Ryerson v. White ( 2014 )

[Cite as Ryerson v. White, 2014-Ohio-3233.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100547
HELEN RYERSON
PLAINTIFF-APPELLANT
vs.
JEANE H. WHITE
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2010-ADV-160832
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 24, 2014
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ATTORNEYS FOR APPELLANT
Timothy J. Fitzgerald
James F. Koehler
Philip Wesley Lambert
John N. Neal
Koehler Neal L.L.C.
3330 Erieview Tower
1301 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
For Jeane H. White
Robert J. Dubyak
Anthony J. Trzaska
Dubyak Connick Sammon Thompson & Bloom, L.L.C.
3401 Enterprise Parkway
Suite 205
Cleveland, Ohio 44122
For PNC Bank, N.A.
Karen L. Giffen
Giffen & Kaminski, L.L.C.
1300 East Ninth Street
Suite 1600
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, P.J.:
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{¶1} Plaintiff-appellant Helen Ryerson appeals from the judgment of the
Cuyahoga County Probate Court overruling her objections to a magistrate’s decision and
adopting same. For the following reasons, we affirm.
{¶2} On August 13, 2010, Ryerson, daughter of Judy Duffy, filed a complaint and
will contest action against defendant-appellee Jeane H. White, also a daughter of Duffy
and the executor of Duffy’s estate.
{¶3} The case was bifurcated on July 29, 2011, because there were no assets in
Duffy’s probatable estate due to the fact that her accounts, annuities and home
transferred on death to White. As such, the validity of the transfer of Duffy’s assets out
of her probatable estate had to be decided before the validity of Duffy’s 2009 will could
be contested.
{¶4} The case proceeded to trial before a magistrate who issued his decision
March 15, 2013 concerning the asset transfers. Ryerson objected to the magistrate’s
decision and White replied. On September 19, 2013, the court overruled Ryerson’s
objections and adopted the decision of the magistrate.
{¶5} The following facts were elicited at trial: In 1972, Ryerson, White, their
father and Duffy immigrated to the state of West Virginia from China. At the time,
Duffy had approximately a third-grade education and spoke virtually no English. After
a move to Delaware and job changes, Duffy and her husband divorced.
{¶6} In 1993, Duffy had a will prepared that divided her probatable estate equally
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between her daughters, Ryerson and White. In 2005, with the aid of White, Duffy
relocated to Cuyahoga County. At the time, Ryerson lived in Texas but advised her
mother to move to Cuyahoga County where White resided instead of Texas due to her
own uncertain job situation.
{¶7} White assisted Duffy in locating a condominium and communicated
purchase bids to a realtor at Duffy’s request. Duffy paid cash for the property without
White’s assistance and White did not attend the closing. The condominium deed
included a transfer on death provision and White was named as the sole beneficiary.
{¶8} From the time of Duffy’s relocation to Cuyahoga County until her passing,
Duffy lived on her own and completed day-to-day tasks such as banking and obtaining
insurance without any assistance.
{¶9} In 2009, Duffy was diagnosed with cancer. White assisted Duffy in finding
an attorney, Patrick Talty, in order to assist Duffy in preparing estate planning
documents. At Duffy’s request, Talty sought to prepare a transfer-on-death deed
relating to the condominium. However, when he examined the existing deed he
discovered that a transfer-on-death deed in favor of White already existed and informed
Duffy of such. Talty testified that Duffy had apparently forgotten about the existing
deed. When Duffy passed away on May 1, 2010, Talty prepared, notarized and
recorded a survivorship affidavit in favor of White.
{¶10} While Duffy was in the hospital, White attempted to make herself a
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signator to PNC Bank accounts by obtaining notarized signature cards, only to discover
that she was already a signator and the beneficiary to those accounts. White offered
conflicting testimony about her mother’s signing of those cards and the notary testified at
trial that he could not remember Duffy signing the cards.
{¶11} At the time of Duffy’s death, she had two annuities and four bank accounts:
one annuity through New York Life Insurance Co., one annuity through Great American
Life Insurance Co., three joint accounts with survivorship rights through PNC Bank, and
one IRA through PNC Bank. White was the sole beneficiary of both annuities and the
IRA, held the PNC Bank accounts jointly with White and had survivorship rights in
those accounts.
