Schaefer v. Bolog , 109 N.E.3d 706 ( 2018 )

[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PATRICIA SCHAEFER ) CASE NO. 17 MA 0085
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
FRANK A. BOLOG )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Probate Division, of Mahoning
County, Ohio
Case No. 2015 CI 00024
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Thomas W. Connors
Black McCuskey Souers & Arbaugh
220 Market Avenue South
Suite 1000
Canton, Ohio 44702
For Defendant-Appellant: Atty. Craig T. Conley
604 Huntington Plaza
220 Market Avenue South
Canton, Ohio 44702
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 29, 2018
[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]
WAITE, J.
{¶1} Appellant, Frank A. Bolog, appeals the decision of the Mahoning
County Court of Common Pleas, Probate Division, in favor of Appellee, Patricia
Schaefer, following jury trial in a will contest action. On appeal, Appellant argues the
trial court erred when it denied his motion for summary judgment and his motion for
reconsideration after denial of summary judgment. Appellant contends the court also
erred in denying his motion for a directed verdict and in entering judgment for
Appellee after trial.
{¶2} The parties are brother and sister. Appellant proposed to probate a will
signed by his father, Decedent. Appellee contested the validity of this will. Appellee
based her challenge to the will on the testamentary capacity of Decedent, claiming he
was under the undue influence of Appellant. Appellant contends this matter never
should have gone to trial and that his motion for summary judgment and his
subsequent motion for reconsideration of its denial should have been granted
because Appellee failed to meet her burden to demonstrate that a genuine issue of
material fact existed. Additionally, Appellant contends the trial court should have
granted the motion for directed verdict he made after Appellee’s opening statement
at trial, because Appellee failed to argue that Decedent lacked testamentary
capacity. Appellant also claims that the trial court erred in entering judgment
consistent with the jury verdict, but does not provide any argument regarding that
assignment. Appellant has failed to demonstrate the trial court erred in denying his
motion for summary judgment or the subsequent reconsideration motion. Further,
Appellant has failed to demonstrate the trial court erred in denying his motion for a
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directed verdict or that the trial court erred in entering judgment based on the jury
verdict. Accordingly, Appellant’s assignments of error are without merit and the
judgment of the trial court is affirmed.
Factual and Procedural History
{¶3} Frank K. Bolog, (“Decedent”) was married to Betty Bolog (“Betty”). Both
were the parents of Appellant and Appellee. Decedent ran a bus transportation
business for many years. The business was turned over to Appellant. The family
home was transferred to Appellee. Decedent and Betty had executed a will in 1954
which was still valid in 2013 when Decedent, accompanied by Appellant, visited the
family attorney, Stephen Stone. Decedent asked that the will be rewritten to remove
Appellee as a beneficiary, allegedly because she was trying to take over the
business. Stone advised against such action and instead recommended that
Decedent open a bank account and name Appellant as the beneficiary payable on
death. Rather than take that advice, on September 10, 2013 Decedent, again
accompanied by Appellant, visited an attorney who handled the family business,
Dennis Clunk. Decedent made the same request to remove Appellee as a
beneficiary under the will. Clunk advised that Decedent “go to lunch” and think about
it before executing the will. Decedent returned that day, again accompanied by
Appellant, and executed the will as changed.
{¶4} Decedent and Betty were living with Appellee and she had been their
primary caretaker for several years. Guardianship proceedings for Decedent and
Betty were filed by Appellee in the Stark County Court of Common Pleas, Probate
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Division, the parties’ county of residence. (Stark County Case No. 219089).
