Garber v. Schneider

[Cite as Garber v. Schneider, 2022-Ohio-1777.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARIETTA K. GARBER, GUARDIAN : APPEAL NO. C-210568
OF DOROTHY LOCKSPEISER, TRIAL NO. 2020001717
:
Petitioner-Appellee,
: O P I N I O N.
vs.
:
MICHAEL J. SCHNEIDER,
Respondent-Appellant, :
and :
OHIO ATTORNEY GENERAL, :
Respondent. :
Appeal From: Hamilton County Court of Common Pleas, Probate Division
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 27, 2022
Smyth & Mullin, LLC, Robert M. Smyth and Sybil B. Mullin, for Petitioner-Appellee,
Wood + Lamping LLP, Jeffrey R. Teeters and Steven L. Custenborder, Jr., for
Respondent-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Months after a proceeding was initiated to have a guardian appointed
for 90-year-old Dorothy Lockspeiser, who suffered from dementia, and six days before
the initial hearing in the guardianship proceeding, Lockspeiser executed an
amendment to her revocable trust that changed her long-standing beneficiary
designations to add her neighbor, respondent-appellant Michael J. Schneider, as
beneficiary of 40 percent of the trust assets.
{¶2} Soon after petitioner-appellee Marietta K. Garber was appointed
Lockspeiser’s guardian, she filed an action in the probate court to have the trust
amendment declared void. Garber alleged that Lockspeiser lacked the mental capacity
to execute the amendment and that Schneider had unduly influenced her to execute
it. The probate court found that Lockspeiser lacked the mental capacity to execute the
amendment, granted summary judgment in favor of Garber, and declared the trust
amendment void. In addition, the court sua sponte revoked the trust amendment
pursuant to the court’s authority under R.C. 2111.50. Schneider now appeals.
{¶3} We reverse the probate court’s judgment because it should not have
granted summary judgment where there was conflicting evidence as to Lockspeiser’s
mental capacity and because the court exercised its authority under R.C. 2111.50
without complying with the statute’s notice and hearing requirements.
Background Facts
{¶4} In 2007, Schneider bought a condominium from Lockspeiser, which
was down the hall from her own condominium. Lockspeiser had inherited the
condominium that she sold to Schneider from her brother’s estate. Schneider was
represented by attorney David E. Nelson in connection with the purchase.
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{¶5} Twelve years later, in May 2019, Catherine Staskavich, Ph.D., evaluated
Lockspeiser in response to concerns raised by Adult Protective Services. According to
Dr. Staskavich’s affidavit, she had been contacted by Adult Protective Services for a
possible guardianship situation due to “apparent financial exploitation” of Lockspeiser
by her neighbor Schneider, “to whom she had given hundreds of thousands of dollars
in the last few years.” Dr. Staskavich conducted a psychological evaluation of
Lockspeiser on May 6, 2019, and concluded that she was suffering from a progressive
“major neurocognitive disorder,” and, “[g]iven the scope of her cognitive deficits,
impaired insight, and judgment,” she required a guardian of her person and estate.
{¶6} The guardianship proceeding was initiated on May 14, 2019, and the
probate court issued an emergency order placing a hold on Lockspeiser’s bank account
and safe deposit box. An initial guardianship hearing was scheduled for November 7,
2019. According to Dr. Staskavich, she filed a “Statement of Expert Evaluation” with
the probate court on May 14, 2019, in which she determined that Lockspeiser “was
suffering from a major neurocognitive disorder--possibly Alzheimer’s Disease.”
{¶7} Dr. Staskavich testified in her affidavit that she “understood that Ms.
Lockspeiser was going to contest the guardianship,” and that she “was prepared to
testify at the November 7, 2019 hearing” regarding her opinion that Lockspeiser
needed a guardian.
{¶8} Attorney Mark Godbey represented Lockspeiser in the guardianship
proceeding. As admitted in the answer filed in this proceeding, in early June 2019,
Schneider and Mark Godbey retained Jason Graff, M.D., as a medical expert, and Dr.
