In re Estate of Ramun , 2010 Ohio 6405 ( 2010 )

[Cite as In re Estate of Ramun, 2010-Ohio-6405.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NO. 08 MA 124
THE ESTATE OF MICHAEL RAMUN )
)
LOUISE RAMUN )
)
APPELLANT )
)
VS. ) OPINION
)
JOHN RAMUN, et al. )
)
APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Probate Division, of Mahoning
County, Ohio
Case No.
JUDGMENT: Affirmed.
APPEARANCES:
For Appellant: Atty. John B. Juhasz
Atty. Lynn Maro
7081 West Boulevard, Suite 4
Youngstown, Ohio 44512
For Appellees: Atty. Marc S. Stein
Atty. Jay M. Skolnick
Nadler, Nadler & Burdman Co., LPA
20 West Federal Street, Suite 600
Youngstown, Ohio 44503
Atty. Christopher R. Opalinski
Atty. F. Timothy Grieco
Eckert, Seamans, Cherin & Mellot LLC
44th Floor, 600 Grant Street
Pittsburgh, PA 15219
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
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Hon. Joseph J. Vukovich
Dated: December 22, 2010
WAITE, J.
{¶1} Appellant, Louise Ramun, former Executrix of the Estate of Michael
Ramun, appeals the decision of the Court of Common Pleas, Mahoning County
Probate Division, overruling her motion to vacate the June 14, 1988, order approving
and settling the final and distributive account of the estate. For the following reasons,
the judgment of the probate court is affirmed.
{¶2} Michael Ramun died testate on November 17, 1986. Appellant was the
residual beneficiary in the will. The inventory of the estate consisted primarily of
twenty-one shares of stock in Allied Erecting and Dismantling Company, appraised at
$1,305,897.00. Allied Erecting and Dismantling was a closely held corporation in
which the decedent owned fifty percent of the stock, and John Ramun, the
decedent’s son, owned the remaining fifty percent of the stock. From the date of
incorporation, Louise had been on the board of directors for the corporation and
worked in the office, doing the banking and reconciling the incoming and outgoing
checks.
{¶3} The stock was appraised for inventory purposes by Anness, Gerlach &
Williams, which also served as the corporation’s accounting firm. The appraisal of
the stock was based on a financial statement dated December 31, 1986 (“December
31 financial statement”).
{¶4} During the administration of the estate, Appellant sold the shares back
to the corporation pursuant to a stock redemption agreement. According to her
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affidavit, which was attached to the motion to vacate, John told her that she should
redeem the stock in order to protect her personal assets from then-pending litigation
between Allied and United States Steel. (Louise Ramun Aff., ¶7.)
{¶5} On August 19, 2005, some seventeen years later, Appellant filed the
motion to vacate at issue in this appeal alleging fraud in the valuation of the stock.
She claimed that unprocessed non-ferrous scrap, which included substantial
amounts of copper and brass, owned by the corporation at the time of the appraisal
and that should have been valued at approximately $20,000,000, was not included in
the valuation of the stock.
{¶6} According to Appellant’s affidavit, she discovered the omission during a
deposition that she gave in Michael D. Ramun v. John Ramun, Case No. 04-CV-
1738. In that case, Michael D. Ramun, the decedent’s younger son, sought a
preliminary injunction enjoining the corporation from enforcing a share transfer
restriction that would secure a buy-out of Michael’s then current twenty-five percent
interest in the corporation.
{¶7} Appellant relies on a note in a second financial statement, captioned
“Financial Statements and Accountants’ Report March 31, 1986 and 1985” (“March
31 financial statement”) to establish the alleged fraud. The March 31 financial
statement, like the December 31 financial statement, did not include the approximate
value of the scrap in the list of the assets of the corporation. However, the March 31
financial statement contained a series of notes at the end that were not included in
the December 31 financial statement.