Decedent had been evaluated for dementia on August 8, 2013, by Dr. Suzanne
Beason-Hazen. He was found to have mild dementia and was determined to be
incapable of managing his finances and property. Dr. Beason-Hazen’s report was
filed with Stark County Probate Court on October 11, 2013. Moreover, on October
18, 2013, just over a month from the date of the execution of the will at issue here,
Appellant also filed an application for guardianship for Decedent, representing that
Decedent was incompetent at that time. The record also contains evidence that on
November 13 and 14, 2013, Appellant accompanied Decedent to a number of banks
where several thousand dollars were transferred from an account in both parents’
names to an account owned by Decedent and Appellant. At around the same time
Decedent also executed a power of attorney in favor of Appellant. A guardian for
Decedent was named by the Stark County Probate Court. The guardian was able to
recover approximately half of the withdrawn funds. On November 18, 2013,
Appellant brought Decedent in for an evaluation by Dr. Mark Hostetler at the behest
of Attorney Clunk. Dr. Hostetler concluded that at the time, Decedent was
experiencing mild dementia, but disagreed with Dr. Beason-Hazen’s evaluation
regarding Decedent’s ability to manage his finances.
{¶5} Shortly afterward, Decedent moved out of Appellee’s home and into
Copeland Oaks Assisted Living. Betty continued to reside with Appellee. Decedent
was evaluated at Copeland Oaks on February 3, 2014 by Dr. Mark Shivers, who
concluded that Decedent’s dementia was mild and that he was competent to make
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his own decisions and decisions on behalf of his spouse. However, on February 4,
2014, the Stark County Probate Court issued a judgment entry determining that
Decedent was incompetent.
{¶6} A short time later Betty died. A guardian ad litem report was submitted
in the Stark County matter on June 5, 2014. The guardian concluded that Decedent
was in full possession of his mental capacities but that the issue of undue influence
should be investigated or concluded as quickly as possible. Decedent was re-
evaluated on July 24, 2014 by Dr. Robert DeVies. Dr. DeVies concurred with Dr.
Beason-Hazen’s prior evaluation that Decedent was incapable of managing his
personal business.
{¶7} Despite conflicting medical evaluations and Appellant’s own motion
seeking guardianship of Decedent, Appellant filed a motion to terminate guardianship
in the Stark County Probate Court on October 16, 2014. Decedent was evaluated
again on March 3, 2015, by Dr. Jay Berke, who concluded that Decedent was
suffering from moderately severe dementia.
{¶8} Decedent passed away on May 29, 2015. The disputed will was
admitted to the Mahoning County Court of Common Pleas, Probate Division, on June
1, 2015. Appellee filed a complaint on June 17, 2015 alleging both that Decedent
lacked testamentary capacity to execute the 2013 will and that Appellant exerted
undue influence over him. An answer was filed on June 24, 2015. Appellee sought
leave and filed an amended complaint on July 13, 2016, naming Appellant both
individually and in his capacity as executor of the 2013 will. An answer was filed on
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July 18, 2016. Appellant filed a motion for summary judgment on July 21, 2016 and
a supplemental memorandum and motion for leave to file a motion for summary
judgment was filed on July 25, 2016. In his summary judgment motion Appellant
contended that the Stark County Probate Court found Decedent incompetent but did
not provide a reason. Thus, Appellee’s assertion in her complaint that Decedent was
incompetent by reason of dementia was not supported on summary judgment.
Appellant also argued that the Mahoning County Probate Court, in an earlier entry
denying a motion filed by Appellee seeking to transfer the matter from Mahoning to
Stark County, held that Decedent was competent to form an intent to establish a new
domicile. Therefore, Appellant asserted that the probate court had already ruled on
Decedent’s competency. Appellee opposed Appellant’s request to file a motion for
summary judgment, alleging only that it was untimely.
{¶9} In a judgment entry dated August 24, 2016, the trial court determined
that the summary judgment motion was timely filed, but denied the motion, holding
that Appellant failed to demonstrate that no genuine issues of material fact remained
for trial. The court stated that its earlier ruling, that Decedent had the ability to form
an intent to establish a new domicile, was based on a different standard than the
standard required to show Decedent lacked testamentary capacity. The court also
held that questions of fact remained regarding whether Appellant exerted any undue
influence on Decedent.
{¶10} Appellant filed a motion for partial reconsideration of the denial of
summary judgment on August 29, 2016. In it, he argued the same claims he posited
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in the underlying summary judgment motion. Appellee filed a motion in opposition,
simply alleging that because Appellant failed to meet his initial burden in summary
judgment to prove that no question of fact remained to try, she had no reciprocal
evidentiary burden. The trial court denied the motion for reconsideration on
September 13, 2016 and set the matter for a jury trial. After the conclusion of the jury
trial, on April 5, 2017 the trial court held the proposed will dated September 10, 2013,
did not constitute the last will and testament of Decedent. Appellant filed this timely
appeal and raises four assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO
APPELLEE ON HER WILL CONTEST ACTION.
{¶11} Appellant provides no argument under the first assignment of error.
Instead, he refers to it as an “omnibus” assignment of error that is dependent on the
other three assignments. Pursuant to the appellate rules, as Appellant has failed to
specifically argue this assignment of error or direct our attention to any portion of the
record relative to this assignment, it will not be addressed by this Court. App.R.
16(A)(7).
{¶12} Turning to those assignments which are supported by argument,
assignments of error three and four regarding summary judgment will be addressed
first for purposes of clarity.
ASSIGNMENT OF ERROR NO. 3
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THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING
APPELLANT'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING
APPELLANT'S MOTION FOR RECONSIDERATION OF ITS DENIAL
OF HIS UNOPPOSED MOTION FOR SUMMARY JUDGMENT.
{¶13} Appellant contends the trial court erred in denying his motion for
summary judgment and his motion seeking reconsideration of this denial, claiming
that, as a matter of law, there were no genuine issues of material fact left for trial
concerning an essential element of Appellee’s case.
{¶14} An appellate court conducts a de novo review of a trial court’s decision
to grant summary judgment, using the same standards as the trial court set forth in
Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996). Before summary judgment can be granted, the trial court must determine
that: (1) no genuine issue as to any material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing the
evidence most favorably in favor of the party against whom the motion for summary
judgment is made, the conclusion is adverse to that party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”
depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon &
Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
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{¶15} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,
296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving
party has a reciprocal burden of setting forth specific facts showing that there is a
genuine issue for trial. Id. at 293. In other words, when presented with a properly
supported motion for summary judgment, the nonmoving party must produce some
evidence to suggest that a reasonable factfinder could rule in that party’s favor.
Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th
Dist.1997).
{¶16} The evidentiary materials to support a motion for summary judgment
are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact that have been filed in the case. In resolving the motion, a court
views the evidence in a light most favorable to the nonmoving party. Temple, 50
Ohio St.2d at 327.
{¶17} Appellant claims that his motion contained unrefuted evidence in the
form of the sworn depositions of Attorney Clunk, who drafted the disputed will, and
Appellee. Clunk testified that he believed Decedent was competent when he came
to Clunk’s office seeking to draft a new will. Appellant also relies on Appellee’s
deposition testimony, where she stated that she had no personal knowledge
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Appellant exerted undue influence on Decedent, but noticed manipulation of
Decedent by Appellant. While Appellant discussed the Stark County probate finding
of incompetency, he highlighted that the trial court never gave a reason for its finding.
Appellant cited to his own motion to terminate Decedent’s guardianship, although it
was never adjudicated due to Decedent’s death. Finally, Appellant referenced the
findings of two separate physicians (Dr. Shivers and Dr. Hostettler) who found
Decedent to be competent during the pendency of the guardianship proceeding.
Appellant claims that Appellee presented no evidence at summary judgment
contradicting this testimony and presented no additional evidence demonstrating
Decedent lacked testamentary capacity.
{¶18} In the instant matter, Appellant’s initial summary judgment motion was
not opposed by Appellee. Once it was denied, Appellee’s response to Appellant’s
reconsideration motion was that the record as provided by Appellant himself showed
that genuine issues of material fact existed because two physicians had found
Decedent incompetent, suffering from moderately severe dementia, and Stark
County had ordered a guardianship for Decedent. Appellee argued that, as
Appellant had not met his burden to demonstrate that there was no genuine issue of
material fact, Appellee was not required to further respond to the motion.
{¶19} Summary judgment may be appropriate when the nonmoving party
does not produce evidence on any issue for which that party bears the burden of
production at trial. Abram v. Greater Cleveland Regional Transit Auth., 8th Dist. No.