{¶12} At trial, Ryerson testified that Duffy’s signatures on the various documents
evidenced forgeries. In contrast to Ryerson’s testimony, Alfred Rappoli, Duffy’s
banker, and Sharon West, a State Farm insurance office manager, testified to witnessing
Duffy sign documents. Various witnesses testified to Duffy doing business with them
by herself and that she was able to, and did ask reasonable questions about her accounts
and understand what was explained to her. Contrary to Ryerson’s portrayal of Duffy’s
limited skill with the English language, West testified that Duffy was very proficient
with English. Also contrary to Ryerson’s allegation that Duffy’s affairs were being
controlled by White, West testified that she did not know Duffy had daughters because
she came in to State Farm twice per year by herself to handle insurance matters.
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Similarly, Rappoli could not recall Duffy conducting banking with anyone’s assistance.
{¶13} White testified that she was unaware of her status as beneficiary on Duffy’s
financial holdings until Duffy revealed her finances to White after she was diagnosed
with cancer. White denied being involved with any of Duffy’s banking transactions
and testified that she never wrote checks or made transactions on Duffy’s bank accounts
despite the fact that she was listed as a signator on two accounts. White also testified
that she did not ask Duffy to name her as the beneficiary on Duffy’s condominium deed.
{¶14} After the trial court overruled Ryerson’s objections and adopted the
magistrate’s decision, she filed this appeal. Ryerson objected to the trial court’s refusal
to apply a presumption of undue influence, the trial court’s finding of no actual undue
influence on the part of the defendant, the trial court’s mishandling of fraudulent conduct
on the part of the defendant defeating survivorship rights and erroneous evidentiary
burdens and admittance.
{¶15} Appellant’s first assignment of error states:
The Probate Court erred by overruling the Plaintiff’s objections to the
Magistrate’s Decision and adopting the Magistrate’s Decision as the
judgment of the Probate Court where, despite evidence of Defendant’s
confidential relationship with the decedent on her financial matters, and by
having acted as the decedent’s fiduciary, the burden to rebut the
presumption of undue influence over the decedent was not shifted to the
Defendant.
{¶16} A trial court’s ruling on objections to a magistrate’s decision will not be
reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148,
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2010-Ohio-4493, ¶ 16. An abuse of discretion implies that the court’s attitude was
unreasonable, arbitrary or unconscionable, not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶17} A presumption of undue influence arises when a party is in a position of
trust or confidence with another. “Where a confidential or fiduciary relationship exists
between a donor and donee, the transfer is looked upon with some suspicion that undue
influence may have been brought to bear on the donor by the donee.” Ament v. Reassure
Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246 (8th Dist.),
citing Willis v. Baker, 75 Ohio St. 291, 79 N.E. 466 (1906). “In such circumstances, a
presumption arises that the transfer is invalid and the burden going forward with
evidence shifts to the transferor to demonstrate the absence of undue influence.” Id.;
Hardy v. Fell, 8th Dist. Cuyahoga No. 88063, 2007-Ohio-1287, ¶ 28.
{¶18} A “fiduciary relationship” is a relationship in which special confidence and
trust is reposed in the integrity and fidelity of another and there is a resulting position of
superiority or influence, acquired by virtue of this special trust. Landskroner v.
Landskroner, 154 Ohio App.3d 471, 2003-Ohio-5077, 797 N.E.2d 1002 (8th Dist.), ¶ 32,
citing Ed Schory & Sons v. Francis, 75 Ohio St.3d 433, 442, 662 N.E.2d 1074 (1996).
However, a parent-child relationship alone is insufficient to establish a fiduciary
relationship. McAdams v. McAdams, 80 Ohio St. 232, 243-244, 88 N.E. 542 (1909).
{¶19} A “confidential relationship exists whenever trust and confidence is placed
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in the integrity and fidelity of another.” Golub v. Golub, 8th Dist. Cuyahoga No.
97603, 2012-Ohio-2509, ¶ 33, citing Ament at ¶ 39. ‘‘‘The determination concerning
what constitutes a confidential (fiduciary) relationship is a question of fact dependent
upon the circumstances in each case * * *.’’’ Ciszewski v. Kolaczewski, 9th Dist. Summit
No. 26508, 2013-Ohio-1765, ¶ 10, quoting Indermill v. United Sav., 5 Ohio App.3d 243,
245, 451 N.E.2d 538 (9th Dist.1982).
