In re Estate of Sowande ( 2014 )


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  • [Cite as In re Estate of Sowande, 2014-Ohio-5384.]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    PORTAGE COUNTY, OHIO
    IN RE: THE ESTATE OF OLUFELA                         :   OPINION
    OBFUNMILAYO SOWANDE a.k.a. FELA
    SOWANDE (DECEASED)                                   :
    CASE NO. 2014-P-0018
    :
    Appeal from the Portage County Court of Common Pleas, Probate Division, Case No.
    1987 ES 36785.
    Judgment: Affirmed.
    Leanne A. Sowande, pro se, 13500 Pearl Road, Suite 139 #208, Strongsville, OH
    44136 (Appellant).
    Reuben J. Sheperd, Reuben J. Sheperd Attorney at Law, 11510 Buckeye Road,
    Cleveland, OH 44104 (For Appellee-David L. Moore).
    CYNTHIA WESTCOTT RICE, J.
    {¶1}    Appellant, Leanne A. Sowande, appearing pro se, appeals the judgment
    of the Portage County Court of Common Pleas, Probate Division, denying her motion to
    vacate the order settling the fiduciary account filed in the estate of her late father, which
    was closed 26 years ago in 1988. At issue is whether the trial court’s finding that the
    executrix did not commit fraud in administering the estate was supported by competent,
    credible evidence. For the reasons that follow, we affirm.
    {¶2}    On March 13, 1987, Olufela Obfunmilayo Sowande, a.k.a. Fela Sowande,
    passed away while residing in Portage County, Ohio. On May 13, 1987, decedent’s
    wife, Eleanor McKinley Sowande, filed the decedent’s will, an application to probate the
    will, and an application for authority to administer the estate. The court admitted the will
    to probate; appointed Mrs. Sowande executrix; and ordered her to provide notice that
    the will was offered to probate.
    {¶3}   In May 1987, Mrs. Sowande filed an affidavit stating that the decedent had
    previously been married and had two daughters from the prior marriage who are now
    married and emancipated, but that she did not know their married names or present
    whereabouts.
    {¶4}   Pursuant to this notice, on May 21, 1987, the trial court vacated the
    admission of the will to probate and the appointment of Mrs. Sowande as executrix, and
    ordered her to provide notice by publication to decedent’s unknown heirs of the offering
    of the will to probate. Such notice was provided in accord with Ohio law, and stated that
    a hearing would be held on July 6, 1987 on Mrs. Sowande’s application to admit the will
    to probate. Pursuant to this legal notice and without objection, the will was re-admitted
    to probate and Mrs. Sowande was re-appointed executrix on November 9, 1987. Notice
    of her appointment was duly published.
    {¶5}   In the months that followed, Mrs. Sowande settled the estate.             Mr.
    Sowande’s will, dated November 23, 1982, expressly excluded his two daughters from
    receiving any assets from his estate and named his wife his sole beneficiary. The final
    account of the estate was filed on February 5, 1988.            All assets were properly
    accounted for.     The trial court approved the final account on March 24, 1988.
    Thereafter, the estate was closed and the fiduciary was discharged.
    2
    {¶6}   Some 12 years later, in 2000, Mrs. Sowande passed away. Her estate
    was administered by her son and the decedent’s step-son, appellee, David L. Moore, in
    the state of Montana. Mr. Moore was the sole beneficiary under his mother’s will. Her
    estate is now closed.
    {¶7}   Nearly 26 years after the estate of Fela Sowande was closed, on October
    25, 2013, his daughter from a prior marriage, appellant, Leanne A. Sowande, who was
    then 75 years old, filed a motion to reopen her late father’s estate and to appoint her to
    administer his estate, which was supported by over 200 pages of documents. The
    motion was filed under R.C. 2109.35(A), and was essentially a motion to vacate the
    order settling the fiduciary account filed in the estate. Appellant alleged Mrs. Sowande
    committed fraud in the administration of her father’s estate.
    {¶8}   The court held a conference on the motion on November 26, 2013.