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{¶8} The note on which Appellant relies to establish fraud in this case is
captioned “SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES,” and reads, in
pertinent part:
{¶9} “Scrap Inventory:
{¶10} “Inventory consists of the actual cost of scrap purchases still on hand at
year-end (none at March 31,1986 and 1985) and is stated at the lower of cost or
market under the first-in, first-out method. Inventory does not include any
accumulated scrap resulting as a by-product of current dismantling contracts. Due to
its nature as a by-product, no cost or book value is assigned to the metals and
revenue is recognized when the scrap by-product is actually sold. Included in the
accumulated scrap are significant amounts of copper and brass for which a value had
been estimated by management at March 31, 1986. The estimated values are as
follows:
“12,500 tons of copper at $1,300 per ton $16,250,000
“2,500 tons of brass at $1,700 per ton $4,250,000
$20,000,000”
{¶11} Appellant contends that the scrap was excluded from the December 31
financial statement for the purpose of devaluing the stock. She further alleges that
John exercised control over the valuation of the stock, because he hired his divorce
attorney, Eugene Fox, to represent the estate, and also employed the corporation’s
accountant, Thomas Anness, the President of Anness, Gerlach and Williams, Inc., to
value the corporation. (Louise Ramun Depo., pp. 26-27.) She contends that these
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men conspired to defraud the estate and devalue the corporation’s stock by
excluding the scrap from the 1986 financial statement, with the ultimate goal that
John would be the corporation’s sole shareholder.
{¶12} John filed a response in opposition to the motion to vacate in which he
denied any fraud in the valuation of the stock. According to his own affidavit, as well
as the Anness affidavit which was filed with John’s supplemental statement on May
15, 2008, unprocessed non-ferrous scrap on the business premises of the
corporation in 1986 was a by-product of prior or current dismantling projects, and,
pursuant to generally accepted accounting principles, no cost or book value could be
assigned to it until it was processed and sold. (John Ramun Aff., ¶9, Thomas
Anness Aff., ¶7.)
{¶13} According to John’s affidavit, the corporation was faced with “significant
exposure on a multi-million dollar [counter]claim” asserted by U.S. Steel during the
estate administration. (John Ramun Aff., ¶15.) The corporation was not engaged in
any active projects for several years after the suit was filed. (John Ramun Aff., ¶15.)
Most of the scrap was sold after the estate was settled, from 1986 to 1992, while the
U.S. Steel case was pending “in order to keep the [corporation] afloat and prevent
[the corporation] from filing for bankruptcy.” (John Ramun Aff., ¶10.) John also
asserted that Appellant was aware of the scrap and the fact that it “had value” during
the administration of the estate. (John Ramun Aff., ¶8.)
{¶14} On September 19, 2005, Appellant filed notices for the depositions of
John and Anness, which were scheduled to proceed in the following month. Before
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the depositions were conducted, the motion to vacate was stayed pending the
outcome of an appeal of the probate court’s denial of a motion to appear pro hac vice
filed on behalf of one of John’s attorney. The judgment entry denying the pro hac
vice motion was overruled by this Court on June 22, 2007, and the matter was
remanded.
{¶15} At a status conference several months after remand, on February 11,
2008, the probate court granted Appellant’s request to submit a reply brief in this
matter. After the reply brief was filed, on May 1, 2008, the probate court set a non-
oral hearing for May 15, 2008. The May 1, 2008 judgment entry read, in pertinent
part, “a non-oral hearing on this matter is hereby set for Thursday, the 15th day of
May, 2008; it is further the Order of this Court that Movant and Respondent shall file
any additional written statements of reasons in support or opposition on or before
said hearing.” (Emphasis omitted.) (5/1/08 J.E., p. 1.)
{¶16} In a pleading filed on May 15, 2008, the day that the non-oral hearing
was scheduled, Appellant requested additional discovery and an oral evidentiary
hearing. In this request, Appellant stated that there exist individuals who she
“believes have pertinent information and may not provide the same voluntarily.”
(Supplemental Brf. at p. 2.) In the alternative, Appellant sought leave of twenty-one
days to secure additional affidavits and/or records if discovery was not allowed.