80127, 2002-Ohio-2622 at ¶ 43. However, even when a summary judgment motion
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is unopposed, the motion and supporting evidence must show that no material fact in
the case is in dispute before the court can grant the motion. Charles Gruenspan Co.
v. Thompson, 8th Dist. No. 80748, 2003-Ohio-3641. Therefore, the only relevant
argument under this assignment is whether at the time the motion for summary
judgment was filed, no material fact remained outstanding and Appellant was entitled
by law to judgment.
{¶20} Although Appellee failed to respond to Appellant’s motion for summary
judgment, Appellant himself included contradictory evidence within his summary
judgment motion. Appellant directed the trial court to the medical evaluations of both
Drs. Shivers and Hostettler, who both concluded Decedent possessed the
competency required to manage his own affairs. However, Appellant also referred to
the expert evaluation and findings of Dr. Beason-Hazen filed in the Stark County
Probate Court. Dr. Beason-Hazen concluded that Decedent was not capable of
managing his finances properly. Based on this expert opinion, the Stark County
Probate Court issued an entry dated February 4, 2014, finding Decedent to be
incompetent. Both of these evidentiary items contradict the assertions made by
Appellant in his own motion, demonstrating that there were genuine issues of
material fact precluding summary judgment. Based on this, the trial court did not err
in denying Appellant’s motion for summary judgment and the later request for
reconsideration of that denial.
{¶21} Additionally, we must note that denial of a motion for summary
judgment generally cannot be reversed on appeal if the matter has gone to trial on
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the identical factual issues raised in the summary judgment motion. Continental Ins.
Co., v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994). This rule
prevents the fundamental unfairness inherent in overturning a fully litigated jury
verdict in favor of a judgment rendered on an abbreviated presentation of evidence.
Id.{¶22} The Continental case applies unless denial of summary judgment must
be reversed on the application of law, even if the case went to trial and a verdict was
rendered. Continental at 158; The Promotion Co., Inc./Special Events Div. v.
Sweeney, 150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117, ¶ 15.
Additionally, an interlocutory denial of summary judgment may be reviewed and
reversed on appeal if the issues involved at the summary judgment stage were never
actually litigated at the subsequent trial. Continental at 159. Therefore, we review
this record not to second-guess the jury’s decisions on factual issues, but to
determine whether either of the two Continental exceptions to the general rule that
failure to grant summary judgment is harmless even in an appropriate case when the
matter is eventually tried.
{¶23} Appellee raises two main arguments opposing Appellant’s summary
judgment argument: (1) that any error in denying summary judgment by the trial
court is moot because trial on the merits was held on the issues; and (2) Appellant
failed to file a trial transcript of the proceedings necessary to make a determination
whether the trial court’s ruling was proper.
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{¶24} We note that Appellant filed a partial transcript containing only
Appellee’s opening statement. Appellant claims that a full transcript of the trial
proceedings is not necessary here because none of Appellant’s assignments of error
rely on the transcript. Appellant also contends because the denial of summary
judgment constituted an error of law, pursuant to Continental and Sweeney, supra,
the denial of summary judgment is reviewable and reversible.
{¶25} Appellant’s motion for summary judgment filed with the trial court was
based on five pieces of evidence: (1) the earlier determination of incompetency by
the Stark County Probate Court which failed to state the reason for that finding; (2)
medical evaluations contradicting the expert evaluation submitted to the Stark County
Probate Court concluding that Decedent was incompetent; (3) the deposition of
Attorney Clunk which indicated that he believed Decedent to be competent at the
time Decedent executed the will in Clunk’s office; (4) Appellee’s deposition testimony
that she had no personal knowledge of undue influence exerted on Decedent by
Appellant; and (5) the trial court’s prior ruling that in early 2014 Decedent was
competent enough to form an intent to establish a new domicile. Appellant
characterizes this probate court decision as an adjudication of Decedent’s capacity,
and additionally posits that Appellee’s claim was barred by res judicata.