    Appellant appeared pro se and appellee appeared through his counsel.           The court
    stated it had reviewed appellant’s motion and its attachments.
    {¶9}   Appellant stated her father, Fela Sowande, was from Nigeria. He was a
    music composer and moved to the United Kingdom when he was 37 years old. In 1968,
    when he was in his 70s, he moved to the United States where he taught music at Kent
    State University and resided in Portage County, Ohio.
    {¶10} Appellant said her father had copyrights on some of his musical
    compositions; tape recordings of other music he had written; ceremonial clothing; and
    several family photos that were not listed as assets on the estate inventory. She does
    not know their monetary value, but said their value was mostly “sentimental.” She said
    she wanted to be appointed fiduciary of her father’s estate to answer questions she has
    3
    regarding whether anything was “out of line” with regard to the administration of her
    father’s estate. She said she filed her motion under R.C. 2109.35(A).
    {¶11} Appellee’s counsel said that at the time of Mr. Sowande’s death, he had a
    valid will. Proper notice was given and there was no fraud. He said that the executrix
    died many years ago and thus is unable to defend against appellant’s baseless
    accusations. He said that appellee, as his mother’s sole beneficiary, has pursued the
    items at issue, but that he has been unable to determine if any of this property still
    exists.
    {¶12} The court set the matter for an evidentiary hearing on appellant’s motion
    to vacate. The court gave appellant three months to retain counsel if she chose to do
    so and to give her counsel sufficient time to prepare for the evidentiary hearing. The
    court strongly urged appellant to retain counsel for the upcoming hearing.
    {¶13} On February 26, 2014, the trial court held the evidentiary hearing. Once
    again, appellant appeared pro se and appellee appeared through his counsel. The
    court asked appellant to outline her evidence of Mrs. Sowande’s alleged fraud.
    Appellant said she had two examples of the fraud. First, in Mrs. Sowande’s May 1987
    affidavit for service by publication, she said she did not know the present whereabouts
    of her husband’s two daughters. Appellant said this was a lie and a fraud because she
    had talked to her father in 1985 and she told him where she lived. Appellant argued this
    proved that Mrs. Sowande knew her address and should have given her notice of the
    probate estate.
    4
    {¶14} For her second example of Mrs. Sowande’s alleged fraud, appellant said
    she does not understand why Mrs. Sowande did not include her father’s musical works
    in his inventory.
    {¶15} Appellant argued she could not have challenged her father’s will earlier
    because she was not notified of her father’s probate case.           However, materials
    submitted with appellant’s motion to reopen show that she knew her father resided in
    Portage County at the time of his death in March 1987. Further, appellant learned
    about his death in July 1987, which was eight months before the court approved the
    final account of his estate on March 24, 1988. Yet, appellant did nothing for the next 25
    years to determine whether a probate estate had been opened for her father, and did
    not file her motion to vacate until October 25, 2013.
    {¶16} Appellee’s counsel said that no one knows where Fela Sowande’s musical
    compositions and other items mentioned by appellant are located or where to pursue
    them. Thus, he said there would be no point in reopening the estate to include them.
    {¶17} The court said it would review again all of appellant’s filings before ruling
    on her motion.
    {¶18} On April 1, 2014, the court entered judgment denying appellant’s motion to
    vacate. In support, the court made detailed findings of fact and conclusions of law. The
    court stated it had considered the documents attached to appellant’s motion and found
    no evidence of fraud.
    {¶19} One week later, on April 7, 2014, appellant submitted a letter to the clerk
    of the trial court, with the following attachments: (1) a letter requesting that all court
    proceedings be transcribed; (2) a letter requesting findings of fact and conclusions of
    5
    law in support of the court’s judgment; and (3) “Material Evidence RE: Challenge to
    Alleged Marital Status of Principal Parties in This Case.”
    {¶20} On April 8, 2014, the trial court signed a journal entry stating its April 1,
    2014 judgment denying appellant’s motion to vacate was the court’s findings of fact and
    conclusions of law.