Graff examined Lockspeiser on June 5, 2019. Schneider drove Lockspeiser, and
accompanied her to this and other appointments with Dr. Graff, his nurse practitioner,
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and his staff. Dr. Graff opined that as of June 5, 2019, Lockspeiser did not need a
guardian but that a power of attorney should be executed and invoked.
{¶9} On September 3, 2019, Dr. Graff conducted another examination of
Lockspeiser. According to Dr. Graff’s testimony in a February 2020 guardianship
hearing, his opinion of Lockspeiser “changed” at the second evaluation. He testified
that at the time of his second evaluation, he “could see there then that she could not
make any informed judgment.”
{¶10} On October 10, 2019, Schneider’s attorney, David Nelson, introduced
Lockspeiser to attorney John Banner. According to Nelson’s affidavit, the meeting
occurred in a conference room at the Madison House, and Schneider was also present.
{¶11} According to an affidavit of attorney John Banner, he explained to
Lockspeiser at the October 10 meeting, “the difference between a Durable Power of
Attorney and a Guardianship,” and that “for a Durable Power of Attorney, as long as
she is competent, she is in charge. I further advised her that if she could not make
decisions for herself for whatever reason, the person she named in the Durable Power
of Attorney would become the ‘Attorney in Fact’ and would make those decisions for
her.” Banner stated that Lockspeiser said “she wished to proceed with drafting a
Durable Power of Attorney.” According to his answer, Schneider admitted that on
October 15, 2019, following the initial meeting with Banner, he and his attorney,
Nelson, met with Lockspeiser and her attorney, Mark Godbey, “to discuss items.”
{¶12} According to the affidavits of Nelson and Banner, they again met with
both Schneider and Lockspeiser in the conference room at the Madison House on
October 16, 2019. Banner stated that he “delivered” the durable power of attorney to
Lockspeiser, which she signed. Banner notarized her signature, and he and Nelson
signed the document as witnesses. In the document, Lockspeiser appointed her
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OHIO FIRST DISTRICT COURT OF APPEALS
“friend and neighbor,” Carol MacGregor, as her power of attorney, “revoking all
powers of attorney heretofore made by me[.]” As Schneider admitted in his answer,
the document purported to revoke Lockspeiser’s 2012 “Health Care Power of
Attorney,” which had named Garber as her agent.
{¶13} On October 22, 2019, Garber’s counsel took Lockspeiser’s deposition for
purposes of the guardianship proceeding, before the first guardianship hearing on
November 7, 2019.
{¶14} According to the affidavits of Nelson and Banner, they again met with
both Schneider and Lockspeiser at the Madison House conference room on October
31, 2019. Banner stated that Lockspeiser “expressed her desire to modify” her trust.
Nelson stated that Lockspeiser “discussed the changes she wanted” to her trust and
“stated that she wanted to change some of the charities to share in the disposition of
her [t]rust property and to include Michael Schneider in the gifting of her property
from her [t]rust.” Banner stated, “After our discussions, we agreed to a second
meeting and scheduled that for November 1, 2019 in the conference room of the
Madison House to execute [the trust amendment].”
{¶15} Nelson and Banner stated that they met with Lockspeiser the following
day, November 1, 2019, that Schneider was not present, and that Lockspeiser signed
the trust amendment. Although it is not entirely clear from Banner’s affidavit, it
appears that he represented Lockspeiser in connection with her execution of the power
of attorney and the trust amendment. It appears that he drafted the power of attorney
that she signed on October 16, for which she paid him in cash. However, it is unclear
who drafted the trust amendment that Lockspeiser signed on November 1—Banner
stated only that the trust amendment “was presented” to her that day, and his affidavit
mentioned no other payments to him by Lockspeiser.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} On November 5, 2019, two days before the initial guardianship hearing,
Schneider submitted a competing application to be appointed guardian of
Lockspeiser’s person. Nelson represented him as guardian applicant.
{¶17} At the November 7, 2019 hearing, attorney Tom Sauter represented
Lockspeiser and requested a continuance. The probate court granted the continuance
and scheduled the guardianship hearing for February 11, 2020.
{¶18} Following the February 11, 2020 hearing, the probate court appointed
Garber as guardian for Lockspeiser.
