In re Guardianship of Baker , 2021 Ohio 3692 ( 2021 )

[Cite as In re Guardianship of Baker, 2021-Ohio-3692.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
IN THE MATTER OF :
THE GUARDIANSHIP OF : Appellate Case No. 29145
STEVEN BAKER :
: Trial Court Case No. 2019-GRD-314
:
: (Appeal from Common Pleas
: Court – Probate Division)
:
:
...........
OPINION
Rendered on the 15th day of October, 2021.
...........
WORRELL A. REID, Atty. Reg. No. 0059620, 7805 North Dixie Drive, Suite A, Dayton,
Ohio 45414
Attorney for Petitioner-Appellant
ELI T. SPERRY, Atty. Reg. No. 0083852, ROBERT H. HOLLENCAMP, Atty. Reg. No.
0084370, ANTHONY V. GRABER, Atty. Reg. No. 0095691, 130 West Second Street,
Suite 1500, Dayton, Ohio 45402
Attorneys for Respondent-Appellee
.............
DONOVAN, J.
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{¶ 1} Donald Baker, Sr., and Harold Bryant (“Movants”) appeal from the June 1,
2021 order of the probate court denying their motion to vacate the probate court’s
appointment of Eli Sperry, an attorney, as guardian for the person and estate of Steven
Baker. We affirm the judgment of the probate court.
{¶ 2} On August 13, 2019, Sperry filed an Application for Appointment of Guardian
of Alleged Incompetent, pursuant to R.C. 2111.03, representing to the probate court that
Steven Baker was “incompetent by reason of (R.C. 2111.01(D)) Dementia.” On a form
designed to designate next of kin, Sperry listed “Pamela Everhart” at a Dayton address.
The court set the matter for a hearing on September 3, 2019, and a notice of the
September 3 hearing was sent to Pamela Everhart.
{¶ 3} Sperry further filed an Applicant’s Report, which stated that Baker had been
diagnosed with “Dementia of the Alzheimer type with behavioral disturbances” and that
he resided in his own home. The report stated that there were allegations of “[a]buse,
neglect, or exploitation of the proposed ward.” The report further provided: “Mr. Baker is
believed to have been financially exploited by friends/family. Mr. Baker’s niece, Pamela
Everhart, is his former POA. Ms. Everhart executed a Quit Claim Deed for Mr. Baker’s
home, transferring the property to herself (using her POA position) and signed for [Baker]
as his POA.” According to the report, Sperry had been contacted by Adult Protective
Services concerning the “dwindling” of Baker’s financial reserves “by someone other than
himself”; it asserted that Baker was “attempting to stop the exploitation,” but he was
“limited by his Dementia.” The report asserted that an assisted living facility or an
extended care facility would be appropriate for Baker.
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{¶ 4} An affidavit in support filed by Sperry stated that the Dayton Veteran
Administration (VA) referred Baker to Adult Protective Services because of concerns
about financial exploitation. The affidavit stated that Sperry had personally reviewed
Baker’s medical records, which were provided by the Dayton VA, but that the Dayton VA
took the position that it was not authorized “to prepare and release a statement of expert
evaluation” for Baker. The affidavit further stated that Sperry had been unable to procure
a statement of expert evaluation to accompany his application to be appointed guardian
of the person and estate of Baker.
{¶ 5} On August 14, 2019, the court investigator’s report on the proposed
guardianship was filed. It stated that Baker had a “fair” understanding of the concept of
guardianship; that his attitude was “consenting”; that there was no statement of expert
evaluation; and that Pamela Everhart, Baker’s niece and only listed next of kin, was
alleged to have financially exploited Baker.
{¶ 6} On September 9, 2019, the magistrate continued the September 3, 2019
hearing until October 31, 2019, noting that Everhart had not been properly served and
that Sperry had not received a statement of expert evaluation. The court ordered that
notice of the hearing be served upon Everhart by certified mail at her last known address.
{¶ 7} On September 11, 2019, a statement of expert evaluation was filed. It
stated that Baker had been evaluated on September 4, 2019, at his home by Kara E. A.
Marciani, PSy.D.ABPP, a licensed clinical psychologist who was board certified in
forensic psychology. The evaluation concluded that Baker “exhibited deficits in memory
and executive functioning (e.g. planning, sequencing, abstraction, judgment, and problem
solving) that were consistent with diagnosis of Major Neurocognitive Disorder.” It further
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stated:
The results of the present evaluation suggest that Steven Baker is no longer
able to take proper care of his person or estate. In light of the present
findings, it is the undersigned’s opinion with reasonable psychological
certainty that he needs a guardian of person and estate. The deficits Mr.
Baker possesses are expected both to persist indefinitely and worsen as he
ages. It is subsequently expected that he will need a guardian for the
foreseeable future. Given that Mr. Baker has been the repeated victim of
financial exploitation, the appointment of a guardian marks the least
restrictive intervention in this case, as Court oversight will be necessary to
insure that he is not similarly victimized in the future.
{¶ 8} On November 5, 2019, the magistrate filed an entry which stated that notice
of the filing of the action and of the hearing had not been properly served upon Everhart,
that the certified mail sent to her had been held for the required period and was being
returned to the Court marked unclaimed, and that the hearing would be continued until
December 17, 2019.
{¶ 9} On November 15, 2019, Sperry filed a motion to appoint a special process
server to perfect service on Everhart; the court granted the motion. On December 11,
2019, Sperry filed an amended next of kin form, which listed Everhart’s address as
“unknown.” On the same day, Sperry informed the court that service could not be made
upon Everhart and that he had attempted to find her address by “asking relatives and next
of kin” and checking local directories, including “Lexis Nexis People Finder.”