{¶17} In the same pleading, Appellant moved to strike those portions of
John’s affidavit that claimed she was aware of or had full knowledge of certain facts
during the administration of the estate. She also filed a copy of her deposition
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testimony in Michael D. Ramun v. John Ramun. That same day, John filed a
supplemental statement and the Anness affidavit.
{¶18} In a judgment entry dated May 21, 2008, the probate court found that
Appellant failed to plead fraud with particularity pursuant to Civ.R. 9 and, in the
alternative, failed to demonstrate fraud by clear and convincing evidence. (5/21/08
J.E., pp. 5, 7.) The probate court held that Appellant “has simply alleged fraud and
that is insufficient to vacate the order approving the account.” (5/21/08 J.E., p. 7.)
The probate court characterized Appellant’s motion for discovery as a “fishing
expedition,” to be conducted seventeen years after the fact. (5/21/08 J.E., p. 7.)
{¶19} The probate court also criticized Appellant’s argument as “untenable,”
because she has filed an objection to her own inventory. (5/21/08 J.E., p. 8.) Finally,
based on Appellant’s role as an officer and employee of the corporation, the probate
court concluded that her claim that it took seventeen years to uncover the alleged
fraud was unbelievable. (5/21/08 J.E., p. 8.) The probate court did not consider
John’s statements that Appellant knew about the scrap and its value in denying the
motion to vacate. This timely appeal followed.
{¶20} Because it appears from the record that Appellant did not sufficiently
support her allegations of fraud and that the information on which she bases such
claims was known or should have been known to her at the time she filed her final
accounting in the estate seventeen years before, the trial court’s decision is affirmed.
{¶21} The assignments of error will be taken out of order for the purpose of
clarity of analysis.
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SECOND ASSIGNMENT OF ERROR
{¶22} “The trial court erred as a matter of law in concluding OHIO REV. CODE
ANN. §2109.35 could not be used to challenge the final account when there was a
fraud committed in valuing the assets of the estate.”
{¶23} R.C. 2109.35 reads, in pertinent part:
{¶24} “The order of the probate court upon the settlement of a fiduciary’s
account shall have the effect of a judgment and may be vacated only as follows:
{¶25} “(A) The order may be vacated for fraud, upon motion of any person
affected by the order or upon the court’s own order, if the motion is filed or order is
made within one year after discovery of the existence of the fraud.
{¶26} “* * *
{¶27} “A motion to vacate an order settling an account shall set forth the items
of the account with respect to which complaint is made and the reasons for
complaining of those items. The person filing a motion to vacate an order settling an
account or another person the court may designate shall cause notice of the hearing
on the motion to be served upon all interested parties who may be adversely affected
by an order of the court granting the motion.
{¶28} “An order settling an account shall not be vacated unless the court
determines that there is good cause for doing so, and the burden of proving good
cause shall be upon the complaining party.”
{¶29} “* * * The elements of fraud are: (a) a representation or, where there is
a duty to disclose, concealment of a fact, (b) which is material to the transaction at
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hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be inferred, (d) with
the intent of misleading another into relying upon it, (e) justifiable reliance upon the
representation or concealment, and (f) a resulting injury proximately caused by the
reliance.” Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 491 N.E.2d
1101, paragraph two of the syllabus. Fraud must be shown by clear and convincing
evidence. Mathe v. Fowler (1983), 13 Ohio App.3d 273, 275, 469 N.E.2d 89.
{¶30} Appellant alleges fraud based on the accounting firm’s reliance on the
December 31 financial statement for the stock valuation. Appellant contends that the
accounting firm intentionally omitted the scrap as an asset of the corporation in the
December 31 financial statement in an effort to devalue the stock and defraud the
estate.
{¶31} However, based on the record it appears that the trial court was correct
that Appellant’s fraud claim must fail. First, her argument ignores the fact that the
March 31 financial statement (on which she premises her motion to vacate) like the
December 31 financial statement, does not list the scrap as an asset. The note in the
March 31 financial statement clearly states that inventory consists of the actual cost
of scrap purchases on hand at the end of the year. The note explains that the scrap
at issue is not listed as inventory or assigned a value because it is a by-product of
prior or current dismantling projects, and no value is attributed to this scrap until it is
sold.