{¶26} While Appellant contends no questions of fact existed and the summary
judgment motion was filed based purely on a matter of law, law which the court erred
in applying and which would enable our review even after jury trial, it is clear from the
face of Appellant’s motion (even though unopposed by Appellee) that genuine factual
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issues existed regarding Decedent’s competency. Reference to competing medical
evaluations as well as to the finding of incompetency by the Stark County Probate
Court reveal that the facts were far from settled and that the matter did not involve
merely a legal determination. For this reason, the exception found in Continental that
the court erred in applying the law to the undisputed facts does not apply in the case
sub judice. Continental at 158. This matter clearly involved a factual dispute.
{¶27} The second Continental exception is where the issues involved in
summary judgment were not actually litigated at trial. Id. at 159. Again, Appellant
has failed to file a trial transcript as part of the record in this appeal. This failure
precludes any evaluation of whether the factual issues presented in summary
judgment were actually litigated at trial. It is Appellant’s duty to provide all transcripts
necessary for a full review of the issues presented on appeal.
The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the
burden of showing error by reference to matters in the record. See
State v. Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized
in App.R. 9(B), which provides, in part, that “* * * the appellant shall in
writing order from the reporter a complete transcript or a transcript of
such parts of the proceedings not already on file as he deems
necessary for inclusion in the record * * *.” When portions of the
transcript necessary for resolution of assigned errors are omitted from
the record, the reviewing court has nothing to pass upon and thus, as to
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those assigned errors, the court has no choice but to presume the
validity of the lower court’s proceedings, and affirm.
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶28} Without a transcript of the jury trial, we must presume the regularity of
the proceedings below, including the presumption that the factual issues involved in
summary judgment were fairly and adequately addressed at trial. The record
contains nothing to indicate otherwise. Hence, as in Continental, any possible error
resulting from the denial of Appellant’s motion for summary judgment must be viewed
as harmless in light of the subsequent jury trial adjudicating the same factual issues.
{¶29} It appears from the record and from a review of Appellant’s motion for
summary judgment that there were factual disputes concerning Decedent’s
competency. When there are genuine issues of material fact in dispute, summary
judgment is not appropriate. The trial court was correct in overruling Appellant’s
motion for summary judgment.
{¶30} Based on the existence of disputed factual issues and the presumption
that those factual issues were addressed at trial, Appellant’s third and fourth
assignments of error are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING
APPELLANT'S MOTION FOR A DIRECTED VERDICT FOLLOWING
APPELLEE'S OPENING STATEMENT.
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{¶31} Turning to his second assignment of error, Appellant contends the trial
court erred in denying his motion for directed verdict proffered at the end of
Appellee’s opening statement. In support, Appellant did submit a partial transcript of
Appellee’s opening statement and argues that there was no mention of the term
“testamentary capacity” and no reference to Decedent’s lack of testamentary capacity
on the day the 2013 will was executed.
{¶32} “A trial court should exercise great caution in sustaining a motion for a
directed verdict on the opening statement of counsel.” Brinkmoeller v. Wilson, 41
Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. A trial court may grant a motion for
a directed verdict made at the end of a party’s opening statement only when the
opening statement shows that the party will be unable to sustain its cause of action at
trial. Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, paragraph
three of the syllabus.
{¶33} Once a jury has been convened and trial has started, a party may file a
motion for a directed verdict. Civ.R. 50 governs a directed verdict:
(1) When made. A motion for a directed verdict may be made on the
opening statement of the opponent, at the close of the opponent's
evidence or at the close of all the evidence.
(2) When not granted. A party who moves for a directed verdict at the
close of the evidence offered by an opponent may offer evidence in the
event that the motion is not granted, without having reserved the right
so to do and to the same extent as if the motion had not been made. A
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motion for a directed verdict which is not granted is not a waiver of trial
by jury even though all parties to the action have moved for directed
verdicts.
(3) Grounds. A motion for a directed verdict shall state the specific
grounds therefor.
(4) When granted on the evidence. When a motion for a directed
verdict has been properly made, and the trial court, after construing the
evidence most strongly in favor of the party against whom the motion is
directed, finds that upon any determinative issue reasonable minds
could come to but one conclusion upon the evidence submitted and that
conclusion is adverse to such party, the court shall sustain the motion
and direct a verdict for the moving party as to that issue.