{¶ 10} On December 17, 2019, the magistrate conducted a hearing and issued a
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decision finding that Baker was incompetent pursuant to R.C. 2111.01(D) and that
guardianship of the person and estate was necessary. The magistrate found that Sperry
was “a suitable and competent person” and recommended that he be appointed as
guardian of the person and estate of Baker. The specific powers conferred were “as
described and limited to those powers contained in the Letters of Guardianship issued by
this Court.” The same day, the probate court issued a judgment adopting the
magistrate’s decision and appointing Sperry as guardian of Baker’s person and estate.
{¶ 11} On March 12, 2020, Sperry filed a notice/application for change of
residence, which stated that Baker’s home health agency had terminated his services
because he required a higher level of supervision and care than it could provide. The
court approved the application.
{¶ 12} On June 9, 2020, Sperry filed an application for authority to expend funds,
namely a payment of no more than $400 to Cox Media for publication costs related to a
land sale in the Montgomery County Probate Court (Case No. 2020 MSC 00119).
{¶ 13} On February 17, 2021, Harold Bryant, pro se, filed a guardianship
complaint, asserting that he was Baker’s “Durable POA and 1st cousin.” On an attached
sheet, Bryant asserted that he was “[p]etitioning the court for an Emergency Motion for
Temporary Restraining Order to Terminate the private sale” of Baker’s home on Rockport
Avenue. Bryant argued that the closing was scheduled for Thursday, February 18, 2021,
and that that the sale is not in Baker’s best interest. According to Bryant, Harold and/or
Verna Bryant were granted Baker’s power of attorney on June 21, 2018, and Sperry had
not honored it. Bryant requested that the guardianship be terminated and a new
guardian be appointed. He also alleged that Baker was being physically abused at his
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current facility.
{¶ 14} Sperry responded to the complaint on the same day. Sperry asserted that
Baker had several health and mental health issues, which required his placement in an
extended care facility. He also asserted that he had not been aware of Bryant’s power
of attorney, and that Baker had “had several Power of Attorneys[;] in fact, his niece used
a recorded Power of Attorney to illegally transfer the subject property to herself, which the
Guardian was able to have undone.”
{¶ 15} On March 5, 2021, Sperry filed a guardian’s report stating that Baker was
residing at a nursing home; Sperry also filed an annual guardianship plan which stated
that Baker’s home “should be sold soon” through the land sale action in the probate case
to save on the costs of maintaining the property.
{¶ 16} On March 8, 2021, the probate court issued a “Disposition of Guardianship
Complaint,” stating that it had considered the complaint and found that a hearing was not
necessary, and no further action would be taken at that time.
{¶ 17} On April 9, 2021, Sperry filed a motion for an order revoking powers of
attorney. The motion stated that Harold Bryant allegedly had an unrecorded financial
power of attorney over Baker and was attempting to use the power of attorney to transfer
the property that was subject to the land sale action to himself before the anticipated
closing date, notwithstanding his knowledge of the land sale action. Thus, Sperry
requested an order revoking any powers of attorney over Baker. The magistrate set the
motion for a hearing on May 24, 2021. Bryant was served at an address in Duncanville,
Texas by certified mail, as evidenced by a return receipt.
{¶ 18} On May 17, 2021, Bryant filed a motion to vacate proceedings and to restore
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Baker’s “competency and property.” The motion asserted that Bryant, as attorney-in-
fact, brother, and next-of-kin for Baker, sought to vacate the appointment of a guardian
for Baker, because Baker’s “next of kin, all of whom [were] residents of Montgomery
County, Ohio, when Eli T. Sperry filed for guardianship, were not served with notice as is
mandated by law.” The motion further asserted that, if Sperry had “engaged in even a
cursory search of the public records, including a free Google search, he would have easily
discovered that Donald L. Baker, and Carolyn L. Williams were the next of kin of Steven
Baker, known to reside in Montgomery County, Ohio.” The motion argued that the
judgment appointing a guardian was “void or voidable” and should be vacated pursuant
to R.C. 2111.47 and/or Civ.R. 60(B)(5).
{¶ 19} The motion further asserted that Bryant had standing to set aside the
judgment because he was Baker’s attorney-in-fact, and that Donald L. Baker (“Donald”)
had standing as Baker’s next of kin. Movants argued that they had been entitled to notice
as mandated by law and that the notice mandated by R.C. 2111.04 was a “condition
precedent” to the appointment of a guardian and the issuance of letters of authority.
They also asserted that Baker’s next of kin, including Donald, had been denied their right
to due process, as they were not served with notice of the hearing on the application for
the appointment of Sperry as guardian. Movants asserted that the probate court “did not
have jurisdiction” and that Sperry had committed “fraud upon the court.” Movants argued
that they had “a meritorious defense” and had filed their motion within a reasonable time,
“since they were not given notice of the hearing in the first place.” Finally, they asserted
that Donald had only recently received notice that Sperry had been appointed as
guardian, by virtue of the land sale proceeding.
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{¶ 20} An “Affidavit of Harold Bryant and Donald Baker” was attached to the motion
(Exhibit A). The affidavit stated that Susie (Baker) Weaver died on August 15, 2014, that
she was survived by Steven Baker, her daughter Carolyn Williams (“Carolyn”), and
Donald Baker, and that Steven Baker did not have any children. The affidavit further
stated that Donald had lived at a Seven Gables Avenue address in Dayton “continuously,
before 1990” and that Carolyn had lived at a Prescott Avenue address in Dayton
“continuously, before October 24, 2014.”