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{¶32} Second, Anness states in his uncontroverted affidavit that the exclusion
of the scrap from the assets of the corporation is consistent with generally accepted
accounting principles. Despite having the burden of proof on the motion to vacate,
and the fact that the motion remained pending for over two and a half years because
of the intervening appeal, Appellant did not offer any evidence to contradict Anness’s
affidavit regarding the appropriateness of the exclusion of the scrap’s estimated value
from the assets listed in the December 31 financial statement. If Anness’ statement
that the scrap was not listed as inventory pursuant to generally accepted accounting
principles was not accurate, an opposing affidavit from another accountant should
not take two years to procure. As the record stands, Appellant failed to establish that
the omission of the scrap from the list of assets in the December 31 financial
statement constitutes the concealment of a material fact.
{¶33} At oral argument, Appellant’s counsel stated that we need look no
further than Appellant’s deposition testimony to establish the fraud perpetrated on the
estate, but Appellant’s counsel did not cite to any specific testimony. The following
excerpt from Appellant’s deposition represents all of the testimony she gave
regarding the March 31 financial statement:
{¶34} “Q: I’m going to hand you now, Mrs. Ramun, Plaintiff’s Exhibit 11 which
is a document that you brought us today and that appears to be some financial
reports for what corporation please?
{¶35} “A Allied Erecting and Dismantling.
{¶36} “Q Can you turn to page 8 of that particular document for me?
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{¶37} “A Yes.
{¶38} “Q You see at the top of that page it says ‘Note A’ which is an
explanation of some things that are set forth earlier in the financial statement. Do
you see at the bottom there where it talks about some inventory?
{¶39} “A Scrap inventory?
{¶40} “Q Yes, ma’am.
{¶41} “A Yes.
{¶42} “Q And I think it talks about $20,000,000 worth of inventory, correct?
{¶43} “A Yes.
{¶44} “Q If you recall, was that inventory around when your husband passed
away?
{¶45} “A Yes. Oh, yes. That was going to be his retirement.
{¶46} “Q Okay.
{¶47} “A He said – jokingly.
{¶48} “Q Okay. If you know, is there a reason why that was not taken into
account in valuing the stock of the corporation for the estate?
{¶49} “A Probably to make it as low as it could be.
{¶50} “Q Okay. But in any event, it’s your recollection that all that [sic]
inventory was there at the time your husband passed away?
{¶51} “A Oh, yes. It come [sic] from U. S. Steel there on the jobs.” (Louise
Ramun Depo., pp. 73-74.)
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{¶52} Contrary to her counsel’s claims, the foregoing testimony establishes
several facts inconsistent with Appellant’s assertion of fraud. First, the testimony
shows that the March 31 financial statement was and had been in Appellant’s
possession, because she brought it with her to the deposition. She later testified that
the March 31 financial statement was part of the estate file maintained by Attorney
Fox, and that the file was given to her after Fox’s retirement. (Louise Ramun Depo.,
pp. 82-83.) Attorney Fox was hired by Appellant, as executrix of the estate and was
thus her agent. If, as she claims, this document spurred her to become aware of a
material misrepresentation, it had long been in the possession of her or her agent.
Her deposition testimony appears to establish, then, that there was no concealment
of a material fact.
{¶53} Next, and perhaps more importantly, Appellant concedes in her
deposition that she was aware of the existence of the scrap during the administration
of the estate and that she knew that the scrap had considerable value, because her
husband jokingly referred to it as his “retirement.” She repeated this testimony later
in her deposition and stated that John also referred to the scrap as his “retirement.”
(Louise Ramun Depo., pp. 100-101.) Appellant further testified that she was aware
that John reluctantly sold the scrap in order to keep the business afloat during the
last few years that the U.S. Steel litigation was pending. (Louise Ramun Depo., pp.
99-100.) Therefore, the evidence shows that she did know that the scrap was
valuable during her husband’s lifetime and hence, during the preparation of his
estate. If, as she claims, this valuable asset was deliberately omitted from the stock
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valuation she filed with the court, she was in the best position to question this
omission at the time, as she was clearly aware of the asset.