Procedural History
{¶19} On May 19, 2020, Garber filed an action in the probate court asking the
court to declare void the November 1, 2019 trust amendment, as well as any estate-
planning document or beneficiary designation executed by Lockspeiser between
January 1, 2019, and Garber’s February 2020 appointment as guardian. Garber
alleged that Lockspeiser lacked the mental capacity to execute the amendment and
that Schneider had unduly influenced her to execute it.
{¶20} Garber filed a motion for summary judgment, and Schneider filed a
cross-motion for summary judgment. Following a hearing, the probate court granted
summary judgment in favor of Garber upon its determination that Lockspeiser lacked
the capacity to execute the trust amendment, and that as of September 2019, she also
lacked the capacity to execute any other beneficiary designation or testamentary
document.1 The court declared the trust amendment void for lack of capacity. In
addition, the court sua sponte exercised its authority under R.C. 2111.50, and revoked
the trust amendment.
1The probate court did not address the issue of Schneider’s undue influence, which was another
ground upon which Garber sought the declaratory judgment.
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Summary Judgment
{¶21} In his first assignment of error, Schneider argues that the probate court
erred by granting summary judgment to invalidate Lockspeiser’s trust amendment
premised upon a lack of capacity when the parties presented conflicting evidence
regarding her mental capacity.
{¶22} We review a trial court’s grant of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment
is appropriately granted when there exists no genuine issue of material fact, the party
moving for summary judgment is entitled to judgment as a matter of law, and the
evidence, when viewed in favor of the nonmoving party, permits only one reasonable
conclusion that is adverse to that party. State ex rel. Howard v. Ferreri, 70 Ohio St.3d
587, 589, 639 N.E.2d 1189 (1994). “[A] trial court is required to overrule a motion for
summary judgment where conflicting evidence exists and alternate reasonable
inferences can be drawn.” Holloman v. Permanent Gen. Assur. Corp., 1st Dist.
Hamilton No. C-180692, 2019-Ohio-5077, ¶ 7, quoting Baxter v. Res. Energy
Exploration Co., 2015-Ohio-5525, 57 N.E.3d 188, ¶ 8 (11th Dist.).
{¶23} The mental capacity required to create or amend a revocable trust is the
same as that required to execute a will. R.C. 5806.01.2 Courts apply the test for
testamentary capacity in determining a person’s capacity to execute trust documents.
See Newcomer v. Roan, 2016-Ohio-541, 56 N.E.3d 408, ¶ 109 (6th Dist.); Daubel v.
Dineen, 9th Dist. Lorain No. 11CA009994, 2012-Ohio-5924, ¶ 19; Lah v. Rogers, 125
Ohio App.3d 164, 175, 707 N.E.2d 1208 (11th Dist.1997). The test for testamentary
capacity is whether the person “has sufficient mind and memory: [f]irst, to
2 R.C. 5806.01 provides: “The capacity of a settlor required to create, amend, revoke, or add
property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same
as that required to make a will.”
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understand the nature of the business in which he is engaged; [s]econd, to
comprehend generally the nature and extent of his property; [t]hird, to hold in his
mind the names and identity of those who have natural claims upon his bounty; [and]
[f]ourth, to be able to appreciate his relation to the members of his family.” In re
Estate of Flowers, 2017-Ohio-1310, 88 N.E.3d 599, ¶ 84 (6th Dist.), quoting Niemes
v. Niemes, 97 Ohio St. 145, 155, 119 N.E. 503 (1917), paragraph four of the syllabus.
Evidence that a person had dementia is insufficient by itself to establish the person’s
lack of testamentary capacity; there must be evidence that dementia actually affected
the person’s capacity to make the testamentary disposition. Webb v. Betty S.
Anderson Children Trust, 2020-Ohio-4975, 160 N.E.3d 804, ¶ 36 (1st Dist.), citing
Flowers at ¶ 86, and Stewart v. Boland, 2015-Ohio-1712, 33 N.E.3d 551, ¶ 15 (1st
Dist.).
{¶24} In support of her summary-judgment motion, Garber presented the
affidavit of Dr. Staskavich, who determined that Lockspeiser suffered from a major
progressive neurocognitive disorder. Lockspeiser scored in the “dementia range” on
a cognitive assessment and in the “severely impaired range for her age” on the
Dementia Rating Scale. According to the doctor, the disorder “is progressive and will
require increasing levels of structure, supervision, and support.”