{¶ 21} The following documents were also attached to the affidavit: Susie
Weaver’s obituary, documents reflecting Donald’s home address on Seven Gables
Avenue in Trotwood and Carolyn’s address on Prescott Avenue in Dayton, an affidavit of
Julia Wingard, Baker’s cousin, and a “Statutory Durable Power of Attorney,” purportedly
signed by Baker.
{¶ 22} The statutory durable power of attorney appointed “Harold Bryant &/or
Verna Bryant, * * * resident of 918 Westminster Lane, Duncanville, Texas 75137, as
[Baker’s] true and lawful Attorney-in-Fact, to act for [him] in any lawful way” with respect
to all of the powers initialed on the document. On this document, the initials “SB”
appeared next to paragraph (O), which indicated the granting of “[a]ll of the powers listed
in (A) through (N).” The document also indicated that the power of attorney granted
therein was “not affected by [Baker’s] subsequent disability or incapacity.” The
document was notarized and dated June 21, 2018.
{¶ 23} Julia Wingard’s affidavit stated that she was Baker’s cousin and that
Carolyn Williams and Donald Baker were residents of Dayton, Montgomery County, Ohio,
“before and during the time” that Sperry filed his application to become guardian.
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According to Wingard, a title search of the 5303 Rockport Avenue property in Dayton,
Ohio, “shows that [Baker] initially obtained the title via an Affidavit of Survivorship, filed
as File # 2014-00050997,” and the certificate of death attached to the affidavit of
survivorship “shows the Decedent as Susie Lily Weaver, who died on 8/14/2014 * * *.
The Informant’s Name was Steven L. Baker, who was listed as the Decedent’s son.”
Wingard averred that the real estate described in the affidavit of survivorship was the
same real estate described in the complaint to sell real estate in Case No. 2020 MSC
00119. According to Wingard, the document attached to her affidavit as Exhibit E, the
Montgomery County Auditor’s Master Tax List, showed “Donald L. Baker, of 5849 7
(Seven) Gables Ave., Dayton, OH 45426, as the owner of the home.” Further, the
document attached as Exhibit G, the Montgomery County Auditor’s Master Tax List,
showed “Carolyn L. Williams, of 4072 Prescott Ave., Dayton, OH 45406, as the owner of
the home.”
{¶ 24} Wingard averred that the Master Tax List showed that Carolyn’s title
“became fully vested on account of the death of Susie L. Weaver, aka Susie L. Baker.”
She asserted that a reasonable search for Baker’s next of kin should have revealed that
Susie L. Weaver was Baker’s mother, that Donald was Baker’s brother, and that Carolyn
was Baker’s sister. Wingard averred that Sperry had failed to notify Donald and Carolyn
of his application for guardianship.
{¶ 25} On May 19, 2021, Bryant filed a motion to cancel the May 24, 2021 hearing
pending a ruling on his motion to vacate proceedings. The court denied Bryant’s request
to cancel the May 24 hearing, but it converted the hearing to a pretrial conference on
Sperry’s motion to revoke all powers of attorney.
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{¶ 26} On May 28, 2021, Sperry opposed Movants’ motion; he asserted that Bryant
did not have standing to request the relief sought, that “the letters of appointment in this
matter were not improperly issued pursuant to R.C. 2111.47,” and that Movants’ requests
under Civ.R. 60(B) were “untimely and meritless.” Sperry argued:
* * * As sworn to in the Oath of Guardian, the undersigned has, and
will continue to, protect Steven’s Baker’s interests and to make all decisions
based on the best interest of Steven Baker. * * * Harold Bryant, as ‘attorney-
in-fact,’ and Donald Baker, now seek to impede this oath, reverting the state
of Steven Baker’s affairs back to the financial exploitive state that justified
the appointment of an emergency and permanent guardian. There is no
better evidence of the malicious intent behind movants request than Harold
Bryant’s attempt to transfer Steven Baker’s property to himself the day
before the anticipated closing date on the Land Sale Action under 2020
MSC 00119.
{¶ 27} Sperry asserted that he had not been provided a copy of Bryant’s power-of-
attorney until May 17, 2021. According to Sperry, since Bryant had not asserted any
interest beyond his alleged power of attorney (which Sperry had requested that the court
revoke), Bryant did not have a right to seek the relief requested, had no personal stake in
the outcome of this guardianship, and thus lacked standing. Sperry asserted that,
contrary to the Movants’ assertion, he (Sperry) “provided proper notice to the next of kin
known to reside in this state at the time of the application.” Sperry further asserted that,
once he learned of the Movants’ existence, he provided legal and actual notice to them.
{¶ 28} Sperry asserted that, pursuant to R.C. 2111.04, he had “met his notice
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obligations, providing notice to the next of kin known at the time of the application,” and it
was of no consequence to the validity of his appointment as guardian that he or the court
later learned of “different next of kin.” For all of these reasons, Sperry asked that
Movants’ requests for relief pursuant to R.C. 2111.47 be denied.
{¶ 29} Regarding Civ.R. 60(B), Sperry asserted that the probate court should deny
movants’ motion because they had failed to demonstrate a meritorious defense or
entitlement to the relief sought under Civ.R. 60(B)(5), and their request was untimely.
Sperry asserted that no meritorious defense existed because he had properly served
notice on the next of kin known at the time of the application for guardianship. Sperry
further asserted that, on February 8, 2020, he personally met with Donald at Baker’s
residence and provided legal and actual notice to Donald of the proceedings. Two days
later, Sperry also had a telephone conversation with Donald Baker Jr., who was handling
his father’s (Donald’s) affairs and who resided in his home; four days later, Sperry sent
him an appointment reminder. The next week, Sperry and Donald discussed Baker’s
living situation. And with respect to “attorney-in-fact” Bryant, Sperry asserted that he
(Sperry) had not been aware of Bryant’s existence until just before Bryant “maliciously
attempted to steal” Baker’s property using an unrecorded power of attorney, the day
before the closing on Baker’s land sale under 2020 MSC 001119.
{¶ 30} Sperry further asserted that, in addition to proper notice having been served
on the next of kin known at the time of the application and appointment, Movants had
actual and legal notice of the guardianship “since as early as February 2020,” but they
waited until May 2021 to file their request for relief from the judgment appointing Sperry
as guardian. According to Sperry, in an effort to avoid the untimeliness of their request,
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Movants misrepresented to the court that they did not have notice until more recently,
despite personally meeting and discussing the guardianship with Sperry on several
occasions, and despite receiving notice through the related Land Sale Action no later than
March 25, 2020. Sperry asserted that this “blatant misrepresentation” was consistent
with the “malicious intent” behind the Movants’ motion, which sought to restore Baker to
a situation in which he had been financially exploited in the past and to steal his property
“under the guise of statutory and civil relief.”
{¶ 31} In its June 1, 2021 decision, the probate court noted that the Dayton VA had
referred Baker to Adult Protective Services due to allegations of financial exploitation, and
after an investigation, Adult Protective Services requested that Sperry apply to become
Baker’s guardian in order to protect Baker’s interests. The court also noted that the next
of kin form completed by Sperry provided the name and address of a known niece,
Pamela Everhart, who Sperry attempted to serve. The court also cited Dr. Marciani’s
expert evaluation of Baker. The court further stated:
On March 12, 2020, a Complaint of Guardian for Authority to Sell
Real Estate to Benefit Ward was filed in a related case in this Court, namely
2020 MSC 119. Along with said Complaint, Guardian filed Instructions for
Service, requesting service be issued by certified mail to now known,
Donald Baker, Mr. Baker’s brother. Return receipt signed by Donald Baker
of such notice was filed in said related case on March 25, 2020.
In addition, as part of said Complaint, on March 12, 2020, Guardian
filed a Motion for Service by Publication in said related case, petitioning the
Court for an Order authorizing service by publication on “[t]he unknown
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persons entitled to the next estate of inheritance from Steven Baker. . .”
Said Motion for Service by Publication was granted. Proof of said
publication was filed in said related case on July 9, 2020, indicating that
notice had been published in the Dayton Daily News three times, with the
last day of publication being June 22, 2020.
{¶ 32} Although the Movants had attached a statutory durable power of attorney
to their motion to vacate, and that power of attorney designated Bryant as an attorney-in-
fact for Baker, the probate court determined that, at the time the next of kin form was filed,
service was attempted, and the hearing was held “Mr. Baker’s niece, Pamela Everhart,
was Mr. Baker’s closest known next of kin; Mr. Baker’s siblings, Donald Baker and
Carolyn Baker, were unknown.” Thus, the court found that the R.C. 2111.04(A)(2)(b)
notice requirement had been satisfied in this case. The court also found “no fraudulent
conduct, nor any neglect of duty or incompetence” warranting Sperry’s removal as
guardian of Baker’s property or estate. Finally, the court found that:
Donald Baker, Mr. Baker’s brother and next of kin, had notice and
knowledge of the guardianship established in this Case prior to March 25,
2020, as evidenced by the return receipt, signed by Donald Baker, filed in
the related 2020 MSC 119 case. Moreover, Donald Baker and Mr. Baker’s
other next of kin had notice of the guardianship established in this Case in
June of 2020, by reason of publication filed in the related 2020 MSC case.
Still, Donald Baker and Harold Bryant waited nearly 14 months, or more,
after knowledge of said guardianship, to file a motion for relief from the
Judgment Entry Appointment of Guardian for Incompetent Person dated
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December 17, 2019 in this Case.
Accordingly, the probate court concluded that Movants’ Civ.R. 60(B)(5) motion for
relief from the judgment appointing a guardian had been untimely, and it denied
the motion.
{¶ 33} The Movants appeal, asserting three assignments of error, which we will
consider together. They are as follows:
THE TRIAL COURT’S ENTRY DENYING MOTION TO VACATE
PROCEEDINGS AND TO RESTORE WARD’S COMPETENCY AND
PROPERTY, WAS CONTRARY TO LAW PURSUANT TO R.C. 2111.47,
BECAUSE THE APPLICANT FAILED TO SERVE THE WARD’S NEXT OF
KIN WHOM EVERYONE, WITH THE POSSIBLE EXCEPTION OF THE
APPLICANT, KNEW TO RESIDE IN MONTGOMERY COUNTY.
THE TRIAL COURT’S ENTRY DENYING MOTION TO VACATE
PROCEEDINGS AND TO RESTORE WARD’S COMPETENCY AND
PROPERTY WAS CONTRARY TO LAW, AND AN ABUSE OF
DISCRETION, AS THE MOVANTS MET ALL THE REQUIREMENTS OF
CIV.R. 60(B)(5).