    {¶21} Appellant appeals the trial court’s April 1, 2014 judgment, asserting four
    assignments of error. Her first assigned error alleges:
    {¶22} “The trial court denied due process guaranteed by the 14th Amendment of
    the United States Constitution to the Appellant Leanne A Sowande and the Appellant’s
    sister Beverly F. Sowande (now deceased) by prejudicially excluding relevant evidence,
    that the fiduciary’s failure to provide ‘meaningful notice’ at a ‘meaningful time’ to the
    known and/or easily ascertainable address of the Appellant and the Appellants sister
    Beverly F. Sowande (now deceased), pursuant to R.C. 2109.02, was a harmful,
    deliberate, act of constructive fraud; and, that the trial court failed to provide ‘meaningful
    notice at a meaningful time’ to the Appellant, that the relevant evidence of constructive
    fraud had been excluded by the Court violating Fed. Rules of Evidence 401-402 and
    Ohio Rules of Evidence 401-402.” (Sic throughout.)
    {¶23} Before addressing the merits of this assigned error, we note that Leanne
    A. Sowande is the sole appellant in this case and that her sister Beverly passed away in
    2010. Thus, appellant cannot assert the alleged violation of Beverly’s rights in this
    appeal. We therefore confine our analysis and holding to appellant’s appeal.
    {¶24} Moreover, at the November 26, 2013 conference, appellant argued her
    motion was based on R.C. 2109.35(A). That section provides:
    6
    {¶25} The order of the probate court upon the settlement of a fiduciary’s
    account shall have the effect of a judgment and may be vacated
    only as follows:
    {¶26} The order may be vacated for fraud, upon motion of any person
    affected by the order * * *, if the motion is filed * * * within one year
    after discovery of the existence of the fraud.
    {¶27} “R.C. 2109.35(A) permits a motion to vacate to be filed within the year
    after fraud is discovered.” Santillo v. Fenwick, 9th Dist. Summit No. 16801, 1995 Ohio
    App. LEXIS 391, *6 (Feb. 1, 1995). The undisputed evidence shows that appellant did
    not file her motion within the one-year time limit set forth in this statute. The documents
    attached to appellant’s motion to vacate show that on February 9, 2012, appellant wrote
    a letter to the trial court regarding her father’s estate. Thus, she was aware of the
    existence of the estate by that date. Further, these documents show that on April 2,
    2012, she wrote an e-mail stating she had a fraud claim regarding her father’s musical
    works and that she was “taking steps to correct” this. Thus, appellant discovered her
    alleged fraud claim at the latest by April 2, 2012, and had until April 2, 2013, to file her
    motion to reopen, but did not file it until six months later on October 25, 2013. While
    appellant’s motion to reopen was thus untimely by six months, appellee did not raise
    this issue below and it is thus waived. State v. Awan, 22 Ohio St.3d 120,122 (1986).
    {¶28} Turning now to the merits of appellant’s appeal, “‘R.C. 2109.35(A), which
    provides that the settlement order of the probate court may be vacated upon the motion
    of any person affected thereby, is based upon fraud. Fraud must be shown by clear
    and convincing proof.’”      Mathe v. Fowler, 
    13 Ohio App. 3d 273
    , 274-275 (11th
    7
    Dist.1983), quoting In re Estate of Nyhuis, 
    65 Ohio Law. Abs. 65
    (App.1952). “Cases
    vacating settlement orders on the basis of fraud usually involve an intentional
    misappropriation of funds by an administrator * * *.” 
    Mathe, supra, at 275
    .
    {¶29} In Mathe, this court held that a motion to vacate on the basis of fraud was
    properly denied because the record did not contain clear and convincing proof that the
    fiduciary intentionally omitted a tort claim from the account to defraud the tort claimants.
    
    Mathe, supra, at 275
    . In Mathe, there was a dispute about the sufficiency of the tort
    complaint and the claim was not liquidated when the account was filed.             In those
    circumstances, this court held there was no clear and convincing proof of fraud and thus
    the trial court did not err in denying the motion to vacate by reason of fraud. 