{¶20} In this instance, we cannot say that the trial court abused its discretion in
adopting the magistrate’s finding that no fiduciary or confidential relationship existed
between White and Duffy such that it would be appropriate to apply a presumption of
undue influence. The trial court determined that Ryerson failed to establish a fiduciary
or confidential relationship between White and Duffy that went beyond the typical
parent-child relationship. Ryerson’s allegations that White controlled Duffy’s financial
dealing and possibly forged Duffy’s signature on documents was refuted by the
testimony of Rappoli and West. White did not regularly aid in her mother’s business
transactions and the only clear instance of White signing for Duffy, on a “general
consent for health care services” document, was not conducted in a fiduciary capacity.
{¶21} Ryerson’s appellant’s first assignment of error is overruled.
{¶22} Ryerson’s second assignment of error states:
The Probate Court erred by overruling the Plaintiff’s objections to the
Magistrate’s Decision and adopting the Magistrate’s Decision as the
judgment of the Probate Court where the resulting judgment is against the
manifest weight of the evidence.
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{¶23} Judgments supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a reviewing court as being against
the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978).
{¶24} In order to show undue influence, the plaintiff must demonstrate: (1) a
susceptible testator, (2) another’s opportunity to exert influence, (3) the fact of improper
influence exerted or attempted, and (4) the result showing the effect of such influence.
West v. Henry, 173 Ohio St. 498, 510-511, 784 N.E.2d 200 (1962).
{¶25} As to the first three elements, the record reflects that Duffy made banking
transactions on her own, was able to understand her investments and asked reasonable
questions of bankers and insurance agents about her transactions. The record does not
support Ryerson’s contention that Duffy relied on White to conduct her financial affairs.
Duffy lived independently from White and completed the overwhelming majority of her
day-to-day tasks on her own. On this evidence, the trial court could reasonably have
found that Duffy was not a susceptible testator, that White lacked an adequate
opportunity to exert undue influence and that no such influence actually occurred.
{¶26} As the record contains competent credible evidence to support the trial
court’s conclusion that Ryerson failed to meet her burden of demonstrating actual undue
influence, we cannot say that the trial court’s judgment was against the manifest weight
of the evidence.
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{¶27} Appellant’s second assignment of error is overruled.
{¶28} Ryerson’s third assignment of error states:
The Probate Court erred by overruling the Plaintiff’s objection to the
Magistrate’s Decision which ignored and dismissed the Defendant’s
fraudulent conduct in securing a falsely notarized signature of their mother
on bank account documents and finding that such fraudulent conduct did
not forfeit the Defendant’s survivorship rights in those bank accounts.
{¶29} Ryerson argues that fraudulent conduct on the part of the defendant in 2009
in attempting to secure survivorship rights to various bank accounts held by Duffy
defeats the survivorship rights in those accounts.
{¶30} The evidence at trial revealed that in 2009, White sought to have her name
added as a signator to Duffy’s PNC bank accounts. White testified that the bank
provided her with a form to be notarized and that she had Brian Cook notarize this form.
However, it was apparent from the testimony that Duffy, who was hospitalized at the
time, did not sign the forms in Cook’s presence. White testified that after having the
documents notarized she realized that Duffy needed to sign them as well and that Duffy
later did so at the hospital.
{¶31} Ryerson relies on Ross v. Barker, 101 Ohio App.3d 611, 619, 656 N.E.2d
363 (2d Dist.1995), as authority for her proposition that the allegedly fraudulent activity
of White should have extinguished White’s preexisting survivorship rights in the
accounts. In Ross, a daughter handled the finances of her “easily imposed upon” and
“dependent” father. In so doing, the court found that she had a duty to deal with him in
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good faith and that by obtaining a possessory interest in certain funds by placing her
father’s money into accounts owned by both the daughter solely and by her and her
father jointly, she had engaged in fraudulent conduct. The Second District effectively
held that the fraudulent conduct defeated Barker’s survivorship interest in the accounts
and extinguished the interest obtained by the fraudulent conduct.
{¶32} Ross has no bearing on the instant case because, as the trial court noted,
even if the court were to find that White engaged in notary fraud in 2009, she had
already been named beneficiary on the accounts in 2005.
{¶33} Unlike in Ross, there is no evidence that White placed her mother’s money
into accounts owned solely by White or jointly by White and Duffy. There was no
interest obtained by White’s alleged fraudulent conduct in 2009 because White had an
ownership interest in the accounts prior to the conduct. The trial court did not abuse its
discretion in holding White’s status as sole beneficiary remained despite her conduct in
2009.
{¶34} Appellant’s third assignment of error is overruled.