{¶25} Dr. Staskavich opined that Lockspeiser “was so cognitively impaired as
of May 2019, that she was susceptible to influence and was unduly influenced to
amend her Trust, that she would not have amended her Trust but for that cognitive
impairment.” In addition, she opined that Lockspeiser “was so cognitively impaired
as of May 2019, that she did not have the cognitive capacity to execute an Amendment
to her Trust in November 2019.”
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{¶26} Garber also presented testimony from Dr. Graff who evaluated
Lockspeiser in September 2019 and concluded that “she could not make any informed
judgment. * * * [S]he can talk about her problems and she can understand concepts,
but she doesn’t understand how they applied to her.” Dr. Graff’s September 2019
evaluation occurred within two months of Lockspeiser’s execution of the trust
amendment on November 1, 2019.
{¶27} In support of their respective summary-judgment motions, both Garber
and Schneider presented portions of Lockspeiser’s testimony from her October 22,
2019 deposition, which occurred ten days before she executed the trust amendment.
Lockspeiser testified that some of her money was at Morgan Stanley, but she forgot
how much. She said she promised everyone that she would remember, and now she
forgot. Then she said, “12,000,” and then changed it to “12 million.” In support of her
assertion that Lockspeiser could not comprehend the nature and extent of her assets,
Garber presented the following from Lockspeiser’s deposition testimony:
Q. You said you promised everyone that you wouldn’t forget how much
money you had at Morgan Stanley. Who did you promise?
A. Who did I promise?
Q. Yeah. You said a minute ago when you were trying to struggle with
the number.
A. Oh, yeah. Well, that was Mike, the guy that lives next door to me,
the guy that drives me.
Q. Yeah. Why did you make Mike that promise? I don’t want you to
feel bad about something you don’t - -
A. Because he was trying to help me remember, and he gave me a couple
tactics on how to remember the $12 million. I couldn’t remember it.
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Q. Yeah. Did he teach you some tactics on how to remember that?
A. No. He just kept repeating it.
Q. Oh.
A. He wouldn’t let me forget it.
{¶28} In support of his summary-judgment motion, Schneider presented
excerpts from Lockspeiser’s deposition that showed her intelligence, generosity, and
fondness for him. He pointed to portions in which she testified about her childhood,
her parents, and her brother. He notes that when Lockspeiser testified about the $12
million she had invested with Morgan Stanley, she said:
See, when I was playing the stock market, I didn’t care about the money.
I just loved, you know, learning about the different companies and how
they worked, and I had a great time with them and it was - - and it
worked up to 12 million.
A review of Lockspeiser’s deposition shows that at times, she was able to answer the
questions accurately, while at other times, she was very confused.
{¶29} Schneider also presented the affidavits of attorneys Nelson and Banner
in support of his motion. Nelson’s affidavit stated that when Lockspeiser signed the
power of attorney on October 16, 2019, naming Carol MacGregor as power of attorney,
“to the best of my knowledge[,] Dorothy Lockspeiser knew the document she was
signing.” He said, “She knew whom she was naming as the Power of Attorney and that
she was of sound mind and she was not under any undue influence at that time.”
{¶30} Nelson further stated in his affidavit that in his four meetings with
Lockspeiser in October and November 2019, she “came to every meeting at the
Madison House by herself.” He said that she was “always on time,” and that she “was
well dressed, her clothes were clean, and there were no stains on her clothes such as
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food or coffee.” He stated that on November 1, 2019, when Lockspeiser executed the
trust amendment:
I believe [she] knew that she was very wealthy and the extent of her
wealth. * * * I believe [she] knew she had no relatives or certainly no
close relatives. I believe she knew the institutions and persons in her
life who were significant to her and she knew to whom she was leaving
gifts to [sic] in her Trust. * * * I believe that on November 1, 2019, [she]
was of sound mind and had the mental capacity to execute [the trust
amendment].
