.

         {¶ 8} On February 11, 2019, the probate court granted appellees' motion and removed Rengel as an attorney of record for appellant without making any specific findings. Appellant filed an appeal from this order ...

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