{¶35} Ryerson’s fourth assignment of error states:
The Probate Court erred by overruling the Plaintiff’s objection to the
Magistrate’s Decision rejecting Plaintiff’s forgery claims based upon the
erroneous evidentiary burden placed upon Plaintiff to present independent
expert testimony in order to establish that her mother’s signatures on
financial and bank documents were forgeries.
{¶36} At trial, Ryerson asserted that her mother’s signature on every relevant
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financial document had been forged. The trial court rejected her contention.
{¶37} Ryerson argues that the magistrate required her to produce expert testimony
demonstrating that her mother’s signature on various documents was forged.
{¶38} As noted by the trial court, the magistrate did not, in fact, require Ryerson
to provide expert testimony but simply noted that Ryerson’s self-serving testimony stood
alone. In fact, the record reflects that White’s testimony on the validity of Duffy’s
signatures contradicted Ryerson’s and was supported by testimony of independent
witnesses who had observed Duffy signing documents, including the documents in
dispute. The trial court merely cited expert testimony as an example of evidence that
may have aided Ryerson in demonstrating that her mother’s signature on various
documents was forged. The trial court did not abuse its discretion in overruling
Ryerson’s objection regarding the handwriting expert.
{¶39} Ryerson’s fourth assignment of error is overruled.
{¶40} Ryerson’s fifth assignment of error states:
The Probate Court erred by overruling the Plaintiff’s objection to the
Magistrate’s Decision based upon the erroneous and prejudicial
cross-examination of Plaintiff in violation of Evid.R. 403(A) and Evid.R.
608(B) which deprived Plaintiff of a fair trial.
{¶41} “Decisions concerning the admission or exclusion of evidence are within
the discretion of the trial court and will not be reversed absent an abuse of that
discretion.” Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, ¶
17, citing Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834
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N.E.2d 323.
{¶42} Evid.R. 608(B) provides:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’s character for truthfulness, other than conviction
of crime as provided in Evid.R. 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if clearly
probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’s character for
truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
{¶43} Absent a showing that a party’s substantial rights were affected by the
admission of evidence, we will disregard errors in the admission of evidence as harmless
error. See Civ.R. 61. Litigants are not entitled to a perfect trial, only a fair one.
Spisak v. Salvation Army, 8th Dist. Cuyahoga No. 99633, 2013-Ohio-5429, citing
Grundy v. Dhillon, 120 Ohio St.3d 415, 2008-Ohio-6324, 900 N.E.2d 153. The
erroneous admission of evidence “will not justify reversal of an otherwise valid
adjudication where the error does not affect the substantial rights of the complaining
party.” O’Brien v. Angley, 63 Ohio St.2d 159, 407 N.E.2d 490 (1980) (citing Civ.R.
61; R.C. 2309.59).
{¶44} Over objection, the magistrate allowed several documents detailing
previous instances where Ryerson made allegations of misconduct against members of
her family, including appellee, their father, and their father’s wife. While the content of
these documents are arguably relevant concerning Ryerson’s character for truthfulness,
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this is the exact type of extrinsic evidence that Evid.R. 608(B) seeks to exclude. State
v. Mackey, 8th Dist. Cuyahoga No. 75300, 1999 Ohio App. LEXIS 5902 (Dec. 9, 1999);
State v. Curlee-Jones, 8th Dist. Cuyahoga No. 98233, 2013-Ohio-1175, ¶ 21-22; State v.
Clark, 8th Dist. Cuyahoga No. 95928, 2011-Ohio-4109, ¶ 36.
{¶45} However, we find any error to be harmless. Under Civ.R. 61, harmless
error means:
No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the court
or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.
{¶46} In order to determine whether a substantial right has been affected, ‘‘‘the
reviewing court must not only weigh the prejudicial effect of those errors but also
determine that, if those errors had not occurred, the jury * * * would probably have made
the same decision.’’’ Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 8th Dist. Cuyahoga
No. 96848, 2012-Ohio-2383, ¶ 23, quoting O’Brien, 63 Ohio St.2d at 165, 407 N.E.2d
490 (1980).
{¶47} Even if the extrinsic evidence had not been admitted, the record is rife with
evidence to impeach Ryerson’s credibility, including her own evasive answers to
questions posed by the magistrate. Furthermore, portions of the content of the extrinsic
evidence were redundant in light of Ryerson’s cross-examination testimony. Therefore,
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since there is no showing of resulting prejudice to Ryerson as a result of the error, we
hold the error to be harmless.
{¶48} Appellant’s fifth assignment of error is overruled.
{¶49} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Common Pleas Court, Probate
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR