In re Guardianship Cohodes , 2014 Ohio 277 ( 2014 )

[Cite as In re Guardianship Cohodes, 2014-Ohio-277.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
The Guardianship of Sharon K. Cohodes, : No. 13AP-519
(P.C. No. 550851)
(Teri Cohodes Morof, :
(REGULAR CALENDAR)
Intervenor-Appellant). :
D E C I S I O N
Rendered on January 28, 2014
Lee M. Smith & Assoc. Co., LPA, and Bradley R. Glover, for
appellee Guardian of the Estate of Sharon Cohodes.
David A. Belinky, Guardian of the Person of Sharon
Cohodes.
Starkey & Waid LLC, Phillip A. Waid and David H. Starkey,
for Intervenor-Appellant Teri Morof.
APPEAL from the Franklin County Probate Court
TYACK, J.
{¶1} Appellant, Teri Cohodes Morof ("Morof"), is appealing from the refusal of
the Franklin County Probate Court to allow her to intervene in proceedings regarding the
guardianship of her mother, Sharon K. Cohodes ("Cohodes"). A single error is assigned
for our review:
The Franklin County Probate Court erred in denying
Intervener Appellant's Motion to Intervene filed under Civ.R.
24(A) after the Guardian of the Estate had filed a Motion to
Invoke Exercise by Probate Court of Power under ORC
2111.50(B).
{¶2} Civ.R. 24(A)(1) and (2) provides:
No. 13AP-519 2
Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute of this state
confers an unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or
transaction that is the subject of the action and the
applicant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant’s
ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
{¶3} Cohodes is a 74 year-old divorced woman with three adult children. She
executed a will in 1979 and a codicil in 1994 naming as beneficiary her three children
equally. Her net worth at the establishment of the guardianship was approximately $47
million. On December 27, 2011, she was declared incompetent and the probate court
appointed David A. Belinky as guardian of the person, and Bradley R. Glover as guardian
of the estate.
{¶4} Despite her substantial assets, Cohodes was living in a downtown hotel
because her residence was uninhabitable. Eventually, she had to be hospitalized in a
psychiatric facility as her condition deteriorated. After a four-week hospitalization, she
returned to her residence, which had undergone extensive renovation, cleaning, and
decorating. Cohodes now lives in her home with 24/7 care. Her physical, mental, and
emotional health have improved.
{¶5} Prior to the guardianship, Cohodes maintained multiple checking and
savings accounts, and retained millions of dollars worth of stock in certificated form.
Many of those certificates had been misplaced or discarded. Additionally, Cohodes had
not filed a state or federal income tax return in a number of years.
{¶6} On May 17, 2012, Eileen Bower was appointed guardian ad litem for
Cohodes. The guardian of the estate authorized her to recommend financial and estate
planning for Cohodes. On October 12, 2012, the guardian of the estate filed a motion
asking the probate court to approve a financial/estate plan for Cohodes. On October 25,
2012, Morof filed her motion to intervene. On November 13, 2012, Morof filed a lawsuit
in federal district court alleging tortious interference with her expected inheritance and a
conspiracy to disinherit Morof. The federal lawsuit was dismissed without prejudice on
March 13, 2013 and, within 48 hours, the guardian ad litem resigned her position.
No. 13AP-519 3
{¶7} The issue asserted on behalf of Morof in this appeal is whether the probate
court properly applied Civ.R. 24(A). The Statement of Issues in Morof's brief, as
appellant, reads:
Does the child of a ward, who is a beneficiary of the ward's
will, have an interest in estate and financial planning being
done for the ward by the Guardian of the Estate and the
Probate Court, such that the child has a right to intervene in
estate and financial planning actions?
{¶8} The issue set forth in the brief is a concise statement of the issue, which was
before the probate court. The probate court carefully addressed it and resolved it
correctly.
{¶9} A court's refusal to permit a party to intervene in an action is a final,
appealable order. Grogan v. T.W. Grogan Co., 143 Ohio App.3d 548, 558 (8th
Dist.2001). Our review of that denial is under an abuse of discretion standard.
Jamestown Village Condominium Owners Assn. v. Market Media Research, Inc., 96
Ohio App.3d 678, 694 (8th Dist.1994).
{¶10} Morof argues for the first time on appeal, that she has a legally protectable
interest in the form of a cause of action for the tort of intentional interference with an
expectancy of inheritance. The Supreme Court of Ohio has held that: (1) Ohio recognizes
the tort of intentional interference with expectancy of inheritance, and (2) any person who
can prove elements of this tort can maintain cause of action. Firestone v. Galbreath, 67
Ohio St.3d 87 (1993). The elements of the tort are: (1) an existence of an expectancy of
inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that
expectancy of inheritance; (3) conduct by the defendant involving the interference which
is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty
that the expectancy of inheritance would have been realized, but for the interference by
the defendant; and (5) damage resulting from the interference. Id. at 88. In the following
action in federal court, the Sixth Circuit Court of Appeals noted the following:
We recognize that certain probate-related causes of action
may only be brought by parties with a vested claim to the
estate. A cause of action for tortious interference with
expectancy of inheritance, however, protects a more
attenuated claim to the decedent's property-a claim which
No. 13AP-519 4
need not rise to the level of a vested interest in order to be
protected as a legitimate expectancy.
Firestone v. Galbreath, 25 F.3d 323, 325-26 (6th Cir.1994).
{¶11} Morof did not raise this issue before the probate court, thereby waiving the
issue on appeal. In addition, the cases cited on behalf of Morof as indicating the existence
of a legally cognizable interest in a possible inheritance are all tort cases. This is not a tort
action. This is a guardianship case. The appointed guardians and the probate court itself
as a superior guardian are by all indications doing a good job of helping Cohodes return to
full mental and physical health. The estate plan was undertaken because Cohodes had
nearly all her stock invested in one company and had not filed tax returns for a number of
years. The plan was designed to protect her assets by diversification and to lower her tax
obligations. Nothing in the record before us indicates the presence of a tort for diverting
assets owned by Cohodes.
{¶12} Morof's status as a child and prospective heir of Cohodes does not
automatically entitle her to intervene in her mother's guardianship.
{¶13} The technical word used by the probate court to deny intervention was
"vested." In general, no one has a guaranteed or vested interest in the last will and
testament of a parent. Being related to the ward is not enough to confer party status upon
a person, nor is being served with notice of proceedings. In re Guardianship of
Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, ¶ 14. Morof is not in a position to dictate
to her mother or to the probate court how estate planning or investment strategy should
be pursued. Based upon the facts of this case, the probate court was not required by
Civ.R. 24 to allow intervention and was within its discretion to refuse to do so.
{¶14} The sole assignment of error is overruled. The judgment of the Franklin
County Probate Court is affirmed.
Judgment affirmed.
BROWN and KLATT, JJ., concur.