THE TRIAL COURT’S ENTRY DENYING MOTION TO VACATE
PROCEEDINGS AND TO RESTORE WARD’S COMPETENCY AND
PROPERTY WAS CONTRARY TO LAW, AND AN ABUSE OF
DISCRETION, BECAUSE THE MOVANTS’ ALLEGED OPERATIVE
FACTS WERE OF SUCH HIGH EVIDENTIARY QUALITY THAT THE
MOTION SHOULD HAVE BEEN SET OR A HEARING, AND
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SUBSEQUENTLY GRANTED.
{¶ 34} Movants argue that the probate court “may have lost sight of the fact that
we were in the midst of a global pandemic,” noting that the Supreme Court of Ohio had
tolled all applicable statutes of limitations to July 30, 2020. Movants point out that on
December 16, 2020, the Court then extended the tolling of all applicable statutes of
limitations for an additional 90 days, to March 16, 2021. According to Movants, the
probate court “acknowledged and was compelled by law to abide by” all of the Supreme
Court’s orders in this regard.
{¶ 35} Movants further assert that the expiration of the one year period within
which to file the Civ.R. 60(B) motion to vacate the entry appointing Sperry as guardian
was on March 16, 2022. They reason that the tolling period expired on or about March
16, 2021, and they then had an additional year within which to file their 60(B) motion.
Movants also argue that, because the trial court was without jurisdiction to appoint Sperry
as guardian, its judgment was “void ab initio” and “impeachable without regard to any time
frame.”
{¶ 36} In their first assignment of error, Movants assert that a “reasonable search”
to ascertain Baker’s next of kin would have revealed that Donald L. Baker and Carolyn
Williams were his next of kin and that they resided in Montgomery County, Ohio, and that
service of next of kin known to reside in Ohio is mandatory. Movants argue that R.C.
2111.04(A) “places a duty upon the probate court to cause written notice of the hearing
on the application for appointment to be served on the next of kin,” citing In re
Guardianship of Norman Baker, 5th Dist. Fairfield No. 00065, 2008-Ohio-5079. Movants
argue that, pursuant to R.C. 2111.01(E), the probate court must look to R.C. 2105.06 to
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determine the next of kin of the proposed ward, and that Pamela Everhart was not Baker’s
next of kin.
{¶ 37} Movants further argue that the letters of appointment were improperly
issued, and the proceedings “should be set aside” pursuant to R.C. 2111.47, which is
“designed to prevent individuals from profiting and preying on the elderly and infirm by
getting some ‘trumped-up’ statement of expert evaluation and attaching it to an
application for the appointment of a guardian.” They assert that they “are quite certain
that this is exactly what occurred” in this case, because Baker “is of very sound mind.”
Movants assert that Baker is “locked up in nursing home” and has been “deprived of his
liberty and property without due process.”
{¶ 38} Movants assert that their motion was filed in a reasonable time because the
judgment entry appointing the guardian was a “nullity.” In addition, they point out that
R.C. 2111.47 does not have a time frame for setting aside a judgment appointing a
guardian. They contend that the probate court’s “requirement that a motion filed
pursuant to R.C. 2111.47 be filed within a reasonable time, is an impermissible
augmentation of the statute.” Further, Movants argue that the court’s reference to Case
No. 2020 MSC 119 “is a bit bizarre”; they argue that, if the proceedings to appoint the
guardian were a nullity, the guardian’s attempt to sell Baker’s land would also be a nullity.
{¶ 39} In their second assignment of error, Movants assert that the probate court’s
decision was contrary to law and an abuse of discretion, because the Movants met all the
requirements of Civ.R. 60(B)(5), including having a meritorious defense, because service
of notice pursuant to R.C. 2111.04 was a condition precedent to the appointment of a
guardian. Movants also direct our attention to R.C. 2111.03, which addresses an
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application to appoint a guardian, and assert that the form of notice used by Sperry to
provide notice “was reasonably calculated to reach no one.” Movants suggest that
Sperry, “being an attorney, * * * committed ‘fraud upon the court’ by failing to use his skills
and training to ascertain the next of kin” of Baker and by submitting of a “false oath” to
the court.
{¶ 40} Finally, in their third assignment of error, Movants argue that their affidavits
clearly demonstrated that Sperry “failed to conduct a diligent search” to ascertain the
names and addresses for Baker’s next of kin and that their motion to vacate should have
been set for trial, “as the Magistrate promised to do at the hearing held on 5/24/21.”1
{¶ 41} Sperry responds that Movants have failed to explain their “substantial delay”
in contesting his appointment as guardian, “during which the purported ‘attorney-in-fact’
seemingly ignored his principal.” Sperry asserts that, the day before closing on the sale
of Baker’s property, Bryant attempted to transfer the property to himself with an
unrecorded power of attorney, then changed the locks, causing Sperry to incur further
expense in maintaining the property and commencing quiet title proceedings, without
benefit of the use and enjoyment of the property.
{¶ 42} Sperry directs our attention to In re Guardianship of Reed, 10th Dist.
Franklin No. 09AP-720, 2010-Ohio-345. He argues that, despite his efforts, he “was
unaware of the existence of the [Movants] at the time of the application and appointment.”
Sperry asserts that Movants argue that he “should have known (not knew)” of their
existence at the time of the application and appointment, because a Google search would
have revealed Baker’s next of kin, but Sperry argues that “a Google search for Steven
1
A transcript of the pretrial conference is not part of our file.