    Id. As a
    result, under R.C. 2109.35(A), an allegation of fraud must be supported by clear and
    convincing evidence that the fiduciary intentionally defrauded the court, a beneficiary,
    and/or an estate claimant.
    {¶30} Further, in Pengelly v. Thomas, 
    151 Ohio St. 51
    (1949), the Supreme
    Court of Ohio held that an executrix who innocently held herself out as the lawful wife of
    the deceased had not committed fraud when, three years after approval of her final
    account, it was discovered that the deceased had been previously married; that he was
    never divorced; and that the executrix was thus not actually his wife. 
    Id. at syllabus.
    {¶31} Appellant’s first assigned error essentially challenges the court’s judgment
    denying her motion to vacate as being against the manifest weight of the evidence. In a
    civil case, an appellate court will not reverse a judgment as being against the weight of
    the evidence as long as there is some competent, credible evidence supporting the
    judgment. C.E. Morris Co. v. Foley Construction Co., 
    54 Ohio St. 2d 279
    (1978),
    8
    syllabus. Even if we do not agree with the trial court or might have found differently, we
    cannot substitute our judgment for that of the trial court. We must give deference to the
    trier of fact because it is best able to observe the witnesses and their demeanor and to
    determine their credibility. Seasons Coal Co. v. Cleveland, 
    10 Ohio St. 3d 77
    , 80 (1984).
    {¶32} Appellant argues Mrs. Sowande committed fraud by, first, stating in her
    affidavit for service by publication that she did not know appellant’s present
    whereabouts, and, second, by not including her father’s musical works and other items
    in his inventory.
    {¶33} For the first prong of appellant’s fraud argument, she contends that
    because she gave her address to her father two years before his death, Mrs. Sowande
    lied when she said in her affidavit that she did not know her present whereabouts.
    However, the fact that appellant gave her address to her father two years before his
    death does not mean her father gave her address to his wife. Without proof that Mrs.
    Sowande actually knew appellant’s address when she executed her affidavit, there is no
    clear and convincing evidence of fraud. 
    Mathe, supra
    .
    {¶34} Appellant alternatively argues that, even if Mrs. Sowande did not engage
    in actual fraud, the evidence supported a finding of constructive fraud. Constructive
    fraud is the breach of a duty, which, regardless of the existence of fraudulent intent, the
    law declares fraudulent, because of its tendency to deceive others or violate a
    confidence. Cohen v. Estate of Cohen, 
    23 Ohio St. 3d 90
    , 91 (1986). “Constructive fraud
    often exists where the parties to a contract have a special confidential or fiduciary
    relationship.” 
    Id. at 92.
    However, in her motion to vacate, appellant alleged “deliberate
    fraud” and never argued her claim was based on constructive fraud. Moreover, at both
    9
    the conference and the evidentiary hearing, appellant never said her motion was based
    on constructive fraud.
    {¶35} It is well-established that an appellant may not assert a new theory for the
    first time before an appellate court. Kalish v. Trans World Airlines, 
    50 Ohio St. 2d 73
    , 77
    (1977). “Having determined the impropriety of the presentment of appellant’s
    [argument], no discussion of its merits is warranted.” 
    Id. {¶36} In
    any event, because there was no evidence Mrs. Sowande breached a
    contract with or violated a fiduciary duty owed to appellant, there was no evidence of
    constructive fraud.
    {¶37} For the second prong of appellant’s fraud argument, she contends the fact
    that her father’s musical works, copyrights, audio tapes, ceremonial clothing, and
    photos were not included on the inventory also proves Mrs. Sowande’s fraud. However,
    appellant did not submit any evidence that Mrs. Sowande was aware of the existence of
    any of these items. Without evidence that appellant knew about these items, there was
    no clear and convincing evidence of fraud. 
    Mathe, supra
    .
    {¶38} We therefore hold the trial court’s finding that Ms. Sowande did not
    engage in fraud was supported by competent, credible evidence and the court’s denial
    of appellant’s motion to vacate was not against the manifest weight of the evidence.