{¶31} In Banner’s affidavit, he mentioned that in his meetings with
Lockspeiser on October 10, October 31, and November 1, 2019, Lockspeiser arrived
alone and on time. He said that she was “clean, well dressed and not disheveled.” He
stated that on October 31, Lockspeiser “appeared in control, in command and
expressed her desire to modify her Trust Agreement.” Banner stated that when the
trust amendment was presented to Lockspeiser on November 1, she “took time and
looked over the [trust amendment] as presented to her with the changes,” she “did not
express any discontent with those changes, and she signed the document[.]” Banner
stated, “Every time that I met with Dorothy Lockspeiser, she was extremely cordial,
was in command and in control.” Banner said:
As a duly licensed attorney in the state of Ohio who has practiced for 40
years, had I believed that Dorothy Lockspeiser did not have the capacity
to execute the documents as required by law, I would never have allowed
her to sign them.
I believe that on November 1, 2019, Dorothy Lockspeiser was of sound
mind and had the mental capacity to execute [the trust amendment].
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} In its judgment entry, the probate court referred to the averments by
Nelson and Banner as to their belief that Lockspeiser was of sound mind and had the
capacity to execute the trust amendment. The court noted that in support of their
opinions, “their affidavits both state that Ms. Lockspeiser arrived at their meetings
alone.” But the court found “this wholly unpersuasive,” noting that their four meetings
had taken place in Lockspeiser’s residence and that Schneider had been present for all
but one of the meetings. In addition, the court discounted the attorneys’ reliance “on
the fact that Ms. Lockspeiser was clean and appropriately groomed when she arrived,”
because Dr. Staskavich had made the same observations—the court noted, “Despite
these observational findings, Dr. Staskavich found that Ms. Lockspeiser was severely
impaired.”
{¶33} The probate court noted that Nelson had represented Schneider in the
guardianship proceedings, and that in the deposition Lockspeiser had given in those
proceedings, “she stated that she did not have children, but she had a large family on
the coast.” Consequently, the court discounted Nelson’s statements in his affidavit
that Lockspeiser had “no relatives or certainly no close relatives” and that she “never
mentioned blood relatives.”
{¶34} The court found that the two medical professionals agreed that, “at the
latest, as of September 2019, Dorothy Lockspeiser’s neurocognitive impairment had
progressed to the point that she lacked the cognitive ability to make financial
decisions.” The court noted that Lockspeiser’s deposition, given ten days before she
executed the trust amendment, showed that she could not independently recall the
amount of money she had at a financial institution and “was being incessantly coached
in that regard by Michael Schneider.”
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{¶35} The court found the circumstances surrounding Lockspeiser’s execution
of the trust amendment “suspicious,” noting that Schneider’s attorney had introduced
Lockspeiser to Banner; that Schneider and his attorney attended the meetings with
Lockspeiser and Banner; that Schneider communicated by email directly with Banner;
that the trust amendment “was drafted and signed within one day;” and that “[t]his all
took place mere days prior to the scheduled guardianship hearing.”
{¶36} The court found that no genuine issue for trial remained and that
reasonable minds could only conclude that Lockspeiser lacked the capacity to execute
the trust amendment, noting, “perhaps most significantly, [Lockspeiser] could not
hold in her mind the extent of her assets.”
{¶37} In sum, Garber presented evidence from two doctors who opined that
Lockspeiser lacked the requisite mental capacity to execute the trust amendment, and
Schneider presented evidence from two attorneys who opined that Lockspeiser
possessed the requisite mental capacity to execute the amendment. As this court has
previously stated, “[t]his case presents a classic example of what cannot be resolved
by summary judgment: namely, two different versions of a story, with the outcome
dependent on credibility.” Green v. Whiteside, 181 Ohio App.3d 253, 2009-Ohio-741,
908 N.E.2d 975, ¶ 24 (1st Dist.), quoting Wygant v. Continental Ins. Agency, 1st Dist.
Hamilton No. C-980012, 1999 Ohio App. LEXIS 108, *5 (Jan. 22, 1999) (“When this
happens, as it often does, we have repeatedly advised our trial courts to proceed with
a trial, as this kind of case simply cannot be determined by summary judgment, no
matter how implausible one story may seem.”). Because the parties presented
conflicting evidence from which alternate reasonable conclusions could be drawn on
the issue of Lockspeiser’s lack of capacity, the probate court erred in granting
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summary judgment to invalidate the trust amendment premised upon her lack of
capacity. We sustain the first assignment of error.