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Baker does not reveal the results sworn to by Ms. Wingard.” Sperry asserts that the
probate court considered the evidence presented by Movants, “judged its credibility,”
reconciled conflicts to the extent that any evidentiary conflicts existed, and found that he
(Sperry) had conducted “a reasonable search and notified known next of kin.”
{¶ 43} Sperry contends that the probate court did not find Movants’ “request for
relief under R.C. 2111.04 and R.C. 2111.47 was not brought within a reasonable time,
but rather, that their request for relief under Civ.R. 60(B) was untimely.”
{¶ 44} As to Movants’ second assignment of error, Sperry argues that, in finding
that they lacked a meritorious defense and were not entitled to Civ.R. 60(B) relief, the
probate court found Movants’ statutory notice argument unpersuasive and that they had
actual notice as early as March 2020, because they were served by certified mail and
publication in the related Land Sale Action in Case No. 2020 MSC 119. It further found
their request untimely because they waited 14 months past receiving actual notice to file
their Civ.R. 60(B) motion. Sperry asserts that Movants were not entitled to the
extraordinary relief provided by Civ.R. 60(B)(5).
{¶ 45} Sperry also contends that he met with Donald on February 18, 2020, “and
provided legal and actual notice of the proceedings.” He asserts that he was not aware
of Bryant’s existence “until just before he maliciously attempted to steal Steven Baker’s
property (the first time)” by using his unrecorded power of attorney the day before the
closing in the related land sale action.
{¶ 46} With respect to the Ohio Supreme Court’s COVID-19 tolling order, Sperry
contends that Movants’ assertion that the order negated the untimeliness of their request
for relief was not presented in the trial court and therefore has been waived on appeal;
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moreover, even assuming the argument was not waived, he argues that it is meritless.
According to Sperry, Movants could have filed their motion for relief during the time period
that they “managed to unlawfully transfer Steven Baker’s property to themselves.”
{¶ 47} Finally, regarding Movants’ third assignment of error, Sperry argues that
Movants were not entitled to an evidentiary hearing. He notes that they failed to provide
a transcript of the magistrate’s alleged promise to hold a trial on their motion and that this
Court must therefore presume the regularity of the proceedings in the probate court.
Sperry asserts that Movants’ motion rests “in whole, upon their position that next of kin
was not properly served notice before the undersigned was appointed as guardian,” but
that they “failed to demonstrate their entitlement to a hearing.”
{¶ 48} In reply, Movants argue that Sperry “received constructive and legal notice”
of Baker’s next of kin, and it was contrary to law and an abuse of discretion for the trial
court to deny Movants’ motion, which was filed pursuant to R.C. 2111.47. They further
argue that their Civ.R. 60(B) motion was filed in a timely manner in light of COVID-19 and
the tolling of time requirements, and this issue was “properly preserved for appeal.”
{¶ 49} In a section entitled “Statement of Additional Facts,” Movants assert that on
Next of Kin Form 15.0, Sperry “did not specify” the name of Baker’s deceased sibling, the
death of whom caused Pamela Everhart to become his next of kin, “and we now know
that she was not the Ward’s next of kin at all,” because Everhart’s mother, Carolyn
Williams, “was alive at the time Sperry filed his application.” Movants assert that Sperry’s
statement in his Affidavit Search for Address that he had attempted to find Everhart by
“asking relatives and next of kin of the person to be served” was “a lie.” Movants also
assert that a Google search of “Steven Baker” and the Rockport address revealed that
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“one ‘Susie Baker’ or ‘Susie Weaver’ had previously lived at this address,” and Susie
(Baker) Weaver’s obituary, which was attached to their motion to vacate, stated that she
was survived by her son, Steven Baker. Movants assert that the obituary was a “matter
of public record” and thus admissible under the rules of evidence. According to Movants,
Sperry was “on notice” of the obituary and thus on notice of Baker’s next of kin. Movants
assert that Reed, 10th Dist. Franklin No. 09AP-720, 2010-Ohio-345, cited by Sperry, is
distinguishable.
{¶ 50} Movants assert that Sperry should have been required to “reveal who died”
to make Everhart, the person listed on the next of kin form, Baker’s next of kin. They
also assert that, pursuant to R.C. 2111.01(E), the probate court should have looked to
R.C. 2105.06 to determine the next of kin. Movants argue that Sperry filed his Affidavit
Search of Address in lieu of the mandatory notice provisions contained in R.C.
2111.04(A)(2), and that the affidavit, as written and signed, was “utterly irrelevant, as it
does not state the identity of the Ward’s next of kin known to reside in Ohio.”
{¶ 51} Movants assert that, pursuant to the definition of “constructive knowledge”
in Black’s Dictionary, Sperry knew that Everhart was not Baker’s next of kin and that his
siblings, Donald and Carolyn, were his next of kin and resided in Ohio; “[a]fter all, they
lived just around the corner.” Movants assert that, with proper notice, they would have
contested Sperry’s Application and would have had the opportunity to supply their own
statement of expert evaluation, showing that Baker was competent.
{¶ 52} Finally, Movants argue that they met the requirements of Civ.R. 60(B).
They assert that their meritorious defense was that they had not been served with notice
of Sperry’s application as is required by law, that they were entitled to relief pursuant to
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Civ.R. 60(B)(5) in light of Sperry’s misconduct in knowingly failing to serve Baker’s next
of kin in Ohio and representing that they could not be found. According to Movants,
Sperry would not have been appointed as guardian by the court if he (Sperry) had
“honestly represented” that he did not consult or attempt to serve Baker’s next of kin.