    {¶39} Appellant’s first assignment of error is overruled.
    {¶40} Because appellant’s second, third, and fourth assigned errors are
    interrelated, repetitive, and governed by the same legal principles, they are considered
    together. They allege:
    10
    {¶41} “[2.] The trial Court committed prejudicial error in (1) its failure to
    acknowledge, consider, and admit into the record of the proceedings, Court certified
    existing documentary evidence, and NEW, verifiable, documentary evidence, properly
    submitted to the Court by the Appellant pursuant to Fed. Rules of Evidence 401-402
    and Ohio Rules of Evidence 401-402; and, (2) the trial Court committed prejudicial error
    in its failure to judicially notice, or otherwise lawfully notice the Appellant of any
    deficiency, rejection, and/or exclusion of relevant evidentiary documents, by providing a
    clear statement of cause, and method to cure any found deficiency, that would result in
    the Court’s rejection, and/or exclusion of the properly submitted documentary evidence;
    and, (3) in so doing the trial Court denied 14th Amendment procedural due process to
    this Appellant.
    {¶42} “[3.] The trial Court committed prejudicial error violating Fed. Rules of
    Evidence 401-402 and Ohio Rules of Evidence 401-402. by wrongly excluding relevant
    evidence of Obstruction of Justice, [violation of R.C. 2911, R.C. 2921.12; and 18 U.S.C.
    Section 1001] by the fiduciary and Executrix Eleanor McKinney (Sowande) in her
    knowing filing of false documents with the Court in the probate of 1987; and, the Court
    committed prejudicial error violating Fed. Rules of Evidence 401-402 and Ohio Rules of
    Evidence 401-402 in wrongly excluding relevant evidence of Obstruction of Justice,
    [violation of R.C.2911, R.C. 2921.12;and 18 U.S.C. Section 1001] in the knowing filing
    of false documents with a Federal Court, by the Appellee, David L. Moore, in 2012. The
    trial Court’s prejudicial exclusion of the relevant evidence of Obstruction of Justice,
    further denied 14th Amendment’s procedural due process to this Appellant.
    11
    {¶43} “[4.] The trial Court committed prejudicial error [violating Fed. Rules of
    Evidence 401-402] and denied the Appellant 14th Amendment due process in:                (1)
    wrongly excluding relevant evidence that supports the Appellant’s claims of fraud and
    denial of due process articulated in the Motion to Reopen; and, (2) prejudicially
    excluded relevant evidence without timely notification provided to the Appellant with
    information as to cause(s) of the exclusion, and/or, timely information of the procedures
    to cure deficiencies and prevent exclusion, and, (3) demonstrated prejudicial partiality
    and bias in the Journal Entries which, rule entirely against the weight of the relevant,
    substantial, clear, and compelling evidence of fraud submitted to the court by the
    Appellant in 2013 and 2014; and (4) demonstrated partiality and bias in the misleading
    language [no evidence was offered] in the Court’s Order overruling the Appellant’s
    Motion to Reopen Case Number ES 1987 36785 pursuant to R.C. 2109.35(A).” (Sic
    throughout.)
    {¶44} Appellant argues that because the court found there was no evidence of
    fraud on the part of the fiduciary, this means the court improperly excluded her
    documents from the evidence. However, the court did not exclude any of her exhibits.
    In fact, during the conference, the court stated it had considered the evidence appellant
    had submitted with her motion to reopen. And, during the evidentiary hearing, the court
    said it would again review all documents that appellant had filed before ruling on her
    motion. Moreover, in its judgment, the court stated it had “considered the statements of
    [appellant] and [appellee’s counsel]. The court also considered the filings of [appellant].”
    Thus, the court did not exclude any of the documents submitted by appellant with her
    12
    motion.   The court simply found that none of these documents proved that Mrs.
    Sowande committed fraud in administering her husband’s estate.