{¶54} In this appeal, Appellant characterizes herself as the unwitting victim of
her son John, Mr. Anness, and Attorney Fox during the administration of the estate.
She claims she allowed John to hire both Mr. Anness and Attorney Fox, even though
she was charged with administering the estate. However, without evidence of the
actual concealment of a material fact, Appellant’s insistence that she blindly relied on
her son and her advisors may be evidence of her failure to fulfill her fiduciary duties
to the estate, but it is not evidence of a fraud committed against the estate.
{¶55} Appellant’s claim that she placed most of her reliance on John during
the estate process is also at odds with the testimony offered at her deposition. She
testified that her husband, the decedent, intended that his sons would own equal
parts of the corporation after their parents’ deaths. His intention was manifested in
both his will and her own, in which Michael was to inherit the decedent’s shares of
the corporation after the passing of both of his parents. (Louise Ramun Depo., p.
57.) Since John owned the other 50% of the stock, the couple planned to pass their
half to Michael because Louise stated that the decedent did not trust John to “treat
Michael right,” and that the decedent did not want John to own the entire corporation.
(Louise Ramun Depo., pp. 24-25.) Therefore, her testimony that she so trusted John
that she blindly followed John’s advice in settling her husband’s estate appears to
lack credibility.
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{¶56} “[I]n the absence of a suitable actual market, valuation of stock in a
closely held corporation is complex, and the testimony of an expert is necessary to
determine the fair cash values of shares of stock. The fair cash value is defined as
the amount which a willing seller, under no compulsion to sell, would be willing to
accept and a willing buyer, under no compulsion to purchase would be willing to pay.”
(Internal citations omitted.) Loux v. Loux (October 8, 1987), 8th Dist. Nos. 52520,
53438, *4.
{¶57} Here, Appellant has not offered any evidence to demonstrate that the
valuation at issue did not reflect the fair cash value of the stock. She alleges that the
valuation should have included the estimated value of the disputed scrap but has
produced no evidence to show that the scrap was fraudulently excluded from the
December 31 financial statement used to value the stock and that she, herself, filed
to close the estate. Both the March 31 financial statement she alleges exposes some
fraud and the December 31 statement she filed on behalf of the estate exclude the
scrap as an asset in the inventory. The March 31 document, as well as the affidavit
of Mr. Anness both address the exclusion by stating that it had no value until its
actual sale, according to accepted practice in the profession. Appellant merely
alleges that this is untrue. She has provided absolutely no evidence of any nature to
support her allegation. Consequently, in her attempt to vacate the final distribution of
the estate she did not establish fraud by clear and convincing evidence. The
evidence in the record supports the conclusion that Appellant was not only aware of
the scrap and its substantial value before her husband’s death and at the time of
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closing the estate, she was also aware that John later sold the scrap to keep the
business afloat during the final years of the U.S. Steel lawsuit. Ample time existed
between filing of her motion and the trial court’s decision for her to have procured
some evidence that this valuable asset was required to be included in the valuation
of the company’s stock: a simple affidavit countering that provided by Mr. Anness
would have sufficed. No such evidence was provided and all of the evidence of
record indicates that Appellant was aware this alleged asset existed. She was
certainly aware it was not included in the inventory of the company because she
caused the inventory to be prepared and filed it in the 1988 estate. Therefore, at a
minimum, the trial court did not err when it rejected her claim that she discovered the
alleged fraud within a year of filing the 2005 motion to vacate. Accordingly,
Appellant’s second assignment of error is overruled.
FIRST ASSIGNMENT OF ERROR
{¶58} “The trial court erred in not conducting a hearing on the motion to
vacate the final account, denying Appellant meaningful access to the courts of this
State in violation of OHIO CONST., art. I, §16.”