Finally, Movants assert that the COVID-19 tolling orders gave them an additional one
year within which to file a motion pursuant to Civ.R. 60(B)(5), and additionally, a motion
filed pursuant to Civ.R.60(B)(5) does not need to be filed within the one year limitation
period, but must simply be filed within a reasonable time. According to Movants, the
motion was filed within a reasonable time from Donald’s discovery of Sperry’s application.
{¶ 53} As discussed below, we conclude that the probate court did not abuse its
discretion in denying Movants’ motion to vacate; Sperry complied with R.C. 2111.04, the
letters of appointment were not improperly issued, and Movants lacked a meritorious
defense entitling them to relief under Civ. R. 60(B).
{¶ 54} R.C. 2111.02(A) provides: “If found necessary, a probate court on its own
motion or on application by any interested party shall appoint * * * a guardian of the
person, the estate, or both, of a minor or incompetent, provided the person for whom the
guardian is to be appointed is a resident of the county or has a legal settlement in the
county. * * *”
{¶ 55} A probate court's decision regarding the appointment or removal of a
guardian will not be reversed absent an abuse of discretion. Reed, 10th Dist. Franklin
No. 09AP-720, 2010-Ohio-345, at ¶ 8; In re Guardianship of Keane, 7th Dist. Carroll No.
19 CA 0934, 2020-Ohio-1105, ¶ 65. An abuse of discretion connotes more than an error
of law or judgment; it implies that the court's attitude was unreasonable, arbitrary or
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unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 56} Pursuant to R.C. 2111.03(D)(3), an application for the appointment of a
guardian for an incompetent must contain, among other things, the “[n]ame, degree of
kinship, age, and address of the next of kin of the alleged incompetent.” R.C. 2111.04,
the notice statute, states: “In the appointment of the guardian of an incompetent, notice
shall be served as follows: * * * (b) Upon the next of kin of the person for whom
appointment is sought who are known to reside in this state.” R.C. 2111.04(A)(2).
{¶ 57} Pursuant to R.C. 2111.01(E), “ ‘[n]ext of kin’ means any person who would
be entitled to inherit from a ward under Chapter 2105. of the Revised Code if the ward
dies intestate.” R.C. 2105.06, the statute of descent and distribution, determines a
proposed ward's next of kin in part as follows:
When a person dies intestate having title or right to any personal property,
or to any real estate or inheritance, in this state, the personal property shall
be distributed * * * in the following course:
***
(G) * * * [I]f there is no spouse, no children or their lineal descendants, and
no parent surviving, to the brothers and sisters, whether of the whole or of
the half blood of the intestate, or their lineal descendants, per stirpes * * *.
{¶ 58} R.C. 2111.47 provides:
Upon reasonable notice to the guardian, to the ward, and to the person on
whose application the appointment was made, and upon satisfactory proof
that the necessity for the guardianship no longer exists or that the letters of
appointment were improperly issued, the probate court shall order that the
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guardianship of an incompetent terminate and shall make an appropriate
entry upon the journal. Thereupon the guardianship shall cease, the
accounts of the guardian shall be settled by the court, and the ward shall be
restored to the full control of the ward's property as before the appointment.
Such entry terminating the guardianship of an incompetent person shall
have the same effect as a determination by the court that such person is
competent.
{¶ 59} In In re Guardianship of Norman Baker, 5th District Fairfield No.
07CA00065, 2008-Ohio-5079, ¶ 38, the court determined that R.C. 2111.04 “in
unambiguous terms requires service of notice of the hearing upon only (1) the proposed
ward and (2) the next of kin determined by application of the statute of descent and
distribution.”
{¶ 60} The following is well-settled:
“To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present
if relief is granted; (2) the party is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or
(3), not more than one year after the judgment, order or proceeding was
entered or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47
Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
These requirements are “independent and in the conjunctive, not the
disjunctive.” Id. at 151, 351 N.E.2d 113.
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“Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the
inherent power of a court to relieve a person from the unjust operation of a
judgment, but it is not to be used as a substitute for any of the other more
specific provisions of Civ.R. 60(B).” Caruso-Ciresi, Inc. v. Lohman, 5 Ohio
St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the syllabus.
Moreover, “[t]he grounds for invoking Civ.R. 60(B)(5) should be substantial.”
Id. at paragraph two of the syllabus. This section of the rule “is only to be
used in an extraordinary and unusual case when the interests of justice
warran[t] it.” Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d
469 (8th Dist.1974).
“In an appeal from a Civ.R. 60(B) determination, a reviewing court
must determine whether the trial court abused its discretion. * * * An abuse
of discretion connotes conduct which is unreasonable, arbitrary, or
unconscionable.” State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153,
684 N.E.2d 1237 (1997), citing State ex rel. Edwards v. Toledo City School
Dist. Bd. of Edn., 72 Ohio St.3d 106, 107, 647 N.E.2d 799 (1995). * * *
Worthington v. Administrator, Bur. of Workers’ Comp., 2021-Ohio-978, 169 N.E.3d 735,
¶ 17-19 (2d Dist.).
{¶ 61} “If the movant fails to allege operative facts, the trial court may deny the
motion without a hearing. Conversely, if grounds for relief under Civ.R. 60(B) are
apparent on the face of the record, the trial court may grant Civ.R. 60(B) relief, as a matter
of law, without a hearing.” UBS Real Estate Securities, Inc. v. Teague, 191 Ohio App.3d
189, 2010-Ohio-5634, 945 N.E.2d 573, ¶ 35 (2d Dist.).