    {¶45} Next, appellant argues that her post-judgment letter to the court asking for
    findings of fact and conclusions of law regarding the court’s April 1, 2013 judgment
    constituted a request for judicial notice of the documents she submitted. However, this
    letter could not reasonably be construed as a request for judicial notice.       Because
    appellant never asked the court to take judicial notice, the court was not required to do
    so. Evid.R. 201(D). Moreover, by not requesting judicial notice, any issue regarding the
    taking of judicial notice is waived. 
    Awan, supra, at 122
    .
    {¶46} Next, appellant argues the trial court gave her leave to submit additional
    evidence at the February 26, 2014 evidentiary hearing and that the documents she sent
    to the court after final judgment was entered were submitted pursuant to such leave.
    However, appellant either misstates or misconstrues the court’s comments. Appellant
    did not request and the court did not grant her such leave. Instead, the court stated, not
    at the February 26, 2014 evidentiary hearing, but, rather, during the November 26, 2013
    conference, that the court would schedule the evidentiary hearing in 90 days on
    February 26, 2014. The court said the purpose of setting the evidentiary hearing so far
    in advance was to give any attorney appellant might retain an opportunity to prepare for
    the evidentiary hearing and to review her motion to decide whether it needed to be
    amended. Thus, contrary to appellant’s argument, the court did not give her leave to
    amend her motion or to file additional documents, let alone after the court entered final
    judgment on her motion.
    13
    {¶47} Alternatively, appellant argues that Civ.R. 15(B) allows for the admission
    of her post-judgment documents “to conform to the evidence.” However, in making this
    argument, she misconstrues Civ.R. 15(B), which allows amendments to the pleadings to
    conform to the evidence to reflect issues raised at trial.          Contrary to appellant’s
    argument, this rule does not allow a court to admit documents concerning issues that
    were not tried, which were submitted to the court for the first time after trial and after the
    court entered final judgment without leave of court.
    {¶48} Next, appellant argues the trial court was required to give her notice of any
    deficiencies or errors in the documents she submitted post-judgment so she could have
    cured them. However, because appellant submitted the documents at issue after the
    court entered final judgment, the case was closed and the court was not required to
    address them or to explain to appellant why it did not address them.              Appellant’s
    decision to proceed pro se does not excuse her ignorance or misunderstanding of the
    law. “‘While one has the right to represent himself or herself and one may proceed into
    litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained
    in the law as far as the requirement to follow procedural law and adherence to court
    rules. If the courts treat pro se litigants differently, the court begins to depart from its
    duty of impartiality and prejudices the handling of the case as it relates to other litigants
    represented by counsel.’” Craft v. Edwards, 11th Dist. Ashtabula No. 2007-A-0095,
    2008-Ohio-4971, ¶41, quoting State v. Pryor, 10th Dist. Franklin No. 07-AP-90, 2007-
    Ohio-4275, ¶9.
    {¶49} Next, appellant claims her post-judgment documents were relevant
    because they challenged the marital status of her father and Mrs. Sowande. However,
    14
    aside from the fact that these documents were submitted post-judgment and without
    leave of court, even if they were relevant for such purpose, without proof that Mrs.
    Sowande knew about them or their contents, they would not have proved intentional
    fraud. 
    Pengelly, supra
    .
    {¶50} Finally, appellant’s argument that the trial court engaged in the crime of
    obstruction of justice by not considering her untimely-filed documents is without legal or
    factual support and does not merit further discussion.
    {¶51} Appellant’s second, third, and fourth assignments of error are overruled.
    {¶52} For the reasons stated in this opinion, appellant’s assignments of error
    lack merit and are overruled. It is the judgment and order of this court that the judgment
    of the Portage County Court of Common Pleas, Probate Division, is affirmed.
    THOMAS R. WRIGHT, J.,
    COLLEEN MARY O’TOOLE, J.,
    concur.
    15
    

Document Info

Docket Number: 2014-P-0018

Judges: Rice

Filed Date: 12/8/2014

Precedential Status: Precedential

Modified Date: 4/17/2021