(5) Jury assent unnecessary. The order of the court granting a motion
for a directed verdict is effective without any assent of the jury.
{¶34} Hence, a motion for a directed verdict can be made after an opponent’s
opening statement, at the close of opponent’s evidence, and at the close of all of the
evidence. Civ.R. 50(A)(1). When ruling on a motion for a directed verdict made after
an opponent’s opening statement, while the trial court is not required to consider the
allegations contained within the pleadings, the court is permitted to consider them.
Parrish at ¶ 23-24. The trial court must also liberally construe the opening statement
in favor of the party against whom the motion is made. Brinkmoeller, syllabus.
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{¶35} A motion for directed verdict presents a question of law, rather than
fact. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512,
2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. On a question of law, we apply a de novo
standard of review on appeal. Id.{¶36} It is axiomatic that opening statements are not evidence and serve
merely to present a preview of the party’s claims and to assist the jury in following the
evidence as it will be presented later in the trial. Parrish at ¶ 29. Moreover, an
opening statement need not discuss every element of a claim. Id. at ¶ 31. The
Supreme Court of Ohio has stated that only when the opening statement
demonstrates that the party is completely unable to sustain a cause of action should
the court take the matter away from the jury and grant the motion for a directed
verdict. Id. at ¶ 32.
{¶37} In the instant case, when Appellant moved for a directed verdict, he
argued at trial that the opening statement only referred to dementia and “that ain’t the
same as a lack of testamentary capacity.” (2/13/17 Tr., p. 21.) Appellant argued that
there was no supporting evidence proffered to prove a lack of testamentary capacity.
Appellant contends that Appellee was alleging a fraud claim and never spoke the
word “fraud” or established proximate cause between Appellant and fraud in the
opening statement. Appellee’s counsel argued that he chose not to use legal
terminology in his opening statement to the jury but that he referenced elements that
needed to be proven without going into exhaustive detail, reserving that for trial.
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{¶38} A review of the opening statement reveals that Appellee’s counsel
provided a chronological recitation of the facts surrounding Decedent’s living situation
and his relationship with his children, beginning with the execution of the initial will, to
the conduct of Decedent and Appellant at the time the 2013 will was executed.
Appellee spoke to the jury about the transfer of the business from father to son, the
subsequent financial difficulties of the business, and the evidence of large monetary
withdrawals from Decedent’s accounts that he could not account for. The opening
statement also discussed constant requests for money from Decedent by Appellant.
Appellee’s counsel spoke about the medical evaluations which had determined
Decedent was not competent to make financial decisions, and doctors’ concerns
about Decedent’s management of money and the possibility that someone
(Appellant) might be trying to influence Decedent. (2/13/17 Tr., p. 11.) Appellee’s
counsel also referred to the filing of a request for guardianship of Decedent signed by
Appellant around the time the 2013 will was executed, as well as evidence that
Appellant took Decedent to several banks to make withdrawals during that same
time. (2/13/17 Tr., p. 13.) Thus, during the opening statement, Appellee’s counsel
introduced and outlined the issues of testamentary capacity and undue influence.
{¶39} After Appellant moved for a directed verdict, the trial court recessed to
research the matter. The court ultimately concluded that the complaint and the
opening statement, when construed in favor of Appellee, did not warrant a directed
verdict. Appellant complains that in opposing the motion, Appellee cited to a case
that mistakenly caused the court to believe that it was mandated to take into
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consideration the pleadings in the matter, instead of merely permitted to consider the
pleadings in the discretion of the court. The record does not support any error or
confusion on the part of the judge in this regard. Again, while the court is not
compelled to take into consideration the allegations contained in the pleadings, it
may do so if it chooses.
{¶40} Considering the standard under which a trial court may grant a directed
verdict made after a party’s opening statement and the record of the opening
statement and the pleadings, when these are liberally construed in favor of Appellee,
the trial court correctly denied Appellant’s motion for a directed verdict. The trial
court’s decision in this regard is affirmed.
{¶41} Based on the foregoing, Appellant’s assignments of error are without
merit and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.