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{¶ 62} In Reed, 10th Dist. Franklin No. 09AP-720, 2010-Ohio-345, Michael Juhola
filed an application to be appointed the guardian of Mary Reed’s person, and the probate
court appointed him as guardian. Id. at ¶ 3-4. Reed had resided at the Isabelle Ridgway
Care Center in Columbus, Ohio, since February 2007, and her daughter, Virginia Crump,
the appellant, resided in Marion, Ohio. Id. at ¶ 2. Crump filed a motion to set aside the
appointment of Juhola because she had not received notice of the application, but a
magistrate found that Juhola did not know of Crump as the ward's next of kin residing in
this state at the time he filed his application for guardianship, and thus had met the
applicable notice requirement. Id. at ¶ 5. Crump’s objections were overruled by the
probate court.
{¶ 63} Crump argued on appeal that the appointment of the guardian had been
contrary to law because Juhola had failed to comply with the notice requirement of R.C.
2111.04(A)(2)(b) by failing to notify her of the application. Id. at ¶ 9. The opinion
discussed the evidence presented as follows:
[Juhola] testified that he did not notify [Crump] of his guardianship
application because he did not know of her existence until April 19, 2008,
some four months after he filed the application. Loyce Scott, social
services director at the [Ridgway Care] Center, testified that she gave
[Juhola] the next-of-kin information that the Center had at the time [he]
sought appointment as guardian. According to Scott, this information did
not include [Crump’s] name because the Center was not aware of [her]
existence and relationship to the ward until mid-2008, and [Crump’s] sister
did not provide [Crump’s] name as a relative of the ward when the ward was
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admitted. Though [Crump] testified on direct examination that [Juhola]
should have known of her existence because, when [Juhola] filed the
application, [Crump] was listed as a next of kin in the Center's records, on
cross-examination she volunteered that her first visit with the ward at the
Center may not have been until mid-2008, after [Juhola] had been
appointed guardian. Lucy Little [another sister] testified that she told the
Center about [Crump] at some unspecified time before the ward was
admitted.
The trial court made a factual finding that [Juhola] complied with the
statutory notice requirement because he did not know of [Crump’s]
existence as a next of kin residing in this state, nor should he have known.
The evidence before the court was conflicting as to whether the Center
knew of [Crump’s] existence at the time [Juhola] filed his application for
guardianship. But it was within the trial court's province to judge the
credibility of the witnesses and reconcile conflicting testimony. State ex rel.
Petro v. Gold, 166 Ohio App.3d 371, 850 N.E.2d 1218, 2006-Ohio-943,
¶ 82; In re Guardianship of Florkey, 4th Dist. No. 07CA22, 2008-Ohio-4994,
¶ 16.
More importantly, however, the evidence was undisputed that
[Juhola] did not know of [Crump’s] existence until four months after he filed
his application for guardianship, despite having checked with the Center,
the source most likely, in the circumstances of this case, to possess the
needed information. This evidence supports the probate court's finding
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that [Juhola] did not know of [Crump] as a next of kin of the ward residing in
Ohio. Accordingly, it was well within the trial court's discretion to conclude
that [Juhola] had complied with the notice requirement found in R.C.
2111.04(A)(2)(b).
Id. at ¶ 10-12.
{¶ 64} We similarly conclude that it was well within the probate court’s discretion
to conclude in this case that Sperry had complied with the notice statute. Sperry
identified Everhart as Baker’s only known next of kin, and he averred that he was unable
to locate Everhart despite multiple efforts. We note that a search of the Montgomery
County Auditor’s website reflects that, at the time of Sperry’s August 2019 application for
guardianship, Baker was identified as the seller of the Rockport property, and Pamela
Carter-Everhart was identified as the buyer, the conveyance having occurred on February
2, 2016. See Montgomery County Auditor website, https://www.mcrealestate.org/forms/
htmlframe.aspx?mode=content/home.htm (accessed September 1, 2021).2
{¶ 65} The probate court found:
To Guardian’s knowledge, as demonstrated by Form 15.0 – Next of
Kin of Proposed Ward, Amended Form 15.0 – Next of Kin of Proposed
Ward, the Notices of Hearing for Appointment to Next of Kin, the Motion to
Appoint Special Process Server, and Affidavit Search for Address filed in
this Case, at the time of the hearing on Guardian’s Application for
2
The website further reflects that on September 12, 2019, the month after Sperry’s
application for guardianship, Pamela Carter-Everhart conveyed the property back to
Baker. According to the website, on February 17, 2021, Baker conveyed the property to
Bryant, and on June 24, 2021, Bryant conveyed the property to Wingard (all while Sperry
was Baker’s guardian).
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Appointment of Guardian of Alleged Incompetent in this Case, Mr. Baker’s
niece, Pamela Everhart, was Mr. Baker’s closest known next of kin; Mr.
Baker’s siblings, Donald Baker and Carolyn Baker were unknown.
(Emphasis added)
{¶ 66} Having determined that Sperry complied with the notice statute, the probate
court did not err in concluding that Movants had failed to demonstrate that they had a
meritorious defense to present, and we agree with this assessment. Since Movants
failed to allege operative facts, or facts having any effect, they were not entitled to a
hearing on their motion to vacate. Having so concluded, we need not address the
parties’ timeliness arguments.
{¶ 67} Based upon the foregoing, Movants’ assigned errors are overruled.
{¶ 68} The judgment of the trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Worrell A. Reid
Eli T. Sperry
Robert H. Hollencamp
Anthony V. Graber
Hon. David D. Brannon