In re Estate of Baughman ( 2020 )

[Cite as In re Estate of Baughman, 2020-Ohio-6928.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF THE ESTATE : JUDGES:
OF: JOANNA BAUGHMAN : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
:
:
: Case No. 19CA0123
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2015-0272(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 28, 2020
APPEARANCES:
For Appellant For Appellee
JAMES R. COOPER J. ANDREW CRAWFORD
33 West Main Street NATHANIEL H. HURST
P.O. Box 4190 36 North Second Street
Newark, OH 43058-4190 P.O. Box 919
Newark, OH 43058
Licking County, Case No. 19CA0123 2
Wise, Earle, J.
{¶ 1} Appellant, Torry Baughman, appeals the November 18, 2019 judgment
entry issued by the Court of Common Pleas of Licking County, Ohio, Probate Division,
finding in favor of appellee and ordering him to pay $302,257.27 to his mother's estate.
Appellee is Robbin Baughman, appellant's brother.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The decedent had four sons, appellant, appellee, Daren, and Kevin. On
October 30, 2009, she executed a durable general power of attorney naming appellant
as her power of attorney. In early 2011, she was diagnosed with dementia and
Alzheimer's disease. She passed away on May 24, 2014. Appellant was named
executor of her estate. The decedent's last will and testament left the residuary of her
estate in equal shares to her four children.
{¶ 3} On April 17, 2015, appellee filed a petition for review of agent's conduct
under the power of attorney pursuant to R.C. 1337.36. On June 18, 2015, appellant
resigned as executor and appellee was named as successor executor.
{¶ 4} Hearings were held on August 21, and 22, 2018. By decision and
judgment entry filed November 1, and 18, 2019, respectively, the trial court found in
favor of appellee and ordered appellant to pay $302,257.27 to the estate. The trial court
adopted and incorporated appellee's findings of fact and conclusions of law which were
filed contemporaneously with the November 1, 2019 decision.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Licking County, Case No. 19CA0123 3
I
{¶ 6} "THE TRIAL COURT COMMITTED ERROR IN ITS JUDGMENT AND
DECISION IN FAVOR OF APPELLEE FOLLOWING REVIEW OF APPELLEE'S
PETITION TO REVIEW APPELLANT/AGENT'S CONDUCT UNDER POWER OF
ATTORNEY AND BY FAILING TO CONSIDER EXONERATION ISSUES UNDER
SECTION 1337.35 OF THE OHIO REVISED CODE."
I
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
finding in favor of appellee and in failing to consider R.C. 1337.35. We disagree.
{¶ 8} R.C. 1337.34 sets out the duties of an agent under a power of attorney.
The overall tenor of the statute is for an agent to act in the principal's best interest. An
agent must act in good faith within the scope of authority granted under the power of
attorney.
{¶ 9} In its November 1, 2019 decision, the trial court adopted and incorporated
appellee's detailed and lengthy findings of fact and conclusions of law which were filed
contemporaneously with the decision. The trial court listed numerous acts by appellant
and found "[t]his conduct was tantamount to theft," "[t]his conduct was not legally or
morally proper," "[t]here was clear dishonesty," "[t]here was clear recklessness," he
improperly "co-mingled his funds with hers," "[h]e was not acting in her best interests,"
"[t]he respondent acknowledges that he was careless and exercised poor judgment in
managing his mother's finances," his "conduct by both act and omission * * * was
egregious," and "[h]e was completely indifferent to his responsibilities as set forth in the
power-of-attorney which he acknowledges that he never read." In its November 18,
2019 judgment entry, the trial court ordered appellant to pay $302,257.27 to the estate.
Licking County, Case No. 19CA0123 4
{¶ 10} As stated by our colleagues from the Second District in Cartwright v.
Batner, 2d Dist. Montgomery No. 25938, 2014-Ohio-2995, ¶ 20:
"Accounting issues and the award of damages that may appear to
be necessary fall within the sound discretion of the trial court. As a result,
our review is for abuse of discretion." Schafer v. RMS Realty, 138 Ohio
App.3d 244, 300, 741 N.E.2d 155 (2d Dist.2000), citing Sandusky
Properties v. Aveni, 15 Ohio St.3d 273, 274-275, 473 N.E.2d 798 (1984).
"This means we will affirm unless we find the trial court's attitude
'unreasonable, arbitrary or unconscionable.' " Id., quoting AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). "Decisions are
unreasonable if they are not supported by a sound reasoning process."
Id.{¶ 11} We find the trial court's findings and conclusions to be amply supported in
the record through the testimony and the numerous exhibits admitted into evidence. T.
at 25-28, 40-41, 48, 67-71, 75-80, 84-85, 89-93, 95-98, 102, 109-112, 115-117, 120,
124-130, 147, 159, 173, 178, 181-182, 188-191, 206-207, 212-216, 355-356, 384-385,
391-392.
{¶ 12} Appellant argues the trial court failed to consider R.C. 1337.35 which
governs exoneration of an agent. Said statute states the following:
Licking County, Case No. 19CA0123 5
A provision in a power of attorney relieving an agent of liability for
breach of duty is binding on the principal and the principal's successors in
interest except to the extent that either of the following applies:
(A) The provision relieves the agent of liability for breach of duty
committed dishonestly, with an improper motive, or with reckless
indifference to the purposes of the power of attorney or the best interest of
the principal.
(B) The provision was inserted as a result of an abuse of a
confidential or fiduciary relationship with the principal.
{¶ 13} In his appellate brief at 7, appellant admits the subject power of attorney
did not contain an exoneration clause, but argues "the broad language of the power of
attorney, coupled with the past and ongoing relationship of mother and son, raises
exoneration issues with respect to the agent's handling of affairs which the trial court did
not consider." We disagree. The power of attorney does not contain an exoneration
clause and does not imply one. Even if an exoneration clause was explicitly included,
there is ample evidence in the record to support a finding that appellant's conduct "falls
outside the scope of any such clause." Appellee's Brief at 7; R.C. 1337.35(A).
{¶ 14} Upon review, we find the trial court did not abuse its discretion in finding in
favor of appellee.
{¶ 15} The sole assignment of error is denied.
Licking County, Case No. 19CA0123 6
{¶ 16} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
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