{¶59} Appellant argues that merely by raising allegations of fraud, she has
provided enough of a reason to be statutorily entitled to an oral hearing on her
claims. She alleges that without such a hearing, she cannot procure the requisite
evidence she needs to prevail in this case. Appellant contends that she “called into
question the final accounting [and] requested an opportunity to conduct discovery so
that she could present proof that two separate financial statements were prepared
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within months of each other in order to keep a significant corporate assets [sic] from
being disclosed in the probate court.” (Appellant’s Brf., p. 6.) She argues that her
due process rights were violated when the trial court ruled on her motion without
conducting such a hearing.
{¶60} Appellant’s argument is predicated on her assumption that she has, in
fact, called into question the final accounting. However, Appellant did not produce
any evidence to support her allegations that a fraud was perpetrated in this case,
despite the fact that she was provided with the opportunity to offer evidence in
support of her motion prior to the non-oral hearing in this matter. Because she seeks
to proceed on mere allegations, the trial court did not err in denying the motion to
vacate without first conducting an (oral) evidentiary hearing.
{¶61} At oral argument in this Court, both parties rested their due process
arguments on the Fifth District’s opinion in In re Sluss (September 10, 2001), 5th
Dist. No. 2001CA00024. In that case, the probate court granted a motion to vacate
an entry approving and settling the estate’s partial account, based on evidence in the
record that guardianship and attorney fees were wrongfully paid from the estate.
Neither party requested an evidentiary hearing.
{¶62} The appellants in Sluss argued on appeal that the trial court abused its
discretion when it ruled on the motion without first conducting an evidentiary hearing.
The Fifth District concluded that no hearing was required because no hearing was
requested and “[t]he filings spoke for themselves and could not have been altered by
any amount of testimony.” Id. at *3.
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{¶63} Appellant argues that Sluss stands for the rule that an evidentiary
hearing must be held if either of the parties requests a hearing. Appellee argues that
Appellant was heard for the purposes of the statute, when the probate court
permitted the parties to submit written evidence in support of their respective
arguments. Appellee further argues that an evidentiary hearing is not required where
there is no evidence supporting the mere allegation of fraud. The evidence of fraud
in Sluss was on the record. Therefore, the facts in Sluss are distinguishable from the
facts in this case.
{¶64} Appellant was not denied due process in this case. Rather than
dismissing the motion based on Appellant’s failure to plead fraud with particularity, as
it could have done, the probate court set a non-oral hearing in this matter to consider
Appellant’s fraud claim. Despite the fact that the probate court invited the parties to
submit “any additional written statements of reasons in support or opposition on or
before said hearing,” (5/1/08 J.E., p. 1), Appellant did not offer any written evidence
to contradict the Anness affidavit. Without a competing affidavit from another
accountant attesting to the fact that exclusion of the scrap from the December 31
financial statement was contrary to generally accepted accounting principles, the
unrebutted evidence before the trial court established that Anness’s reliance on the
December 31 financial statement in valuing the stock did not constitute a fraud on the
estate.
{¶65} Generally a “movant has no automatic right to a hearing on a motion for
relief from judgment.” In the Matter of the Estate of Mary A. Kirkland, 2d. Dist. 2008-
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CA-57, 2009-Ohio-3765, ¶17, citing Hrabak v. Collins (1995), 108 Ohio App.3d 117,
121, 670 N.E.2d 281 (applying Civ.R. 60(b) law to R.C. 2109.35 motion to vacate).
“It is an abuse of discretion for a trial court to overrule a Civ.R. 60(B) motion for relief
from judgment without first holding an evidentiary hearing only if the motion or
supportive affidavits contain allegations of operative facts which would warrant relief
under Civ.R. 60(B).” (Emphasis omitted.) Kirkland, ¶17, citing Boster v. C & M Serv.,
Inc. (1994), 93 Ohio App.3d 523, 526, 639 N.E.2d 136.
{¶66} Appellant was given an opportunity to submit evidence, but relied
instead on bare allegations of fraud to support her motion. Consequently, the
probate court did not err in resolving the motion without an oral evidentiary hearing.
{¶67} Accordingly, both of Appellant’s assignments of error are overruled and
the judgment of the probate court is affirmed.
Donofrio, J., concurs.
Vukovich, P.J., concurs.