Revocation pursuant to R.C. 2111.50
{¶38} In his second assignment of error, Schneider argues that the probate
court erred in ordering the revocation of Lockspeiser’s trust amendment pursuant to
R.C. 2111.50(B)(4), without providing the statutorily required prior notice of its action
or establishing that such revocation was in the settlor’s best interest. A probate court’s
decisions involving guardianships will not be reversed on appeal absent an abuse of
discretion. In re Guardianship of Gelsinger, 8th Dist. Cuyahoga No. 108479, 2019-
Ohio-4584, ¶ 18, citing In re Guardianship of Bakhtiar, 9th Dist. Lorain No. 16011029,
2017-Ohio-8617, ¶ 8.
{¶39} “The general grant of jurisdiction to probate courts regarding guardians
and their wards is comprehensive.” In re Guardianship of Spangler, 126 Ohio St.3d
339, 2010-Ohio-2471, 933 N.E.2d 1067, ¶ 46. Because the probate court is the
“superior guardian,” other guardians must obey all probate court orders. Id. at ¶ 52,
citing R.C. 2111.50(A)(1) (“At all times, the probate court is the superior guardian of
wards who are subject to its jurisdiction, and all guardians who are subject to the
jurisdiction of the court shall obey all orders of the court that concern their wards or
guardianships.”).
{¶40} R.C. 2111.50(B) provides in relevant part:
In connection with any person whom the probate court has found to be
an incompetent or a minor subject to guardianship and for whom the
court has appointed a guardian, the court has, subject to divisions (C)
to (E) of this section, all the powers that relate to the person and estate
of the ward and that the ward could exercise if present and not a minor
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or under a disability, except the power to make or revoke a will. These
powers include, but are not limited to, the power to:
***
(4) Create, amend, or revoke revocable trusts of property of the estate
of the ward that may extend beyond the minority, disability, or life of
the ward[.]
(Emphasis added.)
{¶41} The statute makes clear that the probate court’s exercise of its powers
under division (B) is subject to divisions (C) and (E). As relevant here, R.C. 2111.50(C)
requires that the court’s authority be exercised “in the best interest” of the ward. R.C.
2111.50(E)(1) requires that, “prior to its exercise” of its power under division (B)(4) to
“create, amend, or revoke a revocable trust,” the probate court “shall cause notice as
described in division (E)(2) of this section to be given and a hearing to be conducted.”
Division (E)(2) provides that notice shall be given to, among others, the beneficiaries
under a revocable trust of the ward and the beneficiaries under any proposed revocable
trust. R.C. 2111.50(E)(2)(d)(ii) and (iv).
{¶42} Even though we could glean from the probate court’s entry that it
purported to exercise its power to revoke the trust amendment in its ward’s best
interest, so as to satisfy R.C. 2111.50(C), the statute makes clear that notice and a
hearing are required before the exercise of that power. However, the record does not
demonstrate that the probate court provided the statutorily required notice or hearing
prior to revoking the trust amendment, as required by R.C. 2111.50(E)(1) or (2). While
the statute does not indicate whether the hearing required in division (E)(1) must be
an evidentiary hearing, we cannot say that the court’s hearing on the competing
summary-judgment motions appropriately satisfied the requirement. Had Schneider
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been provided the statutorily required notice, he may have chosen to rely on different
evidence or arguments to convince the probate court not to exercise its power to revoke
the trust amendment.
{¶43} Consequently, we hold that the probate court abused its discretion by
sua sponte exercising its power under R.C. 2111.50(B)(4) to revoke the trust
amendment without complying with the notice and hearing requirements under R.C.
2111.50(E). We sustain the second assignment of error.
Conclusion
{¶44} Therefore, the judgment of the probate court is reversed, and the case is
remanded for further proceedings consistent with the law and this opinion.3
Judgment reversed and cause remanded.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
3 Respondent-appellant acknowledged at oral argument that no jury demand had been filed, and
that the matter should be remanded to the probate court for a bench trial.
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